author: Dwight, P. J.

text:
    Paulina Colburn, App'lt, v. Adam Marsh et al., Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Basement—Right of way.
    _ Tiie statutory rule embodied in § 372 of the Code which prescribes either a substantial enclosure or usual cultivation or improvement as a necessary condition of adverse possession by a person’ claiming title to land not founded on a written instrument, has no application to the case of an easement, as of passage.
    2. Same.
    Every user is presumed to have been under claim of title and adverse, and the burden is upon the party alleging that the user has been by virtue of a license or permission to prove that fact by affirmative evidence.
    3. Same—Evidence.
    In an action to restrain defendants from interfering with plaintiff’s use of an alleged right of way across defendant’s farm, declarations of defendant’s grantor made to members of his own family in the absence of plaintiff, and never communicated to him, are incompetent.
    Appeal by the plaintiff from a judgment dismissing her complaint, entered in Chautauqua county on the report of a referee.

      William H. Henderson, for app'lt; J. I. Fowler, for resp’ts.
   Dwight, P. J.

The action was to restrain the defendants from obstructing or interfering with the plaintiff’s use of an alleged right of way across a portion of the defendants’ farm. There is no conflict of evidence upon any material question of fact in the case. The only question is whether the undisputed evidence establishes an irrefragable title in the plaintiff by prescription to the easement in question. It is our conclusion that such is the effect of the evidence. The contention to the contrary, which is sustained by the learned referee, is to the effect that the user upon which the plaintiff relies to establish her title to the easement was by the license and consent of the defendants’ grantor.

The unquestioned facts of the case are to the following purport: As early as the year 1832 Nathan Phillips, the defendants’ grantor by mesne conveyances, occupied the lot of eighty-five acres now owned and occupied by the defendants in the town of Carroll, in Chautauqua county, of which he afterwards, and in the year 1836, received a deed from the Holland Land Company, and on which he lived until his death in 1853.

At the earliest date above mentioned the lot of fifty acres adjoining Phillips’ lot on the north, and cornering with it on the east, was occupied by one Benjamin Russell. There was no highway contiguous to the fifty acres, the nearest public road being one known as the Frewsburg road, which traversed the Phillips lot in a direction from southwest to northeast, and approached to within about twenty rods from the corner of the two lots. At that time ¡Russell had access to the highway from the fifty acres by means of a lane or roadway which ran from the south line, of the fifty acres to the road, at a point where the distance between the two was about twenty-nine rods ; its location was that of the right of way here in question. Sometime before the year 1838 Yearon Baton, the father and grantor of the plaintiff, succeeded to Bussell in the occupancy of the fifty acres, and in that year he received a deed of the lot from the Holland Land Company, and continued to occupy it until his death in 1881.

In that year he conveyed the fifty acres, with appurtenances, to the plaintiff, excepting eleven acres off the west end, which he had previously conveyed. The plaintiff has occupied the land conveyed to her from that time to the present, and has made use of the right of way in the same location and in the same manner as her father and Benjamin Bussell had done before she became the owner of the lot, except for the interference therewith on the part of the defendants which it is the object of this action to restrain.

It is unnecessary to recapitulate the facts of the case in greater detail. It is sufficient to say that the undisputed evidence exhibits a user of the right of way in question by the successive occupants of the fifty acres, or what is known in the case as the Eaton farm, not only for twenty years, but for a period sufficient to satisfy the ancient rule of the common law, literally a period beyond which the memory of man runneth not Ho witness speaks of a time when the right of way was not used, and the witness who speaks of the remotest date mentioned in the case knew the right of way as then in use. The user was, during all that time, open, notorious, necessarily known to the owners and occupants of the Phillips farm. Even at the remotest date above mentioned, the lane or roadway was fenced on one side, and it came to be fenced on the other side as soon as the land was so far cleared and improved as to render fencing convenient to the uses to which it was put And so the evidence discloses that during the whole period covered by the memory of all but the oldest witnesses in the case the right of way in question was marked by fences on both sides down to the time, less than twenty years before the commencement of this action, when the interference began of which the plaintiff complains.

The evidence of such fencing is important as showing the definite location and notorious use of the right of way, and, chiefly, as tending to show the exclusive character of the claim of right asserted in its use. It was not necessary for the purpose of showing that the user was adverse. The statutory rule embodied in the Code of Civil Procedure, § 372, which prescribes either a substantial enclosure or usual cultivation or improvement as a necessary condition of adverse possession by a person claiming title to land not founded upon a written instrument, has no application to the case of an easement, as of passage.

Such an easement is an incorporeal right and may as well be asserted and exercised over and upon an open and uncultivated field as upon one substantially enclosed and usually cultivated. Indeed enclosure and cultivation are likely to be derogatory to the free exercise of a right of passage over land; and, in this case,, the interference with the plaintiff’s right, complained of, consisted, in great part, of an attempt to cultivate by plowing so near the road way as to obstruct its convenient use for the passage of wagons.

It was apparent from the outset of the examination of this case that its determination depended not upon any question of the open and notorious character of the use of the right of way, nor of its continued, uninterrupted and undisputed exercise for a period much longer than necessary to establish title to the easement, but upon the sole question whether such user was under a claim of right and, therefore, adverse. And here we think the learned referee was in error in failing to give the proper force and application to the presumptions which arise from the established facts of the case. We suppose it to be entirely settled as the law of this state, that not only does the conclusive presumption of a grant arise from the fact of open, notorious, uninterrupted, undisputed and adverse user of such an easement, but that every user, in other respects answering the definition given, is presumed to have been under claim of title and adverse; and that the burden is upon the party alleging that the user has been by virtue of a license or possession, to prove that fact by affirmative evidence? The first of these propositions is scarcely disputed in this case. It is supported by the elementary writers on the subject, and has been constantly enforced by our courts. See 2 Greenleaf’s Evidence, § 537; Ward v. Warren, 82 N. Y., 265; Nicholls v. Wentworth, 100 id., 455, and the authorities cited in each. The second proposition is also well supported by authority.

In Miller v. Garlock, 8 Barb., 153, Judge Paige says: “The use of an easement for twenty years unexplained will be presumed to be under a claim or assertion of right and adverse, and not by leave or favor of the owner; ” and in Hammond v. Zehner, 21 N. Y., 118, which was an action for damages caused by flowing lands, the question is stated by the court to be whether the uninterrupted use of the dam for twenty years was sufficient defense without other manifestation of an adverse possession than the effect which it produced during that time upon the plaintiff’s land ? In other words, will the uninterrupted use of the easement be presumptive proof of an adverse possession ? And the question was adjudged in the affirmátive.

The rule is certainly well founded in principle. The presumption is evidently based upon experience of the conduct of men in given circumstances. It is contrary to probability that the owner of land should quietly submit to a long continued use of a portion of it, by a person without right, in such manner as to be injurious to his estate. Kindly feeling and good neighborhood may induce such a concession now and then or for a brief time, but submission to such a burden without protest or objection for a long series of years naturally raises the presumption of a right asserted and conceded.

But the referee, in response to a request of the plaintiff, has made a special finding of fact altogether in accordance with the last mentioned presumption. The request related to the use of the easement by Vearon Baton during the last eleven years of his life while the Phillips farm was occupied by one Thayer, who was one of the grantees of Nathan Phillips. The finding is that “ during all the time the said Hiram E. Thayer occupied the said Phillips farm as before stated, the said Vearon Baton occupied the said Baton farm, and during all said time he used and occupied said lane and roadway in passing to and from said Brewsburg highway as the same had been previously used by him, under claim of title thereto and of right so to use the same exclusive of any other right.”

It is true that in his general report the referee finds, in substance, that the original user by Baton began in a mutual understanding between himself and Phillips without deed or conveyance of the right of way, and without consideration for the license given by the one for the accommodation of the other.

By what means the learned referee was able to reconcile the general and special findings referred to is not clear; but it is certain that the-former has no competent evidence to support it. The only testimony which tends to that effect consists of certain declarations of Phillips himself, made to members of his own family, in the absence of 'Eaton, and never communicated to him. This testimony was received under the objection of the plaintiff, and was clearly incompetent. It was offered, no doubt, in response to testimony on the part of the plaintiff, objected to by the defendant, showing declarations of Eaton to the effect that he had a deed of the right of way. In respect to the testimony of this character, on either side, it is to be observed that it was the ■easement alone which was in question; that Baton was in possession of the easement during the whole period of his life which is covered by the evidence, and that Phillips was never in possession of the easement; so that, if the doctrine that the declarations -of the party in possession are competent as evidence to characterize his possession has any application to easements, the rule would apply in favor of the declarations of Baton, and not in favor of those of Phillips. But it is not necessary to discuss that ■question ; the declarations of Phillips were clearly incompetent, and should have been excluded, and they may now be disregarded. The declarations of Baton may also be disregarded, and the case is then absolutely devoid, on the one hand, of direct evidence of a grant of the right of way, and, on the other hand, ■of any evidence of a license, permission or mutual understanding between the parties under which the user had its beginning. And so the case would stand, as we think it must stand, solely upon the presumption which necessarily arises from the existence, the mode, the duration and the effect upon the estate of Phillips of the user of the right of way for the benefit of the estate of Baton. 'This presumption, viz.: that the user was under a claim of right, and, therefore, adverse, is a rebutable presumption, but there is no evidence in the case to rebut it. That presumption being entertained, there is clearly nothing in the case which militates against the full force of the final and conclusive presumption in favor of the plaintiff, viz., of a grant of the easement for which she contends.

That the easement thus established was appurtenant to the estate of Yearon Baton, and passed by his deed to the plaintiff, which expressly included the appurtenances of the estate conveyed, admits of no question. See the cases already cited, and Huttemeier v. Albro, 18 N. Y., 48; Newman v. Nellis, 97 id., 285; Mayor of New York v. Law, 125 id., 380; 35 St. Rep., 437.

If these views are correct, it follows that the exception of the plaintiff to the finding of fact to the effect that the user of the right of way by Baton was by virtue of a license merely, was well taken as being without evidence to support it, and contrary to the presumptive evidence of a grant; and the conclusion of law based upon such finding must fall with it.

The judgment should be reversed and a new trial granted, with costs to abide the final award of costs.

Lewis, Macomber and Haight, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Accounts of Frank D. Cook, Administrator with the Will Annexed of James Loomis, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Executors and administrators—-Assignment of legacy.
    Where an alleged assignee of a legacy payable after the death of a certain person made no attempt to give notice of his assignment for ten years, or to present his claim, except to an executor who had been dead fifteen years, he is guilty of laches, and cannot enforce his claim against an administrator with the will annexed, who had in good faith paid the legacy to the legatee.
    2. Same.
    The fact that the account filed in a proceeding to compel an accounting by the executors of his predecessor stated that E. was the assignee of R.'s legacy, and the fact that the accounting filed by the administrator stated that it had been reported that R. had assigned his interest in the estate, but that he had no knowledge respecting the truth or falsity of the report, is not sufficient to show bad faith or neglect of duty on the part of the administrator in paying R. his legacy.
    Appeal by Charles W. Fuller, petitioner, from an order of the surrogate’s court of Ontario county, denying his applicátion to open and amend a decree finally settling the accounts of the admintrator above named.

      Moses Shire, for app’lt; D. G. Lapham, for resp’t, Cook; G. D. Read, for resp’t, Rockwell.
   Dwight, P. J.

The testator, James Loomis, late of Ontario county, died many years ago, leaving a will by which he appointed his widow, Nancy Loomis, and one Charles Shepard his executors, and gave a legacy of $900 to the respondent, Adin Rockwell, payable only after the death of the widow. That event occurred in 1891. Charles Shepard, who seems to have been the sole acting executor, died in 1867, and was succeeded, first, by Charles E. Shepard, who died in 1886, and, afterwards, by the respondent, Cook, as administrator with the will annexed of the estate of James Loomis.

In April, 1892, Cook made his petition to the surrogate’s court of Ontario county for a final settlement of his accounts as such administrator; an accounting was had and a decree made accordingly, which, among other things, directed the payment to the legatee, Adin Bockwell, of the legacy before mentioned. That payment, with all others directed by the decree, was duly made, and, by a supplemental order, Cook was fully discharged from duty and liability as such administrator.

Thereafter, and on the 20th day of September, 1892, the appellant, Charles W. Fuller, filed in the same court his petition praying for an order requiring Cook to show cause why the decree above mentioned should not be opened and amended so as to direct him to pay to the petitioner, instead of Adin Bockwell, the legacy in question. In his petition Fuller alleged that on the 1st day of November, 1882, Bockwell duly assigned the legacy to him and that immediately upon the receipt of such assignment he had caused written notice thereof to be given to Charles Shepard, one of the executors of the will of Loomis. The same petition, in tracing the successive administrations of Loomis’ estate, shows, as the fact was, that Charles Shepard died in 1867, fifteen years before the assignment was made; this contradiction of statements is nowhere in the case corrected or explained.

The petition further shows that in 1887 Cook, as administrator, etc., of Loomis, instituted proceedings in the same court to compel an accounting by the executors of Charles E. Shepard, deceased, his predecessor in such administration, and that in the account filed by them, in the schedule which gave the names of persons interested in the estate, was the following entry: “ Adin Bock-well of Bochester, FT. Y., Charles W. Fuller, assignee of interest of Adin Bockwell, residence unknown.” The petition also showed that in the account of Cook, filed for settlement in April, 1892, „ is the statement: “ It has been reported that said Adin Bockwell has assigned his interest in said estate, but I have no knowledge respecting the truth or falsity of said report, and no information as to the name or residence of the assignee if one exists.” The foregoing are all the matters stated in the petition which tend to charge the respondent with notice of the assignment.

The petition was answered by Cook, the administrator, and also by Bockwell, the legatee, who, though not cited under the order to show cause, appeared on his own motion, as he had a right to do. Code of Civil Procedure, § 2731. Cook denied that he had any notice that the legacy had ever been assigned, except by mere rumor, which did not give the name of the supposed assignee; alleges that he made diligent inquiry to ascertain the truth of the report and was unable to obtain any further information on the subject; alleges that he never saw the entry in the account filed by the executors of Charles E. Shepard, nor had his attention called to it Rockwell answers, admitting that he executed an assignment of the legacy to Fuller, but impeaching it for fraud, deceit and duress. No evidence was taken on either side, and the case stands on the undisputed allegations of the petition and the two answers.

On the case thus presented we think the decree of the surrogate’s court denying the prayer of the petition was clearly right, on three grounds: (1) for laches on the part of the petitioner; (2) for want of notice to the administrator before the money was actually paid by him to the legatee; (3) because the surrogate had no jurisdiction to try the question of the validity of the assignment

The laches of the petitioner are shown by the fact that for ten years he made no attempt to give notice of his assignment, or to present his claim, except to an executor who had been dead for fifteen years. If, as he says, he did not know that the deceased executor had been succeeded in the administration of the estate, that of itself shows laches, because the fact could have been learned, at any time, on application to the surrogate of the proper county. ,

We also agree with the learned surrogate that the case fails to show such notice of an assignment to the administrator as to charge him either with bad faith or neglect -of duty in failing to cause the petitioner to be cited to the final accounting. In the absence of such a case against the administrator, a conclusive answer to the petition is found in the fact that the validity of the assignment was positively denied on the return of the order to show cause. The only purpose for which it was sought to open the decree was to substitute a direction for the payment of the legacy to the alleged assignee. This, of course, could not be done until the validity of the assignment was established and the surrogate had no jurisdiction of that issue. Code Civ. Pro., §§ 2718, 2743; In re Brown, 3 Civ. Pro., 39; Strong v. Strong, 3 Redf., 481; In re Martine's estate, 11 Abb. N. C., 54.

Nor was this a c'ase in which the decree should have been opened in order to admit the petitioner as a party to it and then the accounting suspended until the question of the validity of the „ assignment could have been determined in a proper tribunal. For here not only was the accounting completed, but the money in the hands of the administrator had been paid out in accordance with the directions of the decree. This, it is plain, must be a complete defense to the administrator against the liability to pay it again unless, as we have said, he has been guilty of bad faith or neglect of official duty in procuring the settlement and the decree to be made.

The remedy of the petitioner seems to be by action against Rockwell or against Rockwell and Cook, if, as is strongly intimated in the petition, there is ground for alleging that the two were in complicity in procuring the direction of the decree for the payment of the legacy to Rockwell, notwithstanding a valid assignment, without giving an opportunity to be heard.

On the case made by the findings in the surrogate’s court, the order was right and should be affirmed.

Order of the surrogate’s court of Ontario county, appealed from, affirmed, with costs.

Lewis, Macomber and Haight, JJ., concur.


text:
    John V. Carr, App'lt, v. Timothy Sullivan et al., Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Sale—Acceptance—Warranty.
    Where a vendee, without complaint or notice to the sellers, directed his agent to sell the goods purchased, and made no communication to the sellers on the subject until they sued him on another matter, when he set up breach of alleged warranty in the sale of the goods as a counterclaim, Held, that he had unqualifiedly and unconditionally accepted the goods and such acceptance precluded a recovery for breach of warranty.
    2. Trial—Direction or verdict—Request to go to jury.
    While it is true that a request for the direction of a verdict is not necessarily a waiver of the right to go to the jury, but when such request has been denied, he may afterwards insist upon his right to go to the jury if he makes the claim in time, it is too late after the direction for a verdict has been given.
    Appeal by the plaintiff from a judgment of the county court of Brie county, in favor of the defendants, for $280.38, the amount of a counterclaim and costs, entered on the verdict of a jury directed by the court; and from an order denying the plaintiff’s motion for a new trial on the minutes of the court

      Hartzell & Newton, for app’lt; A. C. Calkins, for resp’ts.
   Dwight, P. J.

The action was the defendants as indorsers, in their firm name, of a promissory note for $294.59 made July 17, 1891, by “L. F. Genet Lumber Co.,” payable in three months, to the order of the defendants, for lumber sold by them to the maker and indorsed by them for discount at a bank in Buffalo. The note, at its maturity, was dishonored by the maker and protested for non-payment 1'he defendants then took up the note and shortly afterwards delivered it to the plaintiff on payment by him of the amount due thereon. The note was said to be lost at the time of the tidal, so that it was not produced in evidence, but it seems the indorsement of the defendants was not erased at the time of its delivery to the plaintiff. By the plaintiff’s verified complaint it is alleged that it was indorsed by the defendants at the, time of its delivery to him, but by his testimony on the trial he admits this statement not to be true.

At this point arises the first issue between the parties. The theory of the plaintiff’s case is that this was a purchase by him of the note as a subsisting obligation against both maker and indorsers; that of the defendants is that the transaction was a payment of the note by the plaintiff for the makers; and the evidence on either side tends to support the theory of each, with a very decided preponderance in favor of the defendants.

The answer, besides the defense above stated, sets up a counterclaim for the amount of a promissory note of $288 made by the plaintiff to the defendants for lumber sold by them to him, dated November 21, 1891, less than a month after the alleged purchase by him of the note set up in this complain! The plaintiff, by his reply, admitted the making and delivery of the note set up by the answer, but claimed to recoup thereon damages for the breach of an alleged warranty, by defendants, of the quality of the lumber for which the note was, given.

This presented the only remaining issue on the pleadings, and, on the proof, there was clearly no question for the jury. The alleged warranty consisted in the order given by the plaintiff and accepted by the defendants for the future delivery in New York of a car load of elm lumber of the qualities known as “ firsts ” and “ secondsand the evidence of the plaintiff, himself, shows that when the lumber was delivered to his agent in New York, and was reported to him by the agent as not being of the qualities ordered, the plaintiff, nevertheless, without complaint or notice to the defendants, directed his agent to sell the lumber, which he did; and the plaintiff made no communication to the defendants on the subject until by his reply in this action. This was an unconditional and unqualified acceptance of the property, and precluded any recovery thereafter for its failure to conform to the terms of the executory contract under which it was delivered. Reed v. Randall, 29 N. Y., 358; Rust v. Eckler, 41 id., 488; McCormick v. Sarson, 45 id., 265.

When the evidence was closed the plaintiff’s counsel requested that the court direct a verdict for the plaintiff for the amount of the note declared upon in the complaint, which the court declined to do. Defendants’ counsel then requested 'the court to direct a verdict in their favor for the amount of the note set up in the answer, less a drawback for freight which was conceded by the defendants; and the court directed such a verdict to be taken. After that direction had been' given, counsel for the plaintiff asked to go to the jury on each of the issues above defined severally ; which request was denied, the plaintiff excepted, and a verdict for the defendants was taken as previously directed.

It is now a familiar rule that when counsel for both parties request the court to direct a verdict, all of the issues of fact, as well as of law, are to be regarded as submitted to the decision of the court, and no question need be submitted to the jury. Dillon v. Cockcroft, 90 N. Y., 649.

It is true that a request for the direction of a verdict is not necessarily a waiver of the right to go to the jury, but when such request of either party has been denied, he may afterwards insist upon his right to go to the jury, if he makes the claim in time. It is manifestly too late to do so after the direction of a verdict has been given. The court has then acted upon the submission to it of all the questions in the case, and it is too late to withdraw the consent to such submission. Howell v. Wright, 122 N. Y., 667; 34 St. Rep., 212.

There was no error in the disposition made by the court of questions of fact in this case. Upon the second of the issues presented we have already held there was no question for the jury. And upon the first we have already intimated our opinion that there was a clear preponderance of evidence in favor of the defendants.

We find no other exception in the case which requires discussion.

The judgment and order appealed from should be affirmed.

Lewis, Macomber and Haight, JJ., concur.


text:
    Alfred Willoughby et al., Resp'ts, v. The Fredonia National Bank, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    False representations—Burden of proof.
    In an action to recover money paid to defendant by plaintiffs, on procuring the discharge of a mortgage given by their grantor to secure notes indorsed for him, induced thereto by the false representation that the mortgage was a lien on the lands, which were situated in Pennsylvania, it appeared that all the outstanding notes were made after the conveyance to plaintiffs. Held, that the burden was with the plaintiffs to show that the representation was false, and if that fact depended upon the laws of ° Pennsylvania, it was incumbent upon them to make proof of such laws.
    Appeal by the defendant from a judgment entered in Chautauqua county on the report of a referee.

      O. W. Johnson, for app’lt; J. G. Johnson, for resp’ts.
   Dwight, P. J.

The action was to recover money paid to the defendant by the plaintiff, induced thereto, as alleged, by certain false representations made by the former to the latter.

The narrative of the case leading up to the allegation of false representations is, in substance, as recited in the complaint, and somewhat more at large, as follows : In and before the year 1879 one Pemberton was the owner of an undivided interest in a small tract of oil land situate in McKean county, in the state of Pennsylvania. He was a borrower of money, and., in January of that year he gave to one Skidmore a mortgage on the interest mentioned to secure the payment of all notes, to the amount of $2,500, “ indorsed, or to be indorsed ” by Skidmore for him. In February of the same year Skidmore assigned the mortgage to the defendant as collateral security for the payment of all notes, so made and indorsed, which should be discounted by it, and in March the mortgage and assignment were both recorded in the proper office in McKean county.

In February, 1881, Pemberton and wife united with the other tenants in common of the property in a conveyance of the entire estate to the plaintiffs. About three years later the defendant by letter of its cashier called the attention of the plaintiff Willoughby, who was a resident of Bradford county, to the fact that it held the mortgage; informed him that it also held notes of Pemberton, secured thereby and unpaid, to the amount of $1,250, and intimated that it might become necessary to resort to a foreclosure of the mortgage for their collection. The plaintiffs seem to have paid no attention to this letter until nearly two years later, when, having a favorable opportunity to make sale of the land, they applied to the defendant to obtain a discharge of the mortgage, and it was at that time that, as the complaint alleges, the representations were made to the plaintiffs which are the basis of this action.

Those representations, as charged, were to the effect, only, that notes made by Pemberton and indorsed by Skidmore were in the hands of the defendant unpaid, to the amount, with interest, of $1,493.50, and that the defendant had a lien on the land above mentioned for that amount. No other representations than these are alleged in the complaint, and it is these representations alone which, it is alleged, the plaintiffs believed to be true, and in reliance upon which they consented to and did pay the sum demanded by the defendant as a condition of discharging the mortgage. That was the sum of $746.75, or one-half of the amount, principal and interest, which the defendant claimed to be due on the notes.

The above are, moreover, all the representations which are negatived by the complaint; and this is done by an allegation as follows: “ That in fact and truth, the notes so made by said Pemberton and indorsed by said Skidmore had been, before that timé, fully paid, and that the said mortgage was not a lien on the said land for any sum.”

Here was, plainly, but one representation of a matter of fact alleged to have been made, and charged to have been false, viz. : that the notes in question were unpaid. The other representation charged, viz.: that the mortgage was a lien for the amount of those notes, was the statement of a conclusion of law, dependent, apparently, upon the fact previously asserted, that the notes were unpaid. But that fact was fully and concededly established by the evidence, and so it was found by the referee. Accordingly, the plaintiffs shifted their ground on the trial, and Willoughby was permitted to testify that the representation made by the officers of the defendant at the time the money was paid, and upon which he relied in making such payment, was not, as alleged in the complaint, that the notes were unpaid, but that they were given before the conveyance of the land by Pemberton and his co-tenants to the plaintiffs. That representation, if it was made, was contrary to the fact, as was plainly shown by a written statement of the notes, showing their several dates, and a computation of the interest on each note, which was given to Willoughby by the cashier in the same interview, in which, as he testified, the representation was made to him that they were all given before the conveyance of the land to the plain tiffs. The dates shown by the written statement were from July, 1881, to May, 1882, while the conveyance was made in February, 1881.

When the first question was put to Willoughby, as a witness, which pointed to evidence of this character, it was objected to by counsel for the defendant as incompetent under the pleadings. The objection was a good one, and should have been sustained if it was insisted upon ; but the record shows no ruling on the objection, and no exception. The question was answered, and was followed, without further objection by an extraordinary series of leading questions, by means of which counsel were finally able to draw from their own client, apparently against his own impressions, his assent to the propositions embodied in their questions, to the effect, namely, that the representation made to him by the officers of the bank was the one last above stated ; that he believed such representation to be true, and relied upon it, and that he would not have paid this money for the discharge of the mortgage except for such belief and reliance; all of which was in direct contravention of the allegations of the complaint in that regard. It is difficult to believe that' counsel for the defendant would have submitted without objection to such a course of examination of the witness if they had not supposed that they had already an available objection and exception which covered all this class of testimony.

Upon this testimony, though contradicted by the officers of the bank who were present, the referee found that the defendant represented to the plaintiffs that the notes held by it were made by Pemberton while he owned the land. The finding was not secundum allegata, nor was it sustained by proof which seems to us at all satisfactory. The referee also found, as upon a question of fact, that the representation that the mortgage was a lien on the mortgaged premises for the amount of the notes of $1,250 was untrue, but he repeats the same finding as a conclusion of law, and with an addition which plainly shows the ground upon which the finding was based; the addition is “ that Pemberton after the conveyance by him could create no debt or lien upon the land."

This conclusion of law, which is the only one found in the report (except that the plaintiffs are entitled to judgment), involves, we think, the error into which the learned referee fell, and which must be fatal to the judgment. Had the mortgage been given on property situated in this state the finding would have been manifestly erroneous.

Because it is perfectly well settled as the law of this state, that a mortgage to secure future advances or indorsements is valid ; is within the recording act; is notice to subsequent purchasers, and puts them upon inquiry as to the amount of advances or indorsements already made; and that it is only by notice to the mortgagee, or other holder of the mortgage, that still further advances or indorsements which shall be equally a lien on the mortgaged premises can be prevented. See Ackerman v. Hunsicker, 85 N. Y., 43, and the cases cited. In most of these cases the doctrine rests upon the effect of the recording act, but in the case of Shirras v. Caig, 7 Crancb, 34, the doctrine is declared to the full extent, by Chief Justice Marshall, without regard to recording acts and upon equitable principles of the common law.

There is no finding or evidence in the case of notice to the defendant of the conveyance to the plaintiffs until after the discount of the notes in question. Neither is there any finding as to what is the law of the state of Pennsylvania, either by statute or by the decisions of its courts, in respect to the lien of mortgages of the character in question. We must assume, therefore, that the conclusion of the referee that “Pemberton after the conveyance by him could create no debt or lien upon the land,” was based upon an acceptance of the proposition which is urged by counsel for the respondents, on the argument of this appeal, that it was incumbent upon the defendant to show that the law of Pennsylvania was similar in effect to that of this state before it could assert that the mortgage was a lien for the notes in question. And j ust here is the error above referred to, viz.: the holding, in effect, that the affirmative was with the defendant to show that the lien in question existed. Plainly the contrary was true. It was the plaintiffs who alleged that the defendant’s representation that it had a lien for the amount of the three notes was false. The burden was upon them to prove it so, and if its truth or falsity depended upon the laws of Pennsylvania, it was incumbent upon them to make proof of those laws. The rule which lays the burden of proof on the party who alleges a fact applies to no case more strictly than to one in which the allegation is of fraud or false representations.

For the error pointed out the judgment should be reversed and a new trial granted.

Judgment appealed from reversed and a new trial granted, with costs to abide the event.

■ Macomber," Lewis and Haight, JJ., concur.


text:
    Sylvester J. Ingalls, Resp't, v. Prin Ingersoll, Impl'd, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Foreclosure—Evidence.
    On the trial of an action brought to foreclose a mortgage, where the defense is want of consideration and wrongful diversion, and the mortgagee’s testimony is evasive and his title and right to assign strongly impeached, it is proper to ask him on cross-examination whether he had ever taken a writing from the assignee of the mortgage in reference to it, as bearing on the bona fdes of the assignment.

      2. Same.
    So also as to a question if he told the assignee, at the time he let him have the mortgage, that he must not disturb the mortgagor.
    Appeal by the defendant from a judgment entered in Allegany county, on the report of a referee.

      G. W. Harding, for app’lt; J. G. Leggett, for resp’t.
   Dwight, P. J.

The action was for the foreclosure of a mortgage made by the defendant Mrs. Ingersoll to one Bussell and assigned to the plaintiff. The defense was want of consideration; the defendant averring that she made the mortgage at the request of the mortgagee, without any consideration, to be used by him at a bank as collateral security for a loan of $200; but that the mortgagee wrongfully diverted it from that use and sold it to one John W. Ingalls, who sold it to the plaintiff.

The issue thus joined presented the only question litigated on the trial, and that was purely a question of fact.

On that question the defendant made direct and positive evidence in support of the averments of her answer by her own testimony and that of her brother, who testified that he was present when the application was made to her for the mortgage. On the part of the plaintiff the only direct evidence was by the testimony of Bussell, the mortgagee, and that testimony, we feel bound to say, was of an extremely unsatisfactory character.'

On his direct examination he testified to no fact whatever except that Mrs. Ingersoll received $400, in money, for the mortgage, which was paid to her or as she requested. All the rest of his testimony, on direct examination, consisted of specific denials of matters testified to by the defendant and her brother. On his cross-examination counsel for the defendant seems to have made the effort to obtain from this witness his version of the transaction, but wholly without success. Nearly all his answers seem to have been evasive. He professed himself unable to tell where the defendant applied to hiifl for the loan, or what she said in making the application; where the mortgage was executed, or by whom it was delivered to him; where or when he paid her any part of the consideration, or where he got any part of the money which he paid. He testified that he did not know who wrote the mortgage, but that he did not; nor who wrote the acknowledgment; nor whether both were written by the same person ; he afterwards testified that he wrote the acknowledgment ; but he does not know where he wrote it. He testified : “ I do not know whether Mrs. Ingersoll sold the mortgage or not; I think I paid the consideration to her, orto the person to whom she sold the mortgage.” The witness was a lawyer, and eighty-three years of age; but these facts do not seem to account for the incoherent, unintelligent and apparently evasive character of his testimony. The referee can hardly have given much weight to his categorical denials of the evidence on the part of the defendant, when he was unable or unwilling to give any account whatever of the transaction as it actually occurred.

The only other evidence on the part of the plaintiff was derived from an admission of her answer that she had made three small payments of interest on the mortgage, and from two letters written by her, when temporarily in Kansas, to John W. Ingalls, who then held the mortgage, and who had written her demanding payment of the interest, and threatening foreclosure if it was npt paid. In the first of the letters she expresses great surprise that the mortgage was in his hands; but one of them enclosed a draft for sixteen dollars, and both contain promises of further payments when she returns home. She testifies that she made both payments and promises in the belief that by no other means could she prevent the sale of her property on foreclosure.

It was, probably, the evidence of payment and promises to pay which induced the report in favor of the plaintiff, and we are not prepared to say that the findings were unwarranted by the evidence as it stood. But we are of the opinion that the referee erred in his rulings upon one or two questions of evidence which arose upon the trial.

On the cross-examination of the witness, Bussell, who was a party to the transaction which was the subject of inquiry, and whose examination thus far had been so unproductive of facts, he was asked whether he had ever taken a writing from John W. In-galls in reference to this mortgage. The question was objected to as not a proper part of cross-examination and the objection was sustained. We think it should have been overruled. Ingalls was Bussell’s assignee of the mortgage. Bussell’s title to the mortgage and his right to assign it had been strongly impeached. The court should have availed itself of every means of testing the honesty of this assignment.. If Ingalls gave back to his assignor some paper in the nature of a defeasance! as providing against an attempt to enforce the mortgage against the mortgagor, or which in any other way bore upon the Iona fides of the assignment, the defendant was entitled to elicit the fact, if possible, from the witness. In view of the evasive character of his testimony already given, a very wide scope should have been allowed to his further cross-examination. Another question pointing in the same direction was put to the witness and was disallowed by the court on the same ground as the last. It was: “ Did you tell John W. In-galls at the time you let him have this mortgage, that he must not disturb Mrs. Ingersoll ?” The question was an important one, and if answered in the affirmative would, no doubt, have been followed by questions which would have gone far to demonstrate the truth of the case. We think both of the questions discussed were properly part of the cross-examination of this witness; that the objection thereto was improperly sustained.' The case was, to say the • least, a doubtful one on the question of fact, and one from the elucidation of which no available light should have been excluded.

For the erroneous rulings mentioned the judgment should be reversed and a new trial granted.

So ordered, with costs to abide the final award of costs.

Lewis, Macomber and Haight, JJ., concur.


author: Pryor, J. Daly, Ch. J.

text:
    Thomas Kirk et al., Adm'rs, App'lts, v. Bridget McCusker, Resp't.

      (New York Common Pleas, General Term,

      Filed April 10, 1893.)

    Gifts—Causa mortis—Evidence.
    In an action relating to the ownership of certain bank deposits defendant claimed them as gifts from plaintiff’s intestate. It appeared that intestate delivered three bank books to defendant, who thereafter returned one; that subsequently money was withdrawn from another bank in defendant’s presence, and that testatrix executed a paper stating that if anything happened she left all the money in bank to defendant. On the trial defendant was allowed to testify that she had the three bank books in her possession since the evening when it was shown they were given to her by the intestate. Held, that a judgment in favor of defendant could not be sustained.
    ' Appeal from judgment in equity.
    Action by administrators to recover assets of their intestate; defense, a donatio causa mortis. The supposed gift was by the delivery to the respondent of three bank books evidencing deposits in three different savings institutions.

      John McGinn (Edward W. H. Johnston, of counsel), for app'lts Peter Condon, for resp't.
   Pryor, J.

“ Soundpolicy requires that the law regulating gifts causa mortis should not be extended; and that the range of such gifts should not be enlarged.” Earl, J., in Bidden v. Thrall, 125 R Y„ 572, 581; 35 St. Rep., 913.

A gift imports ex vi termini a present transfer of the property and an executory gift is a legal absurdity. 2 Kent’s Com., 438=

lienee, an intention to give, no matter how absolute and explicit, is merely nugatory ; but, to a valid and effectual gift, delivery of the thing given, with the purpose and effect of passing the property as well as the possession, is an indispensable condition. Beaver v. Beaver, 117 N. Y., 421, 429; 27 St. Rep., 405; Young v. Young, 80 N. Y., 422; Jackson v. R. R. Co., 88 id., 520; Harris v. Clark, 3 id., 93. Such a delivery is as essential to a gift causa mortis, as to a gift inter vivos. Ridden v. Thrall, 125 N. Y., 572, 579; 35 St. Rep., 913; Harris v. Clark, 3 N. Y., 93, 113; Gescheidt v. Drier, 47 St. Rep., 410; Basket v. Hassellt 107 U. S.; 602; Conklin v. Conklin, 20 Hun, 278; Turner v. Brown, 6 id., 331, 333; 2 Kent Com., 448, 12th ed., rnarg. note by Judge Holmes. “ There must be a renunciation by the donor and an acquisition by the donee of all interest in and title to the subject of the gift.” Wetmore v. Brooks, 44 St. Rep., 328, N. Y. common pleas. By a gift causa mortis “ the title to the property passes from the donor to the donee at the time of delivery, defeasible only during the life-time of the donor.” 8 Am. and Eng. Ency. of Law, 1352.

“ To constitute a gift causa mortis, it is not only essential that delivery be complete, but possession must be retained by the donee until the donor’s death. If after delivery the donor again has possession, the gift is nugatory.” Dunbar v. Dunbar, 80 Maine, 152; 6 Am. St., 166; Craig v. Craig, 3 Barb. Ch., 78.

“ Death of the donor without revocation of the gift ” is requisite to the validity of a donatio causa mortis. Champney v. Blanchard. 39 N. Y., 111, 116.

The burden was upon the respondent to establish the gift she alleges against the apparent title of the appellants; and to establish it by clear and satisfactory proof. Develin v. GreenwichSavings Bk., 125 N. Y., 756; 35 St. Rep., 922; Wetmore v. Brooks, supra. If the evidence be insufficient as to any fact indispensable in the constitution of a gift causa mortis the judgment cannot stand ; and we must so decide, however repugnant the conclusion to the inclination of the court.

Assuming what, however, is extremely questionable, that the donor never resumed possession of the bank-books after their delivery to the respondent; the fact is uncontroverted that she subsequently appropriated to her own use a part of the very fund which is claimed to have been transferred to the donee by the alleged gift causa mortis. By the instrumentality of those books, in the presence and with the concurrence of the respondent, she drew six hundred dollars from the bank, and applied it to her own personal use. The alternative is inevitable, that the donor never meant to part with the present possession and dominion of the thing given; or else that, in the exercise of her unquestionable right, she revoked the intended gift; and either inference is fatal to the validity of the donation. By collecting and appropriating a portion of the fund which the delivery of the books is supposed to have destined to the donee, the donor unequivocally asserted possession and dominion of the thing given; asserted and exercised thejMs disponendi in its utmost plenitude. “ There can be no gift in law if one exercises dominion over the subject of the gift.” Dougherty v. Moore, 18 Atl. Rep., 35. “ Redelivery of the subject of the gift to the donor revokes the gift.” Wigle v. Wigle, 6 Watts, 522.

The donor’s act of reclamation, in itself, would operate to nullify her original intention, if such there was, to pass possession and property; but, indeed, it is not clear that she ever meant to relinquish dominion of the subject of the contemplated gift. The paper executed at the time of the transaction, otherwise unimportant, contains the most authentic exposition of her purpose; and by that she says, “ if anything happens, I leave all the money I have in the bank to Bridget McCusker.” Here, beyond question, is not a gift in prcesenii, defeasible upon a contingency, i. e., the recovery of the donor; but, an inchoate gift suspended in ■operation and effect upon a future event, i. e., “ if anything happens.”

In donatio causa mortis the condition is subsequent and operates to defeat a title already vested; while here the condition is precedent, and intercepted the transfer of title until the something “happens.” With this construction of the paper, the conduct of both donor and donee was in harmony. The donee, mindful of the wants of the donor, urged her to retain one of the books so that she might draw money for probable exigencies; and the donor did draw from the fund she intended as a gift to the donee.

If it be argued that as the money appropriated by the donor was drawn by two books and from two banks, the deposit in the other bank is unaffected ; we answer, that the gift was by one act and of an integral fund, not by several acts and in distinct parcels; that the same intention actuated and characterized the delivery of all the books; and that by necessary consequence, if dominion was reserved as to the deposits in two banks, it was reserved as to all; or if there was a revocation as two, there was a revocation as to all the deposits.

But, for another and independent reason, this pretended gift is manifestly void.

As its name imports, a gift causa mortis is made in contemplation of the death of the donor; and that it be so made is an indispensable condition of its validity. A gift upon any other contingency is not a donatio causa mortis.

Now the evidence utterly fails to show that it was an apprehension of death by the donor that prompted the delivery of the bank books to the defendant. True, Margaret Kirk was of infirm health ; and true also it is that on the occasion of the delivery of the books, she said the doctor had told her she “ was liable to go off at any time.” But, not for that did she deliver the books to the defendant. By the uncontroverted testimony, the testimony of defendant’s own witnesses, another motive than the fear of death actuated the delivery of the books.

Detailing the circumstances of the alleged donation, Petér Hughes testifies: “ As soon as I came in, she says, ‘Well, Bridgie’s employers have sent for her to go home; now, you know about that letter that my sister sent me, saying that Thomas Kirk would come on here and carry out his intention to burn the house; now, if Bridgie goes home and he comes and burns the house, I want her to have her share. * * * If he comes on, why, Bridgie, you have got this money; he cannot touch it; you have got it.’ * * * She said that if anything happened to her while Miss McCusker was away she would have something anyhow if Thomas Kirk, her brother, should come here and do any damage. * * * She said that Miss McCusker would have this if he would come on and do any damage.”

Kate Graughran testified: “ She said, I want to leave all the money in bank to Miss McCusker, in case anything should happen. * * " Well, if I don’t see Bridget any more, I am glad I got her to take the bank books home with her.”

What, then, is the inference from these repeated expressions of Margaret Kirk? That she delivered the bank books upon the -contingency of her death; or in apprehension of the threat of Thomas Kirk to burn or tear down the house ? That the latter was the event, and the only event, she had in mind, and intended to provide against, is manifest beyond the possibility of rational dispute.

Indeed, that Margaret Kirk was under no apprehension of imminent death is apparent, not only from the absence of satisfactory evidence to the contrary, but by the fact that, after the so-called gift causa mortis, she busied herself about the details of domestic economy, and in making improvements and additions to her house.

Mindful that the law regards gifts causa mortis with distrust, and exacts for their support clear and convincing proof, we are unable to find in the record sufficient evidence to uphold the judgment. Whatever our reprobation of the plaintiffs and sympathy with the defendant, our decision must still be in conformity with the rules of law.

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

Daly, Ch. J.

The judgment appealed from will have to b<. reversed for error in the admission of testimony of the defendant concerning a transaction with the plaintiffs’ intestate. The issue in the case was whether the deceased had personally delivered her bank books to the defendant with the intention of making a gift to the latter of the money in the banks, and whether thereafter the donor had recovered possession of any of the books and. revoked the gift of the money, or any part of it The defendant’s witness, Peter Hughes, had testified to a transaction of February 12, 1892, between the deceased, Miss Kirk, and the defendant, in which the bank books were given to the latter; but he also testified that one of the books was handed back to Miss Kirk by defendant, who subsequently, after the death of Miss Kirk, took the book from the rooms of deceased. The defendant was then sworn on her own behalf, and was asked how long the three bank books had been in her possession. This was objected to by plaintiff as within the prohibition of § 829 of the Code, but the objection was overruled, and the plaintiffs excepted. The defendant then answered: “ Since the evening of February 12th of this year.” A motion by plaintiff to strike out the answer as relating to a transaction with a deceased person was denied, and exception taken.

The materiality of this testimony of the defendant was, that the personal transaction and communication between deceased and herself, as testified to by Hughes, might be inferred from it; and' she thus testified indirectly to both such transaction and communication. “ The fact she spoke of was in no just sense independent of and extrinsic to the personal transaction and communication, but derived its chief significance from its dependence1 upon and intrinsic connection with both.” Viall v. Leavens, 39 Hun, 291. The case cited resembles the present closely, and is an authority directly in point; for there the witness testified to-the possession of a deed, the delivery of which was in question.

In Spicer v. Spicer, 54 N. Y. Supr. Ct., 280, a defendant was asked how long a deed, alleged to have been obtained from the deceased by fraud and undue influence, had been in his possession. The evidence -was admitted on the ground that it may well have been that the deed was not delivered to the witness by the grantor personally.” In the present case the proof of such personal delivery is the basis of the witness’ claim to the possession of the books.

With respect to the merits of the case, it may be said that the decision of the trial judge might have been sustained in part, if not wholly, but for the error pointed out above. If the re-delivery of the Bleecker Street Bank pass book could be construed as a rescission of the gift, and its retention by the donor as a revocation, then it should be deemed a rescission or revocation of the gift of the money deposited in that bank, and not of the moneys deposited in the other banks, the books of which were never delivered back to the deceased.

But I do not think that the re-delivery of the Bleecker Street. Bank book affected the gift of the money in that bank in any particular. For the deceased never drew any of the money, and the book was reluctantly received by her at the urgent solicitation of the donor and as a provision for possible contingent needs only. Nothing in this transaction indicates the slightest desire, or intention, on the part of the deceased to take back what had been so freely given.

With respect to the subsequent withdrawal of money from the Emigrant Savings Bank, which Hughes says the defendant told him, “ she got Mag to draw to send to her sister in Ireland; ” that money could only have been drawn on presentation of the book in defendant’s possession, and it was so drawn in defendant’s presence, both'parties going to the bank together; and this withdrawal of the sum in question did not affect the ownership of the balance of the bank, the book being still retained by defendant.

As to the original gift, all the constituents of the donatio causa mortis are found in the detailed transaction. The illness or ailment of the donor, from which she never recovered before her death, which took place within six weeks; the gift in presentí of the bank books to the defendant, which is a delivery of the sums «credited therein, Ridden v. Thrall, 125 N. Y., 572; S. C, 35 St. Rep., 913; Walsh v. Bowery Savings Bank, 15 Daly, 403; 28 St. Rep., 402; Penfield v. Thayer, 2 E. D. S., 305; the words which accompanied the gift “ there is your fortune for you,” together with the whole conversation, make out a case beyond even a reasonable doubt.

The written paper which, at the time of the gift, the deceased «caused to be drawn up, and which she signed: “ I, Margaret Kirk, if anything happens, I leave all the money I have in the bank to Bridget McCusker,” confirms the gift. The contingency therein expressed referred to her death. She told them that the doctor told her that the sickness would take her off at any time. If she had apprehensions about her brother coming from Ireland, they must have related to his coming after her death, for his coming «during her lifetime would not affect defendant’s prospects of getting “ her share.” Nor does the contingency mentioned in the paper indicate that the gift was not to take effect immediately. The paper tersely expressed what the law implied in a gift causa mortis. “ Such gifts are inchoate, and not perfected until the death of the donor.” Parker v. Marston, 27 Me., 196, 203. JA Such a gift does not become perfect till the death of the donor.” Parish v. Stone, 14 Pick., 198, 203. “ A donatio causa mortis does not pass a title immediately, but it is only to take effect on the death of the donor.” Grover v. Grover, 24 Pick., 261, 266. The very terms of the paper signed by the deceased are singularly like the declarations of the donor in Wiliams v. Guile, 117 N. Y., 343, 348; 27 St. Rep., 253: “If anything happened to him, he should hand it (the policy and assignment) to Mrs. Guile; ” and upon these words the gift causa mortis was upheld. What Mrs. Kirk understood by the paper is plain enough. The witness, Hughes, said to her: “ If you want to leave the money, why don't you go down to the bank and give it to Bridget ? ” and she said, “ that would do just as well,” referring to the paper. This expression, with the delivery of the bank books, indicated that the witness understood that the disposition she had made was equivalent to drawing the money out of the bank and giving it to her niece. What room is there for doubt as to her intention?

There was evidence that Mrs. Kirk was entirely solvent at the time of- the gift, and retained sufficient property to pay her debts, and the gift cannot be attacked on the ground suggested by appellants, and claimed to be supported by Fox v. Moyer, 54 N. Y., 131.

The judgment, however, must be reversed for error in the admission of the testimony of defendant as above stated.

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

Bischoff, J., concurs‘in result.


author: Daly, Ch. J.

text:
    John Turton, Resp't, v. The New York Recorder Co., App'lt.

      (New York Common Pleas, General Term,

      Filed April 10, 1893.)

    1. Libel—Pleading—Innuendo.
    A publication concerning the plaintiff, that he drew on his New York house through the bank, that the draft was not honored and that he had left the city with $8,500 of the bank’s money, is a charge of fraud or crime, and in a complaint in an action for libel in the publication of such article innuendoes are not necessary.
    2. Same—Question fob jury.
    As such article is susceptible of but one meaning, it is not error to refuse to permit the jury to pass on its meaning.
    3. Same—Evidence. ,,
    It is not error to allow a question to be put to an officer of said bank, after he has testified as to the drafts on the bank, as to how much of the article shown him, if anything, was true or false to his knowledge. Such question calls for a fact, and not for a conclusion of the witness.
    4. Same—Charge.
    An exception to a passage in the general charge involving a verbal inaccuracy in the quotation of a statute or of evidence, when the error could have been immediately rectified if pointed out; is unavailing if such exception does not bring the error to the attention of the court.
    6. Same—Reckless and wanton publication.
    Where the dispatch was received by defendant at midnight and the editor inquired if plaintiff’s firm were in trouble, and on being informed that it was, and without further inquiry, published the same as an interesting feature of the failure, it is not error for the court to charge that there was no effort made to verify the truth of the report, and that it was published wantonly and recklessly with an utter disregard to whether it was true or false.
    6. Same—Retraction.
    An offer of retraction, to be available as a defense, should be made before the commencement of the action.
    7. Same—Damages.
    In such a case, where there has been no refusal to publish a retraction demanded, nor any offense beyond that of the original publication, a verdict of $5,000 is excessive.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered upon the verdict of a jury on June 17,1892, for $5,000 damages.

      Rochfort & Stayton, for app’lt; Lawrence E. Embree, for resp’t.
   Daly, Ch. J.

The action was brought to recover damages for the publication on September 17, 1891, of the following article in the New York Recorder, a newspaper published in the city of New York:

“ Has $8,500 of the Bank’s Money.”
“ Savannah, Gfa., Sept. 16.—John Turton, a well known Haval Stores operator, has left the city with $8,500 of the Southern Bank’s money. Turton drew on his New York firm on Monday through the Southern Bank, and the draft was not honored. Yesterday the New York house failed. Mr. Turton left Savannah on Sunday night, and it is supposed went to New York. He has been here for several years.”

The defense set up was that the general commercial and personal reputation of the plaintiff was such that he was not inj ured by the publication; publication in the ordinary course of business and without malice; and, by amendment on the trial, justification.

The facts of the case as disclosed upon the trial were these: The plaintiff was a member of the firm of John Turton’s Sons, doing business in the city of New York, and represented his firm in the city of Savannah. He had no personal transactions with the bank mentioned in the publication, drew no draft on his firm through the bank, and had never received any of its money. T. T. Chappeau, a broker, in the city of Savannah, employed for several years by the plaintiff’s firm fo buy resin for them, was in the habit of drawing on the firm when he shipped the resin to them. Such drafts were usually made through the Southern Bank. Between the 4th and 14th of September, 1891, these drafts were ten in number, and aggregated $8,285.86. Seven of them were accepted by John Turton’s Sons, amounting to $7,270.87, and were unpaid on the 14th of September, 1891. In the afternoon of that day the plaintiff in Savannah was apprised by telegram that his firm was in difficulty, and he left for New York the same night.

The facts proved showed no justification for the publication, and the jury properly found a verdict in favor of the plaintiff. The defendant claims a new trial, however, on the ground of errors in the rulings of the court, and in the" instructions to the jury, and also upon the ground that the damages awarded ($5,000) were excessive.

The first contention of the defendant is that the complaint was defective and that the motion to dismiss for failure to state facts sufficient to constitute a cause of action should have been granted. The alleged defect in the complaint is the absence of innuendo, or allegations pointing out the actionable meaning of the publication. This contention supposes that the publication will bear an innocent construction, but the mere perusal of it disposes of the point. The charge that the plaintiff “ has $8,500 of the bank’s money” imputes either fraud or felony. Money rightfully obtained in the usual course of business from a bank upon a draft becomes the property of the person receiving it, and he is simply a debtor for the amount The money does not remain the money of the bank unless there was some fraud or felony in the transaction which prevents the transfer of title, and the allegation that the plaintiff had drawn on his New York firm through the bank, that the draft was not honored and that he had left the city with $8,500 of the bank’s money, was a charge of fraud or crime and nothing else. The motion for the dismissal of the complaint was, therefore, properly denied.

The foregoing reasons dispose also of the defendant’s claim that the jury should have been permitted to pass upon the meaning of the published article. As it was susceptible of but one interpretation, there was no question to be submitted to them. The witnesses for the plaintiff were asked what their impressions "were upon reading the article, but this did not authorize the submission of a question which could be answered but one wav. The defendant did not except to the allowance of such testimony, and no error can be alleged with respect to it. As the witnesses stated only what the law implied, the defendant was not harmed.

Error is claimed in one instance in the admission of evidence. The vice- president of the Southern Bank was called as a witness by the plaintiff, and after he had stated the facts concerning the drafts upon the bank, the published article was shown him, and he was asked how much, if anything, stated in the article was true or false to his knowledge. This was objected to as calling for a conclusion. Th.e question was plainly designed to elicit a statement of fact and not an opinion or conclusion, and was not more objectionable than if each allegation of the libel had been separately read to the witness and he were asked if it were true. The same inquiry might be put with respect to the allegations -collectively when addressed to a witness conversant with all the facts and best qualified to testify to them. There is no ground for the inference that the question was intended to elicit anything but facts.

The charge to the jury is the subject of many exceptions. It is claimed that the court improperly refused to give the jury the statutory definition of libel when requested by the defendant, after having in the course of the general charge incorrectly defined what, in law, constituted libel. There being no question of fact for the jury as to whether the publication was libelous or not, it was not necessary to instruct them as to what constituted libel. It is claimed, however, that the court undertook to define libel to the jury, and should have done so correctly. Without acceding to this proposition, let us see what the alleged error was. The Penal Code defines libel to be “ a malicious publication by writing, printing, picture, effigy, sign, or otherwise than by mere speech, which exposes any living person, or the memory of any person deceased, to hatred, contempt, ridicule or obloquy, or which causes or tends to cause any person to be shunned or avoided, or which has a tendency to injure any person, .corporation or association of persons in his or their business or occupation.”

The court stated to the jury : “ Matter is libelous which tends to expose a man to public hatred, contempt or ridicule. Any .writing published which impeaches a man of a crime, or, less than that, which exposes him to hatred, contempt or ridicule is libelous perse.” The injury complained of is the interpolation by the court of the words “ tends to ” expose, etc. The statute declares matter libelous which tends to cause a person to be shunned, and. defendant claims it is not libelous if it tends to expose him to hatred. This fine distinction may be plausibly argued upon the letter of the statute, but it has no force in reason. But even if the charge were incorrect in that respect, it was a mere inadvertence, for the judge immediately afterwards charges in the exact words of the statute, and his attention was not called to the part complained of. An exception to a passage in the general charge involving a verbal inaccuracy in the quotation of a statute or of evidence, when the error could have been immediately rectified if pointed out, is unavailing if such exception does not bring the error to the attention of the court.

The court was amply justified in charging the jury that there was not a scintilla of evidence to show that the meaning of the paper was not libelous and was not so understood, and that there was not a scintilla of evidence intimating or authorizing the jury to find that the charges were true ; and in charging that the publication was a libel upon the plaintiff and in directing the jury to find a verdict for the plaintiff in some amount. No witness could be found to express the opinion that the article in question imputed no wrong to the plaintiff, or could be considered as an account of a mere commercial transaction, with the exception of the defendant’s telegraph editor, who swore that his impression was that the dispatch stated that this agent or member of the firm had drawn on the New York firm for a certain amount, and that while this draft was in the course of collection the firm failed and left the man in Savannah indebted to the bank, and he could not settle with it and had come to New York to fix the matter up. This editor had to pass upon the question as to whether or not the dispatch was to go into the paper, and he published it with the heading, “ Has $8,500 of the Bank’s Money.”

His evidence failed to explain why he did so, or to negative the presumption from this fact that he derived impressions unfavorable to plaintiff’s honesty from the reading of the dispatch. But Ms impressions were of no moment, as the article itself was capable of but one interpretation. The question of libel was, therefore, one of law and for the court to decide, Moore v. Francis, 121 N.Y., 199; 30 St. Rep., 467; Kingsbury v. Bradstreet Co., 116 N. Y., 211; 26 St. Rep., 520, and the libel being established, and no justification proved, the plaintiff was entitled to a verdict.

On the question of damages, it is claimed that the court erred in charging the jury that this was a ease for exemplary damages. There was no error in this respect. The court did no more than instruct the jury that the case was one in which they might give exemplary damages, which was entirely correct, Bergmann v. Jones. 94 N. Y., 51, but left it to the jury to say whether they would give such damages or not. The charge of the court was: “If the case warrants it, and you think he is entitled to exemplary damages, the law allows you to give him such damages as, in your good judgment and in your conscience, you believe ought to be found against the defendant by way of example and punishment; and here, gentlemen, I charge you that the case is such. I charge you that, upon the evidence, the case authorizes you to find exemplary damages against this defendant; damages beyond the injuries sustained by the plaintiff; and I so charge you, because it is in evidence, uncontradicted, that no effort whatever was made to verify the truth of this report, and that it was published wantonly, recklessly, with an utter disregard to whether it was true or false.” This merely stated to the jury that they were authorized to find exemplary damages, but did not direct them, or require them, to do so.

Exception was taken to the latter part of the judge’s charge, last above quoted, that no effort was made to verify the truth of the report, and that it was published wantonly and recklessly, with an utter disregard to whether it was true or false. The testimony of the defendant’s telegraph editor was that the dispatch reached his desk about midnight, and had to be ready for publication in one hour; that he inquired of the city department if such firm was in trouble in New York, and found that they were, and, without other inquiries, published the dispatch as “ an interesting feature of the failure."

Here was no effort to discover -whether the plaintiff had left Savannah with $8,500 of the Southern Bank’s money, or'with any other sum, or any facts concerning the matters stated in the dispatch, except the fact that the New York house had failed. The defendant therefore published the injudicious dispatch, with an utter disregard as to whether it was true or fal^e, and no better illustration of wanton or reckless circulation of a damaging report could be devised.

After the commencement of the action the defendant made an offer to publish a retraction if plaintiff would write it. It is claimed that the court should have submitted this offer to the jury in mitigation of damages. The offer of retraction should have been made before the commencement of the action in order to be available as a defense. Townshend on Slander, 680; Samuels v. Evening Mail Ass'n, 6 Hun, 5.

It is also claimed that the court should have charged, at defendant’s request, that if the jury should find that the article was received by the agents or employees of the defendant in the usual course of its business and published as an ordinary news matter, that fact may be taken into consideration as tending to show that the defendant had no actual malice. The plaintiff claimed no actual malice beyond what the law implied from the false and injurious nature of the charge and from the publication of it without inquiry with regard to its truth or falsity. There would be no sense in charging the jury that the circumstances under which the article was published showed it to be wanton and reckless and showed an indifference as to whether it was true or false, and then in charging that the jury might take the same circumstances into consideration as tending to show want of actual malice.

The motion for a new trial upon the ground that the damages were excessive raises another question, and one of exceeding delicacy. Judging by our experience of the very conservative views which juries ordinarily hold on the subject of damages in actions for libel, the verdict in this case appeal’s to be out of the ordinary7. It is true that a business man of repute is made the subject of a gross accusation affecting his honesty, which is published broadcast and without any attempt at prior verification, and that this charge comes upon him at the time of his failure and adds to the suffering caused by legitimate business misfortune.

But the publication is to be distinguished from those personal attacks, followed up by still more injurious repetitions of the original libel, which the 'records of the courts so often display, or a case where, in the language of Chief Justice Nelson, Hotchkiss v. Oliphant, 2 Hill, 510, there is, under pretense of the withdrawal of the charge, hesitation, lurking insinuation, and attempted perversion of the plain import of the language used in the libelous article, or the substitution of one calumny for another.” In the present ease there was no refusal to publish a retraction demanded, nor any offense beyortd that of the original publication. Under the circumstances as they appear, a much smaller verdict would have sufficed to repair the injury sustained by the plaintiff, have amply vindicated him before the community, and have served as a striking example as well as a severe punishment; and we feel that we should be doing substantial justice to all parties by reducing the verdict to the sum of $3,000. If the plaintiff stipulates to this reduction, the judgment as so reduced will be affirmed, without costs; otherwise, a new trial will be ordered, on the ground that the damages are excessive, and the costs will abide the event.

Bookstaver and Bischoff, JJ., concur.


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    Adeline H. Terry, Resp't, v. William T. Moore, App'lt.

      (New York Common Pleas, General Term,

      Filed April 10, 1893.)

    1. Lease—Rescission—Mistake of law.
    Where a complainant has been led into a mistake of law by the misrepresentations of defendant, or where the defendant takes advantage of the complainant’s ignorance in a matter of law, relief will be granted.
    2. Same.
    Plaintiff was lessee under a lease which provided for renewals, the rent to be fixed by arbitration if the parties could not agree, which rent should be a percentage on the value of the lot to be estimated as vacant and unimproved._ It also contained restrictions as to the use of the land. The complaint alleged that the character of the neighborhood had greatly changed, lessening the value, and that she was induced to take a renewal lease at an increased rent on the representation of defendant that if she went to arbitration the lot would be appraised at a very high value and without reference to the restrictions, and that the restrictions had nothing-to do with the valuation for the purpose of fixing the rent. Held, that the complaint set forth a cause of action for equitable relief.
    Appeal by the defendant from an interlocutory judgment overruling his demurrer to the complaint and from the order directing the entry of such judgment. The complaint shows that the plaintiff was entitled in the year 1887 to a renewal for twenty-one years of the lease of the lot No. 255 West Twenty-third street in the city of New York.
    The estate was originally created by a lease from Clement 0. Moore (to whose right the defendant succeeds), made to William Torrey, in 1846 which expired May 1, 1866, and which provided for three renewals of twenty-one years each, with the option to the lessor of granting a fourth renewal or paying for the dwelling house erected by the lessee according to the requirements of the lease.
    The rent upon the renewal in question, if not agreed upon, was to be fixed by appraisement by arbitrators who were to determine what would be a reasonably fair rent for the ensuing term ; the rent to be ascertained by considering the lot-as vacant and unimproved at its full and fair value at a sale by private contract, the rent to be four per cent of such estimated value.
    The rent for the first term was $62 per annum, and for the second term expiring in 1887 had been fixed by arbitration at $206. The original lease restricted the use of the premises for a dwelling house only, and provided for the reservation of a courtyard in front. In 1887, the period in question in this suit, the character of the neighborhood was so changed that the premises were no longer suitable for first class private dwellings, and the adjoining block of land to the west, owned by the Clement C. Moore estate, was occupied for business purposes upon leases and grants from said estate. The complaint set forth fully all the facts showing the altered character of the neighborhood and the detriment to the interest of the plaintiff and the adjoining lessees thereby and by the maintenance of the court-yards.
    The complaint alleged that owing to the restrictions and the altered character of the neighborhood the value of the property had been greatly reduced, and the rent for the new term, if fixed according to the terms of the lease, would not have exceeded that reserved for the term which expired in 1887.
    It was then alleged that the defendant, and his agent demanded for the renewal a rent of $375 per annum, representing it to he a concession, and that if plaintiff went to arbitration the lot in question would, under the terms and conditions set out in the lease, be appraised for a very high value, and without any reference to the restrictions as to the use to which it was limited; that the property was worth from ten to twelve thousand dollars per lot as vacant and unimproved, and that, the changes in its condition and the restrictions as to its use had nothing to do with ptlie valuation for the purposes of fixing the rent in the renewal "lease, and that if the property were appraised it would appraise for upwards of $10,000, and that plaintiff, relying upon these representations, and being ignorant of the mistake made by the lessor and his agent therein, executed a renewal for twenty-one years, at the rental value of $375 per annum.
    The complaint prays to have the renewal lease set aside, and that she be restored to her original rights and have her rent fixed by arbitration, and a renewal lease executed containing covenants provided for in the original indenture.

      C. E. Souther, for app’lt; J. M. Buckingham (W. C. Trull, of counsel), for resp't.
   Daly, Ch. J.

The defendant’s demurrer raises the issue whether the complaint sets forth facts which would entitle the plaintiff to the relief demanded. The charge, in fact, is that the plaintiff labored under a mistake as to her legal rights under her lease, and being misled and induced by the representations of the defendant and his agent to waive those rights, executed a lease by which she was compelled for twenty-one years to pay a rental nearly double that which would have been fixed by appraisement under the terms of the lease. By the terms of that instrument the rent for the renewal was to be four per cent upon the value of the lot considered as vacant and unimproved. The representation which misled the plaintiff, as charged, is that the restrictions with which the use of the lot was encumbered, and which, owing to the extreme changes in the character of the neighborhood, must greatly affect its value, could not be considered by the appraisers in estimating such value, but that the plaintiff’ would have to pay four per cent upon the value of the lot as vacant and unrestricted.

This was a representation of the legal effect or construction of the existing lease, and if relied upon by the plaintiff to her injury would afford ground for equitable relief. Though not a representation of fact but of law, yet being induced by the representation of the defendant it gives a right of action. A mistake of law where there are no indications of fraud, imposition, or undue advantage will not be corrected by a court of equity ; but where the complainant had been led into a mistake of law by the misrepresentations of the defendant, or where the defendant takes advantage of the complainant’s ignorance in a matter of law, relief will be granted. 15 Am. and Eng. Enc. of Law, 638 to 643 ; and cases cited. See also Weed v. Weed, 94 N. Y., at page 247.

This seems to be a fit case for the interposition of a court of equity, as the plaintiff’s rights cannot be protected by leaving her to her defense at law in an action for rent, or in any proceeding under the lease. If she established an equitable defense to such an action it would only relieve her from the payment of the rent as fixed in the instrument, whereas she is plainly entitled to a judgment by which the execution of a renewal lease according to her covenants may be immediately enforced. It is of no advantage to her to remain in possession of the premises without an agreement for the renewal term.

The charge in the complaint, that the renewal lease as at present existing does not contain the covenants to which plaintiff is en - titled, need not be examined here, as sufficient appears in the complaint to constitute a cause of action without considering such allegations.

The judgment and order appealed from should be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


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    Cornelia S. Terry, Resp't, v. Katherine T. Moore, Impl'd, App'lt.

      (New York Common Pleas, General Term,

      Filed, April 10, 1893.)

      1. Lease—Abbiteation.
    A lease provided that the rental on a renewal should be fixed by arbitration by ascertaining the full and fair value on a sale by private contract of the premises considered as vacant and unimproved, and fixing the rent at a certain per cent, on such estimated value. It further provided that the arbitrators should be sworn and render their decision in writing in duplicate, one to each party. Held, that the complaint in an action to enforce the award need not set forth a compliance by the arbitrators with the rule which is to govern their deliberations and control their decision.
    2. Same.
    After treating an award as regular and admitting a compliance with the covenant by a pretended compliance with the award, the lessor cannot, after suit brought on such admission, set up non-compliance with formal or other requisites.
    Appeal by defendant, Katherine T. Moore, from interlocutory judgment overruling her demurrer to the complaint, and from the order directing such judgment. The action was brought to compel the execution of a renewal lease of premises No. 453 West Twenty-third street, in the city of New York, in accordance with the decision of the arbitrators'chosen to ascertain and determine the rent for the renewal term.
    The leasehold estate was created February 1, 1846. by lease for twenty years and three months from that date, executed by Clement C. Moore to William Torrey, with provision for three renewals thereof, and at the option, of the lessor for a fourth; each renewal term to be twenty-one years. The first renewal was by lease dated October 5, 1866, expiring May 1, 1887, when the plaintiff had succeeded to the rights of the original lessee and the defendant, Katherine, to the rights of the lessor. At the expiration of that term arbitrators were appointed to fix the rent for the second renewal term pursuant to the following covenant in the lease then expiring:
    “And it is hereby mutually agreed by and between the parties to these presents that, at the end and expiration of the said term hereby granted, the said party of the first part, his successors or assigns, shall and will at such, the end and expiration of the said term, grant unto the said party of the second part, his executors, administrators or assigns, at his or their expense, a new lease of the said lot of ground for a further term of twenty-one years thence next ensuing, at such reasonable annual rent, to be paid half yearly, as shall then have been agreed upon by the parties, or otherwise settled and" ascertained, as is hereinafter provided, but not less than the rent reserved by -these presents.”
    “ And in order to ascertain the amount of rent which ought to be reserved and made payable on any such new lease of the said hereby demised premises as is above mentioned, the amount of such rent shall be ascertained and determined as follows; that is to say, the said party of the first part, his successors or assigns, shall nominate one fit and impartial person, and the said party of the second part, his executors, administrators or assigns, shall nominate one other fit and impartial person, which persons so nominated shall themselves respectively be owners in fee simple of one or more lots in the immediate neighborhood in which the said hereby demised premises are situate, to determine what would be a reasonable yearly rent for the said lot of land during the then next ensuing term of twenty-one years, which nominations shall be made and signified by each party to the other at least one month before the expiration of the then current term; and in default of such nomination being made by either party for the space of fifteen days after the time above limited for the making of the same, the person who shall have been so nominated by the other party shall appoint and associate with himself one other fit and impartial person qualified as above mentioned, for the purposes aforesaid, and if the two persons to be so nominated or appointed shall differ in judgment as to either of the said subjects, they shall appoint a fit and impartial person qualified in like manner to be associated with them for such purposes if they can agree on such person, or if they cannot agree then each of them shall nominate two fit and impartial persons qualified in like manner and from the names of the four persons so nominated that of one shall be drawn by ballot who shall be associated for the purposes aforesaid with the two persons so nominated or appointed, and the decision of any two of the three persons so to be chosen, whether as to the value of the said house or as to the amount of such rent, shall in all cases be final and conclusive. And in every case of renewal the rent to be reserved during the further term to be thereby granted, if not settled by mutual agreement, shall be ascertained upon the principle and in the manner following, that is to say, the said lot of ground shall be considered as vacant and unimproved and as such its then full and fair value on a sale thereof in fee simple by private contract shall be estimated by the appraisers, and four per cent, on such estimated value of the said lot shall be the annual rent to be reserved in the new lease during the further term to be thereby granted, except for the second and third terms, the annual rent for which, if not agreed upon by the parties, shall be five per cent on the estimated value of the said lot, to be reserved in the new leases for the said second and third terms. And it is further agreed that the persons to be so chosen to ascertain the value of such and to determine on the said rent for the next ensuing term, shall in all cases be sworn to act therein faithfully and impartially, and their award or decision shall be made in writing and by duplicate, ohe part thereof to be delivered to the party of the first part, his successors or assigns, and the other to the party of the second part, his executors, administrators or assigns.”
    A majority of the arbitrators, after due hearing upon all the evidence and arguments of counsel of the parties, decided and awarded $208 to be a fair and reasonable ground rent for the premises. The complaint avers that the amount has never been excepted to, and that plaintiff demanded the renewal lease, and that “in pretended compliance therewith, said counsel for the defendants did furnish to counsel for plaintiff a proposed form of renewal lease, which omitted important covenants which were contained in Exhibits ‘A’ and ‘ B,’ which covenants plaintiff, by her counsel, claimed should be left in the renewal lease, and also the defendants demanded from the plaintiff the sum of twelve dollars for preparing the same, although it was the duty of the defendants to prepare the same at their cost. That thereupon said proposed lease was returned to the counsel for defendants, and such defects pointed out to him. That since last communication plaintiff has received a reply thereto, in which defendants decline to give any lease whatever, except at a different and much larger rent than as fixed by the arbitrators.”
    The defendant demurs to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

      C. E. Souther, for app’lt; J. M. Buckingham (W. C. Trull, of counsel), for resp’t.
   Daly, Ch. J.

The alleged defect in the complaint is that the written award or decision of the arbitrators (which is annexed to it) fails to show that they valued the lot upon the principles stated in the covenant and that they calculated the required percentage upon a valuation of the lot as therein provided; also that the complaint' fails to show their compliance with these requirements of the covenant and does not allege in addition that they were sworn and that their decision was delivered to the lessor, his heirs or assigns.

There is nothing in the covenants of the lease which required the written decision of the arbitrators to be in any particular form or to contain any matter except their decision. They were to determine what would be “a reasonable yearly rent,” and their award need contain nothing more. And the plaintiff is not bound to set forth in his complaint a compliance by the arbitrators with the rule which is to govern their deliberations and control their decision. That rule simply requires them to estimate the full and fair value of the lot, and this requires the exercise of their judgment upon the evidence as to what is such full and fair value. There is no way of proving that the arbitrators exercised their judgment upon the evidence. It is to be presumed until such gross discrepancy between the award and the value is shown as to warrant a charge of bad faith or fraud. Matter that is not to be proved need not be alleged. To hold otherwise would compel plaintiff to prove that the rent as fixed by the arbitrators is “ reasonable,” and this could not be done without substituting the court for the tribunal agreed upon by the parties for the very purpose. No case cited by appellant holds otherwise. In D. & H. C. Co. v. Penn. C. Co., 50 N. Y., 250, the decision of the arbitrators had not been obtained, and thus the measure of liability was not determined.

But generally, as to all objections to the form of the decision and to the want of allegations that the arbitrators were sworn, and that they had complied with the covenants, and that a copy of the award had been served as required by the covenant, it is a sufficient answer that the complaint contains averments showing that failure to comply with these requirements, if there were such failure, was waived by the defendant, who proceeded to a pretended compliance with the award and to tender a lease at the rental therein fixed. This shows that the award was received by her or communicated to her. It is manifest that after thus treating the award as regular and admitting a compliance with the covenant, the defendant cannot' after suit brought upon such admission and waiver, set up non-compliance with formal or other requisites. Service of a copy of tlie award may be waived. Gidley v. Gidley, 65 N. Y., 170. The failure to take the oath is a mere irregularity, Howard v. Sexton, 4 N. Y., 157; and generally every intendment is in favor of the award. Butler v. Mayor, 1 Hill, 489; 1 Am. & Eng. Enc. Law, 696.

Judgment and order appealed from affirmed, with costs.

Bischoff and Pryor, J J., concur.