text:
    EDWARD McCABE, Respondent, v. CHARLES McCABE AND JOHN S. McCABE, Appellants.

      Partition — right of a defendant to an allowance for rents received, and stone quarried, by the plaintiff, his co-tenant. ,

    In an action for the partition of lands, on which there is a stone quarry, a tenant in common, who is made a defendant, may set up in his answer that the plaintiff has been in the sole x>ossession of the premises, has collected the rents thereof, and quarried and sold stone therefrom, and may require an account to be rendered of the moneys so received by the plaintiff, and have an allowance made to himself therefor. (Bocees, J., dissenting.)
    Appeal from an interlocutory judgment sustaining a demurrer interposed to the answer herein.
    The action was brought to secure the partition of certain real estate, of which the plaintiff owned an undivided nine-elevenths, and the defendants, John S. and Charles McCabe, each an undivided one-eleventh. These two defendants put in an answer, alleging “that since the 1st day of June, 1859, the plaintiff and these defendants have been seized as tenants in common of the lands aud premises described in the complaint, these defendants each owning one undivided eleventh part thereof; that these defendants were then minors under the age of twenty-one years; that since the said 1st day of June, 1859, the plaintiff has had the sole possession, and rents and profits of said real estate, which, upon information and belief, were reasonably worth the sum of, at least, $250 per annum, exclusive of the stone quarried, as hereinafter stated; that on said 1st day of June. 1859, there was, and ever since has been, upon said lands and premises, a. valuable stone quarry, from which stone could be quarried and sold at great profit and gain. Upon information and belief, that since said 1st day of June, 1859, down to the commencement of this suit, the plaintiff quarried from said stone quarry, annually, large quantities of stone, thereby greatly depreciating the value of said real estate, which stone he sold to various persons, from whom and for which he received large stuns of money ; and also annually sold to divers persons, from said stone quarries, large quantities of stone, which said persons quarried therefrom, and for which they paid said plaintiff large sums of money, amounting in all, upon information and belief, to at least $1,000 per year,” and prayed that an accounting might be had of the moneys so received by him, and an allowance made to them therefor.

      Andrew Vanderzee and Nathaniel O. Mo'afc, for the appellants.

      Augustus Sherman, for the respondent.
   Learned, P. J. :

If the matters alleged in this answer would, if proved on the trial, affect the rights of the respective parties in the partition of the laud, or the division of the avails, then it was proper to plead them. Where a defendant does not admit that the lights of the parties are such as,- in the complaint, they are alleged to be, he should set them up in his answer, as he claims that they are.

The question, then, is whether the matters alleged, if true, can affect the partition or the division.

It was held in Woolever v. Knapp (18 Barb., 265) that one of several tenants in common, who possesses the entire premises, without any agreement with the others as to rent, and without any demand from them, is not liable to them for use and occupation. But, however this may be, it is held in Scott v. Guernsey (48 N. Y., 108) that a tenant in common, who has received rents, must account therefor to his co-tenant. The language of the opinion is even stronger. It says: “He (a co-tenant) continued to occupy, knowing all the facts, and must pay the full value of bis occupation.” Probably, however, this language is to be construed with reference to the facts; which show the co-tenant to have been in the actual receipt of rents. And such rents, it was in that case held, might be adjusted in an action for partition.

The present plaintiff cites as an authority, that rents are not recoverable into action of partition, the case of Burhans v. Burhans (2 Barb. Ch., 398). The rents in that case were of land held' adversely. He also cites the case of Bulen v. Bordell (11 Abb. Pr., 381). The disbursements allowed there arose out of a contest over administration, and had nothing to do with the land. So, also, the cases of Dresser v. Dresser (40 Barb., 300), and of Wilcox v. Wilcox (48 id., 327), are cases where the co-tenant himself occupied, and did not receive any rents. The case of Roseboom v. Roseboom (15 Hun, 309) points out the distinction between the co-tenant who has received, and him who has only taken the rents and profits ; that is, between one who has collected rents from others, and one who has himself been in actual occupation.

The answer alleges the possession by the plaintiff of the rents and profits. Although this is not very definite, it is enough to admit proof, on the trial, of the actual receipt of rents, as distinguished from the more occupation of the land by the plaintiff, And the receipt of such rents might be brought into an accounting and adjusted in this action.

A more important question arises in regard to the allegation that the plaintiff has taken from the quarry on the premises large quantities of stone, and has sold the same and received large sums therefor. These acts of the plaintiff are very different from mere occupancy. They are a consumption or destruction of the very property which is owned in common. It may be necessary to adhere to the rule that for mere occupancy the co-tenant shall not be liable to account. But there is no reason to extend that rule to a case where the co-tenant actually consumes or takes off and disposes of a part of the property held in common.

In Elwell v. Burnside (44 Barb., 447), a co-tenant was held liable to account for cutting off and selling the timber on unimproved timber lands. That was put upon the ground of waste. Perhaps that decision would as well rest on the doctrine which has been applied to mines and the like.

Thus, in Job v. Potton (L. R., 20, Eq., 84) the right is recognized of a co-tenant to recover for his share of coal mined under authority of his co-tenant; and it is indicated at page 98 that in an action for partition the co-tenant could claim to have the court take into consideration the fact that his co-tenants had carried away part of the inheritance. (See Coleman v. Coleman, 1 Parson’s Penn. R., 470; Curtis v. Coleman, 22 Grant [Upp. Can.] Chy., 562.)

I see no reason why the doctrine laid down, as to mines of ore, should not apply to a quarry of stone. The quarrying and removing of stone is a very different act from the occupation of the land or from its cultivation. The quarrying actually diminishes and takes away the common property. And I think the co-tenant is liable to account. Nor should the court partition the property among the co-tenants, without securing to each his just share of the whole.

I think the answer set up a good defence, and that the demurrer thereto should be overruled.

The interlocutory judgment must be reversed, with costs, and the defendant must have judgment on the demurrer, with leave to the plaintiff to withdraw his demurrer, and to reply if he deem it necessary.

Bockes, J., dissented.

Present — LeaeNBD, P. J., Bocees and BoakdmaN, JJ.

Judgment reversed, with costs, and judgment for defendants on demurrer, with costs, with leave to plaintiff to withdraw demurrer, and to reply, if necessary, on payment of costs in twenty days after notice.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    GEORGE SCHWARTZ, Jr., Plaintiff, v. THE ATLANTIC AND PACIFIC TELEGRAPH COMPANY, Defendant.

      Telegraph company — not a conmon-camer — what ferns imposed by, reasonable— when the senda’ is bound by such terms.

    The defendant, a telegraph company, sent messages at a regular and established rate, and required the sender, if he wished to insure accuracy, to have the message repeated. It also sent messages at night at half-rates, on condition that it should not be liable for errors or delay, from whatever cause occurring, but, in case they occurred, should only be bound to return the money paid.'
    The plaintiff wrote a message on one of defendant’s blanks, on which the foregoing terms and conditions were printed, under the words: “ Send the following message, subject to the above terms, which are agreed to.”
    In an action to recover damages occasioned by the failure of the defendant to transmit the message, held, that the terms imposed by the defendant were reasonable, and, that the plaintiff having agreed to them, could only recover the amount paid by him for the sending of the message.

      Maynard v. Syr. and Bing. li. H. (71 N. Y., 180), distinguished.
    A telegraph company is not a common-carrier.
    Motion for judgment on a verdict in favor of the plaintiff, directed at the circuit, subject to the opinion of the General Term.
    The action was brought to recover the damages alleged to have been caused by the negligent failure of the defendant to transmit or deliver a message, delivered to it by the plaintiff. The message was sent as a half-rate message, as it is called, and was in the following- form:
    No. 9. HALF-RATE MESSAGES.
    The Atlantic and Pacific Telegraph Company will receive messages for the principal stations in the United States, cast of the Mississippi river, to be sent during the night at one-half the usual rates, on condition that the company shall not be liable for errors or delay in the transmission or delivery, or for non-delivery of such messages, from whatever cause occurring, and shall only be bound in such case to return the amount paid by the sender.
    No claim for refunding will be allowed, unless presented in writing within twenty days.
    JOHN DUFF, President,
    G. S. Bowdoin, Treasurer,
    AlfRed Nelson, Secretary,
    E. D. L. Sweet, Executive Manager.

      AlbáNY, N. Y., May 22, 1873.
    Send the following message, subject- to the above terms, which are agreed to.
    To Chas. Schwai’tz, 160 East Washington street, Chicago, Ill. Buy 1,000 lard for July or last half June.
    Paid 50. GEORGE SCHWARTZ, Jr.

      G. L. Stedman, for the plaintiff.
    The defendant having failed, through negligence, to transmit the message from the plaintiff to his agent, is liable for the damages resulting to the plaintiff from such neglect. (Rittenhouse v. Ind. Line of Tel., 44 N. Y., 263 ; Breese v. U. 8. Tel. Go., 48 id., 132.) The blank does not attempt to provide against neglect to transmit. Such an attempt would have been in direct opposition to the terms of the statute, which makes it the duty of the company to transmit all messages delivered to it and paid for. (Laws of 1855, chap. 559; R. S., [Banks’ 6th ed.j, vol. 2, 634, § 11; Breese v. U. 8. Tel. Go., 48 N. Y.', 137, 138; R. S., vol. 2 [6th ed.], 634; Bartlett v. W. U. Tel. Go., 62 Maine, 209; Whart. on Negligence, § 762; Sweatland v. Telegraph Go., 27 Iowa, 433; 8. G., 1 Am. [Parson’s] Rep., at pp. 285, 291, 295; Guillame v. Hamburg and Am. Paclcet Go., 42 N. Y., 212; Steinweg v. The Brie Railway, 43 id., 123, at page 126; see, also, Oppenheimer v. The U. 8. Bxpress Go., 9 Alb. Law Jour., 187.)

      Gharles Edwards Souther, for the defendant.
    The plaintiff, by adopting the message blank, accepted its provisions, and thereby contracted with defendant. (Young v. W. U. Tel. Go., 65 N. Y., 163; Aiken y. Telegraph Go., 5 S. C., 358, at p. 372, et seq.; Hibbard v. W. U. Tel. Go., 33 Wis., 558; GrinnellY. W. U. Tel Co., 113 Mass., 299, opinion of Gray, C. J., at pp. 301, 302.)
   Learned, P. J.:

The defendant is not a common-carrier, and, therefore, the peculiar liability of a common-carrier does not exist in this case. (Grinnell v. W. Un. Tel. Co., 113 Mass., 299; Breese v. U. S. Tel. Co., 48 N. Y., 132.) The defendant’s liability must depend on its obligation to perform what it undertook, qualified as that may be by any lawful condition imposed by it on the plaintiff.

Courts sometimes speak of the regulations, adopted by such companies as the defendant, as constituting a contract with those who send messages. But while individuals may make whatever contracts they please, I should be unwilling to admit that a company, like the defendant, discharging a quasi public employment, could impose whatever regulations it pleased upon its customers, whether those regulations were reasonable or not; and that by printing such regulations on its message papers it could compel every person to accept them. There must be, in my judgment, this qualification, that the regulation shall be reasonable ; and this qualification I understand to be recognized. (Breese v. U. S. Tel. Co., ut supra, p. 141.) By such reasonable regulation, brought to the knowledge of the sender, they can protect themselves against liability for mistake “ not occasioned by gross negligence or willful misconduct.”

■In the present case the defendant had a usual and regular fee for sending a message from Albany to Chicago. To guard against mistakes they required the message to be repeated, and this requirement and some other matters were printed on the ordinary blank. They also had a half-rate message blank which was in common use.

By the terms printed upon this they offered to send messages at night at one-half the usual rates, on condition that they should not be liable for errors or delay from whatever cause occurring, but should only be bound to return the money paid. The plaintiff's message was written by him on one of those half-rate blanks, under the words, “ send the following message subject to the above terms, rvhich are agreed to; ” and he paid one-half the price which he would have paid for a day message.

Now, it is strongly argued by the plaintiff that the terms of this message blank, strong as they are, do not relievo the defendant for liability for its own negligence. And on that point the recent case of Maynard v. Syr. and Bing. R. R. (71 N. Y., 180) is cited. I admit the full force of that decision, which seems to bo a step towards bringing back the law of common-carriers into a condition where the public will be protected. But that decision, and others like it, concern common-carriers, and their duties in respect to the care and custody of property in their possession. They are not strictly analogous with the present. For no property is entrusted, to the possession of the defendant. Its only duty is to send a message. And, furthermore, it will be seen that the defendant does not pretend to avoid, but only to limit, its liability for negligence. It admits that it is bound to return the money paid ; but only claims to be free from further liability.

Nor is it necessary to say whether or not the defendant would be exempted from liability in case of “ gross negligence or willful misconduct ; for the only admission in the case is simply of negligence.

The case, then, seems to be this. The company having a system of receiving and repeating messages by which it can, as it supposes, insure accuracy, and having a certain fixed rate for ordinary messages, is willing to send messages during the night, at half the ordinary rate (and, of course, without repetition), provided that, if the message is not received, the only liability of the company shall be - to return the money. The plaintiff knew of these terms and accepted them. They are perfectly reasonable and he should be bound by them. The company may justly suppose that a man having a message to send, of pecuniary importance, will take the precaution to have it repeated, and certainly will not send it on a night and half-rate blank, and relinquish in express words all claim for damages, except the return of his money» Many messages are sent of trivial importance. I see no reason why the defendant may not afford the opportunity of sending such messages during a certain time and at a reduced rate ; and why it may not, in such cases, limit its liability, as in the present instance ; provided, however, that it also affords a reasonable opportunity of sending messages for the non-delivery of which it shall be liable to the amount of the damages sustained.

In this view of the case it is unnecessary to examine the question, whether the plaintiff sustained any damages for which he could recover.

The verdict should be set aside and the plaintiff should recover fifty cents.

Present — LearNed, P. J., and BoardmaN, J.- Bocees, J., not acting.

Verdict set aside and judgment ordered for plaintiff for fifty cents, with costs to defendant.


author: Learned, P. J. :

text:
    THE FIRST NATIONAL BANK OF WHITEHALL, Respondent, v. THE WHITEHALL TRANSPORTATION COMPANY, Appellant.

      Execution — levy under — when a preference is acquired by.

    Property of the defendant having been levied upon under executions, issued upon judgments recovered against it by the plaintiff and anothex1, the same was, by an order of the court, nxade on April twenty-third, 1S78, directed tobe sold under the said executions, subject to the appi’oval of the coui-t. The property was sold April twenty-ninth, and was pui’ehased by the plaintiff, at a price in excess of the amount due on ¡ill the judgments. No money was paid, but a bond was given conditioned' that the purchaser would bring the money into court, or pay the same over as the court might direct. On May fourteenth the sale was approved by the court. Prior thereto and on May fourth the plaintiff recovered ¿mother judgment against the defendant, exceeding in amount the surplus which had arisen on the sale, and on that day issued an execution to the same sheriff" July sixteenth, 187S, the appellant was appointed receiver of the defendant, and thereafter applied to have the surplus paid over to him.

      Held, that this application was properly denied, and that the plaintiff waa entitled to have it applied upon his judgment of May fourth.
    Appeal from an order made at a Special Term, denying the motion of the receiver of tlio defendant for a:i order for the payment to him of certain surplus moneys.
    On the 18th of March, 1878, the First National Bank of Whitehall, the plaintiff, recovered judgment against the defendant for the sum of $18,148.58. On the same day one Griswold, recovered judgment against the defendant for the sum of $8,055.47. On the 27th March, 1878, each of said parties recovered another judgment against the defendant, the former for the sum of' $6,737.90, the latter for the sum of $3,038.81. Executions were issued upon each of said judgments to the sheriff of the proper county, and the property of the defendant was duly levied upon, under such executions and advertised for sale. The sale of the; defendant’s property upon such executions was restrained by injunction orders, granted upon ex jsarte applications of another alleged creditor of the defendant.
    April 23, 1878, the court at Special Term made an order that the property of the defendant be sold in bulk under the four' executions, and the proceeds thereof be brought into court to-await its further orders ; the sale to be subject to the approval of the court. Such sale was had on the 29th and 80th days of April, 1878, and resulted in the property of the defendant being struck down to the said First National Bank of Whitehall for the sum of $43,364.
    The property was not, nor was a bill of sale thereof delivered to the purchasers until after the 14th day of May, 1878, upon which day such sale was duly approved and confirmed by the court. No money was paid, but a bond was given and delivered conditioned that the purchaser would pay the money into court, or to such person as the court might direct.
    Before this property or a bill of sale thereof had -been delivered, or said bond given, and on the 4th of May, 1878, the plaintiff, the First National Bank of Whitehall, recovered another judgment against the defendant for the sum of $6,550.57, and on the same day an execution upon such judgment was delivered to the same sheriff who had the former executions and the defendant’s property under his control. On the 16th of July, 1878, the appellant was appointed receiver of the defendant’s property and entered upon the discharge of his duties, and, as such receiver, claims to be entitled to the surplus fund remaining after satisfying the first four judgments and executions aforesaid. This fund was also claimed by the said First National Bank of Whitehall, by virtue of its judgment and execution of the 4th day of May, 1878. The receiver moved, at a Special Term of this court, for an order directing the payment of such surplus fund to him, which motion was heard by Justice LaNdON, who made the former orders, and was denied, and the receiver appealed.

      Tanner & Potter, for the appellant.

      James Spencer, for the respondent.
   Learned, P. J. :

I think that this matter was disposed of properly by the learned justice.

The sheriff had sold the property by virtue of executions, and under a special order of the court, which made the sale snip cot to approval. At the time when the execution on the judgment now iu question came into tlio sheriff's bauds, the sale had not been approved. On the sale, the sheriff had taken, not cash, but a bo.id conditioned to bring the money into court, or to pay the money to such persons as the court should direct.

If, then, we consider the property as still, in a certain sense, belonging to the defendant in the execution, it was bound by the execution. If we consider the money to have been constructively in the sheriff’s hands, then it should be applied on the execution.

And, if the rights of parties are determined by the form of the bond, that says that the money shall be paid to such persons as the court shall direct. And it seems just that it should be paid to the part}' .whose diligence had procured and issued an execution before the receiver was appointed.

Order affirmed, with ten dollars costs of printing disbursements.

Present — LearNed, P. J., BoardmaN and Bocees, JJ.

Ordered accordingly.


text:
    BURR B. ANDREWS, Respondent, v. THE ÆTNA LIFE INSURANCE COMPANY OF HARTFORD, Appellant.

      Ii'fs insurance company — toTien estopped from denying its former acts and pleas.

    In 1S66 the plaintiff procured four policies of insurance on his life from the defendant, each having- written therein a clause that it was agreed that the policy should be good, after three payments, for its equitable value.
    In 1376 the plaintiff applied to the company for the equitable value of the policies, and was informed that they had no value, but that the company would return the notes given by him in part payment of the premiums. This refusal being persisted in, the plaintiff brought an action to recover the equitable value of the policies, in which the defendant put in an answer alleging that the clause was written in the policy by its agent, without its knowledge or authority, denied its liability thereon, and set up the amount due on the notes as a counterclaim.
    The plaintiff paid the costs of the action, discontinued it, and brought this action, setting up the foregoing facts, the former action and the answer therein, and sought to recover the premiums paid. Upon the trial, the defendant offered to prove that the agent was authorized to insert the clause. Held, that the court properly ruled that it was estopped from so doing.

      Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.
    The plaintiff held four life policies, issued by the defendant in 1866. In each was a clause : “ And it is agreed that this policy shall be good, after three payments, for its equitable value,” and one contained the words, “at any time,” after the word “good.” Half of the premium was to be paid in cash and half in a note. In 1876, the plaintiff applied to the company for the equitable value of the policies, and was informed by their letter of July twenty-ninth that they would return his notes, but woidd make no other return. On the seventh of August, 1876, the plaintiff wrote to the company, giving a copy of the clause above set forth, and asking for the equitable value of his policy. And, again, on the twenty-fifth of October, he wrote, giving a copy of the clause, and asking what the equitable value was. To this they replied that the policies had no value beyond the íeturn of the notes. On the fifteenth of December the company again wrote him that, if he declined to renew his policies, that ended the matter; that the policies had no value beyond the return of the notes.
    On the twenty-sixth day of December, 1876, the plaintiff commenced an action in this court against the defendant to recover the equitable value of the policies; setting forth in the complaint the fact that the policies contained the aforesaid clause. On the same day the general agent of the defendants wrote the plaintiff, saying that if ho demanded the equitable value the company would only return the notes, and further saying, that the written clause referred to was inserted without the authority of the company ; that the agent (if it was an agent) who wrote it exceeded his authority and the' company were not liable ; and that agents were not allowed to change the conditions of the policy. This letter was not received until after the action had been commenced. The company again wrote, and this time through their secretary, on the fifteenth of January, 1877, repeating the statement that the clause was inserted without authority, and could not bind the company. The company then put in an answer in which, among other things, it averred that the agent, without the knowledge or consent of the defendant or its officers, wrote the said clause in the policies ; and that the terms so written in were not and are not a part of the agreement,'and constitute no part of the policies ; and it further averred that the company had, by way of seeking peace, offered to pay the values in paid-up policies of insurance, and demanded a judgment of dismissal and a recovery for the amount of the notes.
    After the action was thus at issue, the plaintiff discontinued it and paid the defendants its costs. Thereupon the plaintiff commenced the present action, setting forth the issue of the policies and the payment of the premiums, and his belief that the policies were duly authorized, the former action commenced by the plaintiff, the answer set up by the defendant that the clause ivas inserted without authority, and claimed to recover the moneys paid as premiums.
    The defendant, in its present answer, averred that it believed it never did authorize the insertion of this clause, although the agent claimed that he was authorized.
    Ou the trial the defendant offered to prove that the agent was authorized to insert this clause. The plaintiff objected, on the ground that the defendant was estopped. The company also proved that the policies had a value above the note.
    The court held that the defendant was estopped from showing that the clause was inserted by its authority, and gave a decision for the amount of the premiums, and the defendant appeals.

      Iozac 8. Newton, for the appellant.

      Ii. JÍ. Stanton, for the respondent.
   Learned, P. J.:

In considering the question of estoppel, we must notice that the only ground of action alleged by the plaintiff in the first suit is on the clause iu question ; and that the answer positively demos the validity of this clause. On that denial rests the defence, including the counter-claim. Wo have then the first clement of an estoppel in pais, that of an assertion inconsistent with the proposed evidence or claim.

Next, we have the discontinuance of the former suit and the payment of the costs thereof, and the commencement of the present suit; actsi douo iu reliance of the defendants statements, both in its letters and in its pleadings. The defendant knew whether, or not, the insertion of the clause was authorized. It alleged that the clause was inserted without authority. The plaintiff acted on that assertion, both iu the former discontinuance and in the present suit. In Trustees v. Williams (9 Wend., 147), a defendant in ejectment was held estopped by his admission, made when tho declaration was served, that there was not sufficient property on the premises liable to distress. (See Finnegan v. Carraher, 47 N. Y., 493, and other cases there cited.)

And, lastly, it is scarcely necessary to say that the plaintiff will be injured by permitting the defendant to disprove its former assertion. He has lost the costs of the former suit and may be defeated in the present by the permitting of such proof.

Thus the three elements necessary to an estoppel, as defined in Dezell v. Odell (3 Hill, 215), are seen to exist in this case. (See, also, Railway Co. v. McCarthy, 9 U. S. Rep., 258.)

In answer the defendant asserts that it had recognized the policies as they now exist. There is no such evidence. The only communication from the office of the company, after the plaintiff had called their attention to this clause, is the letter of January 15, 1877, in which it repudiates tho clause and says that it know nothing about the clause until recently. Tho letter of tho Syracuse agent says that agents are hot allowed to alter or change tho conditions of tho policy. Certainly not, then, to give validity to a clause inserted without authority. There is no evidence then that the company accepted premiums, with tho knowledge of the existence of this clause. And it denied such knowledge.

Nor did the company ever admit its liability on this clause. In order to induce the plaintiff to continue to pay them money, its secretary writes an elaborate letter to prove that the policies have no value, but that the company has great generosity. Yet that letter contains the positive assertion that the clause was inserted without authority. And this company now puts its own agent on the stand to prove that this assertion was false — that he was authorized by its own president to insert the clause. Whether the secretary willfully or carelessly made this statement, which the company now say was false, we do not know.

If the defendant (as it says the fact is), after having received the plaintiffs money for several years, discovered that the policies contained the clause in question, it had two courses before it. It might expressly, or by implication, accept the alleged unauthorized act of its agent, and might thus ratify it, or it might repudiate the act by disavowing the authority. It could not do both; and it chose to do the latter. It desires, however, to disavow the act so as to be relieved from paying the equitable value, and then to ratify the act so as to be relieved from repaying the money it has received. The judgment should be affirmed, with costs.

Present' — Learned, P. J.; Boardman and Boches, JJ.

Judgment affirmed, with costs.


text:
    HANS BLAKELEY, Respondent, v. THE CITY OF TROY, Appellant.

      City — duty of, to remove ice from the s'derwcC.lt — what delay in so doing does not constitute negligence.

    By the side of plaintiff’s house, in the city of Troy, was a private alley, some ten feet wide, down which water, coming- from springs therein, and also from the melting- of the snow in plaintiff’s yard, was accustomed to run upon and across the sidewalk. On January twenty-seven, at about one o’clock r. m., plaintiff, on leaving his house and while passing in front of the alley on the sidewalk, slipped on some ice, which had formed there during the night before, and injured himself. The day before the accident there was snow and ice upon the sidewalk, but it was so trodden down as not to be slippery.

      Seld, that the mere neglect of the city to remove, before one o’clock p. M., ice which had formed during the previous night, was not such negligence as to render it liable to the plaintiff for the damages occasioned by his fall.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom th@ action was tried.
    The plaintiff lived in a house on the east side of Seventh street, Troy. Between his house and the next, belonging to one Mackey, was a passageway ten feet wide, not belonging to the public, and running eastward about 120 feet to Institute avenue, which is on a higher grade than Seventh street, so that the passageway is steep. There are springs in the rear of plaintiff’s lot. The houses on Seventh street extend back about seventy feet, leaving fifty feet of the lots open. The snow falling on the vacant part of these lots, when it melted, would run down the alley. The plaintilf’s family were accustomed to throw their soap suds into this alley, and they ran down to Seventh street. There is no public sewer in Seventh street. There was a trench in Institute avenue which tended to carry the water of that avenue northward to Broadway. But the water and snow falling on land west of Institute avenue, on the alley, would run down to Seventh street.
    The plaintiff on the twenty-seventh of January had come home at noon from his work, walking in the carriageway of the street. On going back after dinner, about one o’clock, he went from the rear of his house down this alley to the sidewalk on Seventh street, and turned northward on the sidewalk. After faking a step or two he slipped on some ice upon the sidewalk about opposite to the alley, or to Mackey’s house, and was injured. He had been accustomed to pass over this place during the winter about four times every working day.
    The day when the accident happened was not cloudy or stormy. The temperature at the time was about freezing. The plaintiff himself testified that there had been ice on the place before, but that it was “ padded down ” — tramped down — that whatwas there before the previous night was not slippery ; that the fresh ice on which he slipped was formed the night before the accident. There was no snow upon the ice, and the ice was visible and could be •seen. There was evidence, however, tending to show that during the winter, as a general thing, the water from the spring and from the rain and snow had a tendency to overflow the walk at this 'place; and that for, probably, a quarter of the time during the winter it had been dangerous for a clumsy man to go over. The snow would thaw and run down and suddenly freeze and ice would form.

      It. A. Parmenter, for the appellant.

      Robertson <& Foster, for the respondeat.
   Learned, P. J. :

Tire court charged the jury that if the plaintiff could have seen the ice by the exercise of his faculties, under ordinary circumstances, as a man of ordinary prudence would have exercised and seen, then he could uot recover. This ivas quite favorable enough to the defendants. And the facts did not show such undisputed evidence of contributory negligence as to have required the court to take this question from the jury. (Evans v. City of Utica, 69 N. Y., 166.)

The case last cited seems to pass only on the question of contributory negligence. The question as to what facts show negligence in the defendants does not seem to have been discussed or decided. In the present case there is no doubt that the sidewalk was in good condition, except as to the ice. It is plain, too, that the water coming from the snow which fell on the alley, and on the roai* of the lots, and also the water which came from the springs, would necessarily flow down the alley and across this sidewalk. It is a well known fact that in this climate the heat of the sun will often melt the snow in winter, when the temperature is such that the water thus produced will freeze at night, or even during the daytime in the shade. And, further, it is not always possible, by any ordinary means, to remove ice which has become frozen to a sidewalk firmly. It could not then be the duty of the defendants to prevent snow from melting, or water from running down hill, or ice from freezing on a freezing day. And, therefore, since they could not prevent these occurrences, all their duty, at the utmo.vt, would be to remove or remedy the evil after it had occurred ; to remove, or perhaps to cover with sand, or the like, the ice after- it had been formed.

Eat it is a well known principle, in regard to such matters, that a city must have notice of the alleged obstruction to its highways, either actual or constructive, through the long continuance of the obstruction. Now the plaintiff claims that this sidewalk had been, for much of the time during the winter, icy and dangerous in the manner described. But it must be observed that such ice was formed repeatedly, and wherever the circumstances above referred to existed. The removal of the ice by the defendants one day would not have prevented its formation the next, if the sun had melted the snow in the daytime and the night had been cold. And the plaintiff himself testifies that, previous to the night before the accident, the ice had been ti amped down — “ padded down ” — so that he says expressly that it was not slippery the day before ho was hurt. If it was not slippery the day before he was hurt, then no negligence of the defendants, prior to that time, caused the injury. The ice which caused his accident was formed the night before the accident occurred, and the defendants were not chargeable with notice of the slippery condition of a sidewalk at noon, which had not been slippery the day before. There is nothing to show that the place would not have been just as icy and dangerous, at the time of the accident, even if all the old ice had been removed the previous day. The plaintiff says that the ice where he fell formed the night before, and the water came from the spring which came down the alley. Now, whether this new ice should be formed on the old, tramped down, snow and ice which was not slippery, or whether it should be formed on the sidewalk itself, so far as appears, did not affect the plaintiff’s liab.lity to fall.

It may be said that the defendants ought to have prevented the water from coming down the sidewalk. But they had no control over this alley. It was private property owned and occupied by the plaintiff. And it is not shown that the defendants were bound to carry off tills water formed by the molting of snow in this alley or coming from the spring above.

The court., however, charged that it was for the jury to say whether i t was a reasonable time, and whether the officers of the city should have ascertained the formation of this ice between daylight and the time the accident occurred, about one o’clock. And, therefore, the negligence of the city was put by tlie court, not on the condition of the sidewalk, as it had existed previous to the night before the accident, but on its condition as caused that night, and on the neglect of the city to remedy the evil which then ar ;so.

Without attempting to lay down arule which shall apply to all cases, it is safe to say that the mere neglect to remove ice before one o’clock, r. M., which formed the night before, is not enough to make the oily liable.

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

Present — Learxed, P. J., Bocees and BoardmáN, JJ.

J udgmeut and order reversed ; new trial granted, costs to abide event.


text:
    ISAAC C. SHULER, AUGUSTUS CLARK AND MARIA McDONALD, Respondents, v. OLIVER BOUTWELL AND CHARLES A. BOUTWELL, Appellants.

      Chattel mortgage — an agreement referred to therein, as to the •payment of the debt, need not le recorded — the giving of a seeond mortgage for the same debt, does not cancel the first mortgage.

    A chattel mortgage made the debt payable as follows, viz.: “The said principal sum and interest to be paid immediately at the expiration of live years from date, except in case default should be made in the performance of the eonditiims of a certain agreement this day executed by,” etc. This agreement provided that the debt was to be paid in monthly installments of fifty dollars each. Held, that the mortgage was not invalidated by the failure to record or file the agreement referred to.
    The giving of a second chattel mortgage upon the same property covered by a first one, to secure the same debt, is not of itself a cancellation of such first mortgage.
    Appeal from a judgment m favor of the plaintiff, entered upon the report of a referee.
    In August, 1872, ono John W. Borns was carrying on business as an undertaker in Troy, and had in his possession a hearse and other articles, which belonged to one "Win. H. Van Every. On August twenty-fourth. Burns entered into partnership with Hebert B. Millard, and on that day Van Every, with the knowledge and consent of Burns, convoyed all the said property to M.llard, and took back a chattel mortgage thereon. Millard, at the time of the execution of this mortgage, resided in the town of Lausinghurgh, Rensselaer comity. The mortgage was erroneously filed in the comity clerk’s office in Troy. On October 17, 1872, Burns, with the knowledge and consent of Millard, gave a mortgage upon the same property to the plaintiff, who had knowledge of the mortgage already given to Every. On July 25, 1873, a new mortgage upon the same property was delivered by Millard to Van Every, which was duly tiled in the office of the clerk of the town of Lan-singburgh, and on August 13, 1874, another mortgage was given by him to Van Every on the same property, and tiled in the same office. The mortgage of October 17, 1872, given to the plaintiff, provided as to payment, “the said principal sum and interest to be paid at the expiration of five years from date, except in case default should be made in the performance of the condition of a certain agreement this day executed by John W. Burns and Herbert B. M.llard to said party of the second part, in which case the said principal and interest money shall become immediately due and payable.” The agreement referred to provided that the money should be paid in monthly installments of fifty dollars each.
    The defendant, who claimed to own the property as assignee of the mortgages given to Van Every, seized the property for default in making payments and sold it. This action was brought by the plaintiff to recover for an alleged conversion.

      Edgar L. Fursman, for the appellants.

      John II. Colby, for the respondents.
   Learned, P. J.:

The first point made by the defendants on this appeal is that the plaintiffs’ chattel mortgage of October 17, 1872, was not legally filed. The facts on which the defendants make this point are these. The paper which was filed, and which was in the usual form of a chattel mortgage, made the principal and interest payable five years from date, “ except in case default should bo made in the performance of the conditions of a certain agreement, etc., in which case the principal and interest moneys shall become immediately due and payable.” The agreement thus referred to, executed the same day, made the said mortgagor and his partner agree to pay the debt in monthly payments of fifty dollars. And the defendants insist that, as this agreement constituted part of the mortgage, and that as this paper was not filed, the mortgage was not filed.

I do not think this point well taken. It is shown by several cases that a mortgage of land may bo valid, and the record thei’eof good, although it may lie necessary to refer to something outside of the recorded instrument, to ascertain the exact rights of the parties ; and I think that the same general principle applies here. (Youngs v. Wilson, 27 N. Y., 351; Robinson v. Williams, 22 id., 380; Craig v. Tappin, 2 Sandf. Ch., 78; Bk. of Utica v. Finch, 3 Barb. Ch., 297.) Of course if there wore actual fraudulent intent the question would be different.

The defendants insist that the referee erred in his finding of fact that the mortgage of August 24, 1872, was canceled and annulled by that of August 13, 1874. The three mortgages were made by the same party Millard to the same party Van Every, and the first to secure §3,600; the second $8,000; the third $7,500. The second and third seem to have covered most of the property cov, ered by the first. The referee found, as a matter of fact, that each subsequent mortgage was intended as a substitute lor and to take the place of the prior. It is urged by the defendants that there is no evidence of this except the mere giving a second aud third mortgage to secure the same debt; aud the plaintiffs point out no evidence on this point except the mortgages themselves. Nor am I able to find any testimony showing such cancellation or intended substitution ; unless the fact of the giving a subsequent mortgage for the same debt is itself a cancellation or annulling of the former. But the contrary is the law. A second chattel mortgage lor the same debt does not extinguish the first. (Gregory v. Thomas, 20 Wend., 17; Hill v. Beebe, 13 N. Y., 556.) On the evidence, therefore, I do not see how the findings that the first mortgage was canceled by the second, and that by the third is to be sustained, at least in the absence of proof of an actual agreement for such cancellation. And, as it seems to me, the mortgage of August 24, 1872, continued to be in force.

This mold gage was not filed in the proper clerk’s office. But the referee has found that, at the time of the execution and delivery to the plaintiffs of the chattel mortgage under which they claim, they had full knowledge of the execution and delivery of the chattel mortgage of August 24, 1872, to Van Every; and, therefore, the omission to file did not make it void as to them. (Farmers’ L. and T. Co. v. Hendrickson, 25 Barb., 484.) They had knowledge, too, at that time, as the referee finds, of the 'purchase by Millard from Van Every of this property, for the purchase-price of which this mortgage was given.

A question then arises whether Van Every assigned to the defendants the mortgage of August 24, 1872. Van Every testified that he agreed to, and supposed that he did, transfer to them all his right, title and interest in this property; that'he told one of the defendants he would sell and assign to him all the interest he had in this property of every name and nature. The witness, on cross-examination, stated that he supposed the matter was finally reduced to writing, was drawn, signed and delivered to the defendants or their attorney. But no such assignment, and no writing whatever of this transfer was given in evidence.

Wo have then the fact, testified to by Van Every, that he agreed to transfer, and supposed that he did transfer all his right and interest to the defendants. And it does not appear affirmatively what the written instrument contained. Perhaps it may be inferred that that instrument was in form an assignment of the mortgage of August 13, 1874. This mortgage contained a covenant to pay the money ; and the assignment of the mortgage would, therefore, be an assignment of that covenant. It would seem, therefore, assuming that the mortgage of August 24, 1872, was in force, that, as against the defendants, Van Every could not claim to bo the owner of that mortgage of August 24, 1872. The same debt, although reduced in amount, was secured by the three mortgages.

There seems to be nothing in the transactions of any of the parties, subsequent to the execution of the mortgage of August 24, 1872, which should deprive Van Every of his rights under the same. The payments reduced, but did not extinguish it: and ho could transfer his rights to the defendants.

For these reasons I think the judgment should be reversed, and a new trial granted; reference discharged ; costs to abide event.

Present — Learned, P. J.; Boaedman and Bockes. JJ.

Judgment reversed; new trial granted ; reference discharged ; costs to abide event.


author: Per Curiam :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN SMITH AND THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellants, v. THE VILLAGE OF NELLISTON, Respondent.

      Certiorari — mil not lie to a village, to review proceedings had for its incorporation.

    A writ of certiorari will not issue to a village, to review alleged irregularities in the proceedings by which ifia claimed to have been incorporated.
    Appeal from an order made at Special Term superseding a writ of certiorari, issued to the respondent to review the regularity of the proceedings had for its incorporation.

      D. 31. K. Johnson, for the relators.

      J. E. Deivey, for the respondent.
   Per Curiam :

Wo think that this writ was properly superseded. Without examining the question whether the proceedings to incorporate the village could, in any case, be reviewed by certiorari, we are ol opinion that, at any rate, tbe present writ will not lie. This is a writ directed to the village of Nelliston ; but it does not seek to review any ad's of tbe village, but only tbe acts of the persons who, before the village was incorporated, took proceedings for its incorporation, and did, as they claim, create the corporation.

It is manifest th it these were not the acts of the corporation. They were acts which proceded the alleged incorporation of the village. The relators do not claim that the village has made any erroneous decision, but that there is no village.

The order appealed from should be affirmed, with ten dollars costs and printing disbursements.

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

Order affirmed, with ten dollars costs and printing disbursements.


author: Boardman, J.:

text:
    THE MERCHANTS’ NATIONAL BANK OF WHITEHALL, Respondent, v. SARAH ELIZABETH HALL, Appellant, Impleaded with THE CROWN POINT IRON COMPANY.

      Guaranty — when continuing/.

    The defendant Sarah E. Hall assigned a certificate of stock to the plaintiff's cashier, “ as security for the payment of any demands the Merchants’ National Bank may, from time to time, have or hold against Edwin YV. Hall.”

      Held, that the assignment was intended as a continuing security for all demands then existing against the said Hall, and for all renewals thereof, as well as for all that might thereafter be created in the ordinary conduct of his business with the bank, in the manner in which banking business was usually done.
    Appeal from a judgment in favor of tho plaintiff, entered upon the trial of this action by the court, without a jury.
    The action was to foreclose a lien claimed by the plaintiff upon 900 shares of the stock of the Crown Point Iron Company, pledged by the defendant Sarah Elizabeth Hall as security for Edwin W. Hall.
    The certificate of stock held by tho pledgor was, on tho 1st of December, 1876, assigned by her to the cashier of the plaintiff.
    It appeared that Edwin W. Hall, the husband of tho defendant, was at that time largely engaged in mercantile and manufacturing business, a member of several firms, and iii the habit of having negotiable paper, of which he was indorser or maker, discounted by tho plaintiff in large amounts. There was a large amount of this paper in the bank at the time of tho assignment of tho stock by tho defendant. New paper was subsequently discounted from time to time. Tho old paper was replaced in some instances by renewal notes, and sometimes paper with other parties was taken in payment of the old paper, which was charged, and tho new paper credited. Tho total aggregate due upon demands held by the bank against Edwin W. Hall was, on tbo 6th May, 1878 (the time of the trial), the sum of $90,178.08.
    The judge found that, whenever a renewal note was accepted in place of an old one, the plaintiff intended to extend the time of payment of the debt until the new one became due, and also, that each of the several renewals was made without the knowledge or consent of the defendant.

      Eseh Oowen, for the appellant.

      Samuel Hand, for the respondent.
   Boardman, J.:

The decision of this appeal depends upon the construction to bo given to the following assignment:

“ Whitehall, Dec. 1, 1876.
“ I hereby assign to I. M. Guy, Esq., cashier of the Merchants' National Bank of Whitehall, the annexed certificate No. 103, nine hundred shares Crown Point Iron Company stock, as security for. the payment of any demands Merchants’ National Bank may, from time to time, have or hold against Edwin W. Iiall.
“ SARAH ELIZABETH HALL.”
“No. 103.
“900 shares Crown Point Iron Company stock. “ $100 per share.
“New Yomc, March 18, 1874.
“ This is to certify that Sarah Elizabeth Hall is entitled to nine hundred shares in the capital stock of the Crown Point Iron Company, transferrable in person or by .attorney, on the books of said company, at its office, in the city of New York, on surrender of this certificate.
(Signed) “Thos. DicksoN, Treas.
“JOHN HAMMOND, Pres.

Such construction will be controlled by the language of the assignment and by the decisions of the courts in analogous cases. The rules for the construction are the same as applied to any other contract. The intent of the parties do it should, if possible, control. If the instrument be ambiguous, it should be construed most strongly against the party giving it. Crist v. Burlingame (62 Barb., 351), and eases there cited. The circumstances surrounding the transaction and the purpose to be accomplished will always aid in arriving at a correct construction.

Governed by such rules, wo may safely say this was a pledge of stock as security for no specific debt or liability, but a continuous pledge, without limit of time or amount. The sole question to be determined is, whether the bank had or held a demand against Edwin W.'Hall. Though such demand or debt existed prior to the assignment of the stock, it became a demand immediately thereafter, and was covered by it. The contract provided for debts then existing, as well as such as should be thereafter created. The origin of the demands could not be questioned, only their existence and validity when enforced. Edwin W. Hall was authorized to create demands in favor of the bank and against himself by the instrument. The bank had the right to rely upon the pledge and trust him on the faith of it. So I conclude the instrument was intended to cover and did cover demands of the bank against Edwin W. Hall at the time of its execution as well as demands thereafter created.

It is evident from the course of dealing between the bank and Mr. Hall that it was not expected his indebtedness would bo paid when and as' it became due. The debt was large. The fact that such a security was given indicates that Mr. Hall was not in a condition to pay what he owed the bank. Mrs. Hall may or may not have known the nature and the extent of her husband’s liabilities, but she must be held to have authorized the creation of demands by her husband against himself in the ordinary course of banking business. She wished to help her husband — to give him a credit with the bank, that he might do business. Hence she makes this pledge as security for any demands the bank may, from time to time, have or hold against Mr. Hall. This language is very comprehensive. The word “ demand ” is of very extensive import — much broader than the word “ debt.” (In Matter of Denny, 2 Hill, 223.) She is not personally a surety. She makes no contract to pay in the future any debt of her husband’s to the bank. • She gives the bank a continuous security. No restriction is placed upon the origin or manner of creation of the demand. When one note is canceled, given up, destroyed, the pledge is no longer liable therefor. When a new note is made and given to the bank, it becomes a demand, and the pledge is liable for it. I do not deem it material whether it be regarded as che giving a new note for the old one, or the discount of the new note and payment of its proceeds upon the old. In either case, it operates as an extinguishment of the old note, though not, perhaps, as a payment of the debt. The debt is evidenced by the new note, and the new note is evidence of a demand or right of action on the part of the bank against Air. Hall. (Hill v. Beebe, 13 N. Y., 562.) The expression “may, from time to time, have or hold” indicates anticipated modifications of the form and amount of debts. However the demand arose, it is provided for by the pledge. Any other construction would not give Mr. Hall the credit he desired. When this pledge was made, he was in debt to the bank a very large amount, which was afterwards increased. If each renewal of his note was to operate as the discharge of the security, the pledge would have been almost worthless to him for bank purposes. The same consequences would follow on giving a note for an overdraft or a protested check or note, or the’ substitution of business paper for accommodation paper. I do not think any of the parties to the transaction had any such intent. They supposed it to be as on its face. I think it is a continuous security for all demands which the bank might have against Air. Hall, growing out of the ordinary conduct.of his business with the bank, in the manner in which it is usually done.

The appellant’s counsel relies very much upon Smith v. Townsend (25 N. Y., 479). I think the cases are quite distinguishable. In that case, the condition of the collateral obligation was to pay all indebtedness, etc., “ whenever the same or any renewals thereof should fall due and become payable.” When the indebtedness, amounting to over $90,000, was all due and payable, the bank, instead of renewing it in the usual course of business, made a valid contract with the principal debtor, extending the time for the payment over a period which might last three years before payment in full. The principal debtor was insolvent at the time, and the surety had no knowledge of, and did not consent to, the act. That was held to be a modification of the surety’s contract, by which she was released and discharged. The surety restricted her liability to the payment of debts, when due, which wore contracted in the ordinary course of a banking business. But the bank made a collateral contract with the insolvent principal greatly extending the payment. The bank could not insist upon tbe liability of the surety, because the right of action against the principal was gone, for the time being, by an extension to which the surety was not a party. In the case before us, the liability of the principal and security arise out of the same demand, and is equally enforceable against both. Nor has any contract been made at variance with the terms of the assignment.

Other cases are cited by appellant’s counsel: Davies v. Stainbaink (6 DeGex, McN. & G., 679); Samuell v. Howarth (3 Merivale, 272); Parrott v. Colby (71 N. Y., 597); Paine, Rec’r, v. Jones (19 Alb. L. J., 279); Calvo v. Davies (8 Hun, 222); aff'd., Ct. App., April, 1878; Grant v. Smith (46 N. Y., 93), and others, but they do not affect this case, if I have given a true construction of the contract" of the defendant in making this pledge. If this construction is wrong, if the defendant was a surety to be released upon the renewal of any note because it was an extension of payment without her consent, if the pledge was a security only for specific debts only so long as they remained unpaid, unre-newed and unextended, then no authority will be required to show that the defendant and her pledge have been released by the renewals and extensions made by the bank. In that case, the new notes do not become evidence of a pre-existing demand, as well as an evidence of debt.

The conclusion is, that the pledge was a security for the notes in suit; that Mr. Hall was authorized to deal with the bank in the ordinary course of business, in giving, paying and renewing his paper ; that the contract of pledge was equivalent in its effect to an authority to Mr. Hall to bind Mrs. Hall to the extent of the value of the property pledged, and to be paid therefrom for any debt or demand which he might at any time owe the bank, howsoever such debt or demand might have been created or perpetuated.

Such conclusion results in an affirmance of the judgment, with costs.

' Leap.NED, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


text:
    LAWRENCE SHEARY, Respondent, v. GEORGE W. ADAMS, Appellant.

      Chapter 345 of 1SC0 — does not relieve a tenant from the duty of making ordinary repairs.

    Chapter 345 of 1860, authorizing- tenants to abandon premises if they become untenantable, does not affect the common law rule requiring- tenants to make ordinary repairs, and if through the tenant’s neglect to make such repairs the premises become untenantable, he cannot abandon them under the said act.
    Appeal from a judgment of the County Court of Rensselaer county in favor of the plaintiff, entered upon a verdict directed by the court in an action brought for the recovery of rent.
    The defendant had appealed to the County Court from a judgment recovered by the plaintiff in a justices' court.
    On the 24th day of December, 1874, the plaintiff, as landlord, and Stephen Mayhcw, as tenant, entered into a written lease for the occupation of certain premises in Troy, N. Y., at a fixed rent.
    The lease was in an ordinary form, except as to the following provision:
    “ And the said party of the first part hereby agrees to keep roof of the premises mentioned herein in good and suitable repair, so as not to affect the business of the said party of the second part.”
    The defences were:
    1st. That the roof was not kept in repair, as provided for in said lease.
    2d. That there was an eviction in law.

      Wooster & Averill, for the respondent.

      John II. Oolby, for the appellant.
   Boardman, J.:

Adams, as surety upon Mayhew’s .ease for the payment of rent, could make any defence to this action which Mayhew could make. If the plaintiff failed to perform his contract contained in the lease, to keep the roof of the building in good repair, such failure, per se, would not constitute a defence. If the property, for such reason, became untenantable, Mayhew could abandon the premises, and from that time would not be liable to pay rent. There is no evidence that the building became untenantable on account of the leaks in the roof. He continued to occupy the house until at least the 7th December, 1876, and according to some of the evidence till January, 1877. The condition of the roof did not justify his abandonment of the premises, and it does not appear that Mayhew left on that account. So, that in such view of the case, Mayhew was liable for the rent up to the 1st day of January, 1877, at least:

But if he had suffered from the plaintiff's breach of his contract to repair the roof, he had two remedies, either to do the necessary repairs himself and off-set the costs against the rent, or to show the difference in value between the premises as they were, and as they would have been if properly repaired. Such difference of value would have been damages which could have been set up by way of counter-claim.

Mayhew did not see fit to make the repairs himself. He has, however, undertaken to set up in his answer his damages by way of counter-claim, but the case is wholly devoid of any evidence upon which damages can be allowed to him. (Cook v. Soule, 56 N. Y., 420; Shallies v. Wilcox, 2 Hun, 419.)

Some considerable evidence was given tending to show damages arising from other sources than the leaky roof. Such damages, if they existed, could not be available by way of counter-claim so long as Mayhew continued to occupy the premises. The leakage from the privy vault was not covenanted against by the plaintiff in the lease, and it is not protended that plaintiff in any way interfered with the premises so as to deprive Mayhew of their enjoyment. Hence these defects do not constitute a counter-claim as against the rent. (Edgerton v. Page, 20 N. Y., 281; Ogilvie v. Hull, 5 Hill, 52.)

The Law of 1860, chapter 845, does not apply to a case like the present, and does not justify an abandonment by the tenant upon the ground that the building had become untenantable without his fault or negligence. That statute does not affect the common law rule requiring the tenant to make ordinary repairs. (Suydam v. Jackson, 54 N. Y., 450; Johnson v. Oppenheim, 55 id., 281.)

After consideration of all the objections urged by the appellant, we think the judgment is ■ correct and should be affirmed, with costs.

Learned, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


author:
Boardman, J. :
      Learned, P. J.:

text:
    ELIZA PECK, Respondent, v. THE KNICKERBOCKER ICE COMPANY, Appellant.

      JEvietion — what does not constitute.

    The plaintiff leased certain premises to defendant for a term ending November 1, 1876, at an annual rent of $900, payable semi-annually, on the first days of May and November. July 31,1876, a judgment was entered in an action to which both plaintiff and defendant were parties, brought to foreclose a mortgage upon the leased premises, given prior to the execution of the lease, which directed that the purchaser be let into possession on the production of the referee’s deed and a certified copy of the order confirming the report of sale. The premises were sold on September 20th, 1876, and on October 16th the referee’s deed was delivered to the plaintiff and on November 21st an order was filed confirming his report of sale. .
    On September 25th the defendant, at the request of the purchaser; voluntarily delivered the keys to him and abandoned the premises, having no further use for them.
    In an action brought by the plaintiff to recover the rent falling due November 1, 1876, held, that no eviction was shown, and that she was entitled to recover.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This action was brought to recover rent due upon a lease. The facts are not disputed, and the only question upon this appeal is, whether the facts proved made out an eviction of the defendant under title paramount, before the rent in question became due.
    From the referee’s report, it appears that “on October 23, 1873, the plaintiff was the owner of a certain ice house, dock and appurtenances in the town of Marlborough, Ulster county, N. Y., and continued to be such owner until her title thereto was terminated by tho foreclosure proceedings hereinafter mentioned. On that day a written lease for the said property was- given, to defendant for the term of one year from November 1, 1873, at the yearly rent of $900, payable semi-annually, with the privilege of continuing the same lease for two years longer at the same rent. The defendant went into possession of the demised premises under said lease, and on October 8, 1874, gave notice of their intention to continue the lease for the further term of two years, and did continue to hold possession of said premises until after the 1st day of November, 1876, under such lease and extension. The defendant stored ice in the house in the winter and removed it in the summer. July 31, 1876, a decree of foreclosure upon a mortgage, given in 1870, was entered, directing a sale of the mortgaged property by a referee, and further directing that the purchaser at such sale be let into possession on production of the referee's deed and a certified copy of the order confirming the report of sale. The plaintiff and the defendant and said William M. Peck were parties defendants in such action and decree. The said premises were sold under said judgment to one William A. Huested on September 20, 1876, and the referee’s deed for said premises was dated and delivered to said Huested on October 16, 1876, and recorded in Ulster county clerk’s office on October 30, 1876. On November 16, 1876, the referee made his report of sale, which bears date as of that day, and the same was filed in Ulster county clerk’s office on November 21, 1876. On the 20th of November, 1876, such report was confirmed by an order granted at a Special Term of this court, held at Newburgh, N. Y., and such order of confirmation was entered November 21, 1876, in Ulster county clerk’s office.
    On September twenty-fifth, the Monday next after tho said referee’s sale, the said William A. Huested asked tho agent of the defendant if he had the keys with him and was done with tho property. The agent answered that he was done with it, and then gave to said Huested the keys of two shops on tho premises. At the time of the foreclosure sale the defendant had delivered and removed all the ice which had been stored in said ice house on said premises. The delivery of ice by them was not hastened by the foreclosure. The delivery of the keys to Mr. Huested, as above mentioned, was entirely voluntary, and because the defendant could make no further use of the property and was done with it. No person other than the defendant’s agent entered upon or took any possession of the demised premises until after November 1, 1876. After November 1, 1876, Huested assigned to said William M. Peck all his claims to the rent in question, and said. William M. Peck thereafter assigned all his right of action against the defendant to one Wallace Peck, and said Wallace Peck assigned the same to the plaintiff before the commencement of this action. The defendant never paid any rent accruing under said lease from or after May 1, 1876.”

      Schoonmaher & Linson. for the appellant.

      H. A. Brewster and Samuel Hand, for the respondent.
   Boardman, J. :

Unless the law compels a reversal of this judgment, every consideration of fairness and right would lead us to affirm it. The defendant had the beneficial use of the property for the entire term it required the use, notwithstanding the foreclosure. The premises remained unoccupied for the last month or two before the end of the term, simply because no one' had any use to make of them ; but we think the judgment is readily sustained upon authority.

The alleged eviction or surrender was made before Huested, the purchaser, had received his deed. Huested at that time had no title to the property, and the act of delivering the keys of the leased property to him by the tenant was a nullity, so far as Mrs. Peck was concerned. It would not have prevented her from suing and recovering for rent thereafter, becoming due prior to the delivery of the deed. If the act was a nullity when done, no other act was afterwards performed which could constitute an eviction or a surrender of the leased premises prior to the first of November, when the term ended.

But passing that consideration, the decree of foreclosure and sale under it do notjper se divest the title of the mortgagor. By ’he decree in that case, the tenant was entitled to the possession of the mortgaged premises until the first of November, unless the purchaser under the foreclosure presented his deed and the order of confirmation by the court. That was not done mitil after November first. The purchaser takes title under and by virtue of the judgment, and he had no right to possession under his purchase, until the performance of such prerequisites as that requires. Until such time Mrs Peck, through her tenant, had the legal right to hold the property, and the contract between them remained unaffected. (Whalin v. White, 25 N. Y., 462; Giles v. Comstock, 4 id., 270.) The confirmation of the report of sale was essential to the purchaser’s acquiring title. (Astor v. Turner, 11 Paige, 436; Clason v. Corley, 5 Sandf., 447; 1 Barb. Ch. P., 528, 529 and 531.)

In the case of Simers v. Saltus (3 Den., 214), it is assumed by the court that the purchaser at the mortgage sale was entitled to the possession. We must therefore infer that the sale had been confirmed in accordance with the practice in chancery at that time. (Barb. Ch. Pr., supra.) In Mitchell v. Bartlett (51 N. Y., 447) it would seem that the judgment gave the purchaser the right to the possession on the production of the referee’s deed. Whether a confirmation of the sale had been obtained does not appear ; but the court holds that the purchaser is not entitled to the possession except in pursuance of the provisions of the judgment. While the mortgagor’s title may be divested by the giving of a deed alone, in pursuance of a judgment requiring that only, in this case a confirmation of the sale, as well as the delivery of the deed, was required, and both are necessary to vest title and right of possession in the purchaser.

Until the confirmation of the sale by the court, it is not absolute. It may be set aside and a re-sale ordered. The purchaser has acquired only a contingent right. Until such right becomes absolute by confirmation, it would seem to be the better practice that the purchaser ought not to have possession.

Por the reasons stated, we think the judgment is right and should be affirmed, with costs.

Bocees, J., concurred.

Learned, P. J.:

I concur in the result, but am not willing to say that confirmation of the report of sale is necessary to vest title in the purchaser. In the present case, I don’t think there was any eviction or surrender which was valid.

Judgment affirmed with costs.


author: Boardman, J. :

text:
    STEPHEN CEAS, as Administrator, etc., of JEREMIAH CEAS, Deceased, Respondent, v. JAMES H. BRAMLEY, Appellant.

      V&’bal pledge or mortgage — deliveiy essential to the validity of.

    The defendant being’ surety upon a note given by Ceas, the plaintiff’s intestate, to one McIntosh, it was agreed, after the maturity of the note, that defendant would remain liable as surety one year long-er and Ceas agreed to turn over to him a horse, and incase defendant had to pay the note, the horse was to be his property, and he was to have the right to go and take it. The horse was not pi’esent at the time of this agreement nor was he ever delivered to defendant. An action was commenced on the note, the defendant being served with process on the day Ceas died, but no service was ever made on Ceas. The defendant having paid the note and costs took the horse.
    In an action by the plaintiff as administrator of Ceas, to recover the same, held, that the agreement conferred no title to the horse upon the defendant and that the plaintiff was entitled to recover.
    Appeal from a judgment of tbe County Court of Delaware county in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions.
    Tbe action was brought by the plaintiff as administrator of tbe estate of his father, Jeremiah Ceas, to recover damages alleged to have been sustained by tbe wrongful conversion of a horse belonging to tbe intestate at tbe time of his death. Tbe said Jeremiah Ceas died on the 25th of December, 1876, having this horse in his possession. The defendant was surety upon a note given by said Jeremiah Ceas and the defendant to one McIntosh, December 29, 1872, for $100, loaned by McIntosh to Ceas. On the 30th day of January, 1876, Jeremiah Ceas and defendant met and in the presence of McIntosh, the defendant agreed to remain as surety upon the note another year, and Jeremiah Ceas, agreed to turn out to him the horse in question as security for his liability upon the note, and in case the defendant had to pay the note the horse was to be his property and he was to have the right to go and take possession of him. This was all by parol and the horse was not there, and no actual delivery was ever made, nor was there any change of possession during the lifetime of Ceas. In the fall of 1876, the defendant notified McIntosh that he must proceed to collect the note of Ceas, and he thereupon commenced an action upon the note in the Supreme Court against both makers, in which the summons was served upon defendant upon the day of Ceas’ death, but no service was ever made upon Ceas. The defendant then paid the note and costs, amounting to $133, and then went on the 3d day of January, 1877, upon the premises recently occupied by Ceas and took possession of the horse and led him away. The plaintiff was appointed administrator March 5, 1877, and shortly afterwards demanded the horse of defendant, who refused to give him up, and thereupon this action was brought. Jeremiah Ceas was indebted, at the time of his death, to various parties, which debts are still unpaid.

      George Adee, for the appellant.

      Davie <& Arbuclde, for the respondent.
   Boardman, J. :

This was not a pledge because there was no delivery of the property to the defendant. (Edws. on Bail., §§ 176, 209.) Neither was it a chattel mortgage, because there was no absolute sale defeasible on condition, nor was there any delivery of the property by way of transfer of title as a security for a debt to be paid. (2 Wait, Act. & Dif., 165, etc.) A chattel mortgage may, doubtless, be made by parol, but in such case something more is necessary than mere words. In all the cases cited delivery of the mortgaged property accompanied the parol contract held to be a chattel mortgage. (Ackley v. Finch, 7 Cow., 290; Ferguson v. Union Furnace Co., 9 Wend., 345; Bank of Bochester v. Jones, 4 N. Y., 506; Bardwell v. Roberts, 66 Barb., 433.) In the last case delivery is held to be essential to the validity of a parol chattel mortgage.

If the transaction be treated as a sale of the horse, then such sale was void by the statute of frauds, and was without consideration. The contract was not reduced to writing and signed by the parties; there was no delivery and no money paid. The payment made bjr defendant to McIntosh, about the 1st of January, 1877, was ineffectual to validate a void contract, for two reasons: (1.) That at the time of such payment, Jeremiah Ceas, the other party to the contract, was dead; and, (2.) That such payment was not made with the purpose of complying with the statute, nor could the contract then have been reaffirmed or restated so as in effect to constitue a new contract as of the time when the payment was made. (Hunter v. Wetsell, 57 N. Y., 375.) There was an absence of consideration since the defendant's position as surety for Ceas remained the same after as before the alleged contract. •

If the transaction can, by possibility, be considered a parol chattel mortgage, it ivas void as to the creditors of Ceas, and, on the evidence in this case, the plaintiff represents the creditors and can attack the defendant for taking this property after the death of Ceas. (Babcock v. Booth, 2 Hill, 181.) If the right of the plaintiff, as the representative of the creditors of the intestate, was doubtful in 1841, when Babcock v. Booth was decided, chapter 314 of Laws of 1858,’removes that doubt and extends the remedy of the administrator of a deceased person so as to include this case. (Levin v. Russell, 42 N. Y., 251.) As a chattel mortgage it was fraudulent in law as against the creditors of the intestate, and hence the property was assets in the hands of the intestate’s administrator for the payment of debts. The defendant, by taking such property after the intestate’s death and converting it to his own use, became liable to this action. (Husted v. Ingraham, 8 Week. Dig., 33.)

We think the judgment is correct and that the motion for a new trial was properly denied.

LeauNed, P. J., and Bocees, J., concurred.

Judgment and order affirmed, with costs.


text:
    HERKIMER S. McCOMBS, Respondent, v. DARIUS ALLEN AND THOMAS McLAUGHLIN, Appellants, Impleaded with DEARBORN B. McCRILLIS.

      Sureties to an undertaking unde)’ section 688 of the Code of Civil Procedure — not released by the discharge of their principal in bankruptcy.

    The defendants became sureties to an undertaking, given under section 688 of the Code of Civil Procedure, to procure the discharge of an attachment against one McCrillis. Within four months from the issuing of the attachment McCrillis filed a petition in voluntary bankruptcy, and procured his discharge therein. The plaintiff in the attachment suit having prosecuted his claim to judgment, asigned his claim to the plaintiff, who brought this action to recover on the undertaking.
    Held, that the defendants were liable thereon, and were not released by the discharge of McCrillis in bankruptcy.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury.

      Edward Filch Bullard, for the appellants.
    The proceedings in bankruptcy and the assignment absolutely dissolved the attachment. (Miller v. Bowles, 58 N. Y., 253; Duffield v. Ilorton, 6 Week. Dig., 277, Court of Appeals ; West Philadelphia Banls v. Dickson, 5 Otto, 180; Risley v. Brown, 67 N. Y., 160; Stewart v. Brahall, 6 W. Dig., 507; Maas v. O'Brien, 6 id., 560; Boring v. Eager, 3 Cush., 188; Tappan v. Van Wagenan, 3 Johns., 465.)

      Henry A. Merritt, for the respondent.
   Boardman, J. :

The defendants became sureties under section 688 of the Code, upon an undertaking given to discharge the attachment granted against one McCrillis, and it was thereupon discharged. Before the expiration of four months after the making of such attachment, and nearly two months after the giving of such undertaking, McCrillis filed-his voluntary petition in bankruptcy, and was afterwards under such bankruptcy proceedings discharged. The plaintiff in the attachment case prosecuted his claim to judgment, payment thereof was .demanded, and it was then assigned to plaintiff. The defendants now claim that by reason of McCrillis’ discharge in bankruptcy their obligation on the undertaking ceased. Such claim does not seem justified by the authorities.

The undertaking of the defendants is to pay the amount of any judgment which might be obtained against their principal. Until judgment was recovered and demand of payment made the liability of the defendants was not fixed. Before that it was contingent. It was not essential to the validity of this undertaking that an attachment had been issued or levied. ( Coleman v. Bean, 1 Abb. Ct. of Ap. Dec., 394; Onderdonk v. Voorhis, 36 N. Y., 358; Bildersee v. Aden, 12 Abb. [N. S.], 324.) Besides, it appears that the attachment in this case was discharged upon the giving of this undertaking. McCrillis thereafter had complete control of his property, and, if it was not appropriated otherwise, the property attached went to his assignee in bankruptcy, and was applied in payment of his debts. The attachment after its discharge no longer stood in the way of such proceedings. It made no difference whether McCrillis petition was filed more or less than four months after the attachment was levied. In either case the property attached went alike to the assignee, because there was no other claimant. The plaintiff in the attachment suit did not claim it. He held the defendants’ obligation in lieu of his lien by attachment. The Code had compelled him to yield all claim to specific property of McCrillis, and to take in lieu the defendants’ contract for the payment of any debt he might establish by judgment. The bankrupt law does not apply to such a case, and will not discharge these obligors if the judgment shall be obtained. (Holyoke v. Adams, 1 Hun, 223.) An appeal from this decision was dismissed, on the ground that the order which refused leave to plead the bankruptcy discharge, in answer to an action on the bond, was discretionary. But Judge Folgek, in an admirable opinion, sustains the views taken in the court below. (59 N. Y., 241-242.)

A still later case (Knapp v. Anderson, 71 N. Y., 466) is still more conclusive against the defendants. Judge AlleN says : “To hold that they (the sureties) were released by the insolvency of their principal, pending the appeal, would add another condition to the undertaking not expressed in it or authorized by statute. Such a condition inserted in the undertaking when given would invalidate it as not in conformity to tbe statute.” These suggestions are equally applicable to tbe present case. The defendants’ contract was to pay the judgment if obtained. It does not matter that a defence of the bankruptcy proceedings might have been interposed. It was not. Judgment was obtained. The condition fixing the obligation of defendants had happened, aná they are liable. (Zollar v. Janvrin, 49 N. H., 114; Wolf v. Stix, 19 Alb. L. J., 280.)

We are satisfied the defendants were not released or discharged from their liability on the undertaking, by reason of the facts attending the putting over the circuit of this case. Whatever occurred, if not in the ordinary conduct of a case at the circuit, did not injure these sureties, and was in no respect inconsistent with their rights. (Clark v. Sickler, 64 N. Y., 231; Daniels v. Patterson, 3 id., 47; Schroeppel v. Shaw, id., 446; Smith v. Falconer, 11 Hun, 481.)

For the reasons given, we think the judgment is right and should be affirmed, with costs.

Leaened, P. J., and Bocees, J., concurred.

Judgment affirmed, with costs.


text:
    THOMAS O’MARA, Plaintiff, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Defendant.

      Contributory negligence — when climbing over a train at a crossing constitutes.

    The plaintiff in attempting to cross defendant’s tracks, at what was claimed to he a public crossing, found the crossing blocked by a long freight train which had been standing there for some time. Owing to a curve in the road the front of the train could not be seen; the end of the train was some 200 feet from the crossing. Plaintiff climbed upon the bumper of one of the cars and attempted to cross the tracks, but while so doing the train was moved, without any signal being given by the defendant, his foot was caught, and the injury occasioned, to recover damages for which this action was brought.
    ■Held, that the plaintiff was properly nonsuited, on the ground that he was guilty of contributory negligence.

      MotioN for a new trial, on exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed at the circuit.
    The action was for personal injuries sustained by the plaintiff May 21, 1872. The defence was a denial, and contributory negligence on the part of the plaintiff. The evidence on the trial tended to show that the plaintiff lived in the city of Albany, opposite the island in the southern part thereof, at the time he was injured ; that there was a public road leading to this island from the city of Albany; that he went to the island at six o’clock in the morning to his work, and that when he came to the railroad track, which crossed this public road, he found a long train of defendant’s coal cars standing across it, extending below and above the road crossing as well as across the road. The plaintiff put his foot upon the bumper of one of the cars, for the purpose of passing over, and by raising himself thereon passed over, and went to the island, where he remained at work for about an hour ; he then returned for breakfast, and passed over the same train and in the same way, and in about half an hour, or three-quarters of an hour, ho came back from his breakfast and found the train still standing at the same place over the public road ; no flagman or signal-man was present. The plaintiff put his foot on the bumper, as he had twice done before in crossing, and as he was in the act of bringing himself across or passing over, the cars came together with a sudden shock or jerk backwards, his foot slipped and was shaken off thereby, and his leg went in,- and was caught in the shackling part of the cars and was mangled and torn.

      A. J. Gohin, for the plainifft

      Henry Smith, for the defendant.
   Boardman, J. :

The decision of the learned court nonsuiting the plaintiff is sustained by authority. The Supreme Court of Pennsylvania, in a similar case, authorized a recovery by a child of six or seven years of age, and Woodward, J., adds : “If the plaintiff had been an adult of ordinary prudence and discretion he would have had no right of action, for however blameworthy the defendants may have been in leaving their cars on the crossing, common prudence would have restrained him from passing under them, and an adult would have been bound to use common prudence.” (Rauch v. Lloyd, 31 Penn. [7 Casey[, 358, 370.) Under quite similar circumstances the Court of Appeals of Maryland, by PobiNSON, J., says : “Was the attempt by plaintiff to get on the platform, of the car, under the circumstances, such a glaring act of carelessness as to amount in law to contributory negligence ? To this we think there can be but one answer. On reaching the crossing at Camden and Howard streets, instead of waiting until the train had moved or walking up to Pratt street, the distance of a square only, where he could have crossed without risk, he attempted, although it was dark, to get on the platform of one of the cars, at a time, too, when defendant was making up its train, and without even looking or inquiring whether an engine was attached thereto. For such negligence it is no excuse to say that he had seen five' or six of the crowd collected there make a like attempt without injury. * * * Tested by this standard (the ordinary care which the law requires) “ the conduct of the plaintiff, in thus exposing himself to a danger so threatening, can be viewed in no other light than as an act of carelessness, amounting in law to con-tributary negligence.” (Lewis v. Balt. and Ohio R. R., 38 Md., 566; S. C., 10 Amer. Rail. Cases, 521, 528.) Van Schaick v. Hudson Riv. R. R. Co. (43 N. Y., 528), is analogous, and in our judgment sustains the same view of the law. The plaintiff, in the case under consideration, could have gone around the end of this obstructing train with safety, a distance of 100 to 200 feet. But he preferred to climb across defendant’s cars, knowing it was a train liable to be moved; that the engine was near the depot, but not in sight, and that cars were frequently in motion at that iDoint. Under such a state of facts the plaintiff was very negligent in taking the risk, and as his injury was caused thereby he cannot recover.

The counsel for the plaintiff insists that the question of contributory negligence should have been left to the jury. In Reynolds v. N. Y. C. and H. R. R. R. Co. (58 N. Y., 248), contributory negligence was presumed as a matter of law in the absence of any evidence of the conduct of plaintiff’s intestate, and it was held plaintiff should have been nonsuited. In the present case there is no conflict of evidence ; no doubt about the facts. The injury could not have occurred except for plaintiff’s act in undertaking to climb over a train between the cars. It was for the court to determine whether that was negligence which contributed to the injury, and, as other courts have said, no one could doubt it was. The rule is correctly stated in Massoth v. Del. and Hud. Can. Co. (64 N. Y., 529); S. C. (6 Hun, 314).

Nor is it of importance that defendant was guilty of wrong or negligence in blocking up the way, or in starting its train suddenly and without notice. The defendant is not liable for the injury sustained by plaintiff, unless it occurred solely by its fault and negligence, and not in any degree through the fault or negligence of the plaintiff

So, in any view which can be taken of the case, it would seem a nonsuit was properly granted. The motion for a new trial is, therefore, denied, and judgment ordered for the defendant on the nonsuit, with costs. .

Learned, P. J., concurred ; Bocees, J., not acting.

Motion for new trial denied, and judgment for defendant on verdict.


text:
    IN THE MATTER OF THE FINAL ACCOUNTING OF ALEXANDER SHAW AND SAMUEL GRAHAM, Assignees of J. McMURRAY & BRO. and others, Insolvent Debtors, Appellants.

      General assignment — commissions of assignees the same as those of executors.

    A general assignment provided that the assignees were “ to pay and discharge all the just and reasonable expenses, costs and charges of executing this assignment and of carrying into effect the trust hereby created, together with a reasonable commission or compensation to the assignees for their own services in executing the said trust.”

      Held, that the assignees were only entitled to the same commissions as are by law allowed to executors and administrators.

      Appeal from an order made at Special Term, confirming the report of a referee and fixing the amount of the commissions and compensation to which the assignees for the benefit of creditors were entitled at the amount allowed to executors and administrators.

      Adee <& Shaw, for the appellants.

      Abram Q. Crosby, for Hutson and other creditors, respondents.
   Boardman, J. :

The assignees of the insolvent debtors were allowed, upon their accounting, the same commissions as by law are allowed to executors, and administrators. The language of the assignment in that behalf is as follows : “To pay and discharge all the just and reasonable expenses, costs and charges of executing this assignment, and of carrying into effect the trust hereby created, together with a reasonable commission or compensation to the assignees for their own services in executing the said trust.” Under this clause the assignees .claimed they were entitled to be allowed the actual value of their services, and were not restricted to executors commissions. They appeal from the decision of the Special Term.

I think the decision of the court below was right, and that the appellants were only entitled to the same fees or commissions as are allowed executors and administrators. A long and uniform course of decisions in this State has so established the law. Walworth, Ch.,in Meacham v. Sternes (9 Paige, 399-403) says, of the fees of an assignee of an insolvent debtor : “ The trustee in this case, and other trustees similarity situated, are entitled to the same compensation for their services which is allowed by law in the case of executors,” etc. Judge BroxsoN in Barney v. Griffin (2 N. Y., 372) says, of an insolvent’s assignment: “If the debtor can provide for anything more than the necessary expenses of executing the trust, I think he cannot go beyond the commissions allowed 'by law to executors, etc., for similar services.” In Nichols v. McEwen (17 N. Y., 22) an assignment was declared void which provided for greater commissions and pay than is allowed to executors, etc., and the rule above cited from Barney v. Griffin is approved of. In Campbell v. Woodworth (24 N. Y., 304), a case very like the one before us, the court holds the just and reasonable compensation for the services of the assignees to mean the commissions allowed by law to executors, and that such commissions are the reasonable compensation in all cases. To the same effect is Jacobs v. Remsen (36 N. Y., 668); Duffy v. Duncan (35 id., 190); Ogden v. Murray (39 N. Y., 202); Ireland v. Potter (25 How., 177); Wagstaff v. Lowerre (23 Barb., 224).

Against this array of authority, the appellants cite and rely upon the casein the Matter of Schell, trustee (53 N. Y., 263). That, however, was a case arising under a will, and Schell had been appointed trustee in place of the trustees named in the will. It was held that provision was made by the will for paying the trustee the actual value of his services, to be determined as in ordinary cases, upon an employment inter vivos. The case is quite different from that of an assignee of insolvent debtors and does not profess to overrule any of the cases cited. The testator may give any compensation he pleases and no injustice can thus be done to any creditor thereby. An insolvent creditor, as we have seen, may not. select an assignee and fix his compensation beyond the reach of his creditors. As to him, the law fixes the compensation of his assignee, and injustice cannot be done by selecting persons whose services may be of groat value and providing for their payment at the expense of suffering creditors.

The assignment in this case was not void, because the reasonable commission for services means no more than the commissions fixed by law. (Campbell v. Woodworth, supra.) To the same effect was the decision of this court in Chase v. James, opinion by Learned, P. J., November Term, 1879 (16 Hun, 14), when language entered in referee’s minutes of trial as follows : “ Referee may charge the fair value of his services,” was held to mean three dollars per day, because the Legislature had fixed that as the fair value of a referee’s services, and that rate would control unless another was specially agreed upon.

The order of the Special Term should be affirmed, with $10 costs and expenses of printing to be paid by appellants to respondents.

Present — LeaeNeb, P. J., BoakbmaN and Bocees, JJ.

Order affirmed, with ton dollars costs and printing disbursements, to be paid by appellants to respondents.