author: Herrick, J.

text:
    Charles N. Williams, App’lt, v. Nathaniel C. Boynton, County Clerk of the County of Essex, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed September 28, 1893.)

    1. Supbbvisobs—De eacto.
    One S. was declared elected supervisor by the board of canvassers and & certificate given to him, but subsequently a mandamus was granted commanding the canvassers to reassemble and recanvass the vote and allow certain paster ballots for his opponent, who was thereupon declared elected. Subsequently, the board of supervisors, on a contest, decided in favor of S., who théreupon took his scat and acted in said board. Held, that the action of the board was without authority, and that S. was not a de facto supervisor.

      2. County—Removal oe county buildings.
    A resolution for the removal of county buildings was passed by a vote of 10 to 8, S. voting in favor thereof. Held, that the resolution did not receive the votes of a majority of the elected members of the board, and. therefore that the question of the change of county buildings could not be legally submitted to the electors of the county.
    S. Same—Laws 1893, chap. 148.
    Chapter 148, Laws 1893, purporting to validate the action of the board, is void and of no effect as a validating statute, as the act relates to Essex county alone, and hence is a local act, and because it attempts to adjudicate as to the right and title of S. to his seat in the board, neither of which is in the power of the legislature.
    Appeal from judgment dismissing the complaint, with costs.

      Hand, Kellogg & Hale (Richard L. Hand, of counsel), for app’lt; McLaughlin & Rowe (Chester B. McLaughlin, of counsel), for resp’t.
   Herrick, J.

This action is brought by the plaintiff as a taxpayer and resident of the town of Elizabethtown, in the county of Essex, in this state, asking the court to adjudge that no legal or valid resolution for the removal of the site of any building or change of location of any county offices in the said county of Essex has been adopted or passed by the board of supervisors of said county, and that the • action had in said board in the year 1892 in that respect was and is without jurisdiction, illegal and void ; and also asking that the defendant be perpetually enjoined and restrained from providing any official ballots, sample ballots nr instruction cards, or distributing the same, and from incurring any expense, or doing any other act or thing for the purpose of •submitting the question of the removal of buildings or changing the location of offices to the electors of the said county of Essex.

The plaintiff’s complaint was dismissed at the circuit, and from the judgment entered thereon the plaintiff appeals to this court. The facts, so far as they are necessary to be stated for the purpose of this appeal, are as follows : Chapter 686 of the Laws of 1892, known as the county law, provides, among other things, for the location and change of location of county buildings. Section 31 of said act provides that, “The board of supervisors may, except in the county of Kings, by a majority vote of all the members elected thereto, fix or change the site of any county building, and the location of any county office; but the site or location of no county building or office shall be changed when the change shall exceed one mile, and shall be beyond the boundaries of the incorporated village or city where already situated, except upon a petition of at least twenty-five freeholders of the county, describing the buildings Sr office the site or location of which is proposed to be changed, and the place at or near which it is proposed to locate such new building or office."

The law further provides for the publishing of such petition and notice of its presentation to the board of supervisors.

Section 32 provides that: “ On the presentation of such petition and notice, with due proof of their publication, if a majority of all the members elected to such board vote in favor of a resolution for the removal of the site of the buildings described in such petition, to the site also therein described, or the change of the location of its county offices or any of them, said board shall thereupon direct that such resolution, together with the notice that the question of such removal will be submitted to the electors of the ■county at the ensuing general election, be published in at least two newspapers published in the county, to be designated by the board, once in each week for six consecutive, weeks immediately preceding such general election. Such resolution and notice shall be published accordingly.”

A petition and notice was presented to the board of supervisors of Essex county.

Some questions have been raised in regard to such petition and notice and the proof of publication thereof, but the view that I have taken of this case renders it unnecessary to discuss them.

The board of supervisors of Essex county consisted of eighteen members; a majority of the members elected would consequently be ten. On the 7th day of December a resolution, pursuant to the petition presented, providing for a change of the county buildings from Elizabethtown, where they are at present located, to the village of Port Henry, more than one mile from and beyond the boundaries of the village where they are now located, came up to be acted upon by said board of supervisors; of those present and claiming to act as supervisors ten voted in favor of the passage of such resolution, and eight against the same. The chairman of the board of supervisors decided that a majority of all the supervisors elected to the board did not vote for the resolution, and that it was lost; and stated as his ground for such decision that two of the persons, one named Sullivan and one named Moynehan, had not been elected supervisors; the decision of the chair was appealed from, and by the votes of the same persons who voted for the passage of the resolution the decision of the chair was overruled, and subsequently and by the same persons a resolution was passed, directing the resolution and notice that the question of such removal would be submitted to the electors at the ensuing general election to be published in three newspapers named in such resolution.

It appears by the proceedings in the case that at the town election held in the town of Minerva, Essex county, in March, 1892r Henry Bradley and William H. Sullivan were opposing candidates-for the office of supervisor; paster ballots containing the name of Mr. Bradley, and affixed to the official ballot, were voted at such election.

The town board canvassing the ballots rejected and refused to-count the paster ballots containing the name of Bradley, and gave the certificate of election to Sullivan. Including the paster ballots, Bradley had the majority of the votes cast at such election. A mandamus was then issued requiring such board of town canvassers to reassemble and declare the result of the said town meeting, and to issue a certificate of election to the candidates having the greatest number of ballots cast for them, including such pasterballots. The order directing the issuing of such mandamus was appealed from to the general term of this court, affirmed by the general term, then taken to the court of appeals, and on the 17th day of June the order of the general term was affirmed by the court of appeals.

It appears that thereafter the town board of canvassers met, re-canvassed as directed by the court, and upon such recanvass Bradley was duly declared elected to the office of supervisor, and a certificate of his election was duly issued to him, signed by the officers who acted as such canvassers; that thereafter Bradley duly took and filed the requisite oath of office, and gave and filed the requisite securities as such supervisor; that thereafter, and on the 4th day of August, 1892, an order was granted by a justice of this court directing the said William H. Sullivan to deliver the books and papers pertaining to the office of supervisor of said town, in his possession, to the said Bradley, which order was appealed from to the general term, and was affirmed by the general term on the 8th day of December, 1892, which order of affirmance was entered on December 13, 1892. The Essex county board of supervisors met November 14, 1892, and appointed a committee on contested seats, to which was referred the question of the contested seat from the town of Minerva. This committee, claiming to act under § 7, subdivision 1,' chapter 482, of the Laws of 1875, which authorized boards of supervisors, where there is no determination by the court upon the subject, to determine all cases of contested membership in their boards, proceeded to determine who should represent the town of Minerva in the board of supervisors. The law under which they claimed to act, chapter 482 of the Laws of 1875, had theretofore been repealed by chapter 686 of the Laws of 1892 (see schedule of laws repealed, page 1798, Session Laws of 1892).

Hot only did they proceed without authorhy of law to make the investigation and determination, but their own report shows that they knowingly and wilfully violated the law; it shows that they knowingly recommended the seating of the person who had received a minority of the votes cast, and that they did it in what they believed to be opposition to the decisions of the courts of the state. Their report, after reciting the various proceedings taken before the courts, and the decisions of the courts thereon, recommended that William H. Sullivan be allowed to sit as a supervisor representing the1 town of Minerva for the year 1892. After making such recommendation the committee attempted to justify their action in the following language: “ Your committee believe that they are justified, warranted and upheld in this conclusion by the case of Osborne v. Deane, in the 15th Dutchess, Columbia and Putnam senatorial district of this state, where the" board of county canvassers refused to count the vote cast for Deane until compelled to do so by order of the highest appellate court of the state, which order was obeyed in. that case, as it was in the case of the town board of Minerva. Yet the returns made by the irregular board of county canvassers were recognized by the state board of canvassers, and Osborne was allowed to sit as senator from the 15th district on a minority vote, Deane having received a majority of the votes cast in said district.”

Extended comment upon this proceeding is unnecessary. The report of the committee was adopted by the board of supervisors, and Sullivan sat with the board of supervisors, and, as we have seen, voted for the passage of the resolution to change the location of the county buildings. The legality of his vote is sought to be upheld upon the ground that he was a de facto supervisor. It seems to me that the act of Sullivan in voting for this resolution is hardly within the line of action of a de facia officer that out of motives of public policy the law will uphold. The question of who are de facto officers, and under what circumstances the acts of persons unlawfully holding office will, out of motives of public policy, be held valid, has been the subject of much controversy, and has been frequently passed upon by the courts. I think the leading case upon that subject in this country is perhaps that of the State v. Carroll, 38 Conn., 449, where the following broad and comprehensive definition is laid down: “ An officer de facta is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid so far as they involve the interests of the public and third persons, where the duties of the office were exercised.

“ First. Without a known appointment or election, but under such circumstances of reputation or acquiescence as were calculated to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be.

Second. Under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like.

Third. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want • of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public.

Fourth. Under color of an election or appointment by or pursuant toa public unconstitutional law, before the same is adjudged to be such.

Sullivan cannot be said to be acting under either the second, third or fourth clauses of this definition, neither do I think his act can be said to be one of those mentioned in the first, for neither h} reputation or acquiescence was he acting or holding office under such circumstances “ as were calculated to induce people without inquiry to submit to, or invoke his action, supposing him to be the officer he assumed to be,” for at the time of his voting his right to vote was publicly challenged upon the ground that he was not a supervisor, so that no one need to be induced without inquiry to submit to his action in that respect; the only people who are called upon at this time to submit to his action are the members of the board of supervisors and the county clerk, and as to them it seems to me that he is not holding office •“ under such circumstances of reputation or acquiescence as to induce them without inquiry to submit to his action supposing him the officer he claims to be.” The acts of de facto officers are upheld as matter of public policy to prevent a failure of justice, to permit the orderly transaction of public business, and to protect the interests of the public and individuals where those interests are involved by the acts of persons exercising the duties of public officers without being legal officers.

In this case individual interests, are not involved, no rights have been vested; nothing has been done upon the faith of the act in question by any individual; no one has yet acted upon the faith of it; neither do I see that any public interests are affected ; nothing has as yet been done that as a matter of precedent or rule for future action requires that as a matter of public policy the acts of Sullivan should be sustained as those of a de facto officer; to do so, would be to hold that persons without semblance of right, after decisions of the courts of last resort adversely to their claims, may by physical force retain possession of the offices they have thrust themselves into, and be recognized as the lawful office holders thereof; such a doctrine, it seems to me, is contrary to sound public policy and will cause more trouble and confusion than to hold the acts of persons performing the duties of public officers under such circumstances invalid as to all the world. Sullivan's only claim of title to the office of supervisor was under the certificate of election given to him by the board of town canvassers, and the evidence in the ease shows that he was not elected a member of the board of supervisors, and the certificate of election awarded to him was set aside by the decision in the case of the People v. Shaw, 64 Hun, 356; 45 St. Rep., 533; and 133 N. Y., 493; 45 St. Rep., 866. This is a matter of public record of which all persons are presumed to have knowledge.

The case also shows that upon a re-canvass held pursuant to those decisions Bradley had a majority of the votes, and that a certificate of election was awarded to him.

Sullivan’s claim to office is not acquiesced in; it is a matter of record in the courts that he is not entitled to it; he holds it against the protest of the law'fully elected person, against the successful appeal of that person to the courts of the state; holds it by force and by the arbitrary action of himself and the members of the board of supervisors; the validity of his act that we are called to pass upon was not at any time acquiesced in, but was challenged when it was being done, and before it can become operative the aid of the court is sought to prevent its becoming-operative, and that aid is sought before either the public or individuals have taken any action upon the faith of his act.

The rule as to the recognition of de facto officers and their acts has limitations, and, among others, those limitations are, as to such acts as are arbitrary and voluntary, and do not affect public utility. Board of Education v. Fonda, 77 N.Y., 350. Here we certainly have an arbitrary, voluntary case of usurpation, and the request is that we interfere before the public interests are affected by its results, and I cannot see how our refusal to recognize Sullivan as a de facto supervisor, and his act as valid, will adversely affect public utility.”

It must therefore, I think, be held that Sullivan was not a de facto supervisor whose act in voting for the resolution should be sustained from any reason of public policy.

The county law, as we have seen, requires that a resolution to change the location of county buildings shall be passed by the majority of members elected, so that neither as an elected or a de facto supervisor was he entitled to vote upon such resolution, consequently it did not receive the votes of the majority of the elected members of the board of supervisors, and it follows therefrom that the question as to the change of county buildings could not legally be submitted to the electors of the county by authority of such action of the board of supervisors.

If I am correct in my conclusions as to the right of Sullivan to sit and vote as one of the board of supervisors, it is unnecessary to pass upon the qualifications of Moynehan as a member of such board. It is contended, however, that the proceedings of the board of supervisors have been legalized by chapter 148 of the Laws of 1893, reading as follows : “ All proceedings, votes and resolutions taken and adopted by the board of supervisors of the county of Essex at its annual meeting, held in November and December, •eighteen hundred and ninety-two, in relation to changing the site of the county buildings of such county, are hereby legalized, ratified and confirmed, so as to be of the same force and effect as if all the persons sitting as members of such board of supervisors, taking part in such proceedings, and. voting upon the questions and resolutions relating thereto, had been duly elected and qualified members of such board, during such meeting.”

That the legislature has power to validate by subsequent' legislation acts done under an assumed execution of statute authority which has not been strictly followed is undoubted, provided that the act done, or the manner in which it has been done, is such that the legislature might have authorized itJ to have originally been done, or done in that way ; that which, however, the legislature could not originally avthorize to be done, having been done, it cannot legalize by any subsequent act of legislation. Town of Duanesburgh v. Jenkins, 57 N. Y., 177; Williams v. Town of Duanesburgh, 66 id., 129; Tifft v. City of Buffalo, 82 id., 204; Ensign v. Barse, 107 N. Y., 329; 12 St. Rep., 39.

The question then arises as to the power of the legislature to authorize the acts in the beginning. It will be seen by reading the legalizing act that it professes to legalize and ratify the proceedings of the board of supervisors, so that they shall have the same force and effect as if the persons sitting as members of such board and taking part in its proceedings had been duly elected and qualified members of the board.

As an adjudication of the right and title of Sullivan to his seat in the board of supervisors the act cannot be held to be of any force or effect, because the legislature is not clothed with any such power, except in the case of its own members.

So far as it can be construed as an attempt to qualify any persons not having been legally members of the board of supervisors with the powers of supervisors, it seems to me it must fail; I have not been cited to any authority, nor have I been able to find any, giving any such power or authority to the legislature. A supervisor cannot be created by legislative enactment; the office of supervisor is a constitutional office (see article 3, § 22) and is elective. And to clothe any person with the powers of a supervisor who has not been elected would be an act in direct conflict with the spirit and intent of that portion of the constitu- ■ tion making supervisors elective. But it is said that the legislature might have originally provided for the passage of resolutions like the one in question by the vote of a majority of the supervisors present and voting, or that it might have provided for the submission of the question to the people of the county without its having previously passed the board of supervisors ; that is undoubtedly true, if the legislature had so authorized it to be done by a general law, but I do not think it can single out Essex county alone and provide a special proceeding for matters of this kind in that county; it must proceed by general laws. Section 18, art. 3, of the constitution provides that, “ The legislature shall not pass a Írivate or local bill in any of the following cases: * * * locating or changing county seats.” And again, in the same section, it is provided that, “ The legislature shall pass general laws providing for the cases enumerated in the section.” The directions as to what they shall pass are just as mandatory as the prohibition as to what they shall not pass; and the last clause quoted is a command, among other things, to pass general laws for the “locating or changing of county seats.”

Pursuant to that command they have passed a general law pro Tiding for the locating or changing of county seats, which is embraced in chapter 686 of the Laws of 1892, and to hold that chapter 148 of the laws of 1893 is a valid law is to except Essex county from the provisions of the general law, and in effect to up - hold a local law providing for the changing of the county seat. It is said that this act does not change the county seat. That is true, but that does not relieve it from the prohibition of the constitution ; it is a law regulating the method and procedure by which the change shall be made, and applicable to Essex county alone..

I do not understand that when the constitution says that the legislature shall pass general laws providing for the cases where it prohibits the passage of local laws, that it is to be considered as meaning that they are to pass general laws actually locating or changing county seats, but laws regulating the manner and providing for the procedure by which county seats shall be located or changed; and that the law providing a procedure for one county alone co'mes within the constitutional.inhibition.

For these reasons I think chapter 148, of the Laws of 1893, must be held void, and of no force and effect as a validating statute, and that the judgment herein should be reversed, and that judgment- should be granted according to the prayer of the complaint.

Judgment reversed, and judgment directed, adjudging that no valid resolution for the change or location of any county office of the county of Essex was adopted by the board of supervisors of Essex county at its session in 1892, and restraining the defendant from printing or distributing any ballots or incurring any expense for the purpose of submitting the question of the removal of the public buildings or changing the county seat of Essex county, to> the electors of the county of Essex, pursuant to any resolution purporting to have been passed by the board of supervisors of Essex county during the session of 1892, with costs and disbursements.

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


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    In the Matter of the Judicial Settlement of the Account of Henry B. Bolton et al, Ex’rs.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    1. Executors and administrators—Accounting—Sale of machinery.
    Certain machinery which was leased with the building was injured by-fire, the lessees replaced the portion destroyed, and the remaining portion was sold by the executors of the owner at auction, at which there was competition. to the adopted son of the deceased for §600. It had previously been estimated in connection with the lessees’ machinery at §50,000. Held, that under the circumstances it could not he said that a finding that the sale was fair and the price adequate wasrerroneous.

      Same—Rent of machinery.
    It appeared that the premises leased was taken by the city, and an award made which included such machinery, but shortly before the sale the executors got possession thereof by agreement with the city. Held, that the executors were not chargeable with the rent of the machinery after the land was taken.
    3. Same—Mortgage deficiency.
    Nor are the executors chargeable with the amount of a deficiency on the foreclosure of a mortgage given to their testatrix by her husband merely to protect his title as against his creditors.
    Appeal from decree of the surrogate of Westchester county, settling the accounts of the executors of Ann Bolton, deceased.

      James R. Marvin, for app’lts; Alex. Thain, for ex’rs, resp’ts.
   Barnard, P. J.

Ann Bolton died in 1882. She owned at her decease real estate in Bronxville, Westchester county, N. Y. The two executors and Wm. N. Birchel, an adopted son, held a lease from the deceased for these premises for ten years from March 1, 1880, at a yearly rent of $4,500. On these premises the lessees had carried on a bleaching business. There was machinery on the premises which wmnt with the land. The city of New York took the land for public uses in 1889. In 1887 a large part of the machinery was destroyed by fire, and the lessees replaced this machinery on their own account. The executors sold the machinery of the estate at public auction in August, 1891, for $592.82. It was a serious question on the trial whether this sale was fair. The property was mainly bought at this sale by the adopted son of deceased, William N. Birchel, and it was used afterwards with the firm machinery proper in new premises at West Fordham, by the executors and Birchel as partners. The executors, before the commissioner, had proven the value of the entire machinery proper at upwards of $90,000.

At the value put on the machinery and separating the new from the old, the estate machinery was worth upwards of $50,000. On the other hand, the old machinery had to be sold separate. It was sold at public auction where there were many people and there was competition shown on the sale. The value before the commissioner was of an entire equipment of a business. The' detached machinery would of necessity be so much reduced in value as to call for a very,large loss. The surrogate has found the sale to have been fair and under the proof that there was no evidence that it was of greater value than was paid for it. There is nothing upon which an appellate court can say the finding is erroneous. Second-hand machinery which has been through a fire, and is only made useful by additions which could not be sold with it, is of not much use except in the same business and to those who own the new part which gives any value to it. The money paid Mrs. Legett, J. L. Mills and J. W. Colwell was properly allowed; they were paid in the lifetime of testatrix at her request by the firm. The rent of the machinery after the land was taken was properly disallowed. It was, probably, property of the city of New York. The heirs seem to have got an award for it and then claimed the machinery. It was only by an agree-. ment with the city that the estate got the machinery and that was just before the sale of it by the executors. The rents of the coal yard were properly allowed. This yard was rented to the bleaching firm, and at the request of deceased the rents from it were not collected by the firm. She should pay the rents not collected at her request. The mortgage given by Thomas Bolton the elder to Birchel, and by him assigned to Ann Bolton, was given merely to protect the title to the land as against creditors of Thomas Bolton. The deficiency on the foreclosure by Ann Bolton against her husband’s executors is not a debt which the executors of Ann Bolton either could or were bound to attempt to collect.

The executors of Ann Bolton cannot be made chargeable with the legacy of E. Brooks to Thomas Bolton, senior. The Bolton estate had been settled, and the items had no proper place in this estate. The account between the firm who acted as agents of Mrs. Bolton in her lifetime was good evidence as against the deceased when examined and settled by her, without other voucher.

The decree of the surrogate should, therefore, be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Eliza Bird et al., Resp’ts, v. Samuel Pickford et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed August, 1893.)

    Will—Suspension of power of alienation.
    By testator’s will he gave the residue of his estate to his executors in trust to divide the income equally between his daughter-in-law and two cousins during their natural lives, and provided that if said cousins should die before the daughter-in-law, the corpus of the esta'e should go to the daughter-in-law, her heirs and assigns; but if the daughter-in-law should die first, the corpus was given to such persons as she should designate by will. Held, that the trust was invalid, as there might be an illegal suspension of the power of alienation if the daughter-in-law should die first and leave no will.
    Appeal from judgment in favor of plaintiffs, sustaining the validity of certain portions of the last will of William Baltz, deceased.

      Jehiel T. Hurd, for app’lts; John R. Tresidder, for resp’ts.
   Barnard, P. J.

The residuary clauses contained in the will and codicil of William Baltz, deceased, are as follows:

Thirdly. I give and devise all the rest of my estate, real and personal, to my executors hereinafter named in trust, nevertheless, to invest and keep the same invested, and divide the net income arising therefrom equally among my said daughter-in-law, Ophelia Baltz, and my said cousins, Rachel and Addie Yan Gilder, the survivors or survivor of them,'during their natural lives.
Fourthly. If my said cousins, Rachel and Addie Yan Gilder, should die before my said daughter-in-law Ophelia Baltz, then and in that event I give and devise the corpus of said trust estate to the said Ophelia, her heirs and assigns forever. But if my said daughter-in-law, Ophelia Baltz. should died before my said cousins, Rachel and Addie Yan Gilder, then and in that •event I give and devise the corpus of said trust estate to such person or persons as my daughter-in-law Qphelia Baltz, may designate in her last will and testament. ”

The three persons named in these clauses all survived the testator :and the question presented is whether there is an illegal suspension of the power of alienation created by these clauses.

It seems clear that the absolute power of alienation may be •suspended for more than two lives in being at the death of testator. If Ophelia Baltz die first and leave no will, the estate would still continue in trust during the lives of Rachel 0. Yan Gilder and her sister Addie E. Yan Gilder. The only escape from this •conclusion is to hold that if Ophelia die first and without exercising the power of appointment, that the interest of the Yan Gilder sisters ceases and the estate at once, upon Ophelia’s death, goes to the testator’s heirs-at-law as in case of intestacy. This would defeat the purpose of the will, which was to give the income of the tr.ust fund to the three legatees, or survivor of them, during their natural lives. It was not within the purpose of the testator to divide the estate when Ophelia died, whether she made a will disposing of the body of the trust fund or not. A valid trust must be so drawn that in every possible contingency they will absolutely terminate within the prescribed period of two lives. Schettler v. Smith, 41 N. Y., 328; Haynes v. Sherman, 117 id., 433; 27 St. Rep., 254.

If the scheme of the will in question is carried out, there may be an illegal suspension if Ophelia die first and leave a will. The income would go to the Yan Gilder sisters and to the survivor during their lives, and it would be only after the death of the last of the three lives the property could be divided. The trustees would hold the fund until the last of the three lives had passed away.

The judgment should be reversed and judgment ordered that the clauses in question create an illegal suspension, and that the fund go to the next of kin and heirs-at-law as in cases of intestacy.

Dykman and Pratt, JJ., concur.


text:
    Israel Susman, Resp’t, v. Grace N. Whyard, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed September 11, 1893.)

    Bill op sale—Mortgage.
    Defendant’s husband executed and delivered to plaintiff a paper in the form of a bill of sale in consideration of $400, which provided that $2.50 a week was to be paid for the use of the property, which as left in the possession of the vendor, and that on payment of the $400 the property would be resold to him. Defendant claims under a sheriff’s sale on execution against her husband. In an action to replevy the goods the lawyer who drew the bill of sale testified that it was intended as a mortgage, but plaintiff testified that it was absolute and the consideration fully paid, and there was evidence that there was no intention to defraud creditors, lleld, that a finding in favor of plaintiff would not be disturbed.
    (Dykman, J., dissents.)
    Appeal-from judgment in favor of plaintiff, entered upon verdict ip action of replevin.
    The property claimed by plaintiff was included in a bill of sale to him, executed by the husband of defendant,' which provided that upon repayment of the sum of $400 the property should be resold to him, and also that said property should remain in his possession, he agreeing to pay the sum of $2.50 per week for the use of said mentioned property.

      A. S. Tompkins, for app’lt; W. H. H. Ely, for resp’t.
   Barnard, P. J.

The defendant is the wife of Wm. W. Whyard. He executed to the plaintiff a paper in form of a bill of sale on the 28th of October, 1890. The plaintiff claims title to the property conveyed by it to him. The property was left in the possession of the vendor and by the bill of sale the sum of $2.50 a week was to be paid for the “ use of the said mentioned property." The defendant claims title under a sheriff’s sale thereof under execution against Wm. W. Whyard. The only question litigated on the trial was whether this bill of sale was a mortgage or a bill of sale. The lawyer who drew it gives evidence tending to show that the paper was a mortgage. That the loan was either $250 or $400, and that the $2.50 per week was possibly usurious. The plaintiff gave evidence tending to show that the bill of sale was absolute. That the consideration was $400, and was all paid and that the rent reserved for the use of the property was what it purports to be in the bill of sale. The jury found for the plaintiff. There is no reason to reverse this verdict on appeal. The attorney who drew the paper apparently drew a bill of sale for a mortgage, under his testimony, and his evidence was probably weakened by .the fact that an unrecorded personal mortgage was of no use as a security, which fact was discussed and a bill of sale given instead. Assuming the bill of sale and the payment of the consideration, the possession of the property in the vendor subsequent was fully explained and shown to have been in good faith and without any intent on the part of either party to defraud the creditors of the vendor. The charge of the county judge was ■eminently fair. The jury were told that if the bill of sale was, in reality, given for a loan, it was a mortgage and void as against the creditors of the vendor. 'That if the bill of sale was real and was not made in good faith, then it was void. The jury has found that the bill of sale was absolute, and that the property was left in the hands of the vendor under a covenant for rent for the use of it, and that the paper was made in good faith and without any intent to defraud creditors.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Dykman, J., dissents.


author: Cullen, J.

text:
    Thomas J. McCahill, Resp’t v. Annie L. McCahill, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed September 11, 1893.)

    Trust—Husband and wife.
    Plaintiff purchased a piece of real estate, hut, being an invalid, took the title in the name of his wife and had the deed recorded, and after-wards gave it to her, telling her to keep it, and if anything happened to him, to take care of it for herself and children, and that as long as he lived he would pay the taxes and insurance. Disagreements having afterwards arisen, the wife left her home, and the husband brought action to have it adjudged that she held the property in trust for plaintiff and to restrain her from disposing of it. Held, that the action could not be maintained; that there was no declaration of trust, but the transaction was the ordinary one of a gift from husband to wife.
    Appeal from judgment of special term, adjudging that defendant holds the property which was deeded to her absolutely in trust for the plaintiff and children.
    Action to declare a trust in.favor of plaintiff and his two children with respect to certain lands and premises at Larchmont, in the county of Westchester, to which defendant holds the legal title, and for a perpetual injunction to restrain defendant from possessing, enjoying or improving said lands.

      Martin J. Keogh, for app’lt; H. T. Dykman, for resp’t.
   Cullen, J.

Though it may seem inequitable that the defendant, having now separated from her husband and children, should retain the fruits of his generosity, we do not see how this judgment can be sustained either on the facts or the law. >

The premises, the subject of this actitin, were paid for by the plaintiff, who took the deed therefor in the name of his wife, the defendant. The deed is absolute in terms. The plaintiff is a lawyer. It was he who negotiated the purchase and by his direction the deed was drawn. He testifies that the wife said to him (he being in poor health at the time) that it would be a good thing if anything happened to him for her and the children to have a home, and that the title should better be taken in her name. He assented. Without her knowledge he obtained the deed and recorded it. Afterwards he gave the deed to his wife, saying, “ You keep that. If anything happens to me you are to take care of it for yourself and the children, and as long as I live I will pay the taxes and insurance, so there will be no expenses.”

The parties continued to occupy the premises as their residence for years, until differences arising between them, the defendant left the home, and resided apart from her husband. The wife then offered the property for sale, and the husband brought this action. We are inclined to the belief that this conversation did not amount to a declaration of trust in favor of any person, but that the transaction was the ordinary one of a gift by the husband to the wife, and that the reference to the home for the defendant and the children was only a statement of the motives dictating' the gift. Certainly, as far as. the husband is concerned, there was no agreement to hold it in any trust for his benefit. The children are not parties to this action, and their right cannot be adjudicated here. This action must, therefore, fail.

As a matter of law, also, we think the suit cannot succeed. The provision of the Revised Statutes as to trusts, page 728, § 51, prevents any trust being raised in the plaintiff’s favor from the fact that he paid the consideration for the conveyance. The statute of frauds, 2 R. S., 134, § 6, requires the declaration of any trust to be in writing. The transaction seems barren of any of those collateral, circumstances by which courts of equity are enabled to take cases out of the statute. This case is clearly to be distinguished from those cited by the respondent’s counsel in that here the deed was taken in the name of the defendant by the plaintiff’s consent, and equally by such consent the deed was made absolute in form.

The judgment appealed from should be reversed, and a new trial ordered, costs to abide event

Pratt, J., concurs.


text:
    Annie L. McCahill, Resp’t, v Thomas J. McCahill, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed September 11, 1893.)

    1. Divorce—Cruel treatment.
    In an action for divorce on the ground of cruel treatment the only evidence tending to support the action was as to an alleged assault upon plaintiff by the 'son of the parties by direction of defendant. This was denied by defendant and the son, who testified that plaintiff had thrown a basin of water on defendant, and fell while the son was taking the basin from her. Plaintiff admitted throwing the water. Defendant was a cripple, and physically incapable of much violence. Held, that the occurrence was insufficient to justify a decree of separation.
    2. Same—Alimony.
    In such a case, where the defendant had already made a gift of their house to plaintiff, he should not be compelled to make provision for a separate support for her, although the parties may not live together hereafter.
    Appeal from judgment granting to plaintiff a separation from her husband, the defendant, and directing that he pay for her support and maintenance the sum of $100 a month, and if the children choose to reside with her, increasing the alimony to $300 a month during the minority of the children.

      H. T. Dykman, for app’lt; Martin J. Keogh, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the special term granting the plaintiff a separation and alimony. The appeal involves only questions of fact. We are conscious that we should reverse thé determination of such questions by the trial court with much hesitation and only where it seems to us that the clear weight of testimony is against the findings made.

The parties were married in 1876 and lived together for over fifteen years. The complaint alleged various specific occasions on which the defendant assaulted her and also periods during which his violence was habitual. It further alleged that the defendant failed to properly provide for his family and that at times he called the plaintiff names. The learned trial judge found that the defendant properly supported his family and found but one occurrence of violence on the part of the defendant, upon which occurrence the decree was granted. The case depends principally on the testimony of the parties. The occurrence upon which the decision below is based is an alleged assault by the son of the parties on the plaintiff, his mother, by direction of the defendant. The defendant and his son both deny the assault. The learned trial judge found corroboration of the plaintiff’s stoiy in the fact that the servants saw some blood upon the plaintiff’s face. That there was an altercation at this time is conceded. The defendant and his son say that the plaintiff threw a basin of water on the defendant, and that while the son was trying to take the basin from the mother she fell. The plaintiff, while she says that the son struck her, admits that she may have thrown the basin of water. We think this transaction is by no means sufficiently clear to justify a separation. The defendant has been for years a cripple, suffering from locomotor ataxia and physically incapable of,much violence. The court found against the plaintiff on all the other allegations of maltreatment. She could not, therefore, have impressed the trial judge very strongly as to her accuracy of statement. At the most, this affair seems to have been a quarrel in which the wife was fairly a party combatant. The defendant himself certainly used no violence, and both he and his son deny that he directed the son to do so. It seems to us unfair on this occurrence to stamp the defendant guilty of cruel or inhuman conduct

Though the parties may not live together hereafter, we do not think this a proper case to compel the defendant to make provision for the separate support of the plaintiff. She has received from her husband as a gift the home in which they have heretofore lived. The decree made in another action declaring such gift a trust for the husband and children we have reversed. If the plaintiff will continue to live apart from her husband and children voluntarily and without sufficient cause, we think this gift is sufficient provision for her.

Judgment appealed from should be reversed and new trial ordered, costs to abide event.

Pratt, J., concurs.


author: Dwight, P. J.

text:
    Thomas O. French, Resp’t, v. The Western New York & Pennsylvania Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Railroad—Negligence—Fences.
    Plaintiff's horse, which was pastured in the farm of one Davis, went therefrom upon defendant’s lands at a point where there was no fence, and fell through a bridge over the ditch from which the planks had been taken by defendant's employes for the purpose of making repairs. Held, that defendant was liable for the injury, as it resulted from its negligence in not performing its statutory duty of fencing its track, and the obligation todo so was'due to the owner of the field and to the persons deriving from him tbe right to use the same for the purpose of pasture.

      (Graham v. D. & H. 0. Oo., 46 Hun, 886; 13 St. Rep., 390, followed.)
    Appeal by the defendant from a judgment of the county court of Cattaraugus county, affirming the judgment of a justice’s ■court.

      Carr, Rumsey & Hastings, for app'lt; M. B. Jewell, for resp’t.
   Dwight, P. J.

The action was to recover for injuries to the plaintiff’s horse, caused by his falling through a bridge over the ditch by the side of the defendant's road adjacent to the farm of one Davis. The horse was pastured on the Davis farm and went onto the railroad land at a point where the fence was wanting. The railroad hands had taken the planks off from the bridge for the purpose of repairs, and the horse coming upon it fell between the stringers. The case is, in principle, precisely like that of Graham v. President D. & H. C. Co., 46 Hun, 386; 12 St. Rep., 390, in which our brothers in the third department sustained a judgment in favor of a plaintiff who lost his horse by a fall over the edge of a deep cut in which the defendant’s track was laid through the plaintiff’s field and which was unprotected by a fence. In that case it was held, in an opinion by Laudon, J., that the defendant was guilty of negligence in not performing its statutory duty to fence its track, citing Corwin v. N. Y. & E. R. R. Co., 13 N. Y., 53, and was liable to any party to whom that obligation was directly and individually due for any loss or injury resulting from its neglect, citing Thomas v. Utica & B. R. R. R., 97 N. Y., 245 ; Leggett v. Rome, W. &. O. R. R. Co., 41 Hun, 80 ; 2 St. Rep., 312 ; and Jetter v. |N. Y & H. R. R. Co., 2 Keyes, 154, 162. In this case the obligation was due to the owner of the Davis farm and to persons deriving from him the right to use his fields for, the purpose of pasture. The opinion to which we refer also makes clear the distinction between that case and, equally, between this case and the case of Knight v. The N. Y., L. E. & W. R. R. Co., 99 N. Y., 25, upon which the defendant here mainly relies. The distinction is that in the case of Knight there was no neglect on the part of the defendant of any duty which it owed to the plaintiff. The colt, which was killed by falling through a bridge on the track, was astray on the highway aud gained access to the defendant’s lands through the lands of another proprietor.

The doctrine of that case was, therefore, not in any manner inconsistent with the judgment in this case. In neither case, it is true, was the damage inflicted in the manner described by the statute, viz., by the servants or engines of the defendant, but in this case it resulted from the neglect of a statutory obligation due to the plaintiff, while in the other case no such obligation existed.

We are disposed to concur in the reasoning and conclusion in the case of Graham, supra, and, consequently, to affirm the judgment here appealed from.

Judgment of the county court of Cattaraugus county appealed from affirmed, with costs.

Lewis and Haight, JJ., concur.


text:
    Anna Brayton, Adm’rx, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Service—Railroad—Managing agent.
    The division superintendent of a large and important division of a railroad, remote from the general offices of the company, is a managing agent of the company within the meaning of the statute, and service on him is sufficient.

      Appeal by the defendant from an order of the Erie special term, denying its motion to set aside the service of the summons herein.

      A. D. Scott, for app’lt; Wm. H. Clark, for resp’t.
   Dwight, P. J.

The service of a summons in an action brought in Erie county for the death of the plaintiff’s intestate was made upon the division superintendent of the defendant at Buffalo, his-division having as termini the cities of Buffalo, Jamestown and Hornellsville. The objection made to the service is that the person served was not a “managing agent” of the defendant within the meaning of the statute. Code of Civ. Pro., § 431, subd. 3. We think the objection is not well taken.

It will be observed that the requirement is not that the service-shall be made upon the managing agent, but only upon a mam aging agent of the defendant. That the division superintendent, of a large and important division of the company’s road, remote from the general offices of the company, is such we can have no-doubt.

rIn the case of Palmer v. Penn. Co., 35 Hun, 370; aff’d 99 N. Y., 679, it was held that “the statute is satisfied if he (the person served) be a managing agent to any extent.” In Ruland v. Canfield Pub. Co., 18 Civ. Pro., 282, a managing agent was defined to be “a person having independent, discretionary control in the locality where his duties are performed.” In Barrett v. Am. Tel. Company, 31 St. Rep., 465, it was held that “if he (theperson served) sustain sufficient character and rank to render it reasonably certain that the corporation will be apprised of the service, the requirement of the statute is answered.”

Under the application of either of these tests, it is plain, we-think, that the statute was satisfied in the service in question ; and in the case of Roch., H. & L. R. R. Co. v. The N. Y., L. E. & W. R. R. Co., 15 St. Rep., 686, we held that a division superintendent was for the purposes of that action a managing agent within the meaning of the statute, and that service upon him was sufficient.

The motion to set aside the service in this case must be denied, and the order appealed from affirmed.

Order appealed from affirmed, with costs.

Lewis and Haight, JJ., concur.


author: Bradley, J.

text:
    Charles Jones, Pl’ff, v. Orin S. Bacon, Surviving Executor of James McKechnie, Deceased, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Pkomise—Statute op Fbauds.
    Defendant's testator, who was a member of banking firm accustomed to-discount- notes of one K., indorsed by plaintiff, on a refusal by the latter to further indorse, requested him to do so, promising that he would never have to pay, and that the testator would take care of them. Induced by -this plaintiff indorsed said note and renewals thereof,_ and subsequently executed a mortgage to secure the same, upon a promise by testator that he should be kept'"harmless. The mortgage was subsequently foreclosed. In an action upon the promise of indemnity, Held, that the promise was an original undertaking and not within the statute of frauds, and had the support of a consideration, and was valid.
    3. Same—Release op Principal Debtor.
    The maker of the notes was released by plaintiff from all liability to him. Held,, that as this deprived defendant of his remedy against the maker upon reimbursement of plaintiff, it was an effectual defense to the action.
    Motion by the plaintiff for a new trial on exceptions taken at Ontario circuit, and ordered heard at general term in first instance.

      William H. Smith, for pl’ff; Henry M. Field and Frank Rice, for def't.
   Bradley, J.

For some time prior to April, 1885, the notes of Sherman Kingsbury, indorsed by the plaintiff, had been discounted by the banking firm of McKeclmie & Co., at Canandaigua, FT. Y., composed of James McKechnie, Alfred Denbow and Jessie McKechnie. Kingsbury made his note of date April 1, 1885, for $15,000, payable to the order of plaintiff, sixty days after its date, at the banking house of McKechnie & Co., and, as the evidence tended to prove, the plaintiff upon the request of Kingsbury refused to indorse the note, and thereupon the defendant’s testator said to the plaintiff that he wanted him to indorse the note and any renewals of it or notes that might be necessary in Kingsbury’s business, that if he would do it he, the plaintiff, would never have them to pay or any trouble with them, and that he, McKechnie, would take care of such note or notes. The plaintiff then indorsed the note, which was taken and discounted by that banking firm, and the proceeds of the note placed to the credit of Kingsbury.

In March, 1886, the plaintiff indorsed another note for $8,000 made by Kingsbury, payable at the same place, and it was there taken and discounted for the benefit of Kingsbury and the proceeds used in his business.

This note, by renewals and some additions, was, on June 27, 1888, increased to $12,000, and the $15,000 note before mentioned was, by renewals and some additions, increased to $20,000 on July 12, 1888. Those and the intermediate notes were in like manner made by Kingsbury, indorsed by the plaintiff, and payable at the same place. And those two notes were in like manner renewed up to January, 1889, when the plaintiff, at the request of the defendant’s testator and upon the promise that he should be kept harmless, gave a mortgage upon his real estate to secure the $12,000 and $20,000 notes. The mortgage was afterwards foreclosed and the premises covered by it sold pursuant to decree to that effect. And thereafter this action was brought, founded upon the alleged promise of the defendant’s testator to thus indemnify the plaintiff against the consequences of the liability he assumed by the indorsement of them.

The question arises upon the exception to the ruling at the circuit by which the plaintiff was non-suited, and in support of that result it is contended that the promise of the defendant’s testator was within the provision of the statute that “Every special promise to answer for the debt, default or miscarriage of another person,” unless in writing and subscribed by the party charged therewith, shall be void.

The promise was in terms an undertaking of the promisor to indemnify the plaintiff and save him harmless from liability upon his indorsement; and it must here be assumed that his indorsement was made by reason of and pursuant to such promise.

The debt represented by the notes was the debt of Kings-bury, the maker of them, and until his default in payment the plaintiff could not be charged upon his indorsement. The promise was not in waiting. It was not made to the creditors,, nor was it one in which they were concerned. It was made to, and in behalf of the plaintiff alone, and was available to him. only.

Whether in such a case the promise is within the statute of frauds seems to have been the subject of adverse adjudications in the courts of this country and England.

The leading case in this state on the subject as to what promises-to pay the debt of another are and are not within the statute is Leonard v. Vredenburgh, 8 Johns., 29. There Chief Justice Kent, by way of illustration, divided cases into three classes.

1. “ Cases in which the guaranty or promise is collateral te the principal contract, but is made at the same time, and becomes an essential ground of the credit given to the principal debtor.

2. “ Cases in which the collateral undertaking is subsequent to-the creation of the debt, and was not the inducement to it, though the subsisting liablity is the ground of the promise without any distinct and unconnected inducement.

3. “ When the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving-between the newly contracting parties.” The first two classes were held to be within the statute, the third one not so.

In Mallory v. Gillett, 21 N. Y., 412, the promise was made by the defendant to the creditor, and was held to be within the statute of frauds. The subject was there very fully considered by Chief Judge Comstock, and while he in the main approved the views of the court in Leonard v. Vredenburgh, he, referring to such third, class, gave Chief Justice Savage the credit of greater precision in Farley v. Cleveland, 4 Cow., 437, in the statement of the proposition that, “In all these cases (referring to that class), founded upon a new and original consideration of benefit to the defendant, or harm to the plaintiff, moving to the paRy making the promise, either from the plaintiff or the original debtor, the subsisting liability of the original debtor is no objection to the recovery.”

He therefore held it necessary to the completeness of the definition of cases coming within the third class before mentioned that, the new or original consideration move to the promisor. Amongst the classes of cases there stated by him as not within the statute, was: “ 1. Where there was no original debt to which the auxiliary promise could be collateral; for example, where the promisee was a mere guarantor for the third person to some one else, and the promisor agrees to indemnify him, or where his demand was founded in a pure tort.”

The promise in question in the present case seems to come within that proposition. It also* has the support of Chapin v. Merrill, 4 Wend., 657, where the promise of the defendant to> indemnify and save harmless the plaintiff from the consequences of his agreement to pay a mercantile firm for goods delivered to another, who was the purchaser, was held to be an original and not a collateral undertaking.

The views so expressed by the Chief Judge in Mallory v. Gillett had the approval of the court in Sanders v. Gillespie, 59 N. Y., 250-252, and in Tighe v. Morrison, 116 id., 263; 26 St. Rep., 178. And our attention is called to no case in the court of appeals in which the doctrine of Chapin v. Merrill is disapproved.

But Kingsley v. Balcome, 4 Barb., 131, and Baker v. Dillman, 21 How., 444; 12 Abb., 313, are not in harmony with it. The latter of those two cases adopts and follows the former, and in both Green v. Cresswell, 10 Adol. & Ellis, 453, is cited as authority.

The latter case, upon the facts and the principle applied to them, tended to support the conclusion reached in those two cases. The doctrine of that case was afterwards disapproved, audit was overruled in Reader v. Kingham, 13 C. B., N. S., 344, and in Wildes v. Dudlow, L. R., 19 Eq. Cas., 198.

In Carville v. Crane, 5 Hill, 483, 486, the remark was made that a liberal construction of the statute might be made to embrace the promise in Chapin v. Merrill, but the two cases were plainly distinguishable and there so treated. The promise of the defendant in the Carville case was made to the creditor and was clearly within the statute.

In Barry v. Ransom, 12 N. Y., 462, the plaintiff at the request of the defendant’s intestate, and upon the promise of indemnity, joined with the latter and others as surety in the bond of one Leyden, the principal. The court held that the promise was not within the statute of frauds, and Judge Denio expressed the opinion, that where a person is about to become bound .by writing to answer for the default of a third party, and procures another to be bound with him in the same obligation by promising to indemnify him, that this is an original promise and not within this branch of the statute of frauds.”

In such case the consideration moving to the promisor may be deemed beneficial to him. But no such distinction was observed in Green v. Cresswell, in the criticism and disapproval of Thomas v. Cook, 8 Barn. & Cress., 728, where such was the relation of the defendant. This latter case was afterwards restored as authority without reference to such distinguishing feature in the promise arising out of the relation of the promisor to the subject of it, so far as appears in Wildes v. Dudlow, supra.

In Ohio such relation of the indemnitor is held essential to save the promise from the statute of frauds. Oldham v. Broom, 28 Ohio St., 41; Ferrell v. Maxwell, id., 383 ; 22 Am., 393. Held otherwise in some other states. Vogel v. Melms, 31 Wis., 306; 11 Am., 608 ; Anderson v. Spence, 72 Ind., 315 ; 37 Am., 162.

The case of Chapin v. Merrill was cited with approval in both opinions in Mallory v. Gillett; and the chief judge there said of it that “ the promise was not within the statute, because it was not collateral to any debt or liability of a third person to the promisee. The third person proposed to contract a debt with fourth parties and the plaintiff agreed to guarantee the debt, the defendant at the same time agreeing to indemnify him for so doing. The plaintiff might have invoked the statute if his guaranty had not been in writing. But the-defendant was his indemnitor merely. It was a contingent liability, of necessity original, because there was nothing to which it could be collateral. There was no debt of the third person to the plaintiff.”

This is a very clear statement of the nature and effect of the promise in the Chapin case and the reason why it was an original undertaking of the defendant there, which applies with equal force to the question arising upon the promise in the present case. The chief judge also criticised Kingsley v. Balcome, and the definition there given of a new original consideration, as too narrow. And it may be added that such definition given in the Kingsley case was applicable to a promise by one person to pay the debt of another.

In the present case the promise was not in the nature of a guaranty of the payment or collection of the notes, nor was it a promise which, if in writing, would have been available to the creditor. It was a promise to indemnify the plaintiff against the consequences of the liability which might arise out of the relation of indorser he assumed to the notes referred to.

The case of Chapin v. Merrill still stands as authority in this state. Within the doctrine of that case and the principles enunciated in Mallory v. Qilleit, and in some other cases to which reference has been made, the promise in question was an original undertaking, and the consideration was one of harm to' the plaintiff moving between the parties to it. And according to the weight of judicial authority the, promise was not collateral in the sense applicable in that relation to the term because it Was not made in behalf of the creditors, nor did its import or purpose permit an appropiation of it by them as security for the payment of the debt. Johnson v. Gilbert, 4 Hill, 178; Tighe v. Morrison, 116 N. Y., 263; 26 St. Rep., 178; Reader v. Kingham, 13 C. B., N. S., 344; Aldrich v. Ames, 9 Gray, 76.

In White v. Rintoul, 108 N. Y., 222; 13 St. Rep., 495, the promise was to the creditor to pay a subsisting debt and was clearly within the statute. The reasoning of Judge Finch had relation to a promise of a third person to pay the debt of another. In that case, as there held by the judge, the consideration must not only move to the promisor, but must he beneficial to him, to relieve it from the operation of the statute, and thereby he in practical effect, as between him and the promisee, become the principal debtor. It was in that view he criticised the definition as given in Leonard v. Vredenburgh of the class of cases not within the statute and approved the modification of it in Mallory v. Gillett, to make it more specific. The views of the court were similar in Brown v. Weber, 38 N. Y., 187, where Judge Grover in referring to the statute said: “The language shows that the test to be applied to every case is whether the party sought to be charged is the principal debtor, primarily liable, or whether he is only liable in case of the default of a third person; in other words, whether he is the debtor or whether his relation to the creditor is that of surety to him for the performance by some other person of the "obligation of the latter to the creditor.” There it may be observed the test was applied to the promise of a third person to pay an existing debt.

The same may be said of Ackley v. Parmenter, 98 N. Y., 425. There the promise of the defendant was made to the creditor to pay the debt of another to him, and it was held that the undertaking was collateral and that '“ to take the case out of the statute there must be a consideration moving to- the promis- or either from the creditor or the debtor, it must be beneficial to the promisor ” to impart to it the character of an original undertaking.

In the case at bar the promise of the defendant’s testator was not to the creditor or principal debtor. He was by his undertaking placed in no relation to either. It was not- therefore collateral to the contract between them representing the existing debt, nor to any debt of a third person to the plaintiff. The promise was that of mere indemnity to the plaintiff alone, founded upon a new •and independent consideration of harm to him moving between him and the promisor and to the latter .

These views lead to the conclusion that the promise of the defendant’s testator was an original undertaking and not within the statute of frauds, and that it had the support of a consideration, and was therefore valid.

The further defense alleged arises from the fact that the plain- / tiff, by an instrument under seal to that effect, released and discharged Kingsbury, the maker of the notes, from liability to him, which otherwise would exist by reason of his indorsement of the notes. The relation of indemnitor to the plaintiff assumed by the defendant’s testator was such that he would become liable to the latter for an amount equal to that which he, being required to pay as indorser, should pay upon the notes.

This gave to the indemnitor an interest to protect by paying the notes. He therefore had the right on the default of the maker to pay them, and on the plaintiff becoming charged with liability as indorser, to pay the notes and become subrogated to the rights of the creditors as against the maker. This McKechnie did not do, and therefore acquired no such right. And so far as payment was made by the plaintiff, or from the proceeds of his property, to the creditors upon the notes, the right of subrogation was his and not available to his indemnitor, and the only right the latter can in that respect take on payment to the plaintiff of the -damages sustained by him by reason of the breach of the contract of indemnity must come through the plaintiff and be founded upon his relation of indorser.

The right of- subrogation is not necessarily dependent upon the conventional relation of principal and surety.and in behalf of the latter, but when a person is compelled to pay a claim or has legitimately an interest to protect in doing so, he is entitled to his remedy against the person primarily liable to pay it. In other words, when a person is liable to be charged with that which primarily ought to be borne by another, the former is entitled to the equity of a surety, and on payment to the remedies of the creditor against the person so primarily liable. Wilkes v. Harper, 2 Barb. Ch., 338 ; Mathew v. Aikin, 1 N. Y., 595; Cole v. Malcolm,66 id., 363.

That principle is applicable to the present case. Although the indorsement of the notes by the plaintiff was not made at the request of Kingsbury, the maker, his relation upon the paper for the purposes of remedy on payment of it by him was that of surety to the maker. Farmers' Bank v. Blair, 44 Barb., 641; Newcomb v. Raynor, 21 Wend., 108.

The liability with which the plaintiff as indorser was charged to the holders of the notes was the consequence of the default of the maker. A recovery by him against the defendant upon the undertaking of indemnity of the amount he has been compelled to pay on account of his indorsement would not .entitle the defendant on payment of such recovery to subrogation in the place of the creditors who held the notes against Kingsbury the maker. That was the right of the plaintiff if he had chosen to take it. The equity of the defendant in that respect on reimbursement of the plaintiff would be only to take the remedy which the latter-may have had against the maker -who was the primary debtor.

The equity, of the defendant and the consequent remedy the plaintiff has defeated by his release of Kingsbury»

While the defendant could not require the plaintiff to proceed against the maker of the notes, and as between the parties to this action;the plaintiff may, for the purpose of his remedy, have treated the defendant as primarily liable to him, that clid not deny to the defendant the right to take through the plaintiff on reimbursement of him any remedy he had against Kingsbury arising out of his relation as indorser of the notes.

The voluntary extinguishment of that right by the plaintiff is an effectual defense to his action.

It follows that the motion for a new trial should be denied, and that the defendant should have judgment.

Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant upon the verdict.

Lewis and Haight, JJ., concur.


text:
    Frank Saumby, by Guardian, Resp’t, v. The City of Rochester, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Municipal corporations—Negligence.
    Plaintiff just at dusk in the evening, and while his attention was attracted by a crowd of people, stepped into a manhole of a sewer between the sidewalk and curb, which had' been left open, and sustained personal injuries. Held, that a finding of negligence on the part of the city, and of freedom from negligence on the part of plaintiff, was warranted.
    Appeal from judgment of Monroe county court, entered on a verdict in favor of the plaintiff, and from an order denying defendant’s motion for a new trial.

      Abraham Benedict, for app’lt; P. Chamberlain, Jr., for resp't.
   Bradley, J.

The plaintiff sustained a personal injury by stepping into a manhole of a lateral sewer on the east side of Chatham street and near the corner of that and Holland street in the city of Rochester. He charges that the injury was occasioned by the negligence of the defendant, in that the hole was permitted to remain uncovered. This injury occurred just at dusk in the evening of August 5, 1890, when the attention of the plaintiff was attracted by a crowd of people in the street; he stepped from the sidewalk into the manhole which was between the sidewalk and the curb. The conclusion was -warranted from the evidence that the manhole was left open that evening; that the defendant was chargeable with negligence in that respect; and that the plaintiff’s injury was the consequence of that negligence and was caused without any negligence on his part.

The question of the sufficiency of the notice of claim is raised by the defendant’s counsel.

Upon that subject it appears that the plaintiff’s claim was presented to the .common council upwards of forty days before the action was commenced; and that in due time notice of intention to commence it, etc., was filed with the city attorney. The notice of claim in its statement, presentation and service was a substantial compliance with the statute. Laws 1890, chapter 561, § 18.

The evidence presented questions of fact for the consideration of the jury, and was sufficient to fairly permit inferences in support of all that was essential to the recovery of the plaintiff.

Hone of the exceptions to the refusal to charge as requested, were well taken. The court had fully charged the jury upon the-matters for their consideration, and submitted to them the question of fact arising upon the evidence. There was no error in any of the rulings on the trial.

The judgment and order should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concur.


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    Lovina C. Collins, Resp’t, v. Thomas Robinson, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Evidence—Privileged communications—Attorneys.
    Where an attorney receives a communication from one party with a request that he impart it to another, and he does so and the latter seeks to prove it, such communication cannot be treated as a privileged one, and testimony thereof excluded on that ground.
    Appeal from judgment entered upon verdict of Wayne circuit in favor of the plaintiff, and from order denying motion made on the minutes for a new trial.

      Thomas Robinson, for app’lt; J. W. Hoag, for resp’t.
   Bradley, J.

The action was brought to recover a sum alleged to remain due from the defendant to the plain tiff of the purchase money of a farm and span of horses sold to him by her.

The plaintiff recovered. Prior to and in 1874 the plantiff had title to the farm. In that year the buildings upon it were destroyed by fire, and the defendant assisted the plaintiff in collecting the insurance money represented by a policy upon them. There were then two mortgages upon the premises, the prior one, of $2,500, held by Fanny La Due and the other, of $1,500, held by Josephus Collins. One thousand dollars of the money recovered upon the policy of insurance were paid upon the La Duo mortgage debt. The defendant, who was an attorney at law, foreclosed the Collins mortgage, bid in the property and took the title. lie then gave to Josephus Collins his bond secured by mortgage upon the farm for the amount due him from the proceeds of the sale. The plaintiff remained in possession of the premises, and the defendant advanced $238 to build a house upon them, which house was occupied by the plaintiff until in April, 1878, when she left the farm.

In 1876 the defendant desiring to make a loan, secured by mortgage on the farm, conveyed it to the plaintiff, and she made her bond secured by her mortgage on the premises to the New York Mutual Life Insurance Company, upon which was obtained a"loan of $2,200, the proceeds of which loan were received by the defendant.

About the same time the plaintiff reconveyed the farm to the defendant. The plaintiff alleges, and such is the effect of the evidence on her part, that the defendant then agreed, in consideration of the conveyance, ‘ to pay her six hundred dollars ($600) when he sold the farm. This the defendant, by his answer and evidence, denied.

He alleged, and his evidence was to the effect, that by the arrangement between the parties he was to account to the plaintiff for what he received for the farm, and to charge her with the amount he had advanced, paid and became liable to pay on account of the premises and upon the incumbrances upon it, and her expenses in that behalf, and to pay to her what, if anything, remained. The defendant sold the farm in 1881.

After the evidence in chief on the part of the plaintiff had been given, the defendant called as a witness George W. Cowles, who testified that he was an attorney and counselor at law. Thereupon the defendant “ offered to show by this witness that the plaintiff went to the witness in 1888 and requested him to request the defendant to meet the witness and look over their accounts, specifying as to the amount paid upon the Collins mortgage, upon the La Due mortgage, and the amount paid to build the house, and that he, in obedience to such request, did make, such communication to the defendant.”

The plaintiff’s counsel objected to this as a privileged communication. The objection was sustained and defendant excepted. The statute provides that “an attorney or counselor at law shall not be allowed to disclose a communication made by his client to Mm or Ms advice given thereon in the course of his professional employment,” Code Civ. Pro., § 835, unless such provision of the statute is expressly waived upon the trial. Id., § 836.

These statutory provisions are substantially declaratory of the common law. Bank of Utica v. Mersereau, 3 Barb. Ch., 595; Benjamin v. Coventry, 19 Wend., 353.

It may be observed that the evidence so offered was not to prove any conversation between the plaintiff and the witness further than the request to make to the defendant communication upon the subject to which it related. Further than that it would clearly be improper to extend the inquiry into any conversation between the plaintiff and tire, witness which led to such request on her part.

The evidence offered embraced nothing which took place between the plaintiff and the witness beyond what was embraced within the request made by her to be communicated to the defendant, and which for the purpose of the question we must assume was transmitted to him pursuant to such request. If this had been done in the presence of both parties by the plaintiff, or by her request or direction, it would not as between her and the witness be treated as a privileged communication. Whiting v. Barney, 30 N. Y., 330; Britton v. Lorenz, 45 id., 51.

And the same rule would seem applicable to the case where the attorney receives the communication from the party with request and intent on the part of the latter that he impart it to another, and he does so pursuant to the request, and the latter seeks to prove it. Rousseau v. Bleau, 131 N. Y., 177; 42 St. Rep., 871.

In such case, and to that extent, it cannot be treated as confidentially made, to the attorney. The express purpose of it is otherwise. Matter of McCarthy, 28 St. Rep., 342, 344; Ripon v. Davies, 2 Nevile & Man., 310; Griffith v. Davies, 5 Barn. &. Adol., 502; Shore v. Bedford, 5 Man. & Gran., 271.

For the purpose of the question raised by the exception there-is no force in the suggestion that the evidence of the attorney is not permissible to prove the fact upon which the admissibility of the evidence of the communication made to him was dependent. He was a competent witness to give evidence of the purpose for which it was so made as manifested by the direction of the-plaintiff to him.

The evidence thus offered and excluded was pertinent to the issue presented by the pleadings, and to which the conflicting evidence of the parties related.- It cannot, therefore, be said that its exclusion may not have been prejudicial to the defendant. Tho exception was well taken.

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

Lewis and Haight, JJ., concur.


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    William Redner, App’lt, v. Benjamin F. Jewett, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Arrest—Body execution—Code Civ. Pro., § 572.
    Section 572 of the Code of Civil Procedure provides only for superseding or setting aside an order of arrest, and discharging or relieving from imprisonment by virtue of such an order in the cases prescribed; and is not applicable to any motion to vacate or set aside an execution against the person except in the possible case suggested by the last clause thereof, viz.: where the defendant has already been discharged from imprisonment under an order of arrest.
    Appeal by the plaintiff from an order of the Genesee special term of Marchj 1893, relieving the defendant from imprisonment by virtue of an execution against his person issued in this action, “ or by virtue of any other mandate which has been or may be issued ” therein.

      George W. Daggett, for app’lt; Bowen & Washburn, for resp’t.
   Dwight, P. J.

The sole question presented by this appeal is that of the proper meaning and application of § 572 of the Code of Civil Procedure. The language of the section so far as it is material to this inquiry is as follows :

“Except in a case where an order of arrest can be granted only by the court, if the plaintiff unreasonably delays the trial of the action, or neglects to enter judgment therein within ten days after it is in his power to do so, or neglects to issue execution against the person of the defendant within ten days after the return of the execution against the property, and in any event neglects to issue the same within three months after the entry of the judgment, the defendant must, upon his application made upon notice to the plaintiff, be discharged from custody if he has already been taken under the mandate against him in such action; or, if he has not yet been imprisoned therein, be relieved from imprisonment by virtue of such mandate by the court in which the action was commenced, unless reasonable cause is shown why the application should not be granted. A defendant discharged as prescribed in this section shall not be arrested upon an execution issued upon the judgment in the action.”

It is difficult to see how it could ever have been considered that this section of the Code was intended to provide for setting aside, vacating or superseding an execution against the person, or that the term “ mandate ” as there employed intends or includes that process.

The section is found to be a part of article 2, of title 1, of chapter 7 of the Code of Civil Procedure. The chapter is entitled, “ General provisional remedies in an action.” Title 1 is entitled, “ Arrest pending the action and proceedings thereupon.” Article 2 is entitled, “ Granting, executing and vacating or modifying the order of arrest,” and § 572 itself is entitled, “ Supersedeas unless the defendant is charged in execution.” It will be seen that all these titles absolutely exclude execution against the person from the subjects to which they relate. That process is not a “ pi’ovisional remedy,” and is, therefore, not included by the title to the chapter; the entitling of the title and the article in terms includes only orders of arrest, and the title .of the section is equally significant. It is “ Supersedeas unless charged in execution, etc.” But supersedeas of what? Plainly not of execution, because the title indicates that the supersedeas is to be granted only if the party has not been charged in execution. Manifestly it is supersedeas of the order of arrest which is indicated by the title of the section. And the text of the section is equally unmistakable, to the same effect. By its terms the defendant, in case of neglect to enter judgment or to issue execution against the person within the time limited, is to be dis-charged from custody if he has already been taken under the mandate in such action; or, if he has not yet been imprisoned therein, be relieved from imprisonment by virtue of such mandate. Here, most clearly, the mandate mentioned is not the final process of execution against the person, but the mesne process of an ■order of arrest, under which the defendant may have been imprisoned before judgment. And the last clause of the section is •conclusive to the same effect. It provides that in case of the discharge from such imprisonment the defendant shall not he arrested upon an execution issued upon the judgment in the action.

This exposition of the present statute is supported by reference to the provisions of the revised statutes, of which it is in large part a re-enactment. 2 R. S., 556, §§ 36, 37. Those sections read as follows : § 36. “ When any defendant, at the time when judgment shall be rendered against him, in any court of record, shall be in the custody of the sheriff or other officer, either upon the process in the suit in which judgment is rendered, or upon being surrendered in discharge of his bail in such suit, the plaintiff in .such suit shall charge such defendant in execution therein within three months after the last day of term next following that at which such judgment shall have been obtained." "* * §37. “If any plaintiff shall neglect to so charge any defendant in execution as required in the last section, such defendant may be discharged from custody by supersedeas, "to be allowed by any judge of the court in which such judgment shall have been obtained, unless good cause to the contrary be shown; and after being so discharged such defendant shall not be liable to be arrested upon any execution which shall be issued upon such judgment.”

It seems to be entirely clear that the supersedeas mentioned in the title of § 572 of the Code and in the text of § 37 of the Revised Statutes is the same, and is a supersedeas not of an execution against the person, but of an order of arrest. See Lippman v. Petersberger, 18 How. Pr., 270; Smith v. Knapp, 30 N. Y., 590.

We should not have deemed it necessary to enter upon so full a discussion of the question here presented but for the fact that there have been some decisions, mainly at special term, which have treated the section of the Code under consideration as if it prescribed conditions, and a mode, of vacating or setting aside an execution against the person. But we regard any conflict of authority on the question as set at rest by the decision of the court of appeals in the case of Sweet v. Norris, 110 N. Y., 668; 18 St. Rep., 1028, which is the only case, so far as we are aware, in which that court has passed upon the question here presented. That decision affirmed the order of the general term of this court-in the fourth department, 45 Hun, 595, which, in turn, affirmed the order of the Chemung special term, which denied the motion-of the defendant therein to set aside a body execution for the reason that it was not issued within the time limited by § 572 of the code. The motion was denied on the distinct ground that the-section in question had no application to any case in which an-order of arrest had not been issued pending the action. The opinion at special term (per Follett, J.) is reported in 12 Civ. Pro., at page 175. It is the only opinion delivered in either of the courts which passed upon the case, and may be regarded as approved, in respect to the grounds of the decision, by each of the appellate courts by which the order was affirmed.

There can be no doubt, we suppose, but that § 572 of the Code of Civil Procedure provides only for superseding or setting aside an order of arrest, and discharging or relieving from imprisonment by virtue of such an order, in the cases prescribed, and that its provisions are not applicable to any motion to vacate or set aside an execution against the person, except in the possible case suggested by the last clause of the section, viz., where the defendant had already been discharged from imprisonment under an order of arrest.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars-costs.

Lewis and Haight, JJ., concur.


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    Henry Tanner, App’lt, v. The Buffalo Railway Co., Resp’t.

      (Supreme Court, General Term. Fifth Department,

      Filed October 20, 1893.)

    Negligence—Contributory—Charge.
    PI' intiff, intending to leave an electric car, passed through the vestibule and upon the lower step, and stood there without taking hold of the car with either hand until there came a sudden jerk, when he took hold of the hand rod. but was thrown or fell from the car. In an action for his injuries, the court charged “ that if the plaintiff voluntarily and unnecessarily placed himself on the step outside the car before it came to a stop, and while going at the rate of six miles an hour, whereby his injury was made possible, then he cannot recover.” Held, that the effect of the charge was that the conduct described was of itself negligence, and as such it was a correct instruction, the question being left to the jury to say whether the conduct of the plaintiff was within the description given.
    Appeal by the plaintiff from a judgment dismissing his complaint, entered on the verdict oí a jury at the Erie circuit, and from an order denying his motion for a new trial made on the minutes of the court.

      George Wadsworth, for app’lt; W. S. Jenkins, for resp’t.
   Dwight, P. J.

The action was to recover damages for a bodily injury sustained by the plaintiff in falling or being thrown from the steps of an electric car operated by the defendant on Niagara street, in Buffalo. The plaintiff intended to leave the car at Hudson street, and shortly before that crossing was reached he went to the rear end of the car, passed through the vestibule and stepped down on to the lower step, while the car was running at a speed exceeding six miles an hour, and stood there without taking hold of the car with either hand, until the moment when, as he testifies, the speed of the car was increased by a sudden jerk, and he caught hold of the hand rod on the corner of the car with his left hand and attempted to sit down on the step behind him, but failed to do so, and either fell or was thrown to the-ground, sustaining the injury of which he complains. The testimony on both questions of negligence on the part of the defendant, and of contributory negligence on the part of the plaintiff, was quite sufficient to sustain the verdict in favor of the defendant, and the verdict and judgment must stand unless the single exception taken by the plaintiff in the course of the trial points to error in the submission of the latter of those questions to the jury. That exception was to an instruction given to the jury, in response to a request of the defendant, in the following words: “ That if the plaintiff voluntarily and unnecessarily placed himself on the step outside the car, before it came to a stop, and while going at the rate of six miles an hour, whereby his injury was made possible, then he cannot recover.”

Counsel for the appellant urge that this hypothesis excludes the element of negligence, which was the one thing necessary to preclude a recovery by the party injured. But, of course, the effect of the instruction was that the conduct described was of itself negligence. As such we think it was a correct instruction in this case, the question being left to the jury to say whether the conduct of the plaintiff was within the description given. “Voluntarily ” and “ unnecessarily ” are comprehensive terms. They characterize the act to which they are applied as needless; not required by the circumstances of the case; and one which if it involved danger to life or limb was unreasonable and, in the nature of things, negligent. The same terms were employed, without the word negligently, in the request to charge in the case of Coleman v. Second Avenue Railroad Co., 114 N.Y., 609; 24 St. Rep., 566; and it was held error to refuse the instruction. In that casetheré was evidence tending to show that the plaintiff had been crowded from his seat and was passing around on the side step of the open car in search of another. It was a question in that case whether the exposure to danger was voluntary arid unnecessary. There probably was no question about it in this case, but it is not for the plaintiff to complain that the question was submitted to the jury.

In the case of Coleman, supra, the familiar rule was reiterated that if passengers without reasonable cause leave the car or place.themselves on the outside of it when in motion, they assume the; hazards of so doing, citing numerous authorities to that effect, and the term “ without reasonable cause ” is treated as substantially equivalent to the term “voluntarily and unnecessarily.”

Under the authorities to which reference is made we can have no doubt that the instruction to which exception was taken was one to which the defendant was entitled.

The judgment and order appealed from must be affirmed.

Judgment and order appealed from affirmed.

Lewis and Haight, JJ., concur.