author: A. D. Wait, Referee. Herrick, J.

text:
    The Second Methodist Episcopal Church in Greenwich, Resp’t, v. Sarah Humphrey, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Religious corporations—Proof of incorporation.
    Where the original certificate of incorporation of a religious corporation is lost and cannot be produced, a duly certified copy of the record thereof is admissible.
    3. Same—Acknowledgment of certificate.
    It is sufficient that the official character of the officer who took the acknowledgment appears in the body of the certificate.
    3. Same.
    An acknowledgment before a commissioner of deeds has the same force and validity as if taken before one of the officers named in the act of 1813.
    4. Ejectment—Adverse possession.
    In 1845, plaintiff, claiming to have purchased certain land from one D., erected a church thereon, and in 1856 erected fences around the premises, and remained in possession until 1888, when defendant, claiming under a

      deed from a grantee of D.’s son, ousted it by erecting fences so as to exclude it from all but the church edifice. The deed to defendant’s predecessor described the entire D. plot, ‘ ‘ except a small lot sold off from the southwest corner of the above described premises to the Methodist E. Church.” No deed was given to plaintiff until 1882. Held, that the title to the premises in question did not pass to defendant’s predecessor under his deed, and that plaintiff had title by adverse possession.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee.
    Action of ejectment.
   The following is the opinion of the referee :

A. D. Wait, Referee.

It is alleged in the complaint that the plaintiff is a corporation, duly organized under and by the laws of the state of New York, and pursuant to an act of the legislature of said state, entitled “ An act to provide for the incorporation of religious societies,” passed April 5, 1813, and the several acts amendatory thereof.

By the answer this allegation is denied, and it is further averred • therein, upon information and belief, that the plaintiff is not and never was duly or'legally-organized or incorporated under and in pursuance of the laws of the state of New York, or the act to provide for the incorporation of religious societies.

It was, therefore, necessary that the plaintiff should prove upon the trial the existence of the incorporation substantially as alleged. Code, § 1776.

This requirement of proof on the part of the plaintiff was, as I conclude, fully complied with; and the evidence given on the subject proved the existence of the corporation as alleged in the complaint.

The original certificate of incorporation was, it seems, lost, and •could not be produced on the trial. A copy of the record thereof, ■duly certified by the clerk of the county, was, therefore, properly admitted m evidence.

It appears therefrom that the certificate of incorporation was dated December 2, 1833, at Battenville, in the town of Greenwich, and was duly acknowledged before Wm. McNeil, a commissioner of deeds in and for the county of Washington, on the 13th December, 1834, and recorded in the office of the clerk of that county August 10, 1835.

The official character of the officer who took the acknowledgment appears in the body of the certificate, but not in the subscription thereto. That is sufficient. 15 Abb. N. C., 241; 14 id., 452, and cases cited in note.

And such certificate of incorporation, so acknowledged before a commissioner of deeds (authorized to take acknowledgments in proof of conveyances of real estate), is to be regarded, in this action, to be of the same force and validity as if it had been proved before one of the officers named in the first section of the act of 1813, providing for the incorporation of religious societies. Laws of 1844, chap. 158.

It appears from the evidence that ever since the recording of said certificate the religious society referred to therein has been kept up and continued as a religious society at Battenville, in the town of Greenwich, acting as a corporation and known as “ The Second Methodist Episcopal Church of Greenwich,” as designated iii said certificate.

The evidence in the case is ample to prove the legal incorporation of the plaintiff as a religious society. 3 Rev. Stat. (8th ed.), 1884, § 3 ; Vielie v. Osgood, 8 Barb., 131; M. E. Ch. v. Pickett, 23 id., 436; affirmed in Ct. Appeals, 19 N. Y., 482; Remington Paper Co. v. O'Dougherty, 65 N. Y., 570; The Trustees N. Y. Lutheran Ch. v. Bly, 73 N. Y., 323 ; Lynch v. Pfeiffer, 110 N. Y., 33; 16 St. Rep., 718.

All the allegations of the complaint are controverted by the answer. It is also alleged therein that ever since December 3, 1881, she (the defendant) has been the owner of and in possession of so much of the premises described m the complaint as is claimed therein to have been withheld from the plaintiff.

Does the evidence sustain the allegations of the complaint as to the title and right of possession in plaintiff the of premises in dispute, so that the plaintiff is entitled to the judgment demanded for the recovery of the possession thereof from defendant.

Both parties claim under a common source of title, one Osmer Dixon.

The evidence shows that in 1845 said Osmer Dixon was the owner in fee and in the possession of a small piece of land (about two roods) in Battenville, Washington county, R. Y., on which there was standing a dwelling house, in which he, Dixon, resided and continued to reside until his death.

That in the southwest corner of this land there was a building which had been used as a wagon shop prior to 1844 by one Caleb Sherman, from whom Dixon derived title to the land in 1844, 1845.

Soon after Dixon acquired title to the land (in 1845 or 1846) the plaintiff entered into possession of said wagou-shop building and repaired and fitted it up as a house of worship, or church, claiming to own the same as purchaser from said Dixon, together with the land on which the building stood, and a small strip of land contiguous on the northeast side and rear of said building (about one-half rood in all), and being the premises described in the complaint

The plaintiff claimed to have bought said small tract of land of said Osmer Dixon and to have paid him therefor, and to own the same by reason thereof. But it does not appear that said Dixon ever executed a deed of the same to the plaintiff.

The plaintiff continued thereafter in the possession and use of said land and building for church purposes and as the owner thereof until dispossessed in August, 1888, by defendant of that portion of said lot in controversy in this action.

Osmer Dixon died February. 10, 1849, intestate, leaving him surviving a son, Phineas Dixon, his only heir, born September 18, 1844.

Prior to the death of Osmer there had been no fence built around the church lot so as to separate the same from the residue of the Dixon land.

In 1856 or 1857 the plaintiff caused the .same to be surveyed in accordance with its claim of purchase and ownership, as above stated, and built a substantial picket and board fence along the northeast side and in rear of the church, on the lines of such survey, so as to enclose its lot and separate the same from the rest of said Dixon land.

Such fence so built by the plaintiff, enclosing said lot, was kept up and maintained by the plaintiff continuously thereafter for more than twenty years, and until some time in the year 1878. During all of that time the said lot was protected by the plaintiff by a substantial enclosure, and the plaintiff was in the actual, continued occupation of said premises under a claim of title as purchaser of same from said Osmer Dixon as aforesaid.

And the said plaintiff has been, ever since the said lot was so surveyed and fences built, in the exclusive and actual occupation continuously of said church building and in the possession of all of the residue of said lot for church purposes, until the plaintiff, in August, 1888, was excluded from that part of the lot by the defendant to recover the possession of which this action was brought.

After the death of Osmer Dixon and during the minority of his son Phineas, that part of the Dixon land not embraced in the church lot was rented from time to time to different persons by one Eichards, who had the charge and control of the same as the guardian of Phineas.

Eichards resided about two and one-half miles from Battenville, and was frequently there. Phineas lived with him until he became of age, Sept. 28th, 1865, when he assumed the control of said premises and had the possession thereof in person or by his tenants up to March 31st, when he conveyed the same to one Hyatt

Up to that time the plaintiff had in no way been disturbed in its possession, which was open, notorious and exclusive, ann its right thereto, and to the possession as owner of said lot had not been questioned by anybody, in any way.

Did Phineas Dixon intend by the deed to Hyatt to convey such church lot or any part of the same ? What was the understanding, at the time, of both parties to the deed as to the land conveyed therein ? Did that deed assume to convey the lot or any part of it thus occupied or known as the lot sold to the plaintiff 7

The description of the premises in the deed includes the church lot, and it was granted thereby, unless it is saved and excluded by the exception in the deed, which is in these words: “ Except a small lot sold off from the southwest corner of the .above described premises to the Methodist E. Church.”

To determine what premises were included in the exception, and so excluded from the grant, it is proper to construe that exception in view of the surrounding circumstances. Green v. Eldred, 66 N. Y., 611. All grants in consequence are supposed to be made with reference to an actual view of the premises by the parties thereto. Wendell v. The People, 8 Wend., 183-190 ; 61 N. Y., 348, 350, per Lott, Ch. C. Facts existing and known to the parties at the time may properly be considered m aid of the interpretation of the language of the exception. Dent v. The North Am. S. Co., 49 N. Y, 390; Clark v. Wethey, 19 Wend., 320; Cronk v. Wilson, 40 Hun, 269 ; N. Y. Steam Co. v. Stern, 46 Hun, 206, 209; 11 St. Rep. 496. Oral evidence is competent to ascertain the intention of the parties as expressed in the writing. Coleman v. Manhattan Co.. 94 N. Y., 229, 232.

The court is permitted to place itself in the position of the parties at the time when the deed was executed and to consider the attendant circumstances in aid of its interpretation.

Thus looking at the description in this deed and the exception therein, I have no doubt that it was the intention of the grantor, when he executed the deed, to convey only that portion of the land of which he was then in the actual occupation, and to except and exclude from the grant the lot of land of which the plaintiff was in the occupation, as hereinbefore stated, under claim of ownership by sale from the father of the grantor.

The land thus intended to be excepted was, in fact, a “ small lot” in the “southwest” corner of premises described in the deed. And there is no pretense of a sale of such lot to any one but the plaintiff. And the words Methodist E. Church ” therein referred to mean the plaintiff.

It will be perceived that such “ small lot ” is referred to in the exception in the deed as if it were a well-known lot, a part or division of a larger parcel that was well known to the parties, both grantor and grantee.

It may well be inferred that both parties to the deed, at the time it was drawn and executed, understood and believed that the “ small lot,” then in the actual occupation of the plaintiff, had been “sold” by Phineas Dixon to the plaintiff, and belonged to it and that it was the intention of both parties to except and exclude the same from the conveyance. And that they then both understood it was not included in the deed, but was expressly excluded by the description and exception in the deed.

Courts are required by the long established rules with reference to the construction of descriptions contained in conveyances, to adopt such an interpretation thereof as shall give effect to the instrument according to the intention of the parties—if that is discoverable from legitimate sources of information. Per Ruger, Ch. J., Brookman v. Kurzman, 94 N. Y., 276.

I must, therefore, hold that no part of the premises described in the complaint passed by the conveyance from Dixon to Hyatt, but the same and the whole thereof was excepted and excluded therefrom.

Hyatt, the grantee, after the execution of said deed, went at once into the possession and occupation of that portion of the premises described in the deed which was conveyed to him thereby, in accordance with such construction of the deed. And he continued to own and occupy that part of said premises from that time until about 11th March, 1881, when he conveyed the same to one E. J. Burroughs.

Burroughs, on the 1st September, 1881, conveyed the same premises to Clementine Kenyon, and she, on the Sd of December, 1881, deeded the same to the defendant in this action in pursu- ' anee of a contract for the sale thereof to defendant made by Burroughs while he owned the land, as appears by a recital in the deed from him to said Clementine Kenyon.

The premises are described in each of said deeds in the same way.

_ During the whole period of time that Hyatt owned and occupied the land conveyed by him to Burroughs, from March, 1868, to March, 1881, he always recognized and considered the lot occupied by the plaintiff as described in the complaint as rightfully belonging to the plaintiff, and never made any claim to the contrary.

He was sworn as a witness on the trial and so testified in substance.

It does not appear that any claim to the premises described in the complaint, or any part thereof, was ever made by any one hostile to the claim or right of the plaintiff thereto before the deed from said Kenyon to the defendant -was executed and the claim made therefor by the defendant under said deed.

It follows that, under my construction of the deed from Dixon to Hyatt, the defendant did not obtain any right or title to the premises described in the complaint, or any part thereof, under the deed to her from Kenyon.

Her subsequent acts of ownership and .possession upon the premises in dispute, ending in building the fences thereon so as to exclude the plaintiff wholly therefrom and withholding the possession thereof from the plaintiff, were all unauthorized and unlawful.

Upon the trial the defendant’s counsel upon the cross-examinatian of the plaintiff’s witnesses, Carswell and Parks, elicited that some time in 1882, when defendant was living upon the premises conveyed to her by Kenyon, in the old Dixon house, Phineas Dixon had executed a deed of the premises claimed by plaintiff to the plaintiff. That such deed had been procured by the trustees of the plaintiff and its minister, one Brown. That Brown on their part, or for the plaintiff, went to the residence of Dixon at Schuylerville and there drew up the deed and had it executed and put on record. And defendant’s counsel further showed by the defendant, as a witness on her part, that in 1882 the trustees of plaintiff and said minister and others with them came to the premises with a surveyor to survey the same and build a fence, and that on that occasion Brown asked to see her deed, and she testified : “ I then asked him to let me see theirs. I showed my deed and they showed theirs, something they called a deed from Phineas Dixon, and I told them it was no good.”

' Upon her cross-examination plaintiff’s counsel produced a deed from Phineas Dixon and wife to Walsh and others, trustees, and dated 6th October, 1882, and recorded in Washington Co. the 14th October, 1882, and offered the same in evidence, stating that it was offered to show description of the premises and not for purpose of showing title, and the same was received and marked in evidence without objection.

The defendant was then further cross-examined in regard thereto and testified that this was the same deed that was produced and exhibited to her by Mr. Brown, the minister, as stated by her on her direct examination.

Defendant’s counsel further showed on re-cross-examining the witness, Carswell, on the subject of said deed, that the subject of getting the deed from Dixon was spoken of by the trustees and others of the plaintiff’s church, and they arranged for and obtained the deed of Dixon and had same recorded.

The plaintiff had no documentary or paper evidence of title except such as is contained in the deed from Dixon to Hyatt and the same deeds alluded to under which the defendant claims. This deed was doubtless procured to further assure and perfect the plaintiff’s title to the property, as the trustees or minister conceived.

It is insisted by defendant’s counsel that this deed is void under the statute. 3 B. S., 7th ed., 2196, § 147. I do not think it is void, inasmuch as at the time of the delivery thereof the lands described in it were not in the actual possession of a person claiming under a title adverse to that of the grantor.

The deed was procured to be executed for the plaintiff by its ministers, trustees and adherents.

The persons named and described in the introductory part of the deed as ministers of the “ Methodist Episcopal Church ” were at the time trustees of the plaintiff, and the words Methodist Episcopal Church ” were used as descriptive of the plaintiff, the intended grantee. Any attempt to assert title by the persons named therein as trustees, individually, or by anyone claiming under them in hostility to plaintiff, could not succeed. Pitcher v. Hennessey, 48 N. Y., 423.

The words “ Methodist Episcopal Church ” in the deed could be explained by extrinsic and paroi evidence and shown to have been used to designate the plaintiff. And in equity the intention of the parties would be carried out, although uncertainly or ambiguously expressed.

And thus any claim of title to the premises under that deed antagonistic to plaintiff, could be met and overcome. Lee v. M. E. Ch., 52 Barb., 116, and citations on pp. 123, 124.

The plaintiff in this action must move upon the strength of its own title. And, therefore, it could not prevail if the evidence in the case showed that at the time when this action was commenced there existed an outstanding title to the premises as contrary paramount to that of the plaintiff, although the evidence did not show the defendant in any way connected with such title.

But such outstanding title must appear to be a present, subsisting and operative title, on which the owner could recover if asserting it by action. Wait’s Actions and Defenses, 3 Vol., 109, u. A subsisting and available title in a stranger, on which the owner might recover in ejectment. Hoag v. Hoag, 35 N. Y, 469, 473.

The right of entry or action by Phineas Dixon, though not barred by plaintiff’s adverse possession, 6th of October, 1882, did not survive to him, or any one else in hostility to plaintiff, the execution of the deed by him to Walsh and others of that date. It was then and thereby terminated.

In my opinion the evidence in the case establishes title in the plaintiff at the time of the commencement of this action, by adverse possession, to the premises described in the complaint, and the whole thereof, and the right to recover of the defendant the possession of the portion of the premises withheld by her, as alleged in the complaint.

Such title is equally strong as though obtained by grant. Sherman v; Kane, 86 N. Y., 57, 64, 65.

And such title is not impaired because after such title had fully matured the most of the fence which the plaintiff had built enclosing the lot in ’56 or ’57 gradually decayed - and fell down, and was removed and not rebuilt

Even if the plaintiff had, since the maturing of its title, made no use whatever of the land and had permitted it to remain unfenced and vacant, its title would have been good nevertheless. It would in such case be deemed by its title, as in fact, in the constructive possession of the lands, exercising a right over it by permitting the same to remain vacant, and in this form its possession would continue the same as if by its agents or tenants it was in the actual occupation of the premises. Opinion of the court, per Miller, J., Sherman v. Kane, supra, 65; Mayor of N. Y. v. Carleton, 113 N. Y, 285, 292; 22 St. Rep., 625.

The plaintiff should have judgment accordingly.

Smith & Parmenter (R. A. Parmenter, of counsel), for app’lt; Gibson & Van Kirk (C. C. Van Kirk, of counsel), for resp’t.

Herrick, J.

I can see no reason for writing an opinion in this case; the referee has discussed the questions involved at some length, and I concur with him in the result he arrived at, and in the main with his reasoning.

Judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    Charles L. Blakeslee, App’lt, v. Samuel T. Fisher, Impl’d, Resp’t

      (Supreme Court, General Term, Third Department,

      Filed December 8, 1892.)

    1. Mechanics’ lien—Contract—Building—Completion by owner.
    A building contract contained a provision allowing the owner to complete the work in case of the contractor’s default, and deduct the expense from the contract. Held, that after making such deduction the balance, if any, would be payable to the contractor.
    3. Same.
    Such contract contained the provision that should the owner, during the progress Of the building, request any alterations or additions from the contract, he 'should be at liberty to do so, and that it should not 'affect the contract, bat fee added to or deducted from the amount^ of the same at a fair valuation. Slxtr'a work Was done 'tt> the amount of $335', but work Under the-contract 'to- the laeaeuilt ©f «$1:31 Was left undone. A sub-contractor filed a mechanic’s lien upon the property, andan action was brought to foreclose the same. Held, that the difference between the value of the extra work and the work unfinished, should be applied in satisfaction of the lien.
    Appeal from a judgment entered upon the report of a referee, adjudging plaintiff’s lien against certain real property of the defendant, Samuel T. Fisher, void, and of no effect, and dismissing plaintiff’s complaint upon the merits as to the defendant, Samuel T. Fisher, with costs.
    Action to foreclose a mechanic’s lien filed by plaintiff, a subcontractor.

      Pratt & Logan, for app’lt; Edward W. Nugent, for resp’t..
   Herrick, J.

I think the referee erred in his conclusion in this case. Under the contract the owner could go on and complete the work if the contractor refused or neglected to do so, and deduct the expenses from the amount of the contract

If, after doing so, there is a balance left, or if the owner does not choose so to do, then after deducting what it would cost to complete the work from the contract price there is a balance left, I think the lienor is entitled to that balance. Wright v. Roberts, 43 Hun, 413; 6 St. Rep., 769; affirmed without opinion in 118 N. Y., 672; 28 St. Rep., 980; Foshay v. Robinson, 43 St. Rep., 20 ; Graf v. Cunningham, 109 N. Y., 369; 15 St Rep., 524; Van Clief v. Van Vechten, 130 N. Y, 571-581; 42 St. Rep., 736.

The last case was one where the owner had gone on and completed the contract upon the default of the contractor, and the court said: “The difference between the sum thus expended and the aggregate amount unpaid on the contract with Smalle, upon completion of the entire work, became due under the contract; to the extent of that sum, being the difference between $2,023 and $1,905.20, the lien of the plaintiffs attached, and they are entitled to a foreclosure for that amount.”

In Larkin v. McMullin, 120 N. Y., 206; 30 St. Rep., 902, and Hollister v. Mott, 132 N. Y., 18; 42 St. Rep., 848, there was not a substantial compliance with the contracts, and neither was there any provision in the contracts by which the owners could complete the contracts in case of the contractor’s default; and in those respects the cases are distinguished from those heretofore cited, the principles of which are recognized in both the Larkin and Hollister cases.

In the case before us, as we have seen, there was an express provision allowing the owner to complete the work in case of the contractor’s default, and deduct the expense from the contract; the plain inference from that, it seems to me, is, that after making such deduction the balance, if any, would be payable to the contractor.

The fact that the owner has not seen fit to exercise his option to go on and do w'hat he claims tire contractor refused or neglected to do, seems to me to make no difference in principle, where the expense of doing the things, not dene can be ascertained. In this, case the referee has found the specific things that the contractor refused or neglected to do, and: the- dost or expense of each item, and after deducting such cost or expense from the contract price there is a balance left, and to that balance I think, under the principles of all the cases hereinbefore referred to, the plaintiff is entitled.

There is also another aspect of the case under which I think the plaintiff is entitled to recover.

The referee has found that the plaintiff has not substantially performed his contract, a conclusion in which I cannot concur, but which I will not discuss, but assume to have been correctly found, and the final decision arrived at by him is based upon that conclusion, that the contract not being performed by the contractor there is nothing due him from the owner, and that there being nothing due the contractor there is nothing to which the lien can attach.

The contract price was $2,700. The referee has found that $2,509 was paid upon the contract. That by consent of the owner work amounting to the sum of $102.69 has not been performed by the contractor, and that work amounting to the sum of $59.25 has been left unperformed without the consent of the owner.

Therefereehas also found that the contractor has performed extra work to the amount of $235.99. The contract contained this provision as to extra work : “ Should the owner, at any time during the progress of the said building, request any alterations, deviations, additions or omissions from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added to or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.”

An almost identical provision in a contract was passed upon in Garnsey v. Rhodes, 45 St. Rep., 145, and it was there held that the contractor could recover the value of the extra work, although he had not completed the contract according to its terms.

The amount of the extra work is money due the contractor. Woodward v. Fuller, 80 N. Y, 312. In this case it is money due over and above all payments made, and over and above deductions to be made on account of work omitted to be done both with and without the consent of the owner; and it is money that can be and should be applied in satisfaction of the lien.

For these reasons the judgment should be reversed, the referee discharged, and a new trial granted, costs to abide the evenk

Mayham, P. J., and Putnam; J., concur.


text:
    John H. Post et al., App’lts, v. David Charlesworth, Impl’d, Resp't

      (Supreme Court, General Term, Third Department,

      Filed December 8, 1892.)

    Attorneys—Unauthorized appearance—Liability for.
    An action for partition was commenced in the name of P. and wife as plaintiffs, the latter having only an inchoate right of dower in the premises. On the trial judgment was rendered for defendant, with costs, and entered up against both plaintiffs. Thereafter Mrs. P. applied in the ssime

      action at special term, alleging that she never had any knowledge that she was a party to the action until execution Was issued, and never employed or requested the attorneys of record to appear for her, and asked that the judgment against her be set aside. The attorneys of record were served with an order to show cause why the judgment should not be set aside as to Mrs. P., and they required to pay the same. They did not appear, but one of them wrote the judge that they were requested to appear for Mrs. P. by her husband, which he denied by affidavit. Held, that if the judgment could not be collected of P., the attorneys who appeared for Mrs. P. should pay the same.
    Appeal by Mary E.-J?ost, one of the plaintiffs, from an order of special term denying her motion made to vacate the judgment entered against her for costs of the action, in favor of defendant Charlesworth, or to require the attorneys who appeared for her in the action to pay such judgment.

      George E. Phillips (Westbrook & Borst, of counsel), for app’lts Frank B. Towman, for resp’t
   Herrick, J.

An action for the partition .of real estate was-commenced in the name of John H. Post and Mary E. Post, his. wife, as plaintiffs, Mary E. Pest having only an inchoate right of dower in the premises sought to be partitioned. The action was commenced and prosecuted by attorneys of this court in the-name of both plaintiffs. On the trial the plaintiffs failed to maintain their action, and the defendant, David Charlesworth, had judgment dismissing plaintiffs’ complaint with costs and disbursements, and judgment for such costs and disbursements was entered up against both plaintiffs.

Thereafter Mary E. Post applied in the same action to a special term of this court, alleging that she never had any knowledge-that she was a party to said action until an execution was issued upon the judgment; that she never authorized anybody to make her a party to said action; that she never employed or requested the attorneys of record to appear for her in said action, or do anything for her in respect thereto; that she was made a party “ without her consent, authority, knowledge, or request; ” and she asked that the appearance of the said attorneys of record for her in the action be vacated and set aside; that the name of Mary E. Post as a party plaintiff in the action be struck out; that the decision and judgment against her be vacated and set aside, and be can-celled of record; and that she may have such further order or relief as the court may grant.

Upon the motion coming on to be heard the attorney for the-defendant Charlesworth objected to the hearing of the motion upon the ground, among others, that the attorneys who had appeared for Mary E. Post in the action were not parties to the motion and did not appear. Thereon the special term thereupon made an order that, upon the moving affidavits and notice of motion, together with the affidavit that such objection had been made, the said attorneys show cause, at a special term designated in the order, why they should not be made parties to the motion and application stated in the notice of motion and be heard and be bound by the-disposition thereof by the court, and why. if the judgment and execution should not be set aside as to Mary E. Post, the said attorneys should not be ordered, directed and required to pay the same. The affidavits, notice of motion and order to show cause were served upon the attorneys who appeared for her in the' action. These attorneys do not appear to have been represented before the special term, neither did they appear before this court upon the appeal, although the record shows that notice of the appeal was directed to them; a letter however was sent by one of the firm to the justice holding the special term, in which it was stated that they appeared for Máry E. Post “ at her husband’s request and supposed it was all rightthe writer further stated, “ Now, I do not object to the judgments being vacated, but I do strenuously object to being compelled to pay it” One of the moving affidavits served upon such attorneys was an affidavit of the husband of Mary E. Post, in which he expressly swears that he never authorized or directed said attorneys to use the name of his wife as a party plaintiff, and did not know or understand that she was a party plaintiff until after the trial of the action.

The special term denied the motion ; for what reason does not appear.

The appellant adopted the proper practice to obtain the relief sought.

“ It has become the settled practice in this state that relief against a judgment rendered against a party upon the unauthorized appearance of an attorney in his name is to be sought in a direct application to the court by motion in the action in which the unauthorized appearance was entered. Vilas et al. v. P. & M. R. R. Co. et al., 123 N. Y., 450 ; 34 St. Rep., 67. The judgment' is regular. For reasons of public policy the court holds the appearance good. Sperry v. Reynolds, 65 N. Y, 183; Ferguson v. Crawford, 70 id., 256; Vilas v. P. & M. R. R. Co., 123 id., 441; 34 St Rep., 67.

The court, in the exercise of its powers over its own judgments, where judgment has been obtained against a defendant who has been represented upon the record by an unauthorized appearance of an attorney of the court, has opened the case and allowed such defendant to come in and defend, allowing the judgment to stand as security to the plaintiff. Denton v. Noyes, 6 Johns., 297.

There is no reason, however, why the court should exercise its power in that respect in this case, because to do so would be of no benefit to the appellant; she has no action to defend, nothing to litigate, except the question whether she was represented by an attorney and made a party plaintiff by her consent When the attorney appearing for the plaintiff without authority was insolvent, the execution has been set aside and all proceedings against the plaintiff perpetually stayed Campbell v Bristol, 19 Wend., 101.

But here it appears that the attorneys are pecuniarily responsible. Hence, both parties can be protected.

The appellant has her remedy for damages against the attorneys who appeared for her without authority. Hamilton v. Wright, 37 N. Y., 502-4; Ferguson v. Crawford, 70 id., 253-6; Vilas v. P. & M. R. R. Co., 123 id., 441-50; 34 St. Rep., 67.

But is that her only remedy ? She asks the court that, in the event it concludes not to vacate and set aside such judgment, that it direct the defendant to make good his judgment out of the property of the plaintiff, John E. Post, and if that is insufficient, that the attorneys who appeared for her be directed to pay the same.

The question for us is, then, whether the appellant shall be compelled to pay this judgment and then resort to an action against the attorneys to recover her damages, or whether relief can and shall be granted to her on this motion.

In the case of Vilas v. P. & M. R. R. Co., supra, the court said : “ Under our system of procedure relief on motion is administered upon equitable as well as legal principles. In ordinary cases, where relief is sought against a judgment on the ground that the appearance of an attorney was unauthorized, the right of the parties can be as fully presented and as carefully adjudged on a motion as in an action.”

While that was said in discussing the question as to whether the proper procedure to vacate a judgment was by action or motion, it seems to me that it is equally applicable to the question-whether the party, in seeking his remedy against an attorney for an unauthorized appearance, should be compelled to commence an action, or whether, in a proper case, it can and should be granted upon a motion such as this. If the court can protect all parties who have any rights in the premises without driving them to the annoyance, trouble and expense of an action, it should do so.

This court is to a certain extent responsible for the actions of the attorneys upon its rolls; as was said in Sperry v. Reynolds, 65 N. Y., 179-183.

“ They are, in a certain sense, officers of the court and, to a certain extent, are under the control of the courts, which can exercise a coercive power over them ; and the court can, in the action in which an unauthorized appearance has been put in, give a party such relief against it as he ought to have; ” and again in the case of the American Insurance Co. v. Oakley, 9 Paige, 497, it was said that “where the adverse party has acquired rights, or been subjected to costs, by proceedings m the name of a party who afterwards denies the authority of the* attorney or solicitor who has thus proceeded, the courts are in the habit of permitting the proceedings to stand, where the attorney or solicitor is a responsible man; and leaving the party injured by such unauthorized proceedings to seek bis redress against such solicitor or attorney by a summary application to the court or otherwise.”

It seems to me that the court has power, in a proper case, to make the attorney who has appeared without authority save the party for whom he appeared harmless.

Should it be done in this case? From the record before the court it seems to me that the attorney had no authority to appear for the appellant. She swears she gave no authority or consent, and had no knowledge of it or that she was a party; her bus-band, the other plaintiff of record, swears that he did not authorize the attorneys to appear for her or to make her a party plaintiff ; opposed to these affidavits is the unverified letter of one of the attorneys, saying the appellant’s husband authorized them to ‘appear for her, and that they supposed it was all right.

The court cannot disregard the sworn affidavits of parties and take the unverified statement of an attorney in preference thereto simply because he is an officer of the court.

The attorneys were notified of this application. Notice of motion and the moving affidavits were served upon them, together with the order directing them to show cause why they should not be compelled to pay the judgment if the court refused to vacate it. The letter sent to the court shows that they thoroughly comprehended the nature of the application, and that they were in danger of being compelled to pay the judgment The writer says: “ I do not object to the judgment being vacated, but I do strenuously object to being compelled to pay it” Vei*y natural on his part, but it affords no relief to any one concerned except the attorneys who have caused the trouble. No other objection or defense to the motion is made by them; they appeared neither at special term or before this court.

The plaintiff who did authorize the attorneys to appear for him should of course pay the judgment; if the defendant cannot collect it of him, then I think it a proper case for the court to direct that the attorneys who have appeared without authority should pay the same, together with the costs of this application.

Let an order be entered accordingly, with ten dollars costs and printing and other disbursements to both parties to this appeal.

Mayham, P. J., and Putnam, J., concur.


author: Mayham, P. J.

text:
    Rudolphus W. Anderson, App’lt, v. Benjamin Young, Resp’t

      (Supreme Court, General Term, Third Department,

      Filed December 8, 1892.)

    Nuisance—Highways—Barbed wire fences.
    In an action to recover damages sustained by plaintiff’s horse being injured by coming in contact with a barbed wire fence built by defendant along the side of a highway, plaintiff claiming that the fence was a nuisance and within the limits of the highway, and defendant that the fence was proper and without the highway’s limit, the evidence as to whether the fence was within the bounds of the highway was conflicting, but there was no conflict as to the injury of the horse. At the conclusion of plaintiff’s evidence defendant moved for a non-suit, which was granted. Held, that if as a matter of fact the highway had been narrowed by the fence it would be a nuisance, and that, therefore, that question should have been left to the jury.
    Appeal from a judgment entered upon a non-suit granted by a justice at circuit.
    Action to recover damages sustained by plaintiff’s horse being injured by coming in contact with a barbed wire fence built by defendant along the side of a highway.

      Gordon H. Main, for app’lt; Badger & Ide (John P. Badger, of counsel), for resp’t
   Mayham, P. J.

The defendant constructed a barbed wire fence on or along the public highway, and while the plaintiff’s servant was leading two young horses attached together by one strap or halter, behind a buggy in which he was riding, they became frightened and ran against this fence, and one was seriously inj ured, for which this action was brought.

The complaint alleges that the defendant was the owner of certain premises and real estate therein described, along which for more than twenty years a public highway had been kept and used, which had been duly laid out as such and was four rods wide, and charged that the defendant had erected and maintained a nuisance in such highway in the construction of a barbed wire fence, by which the plaintiff’s horse was injured.

The answer denied that the fence was in the highway and alleges that the same was erected with the knowledge and consent of the plaintiff, and charges that the inj ury to plaintiff’s horse was the result of the negligence of the plaintiff’s servant.

On the trial the plaintiff put in evidence the records of an order made by two of the commissioners of highways of the town dated September 9, 1826, purporting to lay out this highway as of the width of four i ads.

This order was objected to by the defendant on the ground that it purported to have been made by two instead of three commissioners of highways of that town, and contained no recital or other evidence that notice of the meeting of the commissioners for the purpose of laying out this road was given to the third commissioner.

This objection was overruled and the order was read in evidence.

The plaintiff also put in evidence a warrant issued by the commissioners of highways of the town in which this highway was situate for the performance of work on the same.

The proof showed, or tended to show, that the plaintiff’s horse was injured by coming in contact with this fence while being led along this highway in a dark night.

The evidence as to whether this fence was within the bounds of this highway as the same' was fenced for many years was conflicting, there being some evidence tending to prove that it was, and some that it was on the line of the original fence. There was no conflict in the testimony as to the injury of the horse.

At the conclusion of the plaintiff’s evidence the defendant moved for a nonsuit and that the plaintiff’s complaint be dismissed on the grounds:

First That it appears from the evidence that the accident was caused by the negligence and careless manner in which plaintiff’s horse was held, and not caused by the fence at all.

Second. That the plaintiff has failed to prove the fact that the fence was in the highway, or if it was in the highway caused the injury, or that it would not have occurred if it had been several feet further back.

Third. That the plaintiff has failed to prove facts sufficient to constitute a cause of action. Plaintiff asked to have the case submitted to the jury for determination.

The court granted the motion, intimating that the action ought to have been one for negligence and that the plaintiff was guilty of contributory negligence, and for that reason ought not to go to the jury, and dismissed the plaintiff’s complaint, to which the plaintiff duly excepted.

In determining whether this non-suit was properly granted, we are to give full weight to all the evidence offered and received on the part of the plaintiff, and assume that, if the jury had found in accordance with it, the verdict, as matter of law, could not be upheld, Weaver v. White, 46 St. Rep., 467, and that the facts which the plaintiff’s evidence established or tended to establish were found in his favor.

The road in question, therefore, being conceded to be a public highway, there was some evidence on the part of the plaintiff that the wire fence was two feet farther in the highway than the old fence which had enclosed the highway for more than twenty years before the erection of the wire fence, and this evidence on the question of non-suit must be construed in the most favorable light for the plaintiff.

If, therefore, we should adopt the contention of the defendant, that the order of the commissioners laying out this road was void, for the reason that it does not appear that the third commissioner was notified of the meeting of the commissioners to make the same; still we would have a public highway by user and adoption by the commissioners and worked by them as such, to the extent . of the user indicated by the location of the old fence, as the same was proved by the plaintiff to have existed for twenty years, and as to which the wire fence was an encroachment, and the questxm whether that encroachment was a nuisance from which the plaintiff’s horse was injured was, we think, one for the jury, and the refusal of the learned judge to send it to the jury was error.

One of the important questions for consideration in this action was whether this highway had been narrowed or contracted by the erection of this fence, and that xvas for the jury upon the evidence to determine as a question of fact.

If, as a matter of fact, the road had been contracted or narrowed, the law would adjudge to be a nuisance. In President, etc., of Whitehall Turnpike v. People, 9 Barb., 175, the court says: “To constitute a nuisance it is not essential that the road should be unsafe or impassable; any contracting of a highway is a nuisance. 1 Russ, on Crimes, 305.”

Any obstruction left in the road, or omission to repair it, whereby it is less convenient for public use, falls within the same category.

It is true that while an encroachment upon a highway is a nuisance, it is not in all cases such a public nuisance as will justify its removal by any individual, as the statute has provided a method by which such encroachments may be determined summarily and removed by the highway commissioners, but' if the encroachment be in fact a nuisance by which a party is injured, he may maintain, an action for such injury. 37 Barb., 301. In Osborn v. Union Ferry Co., 53 Barb., 629, it was held that the public being entitled to the use of the highway, whoever, without special authority, obstructs it or renders its use hazardous by doing anything upon, above or below the surface, is guilty of a nuisance, and one sustaining special damage from it, without any want of due care to avoid injury, has a remedy against the person continuing the nuisance. See also, 107 N. Y., 360; 12 St. Rep., 21; ' 103 N. Y., 77-83; 3 St. Eep., 69.

Having reached a conclusion that this case should have been submitted to the j ury, it is unnecessary to examine the numerous other questions raised on this appeal.

There must be a new trial of the action, costs to abide the event.

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

Putnam and Herrick, JJ., concur.


text:
    John H. Haskell, Resp’t, v. The Northern Adirondack Railroad Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 8, 1892.)

    1. Negligence—Railroad—Ñire set by passing engines.
    In an action to recover damages for injuries to plaintiff’s fruit trees by fire alleged to have been set by one of defendant’s passing locomotives, Held, that the question whether or not the defendant was guilty of negligence in permitting the fire to escape, or whether the ñre did originate from fire in its locomotive, and whether defendant negligently suffered dry and combustible matter to accumulate upon its road, were properly submitted to the jury. ,

      2. Same—Evidence.
    In such case the court properly allowed plaintiff to show the value of the trees destroyed, and this by the opinions of witnesses shown competent.
    Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury after a trial at circuit, and from an order denying a motion for a new trial upon the minutes.
    Action to recover damages for the loss of a quantity of apple trees, claimed to have been destroyed by fire by reason of the negligence of defendant’s servants.

      S. A. Beman, for app’lt; J. C. Saunders, for resp’t.
   Mayham, P. J.

This action was for the recovery of damages for injury to plaintiff’s fruit trees and shrubbery and bees, by fire alleged to have been negligently set, and permitted to escape from defendant’s land to that of the plaintiff.

Whether the defendant in this action was or was not guilty- of negligence in permitting this fire to escape, or whether it did originate from fire from defendant’s locomotive, was a question of fact winch was properly submitted to the jury by the trial judge, and the same is true of the question whether the defendant negligently suffered or permitted dry and combustible matter to accumulate upon its track or roadway.

Nor do we think the court erred in receiving evidence upon the question of damages. His ruling upon that question is fully sustained by the case of Argotsinger v. Vines, 82 N. Y., 813-814.

The case was fairly and clearly submitted to the jury by the charge of the judge upon the disputed questions of fact, and we cannot say that the evidence did not sustain their verdict.

The motion, therefore, for a new trial upon the merits was properly denied, and we see no error committed by the trial judge for which this judgment should be reversed.

•Judgment affirmed, with costs.

Herrick, J., concurs; Putnam, J., not acting.


author: Lawrence, J.

text:
    Patrick Sheahan, App’lt, v. The National Steamship Company, Limited, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Malicious prosecution—Probable cause.
    In an action for malicious prosecution, it appeared that plaintiff had been passenger agent for selling tickets for passage on defendant’s steamships, and as such had tickets intrusted to him: defendant brought suit to recover tickets alleged to be still in his possession; the sheriff certified and returned that such tickets had been eloigned, and plaintiff was arrested under an order procured by defendant. Held, that plaintiff had failed to establish want of probable cause.
    2. Same—Malice.
    In such case, the mere fact that, the order of arrest was finally vacated does not show that the defendant was actuated by malice in obtaining it.
    3. Same. .
    The fact that, in another action brought by plaintiff for an accounting, judgment for a large amount was rendered in favor of defendant, goes very far to show that, there was no malice on the part of defendant in instituting the replevin suit.
    Exceptions ordered heard in the first instance at general term after dismissal of complaint.

      B. Doran Killian and Denis McMahon, for app’lt; John Chetwood, for resp’t.
   Lawrence, J.

The plaintiff, prior to the 26th day of February, 1876, had been for a long time in the employ of the defendant as a general passenger agent for the selling of tickets for passage on the steamships of the defendant, entitling the persons named in said tickets to passage. His employment was by paroi, and in the course of such business he employed a number of sub-agents, and received from the defendant a certain commission for the tickets so sold. He alleges that on the 26th of February, 1876, the defendant maliciously, intending and contriving to injure him, without just or probable cause, caused and procured a certain civil action, in which the said defendant was plaintiff and this plaintiff was defendant, tobe commenced in this court, and in said complaint falsely, maliciously, and without just and probable cause, alleged that the plaintiff detained 3,816 passage tickets, which were its property, and demanded judgment for the possession of the same, and that in truth and in fact, at the commencement of said action, he did not detain any of the property of the defendant.

He avers that the said prosecution was terminated in plaintiff’s favor by a judgment dismissing the complaint on the merits, with costs. He further alleges that on or about the 1st of March, 1876, the defendant, further maliciously intending and contriving to injure the plaintiff, with malice and without just or probable cause, procured and caused to be procured and made by several of its officers, agents, and servants, several affidavits in said action, in which it was falsely, maliciously, and without probable cause alleged that certain property belonging to the steamship company was wrongfully detained by the plaintiff, and that on said affidavits an order of arrest was issued against him, whereby the sheriff of the city and county of New York was directed to arrest him, and that his bail was therein fixed at $10,000, and that thereunder his arrest was procured, and that he was imprisoned in jail for the space of sixty-nine days, in default of said bail. Then follows an allegation that all this was done by the defendant, its agents, etc., without probable cause, and that the plaintiff was compelled to, and did, until the determination and judgment in his favor, expend large sums of money, and incur great liability to pay money, in the necessary defense against said arrest, and in procuring the annulment of the same. The defendant in its answer, admitting that it commenced the action referred to in the complaint, and that it procured the order of arrest therein stated, avers that the plaintiff neglected to make weekly reports, which, by the terms of liis agreement with the defendant, he was required to make, of the sale of said tickets intrusted to him, and that after his discharge in October, 1875, he continued to sell and dispose of such tickets, without the defendant’s knowledge or consent. It alleges that in the action brought for the recovery of the tickets a requisition was issued to the sheriff of the county of New York to take the same from the plaintiff, and deliver them to the defendant; that the said sheriff certified and made return that said tickets had been eloigned, removed, concealed, or disposed of, so that he could not find the same; and that thereupon the order of arrest referred to in the complaint was made, which said order of arrest was eventually vacated. It is further averred that said action was brought, and said order of arrest obtained, on advice of counsel, and that in another action, in the superior court of the city of New York, brought by the plaintiff against the defendant for the settlement and adjustment of the matters and accounts between the parties, judgment was rendered in favor of the defendant against the said plaintiff for the sum of $8,915.16, which said judgment was affirmed by the general term of the said superior court, and that an appeal taken therefrom by the plaintiff was finally dismissed by the court of appeals.

It was stated by the counsel for the plaintiff, upon the trial of this action, that it is an action for malicious prosecution, and after hearing a large amount of testimony, and having received much documentary evidence, the court finally dismissed the plaintiff’s complaint, on the ground that there was not sufficient evidence of want of probable cause for the bringing of the replevin suit to sustain an action for malicious prosecution. To the ruling of the court dismissing the complaint the plaintiff duly excepted, and the case comes before us upon that exception, and certain exceptions taken during the course of the trial to the rulings of the court upon questions of evidence. For the successful maintenance of an action of this character it is essential that the plaintiff should establish that the suit claimed to have been malicious was instituted without probable cause, and that there was malice in its institution, and that such suit had been terminated in the plaintiff’s favor. It is shown in this case that the action of replevin brought by the defendant against the plaintiff was terminated in his favor, and the remaining question, therefore, is whether that suit was instituted maliciously and without probable cause. It is elementary that the question as to what facts and circumstances amount to probable cause is a purely legal question, and, if there is no controversy about the facts, the question whether the facts proven show want of probable cause is exclusively for the court. The record in this case upon the conceded facts clearly establishes, to our satisfaction, that there was probable cause for the institution of the action of replevin, and that the defendant was not actuated by malice in bringing it. The plaintiff for many years was an agent of the defendant. He was behind in his returns. The defendant had been unable to obtain a settlement of his accounts, or a return of the tickets intrusted to him, and supposed by it to be in his possession. When the sheriff returned that the tickets had been eloigned, removed, concealed, or disposed of, and that he could not find or take the same, the defendant, we think, was justified in obtaining the order of arrest, and had probable cause for applying for the sameand the mere fact that the order of arrest was finally vacated does not show that the defendant, in obtaining that order of arrest, was actuated by malice. The record shows that in another action in the superior court, brought by the plaintiff to obtain an accounting, judgment for a large amount was rendered in favor of the defendant. That judgment necessarily establishes that, at the time of the commencement of the replevin suit, and of the obtaining of the order of arrest, the plaintiff in this action was largely indebted to the defendant for moneys which had been received by him in a fiduciary capacity, and goes very far to show that there was no malice on the part of the defendant in instituting the replevin suit. We, therefore, think that the plaintiff has failed to establish the want of probable cause which is the essential ground of the action for malicious prosecution. The burden of proof in such cases is upon the plaintiff to prove affirmatively that the defendant had no ground for commencing the prosecution, and in that respect it seems to us that he has failed.

The counsel for the appellant in his points has only argued, after discussing the general question of the liability of the defendant, four exceptions to the rulings of the learned justice who presided at the circuit in regard to the admission or rejection of evidence. It is claimed that the justice erred in admitting in evidence the findings of the referee in the superior court suit between these parties. The plain answer to that proposition is- that, before the admission of those findings, the plaintiff had himself read in evidence one of the findings of the referee. It was but just, therefore, to allow the defendant to read in evidence the remaining findings.

The next exception relates to the exclusion of an answer to the question as to what were the violations of the laws of what was 'called the “ Conference,” and what was the conference. We regard the question as immaterial, and find no error in the ruling of the court in respect thereto. In fact, it appears at a later stage of the case that the plaintiff’s counsel subsequently objected to any proof in regard to these rules, on the ground that they were in writing. Whether they were or not, we do not think that the evidence had any materiality upon the question of probable cause.

In our view, too, it was immaterial as to what was the oldest prepaid ticket out of the 3,858 claimed, which the defendant demanded of the plaintiff. The fact was conceded that there had been a demand for 3,858 tickets, and, even if the ruling was erroneous, it appeared at a subsequent stage of the case that the plaintiff had received prepaid tickets to the number of 550 from his appointees, which he had torn up and thrown into the waste basket. The retention of those tickets alone would have justified the action of replevin, and, even if there was a mistake in the number of the tickets claimed by the defendant, we do not think that that mistake indicated malice on the part of the defendant in bringing the replevin suit, nor that it tended to establish want of probable cause.

The last exception is as to the overruling of the objection of the plaintiff to the reception in evidence of the letter dated July 1, 1875, addressed by Hurst, the general manager of the defendant, to the plaintiff. As that letter was a simple request to the plaintiff to send the balance of the outward accounts to the end of June 26, for the reason that the defendant was waiting for the plaintiff’s reports to close its books, it may have been material, as showing a demand by the defendant upon the plaintiff; but even if erroneously admitted, it could have no effect upon the final result which was reached by the court in dismissing the complaint. On the whole record we are of the opinion that the plaintiff failed to establish, upon the trial of this action, either malice on the part of the defendant, or that there was a want of probable cause in the bringing of the action ; and it follows that the exceptions of the plaintiff should be overruled, and judgment rendered for the defendant, with costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    The Bowery Savings Bank, Resp’t, v. Elizabeth T. Belt et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Deed—Mort&age.
    D. made a deed of certain premises to S. for $3,100. which deed was recorded, and at the same time S. executed and delivered a contract to D.,

      by which he agreed to reconvey'the said premises to her upon payment of $3,100 before a certain date. Reid, that the transaction, between £>. and S. was a conditional sale and not a mortgage.
    2. Same.
    The fact that S. had brought an action to have the deed declared a mortgage does not affect his right to have the instrument adjudged to be a deed, he having misapprehended his legal rights.
    Appeal from order confirming the report of the referee in surplus proceedings.

      E. H. P..Squire, for app’lt Purdy; Samuel B. Paul, for app’lts Delabarre et al.; Wm. J. Lacey (W. H. Regan, of counsel), for resp’t Salmon.
   Lawrence, J.

Elizabeth T. Belt, after executing a mortgage to the plaintiff for §27,500, in 1889, and a second mortgage of $4,500 to J. F. Kernochan, and a further mortgage of $2,150 to A. White, conveyed the premises No. 44 West Twenty-Second street to her daughter, Elizabeth M. Delabarre. On September 20, 1890, the defendant Elizabeth M. Delabarre, then the owner of the premises sold in this action, made a deed of the same to said Hamilton H. Salmon for the consideration of $3,100, which deed was recorded on the same day in Liber 2258 of Conveyances, p. 79. At the same time that said deed was made, said Salmon executed and delivered a contract to said Elizabeth M. Delabarre, by which he agreed to reconvey the said premises to her upon the payment of $3,100 on or before January 22, 1891. This contract was recorded two days after the recording of deed in Liber of Conveyances 2308, p. 497. On October 27th said Elizabeth M. Delabarre made a deed of the same premises to the defendant James W. Purdy, Jr., the consideration expressed therein being $1,100. This instrument was recorded in the said registrar’s office December 2, 1890, in Liber 2334 of Conveyances, p. 79. After paying the plaintiff’s claim from the proceeds of the sale under the judgment in this action, and the amounts due to Kernochan and White, there remained a surplus, to all of which, the referee has reported, the defendant Hamilton H. Salmon is entitled. The special term has confirmed that report, and from the order of confirmation this appeal is taken.

It is claimed by the appellant Purdy that the deed to Salmon was a mortgage, and that, as such, it was improperly recorded in the book of conveyances, and that Purdy was a bona fide purchaser without notice, and entitled to the surplus. It is claimed by the appellant Delabarre that the referee should not have ignored the existence of the action brought by Salmon, and that to award him the surplus, until that action had been determined, was error. It was further claimed by her that Salmon’s deed, and the agreement executed simultaneously therewith, constituted a mortgage, and that the two instruments should have been recorded as such. We are of the opinion that the referee was right in the conclusion which he reached. The transaction between the defendant Salmon and' Mrs. Delabarre was a conditional sale. The deed is absolute upon its face, and contains the usual full covenants of warranty. The agreement on the part of Salmon, dated September 20, 1890, is to sell to Mrs. Delabarre, for the sum of $3,100. Her agreement is to purchase for and to pay that sum on January 22, 1891. Salmon agrees, on receiving such payment, to execute and deliver to her a full covenant warranty deed. These provisions in the agreement are inconsistent with the position that the deed and instrument were intended to operate as a mortgage. We have not overlooked the fact that a deed absolute upon its face may be shown by paroi to have been intended by the parties as a mortgage, but the burden of proof in such case is upon the party seeking to establish that the transaction equitably amounted to a mortgage. Fullerton v. McCurdy, 55 N. Y., 637. In our opinion, the parties opposing Salmon’s claim to the surplus in this ease have failed to prove that the relation between him and Delabarre was in reality that of mortgagor and mortgagee. The action brought by Salmon for the purpose of having the deed in question declared a mortgage does not affect his right to have that instrument adjudged to be a deed. A party does not forfeit his legal rights by misapprehending them, Morrison v. Brand, 5 Daly, 42, affirmed 56 N. Y., 657, and, as all the parties whose interests are involved are before the court, it is competent in this proceeding to ascertain the nature and extent of those interests. Bergen v. Carman, 79 N. Y., 146. These views lead to an affirmance of the order below, with costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.


text:
    Ida F. Crow, Pl’ff, v. The Greenwich Insurance Company, Def’t.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    Insurance (fire)—Concurrent policies on same property—Mortgagee A fire insurance company issued two policies the same day to the owner of certain property; the first being for $1,250, and the second for $750, the latter providing that in case of loss it was to be paid to the mortgagee of the property. A fire occurred, resulting in a loss adjusted at $800. Held, that the issuing of the two policies at the same time constituted but one transaction, the object being to secure the mortgagee in the first instance, the result being the same as though a single policy had been issued for $2 000, by the terms of which the loss, to the extent of $750, was payable to the mortgagee, and the company could not under the other policy claim contribution from itself.
    Exceptions directed to be heard in the first instance at the general term.

      George W. Stephens, for pl’ff; Robinson, Biddle & Ward (Henry Galbraith Ward, of counsel), for def’t.
   Lawrence, J.

On the 30th of November, 1890, the defendant, the Greenwich Insurance Company of the City of New York, issued a policy of insurance for $1,250 for three years to Madeline S. Roome, the owner of certain premises and buildings erected thereon in Rockland county, N. Y. On the same day the defendant issued a second policy for $750 for three years to Madeline S. Eoome upon the same premises; loss, if any, payable to Ida F. Crow, mortgagee, who is the plaintiff in this action. On September 21, 1891, a fire occurred on the premises, resulting in a loss fixed and adjusted by the plaintiff and defendant at $800. _

_ This action is brought upon the second policy by the mortgagee, which policy contained a clause in the following words: “Lessor damage, if any, under this policy, shall be paid to Ida F. Crow, as mortgagee, as interest may appear; and this insurance, as to the interest of the mortgagee only therein, shall not be invalidated by any act or neglect of the mortgagor or owner of the within described property, nor by any foreclosure or other proceedings or notice of sale relating to the property, nor by any change in the title or ownership of the property, nor by the occupation of the premises for purposes more hazardous than are permitted by this policy; provided that, in case the mortgagor or owner shall neglect to pay any premium due under this policy, the mortgagee shall on demand pay the same; provided, also, that the mortgagee shall notify this company of any change of ownership or occupancy, or increase of hazard, which shall come to the knowledge of said mortgagee, and, unless permitted by this policy, it shall be noted thereon; and the mortgagee shall, on demand, pay the premium for such increased hazard for the term of the use thereof; otherwise this policy shall be null and void. This company reserves the right to cancel this policy at any time as provided by its terms, but in such case this policy shall continue in force for the bene fit only of the mortgagee for ten days after notice to the mortgagee of such cancellation, and shall then cease, and this company shall have the right, on like notice, to cancel this agreement. In case of any other insurance upon the within described property, this company shall not be liable under this policy for a greater proportion of any loss or damage sustained than the sum hereby insured bears to the whole amount of insurance upon said pi-operty, issued to or held by any party or parties having an insurable interest therein, whether as owner, mortgagee, or otherwise. Whenever this company shall pay the mortgagee any sum for loss or damage under this policy, and shall claim that, as to the mortgagor or owner, no liability therefor existed, this company shall, to the extent of such payment, be thereupon legally subrogated to all the rights of the party to whom such payment shall be made, under all securities hold as collateral to the mortgage debt, or may at its option pay to the mortgagee the whole principal due or to grow due on the mortgage, with interest, and shall there- ' upon receive a full assignment and transfer of the mortgage, and of such other securities; but no subrogation shall impair the right of the mortgagee to recover the full amount of her claim.-”

We are of the opinion that the circuit judge was right in directing a verdict for the plaintiff for the sum of $750, the full amount insured by the second policy. It seems clear that the issuing of the two policies by the defendant at the same time constituted but one transaction, the object of which was to secure the mortgagee in the first instance, and secondly, the owner; and that, as is claimed by plaintiff’s counsel, the result was the same as though a single policy had been issued for $2,000, by the terms of which the loss, to the extent of $750, was payable to the mortgagee.

After the execution of the mortgage, the interest remaining in the ■ mortgagor was an equity of redemption merely, and the only insurable interest which the mortgagor had was in that equity of redemption after the mortgage had been deducted from the value of the land. We do not think it can be successfully argued that the defendant intended to allow the mortgagor to take out an insurance which would jeopardize or lessen the amount agreed to be paid by the mortgagee’s policy in case of a loss. If a policy of insurance had been taken out by the mortgagor on the same day in another company, without that fact being communicated to the defendant, there might be force in the argument that the defendant would be obliged to pay to the mortgagee under its policy only that proportion which the amount of its policy bore to the whole amount insured. But in this case, as already stated, we think the transaction is to be regarded as one, and that the defendant having, with full knowledge of all the facts, issued a policy by which the loss, if any was incurred, up to the sum of $750, was payable to the mortgagee, cannot claim under the other policy contribution from itself. The object of the policy which contained the mortgagee clause was to secure to the mortgagee full indemnity; and as there is nothing to show that the mortgagee knew of the issuing of the first policy of insurance to Boome, the mortgagor, the defendant, it seems to us, cannot claim that it should be permitted to stand in the position which it would occupy in case a policy of insurance had, without its knowledge, been procured by the mortgagor from another company. For these reasons we are of the opinion that the exceptions should be overruled, and that judgment should be ordered in favor of the plaintiff upon the verdict, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


author: Van Brunt, P. J.

text:
    Elizabeth E. Hutchins, Executrix, Resp't, v. Abraham Van Vechten, App’lt.

      (Supreme Court, General Term,, First Department,

      Filed November 18, 1892.)

    Trust—Declaration of.
    Plaintiff brought an action to have declared that defendant held certain real property in trust for the joint benefit of himself and H., plaintiff’s testator. The evidence showed that shortly after defendant had purchased the property he executed a power of attorney to one P., authorizing him to sell the land, and at the same time wrote him a letter stating that ‘ ‘ what- ' ever is realized, you will understand, belongs to H. and myself jointly.” After H.’s death, a paper was found in the handwriting of defendant, containing a description of the property, and stating that the deed says “ nothing about our being entitled to six hundred inches.” It also appeared that the defendant had written various letters to H. and his son in regard to the land, and a letter to a tenant on the property, in which he says: “Although the title of the whole property is in one, therejis another party who has an interest.” Held, that the evidence was sufficient to establish a declaration of trust.

      Appeal from an interlocutory judgment and decree entered after a trial of the issues at a special term of this court, adjudging and declaring that the defendant held certain real property and the proceeds thereof, together with the rents, issues and profits arising out of the use and possession of the same, in trust for the joint and equal benefit of himself and plaintiff’s testator.

      Hale & Bulkeley (Matthew Hale, of counsel), for app’lt; C. N. Morgan, for resp’t.
   Van Brunt, P. J.

This action was commenced to have adjudged and declared that the defendant held certain real property and the proceeds thereof, together with the rents, issues and profits arising out of the use and possession of the same, in trust for the joint and equal benefit of himself and the plaintiff’s testator. The evidence in the case showed that “ on or about the 23d day of December, 1870, the defendant received from Eeuben É. Fenton and wife a deed dated that day, conveying to him the premises mentioned and described in the complaint for the consideration, expressed in such deed, of fifteen thousand dollars. Such deed was absolute in its terms, and it does not appear that at the time of its delivery to the defendant any declaration of trust or other instrument, evidencing that he took the conveyance of the premises in trust for the plaintiff’s testator, was executed by him.” And the question involved was whether the evidence which is hereinafter referred to established a trust in favor of the plaintiff’s testator. The testimony established “that subsequently to the execution and delivery of such deed, and on or about the 5th day of June, 1873, the defendant executed to one John H. Platt, then the law partner of the said Waldo Hutchins, a power of attorney, dated that day, empowering and authorizing the said John H. Platt to sell and convey the premises in question upon the terms in such power of attorney stated and expressed.” It also appears that, at the time of the execution and delivery of said power of attorney, the defendant wrote a letter to the said John H. Platt, dated the same day,' to wit, the 5th day of June, 1873, and signed by him, in which, after referring to the above-mentioned power of attorney, he states: “ Whatever is realized, you will understand that it belongs to Waldo Hutchins and myself jointly and equally, and any further instruction Mr. Hutchins may give you you may comply with.” With the two papers above-mentioned there was found, after the decease of Waldo Hutchins, another paper, wholly in the handwriting of the defendant, but without date or signature, containing a description of the premises in question, to which is appended, also in the handwriting of the defendant, this note : “ The above is a description of the property as contained in deed to me ; nothing about our being entitled to six hundred inches.” It further appears from the testimony that subsequently to the execution and delivery of the power of attorney and letter to John H. Platt, above mentioned, the defendant wrote various letters, one to Waldo Hutch-ins, Jr., in reference to the property in question, dated August 5, 1885 ; another to Waldo Hutchins, Sr., in reference to taxes on the property in question, dated May 7, 1886; a third to Waldo Hutchins, Sr., referring to the property and to the taxes thereon, dated ‘April 20, 1886; and a fourth, dated February 14, 1887, to one Fenton, of Jamestown, FT. Y., who was then a tenant of a portion of the property in question, in which the defendant says: “ Although the title of the whole property is in me, there is another party who has an interest. I expect to go to Flew York' some time next week, when I will see him, and let you know what it is decided to do.” Hpon these facts the court held the trust to have been established, and from the judgment thereupon entered this appeal is taken.

The Revised Statutes declare that “ no estate or interest in lands, •* * * nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter be created * * * or declared, unless by act or operation of law, or by a deed or conveyance in writing subscribed by the party creating or declaring the same.” 2 Rev. St. 134, § 6. By chapter 322 of the laws of 1860, the section of the Revised Statutes following the one quoted was amended to read as follows: “ The preceding section shall not be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament; nor to prevent any trust from arising or being extinguished by implication or operation of law; nor to prevent any declaration of trust from being proved by any writing subscribed by the party declaring the same,” etc.; thus assimilating our statute to the law as it existed prior to the adoption of the Revised Statutes, and making it substantially the same as the English statute upon the same subject, by which it was enacted that all declarations or creations of trust or confidence of any land, tenements, or hereditaments shall be manifested or proved by some writing signed by the party who was by law enabled to declare such trust. Therefore, in order to prove a trust, it is not necessary to produce a deed or declaration of trust under seal, but such declaration of trust may be proved by any writing subscribed by the party entitled to declare the same.

The question thus presented in this case is whether the writings to which attention has been called establish such a declaration. Our attention has been called to the case of Young v. Young, 80 N. Y, 422, as a strong case in support of the contention of the defendant. We are unable, however, to see that it has any application to the case at bar. The question in that case was a question as to whether a gift had been made of certain bonds which belonged to and were in the possession of the donor at the time of his death. ^ But there is no proposition in this case involving a gift; there is nothing to show that the defendant was speaking of a gift when he was speaking of the interest of Mr. Hutchins in the property in question. It was of a legal right, because he says in one place that somebody else has an interest in the property, and in another he speaks of it as being “our property,” and in another that, in case of sale, one-half belongs to Mr. Hutchins; not a mere authorization to pay, but a • statement of a fact. He says: “Whatever is realized, you will understand that it belongs to Waldo Hutchins and myself jointly and equally, and any further instructions Mr. Hutchins may give you. you may comply with.” It is urged that the alleged declaration is not sufficiently-clear and explicit, and does not point out with certainty the subject matter and the extent of the beneficial interest. It is difficult to see how this criticism can apply. The subject matter was distinctly specified in the power of attorney to Platt, and in the ■letter which contains the declaration of interest this power of attorney was referred to, thus pointing out with certainty the subS3t matter; and when he says that all proceeds belong to utchins and himself jointly and equally, the extent of the beneficial interest is no longer uncertain.

It is further claimed that the interest mentioned in the letter to Platt may have been compensation for services in effecting a sale or something in connection with the property. But this is inconsistent with the letters in reference to the taxes, and also with the statement in his own handwriting that another party had an interest in the property. The case of Cook v. Barr, 44 N. Y., 156, certainly does not sustain the contention of the defendant. In that case it was sought to establish a trust by certain allegations in an answer, and it was held that all such allegations were perfectly consistent with absolute ownership in the land, and no trust in the land was properly or necessarily inferable from them. But in the case at bar there is no such ambiguity. The declaration is explicit that another party has an interest in the land, and that whatever is realized from the land belongs to Hutchins and the defendant, jointly and equally. From this language it is impossible to draw any other inference than that the defendant and Hutchins were jointly interested in the enterprise in respect to this land. It is not necessary to notice the various theories advanced by the learned counsel for the appellant, because it seems to us that they torture the plain language used in the documents offered in evidence from their manifest and natural meaning; and suppositions are indulged in which have no foundation except in the imagination, it being suggested that the defendant proposed to make a gift of the half of the proceeds of this property in case of a sale. But no words were used to indicate any such intention. A man does not give to another what belongs to that other.

It is also claimed that there is no evidence in the case tending m the slightest degree to show that a trust was created at the time of the delivery of the deed from Fenton to the defendant. The evidence was sufficient, as already seen, to justify the court in finding that a valid trust existed in favor of the deceased, Hutch-ins, and the presumption would necessarily arise that such trust was created at a time which would make it effective, rather than a presumption which would enable the defendant to shield himself under the statute of frauds. The various other exceptions in the case have been examined, and none of them seem to us to be of any materiality. We are, therefore, of the opinion that the judgment appealed from should be affirmed, with costs.

O’Brien and Lawrence, JJ., concur.


text:
    Richard D. Alliger, Resp’t, v. The Mail Printing Association, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Libel—Charge—Newspapers.
    In an action for libel, the court was requested, to charge that “ the law recognizes the duty of a newspaper to inform its readers of the current news of the day, and as a matter of fact no precaution can totally exclude libels.” Held, that the charge was properly refused, as the latter clause was sufficiently erroneous to justify the exclusion of the whole request.
    3. Same.
    In such an action a request to charge that “ the function of a newspaper is to furnish information to its readers of current events, and, if the jury believes that it was the intention of defendant simply to discharge the functions of a newspaper, the damages awarded should be only such as the plaintiff has actually suffered,” is properly refused, as evidence of malice is given when the libel is proven false, and it then becomes a question for the jury whether the malice is such as to call for exemplary or punitive damages.
    Appeal from judgment for $8,152.05 in favor of plaintiff, entered on verdict.

      John Lindley, for app’lt; B. N. Cardozo, for resp’t.
   Van Brunt, P. J.

There having been no order denying motion for new trial entered, or appeal therefrom, and it not appearing that the ease contains the whole of the evidence, this appeal brings up only exceptions and questions of law. The learned counsel for the defendant has presented for our consideration certain errors claimed to have been committed upon the trial in reference to the refusal of the court to charge certain propositions. It will not be necessary to consider at length these propositions, because it is a well-established rule' that, if a request contains any proposition that is not good at law, the whole request may be refused.

In the first request the court was asked to charge that the law recognizes the duty of a newspaper to inform its readers of the current news of the day, and, as a matter of fact, no precaution can totally exclude libels. The latter clause of this proposition was certainly sufficient to justify the exclusion of the whole request, because the court was not bound to charge anything of this kind.

The next request was that the function of a newspaper is to furnish information to its readers of current events, and, if the jury believes that it was the intention of the defendant simply to discharge the functions of a newspaper, the damages awarded should be only such as the plaintiff has actually suffered. The proposition is established by the case of Samuels v. Evening Mail Association, 75 N. Y., 604; 9 Hun, 294, that the plaintiff in an action of libel gives evidence of malice whenever he proves the falsity of the libel. It becomes, then, a question for the jury whether the malice is of such a character as to call for exemplary or punitive damages; and that question is not to be taken away from the jury because the defendant gives evidence which tends to show that there was in fact no actual malice.

The court was correct in refusing the third, request to charge. It assumes that the defendant, the moment the question was raised as to the truth of the libel, made a full and complete retraction of the whole thereof; whereas, the evidence showed that in the same issue that contained the retraction they repeated the libel.

The fourth*request was to the effect that the jury is to consider the alleged publication of the alleged libel on the second day, in ‘conjunction with the retraction contained in a conspicuous part of the same issue, and, therefore, they are to consider there was no malice intended or shown by the second publication, which last proposition clearly usurped the province of the jury.

The fifth proposition was that, unless the defendant was moved by actual malice, it was not a case for punitive or exemplary damages, and the jury could give such damages only as they thought the plaintiff had really borne. The rule laid down in Warner v. Press Publishing Co., 132 N. Y., 181; 43 St. Rep., 633, is that a libel recklessly or carelessly published, as well as one prompted by personal ill will, will support an award of exemplary damages, showing that the request under consideration was properly refused.

The next request was that the plaintiff must satisfy the jury as to the extent of the damage to reputation actually suffered, and the jury must give no amount in excess of such damage. It does not require authorities to show the impropriety of such a request in cases of this character. The plaintiff is not required to establish, item by item, the amount of damages which he has sustained.

These are the only points which seem to be raised, and the rulings of the court below seem to have been in harmony with the rules prevailing in the disposition of cases of this character.

The judgment should be affirmed, -with costs.

O’Brien and Lawrence, JJ., concur.


author: Lawbeitce, J. Van Brunt, P. J.

text:
    Henry L. Herbert et al., App’lts, v. Edward Uhl, Respt.

      (Supreme Court, General Term, First Department,

      Filed November 18, 1892.)

    1. Corporations—Liability of stockholders.
    In a suit against a stockholder of a corporation to recover a debt of the corporation, the existence of the corporation was admitted ; its indebtedness to plaintiffs on a debt due and payable within one year was-proven ; the suit to recover the debt was brought within one yi or, judgment regularly obtained and an execution issued and returned wholly unsatisfied. Held, that the plaintiffs had established a prima facie liability on the part of the defendant.
    2. Same—Stock issued for services.
    Where it appears that 20,000 shares of the stock of a corporation were- ' issued in payment for services rendered, and that the issuance was one-fifth of the whole capital stock, the court should submit to the jury the bona jides of the transaction.
    Appeal from a judgment entered on a dismissal of the complaint in an action to recover the sum of $1,000, the amount of stock the defendant held in the Consumers’ Coal Company, for which plaintiffs claim he is liable to them.

      Larned, Warren & Knapp (Ira D. Warren, of counsel), for app’lts; Goepel & Raegener (Louis C. Raegener and R. L. Maynard, of counsel), for resp’t.
   Lawbeitce, J.

The action is brought against the defendant as a stockholder of the corporation known as the Consumers’ Coal Company, which was organized under the general manufacturing act of 1848, and the several acts of the legislature extending and amending said act. In the complaint it is averred that between the 14th day of October, 1889, and the 28th day of October, 1889, both dates inclusive, plaintiffs sold and delivered to the said Consumers’ Coal Company, at its request, in said city, certain goods, wares, and merchandise, consisting of coal, at a price agreed upon, and amounting in the aggregate to the sum of $1,154,66.

It is further averred that the said company contracted to pay that sum immediately upon the delivery of said coal, which was within one year from the time the debt was contracted; that suit was commenced by the plaintiffs upon said debt, and judgment therefor was duly recovered, in the city court of New York, on the 6th day of December, 1889, in the sum of $1,297.50; that transcript of said judgment was duly docketed in the office of the clerk of the city and county of New York, and an execution thereupon duly issued to the sheriff of said city and county, which execution was returned wholly unsatisfied, and that no part of said sum has ever been paid to plaintiffs. The defendant, in his answer, admits the incorporation of the company, and “ that he was a stockholder of said company.” He denies an allegation in the complaint to the effect that the whole of the capital stock fixed and limited by the certificate of incorporation had never been paid in, and that no proper certificate stating the amount of the capital had ever been recorded in the office of the county clerk; and generally he denies all knowledge or information and belief as to the alleged transaction between the plaintiffs and the corporation upon which the judgment hereinbefore referred to was obtained. At the conclusion of the testimony the defendant's counsel moved to dismiss the complaint, among other grounds, on the ground that the plaintiffs have not made out a cause of action against the defendant, the stockholders’ liability having ceased immediately upon the filing of a certificate of the full payment of the capital stock; that such a certificate had been filed in this case; and that, unless the plaintiffs could show that there was some falsity with reference thereto, that the property purchased for the use of the company was purchased at an exorbitant figure, and with fraudulent intent to evade the statute, they have not made out their case. To the ruling of the court granting that motion the plaintiffs excepted.

It seems to us that the plaintiffs at the time they rested their case had established a prima facie liability upon the part of the defendant. The existence of the corporation was admitted. The indebtedness of the corporation to the plaintiffs had been proven. That the debt was due and payable within one year from its contraction was also proven. The suit to recover that debt was brought within one year. Judgment was regularly obtained in that action, and execution issued on said judgment had been returned wholly unsatisfied. • It is claimed on the part of the defendant that the plaintiffs had failed to show that the defendant was a stockholder at the time the debt was contracted by the corporation. This position, we think, is erroneous. It is distinctly alleged in the complaint that the defendant, at the time when said debt was made and contracted, was a stockholder of the said Consumers’ Coal Company, and owned 200 shares of the stock of said company, of the par value of five dollars per share, being of the par value of $1,000 in the aggregate. The defendant, in his answer, admits that he was a stockholder of said company, and denies any knowledge or information sufficient to form a belief as to any and all other material allegations in the sixth count or subdivision in said complaint, and, therefore, denies the same. This is an admission that the defendant was a stockholder at the time stated in the sixth subdivision of the complaint, and it seems to us that the defendant cannot contend that the attempted denial with which that admission is coupled puts the plaintiffs upon proof as to the time when the defendant became a stockholder of the company. If he was a stockholder, he was a stockholder at the time mentioned in the complaint, or at least the defendant is estopped from denying that he was such stockholder, in the absence of a positive denial that he was such stockholder at the time therein mentioned. We think, too, that the plaintiffs had established, when the evidence closed, a prima facie case, which called upon the defendant for the answer, if answer he had, to the plaintiff’s claim under the statute. While it is true, under the decisions which are referred to by the respondent in his brief, that stock may be issued in payment for services rendered to the company, see Veeder v. Mudgett, 95 N. Y., 295, if the evidence that the amount of stock issued for such alleged services is grossly in excess of the fair value thereof, the plaintiff has at least the right to go to the jury upon the question whether such services were actually rendered, whether they were fairly worth the amount of stock issued in alleged payment thereof, or whether the issuance of stock for alleged services was mot in fact an evasion of the statute.

The evidence in this case shows that 20,000 shares of the stock of the company were issued to Mr. Schenck for general promotion and other things, and that he never paid a cent for it. It may well be claimed that, even under the decisions relied upon by the defendant’s counsel, services in the promotion of a company are not such as the company is authorized to pay for by the issuance of stock. But whether that be so or not, the issuance of one-fifth of the whole capital stock to Schenck for the promotion of the incorporation et the company strikes us as being so excessive as to have at least rendered it incumbent upon the court to submit the bona fides of the transaction to the consideration and determination of the jury.

The record does not show that a certificate that the whole amount of the capital stock had been fully paid in, in accordance with the statutory requirements, was put in evidence on the trial. It is claimed by the respondent in his points that such certificate was produced and examined by the court, but not put formally in evidence. We are to go by the record in this case, and cannot assume, in the absence of any statement in the record that such certificate had been filed, that it was filed. We are, therefore, of the opinion that it was error to dismiss the complaint; that the case should at least have been submitted to the jury upon the question of the bona fides and fairness of the issuing of the 20,000 shares of stock to Schenck; and that, therefore, the judgment should be reversed, and a new trial should be ordered, with costs and disbursements to appellants.

Van Brunt, P. J.

I concur in result. The statute does not require filing certificate where stock is issued for property.

O’Brien, J., concurs in result.