source: Caselaw Access Project

author: Daly, Oh. J.

license: Public Domain

text:
    Robert Clenighan, App’lt, v. William C. McFarland, Resp’t.

      (New York Common Pleas,

      General Term,

      Filed December 1, 1890.)

    1, Lease—Agreement by landlord to repair before commencement of term—Evidence.
    An agreement by a lessor to put the premises in repair before the term is collateral to a lease and is not required to be incorporated in it, and paroi evidence of such agreement is admissible.
    2. Same—Damages.
    The measure of damage for a breach of such agreement is the value of the use of the premises during the time they were rendered untenantable by reason of the failure to make repairs; and not the amount spent by the lessee for rooms and board at a hotel during such time.
    Appeal from a judgment of the justice of the eleventh district court, Murray. J., rendered in favor of the defendant.

      Matthew Daly, for app’lt; Oralz Nathan, for resp’t.
   Daly, Oh. J.

The action was brought to recover the sum of $208.33, for one month’s rent of the house and premises 3 East Twenty-seventh street, under a lease for a term of two years commencing May 1, 1890, made by Mrs. Pfaff to the defendant, at an annual rental of $2,500, payable monthly in advance. This action is for the first month’s rent, and the cause of action was assigned to the plaintiff June 1, 1890. The defendant interposed a counterclaim for damages for the breach of an agreement made by the landlord with him before or at the time of taking the lease, by which the lessor agreed as a condition upon which the defendant hired the premises that they should be put in thorough repair before the commencement of the term. The justice found that such an agreement had been entered into by the landlord, that the premises were not put in thorough repair by the time agreed upon, and that the damages of the defendant by reason of such breach equalled or exceeded the rent -sued for, and gave judgment accordingly for the defendant.

The appellant urges as a ground of reversal that the evidence of a verbal agreement to put the premises in repair was not admissible, it being an attempt to modify or vary the written lease. In this he is mistaken. The agreement was collateral to the written lease, and may be proved and enforced, although not reduced to writing nor incorporated in the lease. Chapin v. Dobson, 78 N. Y., 75. It is only such matters as concern a subject embraced in and covered by the terms of the lease that must be incorporated in it, and that are deemed to be waived, if not so incorporated, although they may have been the subject of jarior negotiation and agreement between the contracting parties. Had this been an ■agreement on the part of the lessor to make repairs, or to keep the premises in repair during the term, it would have fallen within this rule, but an independent agreement to put the premises in repair before the term, and made as a condition of, or consideration for, the taking of the lease, stands upon a different footing. Similar agreements have been held to be collateral, and are cited by the court in the case referred to. In Mann v. Nunn, 43 L. J., C. P., 241, where a lessor promised that if the proposed lessee would take a lease of a house he would put the house in a state fit for occupation, the promise was held to be collateral to the written lease, and provable by paroi evidence for the purpose of recovering damages for a breach of it.

There was substantially no dispute as to the alleged agreement to put the house in repair, although there was a conflict of evidence as to the amount of repairs agreed to be done, and as to whether the delay in making the repairs stipulated for under the agreement was delayed by the act of the tenant in requesting additional work to be done. We are to assume from the judgment in the case that the justice found upon all these issues in the defendant’s favor, and' his conclusion would not be disturbed if there were no error committed in the trial of the other issues.

It seems, however, that the defendant mistook the rule as to the' damages he would be permitted to prove under his counterclaim. He was allowed, against the objection of the plaintiff, to show wliat he paid for rooms and meals at the St. James' Hotel during the period that the demised premises remained untenantable while the repairs were in progress. This was improper. The measure of. his damage was the value of the use of the premises during the time they were rendered untenantable by reason of the defendant’s failure to complete the repairs. Myers v. Burns, 35 N. Y., 269; Hexter v. Knox, 63 id., 561.

The defendant did prove the rental value of certain rooms on the upper floors amounting to $150. From- the judgment being in his favor, we must assume that the justice allowed for the other items of damage improperly admitted, and for this error the judgment will have to be reversed and a new trial ordered, with costs to abide the event.

Bischoff and Pryor, JJ., concur.


author: Adlington, S.

text:
    In the Matter of the Last Will, etc., of Benjamin E. Birdsall, Dec’d.

      (Surrogate's Court, Monroe County,

      Filed December 8, 1890.)

    1. Wills—Legacy to wife.
    Testator prior to Ms second marriage gave to Ms cMIdren, who were-married and living in separate homes of their own, $8,000 each. He left property worth $10,000. By Ms will, he gave to his wife, to whom he had been married seventeen years, $5,000. Meld, that the legacy to the-wife was not excessive.
    2. Same—Testamentary capacity.
    The ability of a man to carry on Ms business with judgment and discretion is strong evidence of his competency to make a will.
    Probate of will.

      W. B. Shuart & G. A. Shuart, for proponent; T. B. Sherwood and O. J. Browning, for contestants.
   Adlington, S.

This decedent died in the town of Mendon in this county on the 22d day of April, 1890, at the age of eighty years.

His first wife died in 1870. His three daughters were at that time all married and living in separate homes of their own. In 1873 he married his second wife, who survives him.

Before his secohd marriage he had given to his three daughters $3,000 each. At his death his estate consisted of a farm worth, about $10,000, and some personal property of little value. .

At about the time of his second marriage he said that he intended to settle on his wife the sum of $5,000; and that amount, was bequeathed to her in a will made by him in 1887, and in the-one now offered for probate, made in 1889, which is similar to the first in all respects excepting a correction in the name of one or more of his grandchildren, who were the residuary legatees.

His surviving daughters contest his will, and allege that he was mentally incompetent to make it, and that it was procured by the undue influence of his wife.

" There is not a word in the 450 pages of testimony to sustain the charge of undue influence. Nor is there any evidence that Mrs. Birdsall attempted to exert such influence in her own favor as a wife may fairly and legitimately use.

The law is well settled that a wife or child may justly influence the making of a husband’s or father’s will in her or his favor, so long as no fraud is practiced upon the testator and he is not deprived of his free agency. Fair argument or persuasion is not obnoxious to the law. Latham v. Udell, 38 Mich., 238; Pierce v. Pierce, id., 421; Blanchard v. Nestle, 3 Den., 37; Ewen v. Perrine, 5 Redf., 642; Tyler v. Gardiner, 35 N. Y., 559.

The contestants insist also that the provision for Mrs. Birdsall is unreasonably large, and that the will is unnatural in that respect, but I do not so regard it. For nearly seventeen years Mrs. Birdsall had been a faithful wife and helpmeet. She had cared for him in sickness and in health, and appears to have managed well the affairs of his household.

Three hundred dollars a year would not seem to be an extravagent compensation for such services, considered simply from a pecuniary point of view, and, certainly, $5,000 is a very moderate sum tó provide for the comfortable support and maintenance in old age of an affectionate and faithful wife.

There remains therefore only the allegation of testamentary incapacity. c,

There is sufficient basis of fact to make this claim plausible, though not enough to sustain it.

About thirty years ago Mr. Birdsall had been confined for a short time in an asylum, on account of an acute attack of insanity, from which -he soon recovered. Not far from 1880 he had suffered what the witnesses called “ a stroke,” probably of an apoplectic nature, which affected his vocal organs so that thereafter he could not speak as easily or distinctly as before. For the last five or six years he had also been suffering from a form of progressive paralysis, which had its seat in the spinal cord and so affected his lower limbs as to make walking somewhat laborious for him, and occasionally causing him to stumble and fall. There was also the gradual weakening of the physical and mental powers incident to old age.

Mr. Birdsall continued, however, to attend to his .business affairs, leased his farm from time to time, sold his crops, made contracts for the sale of standing timber, and for transfer of a part of his land, and executed and delivered a conveyance thereof at about the time this will was executed.

None of his family ever seems to have regarded him as incapable of carrying on his business, or to have made any attempt to have him judicially declared incompetent to manage his affairs ; but now that he has died leaving a will that displeases them, they insist that for years before his death he was demented and imbecile.

There is an erroneous impression largely prevalent among laymen, and to some extent among lawyers, also, that though an infirm old man has abundant capacity to make contracts and to manage his ordinary business, he may yet be much too feeble mentally to make a valid will

Such doctrine, however, finds no countenance in law.

In the celebrated case of Stewart v. Lispenard, 26 Wend., 255-306, it was said that a man's capacity may be perfect to dispose of his property by will, and yet very inadequate to the mmagement of other business, as, for instance, to make contracts for the purchase or sale of property; and while it is safe to say that the courts of this state would not assent to the soundness of that, proposition to-day, still one’s ability to transact his ordinary business affairs with judgment and discretion, and to manage his-property with reasonable prudence would be considered very strong, if not conclusive, evidence of testamentary capacity, Coit v. Patchen, 77 N. Y., 536; Horn v. Pullman, 10 Hun, 472; aff’d, 72 N. Y., 269 ; Pilling v. Pilling, 45 Barb., 92 ; Crolius v. Stark, 64 id., 112.

The supreme court of Michigan has taken a view of this question similar to that held by our courts, and has been somewhat more positive and precise in its statement of the rule than our own court of appeals.

In Kempsey v. McGinniss, 21 Mich., 141, the court says : “ The rule settled by the weight of authority undoubtedly is that a less degree of mind is requisite to execute a will than a contract.” This doctrine was in substance reiterated in Rice v. Rice, 50 Mich., 448-456, in an opinion concurred in by the learned counsel for these contestants, and in which it is further said that “ a will is not to be set aside merely because, its maker was weak or sometimes foolish, or lacked the average mental capacity of his. neighbors.”

In Horan v. Piquette, 52 Mich., 361, in an opinion also concurred in by the same learned counsel, the principle is enunciated in the following language: “In law one who is competent to deal in property on the basis of contract is competent to dispose of property by will. With surviving relatives there if often a different rule, and persons who have gone through an active life with business competency unquestioned are denied testamentary capacity the moment, a will is produced which does not meet their desires or expectations.” - The same rule prevails in many other states.

The testimony of the subscribing witnesses shows clearly the testamentary capacity of Mr. Birdsall at the time when this instrument was executed, and in this they are strongly corroborated by the testimony of various persons who had business transactions and conversations with him at about the same period.

I am of the opinion that Mr. Birdsall was competent to make the will in controversy and that it is a valid instrument..

There may be a decree entered on five days’ notice.


author: Barnard, P. J.

text:
    George Taber et al., Resp’ts, v. William J. Gilfillan and Dorcas Prime, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Undertaking—Liability of sureties fob costs gbanted by appellate coubt.
    Where the court oí appeals awards costs in favor of certain of the res-pendents and judgment is entered on its remittitur, it is no defense to an action against the sureties upon the undertaking that the record does not show that these particular respondents appeared and argued the appeal in that court.
    2. Attorney—Appearance.
    It is too late after final judgment to object to the appearance of an attorney for respondents to whose clients cost were awarded.
    Appeal from judgment in favor of plaintiffs, entered upon verdict directed by the court.

      P. V. B. Stanton, for app’lts; James & Thomas H. Troy, for resp’ts.
   Barnard, P. J.

The defendants were sureties upon appeal to the court of appeals in an action where William Cole was plaintiff and Charles E. Frost and others were defendants. Among the defendants were Harriett A. Daly, George Taber and Augusta M. Ferguson, the present plaintiffs. They were respondents upon the appeal to the court of appeals. The judgment was thereon affirmed, with costs to respondents against the appellants upon the appeals.

Judgment was entered upon the remittitur in the supreme court containing this clause:

That the defendants Harriett A. Daly, George Taber and Augusta M. Ferguson as respondents, appearing jointly in their own behalf on said last mentioned appeal, recover of the said appellants therein, Charles E. Frost, individually and as executor and trustee as aforesaid, and Thomas E. Simmons, the sum of $91.22 for “ their costs and disbursements of said appeal.”

The present action is brought upon the undertaking on appeal. There is no defense to the action. The judgment of the court of appeals gave the plaintiffs costs, and the judgment in the supreme court followed it. The judgment is not paid. The record in the court of appeals does not show that these particular plaintiffs, respondents, appeared and argued the appeal in that court, and this fact is claimed as a defense in the presence of express words giving costs to the plaintiffs by name upon the appeal as respondents.

There is no force in the objection. It is too late after final judgment to object to the appearance of Hughes, who was the attorney for the plaintiffs in the court of appeals, and to whose clients costs were awarded. .

The judgment should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Pratt, J.

text:
    The People, Resp’ts, v. Frederick R. Gilman, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Bail—Recognizance—Evidence.
    Although it is not necessary to state the charge with great particularity, yet a bail bond must indicate the offense with which the principal is charged, and which the bail undertakes he will appear and answer. Where it does not specify such charge, the bond is void, and the defect cannot be supplied by further proof. -

      Appeal from judgment ordered for plaintiffs on a trial by the court without a jury.
    Action upon an alleged recognizance.
    On the 28th day of October, 1889, one Frank Cava was duly committed to the custody of the sheriff of Dutchess county to await the action of the grand jury upon a charge of assault in the second degree. On the 26th day of November, 1889, the said Frank Cava was admitted to bail by Judge Guernsey, county judge of said county, upon an undertaking signed by the said Cava and Frederick Gilman, the defendant and appellant herein.
    A printed form of undertaking was used and the blank space for designating the crime for which the said Cava was held to answer was not filled in.
    Cava was released from the Dutchess county jail by the sheriff, bjr virtue of the #said undertaking. An indictment against the said Frank Cava for ‘ assault in the second degree,’ was found, presented and filed by the grand jury on the 4th day of December, 1889.- The clerk of the court thereupon called the said Frank Cava, in open court, and upon his failure to appear an order was entered upon the minutes of the court, by direction of the presiding justice, declaring his undertaking forfeited and directing the district attorney to prosecute the same. The action was tried before Mr. Justice Barnard, without a jury, on the 21st day of May, 1890, and judgment ordered for plaintiffs.

      Herman Frank, for app’lt; Martin Heermance, for resp’ts.
   Pratt, J.

We think the bail bond in question in this action is void, as it does not specify any charge which the principal is to answer. The authorities are uniform upon this subject. Although it is not necessary to state the charge with great particularity, it must indicate the offense with which the principal is charged and which the bail undertakes he will appear and' answer. People v. Rundle, 6 Hill, 506; People v. Blankman, 17 Wend., 252; People v. Graham, 1 Parker, 141.

No charge having been stated in the bond, we think it was error to allow the defect to be supplied by further proof. Such testimony may be given to explain contracts, but not to enforce the undertaking of -the surety after its alleged breach, and the court is simply called upon to determine what, if any, liability exists. As the surety did not undertake that his principal would appear to answer any charge, there has been no breach. Thé judgment must, therefore, be reversed.

Dykman, J., concurs; Barnard, P. J., not sitting.


text:
    Washington Bulkley, App’lt, v. Catharine Healy, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Mechanic’s lien—Counterclaim.
    A failure to perform the contract, causing damages to the owner, is the subject of counterclaim in an action to foreclose a mechanic’s lien.
    3. Same—Evidence.
    A judgment for such damages recovered by the owner is conclusive evidence of the amount of the counterclaim and is admissible.

      Appeal by plaintiff from judgment in bis favor and from that part which allows defendant’s counterclaim, and from order resettling the original decree.
    Aption to foreclose a mechanic’s lien.

      Samuel P. Potter, for app’lt; L. A. Gould and Thos. D. Bambaut, for resp’t.
   Barnard, P. J.

The plaintiff agreed to furnish the materials and build a house for the defendant at an agreed price. Payments were made according to the contract except that there was remaining a balance of $855.50. The defendant after the work was finished, as claimed by the plaintiff, commenced an action in the city court of Brooklyn in which she claimed damages for various omissions and defaults in the execution of the contract and claimed $2,500 damages.

The plaintiff then commenced this action to foreclose the lien and the defendant, Mrs. Healy, pleaded the same facts as a basis of counterclaim in this action, and stating inferentially that the action in the city court was then pending.

Mrs. Healy tried her suit in the city court and got a judgment foi’ damages and costs, $582.30. Then the lien action was tried and the court allowed the amount of the city court judgment as a counterclaim to the plaintiff’s claim under the contract and which he sought to enforce by foreclosure. The plaintiff appeals and alleges for error that the city court judgment was not a basis for counterclaim:

First, because an appeal was pending from the city court judgment. The case does not show this to be the fact. The recovery of the city court judgment,is found, but it is not proven or found that the same was appealed from or secured on appeal.

Second, because the counterclaim was not proper in the lien action because it was the subject of an independent action.

As matter of law a counterclaim may be set up in an action to foreclose a lien. Lumbard v. Syracuse, etc., R. R. Co., 62 N. Y., 290.

The lien action is based upon a contract. The particular remedy by foreclosure does not change the nature of the action. A failure to perform the contract causing damages to the owner is the subject of counterclaim within § 501 of the Code. The counterclaim was not stricken out but was replied to and denied, and it is of no moment that there was an action pending in the city court to recover the counterclaim.

The question was not raised. The city court judgment was conclusive evidence of the amount of the counterclaim and was properly received in evidence. Krekeler v. Ritter, 62 N. Y., 372.

The correction of the decree so as to make it express the result of the trial and decision of the court was proper, and although an appeal is taken from the order resettling the same no point is made on the argument.

The judgment and order should therefore be affirmed, with costs.

Pratt, J., concurs; Bykman, J., not sitting.


text:
    Charles Benner, Resp’t, v. The Atlantic Dredging Company, Applt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Negligence—Blasting.
    In an action for injuries to plaintiff’s house caused by blasting done by defendant at Hell Gate, the court charged that defendant was responsible and refused to charge that to make it liable it must he shown that the work was done in a negligent manner. Held, no error.
    Appeal from judgment in favor of plaintiff entered upon verdict.
    During the years 1886, 1887 and 1888, the defendant, under a coatract with certain United States government officials, was engaged in removing rock from under water at Hell Gate in the “Hell Gate Improvement,” so called, in the East river, opposite Astoria, Long Island, in the course of which it had occasion to do blasting with high explosives. These blastings were so conducted as to cause considerable damage in and about Astoria, of which it had notice, its attention being called to the fact and suggestion made that by diminishing the amount of explosive used it could avoid injuring property in the neighborhood. That suggestion was adopted and acted upon for some time, but defendant subsequently resumed its former practice.
    In the month of November, 1886, the plaintiff’s dwelling-house on Woolsey street in Astoria, which had theretofore suffered from the explosions, was placed in thorough repair. Thereafter the defendant continued its blasting operations, using charges of sufficient size and force to shake plaintiff’s property and.crack the walls, ceilings and foundations of the house. "Under these circumstances and after the defendant had ceased its operations this action was brought to recover the damages suffered.

      Benjamin W. Downing, for app’lt; Henry G. Willcox, for resp’t.
   Pratt, J.

The verdict established that the blasting done by defendant at Hell Gate shook the walls of plaintiff’s house, inflicting injury.

The court charged that for such injury defendant was responsible, and refused to charge that to make defendant liable it must appear that the work was done in a negligent manner.

We think the instruction was correct. If a desirable work can: not be done without shaking down a neighbor’s house, it would seem that the work should not be performed unless the doer was prepared to make compensation for the injury inflicted.

That rule seems best to promote the general welfare. The public are not benefited by a change that inflicts an injury greater than the resulting benefit.

Judgment affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Mary E. Akerly, Resp’t, v. Lewis B. White, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Landlord and tenant—Landlord not liable for defects in premises ASCERTAINABLE ON INSPECTION.
    In an action for injuries to a member of the family of a tenant caused by defects in a stairway, where the whole building had been let to a single tenant, the court charged that if the stairs at the time of letting were weak to an extent that could be easily ascertained upon inspection, a verdict might be rendered against the landlord. Held, error; that the law puts on the tenant the risk of such defects as are visible on inspection, and does not require of the owner active vigilance to see that the premises he is letting are safe.
    Appeal from judgment in favor of plaintiff, entered on verdict
    This action was brought to recover damages for injuries sustained by falling down cellar stairs in a house owned by defendant and leased by him to plaintiff’s father. The fall is alleged to have been caused by the stairs being out of repair.
    The premises were leased by a written lease, dated February 26, 1889, for a term of one year from April 1, 1889.
    The lease contained a covenant by defendant to make certain specified repairs not affecting the stairs in question. The lease did not contain any agreement by either party to make general repairs or to do anything to the stairs in question.
    The plaintiff was a member of the family of the lessee and received the injury for which she brought this suit, on January 28, 1890, by falling down the cellar stairs, which she alleges in some way “ threw her down.”

      K A. Brewster (J. Hervey Coolc, of counsel), for app’lt; R. Baker (II. A. Nelson, of counsel), for resp’t.
   Pratt, J.

The general rule of law is in Robbins v. Jones, 15 C. B. (N. S.), 221, said to be A landlord who lets a house in a dangerous condition is not liable to the tenants, customers, or guests for accidents happening during the term ; for, fraud apart, there is no law against letting a tumble down house, and the tenant’s remedy is upon the contract, if any.”

The same rule was held in Jaffe v. Harteau, 56 N. Y., 398, and we think must be regarded as settled law.

An apparent exception has been engrafted upon the rule to the effect that where a landlord retains in his control a portion of the building he owes a duty in respect to such portion to the people whom with his consent come upon the premises. Camp v. Wood, 76 N. Y., 92.

But we are not aware of any rule, where a whole building is rented to a single tenant, which imposes upon a landlord the duty of active vigilance to make sure that it is in all respects safe.

Where the defects are apparent upon inspection and the landlord does not resort to any device or subterfuge to prevent the tenant from learning the condition of the premises, the rule of caveat emptor would seem to do justice between the parties.

A different rule seems to have been applied at circuit The jury were charged that if the stairs at the time of letting were weak to an extent that could be easily ascertained upon inspection, a verdict might be rendered against the landlord. This would impose upon the owner of real property the duty of active vigilance to, see that the premises he is about to rent, in this instance a dwelling, are in good condition.

We think the law puts upon the tenant the risk of such defects as are visible upon inspection.'

From these views it follows that the judgment should be reversed and a new trial ordered, costs to abide the event.

Barnard, P. J., concurs; Dykman, J., not sitting.


author: Landon, J.

text:
    In the Matter of the Application of Duncan McLaren et al., to compel the County Clerk of Albany County to correct omission in ballots.

      (Supreme Court, Chambers, Schenectady County,

      Filed Oct. 25, 1890.)

    Election—Ballots.
    Where the charter of a village provides that its-police commissioners shall be elected at the general election, the names of the persons nominated for these offices must be placed on the official ballot prepared for the districts included in such village.

      I

    Motion to compel correct omission in ballots.

      Frank S. Black, for motion; Mark Cohen, opposed.
   Landon, J.

The question presented by this application is whether at the general election to be held in ¡November thenames of the candidates for the office of Police Commissioners for the village of West Troy should be upon the same ballot with the names of the candidates for state, county and district offices, or upon a separate ballot.

. The first thirty-seven sections of the ballot reform law, chap. 262, Laws 1890, prescribe and provide for a system of voting by ballot at general elections, among the main features of which are, systematic nominations; official ballots, prepared, printed and distributed under the direction of .the county clerk; one ballot only to be cast by one voter; and only one ballot box in which to deposit all the votes cast.

The thirty-eighth section of the same act provides that “ The provisions of this act shall apply to town and village elections except in the following particulars.” Then follow numerous particulars in which the scheme provided in the thirty-seven previous sections of the act is reduced, modified and narrowed in its proportions and methods so as to be fitted to the smaller range of town and village elections. These excepted particulars do not apply to general elections.

We thus in the same act find two systems, one for general elections, and another for town and village elections.

Whether the npminations and the official ballots are embraced in the one system or the other does not depend upon the nature of the office to be filled, but upon the election at which it is to be filled. Of course, a governor cannot be chosen at a town or villoge election, but police commissioners may be chosen at a, general election if the statute so prescribe. The statute does so prescribe with reference to the commissioners of police for the village of West Troy. Chap. 496, Laws 1870. It follows, therefore, that the nominations of candidates for this office must be made and filed in accordance with the methods prescribed for general elections, and that the county clerk must place the duly nominated candidates for these offices upon the official ballots which he prepares for the districts of West Troy.

This construction makes the scheme of ballot reform law, so far as any question here presented enables us to judge, harmonious and complete. To hold that two elections, one the general election and the other a village election, must be carried on at the same time under two different methods, would introduce confusion and the evils which the act was designed to remove. The act must be so construed as to accomplish its purpose.

It follows that the motion must be granted.


author: • Landon, J.

text:
    In the Matter of the Application of Patrick Grogan.

      (Supreme Court, Chambers, Schenectady County,

      Filed October, 1890.)

    Elections—Certificate of nomination.
    Owing to a wrong construction of the statute, the certificate of nominations filed did not contain an authorization to fill out the names of candidates for other offices to be placed on the ballot. After the above decision and eight days before election, a correct certificate was filed. Held, that such certificate be filed nunc pro tune, and proper ballots printed and distributed.
   • Landon, J.

After the announcement of the decision in the above matter, and eight days before the day of election, an application was made to Justice Landon by Patrick Grogan and others upon affidavits reciting that candidates had been duly nominated for the office of police commissioners of West Troy pursuant to § 3, and also by certificate under § 5 of the said act, by a convention composed of democratic electors of West Troy; that the certificate of nomination had been duly filed with the county clerk; but that owing to a construction of the statute different from that given by the said justice, the certificate of nomination did not contain an authorization to fill out the names of candidates for state, district and county offices to be placed upon the same ballot with the said candidates for police commissioners; that on the 21st day of October a new certificate of nomination was filed with the county clerk, in which Patrick Grogan and Robert Pickett were authorized by the persons signing the certificate to represent such signers, as provided in § 5, and to make the written approval of the names of such other candidates as should be placed upon the same ballot in accordance with § 17; and 'that the said Grogan and Pickett had filed with the county clerk their written approval of the names to be placed upon the same ballot with the names of the candidates for police commissioners ; but that the county clerk declined to cause ballots to be printed for West Troy with the names of said candidates for police commissioners with the names of candidates for the other offices specified, in such written approval, alleging that such written approval must be filed twelve days before election.

After hearing counsel for and against the motion, it was ordered that the new certificate of nomination containing the authorization of Grogan and Pickett to represent the signers thereof as aforesaid, and also their written approval of the names of the other candidates to be printed upon the same ballots with the names of said candidates for police commissioners, be filed nunc fro tune, and that the county clerk cause to be printed and distributed the requisite number of said ballots for use in the several election districts in "West Troy.


text:
    Altha M. Wells, Admr’x, App’lt, v. The Brooklyn City R. R. Co., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Negligence—Street railroads.
    The driver of a horse car is bound to be watchful, especially in a crowded city, so as not to injure persons crossing the street.
    2. Same.
    Plaintiffs intestate before attempting to cross the street look;d both ways and saw the car fifty feet away, but before he got across he was struck by the horses, thrown down and injured. The driver did not see him until the horses were within six feet of him. Held, that the driver did not perform his duty and that the contributory negligence of deceased was a question for the jury; that it was not negligence, as matter of law, to attempt to cross in front of a car fifty feet away.
    Appeal from judgment entered upon dismissal of the complaint.
    Action to recover for the death of plaintiff’s intestate, caused, as alleged, by defendant’s negligence.
    Payne, McGuire & Low, for app’lt; Morris & Whitehouse, for resp’t.
   Barnard, P. J.

There was sufficient evidence produced upon the part of the plaintiff to go to the jury. The accident happened on the 27th of November, 1888, between six and seven o’clock in the evening. The plaintiff was sixty-one years of age, and attempted to pass over Flushing avenue in front of the defendant’s street car and was killed. When he started from the corner- of Throop and Flushing avenues, and when he started to cross,1 he was observed to look both ways and start after this observa-1 tian. The car was then fifty feet away. The deceased got across the first and second track and partly across the third track, when he was struck by the car horses and thrown under the wheels of the car and fatally injured, although the car did not pass over him. The negligence of the defendant consists in this: The car was going faster than usual and didn’t slack up its speed until the man was struck, although in full view of the driver of the car. The witness Schnidler thought he would have time to cross safely with the high rate of speed which continued until the accident; when the driver put on brakes to stop the car. The driver did, not see the deceased until he got within twelve feet of him, and the horses were within six feet of him. It was then too late to save the man who was crossing, as it takes about eight feet to stop the car. The deceased was a little deaf. The driver was bound to be watchful, especially in a crowded city, so as not to injure persons crossing the street. Moebus v. Herrmann, 108 N. Y., 319; 13 N. Y. State Rep., 648.

It does not apjiear that he did so if he could see fifty feet ahead of him and did see a man crossing the street and kept up a rapid rate of speed until the horses were within six feet of the person crossing, and when the accident could not be prevented. The contributory negligence of the deceased was a question for the jury. It was not negligence, on his part to attempt to pass in front of a car fifty feet away, as matter of law. The neglect of the defendant being found, it will go far towards acquitting the deceased of neglect. He probably assumed that the rate of speed was less than it was, or that the driver would" slightly slacken the speed. McClain v. Brooklyn City R. R. Co., 116 N. Y., 459 ; 27 N. Y. State Rep., 549.

The order dismissing complaint and the judgment therein should be reversed, and a new trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.


text:
    The Diamond Brick Company, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    'Railroads—Fbhces.
    Where a railroad company erects a sufficient fence with gates therein for the use of adjoining owners, and such an owner for her own convenience leaves the gate open, neither she nor her employes or lessees can complain of the railroad company for not shutting it.
    Appeal from judgment in favor of plaintiff entered upon a ■verdict, and from order denying motion for a new trial.
    Action to recover for the killing of plaintiff’s horse on the tracks of the West Shore road near West Haverstraw.

      Aslibel Green and Herbert H. Kinney, for app’lt; George W. Wei-•ant, for resp’t.
   Barnard, P. J.

The West Shore railroad runs through the farm of Emma Seed. The railroad fenced its track and left a .gate for the use of the farm owners. The Diamond Brick Company, by the permission of the owner had pastured a horse upon the Seed farm. The field in which the horse was pastured ran back to the railroad. The gate in question was a part of the fencing when it was shut In September, 1886, the horse got upon the railroad track and was killed by an engine of defendant, which operates the West Shore railroad. The fence was a wire fence four wires high, fastened to upright posts, and was three or four feet high.

• There was some proof that the fences were made without sufficient strength of wire and staple, but the proof was so entirely unaccompanied by any proof that the horse got on through these defects, that the judge told the jury that the evidence was insufficient to justify the conclusion that the fence was insufficient.

Under the evidence the gate was continually kept open, at least there is evidence which justifies the jury in so finding. The only question is, therefore, whether or not as against the land owner the railroad company is bound to close the gate when its officers have notice that it is open.

There seems to be no basis for a charge of negligence against the defendant. The gate was built for the owner and it was built in accordance with law for the use of the owner.

The railroad could not control the use of the gate. After use the owner either did not shut the gate or permitted it to remain open for long intervals of time. If this is neglect on the part of the company arising from a failure to shut the gate, why is it not neglect on the part of the owner to leave it open while using it for the purpose of the farm from day to day, all summer or a great portion of the summer.

She took her risk as to the cattle getting on the railroad by the open gate and she hired the pasturage to the plaintiff upon the same condition. It would have been unwarrantable in the defendant to shut the gate on the day of the accident if the owner was using the crossing, and a failure to inquire whether or not the gate was left open by the farm employes using the same is not a negligent act.

The proof therefore fails to show any neglect in respect to the gate in question. The owner for her own convenience left the gate open and neither she or her employes or lessees can complain of the railroad company for not shutting it.

The judgment should be reversed and a new trial granted, costs to abide event.

Dykman and Pratt, JJ., concur.


text:
    Ludlow W. Valentine, an infant, App’lt, v. Susan A. Austin and Elizabeth H. Lunt, Impl’d, Resp'ts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Record—Lis pendens—Bona eide purchaser.
    When a lis pendens is cancelled by order it ceases to be.notice to anyone, and those rvho subsequently deal with the title can rely on the record. They are not bound to examine the complaint in the action in which it was filed.
    3. Fraudulent conveyance—Bona eide purchaser.
    One R. procured a deed from plaintiff's mother by fraud and undue influence and subsequently conveyed to defendants, who took the conveyance in good faith and for value. They had a search made which disclosed a cancelled Us pendens. In an action to set the deeds aside, Heldy that defendants were bona fide purchasers.
    Appeal by the plaintiff from so much of the judgment herein as dismisses the complaint as to the defendants, Austin and Lunt.
    This action was brought by plaintiff, as the heir-at-law of ■Catharine A. Valentine, deceased, to set aside a deed of certain premises from her to the defendant Eichardt, also a deed from Eichardt to the defendant Austin, and a mortgage from Austin to the defendant Lunt
   Barnard, P. J.

The defendant, Austin, is a grantee from one Herman T. Eichardt, and the defendant, Lunt, is a mortgagee from Austin, of the same premises. Eichardt acquired the title to the land by fraud and undue influence from one Catharine A. Valentine. Catharine A. Valentine was sane when she made the conveyance. Both of these defendants took their conveyance in .good faith and for value.

This fact is found by the jury and also by the court at the request of the plaintiff. Ho evidence is returned, but the appeal is taken from the findings and judgment therein so far as the same dismisses the complaint upon the merits as to the defendants Austin and Lunt. The facts found destroy the plaintiff’s claim.

A purchaser in good faith and for value is one who takes without notice of any outstanding equity or lien not of record, or defect of title in any way. Simpson v. Del Hoyo, 94 N. Y., 189.

There is no conflict in the findings. It is found-that Mrs. Valentine, by a next friend, commenced an action to set aside the Eichardt conveyance because it was obtained from her by fraud and undue influence and without consideration. This action had been dismissed “ before the plaintiff opened or offered any testimony,” ■and judgment was entered accordingly.

There was a lis pendens filed in this action. When the defendants, Austin and Lunt, took the conveyance, they caused a search to be made, and the search returned the finding of the lis pendens, and that it was cancelled by order of the court on the ■6th day of September, 1886.

The appellants claim that it was the duty of these defendants to examine the complaint in the Eichardt action and to take notice of what such an examination would disclose.

This is too stringent a rule of constructive notice. The record was clear, and while there had been a lis pendens which affected the title, it had been discharged by a judgment which the evidence does not question.

They know of no facts which should have put them upon inquiry and then the want of diligence is want of good faith. Parker v. Conner, 93 N. Y., 118.

The finding of good faith is irreconcilable with this constructive notice which is claimed to have been sufficient to put the parties on inquiry.

The cancelled Us pendens was not notice except in the action in which it was filed, and all who dealt with the title while it was in force would be deemed bound equally as if they were parties to the action. Lamont v. Cheshire, 65 N. Y., 30.

When the Us pendens -was cancelled by order it ceased to be notice to any one and those who subsequently dealt with the title could rely upon the record. They were not bound to examine the complaint in an action which, from the record, had no basis.

The judgment should therefore he affirmed, with costs of appeal to each respondent.

Dykman, J., concurs; Pratt, J., not sitting.


text:
    Thomas Taylor, Resp’t, v. The Village of Mount Vernon, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed Dec. 8, 1890.)

    Municlpal corporations—Negligence—Excavations on lots adjoining sidewalk.
    An owner of lands made an excavation on Ms lands witMn the stoop line thereof and eight feet from the sidewalk, and placed no guards or lights about it. Plaintiff, while walking by, intentionally left the sidewalk and stepped into the excavation. The sidewalk was not out of repair. The only notice of the excavation was to a police officer the day before and he notified the owner to guard it. Reid, that the village was not chargeable with negligence.
    Appeal from judgment in favor of plaintiff, entered on tne report of a referee.
    Action to recover damages for personal injuries.

      Joseph S. Wood, for app’lt; Eugene Archer, for resp’t.
   Barnard, P. J.

An owner of lands in the village of Mt. Vernon had excavated a cellar thereon flush with the street. There were no lights and no guard rail placed at the excavation to indicate the danger of leaving the sidewalk. The lots were naturally on the grade of the sidewalk. The plaintiff on the 15th of October, 1887, stepped from the sidewalk into the excavation and was injured. The excavation was four feet inside of the stoop line of the house on the street. The sidewalk had a flag walk, the inside of which was eight feet from the excavation. The excavation did not encroach on the sidewalk and had not caved in so as to diminish the sidewalk. The plaintiff intentionally left the sidewalk for his own purpose and thus stepped into the excavation. The sidewalk itself was not out pf repair. Under this- state of facts the village owed no duty in respect to the excavation. It had been recently made as a cellar for a new building. It was entirely off the street. No notice is proven to any of the city officers. The only notice shown was to a police officer on the day preceding the accident, and he at once notified the owner to guard his excavation; whether he was liable for neglect under the case-of Beck v. Carter, 68 N. Y., 283, is doubtful. The facts of that, case show an invitation to use the place excavated as a highway by the owner and the case seems to have been decided on that, ground against the owner. The place excavated was not an exposed place under Hubbell v. The City of Yonkers, 104 N. Y., 434; 5 N. Y. State Rep., 730. It is immaterial whether the excavation was made below the sidewalk and entirely on, the owner’s land or whether the danger be caused by the building of the road by a steep embankment. Where commissioners failed to erect a fence along a bank sufficient to prevent persons using the highway from walking down the declivity, the court of appeals say we are of the opinion that the town owed no duty to the traveling public to erect such fence, and that it was not negligence on its part or that of its highway commissioners to omit to do so.” Monk v. Town of New Utrecht, 104 N. Y., 552; 6 N. Y. State Rep., 484.

The case is not like Jewhurst v. City of Syracuse, where there was no visible boundary of the street and the accident happened upon a part of an owner’s land used as a street. The plaintiff did not in this case suppose he was using the street, but was departing from it. In Ivory v. The Town of Deerpark, 116 N. Y., 476; 27 N. Y. State Rep., 643, the highway had been cut away by a railroad and the exposed place was not guarded. The cut was at the end of a sharp curve, so that if the traveler continued in the course of the highway he must be precipitated down the bank. The facts found in the present case fail to show any negligence upon the part of the defendant.

The judgment should, therefore, be reversed and a new trial granted at circuit, costs to abide event.

Btkman and Pratt, JJ., concur.


author: Learned, P. J.

text:
    In the Matter of a Certiorari to inquire into the cause of the imprisonment of James Bray.

      (Supreme Court, Special Term, Albany County,

      Filed October, 1890.)

    1. Assault—Jurisdiction of recorder of Binghamton.
    The recorder of the city of Binghamton has jurisdiction of a charge of assault and battery, and power on a conviction of such offense to inflict the same punishment as courts of sessions or of oyer and terminer.
    2. Same—Sentence.
    The certificate of conviction, which was on a printed form, adjudged that defend'int'be imprisoned * * * for the term of three months, or pay a fine of $100, and be imprisoned until it be paid, not exceeding three months. The commitment recites that it was adjudged that he pay a fine of $100, and in default should be imprisoned * * * for the term of three months. Meld, that the claim that the sentence was in the alternanative is untenable; its meaning is plain, and no injustice is done to the prisoner.
    The prisoner had been tried and convicted before the recorder of the city of Binghamton of an assault and battery. He was sentenced under the provisions of the city charter, which prescribes the recorder’s jurisdiction. The certificate of conviction provided that “ he be imprisoned in the Albany County Penitentiary for the term of three months or pay a fine of §100, and be imprisoned until it be paid, not exceeding three months days.” The commitment ran “ should pay a fine of $100, and in default of payment to be imprisoned in the Albany County Penitentiary for the term of three months.” A writ of certiorari^was issued to inquire into the cause and validity of his detention.'^.

      Andrew Hamilton, for people; William J. Luddeñ,!‘for' relator. >
   Learned, P. J.

Bray was brought before the~recorder. of Binghamton, holding a court of special, sessions,"and was charged with the offense of assault and battery. „ He pleadedÜnot guilty,' demanded a jury, was tried and convicted.'1""

The certificate of conviction adjudged that he be imprisoned in the Albany County Penitentiary for the term of three months, or pay a fine of $100, and be imprisoned until it be paid, not exceeding three months.

The commitment is slightly different. It recites that it was adjudged that Bray should pay a 'fine of $100, and in default of payment should ba»imprisoned in the Albany County Penitentiary for the term of three months; and it directs the keeper of the penitentiary to keep him until discharged according to law. Two questions are raised on this certiorari:

First. As to the jurisdiction of the recorder;

Second. As to the validity of the sentence.

Chapter 214, Laws 1888, p. 334, § 3, gives the recorder authority to hold courts of special sessions, and says :

“ Said court shall render judgment upon such conviction and shall inflict such punishment * * * as any other court having jurisdiction of the offense could inflict, and shall have the same jurisdiction to sentence and punish the persons so convicted as courts of sessions or courts of oyer and terminer have for the same offense.”

I think the charge of assault and battery must be equivalent to a charge of assault in the third degree. Penal Code, § 219.

Assault in the third degree is, by § 222 of the same Code, punishable by imprisonment for one year, or a fine of not more than $500, or both.

But by § 56, Code Criminal Procedure, courts of special sessions, except in New York and Albany, have exclusive jurisdiction of assault in the third degree, and by § 717 of the same Code the punishment which may be inflicted by such courts is limited to a fine of fifty dollars, or imprisonment for six months.

Section 62, Code Criminal Procedure, provides that a court of special sessions is to be held by one justice of the peace, “ unless provision is otherwise made by law,” and provision is thus made in the city of Binghamton. This provision gives the recorder the same power to sentence and punish the persons so convicted as courts of sessions or courts of oyer and terminer have for the same offense. Now, if a prisoner were convicted of assault in the third degree in either of those courts, § 222 of the Penal Code would apply. But the relator argues that courts of special sessions have exclusive jurisdiction. Code Grim. Pro., § 56. On the other hand, a prisoner indicted for assault in the first degree might be convicted in a court of oyer and terminer of assault in the third degree, and a person so convicted might be punished under § 222, Penal Code. I think, therefore, that the clause above cited from the Binghamton charter was intended to enlarge the power of the recorder holding special sessions as td the extent of punishment he can impose.

It is analogous to the third subdivision of § 68, Code Criminal Procedure, and the fourth subdivision of § 64 of the same Code, which give these increased powers of punishment to the special sessions of Albany and to the special sessions of New York It is next urged that the sentence is void because' in the alternative.

The Code of Criminal Procedure, §§ 484 and 718, authorize the court which imposes a fine to direct that defendant be imprisoned until the fine is paid, specifying the extent of the punishment, not to exceed one day for every dollar. That is what was done in this case. The commitment expresses this exactly, reciting that defendant was adjudged to pay a fine of $100, and in default to be imprisoned for three months. Three months are less than 100 days. Whenever defendant should pay his fine he would be entitled to his discharge.

The certificate of j udgment is not quite as plain, because owing to the use of a printed form the words “ three months ” are twice inserted. But there can be no misunderstanding as to the commitment directing the keeper of the penitentiary to hold Bray. That recites the imposition of a fine and the judgment that in default he be imprisoned the specified time of three months.

I think it would be unreasonable to hold that the certificate of conviction had any other meaning. I do not mean to say that a sentence plainly in the alternative is good. But the law authorizes the imposition of a fine and of imprisonment until it be paid for a specified time not exceeding the statutory limit. Here the fine is imposed ; the time of imprisonment specified. It does not exceed the limit, and Bray does not claim to have paid his fine. The meaning of the sentence is plain; the commitment makes it clear and no injustice is done to the prisoner.

The prisoner is remanded to the custody of the keeper of the penitentiary.


text:
    James B. Swain, Resp’t, v. Samuel M. Pettengill, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Depositions—Affidavit.
    An affidavit to procure an order for the examination of a defendant before trial is insufficient where it fails to state the nature of the action or the substance of the judgment demanded. Allegations that plaintiff is a stockholder in a corporation and that defendant is its president and has wrongfully issued stock which he has converted to his own use are not sufficient, to show such facts.
    Appeal from order denying motion to vacate an order for the examination of defendant.
    Plaintff’s affidavit, upon which the order was granted, is as follows :

      First, That he is the plaintiff in this action and is and has long been a stockholder in the corporation called “The Metropolitan Transit Company.”
    That the said Metropolitan Transit Company was incorporated in the year 1872 for the purpose of constructing and maintaining a certain railroad in the city of New York, from Bowling Green, in said city, to and across the Harlem river, and has a capital stock of five million ($>5,000,000) dollars.
    That said plaintiff is the holder of eight hundred (800) shares of said capital stock, which are inscribed upon the books of said corporation in plaintiff’s name.

      That the defendant, Samuel M. Pettengill, is now and has been for many years one of the directors of said corporation and for several years its president and that one A. J. Dwinelle is its secretary and treasurer, and as such secretary and treasurer has possession, either individually or in conjunction with said Pettengill of the books and papers of said company.
    Deponent further "says that he is informed and believes and charges the fact to be, that the said defendant Samuel M. Pfettengill has wrongfully and without authority .of the said corporation issued or caused to be issued stock of the company to the amount of four millions and five hundred thousand ($4,500,000) dollars or thereabouts and has converted said stock to his own use.
    That this action was commenced by the service of a summons on the defendant, Samuel M. Pettengill, on the 9th day of December, 1889, but no complaint has been served.
    That the defendant, Samuel M. Pettengill, has appeared by James S. Millard, his attorney, whose address is Tarrytown, New York.
    That the said Samuel M. Pettengill and A. J. Dwinelle, whose examination is desired, have offices for the regular transaction of business in the Potter Building, on the corner of Nassau and Beekman streets, in the city of New York.
    And this deponent further says that the testimony of said Pettengill and Dwinelle is material and necessary for the plaintiff herein for the prosecution of this action and that he may know therefrom the particulars of the facts which will enable him to frame a complaint.
    That he is not now. able to frame a complaint and. does not know the circumstances under which the said stock was issued nor the time when the said stock was converted and does not know to whom the proceeds of said stock have been paid except in a general way.
    That they have been divided among the friends of defendant and divers other persons, but who those persons are the plaintiff does not know.
    That the books and papers of the defendant and the minutes and stock-books of the Metropolitan Transit Company are necessary to enable the plaintiff to make the examination which he desires in order to frame a complaint and that the defendant and the said Dwinelle, as secretary and treasurer of the Metropolitan Transit Company, have possession of the books and papers of the said company which the plaintiff desires to examine, also certain contracts and leases made by said Pettengill with and to certain persons and companies to this plaintiff unknown.
    And the deponent says that the said Pettengill and Dwinelle are officers and directors of said corporation, whose testimony is necessary and material.
    That no previous application for examination of said Pettengill and Dwinelle or for the recovery of such books and papers has been made herein to any other judge except one from I. N. Hills, county judge of Westchester county, which was set aside for the Teason that the affidavit upon which it was granted was not served on the defendant’s attorney.

      J. S. Millard {Phillip Carpenter, of counsel), for app’lt; Wm. G. Yalentine, for resp’t.
   Barnard, P. J.

The affidavit upon which the order to examine the defendant Pettengill and the witness Dwinelle was granted is defective and insufficient. Neither the nature of the action nor the substance of the judgment demanded is stated in the plaintiff’s affidavit The only statement is to the effect that the plaintiff is a stockholder in the Metropolitan Transit Company. That Pettengill is its president, and has wrongfully issued stock which he has converted to his own use. A summons, but no complaint has been served. Neither the cause of action nor the judgment to be demanded can be even inferred from this statement. The affidavit, therefore, fails to comply with § 872, subd. 2, of the Code of Civil Procedure.

The order should, therefore, be reversed, with costs and disbursements, and the motion granted, vacating order, with costs.

Dykman, J., concurs; Pratt, J., not sitting.


author: Lakdoh, J.

text:
    The Reformed Dutch Church of Summit, Resp’t, v. William L. Harder et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 28, 1890.)

    1. Religious cobpobations—Title to seal estate—Abandonment.
    Property was conveyed in 1830 to trustees for the use of plaintiff to erect a church, and not to he used for any other purpose, and title was to cease whenever the church should abandon the premises. The society was feeble, and preaching irregular, and for many years there was no settled minister. Since 1880 there has been no preaching in the building. Occasionally the building was used for debates and musical entertainments. In 1879 the classis of Schoharie passed a resolution dissolving the church, and directing the trustees of the classis to take steps to secure the church’s interest in the property, and dispose of it to the best advantage. Ro steps were taken, and the church was not dissolved except so far as the above resolution may have dissolved it. Subsequently the surviving members met and elected a consistory, and in 1881 filed in the clerk’s office a certificate of incorporation of the church substantially in the form required by § 2, chap. 60, Laws of 1813, relative to incorporating unincorporated trustees of the Reformed Dutch Church. The jury found that the church had never abandoned the premises. Held, correct.
    2. Same—Deed.
    The provisions of the deed that the trustees were to hold the premises “ as long as they shall continue to occupy them ” for divine service, etc., were not conditions subsequent hut limitations upon the title specifying when it should cease.
    8. Same—Use eob seculab pubposes.
    The secular gatherings, which did not interfere with the religious services, were not ground upon which the court could hold that the title must cease.
    4. Same—Dissolution.
    Upon the question whether the action of the classis dissolved the church, it appears that this was not carried out, and that the classis reconsidered its action. So far as this is an ecclesiastical question, the court accepts the final decision of the classis.

      Appeal from a judgment entered upon the verdict of a jury upon the trial at the Schoharie circuit in January, 1890, and from the order denying the motion made upon the minutes for a new trial.
    The complaint, alleging the incorporation of the plaintiff, charged the defendants with trespass in entering upon the lot of which the plaintiff was the owner and in possession, and cutting and carrying away wood and injuring its church edifice thereon and taking away its personal property therefrom.
    The answer contains a general denial, and specifically avers that the plaintiff was never incorporated and is not an existing corporation, alleges title of the defendant Stanton P. Harder in the premises, and that by virtue thereof he peacefully entered into possession thereof, and as such owner did lawfully cut and remove some of the timber therefrom and some portions of the church edifice, but only took possession of personal property in order to preserve it for the owners, disclaiming any conversion thereof, and that the acts of the defendant William L. Harder were merely in aid of Stanton P. Harder’s lawful action. The acts constituting the alleged trespass were done in 1885 and afterwards, and the claim of the defendant was that the trustees of the church and the society had prior to that date abandoned the premises; that they were suffered to be used for other than church purposes, and (thus by virtue óf the terms of the grant under which they held, their title had ceased; that they were never incorporated, and that if they were it was not until 1887, and the corporation did not become revested of the premises.
    • In 1830 and for several years prior thereto there was a religious society at Eminence in the town of Summit, Schoharie county, called the Dutch Reformed Church of Eminence. In 1828 John A. King gave a perpetual lease to James Ham of lot Ho. 47 in the Blenheim patent, containing 120 acres, reserving an annual rent. Ham in 1829 assigned this lease to Colby Reed, but has continued in possession. In February, 1830, Reed and Ham conveyed two acres of said lot 47 to Greorge Felter and three others “ Trustees of the Dutch Reformed Church in the town of Summit, in their actual possession now being and to their successors in office, to have and to hold the said described premises for the use of the Dutch Reformed Church of the town of Summit, for the purpose of erecting a house for divine worship, and as long as they shall continue to occupy the said premises for that purpose, and not to be transferred or occupied for any other purpose, and whenever the said church shall abandon said premises then this title to cease to the said parties of the second part, their successors in office.”
    A church building was then erected and maintained by the society. Such building still exists, but the defendants by the acts in this action complained of have in part destroyed the same.
    The Dutch Reformed Society of Eminence was feeble, but from 1830 to 1855 religious services were held in the building under the direction of missionaries and other supplies. In 1855 the building was repaired, and a regular official organization existed according to the usages of the Dutch Reformed Church of America; the church became a member of the classis of Schoharie; the church building was dedicated; a pastor installed, and church records were commenced. Regular services were thereafter held until 1859 when the pastor withdrew and his pastoral relation was duly dissolved. After 1859 religious services were continued milder the lead of ministers supplied by the classis of Schoharie, but the supply became irregular and the services infrequent Since 1880 there has been no preaching in the building. Occasionally the building was used for secular gatherings, such as musical and other entertainments, debates and political meetings. In September, 1886, the classis of Schoharie appointed a pastor to preach there, but the defendant, Stanton P. Harder, claiming in 1885 and ever since that the church lot had reverted to him under the terms of the deed of 1830, so dismantled the church building that it was impracticable to hold services in it, and services have since 1886 been held in the neighboring houses. There was no election of officers after 1857 until 1886.
    In 1879 the classis of Schoharie appointed a committee to examine into the condition of the Reformed Dutch Church at Eminence and make report. The committee reported to the classis that “ the church is practically dead; there is no prospect even in the distant future that it could be made a self-sustaining church ; administration should be had upon what there is of the estate ; and we recommend that classis take such action in this direction as they think best.” The classis thereupon resolved, “ first, that the church at Eminence be dissolved;” “second, that the trustees of classis take the necessary steps to secure the property for the present and the interests of the Reformed Church in it, and (should said trustees deem it best) to remove the bell and dispose of the interest which the Reformed Church may possess in the property to the best advantage.” Ho further action was taken by the classis in the matter until 1886, when the classis appointed a committee “to inquire into the legal status and relations of such property and advise with the brethren at Eminence as to their wishes thereto.”
    The committee reported that the church had never been dissolved, for the reason that the action of the classis was irregular and incomplete; irregular because without previous notice to the members of the consistory, and incomplete because the declaratory deliverance of the classis was not accompanied and followed by suitable dismission of members of the church to other churches, and because the members of the consistory had received no official notice of what they should do. The committee further reported that the members of the church supposed themselves incompetent to act further as a church organization; that they had never abandoned the church premises, but supposed that classis had tied their hands. Thereupon the classis resolved that its former action for the dissolution of the church was inoperative, and that the church of Eminence be restored to the roll of the classis. The same committee reported, and the fact was that there were members of the church of Eminence still remaining whose relation had never been transferred to any other church, among whom were an elder and a deacon thereof; that these members met and in due form resolved that the surviving elder, Jeremiah Allen, and the surviving deacon, Joseph L. Pitcher, be recognized as the consistory and trusteeship of the Beformed Dutch Church of Eminence; and that these brethren being present held a meeting as consistory and elected Elder Allen delegate to the classis and president of the consistory, and Deacon Pitcher as secretary of consistory and treasurer of the church.
    The classis approved this action of the church and consistory, and received Elder Allen as a member of the consistory. This was in November, 1886. There were then seven surviving members of the church. January 4,1887, the “ certificate of incorporation of' the Beformed (Dutch) Church of Summit, Schoharie county, N. Y,” was filed and recorded in the Schoharie county clerk’s office. It was executed and acknowledged by said Allen and Pitcher and F. H. Cleveland. They therein certify that at a meeting of the Beformed (Dutch) Church of the town of Summit, worshipping at and in the building known as the Reformed (Dutch) Church of Eminence, and for the time being at the residence of Sarah A. Sweet, held December 21, 1886, “the succession of consistory and of trusteeship was in due order, and in accordance with the laws and usages of the religious denomination known as the Beformed (Dutch) Church in America, continued and maintained by the re-election of said Jeremiah Allen, as elder, and the election of the former deacon, Joseph L. Pitcher, as elder, and of the said E. H. Cleveland, as deacon, and that the ordination to office as required by the constitution of said religious denomination took place in due order on the 3d day of January, 1887.” The certificate, in its further recitals and its acknowledgment, substantially conforms to the requirements of § 2, chap. 60, Laws 1813, relative to the incorporation of unincorporated trustees of the Beformed Protestant Dutch Church. It recites that the corporate name shall be the “ Beformed (Dutch) Church of Summit, New York.” Thereafter this action was brought

      M S. Wilcox and W C. Lamont, for app’lts; F. R Gilbert, for resp’t.
   Lakdoh, J.

The conveyance by Beed and Ham in 1830 to Spickerman and others, trustees, vested in them and their successors, under the Laws of 1813, chap. 60, § 4, the title to the lot in question, in trust for the religious society, subject to the terms of the deed, to hold the same until the society should be incorporated. Church of Redemption v. Grace Church, 68 N. Y., 570.

Of course, if before the incorporation the term of the title to the lot pursuant to the terms of the deed had ceased, the subsequent incorporation could not vest it in the corporation -nor divest those of it who had meantime become vested of it. But if upon such incorporation the title shall still remain in the trustees in trust for the society the corporation would then succeed to their legal title. First Baptist Church v. Withered, 3 Paige, 299; Lutheran Church of Eden v. Bly, 73 N. Y., 323.

By the terms of the deed, the trustees were to have and to hold the premises ll as long as they shall continue to occupy them ” for divine worship, “ and not to be transferred or occupied for any other purpose, and whenever the said church shall abandon said premises, then this title to cease.” These provisions were not conditions subsequent, subjecting the title to forfeiture upon reentry or judgment to that effect, but limitations upon the title-specifying when it should cease. 4 Kent’s Com., 126 ; Mayor v. Stuyvesant, 17 N. Y., 34. At least,- this was the view of the trial court, and it is the most favorable view for the defendants.

The society or trustees never transferred the premises and never occupied them for other purposes than for divine worship. Occasionally and rarely, on other days or evenings than Sunday, there were gatherings in the church edifice for secular purposes. But such gatherings do not appear to have been any interference with the main use of the church edifice, and it would be too narrow a construction to hold that they put an end to the title. The fair meaning of the restrictive clauses of the deed is that when the premises shall be transferred or occupied for secular, uses, to their permanent disuse for divine worship, the church, that is the religious society, thus or otherwise abandoning the premises, then the title should, cease.

The trial judge left it to the jury to determine upon the evidence whether any such abandonment had taken place. The jury found it had not. The evidence supports the verdict. The society was brought near extinction, but it survived.

The defendants urge that the church was dissolved by the decree of the Schoharie classis in 1879. This church was a member of that classis, and under the constitution of the Reformed (Dutch) church was amenable to its jurisdiction in the matter of “ disbanding ” it as a congregation of that denomination.

Chapter 55, Laws 1880, amending § 3 of chapter 110, Laws 1876, so as to confer jurisdiction upon such governing body to determine when such a church had become extinct, not then existing, could not apply to this case. Chapter 381, Laws 1875, amended by chapter 177, Laws 1877, has reference to the Presbyterian denomination, as plainly appears from its provisions and phraseology, and does not apply to the Reformed (Dutch) churches. But conceding the jurisdiction of the classis to disband this congregation, Connitt v. Reformed Prot. Dutch Church, 54 N. Y., 551, it did not actually disband or dissolve it, but authorized some steps to be taken for that purpose, which were never actually taken. The decree or resolution was never ex-excutecL It appears to have been made without notice to the “ brethren at Eminence,” and without provision for thqir transfer to other churches.

The same classis in 1886 reviewed its action of 1879 in the matter, and pronounced it inoperative. The classis then, upon an examination of the matter, and upon hearing the brethren at Eminence; held that the action of 1879 had not dissolved the church, and it recognized and affirmed its continued and regular existence. So far as this is an ecclesiastical question, we accept the final deb cisión of the classis. Connitt v. Reformed Prot. Dutch Church, supra.

It does not conflict with the verdict of the jury.

The title to the premises, therefore, was in the trustees in trust for the society at the date of its incorporation.

The defendants insist that no legal incorporation was effected. In January, 1887, this church had no minister. . By § 2, chap. 60, Laws 1813, if there be no minister, then the elders and deacons elected according to the rules and usages of such churches shall be the trustees for every such church and congregation, and may incorporate by assembling together and executing “ under their hands and seals a certificate certifying the name or title by which they and their successors forever as a body corporate, by virtue of this act, shall be known and distinguished.” The certificate must be acknowledged or proved and recorded in the county clerk’s office- The certificate recorded in the Schoharie county clerk’s office contains all the recitals necessary to show that the persons executing it were for the time being the trustees of the church. The certificate is regular in form, and, therefore, is prima facie evidence of the truth of its recitals where, as in this case, there is proof of the subsequent user of the corporate rights of the body. Methodist Epis. Union Church v. Pickett, 19 N. Y., 482. The subsequent user here shown was the resumption and continuance of religious meetings after filing the certificate of incorporation. Besides there is proof outside of the certificate of the official character of the persons making it We think the plaintiff’s existence as a corporation was shown.

The question of damages was fairly submitted to the jury. The evidence tends to show that whatever wood was cut and taken away was cut and taken under the direction of the defendants.

The judgment should be affirmed, with costs.

Learned, P. J., and Mayiiam, J., concur.