author: Landon, J.

text:
    Jeremiah Hailey, Resp’t, v. Sophia Ano, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Former adjudication—Identity.
    Identity of name is some evidence of identity of person, and when not questioned upon the trial is sufficient after judgment.
    2. Same—Trespass.
    In an action for trespass in entering upon plaintiff’s land and removing hay, it appeared that in a former action brought by plaintiff for a similar trespass against defendant’s predecessor in title of adjoining land, who was in possession under a contract to purchase, and who subsequently received a deed containing a description similar to that in the contract, the plaintiff recovered judgment. The defendant in said action conveyed, pending said action, to his children, who conveyed to defendant. Held, that all quetions respecting the boundary line were settled by said judgment, and that defendant was bound thereby.
    3. Same—Lis pendens.
    An action for trespass, which depends upon the location of a boundary line, does not affect the title to, or the possession, use or enjoyment of real property, and no lis pendens is required to be filed.
    4. Same—Purchaser pendente lite.
    In the absence of statutory regulations, a party who purchases property pendente lite does so at his peril, and is as conclusively bound and affected by the judgment as though he had been made a party.
    Appeal from a judgment entered upon a verdict of tin jury directed by the court for the plaintiff, upon the trial at the Clinton circuit in November, 1890.

      J. P. Kellas, for app’lt; G. H. Beckwith, for resp't.
   Landon, J.

The complaint alleged that in the summer of 1889 the plaintiff was seized and in possession of lot number twenty, township ten, Franklin county; that the defendant then wrongfully entered thereon and cut and carried away a quantity of hay, etc. Defendant by her answer, in addition to a general denial, alleged title in herself to a portion of lot nineteen, and that the premises referred to in the complaint were part thereof, and that the acts of were done thereon.

The testimony tended to show that lots nineteen and twenty adjoin each other, that the plaintiff owned twenty, and the defendant the adjoining part of nineteen; that the defendant caused the hay to be cut from a strip which plaintiff’s testimony tended to show was upon lot twenty, and defendant’s testimony that it was upon lot nineteen, the parties differing in their location of the boundary line between the two lots. It further appeared that the plaintiff had been in possession of lot -twenty for upwards of twenty years, holding title thereto since 1882. That Francis Ano, husband of defendant, acquired title by deed to said part of lot nineteen June 12, 188b, having for several years prior thereto been in possession of it and holding a contract respecting it between him and his grantor, dated April 15, 1880. Francis Ano, June 25, 1885, conveyed by deed a portion of lot nineteen to his> daughter Lena ; and July 20, 1885, he conveyed by deed the remainder of his portion of the lot to his son Joseph" Lena Ano, May 20, 1889, conveyed her part oí the lot to her mother, the -defendant,' and June 27, 1889, Joseph Ano conveyed his part to the defendant.

The plaintiff then introduced in evidence the record of a judgment recovered by him in an action in the supreme court, Clinton -county, in which he was plaintiff and Francis Ano defendant. The complaint in that action alleged that in July and August, 1884, the defendant wrongfully entered upon said lot twenty, owned and in possession of the plaintiff, and took from plaintiff’s land and possession a quantity of hay, etc. Defendant’s answer -contained a general denial, and alleged that he was the owner and in possession of the lands from which the hay was taken, and also -owner of the hay. The record shows that the plaintiff duly recovered judgment in that action at the Clinton county circuit in November, 1889, which was entered in the clerk’s office the same month, for $40 damages and $133.03 costs.

The defendant objected to the admission of the judgment roll in evidence upon the ground that the judgment did not establish .any title to the land; that it appears to have been recovered .simply for taking possession of personal property; that it was not .a determination of the questions in this action; that it appears that the action was commenced when Francis Ano had no title to lot 19. These objections were overruled. No objection was taken that the trespass then sued for was not in respect to the .same strip of land as is involved in the present action. The trial court held that the judgment was an adjudication binding upon the defendant in that action, and upon the defendant in this action, who has since derived her title from him, and that the only question for the jury was the amount of damages; this amount counsel .agreed upon and the court directed a verdict for the plaintiff therefor.

Defendant’s counsel asked to go to the jury upon the questions whether any trespass was committed upon lot 20, and whether any hay was taken therefrom, and “upon all the other questions in the case.” The court refused the requests. The trial court, in ■disposing of the case, stated that the judgment in the former .action was for taking hay off this disputed tract. Now, the appellant insists that it was not proved that the former action was for hay taken from this disputed tract. But Francis Ano testified that it was. In vieyg of the fact that that objection was not taken upon the trial; that the trial court assumed the tract now in question to be identical with the one then in question, and so stated without challenge, we think it too late to insist upon an objection which we must presume would have been raised when it ought to have been if it had had any merit. The objection now made for the first time that the plaintiff in that action was not shown to be the plaintiff in this, and that the defendant in that action was not shown to be the Francis Ano who was grantor of the defendant, may be disposed of in the same manner. It comes too late. Besides, identity of name is some evidence of identity .of person, and when not questioned upon the trial is sufficient after judgment.

It is-now objected that Francis Ano was not shown to have had any title to lot 19 in 1884, when the hay was taken by him. that year. His answer in the former action alleged title and possession in himself of the land from which the complaint in that action alleged the hay had been taken. The deed to him of lot 19 in 1885 refers to a contract between him and his grantor of date April, 1880, as containing the same description contained in the deed. He testified to the building of a brush fence in part by the plaintiff and part by himself in 1880 or 1881, after he bought lot 19. He also testified that in 1884 he had the grass from “this six acre piece,” presumably the piece now in dispute. It was a proper inference from his deed, from the contract it refers to, from his answer in the former case, and from his testimony, that he first had a contract for lot nineteen, and went into possession of it, claiming to own it, and then obtained the deed for it Such being the case, his deed, received subsequent to his alleged trespass in 1884, containing as it did the same description as his contract, conveyed to him as against the plaintiff the same premises as to which he had asserted by his trespass and the answer in that action both ownership and possession and was defeated. The plaintiff in that action asserted both ownership and possession, and by the judgment both were adjudged to him as against Francis Ano. Francis Ano defended, or could have defended, under his grantor, and for aught that appears had the right to wield in his defence every right that, his grantor then had. Such right was in effect adjudged insufficient against the plaintiff. Francis Ano then took from his grantor a deed conveying those very rights which were insufficient to defeat plaintiff’s claim. He thus obtained in his own right precisely what the judgment determined was not enough to protect him. If he acquired by the deed any further or better right or title to defend against the plaintiff’s claim, it was for him or this defendant to assert and prove it upon this trial; but this was not done. He therefore took a title to lot nineteen which gave him no right to the parcel in dispute, and as he could convey no better title than he held, his grantees must stand in his shoes. But assuming that no question of title was involved, but only the question of the location of the boundary line between nineteen and twenty; as between the plaintiff and Francis Ano the judgment determined it as plaintiff claimed it. Francis Ano while the suit was pending acquired title to nineteen. Thus every interest adverse to the plaintiff’s claim respecting the boundary was merged in him, and he bought nineteen subject to the issue which he had already joined with the plaintiff respecting the boundary. Francis Ano could convey no better title to locate the boundary than he possessed, and his' grantees must abide by what they acquired from him.

The action against Francis Ano was brought in September, 1884, and he served his answer in October of that year. The case was not brought to trial and judgment until November, 1888. It was pending when Francis Ano received the deed for lot nineteen, and when he conveyed it to his children, but judgment was recovered before they conveyed it to their mother, this defendant. No evidence was given tending to show that this defendant and her children, grantees of Francis Ano, did not know that the suit was pending, or that the defendant had no knowledge of the judgment when she purchased.

But the plaintiff’s actions were not brought to establish any lien or claim upon lot 19. The first was brought to redress a wrong done by Francis Ano upon lot 20, and the present action was brought to redress a like wrong done by the defendant. The Code, § 1670, provides for filing a Us pendens in an action 11 affecting the title to, or the possession, use or enjoyment of real property,” describing the property “ affected thereby.”

The pivotal question in both actions was whether lot 20 embraced the locus in quo, and that depended upon the location of the boundary line. True, its location as to twenty was also its location as to nineteen, but its determination did not really “ affect the title to, or the possession, use or enjoyment of ” nineteen; it simply ascertained one of its true boundaries, and hence no lis pendens was required to be filed.

The judgment in the first action bound Francis Ano’s grantees, including the defendant. His children bought while the action was pending, and thus voluntarily accepted the risk of the event, and this defendant purchased after the judgment was rendered.

In the absence of statutory regulations, a party who purchases property pendente lite does so at his peril, and is as conclusively bound and affected by the judgment as though he had been made a party. Murray v. Ballou, 1 Johns. Ch., 567; Zeiter v. Bowman, 6 Barb., 133; Griswold v. Miller, 15 id., 520; Lamont v. Cheshire, 65 N. Y., 30.

We have examined the other questions presented by the defendant. We do not think they require discussion.

The judgment should be affirmed, with costs.

Learned, P. J., and Matham, J., concur.


source: Caselaw Access Project

author: Landon, J. Mayham, J.

license: Public Domain

text:
    James C. Birge, Resp’t, v. The Berlin Iron Bridge Co. et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Towns—Bridges—Power of town to raise money.
    If a town does not wish, to borrow money in the first instance to build a bridge in an emergency, it need not apply to the board of supervisors, but may by its own vote authorize the raising and appropriating of the money.
    S, Same.
    A special town meeting was called for the purpose of raising and appropriating money to maintain a bridge. At the meeting a resolution was offered to apply to the board of supervisors for an act to authorize the borrowing of money for that purpose. The meeting proceeded to ballot, using printed ballots, but before balloting was finished the resolution was passed viva voce. The ballots cast showed a large majority “ for the resolution.” Held, that in view of the fact that the call showed the purpose of the meeting to be the raising of money, and that the ballots were printed, it could not properly be claimed tliat the balloting was upon the resolution offered at the meeting; that by the ballot taken the commissioner of highways was authorized to make a contract .for the construction of the bridge.
    (Mayham, J.,“dissents.)

      Appeal from an order made at special term, denying the motion of the defendants to set aside and vacate an injunction granted by a justice of this court, during the pendency of the action.
    The action was brought by a taxpayer of the town of Oswegat•chie against the defendant, the Berlin "Iron Bridge Company, to restrain it from constructing a bridge under a contract made with the defendant Joseph Wagner as commissioner of highways of that town, alleged to have been made in pursuance of authority given at a special town meeting of that town.
    The complaint among other things charges that the defendant Wagner claims to have entered into a contract, as commissioner of highways, with the Iron Bridge Company to tear down the old bridge at Eel Weir Rapids in the town of Oswegatchie and construct a new bridge in its place for the sum of $9,200. It also charged that Wagner had no right to enter into such contract and that it was entered into for the purpose of cheating and defrauding the taxpayers of the town. It also set out what is claimed by the plaintiff to have been the action of the special town meeting.
    Upon the complaints and affidavits of several persons purporting to set forth what occurred at the special town meeting, a temporary injunction was granted. The defendants answered separately and thereafter moved upon the answers and affidavits at a special term to vacate the temporary injunction, which motion was denied, and from the order denying the same the defendants appeal.

      A. D. Wales, for Iron Company : Georqe R. Malbv, for Wagner : D. ifagone, for resp’t.
   Landon, J.

The petition of the eighteen electors and freeholders of the town requesting the town cleric to call the special town meeting “pursuant to chap. 259, Laws 1886, for the purpose of raising and appropriating the necessary money to maintain the bridge,” the call of the town cleric in pursuance thereof specifying the same purpose, and stating that “ a resolution will be offered at said special town meeting to raise a sum not exceeding $10,000,” the form of the ballots used in voting, being either “ for ” or “ against ” “ the resolution to raise $10,000, or so much thereof as may be required to build the Eel Weir bridge,” the fact that the ballots were printed, indicate too clearly, I think, to be misunderstood that the purpose of the meeting was to vote upon the question of appropriating a sum not exceeding $10,000 to maintain the bridge, and that it was understood that the resolution was as indicated in the call of the town clerk.

The plaintiff’s affidavit is to the effect that before balloting commenced the resolution was offered to apply to the board of supervisors for an act authorizing the borrowing of money to build the bridge and appointing commissioners to construct it; that some discussion followed, and was closed by the remark of Mr. Wilson that it was better to ascertain whether the people desired the bridge to be built and to make an appropriation for it before commissioners should be appointed. Wilson then moved that the meeting proceed to ballot; that thereupon the meeting did proceed to ballot, using the printed ballots, which of course had been already prepared. The polls opened at one o’clock, and the balloting con • tinned until half-past three, when it was on motion suspended and the resolution respecting the application to the supervisors Was amended and adopted by a viva voce vote. The plaintiff does not state whether the balloting was resumed ; the polls closed at four o’clock. Now, on the plaintiff’s statement and its corroboration by the affidavit of the learned counsel, it is apparent that the balloting was upon the resolution indicated both in the town clerk's notice and in the ballots themselves; and Mr. Wilson’s motion obviously referred to it, and was not upon the resolution to apply to the supervisors. If it is true that no other written resolution was offered except the one to apply to the supervisors, the inference that the balloting must have been upon that resolution or not upon any, is plainly erroneous. The balloting was nearly if not wholly finished before the meeting took the viva■ voce vote on the written resolution, and no other -vote was taken upon it. Such being the case, the commissioner of highways was authorized to make the contract with the defendant, as we held in Berlin Iron Bridge Co. v. Wagner, 57 Hun, 346; 32 St. Rep., 407. The charge of fraud in making that contract is not supported. The subsequent action of the board of supervisors could not impair the contract or deprive the defendant of his right to proceed under it. Hence the order denying motion to vacate the injunction should be reversed.

The power of the electors at such special town meeting to make an appropriation of $10,000 is again questioned, notwithstanding our decision above cited, but as it is alleged that that case was collusively agreed upon1 in the interest of this defendant, it is proper to re-examine the question.

Referring to the opinion in 57 Hun, 346, it may be added to what is there said, that the $250 to be raised under the Revised Statutes is to be raised upon the commissioner of highways delivering a statement to that effect to the supervisor ; the $250 additional provided for by chapter 274, Laws of 1832, the commissioner of highways must apply for in open town meeting; the additional $750, authorized by chapter 615, Laws 1857, he must apply for in like manner. The “ open town meeting ” means the annual town meeting. Special town meetings as authorized by 1 R. S., 341, § 7, before the. amendment made by chapter 259, Laws 1886, under which amendment this special town meeting was expressly called, were not authorized to be held for the purpose of voting upon “ the question of raising and appropriating moneys for the construction and maintenance of any bridge or bridges.”

The methods already existing provided for raising the sums above specified. This amendment contemplated additional moneys to meet emergencies. It would be idle to authorize a special town meeting to vote upon such a question if the vote was inefficient. And it may be added that such a power harmonizes with our system of local self government. It is much better that those who vote the debt should pay it than foist it upon posterity by means of a loan to be authorized by the board of supervisors pursuant to chap. 482, Laws of 1875, and amendatory acts, ■especially chap. 451, Laws of 1885, under which the board of supervisors in this case assumed to act. If the town do not wish to borrow the money in the first instance, it need not apply to the board of supervisors. It can, by its own vote, authorize the raising and appropriating of the money. The powers given to the board of supervisors to authorize and provide for the erection of bridges do not take away the powers vested in the commissioner of highways for that purpose. Huggans v. Riley, 125 N. Y., 88; 84 St. Rep., 458. And it is manifest that the authority vested in the board of supervisors to enable the- town to borrow money to build a bridge, or to pay the debt it has already incurred in building it, does not conflict with the power vested in the town to provide for building it by its highway commissioner without borrowing, or for paying for it after it has been built in the ordinary way of paying town charges. I think the subsequent proceedings which resulted in an act of the board of supervisors, the appointment of commissioners and a contract for' the building this bridge by the King Bridge Company were regular, but were taken under a misapprehension as to the validity, of the contract with the Berlin Company.' I advise, therefore, that the reversal of this order be without prejudice to any remedy the King Company may be advised to damages.

Learned, P. J., concurs.

Mayham, J.

(dissenting).—The plaintiff brings this action as a resident and taxpayer of the town of Oswegatchie, and asks that the defendants be restrained from carrying out a contract made by the defendant Wagner, as commissioner of highways of that town, with the defendant, the Berlin Iron Bridge Co., for the construction of a bridge across a river in that town at Eel Weir Rapids, for the alleged purpose of preventing waste of the town funds.

The complaint alleges the making of a contract between the defendants for the construction of a bridge at that point at an expense of $9,200, which the defendant Wagner, as such commissioner, had no power to make, which was entered into- by the defendants with the intent and purpose of cheating and defrauding the taxpayers of that town. The complaint also purports to allege the proceedings at a special town meeting at which it was resolved that an application should be made to the board of supervisors of St. Lawrence county to pass a bill authorizing the town to borrow money on its credit, to an amount not exceeding $10,000, to build a bridge at that point, and requesting the appointment of commissioners to build said bridge, and that subsequently and pursuant to said application the board of supervisors passed such act.

Upon the complaint and the affidavits offered to establish the facts therein alleged, a justice of this court granted a temporary injunction, restraining the defendants, during the pendency of this .action, from the construction of such a bridge. The defendants answered separately, and upon their answers and upon counter affidavits, moved at special term to set aside the temporary injunction, which motion was denied.

There is considerable conflict of facts between the affidavits of the respective parties as to the proceedings at the special town meeting; but the facts which led* up to the convening of that special town meeting seem not in dispute. A petition of eighteen freeholders, and persons eligible to the office of supervisor of the town, was filed with the town clerk requesting that officer “to call a special town meeting for the purpose of raising and appropriating the necessary money to maintain the bridge across the Oswegatchie river at the Bel Weir rapids, said bridge being one of the bridges said town has to maintain.”

Pursuant to such request the town clerk published a notice, of which the following is a copy :

“To the Electors of the Town of Oswegatchie, St. Lawrence CountyT E Y:
“A petition signed by more than twelve electors of the town of Oswegatchie, eligible to the office of supervisor of said town, requesting the town clerk of said town to call a special meeting of the electors of the town for the purpose of raising and appropriating the necessary money to maintain the bridge across the Oswegatchie river at the Eel Weir Rapids, in said town, being one of the bridges that said town has to maintain :
“Now therefore I, Nathaniel Wells, as town clerk of the town1 of Oswegatchie, by virtue of the statutes of the state of New York,' in such cases made and provided, do hereby call the special town meeting of the electors of the town of Oswegatchie aforesaid for the purpose of raising and appropriating the necessary money tO' maintain the bridge across the Oswegatchie river at the Eel Weir' Rapids in said town.
“ A resolution will be offered at said special town meeting to-raise a sum not exceeding the sum of $10,000. For that purpose said special town meeting will be held in the town hall, in the city of Ogdensburgh, on Saturday, November 2d, 1889. The polls will be open at 1 o’clock p. M., and closed at 4 o’clock p. m.
“Dated Oct. 25th, 1889.
“Nathaniel Wells,
Town Clerk of the Town of Oswegatchie.” .

After the convening and organization of the special town meeting pursuant to the notice,,a resolution was presented as follows:

Resolved, That we hereby request the supervisor of the town of Oswegatchie, and the several ward supervisors of the city of Ogdensburgh, to secure the passage of an act at the next session of the board of supervisors of St. Lawrence county, authorizing the town to borrow money to build a bridge across the Oswegatchie river at the Eel Weir Rapids, on the site of the present bridge,, and appointing William J. AveriH of Ogdensburgh, Fenton Devoy and James Anderson of Oswegatchie, commissioners to construct such bridge in such form and manner as they shall deem for the best interest of the town, and that the order of such commissioners. on’the supervisor of the town shall be his warrant for disbursements to be made from time to time as may be necessary in payment on account of said bridge, not to exceed the sum of ten thousand dollars. That said commissioners shall be entitled to three dollars per day for each day actually employed.”

This resolution was discussed by persons attending said meeting, and there is a sharp conflict in the evidence offered on the motion whether the balloting was upon this resolution or upon a ballot to raise $10,000. The form of the ballot used is as follows:

“For the Resolution.
“ For the resolution to raise $10,000, or so much thereof as may be required to build the Eel Weir rapids bridge.”
“ Against the Resolution.
“ Against the resolution to raise the sum of $10,000, or so much thereof as maybe required to rebuild the Eel Weir rapids bridge.”

While the balloting was in progress a motion was made to amend the resolution above quoted, and balloting was suspended and the resolution was amended by a viva voce vote in respect to the number and personalty of the commissioners. The town clerk certifies the result of the special town meeting as follows: The ballots for raising the sum of $10,000 were counted, and there were 152 for the raising of $10,000 and three against.”

At the annual meeting of the board of supervisors next ensuing the holding of this special town meeting, that board on the 21st day of November, 1889, passed an act, in the first section of which it recites that in accordance with a resolution adopted at a special town meeting at the town of Oswegatchie the supervisor of that town was authorized to borrow on the credit of that town a sum not exceeding $10,000 at a rate of interest not exceeding four per cent and execute the bonds of the town therefor, and provided for the time'of the maturity of such bonds, and for levying and collecting from the taxable property of that town the sums of money required to pay such bond at maturity! The second section of the act provides for the form and the manner of executing such bonds, and directs the supervisor to sell at not less than par value and pay over from the money received therefor to the commissioners appointed by that act so much as shall be necessary upon their order in payment for the construction of a bridge across the Eel Weir Rapids in that town. The next section appoints commissioners for the town to construct such bridge, and prescribes their powers and duties and fixes their compensation. The fourth section provides that the act shall take effect immediately. On the 18th of February, 1890, after the passage of this act, the board of supervisors of St. Lawrence Co. passed an act repealing the act of November 21, 1889. And on that same day that board passed a bill for the erection of such bridge, appointing commissioners and authorizing the issuing of bonds by the supervisor and the sale of the same to meet the expenses of such construction in substance like the act of November 21, 1889, but differing therefrom in some particulars.

On the 29th of November, 1889, the defendant Wagner as commissioner of highways made the contract with the bridge company,, the performance of which is sought to be restrained in this action. Some of the questions raised on this appeal have been before this, court on an agreed case, submitted to this court under § 1279 of the Code by Berlin Iron Bridge Co. v. Joseph E. Wagner, as sole commissioner of highways of the town of' Oswegatchie, for the avowed purpose of determining, as between them, the effect of the contract, and as far as the question was fairly before this court on that submission and determined by it it must be conclusive on this motion. It' is, however, proper to state that the facts stated in that submission differ widely from those presented on the motion in many important particulars.

The sixth article of that submission admits and declares that the special town meeting was called and held under the provisions of the Eevised Statutes as amended by chapter 259 of the Laws-of 1886. In the case above referred to, this court upon the facts before it held that the special town meeting was not called for' the purpose of making an application to the board of supervisors and as chapter 259 of the Laws of 1886 prohibits a special town meeting from acting upon any subject other than such as-are specified in it, that town meeting was not authorized to pass a resolution for a submission to the board of supervisors. This result followed as a necessary consequence of the sixth article of the submission, which was, as we have seen, conceded and agreed that-the special town meeting was under the provisions of the Eevised Statutes,-as amended by chapter 259 of the Laws of 1886, as the court was not at liberty to look beyond the agreed case for facts-upon which to place its decisions. But I do not think that the decision of this court upon the submitted case above referred to-is an authority that the commissioner of highways, upon the vote-of the town at a general or special meeting, can impose burdens upon a town to an unlimited éxtent for the improvement of roads and bridges. The provisions of the Eevised Statutes direct the application by the commissioners of highways of the fines, penalties and commutations to the improvement of roads and bridges, and he may expend in addition thereto in any one year the sum of $250, without an application to the voters of the town; he may also apply in open town meeting for $250 more, chapter 274,. Law of 1882, and under the provisions of chapter 615, Laws off 1857, he may have $750 more, and these sums, amounting in the aggregate to the sum of $1,250, would seem to be the extent off the power of the town in its original capacity to raise money by a vote.

Under our representative theory of government, no power off legislation inheres in the people, and laws can only be enacted by the legislative department of the government, unless the legislature has, by express enactment, conferred legislative power upon¡ the people, or some representative body of the people. Unless, therefore, power is given by law, either in express terms or by-fair implication, to the town to raise moré than $1,250, or to the-commissioner to obligate the town for a greater amount, any attempt to do so, either by the town or the commissioners, would be ineffectual and void.

But we do not think this appeal the proper place to determine the ultimate rights of the parties to this controversy. It is apparent that grave and important questions are involved in the action, which should be tried deliberately upon the proof and determined by the trial court.

This contract in this action is challenged both on the ground of want of power in the commissioner and for alleged fraud in its creation, both of which are proper subjects of investigation upon the trial. The learned judge at the special term on this motion held that there was no voting to raise or appropriate money for the construction of the bridge, except by the passage of the resolution as offered by Mr. Magone, as amended by the viva voce voté.”

From our examination of the case, we are not prepared to dissent from that conclusion. If that conclusion of the special term is correct, it would seem to follow that the only act done at the special town meeting was to adopt a resolution which this court has held was at least in part unauthorized and inoperative. Bridge Co. v. Wagner, supra. Assuming that to be so, it is a matter of grave doubt - whether the illegal act, so coupled with the part claimed to be valid, would not vitiate the whole resolution.

In People ex rel. Bridgeman v. Hall, 104 N. Y., 176; 5 St. Rep., 578, the court, in discussing that principle, said: “ But when an agent or the donee of a power does a different thing from what he is authorized to do and what he does is intended as an exercise of one of the several powers, and he does the act for one purpose, and in the assumed exercise of one specific power, it would seem to be contrary to reason to treat the act as done under a different power and make it binding, contrary to the intent.” Applying that rule to this case, if it should be finally found that the conclusion of the special term was right and that the vote on the Magone resolution was the only one taken, then if that was void so far as it authorized a submission to the supervisors, it would in like manner be void as to the $10,000.

We are not called upon on this motion to determine the validity of the action of the board of supervisors in appointing commissioners, or of the act of such commissioners, as the contract in this case must stand or fall upon its merits.

As serious injury might result to all parties if this injunction were vacated and it should be finally held that the contract between the defendants was invalid, and as the granting of a temporary injunction is largely in the discretion of the judge at special term granting the same, and as there are grave questions as to the validity of this contract, we think the order of the special term should be affirmed.

Order reversed, and injunction vacated, with ten dollars costs and printing disbursements.


text:
    The People ex rel. The Seth Thomas Clock Co. v. Edward Wemple, Comptroller.

      (Supreme Court, General Term, Third Department,

      Filed December 5, 1891.)

    1. Taxes—Corporations—Exemption.
    Relator is a foreign corporation doing business in this state, having itsmanufactory in Connecticut and its principal place of business in New York. city. It has done some manufacturing in New York, probably in finishing the products sent here, which amounted to about two per cent, of its entire product. Held, that it did not carry on manufacture within, this state, within the meaning of the statute, so as to exempt it from tax.
    3. Same—Capital stock.
    In fixing the amount of capital stock employed here on which to levy the tax, the comptroller assumed that it bore the same proportion to the-whole capital stock that the sales in this state bore to the total amount of sales. Held, that in the absence of evidence that the amount so fixed was. erroneous the comptroller’s decision would not be disturbed by the court.
    Certiorari to review the decision of the comptroller of the-state assessing a tax of $5,606.51 upon relator, a foreign corporation doing business in this state, based upon the value of its capital stock employed in this state during the eleven years from 1880 to 1890, both inclusive. The relator, after the taxes were-assessed by the comptroller, applied to him for a revision and readjustment of the same, claiming that it was not liable to taxation,, or, if liable to any tax, the tax imposed was excessive. The-comptroller re-examined the matter, and thereupon declined to make any revision or readjustment.

      Rodman & Cogswell, for relator; I. H. Maynard, Deputy Att’yGen., for comptroller.
   Landon, J.

Chapter 542, Laws 1880, § 3, provides that “ Every corporation * * * incorporated or organized by or under the laws of any other state or country and doing business in this state, except * * * manufacturing corporations carrying on manufacture within this state, * * * shall be subject, to and pay a tax as a tax upon its corporate franchise or business-into the treasury of the state annually,” etc. This section of the act was amended by chap. 361, Laws 1881, and chap. 359, Laws-1885, but not so as to affect the application of the above language to the relator in the particular first to be considered, namelyDid the relator, in addition to doing business in this state (as to which there is no question), also carry on manufacture within this state during all the years from 1880 to 1890, both inclusive? The relator was organized in 1853 under the laws of the state of Connecticut, and during the years in question was extensively engaged within that state in manufacturing clocks and watches. Its plant, and machinery for the purpose are and always have been situated in Thomaston, in the state of Connecticut. Its manufacturing done there has averaged a yearly product valued at from $500,000 to $700,000. At the same time it has had its principal sales rooms and office in the city of New York. Its sales in and from its New York rooms have exceeded in amount and value all its sales, in and from all its other sales agencies. A large part of the sales. however, are made by means of samples, and the goods are in such case delivered from the manufactory in Connecticut. The-relator has at the same time done manufacturing in New York of the yearly amount of from $16,000 to $20,000, but of what character or upon what basis computed does not appear. This manufacturing probably consists in some incidental additional work to-the manufactured product forwarded from Connecticut to New York, such as may conveniently and suitably be added at the place where the manufactured product is exposed for sale. It is about two per centum of the whole product, and less than four per centum of the amount sold in and from New York.

The statute in question should have such reasonable construction as will give effect to the legislative intent. As was said in People v. Horn Silver Mining Co., 105 N.Y., 76, 82; 6 St. Rep., 495, in which a similar question was presented, in order to give such effect the ordinary meaning of the phraseology employed in the act may be enlarged or restricted. It was there also said that, “ In exempting such corporations from taxation under the act the. legislature-may be supposed to have been influenced by two things ; a desire-to encourage manufacture within the state, and the fact that a corporation carrying on any business within the state would necessarily have visible tangible, property liable under the general laws of the state to taxation.” It certainly could not have been intended that a foreign corporation doing so large a business-within the state in the sales of its product, and so small a part of the work of manufa,luring it, could by its technical and nearly colorable act of “ carrying on manufacture within the state,” be entitled to the exemption which was intended to secure to the state the benefit resulting from a substantial compliance with the terms of the statute.

We think the relator is not within the exemption. By the terms of the act, “ The amount of capital stock which shall be the basis for tax under the provisions of § 3 of this act * * shall be the amount of capital stock employed within this staté.”

The comptroller fixed for each year the amount of such capital stock employed within the state. It is claimed that his valuations were excessive. He made them principally from the facts stated in the reports of the relator, made by it under protest. It appears that up to 1884 the paid up capital stock of the relator was $500,000, and thereafter $600,000. The comptroller ascertained the entire sales of the relator for each year; the proportion thereof made in and from New York; the amount of the stock in trade carried in each year by the relator in that city; the rentals paid for accommodations there, and its average monthly balances in the New York banks. It appeared that most of its business was directed from its New York office. The result reached by the comptroller indicates that he fixed the capital stock employed in New York by assuming that the capital stock employed within this state was in proportion to the whole capital stock as the amount of sales made in this state was to the total amount of sales. We do not suppose that this is absolutely right; the best the comptroller could do was to make it approximately right. The relator made application under chap. 463, Laws 1889, to the comptroller to revise and readjust the tax. As we construe that act, it was competent for the relator then to submit to the comptroller evidence that the amount of the capital stock employed within this state was erroneously fixed in the comptroller's account. This was not done; that is to say, no evidence additional to that upon which the comptroller had previously acted was submitted. Perhaps this omission was due to the fact that the statute was new and the practice unsettled. The finding of the comptroller upon a question of fact within his jurisdiction is like the verdict of a jury, and although the statute last cited authorizes us to review it upon the facts, we must do so within the limitations prescribed by the Code, § 2140, subds. 4, 5. People v. Wemple, 60 Hun, 225; 38 St. Rep., 17. Without declaring that we think the amount of capital stock employed in this state was accurately fixed by the comptroller, we uphold his finding because we cannot clearly ascertain from the evidence that it was wrong.

Determination of the comptroller .affirmed, with fifty dollars costs and disbursements.

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


text:
    In the Matter of the Application of Edward Tracy et al., Water Com’rs of Lansingburgh, Resp’ts, to acquire water rights of Warren Erwin, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 5, 1891.)

    Riparian owners—Damages for appropriation of rights.
    Respondents appropriated the waters of a stream above appellant’s mill, and deprived him of his water power. In this action to acquire his water rights, the commissioners awarded $900 therefor. It appeared that the stream was a torrential one, liable to be suddenly swollen by heavy showers and again shrink to a small stream, and that the storage dam was small. Held, that the award was sufficient; that the average capacity of the stream exclusive of seasons of flood and freshet was not a true test of the value of the appellant's water rights, as the water that runs to waste for the lack of a sufficient storage dam to hold it ought not to be reckoned or applied to eke out the shortage of the dry season.
    ■ Appeal by Warren Erwin from the order of the special term confirming the award of the commissioners and from the award itself.

      James B. Stevens,• for app’lt; A. C. Oomstock, for resp’ts.
   Landon, J.

For the purpose of providing the village of Lansingburgh with a proper supply of pure water, the water commissioners intercepted and appropriated the waters of Oil Mill creek above the appellant’s premises and thus totally deprived him of the use of the stream as a water power and privilege. The water commissioners instituted this proceeding under chap. 432, Laws 1883, to acquire the water, rights thus appropriated. The commissioners appointed by the court to appraise the just compensation to be made to the appellant awarded him $900.

No error of law is alleged. We should not find an error of fact in the amount of the award unless it appears to be more or less than the clear weight of the evidence requires. The appellant strenuously insists that it is much less. The stream had formerly been used as a water power, but such use had been suspended for several years before the appropriation. The question was, what was it worth for the purposes of utilization ? The nature of the ground would afford an ample head of water from a small storage dam, and hence, since the storage capacity was small, a material question was, what was the available and constant volume or capacity of the stream. The commissioners, personally inspected the stream and locus in quo and heard the-testimony of the many witnesses. They evidently concluded that the stream was a torrential one, liable to be quickly and greatly swollen by heavy showers and rains and rapidly melting snows, and, these subsiding, to shrink to a comparatively small stream. They obviously concluded that without a large storage dam the surplus of water in seasons of high water would be wasted, and when the stream returned to its constant normal flow its supply of water was too inconsiderable to be of large value. The appellant undoubtedly pressed upon their attention, as he presses upon ours, what we may term the fair average capacity of the stream. That is to say, its average capacity exclusive of seasons of flood and freshet. It is obvious that this is not a true test, for the water that runs to waste for lack of a storage dam sufficient to hold it ought not to be reckoned ; it cannot be applied to eke out. the shortage of the dry season. Indeed, without a sufficient storage dam or reservoir, there can be no practical averaging of the-volume of water; each day must afford its own supply, and every day is a lost one in which the supply is too small. These were undoubtedly the views of the commissioners, and it must be conceded that they find support in the testimony and seem to be-sensible.

The appellant insists that the price or value of a horse power of water at Cohoes is the proper measure of the value of a horsepower of water in this stream. This difference is to be noted: at Cohoes the water is delivered to the customer by the water power company free from any liability to the customer to maintain the dam which stores it. Here the appellant would have to maintain his own dam. This difference was undoubtedly considered by the commissioners and affected the amount of the award, and properly so, we think.

Upon the whole case we must affirm the award and order.

Order affirmed, with fifty dollars costs and disbursements.

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


text:
    Alvah J. Zimmer, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 5, 1891.)

      1. Cabriebs—Release.
    Plaintiff's agent shipped a horse and executed a release exempting the railroad company from liability for injuries thereto, in consequence of being wild, vicious, etc., or in consequence of heat, suffocation or other ill effects of being crowded, or on account “ of being injured by the burning of hay, straw or any other materials for feeding the stock, or in any way." In consequence of bad management of the engine it crushed into the car far enough to cause the death of the horse. Held, that the terms of the release were not sufficiently clear to exempt the carrier from liability for its negligence.
    2. Same—Damages.
    A stipulation in such release, in consideration, of reduced rates, limiting the liability of the carrier in case of loss to the valuation therein mentioned, is valid, and in case of loss the recovery should be limited to such sum.
    Appeal from a judgment for the plaintiff upon the verdict of a jury, upon the trial at the Fulton circuit, February, 1891.

      O. D. Prescott, for app’lt; Porter & Walts, for resp’t.
   Landon, J.

The action was to recover $5,000, the alleged value of a horse which defendant was transporting upon one of its freight cars under a contract with the plaintiff to carry the same from West Albany to Antwerp; H. Y. The jury found, upon evidence sufficient to justify their verdict, that the horse was killed in consequence of the negligence of the defendant. They rendered their verdict in favor of the plaintiff for $3,100.

The horse was taken for transportation by the defendant under a contract made with the plaintiff’s agent from which the following are extracts material to the questions presented upon this appeal:

“Live Stock Contract of Release and Agreed Valuation, according to the ‘ Official Classification.’ Hew York Central & Hudson River Railroad. W. Albany Station, July 31, 1890.
“ Whereas, The Hew York Central & Hudson River Railroad Company transports live stock, either by the head, or by the car load, at certain prices, 1 carrier’s risk,’ and at reduced prices upon certain risks, as specified below, being assumed by the shipper or owner, and upon the further condition that the property is valued as'stated below.
“ How, in consideration that said company will transport at said reduced prices:
“ One Horses valued at not exceeding $100, each, Consigned to C. P. Coolidge at Antwerp, H. Y., via Rome.
“ It is agreed, that * * * neither this company, nor any of its connections, shall be liable -for any injuries which the animals, or either, or any of them may receive in consequence of any of them being wild, vicious, unruly, weak, or of escaping, maiming themselves or each other, or in consequence of heat, suffocation, or other ill effects of being crowded, either upon cars or in yards, or on account of being injured by the burning of hay, straw, or any other material for feeding the stock, or in any way. Also, that neither this company, nor any of its connections, shall be liable for any loss or damage sustained by reason of any delay in the loading, transportation or delivery of said stock, or in consequence of any displacement of car doors, or any other insecurity of the cars.
“ And it is also agreed, that in the event of the loss, death, or injury of the animals, or any of them, from causes which would make the carrier liable, such liability shall not in any case exceed an amount to be fixed according to the above valuations.’’

The defendant claims that this contract relieves it from all liability. The plaintiff’s horse was in the freight car next to the tender of the engine, and in the front part of that car. At St. Johnsville the train stopped. The engine was uncoupled from the cars, and moved forward to the coal bin. In attempting to back the engine toward the cars, the engine in some way became unmanageable or was improperly managed, with the result that it struck the freight car and crushed into it far enough to cause the death of the plaintiff’s horse. The contract so far as it purports to exempt the defendant from liability for its negligence must be construed so as not to include any kind or sort of negligence not specifically and expressly stated in it. Holsapple v. Rome, W. & O. R. R. Co., 86 N. Y., 278; Mynard v. Syracuse, B. & N. Y. R. R. Co., 71 id., 180; Nicholas v. N. Y. C. & H. R. R. R. Co., 89 id., 370; Kenney v. N. Y. C. & H. R. R. R. Co., 125 id., 422; 35 St. Rep., 447.

In the case first cited the court said: “ However broad or general may be the language of the contract which does not specifically and in express terms release the carrier from the consequence of his own negligence, it will not effect such release if the general words may operate without including such negligence.”

• Testing this case by these rules, it will be seen that this horse was not injured by any such negligence as is specifically and expressly mentioned in the contract. The horse was struck by an improperly managed engine. Rothing of that kind is provided against in the contract, unless the words “ in any way ” so provide. These are broad and general words, and they may operate without including this case. In the connection in which they are used they may be construed to mean “ or burning in any way ; ” the whole clause being, “ or on account of being injured by the burning of hay, straw, or any other material for feeding the stock, or in any way.” If they were intended to mean injured “ in any way ” the intention is not clearly expressed, and therefore may be rejected. But we think the contract limits the recovery to §100 and interest thereon. The contract first recites that the defendant transports live stock “ at reduced prices upon certain risks, as specified below, being assumed by the shipper or owner, and upon the further condition that the property is valued as stated below.” The valution is thus given: “One horse valued at not exceeding $100,” and then “it is also agreed that in the event of the loss, death or injury of the animals, or any of them, from causes which would make the carrier liable, such liability shall not in any case exceed an amount to be fixed according to the above valuation.” The freight charged was $7.50, and was at the rates fixed by the defendant for the valuation stated. A higher valuation, according to the regulations of the company, would have increased the charge for freight. The general rule is that a carrier may by express contract with the shipper or owner limit the extent of his liability in case of loss or injury. Steers v. Liverpool, etc., Co., 57 N. Y., 1; Magnin v. Dinsmore, 70 id., 410; Belger v. Dinsmore, 51 id., 166; Mynard v. Syracuse, etc., supra.

The question usually presented by such contracts is as to their terms, that is, whether the limitation expressed by the-contract covers the injury or loss as caused under the circumstances of the particular case. There seems to be no valid, objection to a contract by which the shipper, in consideration of reduced rates extended to him, agrees in case of damage or loss to accept a specified or limited sum in satisfaction of it. Such seems to be the contract in question. No-question of the willful wrong or misfeasance of the defendant, arises, nor of the defendant’s constructive conversion of the property. The defendant is liable for the loss, but the amount of it is fixed by the agreement.

The counsel for the defendant asks in his brief that the verdict, be reduced to $100, with interest from July 31, 1890. If the-plaintiff so stipulates, the reduction may be made, and judgment be modified, accordingly, and, so modified, be affirmed, with costs. Holmes v. Jones, 121 N. Y., 461; 31 St. Rep., 379. Otherwise judgment reversed, with costs against plaintiff of this appeal,, and a new trial granted, costs to abide the event.

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


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

text:
    Mary T. Collier, Resp’t, v. Emeline Miller et al., App’lts, and Mary C. Stupplebeen et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed December 5, 1891.)

    1. Mortgage—Priority—Fraud.
    On the sale of land the grantee gave back two purchase money mortgages, one to each of his grantors, who, previous to their delivery, agreed that one should have priority over the other and be first recorded; the mortgagor being present and not objecting. One mortgage was recorded, and the other assigned in payment for land purchased previously by that, mortgagee, which is the one in question in this action. Reid, that such agreement was binding, and the mortgage first recorded was entitled to priority; that in view of the prior record and the fact that at the time the land was a good security for both mortgages, the fact that such mortgagee-knew that the other mortgage was to be given in payment for the land so-purchased was no evidence that fraud was intended.
    (Landon, J., dissents.)
    2. Same.
    Such agreement was collateral, and did not merge in the mortgage.
    3. Same—Deficiency—Legatee of guarantor.
    The legatee of a guarantor of a mortgage is properly held liable for a. deficiency to the extent of the property received from said guarantor.
    4. Same—Executors.
    Although the executors of the guarantor have accounted, yet where it is: not shown who were cited on the accounting, or proof of advertisement for claims, the executors are liable for a deficiency.
    Appeal by the defendants, Emeline Miller and Reuben Miller, as executors of Allen S. Miller, deceased, and Emeline Miller, individually, from a judgment 'in favor of plaintiff. Action to-foreclose a mortgage.

      William M. Brownell {Jacob F. Miller, of counsel), for app’lts ;■ G. P. & F. J. Collier {C. P. Collier, of -counsel), for resp’ts; B. F. Andrews {Levi F. Longley, of counsel), for Peter A. Anderson^ resp’t; F. P. Magown, for Eugene Supplebeen et al., resp’ts.
   Learned, P. J.

The plaintiff commenced the foreclosure of a mortgage. Certain defendants, Miller and others, set up that another mortgage on the same premises held by one Anderson, not then a party, was a concurrent lien with plaintiff’s mortgage and that Anderson should be made a party. Thereupon the plaintiff served an amended complaint setting forth further facts and the claim of Miller and others, defendants, and averring that the plaintiff had not sufficient knowledge to form a belief 'whether said Anderson’s mortgage was a prior or a concurrent lien. The plaintiff made Anderson a party.

On the trial the court found that the Anderson mortgage was the prior lien. The plaintiff does not appeal. But Emeline Miller, and Emeline Miller and another, executrix and executor of Allen S. Miller, do appeal. Allen S. Miller had previously held the mortgage now held by plaintiff and had guaranteed the payment. The judgment required Emeline Miller who, as legatee, had received a certain amount from the estate of Allen S., to make good any deficiency on the foreclosure to the extent of the amount she had received.

The two questions then are: First, were the two mortgages concurrent liens or was the Anderson mortgage a prior lien. Second, can there be a judgment against Emeline Miller for deficiency.

The two mortgages were purchase money mortgages, executed at the same time by one Stupplebeen; the one now held by plaintiff being executed to Bichard Miller, the one now held by Anderson being executed to Harvey Miller; each covering the whole property; and each dated April 1, 1870, and payable in ten years.

The learned judge before whom the cause was tried, adopting the verdict of the j ury on this point, found that on the day of the date of the said mortgages and before the actual delivery thereof it was agreed between said Bichard and Harvey that the said mortgage executed to Harvey should be and remain the first lien on the said premises and should have priority over that executed to Bichard.

The said judge further finds that in pursuance of said agreement the said mortgage to Harvey was immediately recorded, viz: on that day at 2.40 p. m., and that the said mortgage to Bichard was left to be subsequently recorded and was recorded by the assignee thereof April 2, 1870, at 12.30 p. m.

The said judge further finds that, at the time of making the agreement aforesaid, it was the intention of Bichard to transfer the mortgage received by him to one Arnold Wise in part payment for a farm purchased by him of said Wise; that said Harvey knew of said intention; that said agreement by which Harvey’s mortgage was to have priority was not disclosed to said Wise, nor was said Wise informed in any way whether or not said mortgages were equal and concurrent liens. Said Bichard on said first day of April assigned his said mortgage to said Wise, who took the same at its face as part payment on a farm thus conveyed by him to Bichard, and took the same believing it and the mortgage to Harvey to be equal and concurrent liens.

No consideration was paid by Harvey to Richard for the agreement that Harvey’s mortgage should have priority. No agreement as to priority was made with Stupplebeen, the mortgagor. Stupplebeen was, however, present at the time when the agreement was made.

The question was submitted to the jury whether the attorney for Mr. Wise was informed after the execution of the bonds and mortgages that they were equal liens in point of time. The jury answered in the negative, and the court adopted the finding. This-question was put to raise a presumption that the said agreement between Richard and Harvey was made with intent to defraud Wise. But such intent is not shown. Stupplebeen paid more-than $6,000 for the property above the two mortgages of $4,000-each. So that the second mortgage in point of priority would have been, at that time, a good security for the amount thereof.

If the two mortgagees before the actual delivery of the mortgages agreed that one should have priority over the other, that, agreement is binding and will be carried into effect even though the mortgages were recorded at the same time. Jones v. Phelps, 2 Barb. Ch., 440. In that case the court says that the law, in order to carry out the agreement of the parties, will presume that, the mortgage which was to have priority was delivered before the other. The converse of this principle was decided in Greene v. Warnick, 64 N. Y., 220. In that case the agreement was that the two mortgages were to be concurrent liens; and this agreement was enforced, although one was recorded before the other, and each had passed into the hands of a bona fide holder. To a similar effect is Stafford v. Van Rensselaer, 9 Cow., 316; so that, as said in Granger v. Crouch, 86 N. Y., 494, the decisive test in every caséis the intention of the parties either as actually expressed or as derived from the natural equity of the situation.' Now in the-present case nothing is expressed in the instruments on the question of priority.

The fact that they are of even date and of signature and acknowledgment may afford a jmesumption that they were intended: to be concurrent. But such concurrence is not expressed in them. And the presumption yields to proof of the agreement. It was certainly competent for all the parties to agree that one mortgage-should be delivered and recorded before the other and should thus have the priority.

As Stupplebeen was present at the making of the agreement and did not object, and as the matter was one in which he seems to have had no real interest, he must be considered as assenting to-the agreement between the mortgagees. See Freeman V. Schroeder, 43 Barb., 620.

In several of the cases above referred to the intention of the-parties did not harmonize with the priority apparent on the record, and the intention was held to overcome that apparent priority. In the present case the intention and the apparent priority on the-record agree.

If the agreement was, as found by the jury and the court, prior to the delivery of the mortgages, it became an executed agreement by the delivery of Harvey's mortgage to him with the consent of Richard and with the evident purpose that it was to be recorded before Richard’s. It was not an agreement necessarily expressed in the mortgage. It was collateral and not merged in the mortgage. Nor does it vary the written instruments; because nothing was expressed in them as to priority.

The appellants, passing the question whether the agreement was valid as between Richard and Harvey, claim certain equities for Wise. They say that the agreement was a fraud upon him. But there is no proof of any intention to defraud him. Indeed, the fact that Harvey’s mortgage was recorded at once indicates a desire to give notice to the world of the priority agreed upon. And when Wise took the assignment from Richard, he could have seen Harvey’s mortgage on record. The fact that Harvey knew that Richard intended to assign his mortgage to Wise is no evidence that fraud was intended. Nearly $7,000 had been that day paid for the property over and above the two mortgages of $4,000 each. The appellants urge the principle that one who stands by in silence and permits another to deal with his property may be ¿stopped. But that principle has no application, for Harvey at once gave notice to the world of his mortgage and recorded it as first lien. Wise, then, if he had looked at the records to see whether he was obtaining a good mortgage, would have found Harvey’s mortgage on record. There was nothing in the contents of either mortgage to show that another similar mortgage existed, as concurrent or otherwise.

Wise held the mortgage for about nine months; his assignee and the subsequent assignees for some seventeen years. During this time it does not appear that any question of fraud upon Wise had been raised, or that any claim had been made that Harvey’s mortgage was not rightfully the prior lien. Even the present plaintiff averred in her complaint that the Harvey mortgage was the prior lien and, therefore, did not make the holder a party until compelled to do so. The claim of fraud is certainly stale.

The appellants further urge that as Wise had agreed sometime in January previous to cell his farm to Richard, Wise became in equity the owner of Richard’s mortgage. But the contract between Wise and Richard is not given in evidence. There is no evidence whatever that by that contract Richard was to assign to Wise this mortgage in part payment. This is asserted in the appellants’ points, but is not proved and is improbable. Nor is there any proof that Harvey thought that Wise expected to receive a first or a concurrent mortgage. This mortgage had no existence when that contract was made. And as the appellants did not produce the contract or prove its contents we cannot assume that that contract referred to a mortgage, not in existence, or that it specified such a mortgage to be a first lien. It is impossible, then, on the facts proved, to say that Wise had any equitable rights in Richard’s mortgage. Nor is there any evidence that Richard, when he assigned his mortgage to Wise, represented that it was a prior or a concurrent lien. One who assigns a second mortgage does not, by that act, guaranty that it is a first lien; even though the first mortgage be not on record.

Indeed, at another part of their argument the appellants admit that the question, so far as the assignees are concerned, is the same as if the contest were between Eichard and Harvey. This was held in Greene v. Warnick, ut supra, and other cases, in spite of all the protection intended to be given to bona fide purchasers by the recording acts. If the appellants are correct in this, that is, if the question here is just what it would be if Eichard and Harvey were now the separate owners of the two mortgages, can there be a doubt that the learned judge was right ? The two mortgages as yet not being delivered, the owners agree that Harvey’s shall have priority. Thereupon, in pursuance of that agreement, Harvey’s is immediately recorded and, of course, delivered. Thus the agreement is executed.

The plaintiff cláims ownership of her mortgage through an assignment and guaranty made by Allen S. Miller, since deceased. Eeuben Miller and Emeline Miller were his executor and executrix. His personal property amounted to $5,607.54. There was a final accounting of the executor and executrix in October, 1884, under which they paid to Emeline, the widow, $2,514.75 on her legacy. Allen S. Miller left a valuable farm, the use of which was given to her for life. The judgment directs that if there is a deficiency Emeline pay that to the extent of the money received by her aforesaid. It also adjudges the executor and executrix to pay any further deficiency.

The decree entered on the accounting of the executor and executrix does not show who was cited. It is evidence conclusive only against those who were cited or appéared. Code, § 2742. There is no proof of any advertisement for claims. 2 E. S., m. p. 88, § 34 and m. p. 89, § 39. So that there is no evidence before us showing that the executor and executrix are relieved from liability for this claim. As to the liability of the legatee, that appears according to §§ 1837 to 1841 of the Code. And we do not see why a judgment may not be had against her.

The judgment does not authorize a sale of the real estate of the deceased. It states only that this judgment is without prejudice to proceedings which may be taken. The appellants are in error in their understanding of the language of the decree. The words “ remaining unsatisfied from proceeds of sale of said real estate ” are to be read together to refer to the sale of the mortgaged premises, “ said real estate.”

We see no error in the case. The judgment is affirmed, with costs.

Mayham, J., concurs.

Landon, J.

(dissenting).—The two mortgages were concurrent in date, execution and delivery; were alike in form ; were intended by the mortgagor to create concurrent and equal liens upon the mortgaged premises. The mortgagees were the grantors by deed of the same date to the mortgagor of their equal, undivided interest in the premises, and the mortgages were both given to secure parts of the purchase money. They were, therefore, of equal and coir current lien, unless some existing equity required that one should have priority over the other, Boies v. Benham, 40 St. Rep., 421, or a valid agreement to that effect existed between the mortgagees at the time of their execution and delivery. Jones v. Phelps, 2 Barb. Ch., 440. The mere fact that one was recorded before the other did not of itself create any priority. Greene v. Warnick, 64 N. Y., 226; Decker v. Boice, 83 id., 215. The respondents do not claim any equitable priority, but rely upon priority created by the agreement between Harvey and Richard Miller prior to the execution and delivery of the two mortgages. If that agreement, if it may be called such, were free from fraud, it might uphold the claim of priority given by the judgment to the mortgage to Harvey Miller.

But I think that agreement must be condemned as fraudulent Before the execution of the two mortgages, and in expectation of their execution, Richard Miller made an agreement with Arnold Wise for the purchase by Richard of Wise’s, farm, the $4,000 mortgage to be received by Richard to be applied in part payment of the purchase money thereof. This agreement was known to Harvey Miller. Some point is made that Harvey did not know that Wise was to take the mortgage from Richard. Harvey himself testified, when asked if he knew that Wise was to take that mortgage that day: “Ho, not positively, but I supposed it would be turned in; whether Wise or somebody else would take it I didn’t know, but I supposed it would be turned in for that property. I knew no other source in which Richard would turn that mortgage.” Of course the person to be cheated, whether Wise or another, is now as immaterial to the question under consideration as it was then to Harvey. The intention was by a secret agreement between themselves to import into Richard’s mortgage a latent defect which would benefit Harvey’s mortgage, and then assign the impaired mortgage without disclosing the impairment, and thus thrust upon the assignee, whether Wise or another was immaterial, the risk to result from their artifice.

The suggestion that they did not do this to cheat Wise, but merely, to help Harvey ; that they believed the mortgage assigned him would be good, though not so good as it purported to be; that Richard did not expressly tell him it was equal in lien with Harvey’s mortgage, are more like appeals to charity to condone their fraud than evidence in disproof of it. Whatever advantage the secret agreement would confer upon Harvey they meant he should stealthily acquire, and whatever increased risk it might thrust upon Wise they meant he should not know until it should be too late for him to refuse it. The facts indicate that while Richard was taking his mortgage to the law office where it should be transferred to Wise, Harvey was taking his mortgage to the clerk’s office to be recorded. Was it necessary that Wise should station a messenger at the clerk’s office in order to detect the record of Harvey’s mortgage before he could finish his transactions with Richard ? Clearly not, in view of the law with respect to such mortgages that mere priority of record confers no priority of lien. The maxim of caveat emptor does not apply to a latent defect or vice caused or created by the vendor himself. Hoe v. Sanborn, 21 N.Y., 552; Littauer v. Goldman, 72 id., 506. Much less will the maxim apply where the latent defect is created for a fraudulent purpose by the vendor; for it is idle for the buyer to take heed when the artifice of the seller is so contrived as to baffle the buyer’s caution.

It is true that Wise was not expressly told after the two mortgages were executed that they were equal liens in point of time. That is to say, no oral misrepresentation was superadded to the representation implied by the mortgages themselves and the» open facts respecting them. Harvey and Eichard intended to deceive Wise by concealing what it was Bichard’s duty to disclose, and what it was Harvey’s duty to see to it that Eichard did disclose. Mutual concealment was necessary to make quite sure of the success of the imposition upon Wise. It was not needful for the appellants to prove an affirmative oral misrepresentation to Wise after the execution of the mortgages, and the failure to do it was not material.

As the assignee of each mortgage abides by the case of his assignor, the rights of the present owners as to priority are the same as they stood between Harvey and Eichard before Bichard’s assignment to Wise. As no priority was acquired by Harvey by the mere act of his priority of recording, the question now depends upon the validity of their oral understanding to give Harvey’s mortgage priority of lien. It will be noticed that that understanding was not based upon any consideration; it was destitute of any equities to uphold it; it was a mere nudum pactum, and therefore not a binding agreement. Eichard, therefore, was not bound by it. But if we call it an agreement, it was entered into for a fraudulent purpose and therefore not binding upon Eichard. Ex maleficio non oritur contractus. Harvey could not enforce it against Eichard. Ex dola malo non oritur actio. They were equal wrongdoers. Inpari delicto potior est conditio defendentis. The mortgages, therefore, remained as they were when executed: concurrent.

It is suggested that the agreement for prior record is executed, but, as we have seen, nothing follows to fix priority from the mere recording, and, therefore, the situation is unchanged by that fact. Priority can only exist by virtue of a valid agreement, and as the facts disprove its validity, even if the prior record were presumptive evidence of it, equality remains.

The judgment should be modified by declaring such equality of lien, and equal right to the proceeds of sale, and disallowing costs to the defendant Anderson, and awarding to appellants costs against him of this appeal and in the court below, and in other respects affirmed, with costs to the plaintiff out of the proceeds.

Judgment affirmed, with costs.


author: Learned, P. J.

text:
    Clarence F. Stoddard, App’lt, v. The President, etc., of the Delaware & Hudson Canal Co, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 8, 1891.)

    Venue—Change of.
    Where the cause of action arises out of a railroad accident in which it appears that a large number of prominent residents of the county in which the venue is placed were injured, many of whom have made claims against the defendant, and there is a feeling of hostility against defendant on account thereof, these facts are sufficient to show that it would be difficult or impossible to obtain an impartial jury in that county, and are not overcome by opinions of plaintiff’s witnesses that there is no prejudice and that an impartial trial could be there had, and an order changing the place of trial will be upheld.
    Appeal from order changing the place of trial from Washington county to Schenectady county on the ground that an impartial trial could not be had in the former county.
    The defendant’s affidavits show the following facts and reasons why a fair and impartial trial could not be had in Washington county.
    1st. The accident out of which this cause of action arose occurred at Baxterville, three miles from Salem, the county seat, while court was in session there. It was known as a terrible accident. A passenger train rolled down an embankment and twenty-seven passengers were injured. Intense excitement prevailed and the company was loudly condemned.
    2d. Out of the twenty-seven injured passengers twenty-one were residents of Washington county.
    3d. That of the seventeen towns of the county of Washington from which jurors are liable to be drawn, there are persons living in at least twelve of said towns who were injured or claim to have been injured on defendant’s road.
    4th. That the plaintiff herein and each of the persons injured have been seeking by their own words and actions as well as those of their relatives and friends to disseminate throughout the said county a feeling and sentiment of prejudice and hostility against the defendant among those liable to be drawn as jurors.
    5th. That there is scarcely a town in said county of Washington where the subject of the accident in question has not been discussed and sympathy expressed for the injured and censure for the defendant
    6th. That this feeling of hostility has been increased and aggravated by reason of two very serious accidents happening in said county of Washington on defendant’s road prior to the one in question, at Fort Edward within three miles of Sandy Hill, the other county seat, in which accidents a large number of residents of the county were injured, some quite seriously.
    7th. The plaintiff is an artist and has resided in three of the towns of Washington county, and in the year 1890 was proprietor of a hotel, at Lake Lauderdale, in said county. This hotel and grounds were extensively used by picnic parties from many of the towns of said county.

      8th. Prior to this application five other actions for personal injuries, arising out of the accident at issue herein (Baxterville), in which the venue was laid in Washington county, were removed by order of this court from Washington to Schenectady county, on the ground that a fair and impartial trial could not be had in Washington county.
    9th. Upon said prior applications a large number of affidavits were presented from persons residing in nearly every town in the county, many of whom were prominent men in the county, and most of whom were themselves liable to jury service. In this manner the subject of the Baxterville accident was revived and rediscussed in every town in the county.
    10th. In the opinion of the affiants, residents of Washington county and peculiarly qualified to judge by reason of their official or personal and business position in the county, the feeling is such that a fair and impartial trial cannot be had in the county of Washington.

      Westfall & Whitcomb, for. app’lt; Edwin Young, for resp’t.
   Learned, P. J.

This is an appeal from an order changing the place of trial on the ground that an impartial trial cannot be had in Washington county, named in the complaint. This is plainly a question of fact. And the opinion of the learned justice at special term should be followed unless very evident error has been committ’ed.

The facts stated by the defendant on the motion are very strong. The cause of action arose out of a railroad accident, by which a large number of persons were injured ; most of them residents of Washington county. There many of them have made claims against defendant for damages arising out of this accident.

Without going into detail of the affidavits it is enough to say that there are many facts which show that it would probably be difficult or impossible to have an impartial trial in Washington county. These facts are not overcome by the opinions of plaintiff’s witnesses that there is no prejudice and that an impartial trial could be there had.

The order is áffirmed, with ten dollars costs and printing disbursements.

Math am, J., concurs.


text:
    James B. Avery, Adm’r, Resp’t, v. Hannah Mabey and Mary L. Tibbits, Impl’d, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 8, 1891.)

    Will—Action to construe.
    An executor or administrator cannot maintain an action to construe a will for the purpose of having it determined whether a legatee had power to dispose of certain property bequeathed to her and to recover the same from the transferees thereof. He has abundant remedy by an action at law to recover the property if he is entitled to it.
    Appeal from final judgment in an action brought to construe the will of John 0. Dean, deceased.

      Tracey & Cooper {James F. Tracey, of counsel) for app’lts; William, B. Tanner {Jacob H. Clute, of counsel) for resp’t.
   Learned, P. J.

This action is in the form of one brought to construe a will and to advise the administrator. But it is practically an action to find out whether the plaintiff or the defendants own certain bonds which they claim adversely to him. There is nothing for the administrator to do as to which he needs, or shows that he needs any advice. If the bonds belong to him, he can sue the defendants for them and recover the possession. Of course he would do this at the risk of paying costs if unsuccessful. But that risk does not authorize him to come into this court and, under pretense of asking a construction of the will, obtain an opinion whether it would be safe, or not, for him to sue the defendants. There is nothing in the will as to which he needs any advice. ' Mrs. Dean, to whom the real and personal estate of the testator was given for life (and who is claimed to have had a still greater interest), has parted with certain bonds which these defendants now have. The plaintiff says she gave the bonds to them. Their answer says the bonds were transferred for a valuable consideration. The plaintiff claims that such bonds now belong to him as administrator. The defendants claim they belong to them. The plaintiff has no need of advice as to what he shall do with the property of the testator. That is all plain according to the will. And he does not state any doubt upon that point. But he says he does not know whether Mrs. Dean had the right to give away this property ; and he wishes the court to tell him. The true way to find that out is to sue the defendants for the property.

The defendants demurred on the ground that causes of actions had been improperly joined. The demurrer was overruled on the ground that they had an interest in the matter and that the allegations were not to constitute an independent action for the conversion of the bonds. They answered over and alleged a transfer of the property to them for a valuable consideration.

On the trial the only evidence on this point was that it was admitted that they asserted that they held these bonds as a gift, and was conceded that they claimed to hold them for value. And it was adjudged that the bonds belonged to the plaintiff as administrator.

Now it is evident that as to the ownership of these bonds some proof was necessary before it could be determined whether or not these defendants were the rightful owners. It does not appear that Mrs. Dean gave them this property; nor are the circumstances o£ the transfer shown.

It is the well known right of an administrator or other trustee to ask the advice of the court as to his duty when he is in doubt what he ought to do, and cannot safely proceed without advice. But the plaintiff has not brought himself within the rule. The question here is not as to the duty of the administrator, but as to the rights which Mrs. Dean, now deceased, had in her life, and whether under those rights the defendants own the property in question. These defendants therefore have been made to litigate their title to certain personal property which is in their possession and is claimed by them, without the privilege of recovering their costs against plaintiff if he should prove to have sued them without good cause.

Their rights may depend largely on the facts of the transaction by which they obtained these bonds. But those are not facts material to the construction of the will. And where the plaintiff has abundant remedy by an ordinary action at law to recover this property if he is entitled to it, we think that be should not come into this court under the form of an action to construe a will in order to have the court say that defendants have no title to such personal property. Some remarks of the court of appeals in Bailey v. Briggs, 56 N. Y., 407, at 413, will illustrate our meaning.

We, therefore, think it is best not to express any opinion as to the extent of the rights which Mrs. Dean had under the second clause of the will explained by the third and fourth clauses. But we simply reverse the'judgment and dismiss the complaint, with costs.

Mayhah and Kellogg, JJ., concur.


author: Kellogg, J. Learned, P. J.

text:
    Charles S. Weston, App’lt, v. Mary R. Stoddard, Impl’d, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 8, 1891.)

    Partition—Costs.
    Costs in an action of partition are in the discretion of the court. The fact that an issue of fact in the action is triable by jury does not bring the action within § 3228 subd. 1 of the Code.
    Appeal from so much of an order as allows costs to the defendant Stoddard in an action of partition.
    The following is the opinion at special term on granting the order.
   Kellogg, J.

This is an action for partition. Actual partition of the property described in the complaint was directed, and has been made by the commissioners. The total value of the property is conceded to be $10,000. The complaint alleges that Mary R. Stoddard is the owner of three-fourths. The complaint also alleges that there are no incumbrances or liens of any nature upon the property. The defendant, Mary R. Stoddard, served an answer claiming, among other things, that she was the owner of a mortgage for $1,000 given in 1855 upon the other one-fourth interest as the purchase-money of the same. It is clear that she was called upon by the allegation in the complaint above mentioned to make this defense in order to protect her lien by way of mortgage upon this one-fourth interest. The findings of the special term are to the effect that this mortgage was given as alleged in the answer and no part of it has been paid. As to the issue raised by the reply to that portion of this defendant’s answer; namely, that the said mortgage was invalid by reason of the statute of limitations, or was a stale mortgage, the court declined to determine, leaving the owner of said mortgage unprejudiced by this partition to make her claim for payment in the ordinary way by foreclosure.

Winsor B. French, for app’lt; Charles S. Lester, for resp’t.

In so far as this part of the answer of Mary E. Stoddard is concerned, she has prevailed in the action. As to the other portions of her answer she has failed. It would seem proper that in the determination as to costs she should be entitled to the usual costs for having succeeded upon a single separate count in her answer.

The plaintiff in this case has succeeded, however, upon all ■other issues raised by the answer, and has been put to unnecessary expense in making his proof and establishing his claim as alleged in the complaint to the one-fourth of this property. Such ■expense was necessarily large before the trial justice; and, appeal having been taken therefrom to the general term, it would seem that the question had been contested unreasonably by the defendant, Mary E. Stoddard, having once before been decided by the general term in this district. I have come to the conclusion, therefore, that the plaintiff is entitled to full costs as in partition cases, for the trial before Justice Putnam, and that his costs and disbursements should be taxed as provided by the Code by the clerk of the county of Saratoga; and that in addition to the costs so taxed, the plaintiff is entitled to an additional allowance of two percent on the value of the property; namely, $10,000; and that the costs so taxed, together. with the said additional allowance, be paid, three-fourths by the said Mary B. Stoddard, and one-fourth by the owners of the remaining one-fourth as fixed by the trial court; that the same be a lien on the property so allotted in the said proportions. Also that the plaintiff shall be entitled to his costs and disbursements ■on the appeal to the general term; that the same be taxed by the said clerk, and shall be paid by the defendant, Mary E. Stoddard, •and'-shall be a lien upon the portion allotted to her, and that plaintiff shall have an additional allowance of five per cent, on the one-fourth, namely, $2,500, being the value of the property in dispute ; and that such five per cent, be also chargeable upon the said interest of Mary E Stoddard, and shall be paid by her and be a lien upon the property allotted to her.

I have further determined that the defendant, Mary E. Stoddard, is entitled to her costs of the trial before Justice Putnam, to be taxed by the clerk of the said county, and that as an additional allowance there should be paid to her two per cent, on the value of the said interest involved, to wit, $2,500, and the same be chargeable against the owners of the said one-fourth interest in the said property and shall be paid by them, and at the election of the said Mary E. Stoddard the same may be offset against any costs herein allowed against her.

Learned, P. J.

The action of partition has long been an -equitable remedy. 1 Story’s Eq., § 646, and subsequent sections. There was also a special proceeding provided for by the Eevised Statutes, which might be taken in courts of law. But that left, in express language, the jurisdiction of the court of chancery unaffected.

Such an action is not within § 968 or § 3228. It is governed, by § 3230 and costs -are in the discretion of the court. An issue of fact in the action is triable by a jury. Section 1544. But that, does not determine that the action is so triable or bring the action within § 3228, subdivision 1.

The right to award costs to plaintiff and to defendant was recognized in Henderson v. Scott, 43 Hun, 22, and this must overcome the special term decision of Davis v. Davis, 3 St. Rep., 163.

We think, therefore, that the matter was in the discretion of the special term. And there is no question that the discretion was not properly exercised.

Order affirmed, with ten dollars costs and printing disbursements.

Math AM, J., concurs.


author: Mayham, J.

text:
    Charles E. Huested and Frank W. Clark, Resp’ts, v. Willard D. Bliss, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 8, 1891.)

    Justice’s court—Modification of judgment on appeal.
    Plaintiff recovered judgment for fifty dollars in justice’s court for a. balance claimed on sale of goods. In arriving at that sum credits were allowed, but not for two items of hay, the amounts of which were not carried out. Held, that there was no data from which the county court could modify the judgment on appeal; that if defendant sought such modification he should have appealed for a new trial.
    Appeal from the Rensselaer county court, affirming the judgment of a justice’s court in favor of the plaintiff.

      George McClellan, for app’lt; Nelson Webster, for resp’ts.
   Mayham, J.

The return of the justice of the peace before-whom this action was tried, and which constitutes the record on which this appeal was heard in the county court, and the record on this appeal shows that the plaintiffs, in their complaint, demanded judgment for seventy-five dollars. The answer was a general denial. On the trial the plaintiffs presented a bill of items-of merchandise, amounting in the aggregate to $103.71, with credits endorsed thereon of $47.19, leaving a balance as struck on such bill of $56.52.

Charles E. Huested, one of the plaintiffs, was sworn as a witness on the trial, and testified that the plaintiffs sold goods as set out in the bill, amounting in the aggregate to $103.71. He also testified to credits of $47.19. This evidence was received without objection. The defendant offered no evidence. The bill contains one credit in this form: “ 1734 hay,” with no other description or designation, and with no amount carried out as to value, and one of “ 1890 hay,” with no other designation and no price or value attached. Ho other evidence was given or offered as to these credits.

On this evidence the jury rendered a verdict in favor of the plaintiff for $56.52, and the plaintiff remitted the $6.52, and the justice thereupon entered a judgment in favor of the plaintiff for §50, and costs. There was no error committed by the justice for which this judgment should be reversed. But the appellant now insists that as it was quite apparent that the defendant got no credit for the hay mentioned in the bill, the county court should under the provisions of § 3066 of the Code have modified the judgment so as to give credit for the hay or sent the case back for a new trial before the justice.

We cannot agree with the appellant in this contention. The county court had no data from which it could have modified the judgment, and as the defendant might have appealed for a new trial, and thus secured a more favorable judgment, if entitled to such a result,, it is his own fault that he sought to redress his ■supposed wrong by an appeal upon questions of law, and not for a new trial. The judgment must be affirmed.

Judgment affirmed, with costs.

Learned, P. J., and Kellogg, J., concur.