author: Eollbtt, J.: HaRdiN, P. J.:

text:
    JULIUS M. WILE, SIMON STERN and ISAAC WILE, Respondents, v. MARCUS BROWNSTEIN, Appellant. J. DANIEL ACKERMAN and HERMAN ACKERMAN, Jr., Respondents, v. MARCUS BROWNSTEIN, Appellant. DAVID A. SAHLEIN, LEOPOLD WILZINSKIE and MAURICE D. SAHLEIN, Respondents, v. MARCUS BROWNSTEIN, Appellant.

      Election of remedies — when once made it ca/nnoi be altered — rights of a vendor, . induced to sell goods by fraudulent representations made by the purchaser.

    Between September 13,1882, and November 3, 1882, the plaintiffs sold and delivered to the defendant, upon credit, goods of the value of $882.50. November thirtieth the plaintiffs brought an action to replevy the goods, alleging that they were obtained by fraudulent representations and with an intent to cheat and defraud the plaintiffs.

      In that action of replevin gopds to the amount of $880 were replevied and delivered to the plaintiffs; the remainder had heen previously sold by the defendant. The defendant served an answer in this action denying the fraud. Thereafter the plaintiffs served a notice, as provided in section 1719 of the Code of Civil Procedure, abandoning so much of their claim in the replevin action, as related to the goods not replevied.
    Thereafter, and during the pendency of the replevin action, the plaintiffs brought this action to recover the value of the goods not replevied, the bringing of the action of replevin and the abandonment of a portion of the claim therein made being alleged in the complaint in this action.

      Held, that this action could not be maintained; that as the plaintiffs had elected to disaffirm the contract and bring an action for conversion they could not thereafter affirm the contract in part and sue thereon. (Hardin, J., dissenting.}
    Appeals from judgments-in favor of the plaintiffs, entered upon the trial of the above entitled actions by the court without a jury.
    Between September 13, 1882, and November 3, 1882, the plaintiffs in the first of the above entitled actions sold and delivered to the defendant, upon credit, goods of the value of $882.50. November 30, 1882, the plaintiffs brought replevin for the goods, alleging that they were obtained by fraudulent representations, with intent on the part of the defendant not to pay for them, and to cheat and defraud the plaintiffs. Goods of the value of $380 were replevied and delivered to the plaintiffs. The remainder of the goods ($502.50) had been retailed by the defendant in the usual course of his business. The defendant answered in the replevin action,-which is still pending, denying the fraud. March 10, 1883, the plaintiff served, pursuant to section 1719 of the Code of Civil Procedure, a notice upon the defendant, abandoning so much of their claim in the replevin action as related to the goods not replevied. In March, .1883, this action was brought. The complaint alleges that between September 13, 1882, and November 3, 1882, the. plaintiffs sold and delivered to the defendant goods (being the same described in the replevin action); that they had brought an action of replevin to recover the property sold; that they had recovered therein goods of the value of $380, but had been unable to recover the. chattels mentioned in this action ; that they had subsequently abandoned that portion of the claim in the replevin action, and demands judgment for $502.50, the value of the goods not replevied. The defendant pleaded in abatement the pendency of the replevin action, and also that the plaintiffs having elected to rescind the sale and sue for the con version, that this action on the contract in affirmance of the sale could not be maintained. The court overruled the defense and judgment was entered for the amount claimed, with costs, from which the defendant appeals.
    The facts in the other two actions were substantially the same, varying only in dates and amounts.

      Louis Marshall, for the appellant.

      Samuel R. Stern, for the respondents.
   Eollbtt, J.:

Assuming that the plaintiffs were induced to sell their goods to the defendant by his fraudulent representations, they had a single cause of action. They were at liberty to elect, to affirm the contract, waive the tort and recover the contract-price, or they were at liberty to disaffirm the contract, sue in tort, recover such of the goods as could be replevied, and damages for the conversion of such as could not be replevied. They elected to disaffirm the contract, brought an action for the conversion, claimed a return of the goods or their value in case a return could not be had.

The remedies which the plaintiffs were entitled to adopt are clearly stated by Daneorth, J., in Moller v. Tuska (87 N. Y., 169): “ The plaintiffs, upon discovery of the. fraud, had a choice of remedies ■ — ■ an action against Talk Brothers (the fraudulent purchasers), for the price according to the terms of sale; or replevin of the property, upon the ground that by reason of the fraud the contract of sale was avoided. * * * The plaintiffs manifested their election by bringing this action. (Replevin against a vendee of the fraudulent purchaser.) After that, the other way of redress was not open to them; for, according to Comyn (Dig. Elect. C., § 2), if a man once determines his election it shall be determined forever. Hence, they could never successfully assert a claim against the purchaser under the contract, for the election to dis-affirm it had been manifested, and to revoke it was not in their power.” (Wright v. Pierce, 4 Hun, 351; Id., 6 T. & C., 651; Bowen v. Mandeville, 95 N. Y., 237; Morris v. Rexford, 18 id., 552.) In the case last cited, the defendant obtained possession of goods without making payment as agreed. The plaintiff brought replevin and recovered part of the goods. He then brought an action on contract to recover the value of the remainder of the goods. He recovered a verdict at circuit, which was affirmed at General Term, but was reversed in the Court of Appeals on the ground that the plaintiff having elected to disaffirm the contract, he could not recover in the action unless he should be defeated in the replevin action, which would show that he had no right of election. It was distinctly held that the two causes of action were inconsistent, and that both could not be maintained*

No authority has been cited authorizing a plaintiff, after electing to sue in tort for a whole cause of action, and while -the action in tort is pending, to divide his cause of action into two parts and maintain a second action on contract for the recovery of the other part, continuing at the same time his action in tort. ,

Powers v. Benedict (88 N. Y., 605) does not sustain the plaintiff’s position. In that case a sheriff had taken on execution from a fraudulent vendee part of the goods purchased by him from the plaintiff, who brought replevin against the sheriff. Afterwards the fraudulent vendee was adjudged a bankrupt upon the plaintiff’s petition. This was held not a defense in favor of the sheriff. Powers never had a cause of action against the sheriff for the entire demand, only for the goods he had taken. The demand wa!s not split. The plaintiff had two independent causes of action, one against the fraudulent vendee and the other against the sheriff. In Hersey v. Benedict (15 Hun, 282), a sheriff was sued in replevin to recover part of the goods purchased by the fraudulent vendee, and it was held that a subsequent action against the fraudulent vendee in tort, for the fraud, was not a defense in favor of the sheriff. Here, again, were two independent causes of action against different persons, and both actions were in disaffirmance of the contract, not one in affirmance, and the other in disaffirmance of the contract, and not against the same defendant as in the case at bar.

In respect to the cases cited, in which it was claimed that proving a debt in bankruptcy amounted to an election of a remedy inconsistent with an action of replevin, it may be said that the bankrupt. act provided: “All demands against the bankrupt for, or on account of, any goods or chattels wrongfully taken, converted or withheld by him, may be proved and allowed as debts to the amount of the value of the amount of the property so taken or withheld, with interest.” '(Bank Act, § 19 ; U. S. Rev. Stat., § 5067.) By proving such a claim in bankruptcy, the contract is not affirmed, or the tort waived. Every constituent of the tort may be properly stated in the proof of debt.

In an action for the recovery of chattels where part have been replevied, the plaintiff may, by notice served before or with his notice of trial, abandon his claim to the chattels not replevied. (Sec. 1719, Code Civ. Pro.) The replevin action is not, as it might have been, an action for the recovery of chattels only, but it is for the recovery of such of the chattels as can be found and for damages for the conversion of those not found. (Code Civ. Pro., § 484, subd. 4.) Section 1719 furnishes no authority for abandoning a part of a cause of action embraced in a suit for conversion, waiving the tort as to that part and suing on that part in contract.

The judgment in each of the cases is reversed and a new trial granted, with costs to abide the event.

BoaedMAN, J., concurred.

HaRdiN, P. J.:

I do not agree with the result reached by brother Follett. Section 1719'of the Code of Civil Procedure allows the action of replevin to proceed for the chattels found and taken, and those “ not replevied ” are not affected by the action. The plaintiff may have his action proceed “ as if the action had been brought to recover only the chattels which have been replevied.” In a subsequent action for trover, or upon the case for damages, the party may recover without affirming the original contract. The conversion of part of the goods gives a right to recover their value in trover, or to waive the tort and recover their value. The principal is stated by Taloott, P. J., in Hersey v. Benedict (15 Hun, 288), and supported by cases there cited. That case is an authority binding upon us.. It was affirmed by the Court of Appeals. In the case in hand the recovery need not rest upon the original contract." Indeed that was repudi- ' ated, and the party had a right to capture what goods were not disposed of and to have damages for those converted. Suppose part had been turned out by a fraudulent vendee to a creditor upon an antecedent debt, can there be any doubt that the vendor on discovery of the fraud could retake from the vendee those remaining on hand, and from the transferee who had not acquired any title for value those thus held by the transferee. So, too, upon demand of the goods from the fraudulent vendee trover would lie, and from the party taking from the vendee, but without value and good faith, the goods might be demanded and trover maintained. This could be done without averring the fraud in the complaint. (Claflin v. Taussig, 1 Hun, 223.)

I think the judgments should be affirmed.

Judgment, reversed, and new trial ordered, costs to abide the event.


source: Caselaw Access Project

author:
Hardin, P. J.:
      Eollktt, J .:

license: Public Domain

text:
    THOMAS CALDWELL, Appellant, v. MARCELLUS SNOOK, Respondent.

      Evidence — opinions of witnesses as to the peaceable disposition of a dog by whom the plaintiff has been bitten.

    Where, in an action to recover damages sustained by the plaintiff by being bitten by a dog belonging to the defendant, the facts-that the plaintiff was bitten, and that the defendant knew that the dog had previously bitten another person, have been established, witnesses called by the defendant cannot be allowed to testify that when they had seen the dog they had seen nothing malicious in his conduct nor any attempt made by him to bite any one.
    Appeal by the plaintiff from a judgment in favor of the defendant, entered in Onondaga county, upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      C. H. Sedgwiek, for the appellant.

      Goodelle <& Kotbmgham, for the respondent.
   Hardin, P. J.:

Plaintiff sought to recover damages for injuries received from a dog owned and kept by the defendant on the 14th of September, 1880, when visiting the house of the defendant to buy some pears. The particulars attending the injuries were detailed in the evidence, and according to the evidence nothing occurred at the time plaintiff was injured which would prevent his recovery. (Muller v. McKesson, 73 N. Y., 195.)

Plaintiff called as a witness Clara Erwin, wbo testified that some two years before the plaintiff’s injuries she was bitten by the defendant’s dog, and was laid up some two weeks with the injuries she received upon her hand from defendant’s dog; she was at work for the defend ant. when the dog “ grabbed hold ” of ber hand; that she went and told defendant of it that same day. Thus the plaintiff made out a case entitling him to recover such damages as he had sustained. (Buckley v. Leonard, 4 Denio, 500, and cases cited; Muller v. McKesson, snpra.)

To meet the case thus made out by the plaintiff, the defendant, took the stand as a witness, and called several other witnesses, and gave evidence tending to show the quiet, peaceable and harmless habits and character of the dog. Among the witnesses was one Fagin, who lived a quarter of a mile from the defendant, and who had occasionally observed the dog and his conduct. Against the plaintiff’s objection that the testimony was not competent or material, he was allowed to testify “ there was nothing malicious in his conduct, so far as I saw. * * * He never undertook to bite anybody or do anything wrong.” When Ballsby was testifying he said he had known the dog seven or eight years.” He was then asked, “ Have you observed the dog’s actions on these occasions you have been there?” Plaintiff objected to the question as immaterial and the objection was overruled and plaintiff excepted-Witness answered he had observed the dog on those occasions, and added, £'he has always been friendly enough to me.”

We think that it was error to receive the evidence quoted, and other of the same character, and allowing it to be considered as defending the acts of the dog in question. (Buckley v. Leonard, supra.) By such evidence the plaintiff may have been prejudiced indeed ; probably, that had a controlling effect with the jury, as they may have thought that if they found the dog had a good character for peaceable conduct that the defendant was not liable though he received notice of his having bitten Miss Erwin, as she testified. We think there should be a new trial.

Judgment and order reversed and a new trial ordered, with costs to abide the event.

BoaedmaN, J., concurred.

Eollktt, J .:

I concur in the result, though I think the opinion states the- rule rather strongly in respect to the non-admissibility of evidence showing the peaceable disposition and conduct of the dog.. The rule is undoubtedly correct as applicable to the facts of this case. But if a question of fact liad arisen as to whether the dog had bitten the plaintiff, or others, or whether the defendant had notice of the ferocious disposition of the dog, then I think evidence of the peaceable disposition and conduct of the dog would have .been admissible. Thus limited, I concur.

Judgment and order reversed, and a new trial ordered, with costs to abide the event.


author: HaediN, P. J.:

text:
    JOHN J. MACK, Appellant, v. THE ROCHESTER GERMAN INSURANCE COMPANY, of Rochester, New York, Respondent.

      Policy of insurance — construction of a clause prohibiting repairs or alterations without consent of the company — when, the question as to whether the clause has been violated should be left to the jury.

    A policy of insurance, issued by tie defendant company upon a store belonging to tie plaintiff, provided tliat “tie working of carpenters, roofers, tinsmitis, gas-fitters, plumbers and other mechanics in building, altering or repairing any building or buildings covered by this policy, will cause a forfeiture of all claim under this policy, without the written consent of this company indorsed thereon.” During the duration of the policy tenants in possession of the building were preparing to put fruit-drying machines therein and had placed bricks on sills to receive the furnace, and had also cut two holes, four feet by five in size, through two floors and the ioof, which were to receive the fruit dryers, which consisted of wooden tubes extending from the first floor to the roof. Before any of the apparatus had been placed' in the building the latter was burned by a fire which originated in an adjoining building. Upon the trial of the action the court, at the defendant’s request, ordered a verdict for the defendant, upon the ground that the aforesaid condition of the policy had been violated.

      Held, error; that the jury should have been allowed to find whether or not there had been such’“ working in building, altering or repairing the building,” as was contemplated by the provisions in regal’d thereto contained in the policy.
    Appeal from a judgment in favor of the defendant, entered oh a verdict directed at the Oswego Circuit.

      This was an action to recover on a fire insurance policy of $1,500. On January 29, 1881, the defendant issued a policy of insurance to-the plaintiff, agreeing to indemnify bim against any loss by fire in the building therein described, happening within one year of the-date of the policy. The building was described in the policy as follows, viz.: “ The three-story brick store, with double brick walls and gravel roof, situate on the east side of West First street, No. 131, between Cayuga and Seneca streets, First ward, Oswego, N. Y.” The building was totally destroyed by fire, communicated to it from adjacent buildings, on the 11th day of October, 1881.
    On the 29th of September, 1881, the plaintiff executed a lease of the property to Lathrop & Rice, who then went into possession of the property under some arrangement, claimed to have been made with the plaintiff, by which they agreed to pay the taxes as rent from October 1 to May 1, 1882, at which time the term of their written lease was to commence. The building was the southerly ■one of two stores built together of brick, each about forty feet in width, fronting westerly on West First street and extending back to the east about 100 feet to Water street. The front of the store on West First street was three stories high and the rear half of the store two stories high. Between the first story there was no division wall, and both stores had a common entrance in the hall from the upper story. The northerly store, known as the Dunn store,, had for two or three years prior to October 1, 1881, been used for drying fruit. Dryers were in the north-east corner of the building, and were in operation on October eleven. In the early days of October, Lathrop & Rice commenced operations for putting two fruit ' dryers in the south side of the rear part of the building insured. The furnace to be used there had not been taken from the railroad depot when the building was burned* They had placed bricks on the sills intended for the furnaces to rest upon, and had cleaned out the chimney. They'had caused two' holes to be cut, each four by five feet in size, through each of the two floors and the roof, about four feet apart, laying back the four-foot section of the boards of the floor between the holes. They had put together in these holes the fruit dryers already made, and it only required the use of the hammer and the screw-driver to set them up. These dryers consisted of four scantlings, one at each corner of the bole, extending from the first floor to above the roof, the outer edges of which were grooved, into which grooves boards of proper lengths, before fitted, were slipped so as to inclose the space. The tops of the dryers were to be covered. Some work had been done in the building by carpenters in making from dressed lumber loose tables and boxes for use in the fruit dryer business. Part of the work was done by mechanics, and part by laborers employed by Lathrop & Rice in measuring apples. No fire had been used in the furnaces or on the premises when the fire took place. As before stated, the fire originated in buildings adjacent to the one insured. The policy issued to the plaintiff contained a clause as follows, viz.: “ Eighth. The working of carpenters, roofers, tin-smiths, gas-fitters, plumbers and other mechanics in building, altering or repairing any building or buildings covered by this policy, will cause a forfeiture of all claims under this policy, without the written consent of this company indorsed thereon.” ‘
    At the close of the evidence the defendant’s counsel asked the court to direct a verdict for the defendant, “ on the ground that the defense is made out.” The court thereupon remarked: “ The point with me is this * * * under the eighth clause in the policy in regard to altering or repairing or changing the building by carpenters.” Plaintiff’s counsel then requested the court to hold “ that it is a question for the jury whether there was any increase in the risk, and whether there was any such working of carpenters as would invalidate the policy.” The court refused to submit any question to the jury, to which the plaintiff duly' excepted. The court thereupon ordered a verdict for the defendant, to which the plaintiff duly excepted. From the judgment entered on such verdict this appeal was taken.

      W. II. Kenyon, for the appellant.

      Satterlee cfi Yeomans, for the respondent.
   HaediN, P. J.:

. Forfeitures are not favored. If the ruling at circuit is upheld, it sustains a forfeiture of the whole policy issued.by the defendant. Was there such an alteration as to cause a forfeiture? Was there such a -forking of carpenters and other mechanics in building, altering or repairing the building covered by the policy as was prohibited by the eighth clause of the conditions found in the policy ? It has been held that a similar clause in a policy did not apply to ordinary or necessary repairs, because they are assumed to be consented to by implication, and it would not be reasonable to construe the provisions so as to make a contract to idemnify the building from fire, provide for its destruction by other elements. (Franklin Ins. Co. v. Chicago Ice Co., 36 Md., 102.) It may be observed that the evidence in the case before us does not disclose an attempt to change the structure or framework oi the building. From the evidence it cannot be said that the carpenters were working or had been working in the structure insured “ in building,” and building covered by the policy, nor can it be said that the evidence discloses a case showing that carpenters or other mechanics had been engaged in substantially repairing and building or buildings ” covered by the policy. There remains, therefore, upon the evidence a querry as to whether or not there has been “ working of carpenters or other mechanics ” in altering ” the building covered by the policy. Of course it is not every slight change, such as driving a nail or cutting a-stove-pipe hole in a partition, placing a screw in a cornice for the purpose of hanging a picture, which should be regarded in the letter and spirit of the stipulation under consideration. Such stipulations intended to work forfeitures must receive a reasonable construction, reference being had to the object sought to be obtained by parties in giving and receiving. Such conditions are not to be extended by implication so as to include cases not clearly or reasonably within the words as ordinarily used and understood. (Rann et al. v. Home Ins. Co., 59 N. Y., 387.) "We incline to the opinion that the evidence found in the appeal book ” fairly presented a q uestion of fact upon which the jury should have been allowed to pass, and find whether or not there had been such an alteration in the building covered by the policy as that,which it was the intention of the parties to stipulate against in the language quoted in the eighth provision of the policy. (Burleigh v. Gebhard Ins. Co., 90 N. Y., 220.)

The judgment should be reversed and a new trial ordered, with costs to abide the event.

Boardman and Follett, JJ., concurred.

Judgment and order reversed and new trial ordered, with costs to abide the event.


author: Hardin, P. J.:

text:
    CHAUNCEY M. SOULE, Appellant, v. CORNELIUS MOGG, Pespondent.

      Agent liable for the amount of a cheek, lost through his neglect in not promptly collecting it — one patron of a cheese factory may sue alone to recover damages occasioned to him by the negligence of its salesman.

    One of the patrons of a cheese factory brought an action against the salesman thereof to recover his share of the amount of a check, received by the salesman upon the sale of cheese. The check was received on August third, but was not presented for payment until after the failure of the drawer on September eleventh:

      Held, that the néglect of the defendant to collect the check within a reasonable time rendered him liable for the loss sustained by the company.
    That the check might be regarded as money in the hands of the defendant, belonging to the plaintiff in common with the other patrons of the factory and that the plaintiff might maintain a separate action to recover his interest therein.
    Appeal from a judgment of the Onondaga County Court, reversing a judgment in a Justice’s Court in favor of the plaintiff.
    The action was brought by the plaintiff, one of the patrons of a cheese factory, to recover his share of the proceeds of a check of $472.30 drawn by Pichard Perrine to the order of the defendant who was the salesman for the patrons. It was alleged that the defendant had been negligent in collecting the check in question.
    The check was given August 3, 1882, and had the same been presented within reasonable time thereafter it would have been paid, inasmuch as the drawer Perrine did not fail until September 11, 1882. The plaintiff was also the assignee of the claim of one West, another of the patrons.

      Cornelius F. Stephens, for the appellant.

      F. A. Lymcm, for the respondent.
   Hardin, P. J.:

When the county judge reversed the justice’s judgment he stated in the memorandum, “the one perplexing question of this caséis whether the action was properly brought or not.” He ddded “ he thought it was not,” and without passing upon any other questions involved in the appeal reversed the judgment. We have looked at the other objections involved in the case and agree with the county judge that the main and pivotal question in the case is the one referred to by him in his memorandum. The evidence in the court below, and the verdict based thereon, established the fact that it was the duty of the defendant within a reasonable time to collect the check which he received from Perrine, drawei1 of the check, and also the fact that the defendant did not perform the duty, but did negligently .and improperly so conduct himself in respect to his duty in regard to the check that the same was not paid, and that by the reason of the insolvency of Perrine, the amount of money represented by the check became and was wholly lost to the patrons of the cheese factory.

The recovery below is therefore based upon the negligence of the defendant. We think the defendant’s liability was the same that' it would have been if he had received the cash, the sum of money represented by the check, and carelessly and negligently lost it, or intentionally diverted it from the hands of the persons severally entitled to receive the same. This view of the case leads up to the conclusion which, we think, was warranted by the evidence that the plaintiff was a tenant in common of the money in the hands of the defendant, and by reason of the injury sustained by the plaintiff in consequence of the negligent acts of the defendant, the plaintiff has sustained damages. We think the right to recover in this action is sustained by the authorities relating to the rights of one tenant in common to maintain an action for the conversion of his proportionate share in the property appropriated or lost.

In Channon v. Lusk (2 Lans., 213), Johnson, J., stated a recovery that authorized the rule in respect to tenants in common, and he adds, “ this court held in Tripp v. Riley (15 Barb., 335) that where tenants in common held property, severable in its nature, like grain, where the shares of each could be determined by measurement or weight, each tenant had the right to sever it, and take his share' and sell it, or otherwise appropriate it without being liable to his co-tenants lor a conversion of the common property. * * *

The rule should, of course, be confined to property readily divisible, and commonly divided, by weight, tale or measurement, into portions absolutely alike in quality and value, and as grain in bulk, money and the like. * * * The doctrine that one tenant in common cannot maintain trover against his co-tenant as long as the latter keeps possession of the common property and until a loss, sale, or destruction of it can be shown, was applied originally to property of this latter description. Thus, in Coke on Littleton (199 b), it is laid down: but if two be possessed of chattels, personals in common by divers titles, as of a horse, an ox, a cow, etc., if the one take the whole to himself out of the possession of the other, the other hath no remedy but to take this from him who hath done the wrong; * * * but this rule has no reasonable or proper application to articles like grains and fluids in bulk, or money, not adapted to common use amongst several owners.

Such property is most commonly used in several portions according to the respective rights of the common owners for salé, consumption, or otherwise by cash, and, indeed, it scarcely admits of any other.

In Channon v. Lusk, the plaintiff did not seek to take the eom•mon property, but to sever and take his own share. The refusal of the defendant was not to deliver to the plaintiff. the common property ; if it had been, the action could not have been maintained; but he denied the plaintiff, and refused to permit him to exercise, the right of severance and to take what, if the right had been exercised, became the plaintiff’s own property. It is not very material whether it is called conversion of plaintiff’s property or unlawful interference with his rights ; in either case the plaintiff is deprived of his ^property and the privilege of using it or selling it if he might see At to. He is damnified in the right of his property. To the extent of the injury sustained he has a right of action. (Small v. Robinson, 9 Hun, 420, and cases cited in opinion of Mullin, P. J.)

At the close of the opinion in Channon v. Lusk, in making reference to Lobdell v. Stowell (37 How., 88), the same doctrine contained in the opinion of Judge Johnson, to which we have referred, is found. And it is said, at the close of the opinion in Lobdell v. Stowell, that the judgment of the County Court of Chenango county was affirmed in the Special Term, and the opinion therein was delivered by Mason, J.' And that same case appears in the 51st New York, 70, where the Supreme Court was affirmed by the Commission of Appeals. In Stall v. Wilbur, the authority we have referred to was quoted with approbation. The court says such property being separable by weight or measure, each tenant in common may demand gi his co-tenant, having possession of the whole, his share, and, upon refusal or conversion of his co-tenant, may sue in his own name without joining all other co-tenants. (77 N. Y., 164.) If the defendant, in this case before us, had paid to the plaintiff his proportionate share of the moneys represented by the check and taken a receipt therefor, it would have discharged the defendant’s liability to that extent. Besides, it would have been in execution of the duty of the defendant toward the plaintiff and all other persons interested in the moneys represented by the check. (Bishop v. Edmiston, 16 Abb., 472; see, also, Wilber v. Sisson, 54 N. Y., 121.)

The respondent calls our attention to section 1919 of the Code of Civil Procedure, authorizing the bringing of actions in the name of officers of incorporated associations. We fail to see in that section anything which aids the position which the respondent takes, to wit, that the plaintiff did not have a cause of action against the defendant by reason of the negligence in respect to the check, causing the loss of the money named in the check, and the amount which was the defendant’s portion of the money thus lost easily ascertained. We think the plaintiff’s action is right, and that the facts sufficiently established at the trial the damages which the plaintiff recovered. We have discovered no questions in the course of the trial before the justice which it is necessary to comment upon. We are of the opinion that the justice’s judgment ought not to have been reversed. We must, therefore, reverse the judgment of the County Court and affirm that of the Justices’ Court.

Judgment of the County Court of Onondaga county reversed and the judgment of the Justices’ Court affirmed.

Boardman and Bollett, JJ., concurred.

So ordered.


author: Hardin, P: J.:

text:
    ISAAC MITCHELL, as Supervisor of the TOWN OF ORLEANS, Respondent, v. GEORGE H. STROUGH, SAMUEL W. GATES, SIMON FOLTS, RUSSELL B. BIDDLECOME, ALDEN F. BARKER, THE CLAYTON AND THERESA RAILROAD COMPANY, ISAAC MAYNARD, THE UTICA AND BLACK RIVER RAILROAD COMPANY, Appellants, and Others.

      Slight of a supervisor to sue to recover damages for injuries sustained by a town — an action against railroad commissioners, for the wrongful issue of bonds, accrues when the bonds a/re issued — it is barred in six years — the commissioners may properly act in reliance upon the decision of the county judge until it is reversed.

    The supervisor of a town has authority to maintain an action against persons who, by their wrongful and fraudulent conduct, have created a debt which the town will be compelled to pay.
    This action was commenced in i 878 to recover damages alleged to have been sustained by the town of Orleans by reason of the wrongful and fraudulent acts of certain of the defendants who, as railroad commissioner’s of the town, had without authority issued certain bonds of the town in exchange for the stock of a railroad company. The bonds were delivered to the company by the commissioners in April, 1873, and were never thereafter returned to them or made subject to their control.

      Held, that the right of action against the commissioners accrued upon the delivery of the bonds and was barred by the six years’ statute of limitation.

      Town of Ontario v. Hill (33 Hun, 35Ü) followed.
    In July, 1871, the county judge, after taking proofs, decided that a proper application for the issue of the bonds of the town had been made and appointed commissioners to issue them. A certiorari to review this decision was allowed and a return thereto was made in December of that year. The matter was argued at a General Term in May, 1873, and the decision was there affirmed, but on appeal to the Court of Appeals it was reversed on February 34, 1873. In April, 1873, the commissioners issued the bonds, and the same were received and thereafter used by the company.

      Held, that the commissioners and company were entitled to act upon the decision of the county judge until it was reversed, and that if it was desired that the commissioners should be restrained from issuing the bonds during the pendency of the litigation an order to that effect should have been procured.
    Appeal by each of the defendants, except "West and Graham, from a judgment in favor of the plaintiff, entered on a verdict against the defendants so appealing, and also from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The Clayton and Theresa Railroad Company was incorporated on the 7th of February, 1871, having capital stock to the amount of $250,000, to construct a road about sixteen miles long, from Clayton to a point on'the Black River and Morristown Railroad. It ran through the towns of Clayton, Orleans, Theresa and Philadelphia, in Jefferson county. About seven miles of it extended through the town of Orleans. On the 3d of May, 1871, certain tax-payers of the town of Orleans applied to A. H. Sawyer, under chapter 907 of the Laws of 1869, by petition, to have the to%n bonded to the amount of $80,000. A hearing, pursuant to notice given, was had in June, 1871, before the county judge. He, on the 1st of July, 1871, made his adjudication and determination in favor of the petitioners, and appointed the defendants Strough, Gates and Folts commissioners for the town. The record of his proceedings was filed in the county clerk’s office of Jefferson county on the 3d of July, 1871, and the commissioners during the same month received their commission from the county jrrdge and filed in the county clerk’s office their oaths of office. On the 2d of April, 1872, the commissioners, in the name of the town, subscribed for $80,000 of the stock of said railroad company, and the next day issued 160 bonds of tlie town of Orleans of $500 each. In January, 1873, the railroad company applied to the Utica and Black River Railroad Company for aid in procuring iron for the road. This resulted in. the latter company aiding them to purchase the iron, and the Clayton and Thei’esa Company agreed to and afterwards, and in May, did deliver to the Utica and Black River Company 110 of said bonds, as security for the liability and indebtedness of the Clayton and Theresa Company to the Utica and Black River Company. On May thirty-first, the Clayton and Theresa Company authorized and directed defendant Maynard, who was treasurer of the Utica and Black River Company, to sell the bonds and pay over the proceeds to the Utica and Black River Company. On the 1th of February, 1871, Maynard sold these 110 bonds to Nathan E. Platt, of Chicago, and paid over the proceeds to the Utica and Black River Railroad Company. Platt brought suit against the town upon his 110 bonds in the United States Circuit Court for the Northern District of New York. The town appeared and answered. The suit was tried in June, 1875. * The plaintiff had a verdict and' judgment for the three installments of interest, being the installments which., came due in February and August, 1874, and February, 1875. The town made a case and exceptions, and by writ of error brought the case before the United States Supreme Oourtaat Washington. The case was argued in that court and the judgment affirmed in the spring of 1879. In November, 1879, the board of supervisors of Jefferson county caused the amount of this judgment to be levied upon and collected from the tax-payers of the town of Orleans, and the judgment was paid and satisfied. In October, 1871, on the relation of tax-payers of the town of Orleans, a writ of certiorari was issued, directed to and served on the county judge and county clerk of Jefferson county to review the bonding proceedings had before the county judge. The judge and clerk made returns to the writ in December, 1871, and the case was heard at a General Term of the Supreme Court in May, 1872, and in June, thereafter, the General Term affirmed the proceedings and adjudication of the county judge. The relators appealed to the Court of Appeals, and that court on the 24th of February, 1873, announced its decision, by which the judgment of the General Term and the county judge were reversed.
    This suit, was commenced by a summons dated and issued May 31, 1879, and served a few days thereafter. The action is brought in the name of Mitchell as supervisor of the town, and is in the nature of an action on the case against the defendants, alleging that they fraudulently combined to and did issue the bonds and transferred them to a party living in another State, that he might prosecute them in the United States Circuit Court and make the town liable therefor. By means whereof, and the recovery of judgment by the said Platt against the town, the plaintiff had sustained damage to the amount of said $70,000 of bonds, with interest thereon from the 15th of August, 1873. On the trial the court directed the jury to and they did find a verdict in favor of defendant Graham. The jury found a verdict against the other defendants in favor of the plaintiff for $110,860.55, being the amount of said $70,000 of bonds, with interest thereon from the 15th day of August, 1873.

      Frameis Kernan, H. F. Morse and. W. F. Ford, for the appellants.

      J. Lansing and Levi Li. Brown, for the respondent.
   Hardin, P: J.:

Appellants contend that the plaintiff, as supervisor, cannot maintain this action, and that if any liability exists by reason of the matters set forth in the complaint it is to the town of Orleans, and that the action should have been in the name of the town. It is not useful to consider whether the action might have been maintained in the name of the town. But, we must meet the question as to whether the action may be maintained by the supervisólas such, if . a cause of action exists. It may be observed that the action is not upon contract express or implied ; it is an action on the case for wrongful and fraudulent conduct, alleged against the defendants, working a liability on the part of the town, thus exposing its property and rights to be injured by reason of the creation of a liability, which has ripened into an indebtedness of the town by means of which its credit, its property and rights may be injuriously affected.

Griggs v. Griggs (56 N. Y., 504) was an action against railroad commissioners, requiring them to account and pay over the proceeds of certain bonds of the town, and the right of the supervisor to maintain the action in his name as supervisor rested largely upon the third section of chapter 747 of the Laws of 1867, and it was declared that the intent of that statute was to authorize the supervisor to recover as such any moneys which the commissioners should, wrongfully refuse to pay over. In the same volume, at page 663, the court is reported to have affirmed the ease of the Town of Lewis v. Marshall, upon the opinion delivered at the General Term. That decision is explained in Town of Guilford v. Cooley (58 N. Y., 121), where Grover, J., says: “ It was held that section 92, volume 2, Statutes at Large, authorized the supervisor of a town to sue in his name of office upon any liability to the town, and hence a suit could not be brought thereon in the name of a town.” * * * The. case is also explained in Hagadorn v. Raux (72 N. Y., 584), and it is said the act of 1866 (ch. 534), was overlooked, and the court held that act required an action, to recover against a predecessor in office moneys and securities belonging to the town, to be brought in the name of the town and not in the name of the supervisor.

In Town of Pierrepont v. Loveless (72 N. Y., 217), it appears the right to maintain the action for damages caused by the destruction, of a bridge across Racket river, caused by defendant’s negligence, was not passed upon, though it was stated to be a question not free from difficulty.

In Hathaway v. The Town of Cincinnatus (62 N. Y., 434), it' was held that the action was properly brought in the name of the supervisor to recover moneys alleged to have been received from the State by the defendant belonging to plaintiff’s town, the court following with approval 56 New York, 663, and 58 New York, 116-.

In Bridges, as Supervisor of the Town of Liberty v. Supervisors of Sullivan County (27 Hun, 175), it was held that an action to recover moneys collected on account of taxes imposed on a railroad which plaintiff claimed should have been paid to the town, and were withheld by the county, was properly brought in the name of the supervisor' of the town of Liberty. That case was affirmed in 92 New York, 577, and Ruger, Ch. J., says : “ It is enough to say here that the rights of the town have been invaded and that the supervisor is a proper person to bring an action for the protection of such rights.” (Citing 62 N. Y., 434.) As the action before us is for an injury to the property and rights of the' town of Orleans, we think the supervisor was authorized to maintain the action in behalf of the town. (Sutherland v. Carr, 85 N. Y., 111.) The latter case seems to be put upon the ground that a liability existed in favor of the town, and therefore the supervisor might maintain the action. If wé are right in supposing that the supervisor was authorized by law to bring an action- like the one before us, then no resolution of the town was necessary 1 (Cornell v. The Town of Guilford, 1 Denio, 510 ; Town of Lyons v. Cole, 3 T. & C., 431.) Since the foregoing was written' the opinion of Barker, J., in Town of Kendall v. Holms et al., Railroad Commissioners, has been examined and the eases cited by him, and the reasoning in that opinion accords with the views already expressed herein. That action was to obtain an accounting for moneys received by,the railroad commissioners, and not used or deposited as required by law, and it was held that the action must be in the name of the supervisor and not in the name of the town.

We come now to inquire whether the plaintiff made out a case entitling him to recover of the railroad commissioners appointed by the county judge of Jefferson county for the town of Orleans. When they issued the bonds in behalf of the town the adjudication of the county judge was in force, and they were apparently clothed with power and right to subscribe for stock in the Clayton and Theresa Railroad Company, and to issue bonds in payment for the same in behalf of the town. Their commission was delivered to them on 3d July, 1871. The statute made it their duty “with all reasonable dispatch” to make and issue the bonds of the town. (Chap. 907, Laws 1869, p. 2305, §§ 3, 4. and 5.)

On the 2d of April, 1872, they subscribed for stock in the Clayton and Theresa Railroad Company, and on the 3d and 4th of April, 1872, they delivered the bonds after they were registered, and scrip taken therefor in the sum of $80,000. Their official action, so far as it purported to create any liability on the part of the town, was complete. They did nothing after that in respect to the bonds which could prejudice the town of Orleans or which could be .the foundation of an action. This action was not brought until the 31st day of May, 1879, more than seven years after the completion of the acts of the Commissioners in the premises. In April, 1872, the commissioners had parted with all control over the bonds; they had received the stock in behalf of their town, and the evidence fails to establish any fraudulent acts or practices by the commissioners as to the bonds committed or suffered by them. When the bonds were delivered to the Clayton and Theresa Railroad Company they were beyond the control of the commissioners, and at no time after that was it in the power of the commissioners to recall or cancel the bonds. The duty they were charged with by the statute in respect to the issue of the bonds was complete. Whatever wrong was perpetrated by the commissioners was complete in April, 1872. As this action was not brought within six years next after the last act of the commissioners, we think the six years’ statute of limitations is a bar to the action. (Town of Ontario v. Hill, 33 Hun, 250.) That case is an authority upon the question now before us, as the opinion of Barker, J., had the approval of all of the members of the court, and we should therefore follow it in disposing of the question made here in regard to the commissioners. (See Northrop v. Hill, 57 N. Y., 351; Bank of Utica v. Childs, 6 Cowen, 238; Argall v. Bryant, 1 Sand. Supr. Ct. R., 98, and cases there cited.)

We are of the opinion that the evidence did not warrant a finding that the commissioners were guilty of any fraud, nor that they were parties to the disposition made of the bonds by the Clayton and Theresa Railroad Company, when the bonds were, pledged to the Utica and Black River Railroad Company, nor when the latter company or its officers caused the bonds ‘to be sold to Mr. Platt.

It must be borne in mind that according to the theory of .the plaintiff the bonds were not valid when in the hands of either of the railroads. We think the jury had no evidence before them from which they were warranted in finding any tortious or wrongful act on the part of the commissioners subsequent to the delivery of the bonds to the railroad company in April, 1872. As we have already stated, the adjudication of the county judge was in force then, and it was affirmed by the General Term at its June term in 1872. It follows that the commissioners did not receive, any' moneys or in any manner control the bonds of the town after April, 1872. They ceased to be commissioners in February, 1873, when the Court of Appeals reversed the adjudication. (Biddlecom v. Newton, 13 Hun, 582.)

We are of the opinion that the plaintiff had no cause of action against the commissioners for wrong, or for converting the bonds, or for having delivered them, not barred by the statute when this action was commenced in May, 1879. We therefore reach the conclusion that the learned circuit judge ought to have granted a nonsuit, as to the commissioners, and because of his error in that regard the order and judgment as to them should be reversed and a new trial ordered. As to the defendant, the Clayton and Theresa Railroad Company and its agents, it appears that the commissioners delivered to them the bonds ($70,000) in April, 1872. The judgment of the county judge remained unreversed, and it appears it was affirmed by this court in June, 1872. The certiorari did not affect the judgment as evidence as long as there was no reversal. (Harris v. Hammond, 18 How., 124; followed, in Sage v. Harpending, 49 Barb., 166.)

We think the evidence fails to establish that the railroad company or its officers, when the bonds were received, were engaged in any intentional and actual fraud upon the town; on the contrary, it was then adjudicated that the commissioners had power to issue the bonds. As long as such power existed, the railroad company and its officers had the right to receive the bonds in payment for stock in the railroad company. We find in the evidence nothing to establish a fraudulent scheme or design then existing. Indeed, we think the evidence relied upon by the plaintiff does not establish a case warranting a jury in finding a fraudulent intent upon the part of the Clayton and Theresa Railroad Company or its officers, at the time the bonds were taken and pledged by the Clayton and Thei-esa Railroad Company to the Utica and Black River Railroad Company. There was an assertion of power and a belief in it, and action in accordance with the belief asserted. We do not find the evidence sufficient to sustain a ver,dict based upon fraud charged against the Clayton and Theresa road or its officers, for having taken the bonds of the town and delivered stock therefor. No stay of proceedings had been obtained to prevent the issuing of the bonds. If the town, or those acting in its behalf, had sought to prevent a delivery or sale of the bonds a stay should have been obtained. (Delafield v. State of Illinois, 2 Hill, 160; Orleans v. Platt, 99 U. S., 682.) In the latter case the court says: “ The omission was gross laches. This negligence is the source of all the difficulties of the plaintiff in error (the town), touching the bonds. The loss, if any shall ensue, will be due not to the law or its administration but to the supineness of the town and the contestants.” (County of Ray v. Van Sycle, 96 U. S., 675.) It may be observed that the United States Supreme Court also, in deciding that case, regarded the action of the county judge as binding until it was reversed. (99 U. S., 683.)

But it is insisted that the reception of the bond was wrongful and fraudulent. We think it more in harmony with the status of the parties at that time to infer that the commissioners supposed, as the adjudication of the county judge stood unreversed, that they had the power to issue the bonds, and that the railroad company .and its officers bad the right to receive them in payment'for scrip or stock of the road. We are not prepared to hold, from the evidence before us, that the jury was warranted in finding that the bonds were taken fraudulently or with a preconceived design to injure and defraud the plaintiff or his town, when they were pledged to the Utica and Black River Railroad Company to secure the performance of the contract between the two roads, or that the parties then considered it necessary to cause the bonds to be sold to a nonresident of the State.

That expedient subsequently was developed. When the certiorari issued in 1871, the commissioners were not parties to the proceedings as such, though the same persons as tax-payers may have been. The certiorari was statutory and removed questions of fact as well as of law. (Chap. 925, Laws of 1871, p. 2118 [vol. 2], § 4.) Power was conferred by the statute upon the court or a judge thereof to grant a stay of proceedings. Such power was not invoked, and the right to act in the belief that the proceedings were binding and valid remained. While it was undergoing review the adjudication of the county judge was protective, and though it was finally reversed it served as a justification for the commissioners who acted upon its validity. (Van Steenbergh v. Bigelow, 3 Wend., 43; Porter v. Purdy, 29 N. Y., 106.) It appears the adjudication of the county judge affirmed by the General Term was in full force up to the 25th of February, 1873, when it was reversed by the Court of Appeals for an erroneous ruling made by the county judge, in rejecting withdrawals of consents down to and upon the hearing. (People ex rel. Irwin v. Sawyer, 52 N. Y., 296.) When that decision was pronounced the Clayton and Theresa road and its officers, had entered into an arrangement with the Utica and Black River Railroad Company, for a completion of the building of the. Clayton and Theresa Railroad, and to induce the Utica and Black River Railroad Company to purchase and advance iron for the road bed, it had agreed to turn over the bonds held by it from the town of Orleans.

The iron was advanced and equitably the Utica and Black River Railroad Company was the owner of the bonds when the decision of the Court of Appeals was made in February, 1873. . It was conceded upon the trial that “ about the 1st of February, 1874, the defendant Maynard, by virtue of the authority contained in” a paper executed by the officers of the Clayton and Theresa Railroad Company, of May 31, 1873, sold the bonds in question to Mr. Nathan E. Platt, then a resident of Chicago, Illinois, and delivered over the proceeds to the Utica and Black River Railroad Company.

The written authority of the officers of the Clayton and Theresa road to Mi\ Maynard recited that the bonds were held by the Utica and Black River Railroad Company as collateral security for the performance of the contract between the roads, and that the proceeds of any sale of the bonds were to be held by the Utica and Black River Railroad Company “ as collateral security for the per formance of the contract above mentioned.” Maynard testified that he sold the bonds to Platt without giving him any notice of any litigation therefor. Platt became, as Maynard intended he should be, a purchaser without notice, and Maynard says that he “considered these were valid in the United States Court,” and that one object in taking them into another State and selling them was that they “ could be enforced in the United States Court.”

He seems to have been more concerned with the effort to sell to a non-resident of the State, than with any effort to sell to one having-no antecedent knowledge of the controversy. For it was then understood that there was a conflict between the decisions of the highest court of this State, and the United States Supreme Court. From the facts appearing in the case, it must be assumed that whatever rights the Theresa and Clayton Railroad Company had in the bonds, they acquired them while the adjudication was in force, and delivered stock for the bonds. Such rights thus acquired could be-pledged to the Utica and Black River Railroad Company without any conversion of the bonds, and without the violation of any agreement that they should not thps be used. The case differs from Comstock v. Hier (73 N. Y., 269), where there was an agreement that the note indorsed by plaintiff should be used in a particular way. That agreement was broken. The note was converted, and the suit was for the conversion of the proceeds received upon the-sale of the note by Hier. But we forbear to consider further the force and effect of the letter to Maynard of 31st May, 1873, signed by Clayton and Theresa officers, or the sale by Maynard, as officers of the Utica and Black River Railroad Company, and the obtaining-funds upon such sale, and crediting the Clayton and Theresa Railroad Company therewith, in the books and accounts of the Utica and Black River Railroad Company, or whether the officers of the Clayton and Theresa, and the company, or the officers of the Utica and Black River Railroad Company, or the company, are liable for fraud, as-the question of fact has not been properly passed upon by the jury. The counsel for defendant requested the court to charge the jury “ that neither Maynard, Barker nor Biddlecome was liable herein, if the jury found that he believed that the bonds were valid as against the town in the hands of the Clayton and Theresa Railroad Company to be used in construction of the road of that company and acted honestly in what he did in disposing of the bonds for that purpose.” The court declined and defendants excepted. At a later stage of the case the court refused to charge that if Maynard acted in the belief that he had a right to transfer the bonds to a party residing out of the State he was not liable. This was refused and an exception taken. Then the court was asked “ to charge that neither of the defendants is liable, unless the jury find that he acted fraudulently and in bad faith in what he did in reference to the bonds.” The court said, viz.: “ That I decline to charge. No. I will charge that,” and in response to an interrogation of counsel for defendant he said that he charged “ that neither of the defendants is liable, unless the jury find that he acted fraudulently and in bad faith in what he did in reference to the bonds.” We are constrained to say that the jury was not put in full possession of the principles of law which should control in dealing with the questions of fact involved in the issues.

Some declarations of Gates, made to Garley in spring 1873, were received against all the defendants. What Gates said was not evidence against the others, unless there was á conspiracy established, so that his words would bind the other defendant. We have not seen such a conspiracy shown as would warrant his declaration. (Cuyler v. McCartney, 10 N. Y., 221.) A statement by Gates that the bonds “have gone to Canada and were sold there, * * * sold them at par and got the gold for them,” was inadmissible, and the exception to the ruling admitting it was well taken.

We think the judgment and order should be reversed, and a new trial ordered, with costs to abide the event.

Boardman and Follett, JJ., concurred.

Judgment and order reversed, and a new trial ordered, with costs to abide the event.


text:
    STEPHEN S. DELONG, Plaintiff, v. REUBEN S. CURTIS and DORPHEUS WAIT, Defendants.

      The release of one wong-doer releases those liable jointly with him.

    Several owners of water privileges joined in raising the height of a dam, whereby a quarry belonging to the plaintiff was flooded. The plaintiff settled his claim with some of the wrong-doers, and gave to one of them a release, under seal, from all claims arising from the raising of the dam. The instrument provided that it was understood that it was not to apply to or to affect any person interested in the dam, except the one named, and reserved and excepted all claims the plaintiff had against any and all the said persons.

      JHeld, that he thereby released all the wrong-doers.
    Motion for judgment on a verdict directed for the defendants at the Jefferson Circuit, subject to the opinion of the General Term.
    The action was brought to recover damages sustained by the plaintiff in bis quarry by the flooding of the same by means of water settling back in consequence of a dam built and maintained by the defendants. The plaintiff bad taken sums of money in satisfaction of bis claims against certain of the persons who joined in raising the dam, and bad given to one of them named Ear well a release under seal, which relóased him from all claims from any matter growing out of the raising of the dam, but proceeded, “ it is understood and expressly agreed, that this release is not to apply to or in any manner to affect any party interested in the said dam, except the said A. M. Earwell and bis heirs and assigns, reserving and excepting all claims I have against any and all the persons interested in the same dam.”

      M. Ballard, for the plaintiff.

      Porter c& Watts, for the defendant Wait.

      George 8. Mooher, for the defendant Curtis.
   Hardin, P. J.:

Satisfaction of damages sustained by plaintiff by one tort feasor or trespasser was satisfaction as to all the wrong-doers. A release of-one, upon satisfaction by that one, operates as a discharge of all the wrong-doers. Mitchell v. Allen (25 Hun, 543) quodrates with the case before us, and is an authority entitled to our following. (See, also, Barrett v. Third Am. R. R. Co., 45 N. Y., 628 ; Lovejoy v. Murray, 3 Wallace, 1, and cases cited in opinion.) One satisfaction for damages sustained by a wrongful act is all the plaintiff is entitled to receive. (Knickerbacker v. Colver, 8 Cowen, 111.)

Ve think the motion should be granted and judgment ordered for the defendants on the verdict, with costs.

BoaedmaN and Follett, JJ., concurred.

Motion granted and judgment ordered for defendants on the verdict, with costs.


author: HardiN, P. J.:

text:
    THE GENEVA, ITHACA AND SAYRE RAILROAD COMPANY, Appellant, v. WILLIAM H. SAGE, Respondent.

      Hen of a common carrier for freight, when it is lost — effect of parting with the possession of the property — granting a new trial for newly discovered evidence.

    In an action of replevin to enforce a lien for freight upon a horse consigned and delivered to the defendant, it appeared that the car containing the horse arrived at the depot at about eleven p. m ; that the defendant upon being informed of his arrival by telephone asked if the horse could remain in the car until morning, and was informed that it could. In the morning the defendant’s servant went to the station and took away the horse. Subsequently, a dispute having arisen as to the amount of freight, this action was brought.
    Held, that a verdict finding that the plaintiff had voluntarily abandoned its lien upon parting with the possession of the horse would not be reversed on appeal, and that the action could not be maintained.
    A new trial will not be granted on account of newly discovered evidence if it is cumulative, nor unless it is clear that, if produced, it would change the result.
    Appeal from a judgment in favor of the defendant, entered on a verdict of a jury, and from an order denyixíg a motion for a new trial made on the minutes of the justice before whom the action was tried, and- also from an order refusing a new trial upon a motion made upon the ground of newly discovered evidence.
    The action was replevin, to recover possession of a horse, upon which the plaintiff claimed a lien for freight.

      F. E. Tibbetts, for the appellant.

      White ds Nichols, for the respondent.
   HardiN, P. J.:

February 17, 1883, at plaintiff’s freight depot in Ithaca, a horse consigned to defendant arrived, and a telephone message was given to defendant at eleven p. m., to the effect that the horse had arrived. Defendant ashed if the horse could remain in the car till morning, and gave directions as to watering and feeding. He was informed that the horse could be kept till morning, and defendant then said to the agent of plaintiff he would send and get the horse in the morning, and was told “ all right.” He sent his man in the morning and got the horse. Subsequently a dispute arose between defendant and plaintiff’s agent as to the amount of freight to be paid, and that was kept along till this suit was brought, two and one-twelfth months after the horse arrived. We think the evidence warranted the trial court in submitting the case to the jury, to find whether plaintiff had, under the circumstances disclosed in the evidence, waived its lien upon the horse, and consented to rely upon the defendant’s personal liability to pay the freight bill.

If plaintiff did consent to waive such lien, then this action in replevin ought not to be maintained: The surrender of possession of property is a fact of much importance upon the question of waiver of the lien. (Bigelow v. Heaton, 4 Denio, 496.) Beardsly, J., says in the case just cited, viz.: A relinquishment of possession by one who has a lien on property, is an abandonment of the lien. This, as a general rule, is entirely settled. By a transfer of the possession the holder is deemed to yield up the security he has by means of the custody of the property, and to trust only to the responsibility of the owner or other person liable for the charge.

We see no evidence of trick, fraud or over-reaching on the part of the defendant to obtain possession. It is not suggested that he is not entirely responsible'for the freight. We think the jury had evidence upon which they might properly find as they did, that the lien of the carrier had been waived, and the plaintiff and its agents had consented to rely upon the defendant’s personal responsibility. We do not feel at liberty to disturb the verdict in that regard. (Bigelow v. Heaton, 6 Hill, 43; Dart v. Ensign, 47 N. Y., 622.) It was the province of the jury to pass upon the facts and to draw such inferences as the evidence warranted. (Justice v. Lang, 52 N. Y., 323; Hart v. Bridge Co., 80 id., 622.) The altercation between defendant and plaintiff’s agents as to a former freight bill had nothing to do with the case, and the court in its charge said so, in clear and positive terms. The court said: You have nothing to do with the difficulty in regard to the freight at all. You put that entirely aside, strike it out of consideration entirely.” (Lindsay v. People, 67 Barb., 549; affirmed in 63 N. Y., 143; Ostrander v. People, 16 Weekly Digest, 63; S. C., affirmed in Court of Appeals in 1883, but not reported'; Greenfield v. People, 85 N. Y., 90; S. C., 23 Hun, 454.)

We think the error in regard to receiving the evidence, as to the former freight bill, was cured by the instruction quoted from the charge. We think the affidavits insufficient to present a case for a new trial upon the ground of newly discovered evidence. The diligence to be used prior to the trial was not shown. Besides the evidence proposed, so far as material, was cumulative ; the motion was properly denied. (First Nat. Bank of Plattsburgh v. Heaton, 6 T. & C., 37; Anderson v. Bank, 19 Wk. Dig., 373.) It is not made clear that the newly discovered evidence, if produced, would change the result. (Darbe v. Elwood, 2 Hun, 599 ; Powell v. Jones, 42 Barb., 24.) We are satisfied with the verdict and the orders.

Judgment and orders should be affirmed, with costs.

Boaedman and Follett, JJ., concurred.

Judgment and orders affirmed, with costs.


author: Hakdin, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK v. MERCHANTS’ BANK. (Matter of Claim of JEROME WHITAKER and Others.)

      A pun-chase by a trustee enures to the benefit of the beneficim-y.

    One Sherman, to secure bonds issued by Mm, executed a mortgage upon real estate owned by Mm to Lord and Moffett, as trustees. Sherman having become insolvent the mortgage was foreclosed, and upon the sale the premises were purchased, through Moffett’s instructions, for the Merchants’ Bank, which owned some of the bonds, and of which Moffett was cashier. The deed was made to Kenyon, a director of the bank. He thereafter conveyed it to the teller of the hank, who subsequently conveyed it to the hank, and upon the failure of the bank the property passed to its receiver, who thereafter sold it at an advance of some $7,000 over the price paid at the foreclosure sale.
    Upon the application of one of the bondholders to compel the receiver to pay to the trustee Lord the profit derived by the bank from the purchase and resale:

      Held, that the application should be granted.
    That as Moffett was one of the trustees the bondholders were entitled to any profits that might be made upon any purchase made by him either directly or indirectly.
    That the bank and its receiver acquired no better title than Moffett had, as the bank was chargeable with knowledge of what was known by its cashier.
    That neither the provision in the decree of foreclosure allowing any party to the action to purchase at the sale, nor the order confirming the sale, prevented the bondholders from recovering the said profits.
    Appeal from an order of the Oneida Special Term, confirming the report of a referee, and directing the receiver of the Merchants’ Bank to pay to Gilderoy Lord, as trustee, or to certain bondholders, secured by mortgage given to Lord and Moffett, as trustees, upon the homestead of Wooster Sherman, in the city of Watertown, the amount of the net benefit arising from the sale of the mortgaged property, bought in through the instrumentality of Moffett, one of the trustees, who was also cashier of the bank, for the bank. The amount of benefits arising to the bank or to the receivers, out of the transaction, was $7,076.07, less $425.89 allowed for the services in the suit of Gilderoy Lord and John F. .Moffett,‘trustees, against Wooster Sherman and others, and the costs of this proceeding.
    Gilderoy Lord and John F. Moffett were duly constituted trustees of á certain mortgage made by one Wooster Sherman to secure forty in number of his individual bonds of $500 each. At the sale on the foreclosure of the mortgage Moffett procured the premises to be purchased for the Merchants’ Bank, of which he was a stockholder, director and cashier. After applying the proceeds of the sale to the payment of bonds there remained still due on them a deficiency of over $12,000. Prior to the recovery of said judgment, Sherman, the obligor on said bonds, was adjudged a bankrupt. After the purchase by the bank it went ijito the hands of its present receiver, who sold the property in question at a profit to the bank of about $7,000. In due time Lord, as trustee, presented a claim to the receiver for such profits, which claim was rejected by the receiver. After such action by the receiver, one of the bondholders, on behalf of himself and others similarly situated, moved for leave to sue the receiver for such profits. On the hearing of that motion an order was made referring the controversy-to a referee to take proof of the facts and to report the same to the court with his opinion thereon. The referee reported in favor of the petitioners and the court subsequently confirmed his report. From the order of confirmation this appeal has been taken.

      John O. Mo Garbín, for ¥m. H. Kimball, receiver, appellant.

      Mullin c& Griffin, for claimants, respondents.

      D. O’Brien, attorney general, for the people.
   Hakdin, P. J.:

When the sale of the mortgaged property took place, under the decree of foreclosure of the mortgage executed by Wooster Sherman to Lord and Moffett, as trustees, Moffett was acting as the trustee for the bondholders under the mortgage. It was Lis duty to protect and secure the rights and interests of the bondholders. • He was not at liberty to so conduct the sale as to endanger or impair their rights. When he, in effect, became purchaser of the mortgaged property, at a sum much less than was due'upon the mortgage, he was liable to account in equity for the value of the property, or such benefits as should arise from the transaction. The fact that' he allowed the title to be taken in Kenyon, director of the bank, and subsequently transferred by Kenyon to Pawling, a teller of the bank, and from Pawling to the bank, and a sale by the receiver of the bank,and the profits of the transaction to pass to the hands of the receiver, does not defeat the rights of the beneficiaries to have equity interfere to secure to the bondholders the benefits or profits ’ of the sale thus arising.

The profits of the transaction are clearly traceable to and are found in the hands of the receiver. Equitably they belong to the beneficiaries under the mortgage and can be reached, notwithstanding the attempted breach of trust on the part of Moffett, one of the trustees, who assumed to become á purchaser at the foreclosure sale and to have the title transferred to the bank of which he was cashier. It was not competent for Moffett to cast the loss arising from such speculative transaction on the trust fund or the beneficiaries thereof. (Van Epps v. Van Epps, 9 Paige, 241.)

The provision in the decree of foreclosure that any party to the action might become purchaser at the sale is no protection to Moffett or his appointee the bank, or its receiver. (Fulton v. Whitney, 66 N. Y., 556.) Nor does the order of confirmation stand in the way of the equitable rights of the trustee or the bondholders. (Terwilliger v. Brown, 44 N. Y., 237; Fulton v. Whitney, 5 Hun, 20; S. C., 66 N. Y., 548; Colburn v. Morton, 3 Keyes, 305; Conger v. Ring, 11 Barb., 356.)

The bank or its receiver stand in no better situation in respect to the benefits arising out of the sale than Moffett would had he taken title to himself. The bank was chargeable with notice of the trust duties of Moffett in the premises ; he was cashier of the bank and through him the bank derived notice of the equities and rights of the bondholders. (Cumberland Coal Company v. Sherman, 30 Barb., 570; Terwilliger v. Brown, 59 id., 9; Hawley v. Cramer, 4 Cow., 735; Davoue v. Fanning, 2 Johns. Ch., 257; Abbot v. American Hard Rubber Company, 33 Barb., 575.)

We think the proceeding to reach the profits was maintainable in the name of the bondholders or of the co-trustee. (Hill on Trustees, 761; Merrill v. Farmers' L. and T. Co., 24 Hun, 297.)

It is no answer to this proceeding to say the trustee attempting to violate his duties, might be made personally responsible to the bondholders suffering from his dereliction of duty. (Merrill v. Farmers' Loan and Trust Co , 24 Hun, 297.)

It appears that, the bank was a holder of some of the bonds entitled to participate in the profits derived out of the transaction. To the extent of such ownership it is entitled to participate in a ratable division of the profits arising out of the transaction, to that extent the receiver has an equitable interest in the funds, and may retain such sum out of the profits. Such seems to have been the opinion of the learned judge who made the order at Special Term. As we understand that order the rights of the receiver in that regard are protected. The opinion delivered at Special Term meets with our approval. We think the order accords with the principles of equity laid down in the cases to which we have already referred and therefore the order should be affirmed.

Order affirmed, with ten dollars costs and disbursements, payable out of the fund.

Boardman and Follett, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements, payable out of the funds in the hands of the receiver.


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    FREDERICK WHEELER, Respondent, v. MERRITT KING, Appellant.

      Meceipt of money under suspicious circumstances — when the person receiving it may he compelled, to account therefor, hy the true owner.

    "Where an attorney receives under suspicious circumstances $150 in money, from a person arrested upon a charge of horse stealing, upon an agreement to render services in defending the person so arrested, and after he has rendered services of the value of ninety dollars is notified hy a third person that the money so received belongs to and was stolen from him, he cannot acquire a good title to the remaining sixty dollars by the rendition of further services to the thief, and the true owner may recover the said balance in an action brought against the attorney for that purpose.
    'Appeal from a judgment in favor of the plaintiff, entered upon a verdict at the Tompkins Circuit, and from an order denying a motion for a new trial made at Special Term upon a case and exception.
    The verdict was for sixty dollars and interest. The plaintiff claimed $950, viz., $800, delivered to the defendant by one Dean to hand to his brother, which the defendant says the brother refused to take, and which was by the defendant handed back to Dean, and $150, which Dean delivered to the defendant, as it alleged, for the defendant’s services to be rendered in defending Dean from the charge of horse stealing. The plaintiff claimed that the moneys were stolen from him at his house in Pennsylvania on the night of the 2d of June, 1879. The jury found, apparently, that the .$800 had been returned by the defendant to Dean, and that the services of the defendant rendered for Dean were worth ninety dollars, and gave plaintiff a verdict for the balance, say sixty dollars, and interest.

      Merrit King, in person, for the appellant.

      8. D. ifalliday, for the respondent.
   Hardin, P. J.:

We are warranted by the appeal book in assuming tbat the jury found in favor of the defendant as to the $800, and secondly, that the jury found tbat for the $150 the defendant'had performed services to the extent of ninety dollars, and no more, and that the plaintiff was entitled to recover sixty dollars and interest. Defendant recovered possession of the $150 undei? circumstances somewhat peculiar. Dean bad been arrested, for horse stealing, and was in custody at Ithaca, June 7,1879, when defendant was notified thereof by a police officer, and of the fact that he had some $1,300 in his .possession. Defendant went to see the prisoner Dean, and received $950 of the money, and undertook to deliver $800 to the brother of Dean that day ; the brother refused to receive it, giving reasons therefor not complimentary to the prisoner, and defendant then carried the money back to the jail and left it with defendant Dean, but kept $150, as he says, for services to be performed. If we assume that the defendant acted negligently in taking the $150, that assumption does not alone create a liability on the part of the defendant to respond' to the plaintiff for the $150. (Dutchess Co. Mut. Ins. Co. v. Hachfield, 73 N. Y., 226; Welch v. Sage, 47 id., 143.)

We must go further and consider whether the defendant in good faith acquired a title to the $150. If he did not, then he should respond to the plaintiff for such money, or that part of it which he did not thus acquire. (Northampton National Bank v. Kidder, 67 How., 95 ; Wylie v. Speyer, 62 id., 110.) On the 16th of June, 1879, the defendant was informed that the plaintiff had been robbed on the 2d of June, 1879, of $2,700, and a demand was made upon the defendant for the money which Dean had placed in his hands. The .jury have found that the defendant had then only earned ninety dollars of the $150. He had not parted with value therefore, for the remaining sixty dollars. Indeed, as the jury have found, the defendant never had parted with value for the sixty dollars. We think, therefore, he has not shown, nor does the evidence establish that the defendant acquired any title to the sixty dollars. (Newton v. Porter, 69 N. Y., 141; S. C., 5 Lansing, 417; Stephens v. Board of Education, 79 N. Y., 183.) What force or effect should be given to the defendant’s evidence, as well as whether it should be credited or not, were questions for the jury. (Elwood v. W. U. Tel. Co., 45 N. Y., 519; Koehler v. Adler, 78 N. Y., 287; Stilwell v. Carpenter, 2 Abb. N. C., 239; Kavanagh v. Wilson, 70 N. Y., 177.)

When this case was in this court upon a former appeal, it appears by the opinion of Osborn, J., that it was assumed that the evidence was sufficient to warrant a finding that the money which Dean had delivered to defendant was the money of the plaintiff, being part of the $2,700 stolen from the plaintiff. We have only to follow the decision made in that record, as we do, by assuming that the jury was warranted, in so finding upon the evidence now before us. We think the objections to the commission came too late. Defendant should have sought relief by motion, as the commission had for years been on file. (Newton v. Porter, 69 N. Y., 141, and cases cited.)

Our conclusion is, that the verdict is sufficiently favorable to the defendant, and that no prejudicial error occurred at the trial, and the judgment and order should be affirmed, with costs.

Follett, J., concurred; Boardman, J., not acting.

Judgment and order affirmed, with costs.


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    ELIZA E. DE WITT, Respondent, v. CORNELIUS VAN SCHOYK and CHARLES FLINT, Appellants.

      Deed — construction of it — parties and primes ewe estopped from disputing boundm'y lines established by it — prior oral agreements are merged in it — an agreement affecting the title to land must be in writing — when am equitable action to restrain ¡mterfm-ence with a highway will lie.

    In 1871 the owners of two parcels of land, separated by a highway, executed conveyances, by which there was conveyed to the plaintiff’s grantor all that portion of the premises “lying west of the highway leading through said premises from Merrill’s to Scutts,” and to the defendant Yan Schoyk’s grantor all that portion of the premises lying east of the said highway. At that time the highway was opened, used and worked, and its lines were plain and visible. After the parties to this action had acquired title to the said two parcels, the defendants, in 1882, closed up and fenced in a strip on Yan Schoyk’s side of the old highway, and moved back the fences on the plaintiff’s side and threw open a portion of her land as a highway. They sought to justify this action under a parol agreement made between the grantors of the two parcels prior to the execution of the deed of 1874:

      Held, that it was the intention of the parties executing the deed to adopt the lines of the existing highway as the boundaries of the lots, and that their grantees and those claiming under them were estopped from denying the existence of the highway or claiming to alter the boundaries thereof.
    That if the parol agreement sought to be proved, was made prior to the execution of the deed, it was merged in it and must be deemed to have been abandoned by the parties.
    That if it was made after the execution of the deed, it was void under the statute of frauds, as it related to an interest in land.
    That as it appeared that the plaintiff, in order to reach the premises from her residence, which was some two miles distant, was obliged to use said highway, and was accustomed to leave the same at a certain point and proceed in a certain track over her premises to the buildings thereon, and that the wrongful acts of the defendants prevented her from using the said track, and made it necessary for her, in order to reach her buildings, to make a new and longer track over her premises, that she was entitled to maintain an equitable action against the defendants to'recover the damages sustained, and to procure a judgment compelling them to open and restore the old highway to its former condition, and restrain them from entering upon and using the plaintiff’s premises for the purposes of a highway.
    Appeal from a judgment, entered upon trial of this action at a Special Term of Broome county, awarding to the plaintiff six cents damages against the defendants for having, in the spring of 1882, closed up an old road, and for opening the plaintiff’s land to the public “ and designedly and intentionally turning public travel from the regular highway on the lands of the plaintiff,” and awarding a judgment commanding the defendants “to open and restore the regular public highway to its former condition and to restrain them from entering upon and using as a public highway plaintiff’s lands as aforesaid, and to pay to the plaintiff six cents damages, which she had sustained by their wrongful acts, with costs.”
    Henry Rickard and Joseph Borrill, prior to January 10, 1874, owned the fee of the premises now owned by the plaintiff and the defendant Tan Schoyk. One "William B. Freeman had been formerly in possession of the premises under a contract for the sale thereof. In January, 1874, conveyances were executed of the premises. Borrill and' wife, with "William B. Freeman and wife, conveyed to Henry Rickard all that portion of the premises “ lying west of the highway leading through said premises from Merrill’s to Scutt’s.” Rickard, Freeman and wife conveyed to Borrill all that portion of the premises “ lying east of the highway leading through said premises from Merrill’s to Scutt’s.” Rickard, on the same day, contracted to sell the portion conveyed to him to Freeman. Subsequently the plaintiff acquired all the interest and title of Rickard in and to the premises “lying west of said highway.” Defendant Yan Schoyk acquired of Borrill and owned the title to that portion of the lands “lying east of said highway.”
    In the spring of 1882, the defendants Yan Schoyk and Flint changed the highway leading from Merrill’s to Scutt’s, from its location in January, 1871, by removing the same westward to and upon the plaintiff’s lands, and they also plowed up and inclosed the old road. The defendants sought to justify under a parol agreement between Borrill and Rickard. The court found that the highway, as opened, used and worked in 1871, was the boundary line of plaintiff’s premises, and that the old highway was at that time open, plain and visible.

      Arthur Moore and Alexander Summing, for the appellant.

      E. H. Hamford, for the respondent.
   Hardin, P. J.:

Plaintiff’s complaint stated facts sufficient to authorize her to maintain a suit in equity for relief. (Town of Springport v. Teutonia Savings Bank, 75 N. Y., 397.)

First. It avers her ownership of the premises lying westerly of the highway as the same were located in January, 1871.

Second. That Yan Schoyk is the owner of the premises lying east of said highway leading from Scutt’s to Merrill’s, and that in the conveyance made in 1871 the highway, as it was then located, was made the dividing line between the owners of the respective premises.

Third. That the highway had been open, and used and worked for more than twenty years as a public highway.

Fourth. That plaintiff in order to reach her premises from her place of residence, which was some two miles distant, was accustomed to go south to a point and thence upon the highway leading from Scutt’s to Merrill’s until she arrived at her premises; and( that to reach the buildings belonging to her she had been accustomed to travel in a certain track to said buildings from said highway, leaving the highway at a suitable place about thirty rods north-westerly from the point of intersection of the Tarbill road with said highway.

Fifth. That the defendants, in the spring of 1882, entered the highway leading from Scutt’s to Merrill’s, at or near the intersection of the Tarbill hill road with said highway, and there built a fence across said highway at or near the point of intersection and plowed up and destroyed the road bed and track and so obstructed the highway that the same was impassable and could not be used for highway purposes, and that the public and the plaintiff could not pass along the same; and at another point north-westerly from where the plowing was done they built a fence across the highway of logs and posts so as to form á substantial obstruction, and that the same was kejDt and maintained by the defendants; and that they inclosed and used the highway for the purposes of cultivation; and that the obstruction and nuisance remained unabated; and that the plaintiff sustains special damages by the closing of said highway, alleging that she and her servants were unable to get upon this land owned and occupied by her without additional labor, trouble and expense.

That the track used by her to reach her buildings is useless unless extended at least thirty rods, and that the plaintiff was obliged and compelled to go on her premises from said highway at another point in said highway, and that to make and prepare new track for her travel she would be put to a large amount of trouble and expense; and she avers she suffered'damage by reason of said obstructions to the amount of fifty dollars, and she also avers that the point at which she left the highway to reach her buildings was more convenient and suitable for her use, and that she was compelled to travel at least thirty rods further upon and across her lands and premises to reach the, public highway, and tread down and destroy the grass by reason of said nuisance and obstructions caused by the defendants.

The complaint contained a prayer for a decree that the defendants and their servants be enjoined and commanded to abate said, nuisance, and remove said obstructions and each and every of them; and that the defendants or their agents * * * and all persons claiming under or through, them, or either of them, be forever enjoined and restrained from maintaining said nuisance or obstructions in any way or manner whatever, * * * and commanded the defendants to remove the same at once and restore this highway to the use of the plaintiff and the public, as it was prior to the acts of the defendants; and she also prayed for other or further relief. (Van Brunt v. Ahearn, 13 Hun, 389; De Laney v. Blizzard, 7 id., 7; S. C., Id., 66; Knox v. The Mayor, 55 Barb., 404; Hutchins v. Smith, 63 Barb., 251.)

It may be assumed in January, 1874, when the several conveyances were executed for the premises lying westerly and of the premises lying easterly of the highway'in question, that the several grantees were familiar with the actual location of the highway, and that the several deeds were taken with a knowledge of the actual location of the highway. Language found in the deeds is sufficient to show that the parties adopted the highway as the boundary line. (Rich v. Rich, 16 Wend., 663; Van Wyck v. Wright, 18 id., 157; Drew v. Swift, 46 N. Y., 204; Buffalo, N. Y. and E. R. R. Co. v. Stigeler, 61 id., 348 ; Lawrence v. Palmer, 71 id., 607.) The conveyance in referring to the highway in question as a boundary, used the following language; viz.: “ The highway leading through said premises from Merrill’s to Scutts’.” We think the recital of the existence of the highway and the evident intention of the parties to adopt it as a boundary, are sufficient to estop the grantees or parties holding under them from. denying the existence of the highway and from claiming the boundary line otherwise than as stated in said deeds. (Sinclair v. Jackson, 8 Cow., 586; Torrey v. Bank of Orleans, 9 Paige, 649 ; Jackson v. Hasbrouck, 3 Johns., 331.) Appellants insist that they were authorized to change the location of the highway by' virtue of a parol agreement, authorizing such change of location. We are of the opinion that the position taken by the appellants in that regard cannot be sustained.

First. If the parol agreement was made prior to the execution of the deeds, in the absence of any averment of mistake in respect to the deeds, and in the absence of any reformation of them, it must be held that the deeds are controlling evidence in respect to the intentions of the parties; and that if any parol agreement existed at the time of the execution of the deeds it was the intention of the parties that the same should be abandoned and their several undei*etandings in respect to the boundary line merged in the written conveyance. If the parol agreement was made subsequently to the execution of the deeds, then the same was void under the statute of frauds as it related to an interest in real estate. (Marie v. Garson, 13 Abb. N. C., 210.)

Construing the agreement, if made as the defendants claim, it amounted at most to a consent on the part of the owner of the land upon the west side of the highway; that such portion as was necessary for a new road should be dedicated to the public or sold to the owners of the land on the west side for the stipulated price of eighty dollars. At law, such an agreement would be void because not in writing. In equity it must be treated as void because it lias not been executed and performed, unless it appears that it would be a fraud to allow the validity thereof to be questioned. Before such an agreement should be enforced in equity it must be made to appear that there has been a full performance upon one part, relying upon the existence of the parol agreement. Here it appears by the evidence that the eighty dollars never was paid. It appears that, in an interview held with the defendant Van Sehoyk, he at one time asserted that the consideration price was fifty dollars, and in that interview he declined to pay the sum of eighty dollars. While he was making changes he was notified that the parol agreement, as claimed by him, was repudiated.

We think there was no acquiescence or assent on the part of the plaintiff or her predecessor which should estop her from questioning the validity of the supposed parol agreement. (Hutchins v. Smith, 63 Barb., 259 ; Vosburgh v. Teator, 32 N. Y., 561; Ambler v. Cox, 13 Hun, 295; Williams v. Montgomery, 16 id., 50; Wheeler v. Reynolds, 66 N. Y., 221.)

We are of the opinion that the plaintiff established such an interest in the highway and the use thereof as authorized her to maintain an action to have the obstructions placed therein by the defendants removed, and to authorize her to recover such damages as she specially sustained by reason of the existence of the obstructions and nuisance caused by the defendants.

We think a proper case was made out for the interference of a court of equity. The obstructions were a continuing nuisance and •she had a right to come into a court of equity and invoke its restraining powers and thus prevent a multiplicity of actions, and she ought to be permitted to recover her damages incidental to the equitable relief. (Williams v. N. Y. C. R. R. Co., 16 N. Y., 111; Corning v. Troy Iron and Nail Factory, 40 id., 191; Davis v. Lambertson, 56 Barb., 480.)

We think it is no answer to the plaintiff’s ease or any part thereof to say that the plaintiff might have maintained actions of trespass against parties crossing her lands over the newly located road. Such a course would necessarily give rise to a multiplicity of actions and the occasion for such actions might continue for a long period of time, and the plaintiff might find her relief in courts of law inadequate.

We think the plaintiff made out a case for the equitable relief which was given to her at the Special Term, and as we have before said, the complaint was a suitable one in equity.

Bockes v. Lansing (74 N. Y., 437), cited by the appellants in support of the position that it is not competent for a court to determine the rights of parties to real estate in dispute, when not within the issue, does not aid him. In that case it was said that under a complaint framed solely for equitable relief the court was authorized to give a judgment as in ejectment in an action at law.

We think the complaint in this case, together with the defendant’s answer, clearly brought the matters referred to in the decision pronounced at Special Term within the issues framed by the parties. (Lattin v. McCarty, 41 N. Y., 107.)

It is insisted that the judgment should be reversed because it goes beyond the scope of the complaint and grants relief not demanded. It may be observed that the complaint, in our judgment, was sufficiently broad to justify the relief given under it. The specific relief was demanded in a prayer or a general clause asking for such other or further relief as the court should deem just and proper.

Again, after a defendant has appeared and answered, the prayer of the plaintiff’s complaint is not the exact limit of the relief which may be given. It is declared in section 1207 of the Code of Civil Procedure, viz.: Where there is an answer the court may permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issue.”

We think there is no force in the objections made by the appellants to the findings of the court in respect to special damages. It is averred in the complaint that she has sustained special damages by reason of having been obliged to travel further across her lands in consequence of the obstructions put upon the highway by the defendants. Such facts are found. While there is no evidence measuring the extent of the damages which plaintiff has suffered, it is unimportant to suppose that the award of damages in this case is only nominal, and that damages she has sustained in consequence of the obstructions certainly ought not to be measured in a less sum than six cents as stated in the findings of the court below, because it incidentally appeared in the findings that by the opening of the new road parties, have committed trespass on plaintiff’s lands, and she has sustained damages thereby. The award of six cents for placing obstructions across the highway is not shown to be excessive.

Our views, as already expressed, lead us to sustain the decision of the learned judge at Special Term. Our' attention has been called to some exceptions in the course of the trial and refusals to find, and we have discovered no error calling upon us to interfere with the decision below. This being an equitable action, this court is called upon to disregard any error occurring in the course of the trial, if it “is of’ the opinion that substantial justice does not require that a new trial should be granted.” (Code of Civil Procedure, § 1003; Henderson v. Fullerton, 54 How., 422.) We are of the opinion that a new trial ought not to be granted.

■Judgment affirmed, with costs.

Boardman and Foli/ett, JJ., concurred.

So ordered.