text:
    FRANK L. HERDIC, Appellant, v. CHARLES ROESSLER, Respondent.

      Constitutional law — the legislature may require notes given for a patent right to state that fact and may destroy their negotiable cha/racter.

    Chapter 65 of 1877, providing that any promissory note or other negotiable instrument, the consideration of which consists in whole or in part of the right to make, use or vend, any patent invention or inventions claimed or represented by the vendor at the time of the sale to be patented, shall contain the words “ given for a patent right,” prominently written or printed on its face above the signature, and that such instrument in the hands of any purchaser or holder shall be subject to the same defenses as in the hands of the original owner or holder, is constitutional and valid.

      Woolen v. Brnlcer (17 Alb. L. J., 72) not followed.
    Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions.
    This action was brought upon a negotiable promissory note, made by the defendant for the sum of $500, dated the 21st day of December, 1881, at the city of Buffalo, and made payable at a bank in that place to the order of Peter Herdic. The plaintiff’s evidence tended to show that he purchased the note, before its maturity, in the State of Pennsylvania, paying therefor a valuable consideration. The consideration of the note was the sale of an interest in a patent right by the payee to the maker. The negotiations and contract were made and completed in the city of Buffalo. The defendant gave evidence tending to prove that the plaintiff received the note from the payee under an arrangement that it should be applied upon a precedent debt which the former owed the latter, and that no present consideration was advanced at the rime of the transfer. The defense interposed was based upon the allegation that in the sale and transfer of the interest in the patent right the maker of the note was cheated and defrauded by the payee, and the maker gave evidence tending to establish the same. There was no written memorandum on the face of the note that it was “ given for a patent right,” as required by chapter 65 of the Laws of the State of New York of 1877. The defendant also gave evidence tending to show that the plaintiff knew when he purchased the note that the consideration tlierefor was the sale of an interest in the payee’s patent right to the maker of the note. The defendant gave in evidence a statute of the State of Pennsylvania relative to promissory notes given for a patent right, the first paragraph of which is as follows: “ Whenever any promissory note or other negotiable instrument shall be given, the consideration for which shall consist, in whole or in part, of the right to make, use or vend any patent invention or inventions claimed to be patented, the words ‘ given for a patent right ’ shall be prominently written or printed on the face of such note or instrument above the signature thereof, and such a note or instrument, in the hands of any purchaser or holder, shall be subject to the same defenses as in the hands of the original owner or holder.” There is also provision in the same act making it a misdemeanor for any person to take, sell or transfer any promissory note or negotiable instrument not having the words before mentioned written or printed legibly on the face of the instrument, knowing the consideration of such note or instrument to consist, in whole or in part, of the right to make, use or vend any patent invention or inventions clairiied to be patented. (See Laws of 1872, No. 47.) The verdict was for the defendant, upon which judgment was entered for costs, from which the plaintiff appeals.

      F. O. White, for the appellant.

      Frank Brundage, for the respondent.
   Barker, J.:

Many of the legal questions discussed on the argument are not presented by any exceptions taken by the appellant, the same will be for that reason passed unnoticed.

The refusal of the court to order a verdict in the plaintiff’s favor was not error, for the reason that the evidence tended to prove that the consideration of the note had failed; and that the plaintiff received the note from the hands of the payee to be applied upon an antecedent debt owing by the latter to the former. If the charge of fraud was maintained to the satisfaction of the jury, and the jury were also satisfied that the note was transferred to the plaintiff as payment upon a precedent debt, then a good and perfect defense was established by the rules of the common law. In such a case the indorsee occupies no better position than the payee. There was no evidence tending to prove that the plaintiff knew when he purchased the note that the consideration therefor had failed. The court charged the jury, in substance, that unless the defendant established to their satisfaction that the consideration of the note had failed as alleged by the defendant' the plaintiff was entitled to a verdict. The jury were also instructed that if they found the consideration of thp note had failed, then the defendant was entitled to a verdict; if they also found, that the plaintiff- knew when he bought the note that it was given for an interest in a patent right, although there was no writing on the face of the note, as required by the statute. The provisions of our statute are similar to the Pennsylvania statute on the same subject. (See chap. 65, Laws of 1867.)

The plaintiff insists that this act is unconstitutional in its entire scope and meaning and asked the court to so charge the jury, which was refused. The exception to this refusal presents a difficult and interesting question. As t-his request was wholly disconnected from any other legal proposition, and its application by the jury was not made to depend upon any given state of facts which they might find, it presents, standing alone, a mere abstract proposition, and might be passed without consideration for that reason. But as one of the principal grounds of defense rests upon the provisions of that act, we have concluded to give our views on the question presented by the request. The act is entitled “ An act to regulate the execution and transfer of negotiable instruments given for patent rights,” and its provisions are as follows: “Whenever any promissory note or other negotiable instrument shall be given, the consideration of which shall consist in whole or in part of the right to make, use or vend any patent, invention or inventions, claimed or represented by the vendor at the time of the sale to be patented, the words ‘ given for a patent right’ shall be prominently and legibly written or printed on the face of such note or instrument above the signature thereto; and such note or instrument in the hands of any purchaser or holder shall be subject to the same defenses as in the hands of the original owner or holder.” Then follows the provision that if any person shall take, sell or transfer any promissory note not having such words indorsed thereon, knowing the consideration of such note to .be for the sale of an interest in a patent right, he shall be deemed guilty of a misdemeanor.

The plaintiff contends that the object and purpose of the act is repugnant to a provision of the Constitution of the United States, which gives congress the power to “ promote the progress of science and the useful arts by securing for limited times, to authors and inventors, the exclusive rights to their writings and discoveries,” and also, to the several acts of congress enacted for the purpose of carrying into effect this provision, and also regulating the transfers of patents.

"Whenever valid letters patent are issued to inventors in pursuance of law, the right thus secured to an exclusive enjoyment of the thing invented is property, in the common acceptation of that term, and may be protected by the national authority, cannot be disputed. Any State law which impairs the right cf the inventor to sell or assign his patent, is forbidden by the Federal Constitution, which is, in this respect, the paramount law. Do the provisions of our statute invade any of the rights thus secured to the patentee ? This question is now for the first time presented for adjudication in the courts of this State. The act does not prohibit the sale of a patent right, or of an interest therein, nor does it impose any conditions whatever to be observed by the patentee or his assignee in making such sale and transfer. The provisions of the act relate wholly to the property of the owner of the patent, which is, the product or fruit of the sale. The note or other instrument containing a promise -to pay money, which the purchaser of an interest in a patent right may give in payment of the right transferred to him, becomes in the hands of the patentee, a separate item of property, distinct and plainly distinguishable from the patent itself. By the terms of such a bargain one species of property is exchanged by the patentee for another. Such is the legal effect of the transaction, and nothing more. The power of congress over the subject does not .extend farther than securing to the inventor the exclusive use of his discovery for a limited time. Beyond those limits the States have not surrendered any power over the subject. It may be admitted that the State has not the right to tax the propei’ty which one of its citizens may have in letters patent issued to him under the laws of congress. By the exercise of such a power on the part of any State, the exclusive right to the use of the discovery for the period prescribed by congress might be destroyed, and the protection intended to be secured by the constitutional provision lost: But as soon as the patentee transfers to another all his interest in the letters patent, the money, property or chose in action which he may receive therefor, is the property of the patentee, and may be taxed like other property within the jurisdiction of the State. These views and principles were asserted in Patterson v. Kentucky (97 U. S. R., 501), and are stated in the opinion of Mr. Justice Harlan, as follows: “ The right of property in the physical substance, which is the fruit of the discovery, is altogether distinct from the right of the discovery itself, just as the property in the instruments or plate by which copies of a map are multiplied is distinct from the copyright of the map itself. The right to sell the Aurora oil was not derived from the letters patent, but it existed and could have been exercised before they were issued, unless it was prohibited by valid legal legislation. All which they primarily secure is the exclusive right in the discovery itself. * , * * Its enjoyment may be secured and protected by national authority against all interference ; but the use of the tangible property which comes into existence by the application of the discovery is not beyond the control of State legislation, simply because the patentee acquires a monopoly in his discovery.”

Every independent sovereignty possesses the unqualified power to determine the form of all negotiable instruments which may be executed and put in circulation within its territorial limits, and to declare that such instruments in the hands of a bona fide holder shall be subject to the same defenses in favor of the maker as they were in the hands of the original payee. The commercial rule on the subject of the negotiability of written instruments as established by the common law, may be changed or modified by the legislature. (Alvord v. Syracuse Savings Bank, 98 N. Y., 604.)

The question whether a statute is the valid exercise of the legislative power, is to be determined with reference to constitutional restraints and provisions and cannot be declared void by the court because it is deemed unwise or opposed to natural justice and equity. (Bertholf v. O'Reilly, 74 N. Y., 509.)

The general purpose of the act in question, is, to secure to the • maker of a certain class of negotiable instruments in the hands of bona fide holders, such defenses which he may have to its payment, the same as if the original payee had remained the owner and was seeking its enforcement. An indorsee is not affected by the provisions of the act unless the instrument on its face states the consideration for which it was given or he is otherwise informed of the existence of such fact. The courts of Pennsylvania have held that their own statute was constitutional and that none of its provisions inter-feared with the just rights of the holder of a valid patent who sells it or any interest in it, by a fair agreement, and that the provision, that the maker may show as against the holder of such note that it was obtained by fraudulent misrepresentation did not impair any right of the patentee secured by the several acts of congress on that subject. (Haskell v. Jones, 86 Pa., 173; Hunter v. Henninger, 98 Pa. St. R., 373; Tod v. Wick, 36 Ohio St. R., 370.)

The plaintiff cites and relies upon the decision of the United States Circuit Court in Woolen v. Banker (reported in 17 Alb. L. J., p. 72), which supports his position, that the act in question is repugnant to the Constitution of the United States and the several acts of congress protecting the rights of inventors. Some of the legal propositions stated by the court in that case, were subsequently distinctly repudiated in the ease of Patterson v. Kentucky (supra), and as the learned justice did not attempt by any line of argument, to demonstrate that the State law under consideration interfered with any right of the patentee, we do not regard it as an adjudication which should control our own views of the question and particularly so, when our conclusions are in accord with the decisions of several State tribunals, sustaining the constitutionality of similar State laws. The other legal propositions stated to the jury as applicable to the case, were assented to by the plaintiff as we must conclude, for we find no exceptions to any other portion of the charge or refusal to charge as requested. Exceptions were taken by the plaintiff to the receipt and rejection of evidence, all of which we have examined with care and we fail to discover any error in the several rulings made to the objections interposed.

The judgment should be affirmed, with costs.

Smith, P. J., Haight and Bradley, JJ., concurred.

Judgment,and order affirmed.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    WILLIAM J. BYAM, Appellant, v. JENNIE E. COLLINS and ALFRED H. COLLINS, Respondents.

      LiM. — privileged communication — the fad that the communication is founded on motives of friendship and love does not make it such — it may he such when made in response to a request — what evidence may he admitted to disprove malice, when charged — effect of the general character of the party.

    This action was brought to recover damages for the publication by the defendant Jennie E. Collins, of libelous matter and slanderous words concerning the plaintiff, who was then paying his addresses to Dora McNaughton. The defendant wrote and delivered to Dora McNaughton, who had been for many years her intimate friend and associate, a letter in which she referred to the love and friendship which had existed between them, and used words warning her of unpleasant consequences if she continued the company of or married the plaintiff, whose name however was not mentioned.

      Eeld, that the friendship and love existing between the parties, and their long continued social and friendly relations, did not of themselves render the communication a privileged one unless the evidence was such as would justify the jury in finding that the letter was written in consequence of and in response to the request or solicitation of Dora McNaughton.
    That the evidence was sufficient to justify the finding of the jury that the communication was made pursuant to the previous request and solicitation of Dora McNaughton, and in good faith and without malice.
    That in determining whether the letter was in fact responsive to such request the jury should consider the time which had elapsed since such request, if any, was made, and any change in the habits of intimacy and social relations existing between the parties.
    That as the imputations contained in the letter were general and did not import any defined or specific charges, the defendant was not confined to the proof of any definite act or thing concerning the plaintiff, but was at liberty to prove what information had come to her bearing upon his character and habits which would tend to support good faith and honesty of purpose on her part.
    That as the libelous charge was one reflecting upon the character of the plaintiff generally, and as some evidence was given which tended to show that his character and reputation were bad, the court properly refused to charge that the defendant had failed to maintain the plea of justification.
    Appeal from a judgment in favor of the defendants, entered on a verdict rendered at the Livingston Circuit, and from an order denying- a motion for a new trial made on a case and exceptions.
    The action was brought for the alleged publication of libelous matter and slanderous words by the defendan t Jennie E. Collins who became the wife of the defendant Alfred EL Collins, in 1875. She and Dora MeNaugliton had for ten years or more resided in the town of Caledonia, county of Livingston, and been intimate associates and friends.
    The plaintiff was a lawyer, and became a resident of the town in 1878. Early in the spring of 1879 he was paying his addresses to Miss MeNaugliton, and their apparent relations were such as to indicate contemplated matrimony. In April of that year the defendant Jennie wrote and sent to her friend Dora a letter containing the alleged libelous matter. In this letter she refers to the love she has had for her and the friendship -which has existed between them, and proceeds to use words warning her of unpleasant consequences if she continues the company of or marries the man referred to, whose name is not mentioned in the letter, but the evidence makes it evident that the plaintiff was the person in view. The imputations in the letter are general, and import the charge that his character is such that to become his wife would be her humiliation and degradation.
    On the receipt of the letter by Miss MeNaugliton she handed it to the plaintiff. And at interviews sought and had with the defendant Jennie, following and in consequence of that letter, some of the words alleged to be slanderous were spoken by her. The defendant’s answer alleges that the communication by the letter was privileged, and sets up matters as justification and in mitigation.
    The defendants had a verdict. The plaintiff’s motion for a new trial was denied and judgment was entered on the verdict.

      A. J. Abbott, for the appellant.

      James Wood, for the respondents.
   Bradley, J.:

The letter of the defendant Jennie E. Collins to Dora MeNaugliton contained imputations which the evidence shows were intended to relate to the plaintiff, and the extrinsic facts tended to direct attention to him as the person to whom they were designed to apply. The letter was libelous, and its publication presumptively charged the defendants with liability to him, from which, and the consequences, they had the burden of relieving themselves by evidence in support of some legal excuse for the act.

The substantial and important question is whether the conclusion was justified that the letter was a privileged, communication. It imports the friendship and love of the writer. They alone are not sufficient in a case of that character to furnish immunity and protection against the consequences of the libelous publication. And if the defense in that respect depended wholly upon the fact of a long continued, intimately social and friendly relation between them, there would be difficulty in treating the communication as privileged in any view which might be taken of the motive of the defendant. There are relations which legitimately invite and justify communications, giving information, warning, advice and instruction relating to and affecting others, and, when made in good faith, are privileged, although otherwise they would charge the authors with liability. That is so when the writer has a peculiar interest in the person to whom the information is thus given in respect to something fairly within a purpose justified by such relation. This right is afforded by the ties of consanguinity or kindred, and may arise out of other and various relations of interest, or which suggest duty to furnish information in respect to the conduct and character of another. (Todd v. Hawkins, 8 Carr. & P., 88; Blackham v. Pugh, 2 Mann, G. & S., 611; Bennett v. Deacon, Id., 628; Toogood v. Spyring, 1 Cromp., M. & R., 181; Amann v. Damm, 8 C. B. [N. S.], 597; Atwill v. Mackintosh, 120 Mass., 177; Fowles v. Bowen, 30 N. Y., 20; Klinck v. Colby, 46 N. Y., 427, 433.)

The circumstances which render a communication privileged, are those that repel the legal inference of malice. When that character is given to it the burden is upon the party charging the libel to show malice. (Decker v. Gaylord, 35 Hun, 584.) But a publication is not privileged merely because it came from a laudable motive of its author and was conceived and published in good faith. The circumstances which repel the legal inference of malice are not founded in the caprice of the person from whom the communication emanates, but are recognized by reasons which have in view the protection of public rights and private interests (when relations are such as to permit), and society on the one hand and the character of individuals on the other. And while social relations merely may not justify volunteer publication of libelous matter by way of communication, a right may be derived from request when the alleged libelous matter is properly confined to the subject of inquiry. And when that is done bona fide, it is deemed done in discharge of a moral or social duty and privileged. (Pattison v. Jones, 8 Barn. & C., 578; Storey v. Challands, 8 Carr. & P., 234; Knowles v. Peck, 42 Conn., 386; S. C., 19 Am. R., 542; Lewis v. Chapman, 16 N.Y., 369, 374; Washburn v. Cooke, 3 Denio, 110; Sunderlin v. Bradstreet, 46 N. Y., 192 )

These propositions do not embrace the communication in question within those privileged, unless the defense is aided by some request on the part of the person to whom it was addressed to make it. The defendant had no relation other than social to her, nor had she any recognized interest in her welfare. Our attention is called to no authority or well authenticated rule which permits such relations to justify or support a defamatory communication as privileged, and we are not prepared to announce that such a rule would be a salutary one, nor to hold that a confidential relation (merely social) in any degree-would raise an implied request to so communicate. Such a rule would rest in too much uncertainty in its application and might lead to capricious results. In Joannes v. Bennett, (5 Allen, 169), a letter was written to a woman. It contained libelous matter concerning her suitor. And it was written by her friend and former pastor by request of her parents and with good motives. The court held that it was not privileged because he was not connected with her by any ties of kindred, and it did not appear that he had any peculiar interest in her welfare. He was treated as a volunteer as to her in making the communication. And in Krebs v. Oliver (12 Gray, 239) the same was held, and the court said that a mere friendly acquaintance or regard does not impose a duty of communicating charges of a defamatory character concerning a third person, although they may be told to one who has a strong interest in knowing them.” The defense is not aided by the authority of Todd v. Hawkins (supra). There the letter was written by the son-in-law of the widow to whom it was addressed; and the privilege was supported by the relation of kindred and the interest in her welfare which it afforded him.

The inquiry arises in the case at bar whether there was any request or solicitation from Miss McNaughton to the defendant which permitted the latter to write the letter in response to it, and whether she was thus justified in making the communication. If the evidence warranted such conclusion, and the letter was sent in consequence of such request in entire good faith and without malice, it may come within the meaning of a privileged communication. The matter of association with young men is usually one of much importance on the part of young women. And it is due to' them when they request information from a friend concerning the character of their male associates that they be in good faith informed. And such communication is deemed and in such case should be treated as confidential between them. ' The same rule applies, but with no greater reason, to inquiry made about the character of a person applying to another to become his tenant, about a doctor or a lawyer whose employment the inquirer has in view; about a tradesman with whom he contemplates dealing, and about the credit of a person which he has an interest in knowing. If the information is given in good faith the communication is privileged. (See cases before cited; Ormsby v. Douglass, 37 N. Y., 477; Sunderlin v. Bradstreet, 46 N. Y., 191, 192.)

But the response must be pertinent to the inquiry and anything not legitimately within it may be deemed volunteered and not protected by the solicitation. And it must not be understood that a privilege to make a communication reflecting upon the character of another arises out of inquiry in all cases. It is confined to those cases in which the circumstances are such as to import duty for the benefit of the party interested in asking for and receiving the information. (York v. Johnson, 116 Mass., 482.) And on the other hand there may be cases when communications may be privileged depending neither on relation or inquiry. Life and property may be deemed in such imminent peril as to justify information to the party concerned, although' it involved defamatory charges against another. This is the ground, if any, on which the result of Coxhead v. Richards (2 Mann., G. & S., 569) can be supported. There the mate of a ship sent a letter to the defendant — a stranger to the owner of the vessel — charging the captain with drunkenness, etc. The defendant volunteered to exhibit the letter to the owner, who dismissed the captain, and the latter brought the action for libel. A verdict for the defendant was founded on the defense of privilege. The court on review was equally divided. And the verdict was sustained by reason of such division. The question was discussed by opinions of four judges, and the principles upon which the privilege of private communications defamatory to others rest were quite fully considered.

The defendant, Mrs. Collins, testified to the effect that IVilsg McNaughton had repeatedly requested her to tell her anything she knew about any young man she went with, or in respect to any young man in the place, because her father did not go out much and she had no means of knowing, and she (defendant) had a brother and would be more apt to hear; “and she wished me to tell her what I knew.” Dora (Mrs. Byam), by her testimony, denies making any such request. The trial court in charging the jury upon the proposition whether the letter was a privileged communication, refers to that testimony so given by them, and then says : “ I charge you that if in the first place the relation of these persons was of such an intimate character as to warrant Mrs. Collins in warning Miss McNaughton against a person whom she had reason to believe was not a fit person, and if Mrs. Collins acted fairly in good faith conscientiously, although mistakenly, there can be no recovery against her upon that cause of action.” The plaintiffs’ counsel excepted to the submission in the court’s charge to the jury of the fact whether the libel contained in the letter was a privileged communication.” It will be observed that if the charges of the court may be so construed as not to make the privilege of the communication depend upon any inquiry or solicitation of the person to whom it was addressed, that question is not raised by the exception referred to. And if there was evidence sufficient to support a finding that it was privileged, the exception is not well taken. The contention on the part of the plaintiff presented by it, that upon the whole evidence the court was not justified in submitting that question to the consideration of the jury. And there is no exception appearing in the record requiring any other or further-consideration of the charge of the court in that particular respect.

We think the evidence was sufficient to justify the finding of the jury that the communication was made pursuant to previous-request and solicitation of Miss McNaughton, and that it was made-in good faith and without malice.

This proposition involved several questions of fact for the determination of the jury, amongst which was that whether any such request was made for information, and in view of the relation between those young women, the time which had elapsed between such request (if found) and the letter, and in view of any change in their habits of intimacy and relations, social and confidential, whether the communication was fairly traceable and responsive to or in consequence of such request. These were all matters, for the jury upon the evidence, as was also the further question of fact whether it was made in good faith and without any malice on the part of the defendant. The learned counsel for the plaintiff contends that the question of privilege is one of law, and the court .erred in submitting that question to the jury. It is true that whether a given state of facts render a communication privileged is one of law, but the fact’s upon which the privilege depends may be for the jury. That was so in this case. The letter itself did not purport to be a privileged one, and the relation between the parties to it was not such as to prima facie make it such. And the elements required to give to it that character were wholly existing in facts which were for the jury. And it was in this view and to show good faith and the absence of malice on the part of the defendant that she was permitted to testify to many things she had heard concerning the plaintiff, to the reception of which evidence exceptions were taken. And it is for that purpose and reason that evidence was admissible and properly received. The imputations in tbe letter against the plaintiff were general, and did not import any defined or specific charges. The question of malice of the defendant was one of fact. T.he evidence on her part as to what she had heard was not, therefore, confined to any definite act or thing concerning the plaintiff, but she was at liberty to prove what information had come to her bearing upon his character and habits, which .tended to support good faith and honesty of purpose on her part. What she had heard was competent for that purpose. (Atwill v. Mackintosh, 120 Mass., 177.)

We think there was no error in the reception of evidence of that •character. And, therefore, it is not important whether or not such .evidence was admissible in justification or mitigation of the charges .contained in the alleged libelous publication.

It follows that there was no error in the refusal of the court to charge that the communication was not privileged, and that the * .only question for the jury, in respect to that cause of action, was one of damages. The complaint charges that the female defendant on two occasions after the letter was written spoke and published slanderous words of an.d concerning the plaintiff, and evidence was given on that subject which tended to prove that she said some things which were imputations against the professional character and habits of the plaintiff as a lawyer. The court properly charged the jury in that respect. The evidence on the part of the plaintiff tended to prove that she also at those interviews made statements concerning him not slanderous jperse, in respect to which and to the liability which might arise out of them on evidence of special damages sustained by him in consequence the court fully charged the jury. The evidence justified the refusal of the court to charge them that upon the whole case the plaintiff was entitled to recover. The plaintiff’s counsel requested and the court declined to charge “ that the defendants have failed to maintain the plea of justification of the slanderous words proved to have been spoken and the libel proved to have been published,” and exception was taken. The defendant had set up various matters in justification of the alleged libel, amongst which was the allegation that the plaintiff’s character was bad. The libelous charge was one reflecting upon his character’ generally. It charged him with no particular misconduct. There was some evidence given tending to prove that his character and reputation were bad. It is not a question of the amount of evidence. It meets the exception if it was sufficient to present the question for the jury. The imputation in the letter goes to his general character, and the court properly declined to charge as so requested. The request to charge “ that the mere belief in the truth of the charge, however honestly entertained, will not constitute a justification, was followed by the statement of the court, “ I so charge, but the reasonable grounds of belief make a different affair of it,” and the plaintiff’s counsel excepted. In adding what follows, the adoption of the proposition requested, the court evidently had in view the question of privilege in respect to the letter upon which the “ reasonable grounds of belief” might be pertinently applicable, and in that view there was no error in the qualification. And the same was the apparent purpose of the qualification added to the response to the request to charge “that it is no justification that the defendant heard and believed a rumor that the plaintiff was guilty of the charge,” to which the court said: I charge that if they find any independent slanders here, but not in respect to the letter if the jury shall find it to be apriviledged communication.” And exception was taken.

The court gives the plaintiff the benefit of the proposition presented by the request, except that in the event the jury find the letter privileged, then, and to aid that conclusion, they were not required to exclude from their consideration the defendant’s belief of what she had heard. The benefit of doubtful interpretation will not be taken in support of error. It is well settled that nothing short of the truth of a libelous or slanderous charge made can be set up and made available by way of justification. But this proposition has reference to the imputation as and in the form it is made by the publication. If the charge goes to general character it is met by proof of the fact of reputation or character. That is the nature of that contained in the letter. And the fact rests in rumor, not in specific things which are heard (that would not be competent for such purposes), but in the general fact which is derived from rumors and becomes the opinion or sentiment of the community as understood by witnesses called to express their understanding in that respect. It does not appear that the court refused to charge that nothing less than the truth of the charges, as made against the plaintiff, would constitute a justification as such. There does not, therefore, seem to be any basis to support the contention to that effect.

We have given consideration to all of the many exceptions taken upon the trial, and think the conclusion is required that the plaintiff was not prejudiced by any error in the rulings of the court. None of them, not before particularly mentioned, present any important question requiring the expression of special consideration. The conclusion in respect to the main charge, founded upon the written communication, was evidently reached by the jury without necessarily supporting the imputations against the plaintiff contained in it. And the evidence in respect to the charges alleged to have been orally made, did not necessarily require the conclusion of liability of the defendants. No occasion appears for disturbing the verdict.

The judgment and order should be affirmed.

Smith, P. J., Barker and Haight, JJ., concurred.

Judgment and order affirmed.


text:
    SUSAN ARMSTRONG and GRANGER GRISWOLD, as Executors, etc., of FRANCIS ARMSTRONG, Deceased, Respondents, v. JENNIE McKELVEY and Others, Appellants.

      Election — right of a legatee to convert a legacy into real estate — equitable counterclaim or set-off— what facts do not establish one.

    This action was originally brought by the plaintiff’s testator, as the assignee of one Pridmore, who had recovered a judgment against the executor of one Smith for a debt due from Smith at the time of his death. Smith left a will by which he ordered his executor to sell all his real and personal property at public or private sale within eighteen months after his death, and to divide the proceeds thereof, after the payment of legacies and the just debts and funeral expenses of the testator, equally between certain persons therein named. The executor having sold certain real estate of which! Smith died seized, the defendants, the residuary legatees, brought an action against the executor and the purchaser to have the same set aside, and procured a judgment therein which adjudged and determined, among other things, that the land descended to the defendants in this action, subject to the execution of the power of sale within the time limited by the will, and that the defendants here, the plaintiffs in that action, were entitled to the possession of the premises as the rightful owners thereof, discharged and released from the said power.
    It having appeared in proceedings had before the surrogate that there was no personal property applicable to the payment of the judgment recovered against the .executor, the assignee thereof brought this action against the defendants as next of kin and legatees, or heirs-at-law and devisees, under the provisions of sections 1887, 1848 and 1844 of the Code of Civil Procedure, to recover the amount of the judgment.

      Held, that by bringing the action to set aside the sale made by the executor, and procuring a judgment therein declaring the premises to be relieved and discharged from the power in-trust, and that the defendants were entitled to the possession thereof as the rightful owners, the defendants elected to take the property as real estate and were liable to account for the same to the creditors of the testator as devisees
    For some time preceding his death, the testator boarded and was taken care of by Piidmore, during which time moneys paid to Smith were handed by him to Pridmore, with directions to take care of it for him. It also appeared that some time before, Smith had two promissory notes of $100 each against Pridmore. After Smith’s death, neither the notes nor any. money was found among his assets.

      Held, that these facts did not establish a right in the defendants to have the amount of the plaintiffs recovery iu this action diminished by the amount of the said notes and money.

      Appeal by the defendants from a judgment, entered on the report of a referee.
    The action was brought by the plaintiffs’ testator to charge the defendants with the payment of á debt due irom one Robert Smith, who died leaving a will, by which the defendants took an interest in his estate. By his will, which was admitted to probate and recorded, Smith bequeathed to the defendant Jennie MeKelvey , $200, and to the defendant Esther MeKelvey $200 and his bureau. He directed the executor to provide a head-stone for his grave at a cost not exceeding $100. Then comes the third clause as follows : “ I hereby order my executor to sell all my real and personal property at public or private sale, as he may think best to do, within eighteen months after my death, and the proceeds and avails arising from the sale of my real and personal property, after the legacies above mentioned are paid and my just debts, funeral expenses and gravestone are paid, to divide the balance equally between the following persons, namely: Jennie MeKelvey, Nancy MeKelvey, Esther MeKelvey, Elizabeth Olp, James G. Smith, of Tennessee; Alexander Smith and Jennie Wallace Smith.” He named Isaac Barber as executor, to whom letters testamentary were issued.
    The testator Smith died, seized of real estate of the value of upwards of $9,000, which the exeeutor within the eighteen months sold and conveyed to one Hartman. In an action brought by the defendants in this action against' the executor and Hartman for that purpose, the sale and conveyance to Hartman were set aside, and the referee before whom that action was tried, amongst other things, found and determined, and it was by the judgment therein declared that the attempted sale was illegal; that the land descended to the devisees, the defendants in this action, subject to the execution of the power; that the period in which the executor was empowered to sell having since expired, he as such, or as trustee, could not execute the power so as to give title to a purchaser, and that the plaintiffs in that action were entitled to the possession of the premises as the rightful owners thereof, discharged and released from the said trust.
    The testator Smith, having become indebted to one Pridmore the latter, in an action against the executor, recovered a judgment thereon. And in proceedings had before the surrogate to obtain settlement and application of the personal property of the estate, it appeared that there was none to apply upon his claim. He afterward assigned the judgment and the debt for which it was recovered to the plaintiffs’ testator, who brought this action to recover of the defendants, on the assumption that this land had come to them by the force of the will before mentioned. He died, and the plaintiffs were substituted during the pendency of the action.
    The referee found that they were liable, and directed judgment distributing the liability, between them, and specifying the amount with which each was charged, and from the judgment thereupon entered the defendants’ appeal.

      James Wood, for the appellants.

      James B. Adams, for the respondents.
   Bradley, J.:

The statute provides that an action may be maintained against the next of kin or legatees of a testator to recover to the extent of the assets paid or distributed to them on the death of the decedent upon which an action might have- been maintained against the executor or administrator (Code Civ. Pro-, § 1837), and that the heirs and devisees of a testator are respectively liable for the debts of the-decedent, arising by simple contract or by specialty, to the extent or of the estate, interest and right in the real property which descended or was effectually devised to them by the decedent where three years have elapsed since letters testamentary were granted. (Id., §§ 1843,1844.)

The leading question going to the foundation of the plaintiffs’' right to maintain this action is whether the defendants have-effectually taken and received as legatees or devisees or both, property of the estate of Robert Smith, deceased, under his will. This depends-upon the rights derivable and derived from the provisions of the will relating to the real property of the testator. The only property of that character of which he died seized was a farm of 113- acres. The will does not devise this property, but directs the- sale of it by the executor within eighteen months, and the distribution of the proceeds amongst the defendants so that they were- the sole-beneficiaries of the land. The contention of the defendants’ counsel is that the sale is requisite to give them the benefit of this prN vision of the will, and that until that is done and the proceeds are derived from such sale they cannot be deemed recipients from the estate nor can the action be supported. By the will the land was converted into personalty for the purposes of its execution and the defendants may therefore be deemed legatees rather than devisees. And this conversion may be deemed to have taken place as of the time the will went into effect, upon the principle in equity that what is directed to be done may be regarded as performed, because then the power to sell became operative. (Arnold v. Gilbert, 5 Barb., 190, 196; Lorillard v. Coster, 5 Paige, 172, 218; Meakings v. Cromwell, 5 N. Y., 136; Stagg v. Jackson, 1 id., 206; Fisher v. Banta, 66 id., 468.)

There being no devise of the land, the title subject to the power of sale descended to the heirs as such of the testator, but that carried with it no beneficial interest in the property. And subject also to .the right of the defendants as such beneficiaries to elect t.o defeat the conversion and take it instead of the proceeds of the sale of it, and thus reconvert it into realty as effectually as if it had been devised to them by the will. The reason of this doctrine is founded in the right of an absolute donee to dispense with the execution of a power in which he alone is interested. So far as appears all the defendants -were sui juris, and therefore had the power to elect to have reconversion of the property in- question from personalty to realty and to take it as the latter. (2 Story’s Eq. Jur., § 793; Walker v. Shore, 19 Ves., 387, 392; Sisson v. Giles, 3 De Gex, J. & S., 614; Craig v. Leslie, 3 Wheat., 563; Prentice v. Janssen, 79 N. Y., 478; affirming 14 Hun, 548.)

The defendants must be deemed to have so elected by the judgment, which they took in their action in this court against the executor and Hartman to set aside the sale made to the latter under the power, whereby the sale was adjudged void, and further “ that the said premises are relieved and discharged from the power in trust created by the said last will and testament of said Robert Smith, -deceased, and that the plaintiffs (defendants here) are entitled to the possession of the said premises as the rightful owners thereof, discharged and released from the said trust.” It is not important for the purposes of this question, whether or not the latter adjudication ' was necessarily within the issues in that action. It was declared in their behalf by the judgment and will be deemed so adjudged on their application. And their election is there clearly expressed by the record to terminate the power of sale, and to take the possession of the property pursuant to their right there formally announced. This was abundantly sufficient to constitute their election for the reconversion and supports the title of the defendants to the land. (Van v. Barnett, 19 Ves., 102, 109; Mutlow v. Bigg, L. R., 1 Ch. Div, 385; S. C., 15 Moak, 803; Prentice v. Janssen, supra.) And it appears by the statement of the defendants’ counsel that some of the defendants for several years “ have lived on the premises.” It follows that the premises had in fact become the property of the defendants prior to the commencement of this action. And three years, since letters testamentary were granted, having elapsed, the action was properly brought to charge the defendants with liability for the debt, if in other respects the right to recover was established.

The debt against the defendants’ testator and its amount is not questioned. But it is insisted on the part of the defense that a claim alleged in the answer in behalf of their testator against Pridmore, the assignor of the plaintiffs’ testator, should have been allowed by way of abatement of the plaintiffs’ claim. For some time preceding his death the testator Smith boarded with and was taken care of by Pridmore, and the debt which is the subject of this action arose out of, and by way of compensation for such board and care. It appears by the case that during that time moneys paid to Smith were handed by him to Pridmore, with directions to take care of it for him (Smith), and that sometime before that Smith held two promissory notes of $100 each against Pridmore, and that after his death neither the notes or any money was found amongst his assets.

In his original report, which was made August 5, 1885, the referee expressed no finding on that subject. After the delivery of such report and the entry of judgment, an order was made by the court, on the application of the defendants, that the report be sent back to the referee, and directing him to make a further report of all material facts proved by the testimony in reference to the counter-claim of the defendants and his conclusions of law thereon.” Thereupon, pnrsuant to the order, the referee found the facts as before mentioned, and, further, that the money was left with Pridmore by Smith as its custodian or depositary for him, and not as a loan. That no demand for the sum appears to have been made by Smith or any one in his behalf of the said Pridmore at any time; that the dates of the notes, or when they became due, does not appear, or that they were due. And that at the decease of Smith neither of the notes or any money was found in his possession. And as conclusion of law he found that there was nothing due or owing from Pridmore to Smith at the time of his death for or on account of such money or notes, nor was any sum due from him by reason of such money or notes applicable to the extinguishment of any part of the plaintiffs’ claim in the action as a set-off or counter claim.

It may be questionable whether under the then and present practice it was a legitimate exercise of the power of the court to send back the report with directions for further findings, and what, if any, effect can properly be given to the supplemental report of the referee. (Code Civ. Pro., § 1023; Gardiner v. Schwab, 34 Hun, 582.)

But as the facts appear in the case substantially as found by the referee, the matter may have consideration in any view that may be taken of • that question upon which we express no opinion here. It is not the subject of either a counter-claim or set-off within the statute. The executor is not a party, and the claim is not one in favor of the defendants. The only question is whether it may be treated as an equitable set-off in their behalf; and in that view supported, not as a claim of the defendants against the plaintiffs, but by way of reduction of the amount due from the estate to the plaintiffs. (Hackett v. Connett, 2 Edw., 73.)

The doctrine of allowance of set-off will be extended by courts of equity beyond that provided by statute when peculiar equities intervene between the parties, and the protection of the rights of the alleging party requires it. This is not a case of cross demands between them, as the defendants do not represent their testator, and are not in a position to insist that this, as an independent claim against Pridmore, be set off. They, however, being sole beneficiaries of the estate may assert, if the facts permit, that by reason of it the claim in suit was subject to and reduced by it, so that only the sum thus abated was in fact due from the testator to Pridmore, and that the amount of the alleged claim against him be treated as applied upon and in satisfaction of it pro tanto. This may be done when there is such connection between the claims as to allow it. (Schermerhorn v. Anderson, 2 Barb., 584.)

But equity follows the law on the subject of set-off, unless special circumstances occur or peculiar equities exist to justify the interposition of courts of equity for protection of the rights of the parties. (2 Story Eq. Jur., §§ 1437, 1438; Jordan v. N. S. and L. Bank, 74 N. Y., 473; Jennings v. Webster, 8 Paige, 503; Mills v. Lampkin, 1 Ga., 511; S. C., 44 Am. Dec., 677; Lindsay v. Jackson, 2 Paige, 581; Smith v. Felton, 43 N. Y., 419; Coffin v. McLean, 80 id., 560.) No circumstances are alleged and -none appear by the evidence for the application of the extra legal doctrine afforded by courts of equity in cases requiring it,, nor do the facts appealing justify it. If Pridmore was in fact indebted to the defendant’s testator the executor may proceed to collect the amount of the debt from him. Nothing appears in the way of such collection if liability can be established. For aught that appears Pridmore is solvent, and it does not appear that recovery is barred by the statute of limitations. The facts appearing by the evidence and found by the supplemental report do not necessarily lead to the conclusion of liability, and the equities of the defendants as against the plaintiffs do not require such inference. The assignor of the plaintiffs’ testator was an accommodation depositary of the money handed to him, and his notes were before then held by the defendants’ testator.

This is all that appears except that no money or notes were in his possession at the time of his death ; and the relation of Pridmore to him during the latter part of his life. For the purposes of this case we see no occasion to disturb the conclusion of the referee in respect to the amount which the plaintiffs should recover, or the manner of distribution of the recovery directed against the defendants respectively. Although the judgment of Pridmore against the “executor did not have the effect to charge the defendants, the reception of it in evidence was not error. (Estes v. Wilcox, 67 N. Y., 264; Kent v. Kent, 62 id., 560.) And none of the defendants’ exceptions are well taken.

The judgment should be affirmed.

Smith, P. J., Barker and Haight, JJ., concurred.

Judgment affirmed, with costs.


author: Smith, P. J.;

text:
    WILLIAM KING, Respondent, v. CLARA KING, Appellant, and GEORGE F. KING, Defendant.

      ISmdence — certificate of a surrogate as to the probate of a will — when sufficient — . Code of CM Procedure, sec. 2629.
    Appeal from a judgment, entered upon tbe report of a referee.
    This action was brought to compel the defendant Clara King to convey certain real estate, of which she holds the legal title, to the plaintiff and his minor son, the said George E. King, who are the alleged devisees of her deceased husband John King.
    After considering other questions the General Term said: “ The objection that the will was erroneously received in evidence is not well founded. The will offered was the original, and attached to it ’was a certificate of the surrogate of the proper county, to the effect that the same ‘ was duly proved before ’ said surrogate, 1 according to law, as and for the last will and testament of the real and personal estate of the said deceased. Which said last. will and testament, and the proofs and examinations taken thereon, are recorded in this office.’ It is contended that the certificate is insufficient under section 2629 of the Code of Civil Procedure, which requires that the certificate shall state that the will has, ‘ upon due proof, been admitted to probate as a will valid to pass real or personal property, or both, as the case may be.’ The statute does not prescribe the form of the certificate; it is enough if the certificate states ih substance what the statute requires, and we think the certificate in the present case meets that requirement.”
    * -» * * «

      Ira E. Myers, for Clara King, appellant

      George E. Loveridge, for the resyondent and defendant George F. King.
   ■Opinion by

Smith, P. J.;

Barker and Bradlet, JJ., concurred; Haight, J., not sitting.

Judgment and order affirmed, with costs to be paid by appellant,


text:
    THE CITY OF LOCKPORT and BENJAMIN J. HUNTING, Respondents, Impleaded with Others, v. JAMES F. FITTS and Others, Appellants.

      Costs — distribution of, among attorneys for the city of Loehport where they successively • render services in the same action.

    Appeal from a judgment, entered upon a decision of the court rendered at the Niagara Circuit and Special Term, upon the submission of a controversy on facts admitted, pursuant to section 1279 of the Code of Civil Procedure.
    The case relates to the distribution of a fund consisting of the costs recovered by the city of Lockport in an action brought against it by Mary C. Works. The action against the city was begun in October, 1877, was tried and appealed to the General Term of this courr- and to the Court of Appeals, and it finally resulted in a judgment of the latter court in favor of the defendant, which, upon filing a remittitur, was made the judgment of this court in February, 1S85. During the progress of the action the city was represented successively by the several persons who, for the time bemg, held the office of city attorney. To this there was one exception for a brief period near the close of the litigation, when, the office of city attorney being filled by Mr. Ransom,' who was one of the attorneys of Mrs. Works in the action, the city was represented by Mr. Hunting under a resolution of the common council. The term of office of the city attorney is one year. The successive city attorneys who represented the city in the course of the action, or their assignees, are parties to this controversy, and they claim to be entitled to the costs taxed and allowed for the services rendered by them, respectively, for the city during their respective terms of office. Mr. Hunting is also a party and he claims to be entitled to the whole fund, he having collected it while acting for the city. The trial court held that the entire costs belong to the city, and no part of them to either of the attorneys.
    The court at General Term said: “ In general the costs recovered in an action belong to the successful party and not to his attorney. But the charter of the city of Lockport provides that the attorney of the city shall receive an annual salary of five hundred dollars for his services, and ‘ that, in actions brought or defended by him in any court of record wherein costs shall be adjudged in favor of said city, he shall be entitled to have and receive the same when collected.’ (Laws 1873, chap. 387, § 27.) The learned trial judge construed that provision to mean that the city attorney, in office at the time when an adjudication is made in an action in which the city is a party, is entitled to the costs awarded to the city in such action, and that as at the time of the final adjudication in the 'Works’ suit the city was represented by Mr. Hunting, who was not the city attorney, neither he nor either of the ex-city attorneys is entitled to the costs. In those views we do not concur. We think the provision of the charter above cited was intended to give to each city attorney the compensation fixed by the fee bill for the services rendered by him during his term of office in actions in which the . city ultimately succeeds, but his right to payment therefor is postponed until the costs are collected. We are also of the opinion that as Mr. Hunting acted as the attorney of the city, under a resolution of the common council, in circumstances which incapacitated the person who then held the office of city attorney from representing the city, Mr. Hunting was the city attorney pro hae vice, and is entitled to the costs for his services so rendered.
    “ It appears that in the interval between the bringing of the appeal to this court and the argument of it (and so in respect to the appeal to the Court of Appeals), the term of one city attorney expired and he was succeeded by another. Each, therefore, is to be presumed to have taken part in the ‘proceedings before argument.’ As only one fee for such services is included in the costs, it seems just that it should be apportioned between the two' officials who contributed to the rendering of the services, and in the absence of evidence as to how much was done by each, it may be jDresumed that each is entitled to one-half.
    “Applying these views to the admitted facts, the result is this: The entire fund amounts to the sum of four hundred and seventy-four dollars and seventy-five cents, and is in the hands of Mr. Hunting. Of that amount the sum of one hundred and thirty-six dollars and five cents, being for disbursements actually paid by the city, should be refunded to the city. Of the remainder Mr. Eitts is entitled, in his own right, to one hundred dollars,‘and as the assignee of Mr. Potter to forty-five dollars; Mr. Southworth is entitled to fifty dollars and Mr.' Pound to forty dollars. The balance Mr. Hunting is entitled to retain.”

      James F. Fitts, for tlie appellants.

      S. Gady Murray, for the respondents.
   Opinion by

Smith, P. J.;

Haight, Barker and Bradley, JJ., concurred.

Judgment reversed, and judgment ordered as indicated in the opinion, without costs to either party.


author: Haight, J.;

text:
    ALEXANDER C. REED, Appellant, v. CHRISTIAN SCHMIT, Respondent.

      Charter of the milage of Waterloo —1883, chap 859 — does not violate section 18 of article 3 of the Constitution, nor section 16 of the said, article — what proof is admissible to show the appointment of a tax collector.

    Appeal from a judgment of the Seneca County Court, reversing a judgment of a Justice’s Court in favor of the plaintiff.
    The court at General Term said: “ This action was originally brought in Justice Court to recover the value of a wagon which the defendant had taken from the plaintiff. The defense was that the defendant was the collector of the village of Waterloo, and that the wagon in question was seized by him for the non-payment of taxes, under a tax warrant issued by the trustees of the village. The plaintiff had judgment in the Justice Court. On appeal the County Court reversed the judgment of the Justice Court and the plaintiff appealed to this court.
    It is now claimed that chapter 359 of the Laws of 1882, entitled, “ An act to amend and consolidate the charter of the village of Waterloo” is unconstitutional and void.
    It is claimed that the act is in violation of section 18 of article 3 of the Constitution, which provides that the legislature shall not pass a private or local bill incorporating villages. This act, however, does not incorporate a village. It only amends the charter of a village existing prior to the adoption of this section of the Constitution, and we do not understand the amended provision of the Constitution to prohibit the amending of village charters theretofore existing.

      In the case of Fx parte Samuel Fritz (9 Iowa, 30), the Constitution of Iowa prohibited the enactment of special laws either for the incorporation of towns and cities or for the amendment of acts of incorporations in existence before the adoption of the Constitution, thus expressly prohibiting the passage of local acts amending charters. For this reason the case is clearly distinguishable.
    The case of the State of Ohio v. The City of Cmcimnati (20 Ohio, 18), is likewise distinguishable. The Constitution of that State being so broad as to entirely prohibit the passage of special acts conferring corporate powers.
    Again, it is contended that the act is in violation of section 16 of article 3 of the Constitution, which provides that no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title. In this case the title of the act is, “ An act to amend and consolidate the charter of the village of "Waterloo, Seneca county, N. Y.” The word “ consolidate” is explained and construed by the first section of the act, which provides that “ the several acts relating to the village of Waterloo in the county of Seneca are hereby amended, revised and consolidated by title and section in the order and manner following.” The act then proceeds to define the boundary of the village, the wards and highways, to provide for the election and appointment of officers, etc. • All of the prior acts pertaining to the charter of "Waterloo are brought together and incorporated in the act in question. In other words, the prior acts are consolidated in this act. The word, therefore, does not express any other or different subject than that expressed by the words “ to amend the charter” etc., but is included in and covered by it. (The People ex rel. City of Rochester v. Briggs, 50 N. Y., 553 ; The People ex rel. Faulkner v. The Trustees of the Village of Hansville, 1 Hun, 593; The People ex rel. Gere v. Whitlock, 92 N. Y., 191; Chamberlain v. Taylor, 36 Hun, 24, 40; Harris v. The Supervisors of Niagara County, 33 id., 279; see authorities there cited upon page 2S6.)
    The Revised Statutes provided that persons applying to alter the bounds of any village should give notice by advertisement for six weeks, stating the nature and object of the application ; also that a survey and map of the territory should be made and laid before the legislature before its action. This was not done. The legislature saw fit to pass the act in question without requiring these preliminary steps to be taken. The wisdom of this is not for our determination; we are only called upon to determine the power of the legislature. That it had such power we think there can be no doubt.
    It is contended that there was no legal or competent evidence that the defendant was collector of the village. The statute provides that the collector of taxes shall be appointed by the board of trustees; that the appointment shall be in writing, signed by a majority of the board making the appointment, and. that the clerk shall duly enter in full in the records such writing; the certificate of such appointment, duly signed by the clerk and sealed by the corporate seal, shall be prima facie evidence of such appointment in all courts or elsewhere in this State. James E. Batsford, the acting clerk of the village of Waterloo, was sworn as a witness on behalf of the defendant and testified that the book now in court contains the records of the board of trustees, which was offered in evidence, and that on page 49 was a certificate of appointment bearing date March 21, 1883, under the signatures of the trustees of the village. This record was admitted in evidenee for the purpose of showing the appointment of Mr. Schmit as collector. The certificate is as follows: “ This is to certify that Christain Schmit is appointed corporation collector of taxes during the pleasure of the board of trustees. Signed: A. K. Terwilliher, John T. Buckner, A. M. Schott, J. E. Bruen, George Clark, ML E. Pratt, dated Waterloo, March 21, 1883.” The introduction of this record in evidence was objected to by the plaintiff on the ground that it did not contain the corporate seal and did not purport to have been filed with the clerk of the village of Waterloo, etc. It will be observed, however, that Batsford testified that the certificate appearing in the book containing the records of the board of trustees was “ under the signatures of the trustees of the village.” It would thus appear to have been the original certificate that was introduced in evidence. It is true that it did not have upon it the seal of the corporation, but the original was not required to have such seal. It was only the certificate that the clerk was authorized to issue to the appointee that was required to have the seal which would make it prima facie evidence. Whilst the statute authorized the proving of the appointment, by a certificate signed by the clerk and sealed with the corporate seal, it does not prohibit the proving of the appointment in accordance with the rules of the common law, by the introduction of the original.
    *****

      Charles A. Hawley, for the appellant.

      Burton & Rood, for the respondent.
   Opinion by

Haight, J.;

Smith, P. J., Barker and Bradley, JJ., concurred.

Judgment of the County Court affirmed.


author: Learned, P. J.:

text:
    AARON SNELL, Respondent, v. GEORGE LEVITT, Appellant.

      Easements — are embraced within the recording aet — 1 B. 8., 763, sea. 36 — when not lost by non-user — the possession must be hostile and adverse in order to operate as an extinguishment of the right.

    In 1863, one Snell conveyed to one Higgins certain land with the right to lay upon other lands of the grantor pump-logs to convey water from the Kingsbury spring to the premises so conveyed. In 1863, Snell and Higgins, entered into an agreement, under seal, by which Higgins relinquished the right to draw water from the Kingsbury spring and obtained in place thereof a right to draw water from pump-logs running from another spring which was used to supply water to a railroad. This instrument was not recorded. The - plaintiff acquired title to the farm so conveyed to Higgins, by various mesne conveyances, all of which were recorded, and all of which granted the right to take water from the Kingsbury spring. Prom 1863, and until thi railroad company changed the mode of drawing water from the railroad spring, the water used on the Higgins farm was obtained from it. In 1883, the plaintiff attempted to again procure water from the Kingsbury spring and was prevented from so doing by the defendant.

      Held, that as the recording acts applied to easements, the release was void as to the plaintiff, unless he had such notice as prevented him from becoming a purchaser in good faith. ,
    That as the easement was created by grant, it could not be extinguished by non-user.
    That the evidence did not establish such an adverse holding by Snell and his grantors as was required to extinguish the easement.

      Appeal from a judgment, entered at the Montgomery Circuit, in favor of the plaintiff for fifty dollars damages and one hundred and eleven dollars and sixty-seven cents costs.
    This action was brought for a wrongful interference by defendant with plaintiff’s easement and right of drawing water from a certain spring on defendant’s land, known as the Kingsbury spring.
    August 12, 1862, Edwin Snell and wife conveyed the lot now owned by plaintiff to Frances Ann Eliza Higgins, with the following easement: “ The said parties of the first part also grant to the said party of the second part the right to lay any bind of pump logs to convey water from the spring above the site of the old barn on the premises, purchased by the above named Edwin Snell of ~W. & C. Kingsbury, and to conduct the same from said spring down along the creek running therefrom, until the same can be carried in a straight line to the premises hereinbefore conveyed to the party of the second part; said party of the second part, however, is not to have and use from said spring more than half an inch stream of water, and in digging to lay or repair said logs, said party of the second part is to replace the ground and smooth the same over so as not to do any more injury than necessary and •indispensable.”
    July 1, 1863, Higgins, “ for the consideration of seventy-five dollars, agreed to relinquish all her right, title and interest in a certain spring owned by Edwin Snell, known as the Kingsbury spring,” and Mr. Snell “ agreed to allow her to draw water from pump logs running across lots to his house as long as there shall be ■water in said logs.” This instrument was, under seal, executed by both Snell and Higgins, and attested by two witnesses. It was never recorded. The pump logs mentioned in the instrument were laid from the railroad spring, then owned by Edwin Snell, he having also granted á right to use water from that spring to the railroad company. These logs were laid near the Higgins house, and 'soon after the execution of the written instrument they were 'tapped and water carried thence to her premises. This was the case as early as October, 1863, a few months after the date of 'the instrument.
    The water continued to be thus drawn from the railroad spring and used at the Higgins place as long as the pump logs remained there, and until the railroad company changed the mode of drawing water from that spring some years ago. Since then the water has been obtained of a neighbor by the name of Nellis.
    The plaintiff acquired title to the Higgins farm by mesne conveyances, all of which granted the right to draw water from the Kingsbury spring and all of which were duly recorded. He first claimed the right, and attempted to .exercise it, of drawing water to his place from the Kingsbury spring in September or October, 1883, when he was forbidden to do so by the defendant.

      B. A. Ransom and E. Countryman, for the appellant.

      Wendell da Van Deusen, for the respondent.
   Learned, P. J.:

The recording statute applies to easements (1 R. S., m. p. 762, § 68 [36]; 3 Kent Com., 401), therefore the release from Prances A. E. Higgins to Edwin Snell was void against plaintiff unless he had such notice that he was not a purchaser in good faith. (1 R. S., 756, § 1.)

This easement arose by grant. Non-user would not extinguish it. There must be a strictly adverse possession for twenty years. Now the only adverse holding which the defendant claims is this, that after the release from Higgins to Edwin Snell (in which it was agreed that Higgins should draw water from certain pump logs, instead of the Kingsbury spring), the plaintiff and his grantors have drawn from such other source, and the Kingsbury spring has not been used by them. But these facts do not show an adverse holding. It does not appear that the plaintiff’s grantors have known, during all this time, that the water was not coming from the Kingsbury spring. Having, by their deed, a right to draw from that spring, and receiving water from the land of defendant and his grantors, they -might suppose that they were using the Kingsbury spxfing.

The essence of an adverse holding is that the x’iglit of the claimant is denied. When it has been denied, to his knowledge, for a cei-tain length of time, the law assumes that he can have no right because he has failed to assert it. That case is not px’esented here.

There was no error in striking out the evidence of Block, and as there was no question for the jury, it was proper to direct a verdict.

Judgment affirmed, with costs.

Bocees and Landon, JJ., concurred.

Judgment affirmed, with costs.


author: By the Court :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Appellant, v. ALFRED C. CHAPIN, as Comptroller of the State of New York, Respondent.

      Practice — application for the cancellation of a tax sale — the comptroller’s decision cannot be reviewed by mandamus.
    The remedy of a party, believing himself aggrieved by a decision of the comptroller denying an application for the cancellation of a sale for taxes, is by ceriioran'i and not by mandamus.

    Appeal from an order made at the Albany Special Term, denying a motion for a writ of peremptory mandamus.

    The relator is the owner and holder of a mortgage upon certain lands situated in Clinton county, which in 1877 were sold for unpaid taxes for the years 1866 to 1870, inclusive, and a deed therefor was thereafter in due time given by the comptroller to the State, as purchaser.
    In 1881 the lands were again sold for the unpaid taxes of 1871 to 1876, inclusive, and at the expiration of the time to redeem were again conveyed to the State as required by law.
    On the 20th day of November, 1885, the relator, as such mortgagee, applied to the comptroller to cancel the sales and conveyances on the grounds:
    1. That the oath of the assessors to the assessment-roll of 1869 was not in the form required by statute, in that the words “ the ” and <£ due ” are omitted ; the words “pj'operty ” and ££ one ” are substituted for “¿state” and “person” respectively; the word “debt” is used instead of “debts;” “stock” instead of “stocks;” “is” in tbe place of “are/” the words “true and full” instead of ‘■•‘■full and true,” and the word , “ information ” instead of “judgment.”

    2. That said oath was sworn to before a notary public instead of a justice of the peace.
    3. That at the sale of 1881, the comptroller refused to allow relator to bid on said lands, but peremptorily bid them in for the State.
    The comptroller denied said application, and the relator thereupon, at a Special Term held in Albany county, November 24, 1885, moved for a peremptory writ of mandamus to compel the comptroller to cancel said sales. The motion was denied and an order entered accordingly. From that order an appeal has been taken to this court.

      Charles H. Moore and Frank F. Smith, for the relator.

      D. O’Brien, attorney general, for the Comptroller.
   By the Court :

We think that the motion was properly denied. If the relator was entitled to review the comptroller’s decision, he should do so by certiorari, as was done in People ex rel. Wright v. Chapin, decided in this court, November, 1885.

Whether, in a particular case under the statute, the comptroller ■ decides on a question of fact or on a question of law, in either instance his decision is quasi judicial.

Section 2070 of the Code, to which the relator cites us, does not determine in what cases mandamus will lie. It.only determines that where mandamus is the proper remedy, there, if the question-be one of law, the mandamus may be peremptory in the first instance.

The relator also cites In re Clemente v. Jackson (92 N. Y., 591). But it is remarked in that case that the proceeding was not for an • adjudication upon the title, but wholly between the relator and the respondent to compel the latter to perform a statutory duty, the effect of which, in case of dispute, must be determined hereafter.” That language would hardly apply to the cancellation of a deed by the comptroller under the statute in question.

The remark in Clark v. Davenport (95 N. Y., 477), cited by the relator, was merely obiter. It did not state when mandamus and when certiorari would be the proper remedy.

The People ex rel. Townshend v. Cady (50 Supr. Ct. N. Y. [18 J. & S.], 399) was a mandamus simply to compel a clerk of arrears to receive certain taxes, an act wholly ministerial.

In The People ex rel. Andrews v. Brinkerhoff (20 Week. Dig., 391) the mandamus was refused.

The case of Attorney General v. Boston (123 Mass, 460), also cited by the relator, contains, at page 472, a very good statement of the matter. Speaking of mandamus, it says: It not only lies to ministerial, but to judicial officers. In the former case it contains a mandate to do a specific act, but in the latter only to adjudicate, to exercise a discretion upon a particular subject.”

Had the comptroller refused utterly to consider the relator’s application, there would be reason for asking a mandamus, not to direct the comptroller how to act, but to require him to exercise his discretion. But'the comptroller has not refused to consider the relator’s application. He has considered it and denied it.

The proper use of the remedy by mandamus is also stated in People ex rel. Francis v. Common Council (78 N. Y., 33, at p. 39). It is not a remedy for erroneous decisions. It cannot be addressed to a judicial tribunal to require it to decide in a particular manner. And this rule applies to every body whose action is in its nature judicial.

In chapter 427, Laws of 1855, section 83, we find the following: Whenever the comptroller shall discover * * * that the sale was for any cause whatever invalid or ineffectual to give title,” etc. Now this certainly does not describe a ministerial duty. It is for the comptroller to “ discover,” that is, to decide that the sale is invalid. That decision may depend on a question of fact or a question of law, or on both. In deciding it, the comptroller may err in point of law or in point of fact; but in one case, as in the other, the remedy for the aggrieved party is by certiorari; that is to say, assuming that there can be review of the comptroller’s action.

Without passing on the other questions, therefore, the order should be affirmed, with ten dollars costs and printing disbursements.

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

Order affirmed, with ten dollars costs and printing disbursements.


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    WILLIAM B. WEAVER, Respondent, v. AUGUSTUS EDWARDS and Others, as Executors of GUSTAVUS V. EDWARDS, Deceased, Appellants, Impleaded, etc.

      Satisfaction of a mortgage procured by fraud — right of the mm'tgagee to hem its lien re-established as against junior mortgagees.

    In-March, 1870, one Broadwell mortgaged certain land, then owned by him, to the plaintiff, the mortgage being duly recorded. In January, 1873, he gave a second mortgage upon the same premises to one Edwards, who knew of the plaintiff’s mortgage, which latter mortgage was also duly recorded. In December, 1873, Broadwell, by deceit, induced the plaintiff to take a conveyance of the land in satisfaction of his mortgage and also to satisfy it of record, the plaintiff being then informed by Broadwell there was no other mortgage upon the property. The executors of Edwards, who died in 1874, seeing that the plaintiff’s mortgage was satisfied on the records, and supposing that their mortgage was a first lien, neglected for some eight years to enforce it. The Edwards mortgage was payable in six annual installments, beginning on January 1, 1874. The interest was paid annually until January, 1881; and until the expiration of nearly two years after the whole of the mortgage became due Broadwell had personal property from which the principal and interest falling due in any year could have been collected.
    In 1882, the plaintiff brought this action to set aside the satisfaction of the mortgage and also the deed to him, and to have his mortgage restored as a lien prior to that of the defendants, and to have the same foreclosed:

      .Held, ihat he was entitled to the relief sought.
    Appeal from a judgment in favor of tlie plaintiff, entered in Clinton county, March 10, 1885, upon the report of a referee.
    The action was brought to set aside a warranty deed given to the plaintiff in December, 1873, by the defendant Broadwell, to revive and restore of record a mortgage on the premises conveyed, given to the plaintiff by Broadwell in March, 1870, which plaintiff satisfied when he received the said deed, and to have such mortgage adjudged a prior lien to a mortgage given by Broadwell to the defendants’ testator in January, 1873, subsequent to that of tbe plaintiff, but of record before he satisfied tbe same, on tbe ground of certain fraudulent representations of Broadwell, and for a foreclosure of plaintiff’s satisfied mortgage.
    Tbe defense set up was: 1st. Plaintiff accepted a warranty deed of Broadwell, relying thereon, with full knowledge of defendants’ mortgage; and 2d. That defendants would have collected tbeir bond and mortgage of Broadwell as tbe same became due, when be bad an abundance of property to pay the same, except for the fact that tbe public records of Clinton county showed that plaintiff’s mortgage had been paid, satisfied and discharged, and that tbeir mortgage was tbe first lien and abundantly secured; and that defendants first beard o.f plaintiff’s claim about the time of tbe commencement of this action, when Broadwell bad become insolvent, and defendants could not collect of him, personally, any part of tbeir bond and mortgage'.

      Beckwith, Barnard & Wheeler, for tbe appellants.

      H. S. Johnson, for tbe respondent.
   Learned, P. J.:

Tbe facts are simple. One Broadwell mortgaged land to plaintiff and tbe mortgage was duly recorded. Then Broadwell mortgaged the same land to one Edwards, and this second mortgage was also duly recorded and subsequently to tbe other. Afterwards Broadwell, by deceit, induced plaintiff to take a conveyance of tbe land in satisfaction and to satisfy bis mortgage. Plaintiff was then informed by Broadwell that there was no other mortgage on tbe property than bis own, and was ignorant of tbe existence of this second mortgage.

On tbe death of Edwards, in 1874, Augusta Edwards and other defendants were appointed bis executors, and seeing that plaintiff’s mortgage was satisfied on the records, and therefore, supposing that tbe mortgage of tbeir testator was tbe first lien, they neglected for some eight years to enforce that mortgage.

This second mortgage was payable in six annual installments, the first, January 1, 1874. Tbe interest was paid annually to January, 1881. Until nearly two years after tbe whole of this mortgage became payable, Broadwell had sufficient personal property from which to collect principal and interest falling due in any year prior to January, 1881.

The plaintiff brings this action to set aside the satisfaction and the deed, to restore the mortgage as a lien prior to defendants’ mortgage and to foreclose. This relief was granted and defendants appeal.

There is no question as to plaintiff’s right to this relief as against Broadwell. The only question is whether the equity of the executors of Edwards is superior to that of plaintiff. When Edwai’ds took this mortgage, the plaintiff’s mortgage was on record. Therefore Edwards had notice of it; and his executors cannot object to a restoration of the lien, unless on the ground of some equity which has since arisen. The plaintiff’s act, in satisfying his mortgage, did not, of itself, do Edwards any harm.

Plaintiff did not discover the existence' of the second mortgage till August, 1882, and at once, commenced this action. He does not, therefore, retain the fruits of the contract, but endeavors to vacate it altogether by a cancellation of the deed, as well as a restoring of the mortgage.

If the defendants, on examining the record and finding the plaintiff’s mortgage canceled, had parted with value and had thereupon taken a deed or mortgage on the land, they would have been protected ; because, such is the provision of the recording act (1 R. S., m. p. 756, § 1), taken in connection with the subsequent sections (m. p. 761, 762, §§ 60 [28] and 69 [37] and 70 [38]); and it is only against purchasers in good faith and for a valuable consideration (including mortgagees) that an unrecorded mortgage is invalid. An unrecorded mortgage has priority over a judgment, unless there be some facts making a superior equity. So that if plaintiff’s mortgage had never been recorded, it would have had priority over a judgment recovered against Broadwell by these executors. In that case it might be urged that the lender of the money might have trusted the borrower, because his estate appeared to be unincumbered; yet that circumstance would not give the lender preference over an unrecorded mortgage.

Now this present case is not as strong as would be the case of one who had loaned money to Broadwell. Suppose that the executors liad actually loaned money to Broad well; would they have bad equity superior to the plaintiff, whose mortgage had been canceled by fraud ? These executors have parted with nothing. They did not even agree to extend the time. All that can be said is that they have neglected to foreclose, in the belief that their mortgage, which was originally a second lien, had become a first, and that by this neglect they are now unable to collect it from this land or from other property of the debtor.

The case of Fassett v. Smith (23 N. Y., 252) is cited to us. In that case the point on which members of the court disagreed was whether the bank was a bona fide purchaser. But it was not claimed that any person had an equity against the plaintiff who desired to restore a canceled mortgage unless such person had obtained a subsequent lien on the property and was a bona fide purchaser for value, without notice.

And the difficulty with the executors in this case is that mere neglect to sue does not make them bona fide purchasers for value. To put themselves in that position they must have parted with value in consideration of some lien given on the premises or conveyance thereof. All which they did was to delay enforcing an old security, because they thought that old security was good.

They made no new loan and took no new security in reliance on the fact that plaintiff’s mortgage was satisfied of record. They will still have what they always had, a second mortgage. But they will not have, what they supposed they had, a first.

The judgment should be affirmed, with costs.

Bookes and Landon, JJ., concurred.

Judgment affirmed, with costs.


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    JAMES P. VAN WYCK, Respondent, v. ADOLPH HOROWITZ, Appellant.

      Injunction restraining the use of a name on a sign — when not allowed.

    The defendant, who had heen hired as a watchmaker and clerk by the plaintiff, a jeweler, having left his employment, opened a store a few doors from that of the plaintiff, and pnt up a sign “ A. Horowitz, late with J. P. Van Wyck ” (the plaintiff).

      Held, that the plaintiff could not restrain him from using his (plaintiff’s) name on the sign. (Reversing S. 0., 16 Abb. N. C., 121.)
    Appeal from an order continuing a preliminary injunction granted in this action, which was brought to restrain the defendant from using the plaintiffs name in his signs and advertisements.

      Cady c& Iloysradt, for the appellant.

      Frederick J. Collier, for the respondent.
   By the Court :

The plaintiff formerly hired defendant as a watchmaker and clerk, the plaintiff being a jeweler. Afterwards the defendant left plaintiff’s employment and opened a store a few doors from the plaintiff.

The defendant put up a sign “A. Horowitz, late with J. P. Van Wyck,” and issued cards with a similar statement.

The plaintiff brought this action for an injunction. The gravamen of his complaint is that these words “ misrepresent the former relations of the plaintiff to the defendant.” The Special Term enjoined defendant from using the words “late with J. P. Van Wyck,” and the defendant appeals. The injunction cannot be sustained. The defendant in no way uses the name of the plaintiff. He simply states what is true, that he was once with the plaintiff. He does not state or pretend that he was a partner, and there is nothing to justify the inference that he intended to give the public such an idea. It is not pretended (as has sometimes been done in such cases) that he conceals the words “ late with,” so as to make it appear that the store which he conducts is that of the plaintiff. It is not necessary in this case to consider how far and in what cases a family name may be practically a trade-mark. Eor the difficulty with the plaintiff’s case is that the defendant is not assuming any name of the plaintiff. To state that he was “late with J. P. Van Wyek,’.’ is, on the contrary, to publish to the world that he is not now with Yan Wyck, and that his store is not Yan "Wyck’s store. Thus there is not the least fraud on the public and not the least injury to the plaintiff ; and no one would be justified in inferring that the defendant was representing himself to have formerly been a partner of the plaintiff. In fact the language used is generally understood to mean that the person is not a partner, but is in the employ of the person “ with ” whom he is said to be or to have been. The commercial agent commonly describes himself as with ” his employer.

The order should be reversed, with ten dollars costs and printing disbursements, and motion to continue injunction denied, with ten dollars costs.

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

Order reversed, with ten dollars costs and printing disbursements.


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    ALBERT V. D. COLLIER, Appellant, v. HOMER T. BEDELL, Respondent.

      Contract — when the failure of one party to deliver an insurance policy authorizes a recovery of the premium, paid,, although a valid insurance exists.

    This action was brought to recover the sum of twelve dollars and fifty cents paid by the plaintiff to the defendant, in October, 1881, for an insurance premium, under the defendant’s agreement to give him a policy of insurance to the amount of $1,000, upon the ground that the defendant had failed to deliver the policy as agreed. The defendant set up as a defense that as he was the agent of the company, and had actually received the money, his parol agreement bound the company, and the plaintiff was, in fact, insured although no policy was delivered.

      Held, that as the defendant failed to deliver the policy, the plaintiff was entitled ' to recover the amount paid.
    Appeal from a judgment of the County Court of Greene county, reversing, with costs, a judgment of a justice of the peace, rendered upon the verdict of a jury in favor of the plaintiff.

      Daley & Sherman, for the appellant.

      N. A. Calkins, for the respondent.
   Learned, P. J.:

The plaintiff sued in Justices’ Court. There are two claims — one for a bill of goods, two dollars and forty-five cents, the other for insurance premium, twelve dollars and fifty cents. He recovered on both. The County Court reversed the judgment.

The defendant admits that he had the goods, and the plaintiff testifies to this also. The plaintiff and his clerk say that the defendant never paid. The defendant says he had paid. There was a dispute as to the fact, and the jury found with plaintiff. "We see no ground for reversing this.

The other claim arose as follows : In October, 1881, the plaintiff paid the defendant twelve dollars and fifty cents for a premium, and defendant agreed to give him a policy of insurance to the amount of $1,000. The plaintiff says that the defendant never gave him any policy, and so his clerk testifies. The defendant says that in 1879 the plaintiff paid a premium, and defendant (who was agent of the People’s Insurance Company) made out and delivered him a policy; that in 1880 the plaintiff renewed, and he delivered him a renewal receipt; that in 1881 the plaintiff again paid the renewal, and he delivered another renewal receipt.

The plaintiff says, and his clerk corroborates him, that no policy or renewal was ever delivered to plaintiff for these premiums, and that there has been no such policy since 1879 among plaintiff’s policies.

The defendant says that he never asked plaintiff in what company he wanted an insurance and plaintiff never told him; and that he does not know that he ever told plaintiff that he (defendant) was agent of the People’s Insurance.

On the question whether or not the policy and the renewal receipts were delivered there is a conflict, and the jury have found with plaintiff. We see no ground to disturb this. But defendant insists that as he was the agent of the insurance company, his receipt of the money and the parol agreement to issue, bound the company, and, therefore, that the plaintiff was, in fact, insured, although he never received any policy or renewal receipt; hence that plaintiff cannot recover. (Ellis v. Albany City Fire Ins. Co., 50 N. Y., 402.)

Against plaintiff’s objection, the defendant gave in evidence three of his daily reports to the company, one in 1879, one in 1880 and the third mailed July 1, 1881, each stating the insurance of plaintiff for a year, the last being from June 14, 1881, to June 14,1882. This action was commenced May 22,1882, and, therefore, before the time had expired for which defendant claims that the renewal ran.

Now it may be true, that if a fire had occurred and the plaintiff had chosen to insist upon the facts of verbal agreement and payment, he might have recovered, even though the defendant had never delivered the policy or a renewal receipt. But he had a right to insist that the defendant should procure for him and deliver to him a policy, or it might be a renewal receipt. He was not obliged to rest on the verbal agreement when he had bargained for something more. He was left in uncertainty and insecurity, with no safe evidence on which to rely. As the jury found his story to be true, we may take it as settled that the defendant agreed to deliver him a policy and failed to do so. The defendant broke his agreement and it does not lie with him to say, “ if you had had a loss and could convince a jury that you had made a verbal agreement, you might have recovered, and, therefore, you are not injured.” The possession of the policy or the renewal receipt was of value. And the plaintiff ought, if his story is true, to recover what he paid.

The judgment of the County Court should be reversed and that of the justice affirmed, with costs.

Bookes and Landon, JJ., concurred.

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