text:
    In the Matter of Proving the Will of Simon Folts, Deceased.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Will—Testamentary capacity—Execution.
    The will of testator, who was 73 years old, was drawn by the executor from instructions given by testator and was read over to him before-, execution. He signed it in the presence of two physicians who had been called to determine whether he had capacity to make a will, acknowledged his signature and requested them to sign as witnesses, which they did. Later in the day testator again acknowledged the execution before four-persons, who, at his request, signed a second attestation clause. All these-witnesses testified to his acts as rational; the will was in conformity with previous declarations, and although there was evidence that his acts on other occasions were irrational, it appeared that he had good and bad days. Held, that the will was properly executed and was properly admitted. to probate.
    2. Same—Evidence.
    It is proper, on the question of testamentary capacity, to allow a witness, after detailing the words and acts of the testator, to testify as to the impression upon the witness produced thereby and whether such words and. acts seemed to him rational or irrational.
    S. Same—Witness—Executor.
    An executor is not rendered incompetent as a witness on the probate of the will by reason of his interest in the estate to the extent of his fees.
    Appeal from a part of the decree of the surrogate of Jefferson-county, made on the 29th day of May, 1891, admitting the will of Simon Fblts, deceased, to probate. -
    March 31, 1890, ¡Russell B. Biddlecom, of the town of Orleans,, named as executor in the will of Simon Folts, presented a petition to the surrogate of Jefferson county requesting citations to the heirs- and next of kin of the deceased to attend the probate of his will; and on the second of June a supplementary petition was filed, and upon the return of citations on the 27th of June, 1890, La vina Whaley, Lucy A. Baxter, Harvey Folts-- .and others, heirs at law and next of kin, objected to the probate of the instrument presented and propounded as the last will and testament of the deceased on the following grounds: First, that the instrument was not published according to law, and “was not in fact duly and legally made, executed and published, and is invalid and void.’’ Second, “That said instrument was not in fact made, executed or published by said deceased, and is not his will. * "" .* And is not the free act and deed of said deceased.” Third, “That at the time said instrument is alleged to have been made, executed and published, said deceased was not of sound and disposing mind and memory, and was incompetent to make, execute and publish a valid will. * * Said deceased had lost his mind and memory; could not write or speak intelligently; that said instrument was not signed, executed or published by said deceased * that the alleged making, execution and publishing of said instrument was instigated, obtained and procured through and by means of undue influence, artifice,, duress and fraud practiced upon said deceased, and said alleged will is not the free and voluntary act and deed of said deceased, and is invalid and void.” Voluminous evidence was taken before the surrogate and on the 29th of May, 1891, he made his decision thereon, and found as matters of fact, viz.:
    “ 1. That the testator, Simon Folts, at the time of the execution of the will in question, on the 7th day of January, 1889, the day of the date thereof, had testamentary capacity to make a will disposing of his property, real and personal.
    “ 2. That said will presented for probate was duly executed in compliance with the statutes in regard to the execution of last wills and testaments.
    “ 3. That said will was drawn by Eussell B. Biddlecom in strict compliance with instructions received by said Biddlecom from Simon Folts solely, and was read over by said Biddlecom to said testator just prior to the time it was signed and executed by said testator on the day of the date thereof.
    “4. That the testator comprehended, knew and understood fully the contents of said will, and the disposition therein made by him of his property, real and personal, at the time of the execution thereof.
    “ 5. That he was not under any restraint, and was in the enjoyment of his mental faculties, uninfluenced by any person or persons, and was in all respects competent to make a testamentary disposition of his property.
    “ 6. That said testator signed his name at the end of said will on the day of the date thereof, and thereafter, and on the same day, each one and all of the subscribing witnesses to said will signed their names thereto respectively, each at the request of said testator, and in his presence; the witnesses Spencer and Dale signed in the presence of each other; the witnesses Scoville, Marshall, Linkenfelter and Beardsley signed in the presence of each other.”
    The surrogate decided as matters of law, viz.:
    “ 1. That said will must be admitted to probate.
    “ 2. Therefore let a decree be entered herein, admitting said will to probate, and establishing and confirming said will as a good and valid will of real and personal property, and awarding letters testamentary thereon to the executor named therein, said decree to be entered of even date herewith." And on the same day a decree was entered admitting the will to probate and decreeing that letters testamentary issue to the executor named in the will and that the expenses and costs of proponents “be paid out of the estate of ■said deceased upon fixing the sum thereof at $295.86. June 9, 1891, exceptions were served and filed. June 25, 1891, Lovina Whaley, Lucy A. Baxter and other heirs at law appealed from, the whole of the decree “except so much as awards costs and expenses to the parties who appeared and presented said will for probate.”

      Porter & Walts, for app’lts ; Hannibal Smith, for resp’ts.
   Hardin, P. J.

Simon Folts was born near Little Falls, in Herkimer county, September 1, 1815, and when about twenty years of age his father removed to Jefferson county, where the deceased resided. until the time of his death, which occurred at Lafargeville on the 17th day of March, 1890, at the age of seventy-four years and six months. Jane Folts, his wife, died in November, 1888. The testator at the time of his death owned about 600 acres of land supposed tobe worth in the neighborhood of forty dollars an acre, and certain personal property, making the aggregate of his estate, both personal and real, worth about $30,000. His only heirs and next of kin were his sisters Catherine Budlong, Lovina Whaley, Salome E. Folts, Lucy A. Baxter, and the children of David Folts, a deceased brother, and the children of Eliza Witherstine, a deceased sister. By the terms of the will one-half of the real and personal property was devised and bequeathed to Gideon N. Budlong, Lucy Budlong, and Salome E. Budlong, the children of Catherine Budlong; and one-fourth of the estate, real and personal, was bequeathed and devised to the children of his deceased brother, David Folts, and the other one-fourth was bequeathed.and devised to the children and descendants of his deceased sister Eliza Witherstine. The will contained no provision in favor of his sisters Lovina Whaley, Lucy A. Baxter and Salome E. Folts. He had resided upon his farm lands until the fall of 1888, when he purchased a house and lot in Lafargeville and removed thereto, in which he remained until the time of his death. His wife, Jane, had a short illness in November of that year when she died. Before her death she made a will in his favor and he had made his will in her favor. On the 6th day of December, 1888, the testator executed and delivered a power of attorney to Russell B. Biddlecom, giving him “general control and supervision overall the lands” belonging to him in Jefferson county to “collect and receive all dues, notes, rents, and invest as he may deem proper all moneys he may receive into his hands.” On the 13th of August, 1888, the testator and his wife joined in a lease to Josiah Sales of the 600 acres of land situated in the town of Orleans, then occupied by Sales, for the term of five years at an annual rental of $1,200, containing numerous stipulations not necessary to state. On the 7th of January, 1889, the testator executed his will at the residence of his sister, Mrs. Budlong, in Lafargeville, which was prepared by Mr. Biddlecom, the •executor, at the request of the testator. Before the same was executed Dr. Spencer of Watertown arrived at Lafargeville, and after dining with Dr. Dale visited the house of Mrs. Budlong in ■company with Dr. Dile and there found the testator and Mr. Biddlecom, and a protracted conversation was had between the deceased and the physicians in the presence of Mr. Biddlecom. When the physicians arrived at the house the conversation was ■ opened by the testator indicating to them that he was aware of the object of their visit, using the following words: “ I (you) came for the purpose of finding out whether I (he) knew enough •to make a will.” Near the close of the conversation, the physicians having reached the conclusion that the testator was coinpet-ent to make a will, the same was produced by Mr. Biddlecom and was read over to the testator in its entirety and certain portions of it were re-read and the provisions thereof repeated to the -testator and be avowed that he understood the same, and that the will was in accordance with his wishes and desires, and thereupon he sat down to a table, which was prepared for the purpose •of the execution of the will, and took his pen, and finding some •little difficulty as to the flow of the ink, the pen was replenished by the hand of Mr. Biddlecom and in the presence of the three .persons the will was subscribed. There were some imperfections in spelling the signature of the testator, and he thereupon declared the same to be his last will and testament and requested the two physicians to become subscribing witnesses thereto. The attestation clause was prepared, and in the presence of the testator, and at his request, the two physicians affixed their signatures below the attestation clause. It seems that the testator wrote his name on another piece of paper simultaneous with the •execution of the will, which Dr. Spencer preserved and produced at the hearing before the surrogate, which was received in evidence, we think properly, in connection with his testimony as a part of the res gestee. Matter of Coleman, 111 N. Y., 227; 19 St. Rep., 501.

Apparently when the parties separated the will, having thus been subscribed by the testator and the two physicians, was retained by Mr. Biddlecom from the close of that interview, which was probably well on in the afternoon, until about seven •o’clock in the evening, when four persons, in pursuance of a request, met the testator and Mr. Biddlecom, and in the presence of those four persons the testator acknowledged the execution of the will and declared it to be his last will and testament and requested the four persons, Scoville, Marshall, Linlcenfelter and Beardsley to witness the same, and they thereupon, in his presence and in the presence of each other, subscribed their names to a second attestation clause written just below the one subscribed by the physicians. Thereupon the executor took the will, folded it and put it in an envelope and handed it to the testator, who thereupon returned it to the executor with a request that he keep the same safely for him and he did so apparently until the occasion when it was produced in the surrogate’s court. Upon the hearing before the surrogate the two physicians were called in behalf of the proponents and narrated all the facts and circumstances occurring in their presence in respect to the execution of the will; the executor was also sworn as a witness and he narrated the facts and circumstances attending the execution’of the will in the presence of the physicians. After giving the facts and circumstances thus transpiring these three witnesses vouched for the capacity of the testator and in differing* language expressed the conclusion that his acts and conversations impressed them as the acts and conversations of a rational man. They fully sustain the essential facts to warrant the belief that the testator was competent to and that his “act was free, voluntary and intelligent.” Children's Aid Society v. Loveridge, 70 N. Y., 387; Horn v. Pullman, 72 id., 270. The testimony of the four witnesses to the acknowledgment to the execution of the will in the evening of the day the physicians attested the will was produced, and alter detailing-the facts and circumstances appearing at the time of the acknowledgment of the will in their presence and their subscription of the attestation clause, they freely state in substance that from their observations and from what transpired in their presence that the acts and utterances of the testator impressed them as being rational.

Many other witnesses were called during the progress of the hearing before the surrogate who detailed facts and circumstances appearing in tlieir presence antecedent to the execution of the will illustrative of the bearing, conduct, acts and intelligence of the testator. After detailing those facts and circumstances they have expressed the opinion that the acts and utterances of the testator were those of a rational person. It was conceded by the contestants during the trial that the testator was competent up to 1885. To meet the evidence of the proponents, to sustain the allegations-of the contestants, numerous witnesses were called before the surrogate to testify as to facts and circumstances within their knowledge and observation relating to the physical and mental condition of the testator prior to the time of the execution of the will; and also as to his condition subsequent to its execution, and they were allowed, after giving their observations and knowledge of acts and events transpiring in their presence, to express their opinion in accordance with the rule in Clapp v. Fullerton, 34 N. Y., 190 ; and they stated that, in their opinion, the acts and conversations of the testator impressed them as being irrational. From the evidence given it appears that the testator was a laborious man during the larger portion of his life, and that he was prosperous and accumulated the property of which he died possessed, and that he had not only physical vigor, but considerable intelligence and ability, and that he had received the respect of his neighbors- and was regarded as a man of capacity and success as a farmer. Towards the latter years of his life he had become accustomed to depend, to considerable extent, upon the advice and suggestions of his wife. Apparently, from the evidence given on the side of the contestants, there were days when he was in more or less impaired condition of memory, and following such days would be days in which he was in better condition of mind and memory. Doubtless, when the witnesses speak of his condition when they say his acts were those of a rational, intelligent, unimpaired mind, they saw and observed him on his better days, and many of the observations and acts which impressed the witnesses who were-called to-say that their impressions were that his acts were not rational transpired on his poorer days; that he should have “good days" and “poor days" is not at all a contrary condition in which persons in advancing years are found.

In considering the evidence given by the proponents and the-evidence given by the contestants, notwithstanding some of the imperfections and irrational acts detailed by the witnesses for the-contestants, it must be borne in mind that “ the fact that an aged person is forgetful, and at times labors under slight delusions, does not per se establish want of testamentary capacity," Children’s Aid Society v. Loveridge, supra, and that it must be said that there is no presumption against a will because made by a man of advanced years; “ nor can incapacity be inferred from an enfeebled condition of mind and body,” Horn v. Pullman, 72 N. Y., 276 ; and it must also be borne in mind that the burden of proof is-upon the proponents tó show by prima facie proof a testamentary capacity at the time of the execution of the will. Matter of Ramsdell, 20 St. Rep., 448. After a protracted" examination of the evidence found in the appeal book, and applying the rules referred to in the cases to which allusion has been made, as well as others bearing upon the subject, the conclusion is reached that the findings of the surrogate are sustained by the weight of the evidence upon which he was called to act in respect to the capacity of the testator at the time of the execution of the will. The will accords with previous declarations made by the testator in respect to the disposition of his property. Nor do we think that a case of undue influence was made out by the testimony furnished before the surrogate. Brick v. Brick, 66 N. Y., 144. Nor that his-disposition of his property was produced by improper influences. Carpenter v. Soule, 88 N. Y., 257; Matter of Will of Martin, 98 id., 193. Nor does the evidence show that the testator was laboring under an insane delusion at the time of his execution of the-will. Opinion of Merwin, J., in Matter of Will of White, 5 N. Y., Supp., 295; 23 St. Rep., 882; S. C., 121 N. Y., 406; 31 St. Rep., 528. The foregoing views lead us to agree with the surrogate in his conclusions of fact stated in his decision upon which the decree was entered. The learned counsel for the appellants upon the argument and in his brief has called our attention to some exceptions taken during the trial before the surrogate.

Scoville, one of the witnesses called for the proponents, who subscribed the second attestation clause, gave the facts and circumstances transpiring on the occasion of his subscribing his-name, and the following question was propounded to him: “Q. "What do you say from the acts that occurred that night, the acknowledgment of Mr. Folts to this will, the signature and your witnessing there. What do you say as to whether those acts and words of Mr. Folts, whether he was sane ? This was objected to by the contestants on the ground that it Was incompetent and immaterial, and second, “It appears the will had been drawn and executed prior to this time and that the condition of the man is not competent with a view of establishing his mental capacity for executing the will prior to this time.” The objections were overruled and an exception taken, and thereupon the witness answered, “I should have to say that he was, as far as I could ascertain from anything that I could see.” Marshall, another of the subscribing witnesses, was called and testified to the acts and declarations occurring at the time of subscribing the second attestation clause, and there was propounded to him the following question: “Q. What do you say as to the declarations and acts of Mr. Folts on the occasion of the acknowledgment of this will, this signature and the witnessing there on that occasion? What do you say as to whether he was sound or not? ” This was objected to on the ground that it was incompetent and' immaterial and witness was not competent to give his opinion. The objections were overruled and an exception taken. Thereupon the witness answered, “I saw nothing to the contrary.” Linkenfelter, another subscribing witness, was called and detailed the circumstances occurring at the time of the subscription of the second attestation clause and the following question was put to him: “ Q. What do you say from the acts and words and appearance of Mr. Folts on this occasion, and the acknowledgment of this will, and the request for your witnessing it, whether he was sane or not?” This was objected to as incompetent and immaterial and that the question is not proper and witness is not shown competent to testify upon the subject The objections were overruled and an exception taken. The answer of the witness was “ I should take the ground that I was not competent to say whether a man is competent, but he sat there and answered the questions all right that Mr. Biddlecom asked him, and appeared all right and natural.” Thereupon. the following question was propounded: “ Q. I am talking about these acts. What do you say from what you observed there in reference to these acts?” “A. His acts were all light. He sat there and answered the questions. He appeared all right, I will say that."

In considering the objections made to the evidence it is to be observed that no specific objection was taken that the witness “ is not legally competent to express an opinion on the general question whether the mind of the testator was sound or unsound.” Clapp v. Fullerton, 34 N. Y., 195. The answers given by the witnesses indicate that they did not understand they were called upon to express their judgment generally as to the testator, but rather to express the impression produced upon them there made by the acts and circumstances transpiring on the occasion of the acknowledgment of the will.

In Paine v. Aldrich, 133 N. Y., 544; 44 St. Rep., 308, where the rule in respect to the opinions of witnesses was under consideration, it appears that the trial court allowed the following question : “ From the conversations you had with him and from his actions, his acts in your presence, were those conversations or those acts those of a rational or an irrational man ?" which the witness answered in liis own way ; that rule was approved and is in accordance with the rule as stated in People v. Conroy, 97 N. Y., 62, where it was said, “To render the opinion of one not an expert competent in such a case, it must be limited to his conclusion from the specific facts his testimony discloses.”

In Hewlett v. Wood, 55 N. Y., 634, it was said, viz.: “ Persons not experts, after testifying to facts and incidents in relation to a testator tending to show soundness of mind or the contrary, may testify to the impression produced upon him thereby, and also whether the acts and declarations testified to seem to them rational or irrational, but they may not as to the general soundness or unsoundness of mind of the testator.” .

In Holcomb v. Holcomb, 95 N. Y., 316, the rule was discussed, and it was again asserted that the “ testimony must be limited to his conclusions from the facts testified to by him.”

(2) We think the ruling made in the course of the cross-examination of the witness Linkenfelter presents no error. Before the witness left the stand he was permitted to testify all he was competent to speak of within the rule.

(3) Mr. Biddleeom, the executor, was called in behalf of the proponents and stated that he drew the will and that he had resided in Lafargeville fifty years with the exception of three years when he was county clerk, and then he was asked to state generally the business transactions he had had with the deceased and his relations with him. This question was objected to by the contestants on several grounds and among them, “That being the sole executor and interested in the estate to the extent of his fees, he is incompetent under the section of the Code." The objection was overruled and an exception was taken.

When Rugg v. Rugg, 21 Hun, 383, was before this court, in the-course of the opinion prepared by me I said “ Jenks, who was. named as one of the executors, was also called as a witness in behalf of the proponents, and gave evidence of the facts and circumstances attending the execution of the will. His testimony was objected to by the contestants. But the authorities require us to hold that he was a competent witness, and that his testimony was properly received by the surrogate. McDonough v. Loughlin, 20 Barb., 239; Children's Aid Society v. Loveridge, 70 N. Y., 387; Pruyn v. Brikerhoff, 7 Abb., N. S., 401. We must, in considering the question raised in respect to the due execution of the will, give effect and force to the evidence given by Jenks. He was a man about sixty years of age (Biddleeom was about sixty eight), had been accustomed to draw wills, and supervise their execution, and the evidence given by him is to the effect that the essentials to a due execution were all observed, and he is emphatic in his statements that the testator subscribed his name before the subscribing witnesses. It is settled beyond doubt or discussion that the due execution of a will may be established by other evidence than such as may be derived from the subscribing witnesses.” That case was affirmed by the court of appeals. See 83 FT. Y, 592.

In Matter of Will of Smith. 95 N. Y., 516, the executor who presented the will for probate was “ the principal legatee ” and, therefore, the case is distinguishable from the one before us. That case is explained by Ruger, Ch. J., in Matter of Will of Wilson, 34 Alb. L. J., 476 ; S. C., 103 N. Y., 374; 3 St. Rep.. 613.. In Lane v. Lane, 95 N. Y., 494, the witness was not only executrix but a legatee, and the case, therefore, differs from the one before us.

Our attention has been called to numerous other exceptions taken during the trial; we have examined them and are of the opinion that they do not require us to order a new trial.

In Clapp v. Fullerton, 34 N. Y., 190, it was said in respect to appeals from surrogates that “ The review is in the nature of' a rehearing in equity; .and the admission of improper evidence on the original hearing will not justify a reversal of the final decision if the facts established by legal and competent evidence are plainly sufficient to uphold it.” The substance of the rule has been put into § 2545 of the Code of Civil Procedure in the following language : “ But such a decree or order shall not be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby.” Matter of Will of Smith, 95 N. Y., 527; Horn v. Pullman, 10 Hun, 471; S. C., affirmed, 72 N. Y., 269 ; Brick v. Brick, supra; Matter of Will of White, 121 N. Y., 406 ; 31 St. Rep., 528. That part of the surrogate’s decree awarding costs to the proponents was not appealed from and is not here for consideration. That part of the surrogate’s decree awarding costs was within his discretion. So much of the decree as is appealed from should be affirmed, with costs payable out of the estate. Code of Civil Procedure, § 2589 ; Matter of Will of Wilson, 103 N. Y., 377; 3 St. Rep., 613 ; Matter of Budlong, 33 Hun, 236 ; S. C., affirmed, 100 N. Y., 206.

Decree of the surrogate’s court of Jefferson county, so far as the. same is appealed fromt affirmed, with costs to the respondents payable out of the estate.

Merwin and Parker, JJ., concur.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    Burr Mattice, Resp’t, v. Henry Wilcox, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Libel—Privileged communications.
    A publication by a taxpayer of a village, of and concerning an attorney, of a circular stating: “Make M. attorney for the village so that every person that gets spanked on the ice will be able to obtain a judgment of from $1,000 to $10,000 against the village,” is libelous and not privileged.

      2. Same—Evidence.
    A question, assuming that comments had been made by inhabitants of the village as to plaintiff’s acts and conduct as assessor, and asking: “ Was the opinion frequently expressed that he was not a proper person, under the circumstances, to be thus employed,” is improper as leading and calling for hearsay opinions.
    3. Trial—Requests to charge.
    It is not error to refuse requests to charge which are not applicable to the case or which are repetitions of the substance which has been de-. livered in the body of the charge already made.

      Action for libel; trial at the Otsego circuit, June, 1892; verdict of $1,000 for the plaintiff. Motion for a new trial on a case and exceptions denied at special term. Appeal from the judgment and order.

      F. R. Gilbert and C. L. Andrus, for app’lt; Douglass W. Miller, for resp’t.
   Hardin, P. J.

In 1890 the plaintiff was a citizen of the village of Oneonta; he was an attorney and counsellor of the supreme court; he had been employed by the village as corporation attorney and had had charge of several suits in its behalf; he had for two years prior thereto been an assessor of the town. The defendant was a resident of the village of Oneonta, owning consider.able property therein upon which he paid taxes. He took the manuscript for the circular set out in the pleadings to Sidney and had 300 copies printed, and when the saíne were received in the village of Oneonta he distributed them very extensively among the citizens of that locality; many of them to the taxpayers; quite a number of the circulars were placed in the hands, by the defendant, or at his instigation, of persons who were not taxpayers. In the first count of the complaint it is alleged, viz.: “ That the defendant, on or about the 1st day of February, 1890, wickedly and maliciously intending to injure the plaintiff in his good name, credit and fame, and to injure him in his profession and business as an attorney and counsellor of this court, and to bring him into disrepute and contempt among all his neighbors and other good and worthy citizens, and to cause it to be believed and suspected by his said neighbors and other citizens that the plaintiff had been and was guilty of malpractice in the practice of his profession, and was incompetent to properly discharge the important duties of his profession, and especially of his position as attorney and counsel to the board of trustees of the village of One•onta, and to vex, harass and oppress him, the defendant did, on the first day of February aforesaid, at Oneonta, H. Y., falsely, wickedly and maliciously compose and publish and cause and -procure to be published in handbills (a copy of which is hereto annexed and forms a part of this complaint), and circulated and cause to be circulated extensively in the village of Oneonta and vicinity, of and concerning him, the said plaintiff, a false, scandalous and defamatory libel, containing among other things the false, scandalous, malicious, defamatory and libelous matter following, of and concerning the said plaintiff, that is to say: ‘ Make Burr Mattice attorney for the village, so that every person that gets spank■ed on the ice will be able to obtain a judgment of from $1,000 to $10,000 against the village,” meaning thereby to charge plaintiff with want of skill and care as the attorney for the village of Oneonta in defending certain suits against said village, and meaning to charge thereby and did charge plaintiff with neglect in the care and management of suits against the said village and with wrongful and dishonest conduct in his professional dealings as the attorney of said village.” The language quoted from the circular is known in the circular as the second paragraph. The complaint then proceeds to state that the circular contained another paragraph known as the eighth subdivision of the circular, which is set out in the following language: “ Elect B urr Mattice and Henry Potter assessors to put up the valuation so that the trustees can rob the taxpayers on the two per cent, levy.” The complaint avers that the defendant intended to charge the plaintiff “ with corruptly and dishonestly entering into an unlawful and collusive agreement with the board of trustees of said village to unlawfully and corruptly increase the assessed valuation of the said village, for the purpose of extorting money from the taxpayers of said village, which said libel is false and untrue.” When* the defendant’s answer was served the plaintiff interposed a demurrer which was sustained at special term and the decision made at special term was brought before this court and our decision* thereon was made in 1891 ; the opinion delivered on that occasion appears in 36 St. Rep., 914; in the course of that opinion we said: “We think the words found in the complaint were libelous within the rule laid down in Sanderson v. Caldwell, 45 N. Y., 398.” An appeal was taken from our.decision and our judgment was affirmed by the court of appeals. See 41 St. Rep., 946.

In Moore v. Francis, 121 N. Y., 202 ; 30 St. Rep., 467, Andrews, J., said : “ It is the settled law of this state that in a civil1 action for libel, where the publication is admitted and the words-are unambiguous and admit of but one sense, the question of libel or no libel is one of law which the court must decide.”' We think that the trial judge properly ruled that the second paragraph taken from the circular was libelous and was nok privileged.

In Hamilton v. Eno, 81 N. Y., 116, it was held that “In an* action for libel it is for the court to determine whether the alleged libel was a privileged communication;” and it was also* held in that casé that “ The rule is the same where the alleged libelous charge is made against a public officer as such.” In* that case the plaintiff was an assistant sanitary inspector of the-board of health of the city of New York, and in that capacity he-made a report and the defendant had written a letter in respect thereto which was published in the Tribune. In the course of the opinion delivered in that case it was said that the report was-legitimate subject of criticism and that the defendant might question “its statements of fact and deny them; he might expose misrepresentations and point out errors; he might combat its-reasoning and show its conclusions ill drawn ; and he might do-so with satire and ridicule, so long as he directed those missies at-the report and the contents of it. But he could not attack the private character of the author; to do so would be libelous. 24 Wend.,442.” We think that case does not support the contention of the appellant. This case is unlike Herrick v. Chapman, 16 N. Y., 369. That was a case where a communication was made by a banker as to the makers of a note, and in the course of the opinion delivered in that case to the effect that the communication was privileged, the reason given was that “Because it was made in confidence, to persons directly interested in it, and apparently by way of advice.”

In Ormsby v. Douglass, 37 N. Y., 477, the non-suit was granted on the ground that the words spoken by the defendant concerning the plaintiff appeared to have been spoken confidentially, in the course of the defendant’s employment, to one of his employers, on the application of the latter, who had need of the information for the purpose of governing his discretion in his business,, and that, under the circumstances, the communication was not. unlawful, there being no evidence of malice or bad faith. ” The case is quite distinguishable from the one before us. Upon an examination of the whole language found in the circular, “ It appears to admit of no just construction except one which is injurious to the plaintiff; ” therefore, within the rule laid down in Herrick v. Chapman, 16 N. Y., 371, “its meaning is to be determined by the court.” And the court’s determination in regard to paragraph number two was not erroneous.

(2) In the eighth paragraph of the circular published by the-defendant are found these words : “Elect Burr Mattice and Henry Potter assessors to put up the valuation so that the trustees can rob the taxpayers on the two per cent, levy.”

In dealing with that branch of the case the trial judge submitted to the jury an inquiry as to the meaning of the words used in the circular. He said: “ This is a question of fact as to what it means, left to your judgment and not to mine.” He then proceeded to state to the jury that the defendant claimed “ that there is no charge against Mr. Mattice in them that would tend to bring-him into any discredit or disgrace, or that would tend to lessen the confidence of anybody in him in any way ; in other words, that there is nothing libelous about itand, after further comment, he added: “ How, if that is all there is to it, if there is no charge against Burr Mattice there at all, if it is simply a statement that if Burr Mattice is elected he is in favor of raising the valuation, and if the valuation is raised the iniquitous trustees will avail themselves of the raise to rob the citizens by putting the whole two per cent on them; if that is all there is to it, there is no charge or libel, no evil intent charged against Burr Mattice.”' After having made this liberal statement, quite as favorable as the defendant was entitled to have made, he continued'and stated the claim of the plaintiff in respect to the language used ; and he left it to the jury to say whether the charge was justified as well as to determine the meaning of the language used, and instructed the jury that if they found in accordance with the claim and construction put upon the words by the plaintiff that then the language amounted to a libel; and after directing their attention to the mitigating circumstances, he said: “So far as this second is concerned,, if you shall believe it to be a libel, you may, as I said in regard to the first one, not only give such a sum as you believe will compensate the plaintiff for any injury which he sustained by it, but you may give punitive damages. That depends upon the question how far vou shall believe that the defendant was inspired. with malice in publishing it against Mr. Mattice.” Again he adds: “Although the law infers malice from the publication of the libel, jet if from all the evidence in the case you shall believe that he was not malicious, the amount of punitive damages which you give against him should be controlled by just so far as you shall deem his malice to have been great or little. If you gentlemen believe there was no malice you should not give any punitive damages. If you believe there was much or little, regulate your punitive damages accordingly; but for the damages you believe are a just compensation to this man you will render a verdict as a matter of law without regard to the amount of malice which inspired the defendant.” After the delivery of a charge favorable in many of its features to the defendant, numerous requests were made, some of which were not applicable to the case, and some ■of which were but to ask a repetition of the substance which had been delivered to the jury in the body of the charge ; to decline to yield to such requests was not error.

(3) Defendant was examined as a witness in his own behalf upon the trial and among other things testified, viz: ,“It was commented upon and talked that these matters were carried on under the advice of the plaintiff; at the time I published this article I believed in good faith that the course which the village officers were taking in connection with the plaintiff and under his advice was resulting injuriously to the taxable inhabitants of the village of Oneonta and town of Oneonta ; I had no other motive in publishing the article except for the purpose of guarding and protecting my own interests and the taxpayers’ interests in the village and town of Oneonta; I did not intend or desire to injure the plaintiff in any manner whatever; all the motive I had was simply to have those abuses corrected.” It is now insisted in behalf of the appellant that an error was committed in excluding an answer to the following question: “Prior to the publication of this article was the conduct and acts of this plaintiff, as one of the assessors of the town, the subject of general comment among the people?” It is manifest from the evidence found in the appeal book that the matters embraced in the question had been the subject of discussion among the citizens of that village. It is difficult therefore to see that the defendant suffered anything by the ruling, even if it be assumed that it was technically erroneous. Following that question was another which assumed that comments had been made by the inhabitants of the village, and the witness was asked to state “was the opinion frequently expressed that he was not a proper person under the circumstances to be thus employed ? ” Objection was made to the question and .sustained. The question was leading and it called for the opinion ■of others “ in reference to the acts of the plaintiff as counsel for the village; ” and if an answer had been given it is difficult to ■see how the opinions could furnish a justification of the defend•■ant. While it was competent to show that the general character of the plaintiff was bad; no such attempt however was made, and the opinions of citizens as to specific acts, if received, would not ■establish that his general character was not good; nor would the opinions frequently uttered justifiy the defendant in publishing the libel complained of. Root v. King, 7 Cowen, 613; Gilman v. Lowell, 8 Wend., 573. Facts and circumstances which tend to disprove malice may be given in evidence. Bush v. Prosser, 11 N. Y., 347; Hatfield v. Lasher, 81 id., 246. The defendant was allowed to give such facts and circumstances as were set out in his answer by way of mitigation, but the question propounded •only called for hearsay opinions and it is difficult to see how the witness was competent to state hearsay opinions under the rule allowing facts and circumstances alleged in the answer to mitigate damages.

Appellant calls attention to Cameron v. The Tribune Association, 27 St. Rep., 907, which was an action for libel in that the defendant published a dispatch from its Boston agent; there was a discrepancy between the original dispatch received by the agent and the condensed one; the defense was justification, and it was held that evidence of the facts and circumstances which lead the agent to fall into the error was competent upon the question of malice and punitive damages. In that case there was a justification and an averment that the plaintiff was a man of bad character, and that the telegram was received from defendant’s correspondent in the usual course of business and printed in good faith as an item of news. The case differs essentially from the one before us. Some criticism is made relating to the defendant’s good faith or motive in regard to the publication. The defendant in effect answered the questions in that regard in ' the course of his testimony direct and in cross-examination he says, I published it for no other purpose, or with no other motive than simply to pro•tect my interests as a taxpayer; ” and he says I circulated it without any animosity at that time or vindictiveness against him; I done it in the interest of the taxpayers and myself; ” and he says “I had no animosity when I published this article.” By the answers quoted the defendant was permitted in effect to state that he published the circular in good faith, and the rule laid down in Bennett v. Smith, 23 Hun, 50, and followed in Lally v. Emery, 28 St. Rep., 127, was complied with.

Other rulings are criticised and we have examined them and are persuaded that the rulings were not prejudicial to the rights •of the defendant.

The foregoing views lead us to sustain the verdict taken at the •circuit.

Judgment and order affirmed, with costs.

Her win, J., concurs; Parker, J., not sitting.'


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    E. Darwin Hills, Resp’t, v. Charles W. White, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Convkksion.
    ■Plaintiff, to whom one H. was indebted, for which indebtedness plaintiff held a mortgage on his goods, took a bill of sale of said goods and surrendered the mortgage and notes held by him, agreeing to sell the goods and after retaining the amount of his debt, pay the balance to H. While the goods were in plaintiff’s possession they were levied upon by defendant under executions against H. In an action for conversion, Held, that, the questions of ownership and possession of the goods and of good faith in the purchase were ones of fact for the jury and that the case was properly submitted to them.
    2. Same—Sheriffs—Justification.
    Where the sheriff, in an action for conversion, undertakes to justify the-taking under executions against a third person, the burden of establishing; that defense is upon him.
    3. Trial—Charge.
    Where the body of the charge has substantially and corrrectly informed the jury of the bearing of the testimony that has been given by certain» witnesses, it is not error to refuse to charge that the testimony of a witness has been corroborated by such witnesses.
    4. Chattel mortgage—Validity.
    A chattel mortgage upon a stock of goods in a business place where the-goods are being sold from time to time by the mortgagor is not necessarily void as against creditors.
    Verdict' for the plaintiff at the Schuyler circuit for the sunk of $1,584.50. A motion for a new trial on a case was made and denied. Judgment entered for the plaintiff. Appeal from the» judgment and order.

      Youmans, Moss & Knipp, for app’lt; M. M. Mead, for resp’t.
   Hardin, P. J.

Plaintiff in his complaint alleges that on the-26th of March, 1890, he “was the owner and in possession of a stock of drugs, chemicals * * * all contained in the store No. 2< Tracy Block, so called, situate in the village of Havana.” He also alleges in his complaint that on the 11th of March, 1890, he-purchased the stock, the property aforesaid, of one John H. Hanson, in payment of an indebtedness of $1,494.95, and that by the-terms of the purchase he was to proceed to sell the property and retain therefrom’ the said indebtedness of $1,494.95, and if there was any further sum realized above that indebtedness and any expenses, the surplus was to be deposited to the credit of Hanson in the bank in Havana; and that in pursuance of the purchase the plaintiff surrendered "to Hanson as a consideration of said sale several promissory notes of Hanson’s held bv the plaintiff which, with the interest added, amounted to $1,495.95, that being the sum that Hanson justly owed the plaintiff. The plaintiff alleges that after the purchase he took immediate possession of said store and stock of goods; and the plaintiff alleges in his complaint that the value of the goods sq taken was $1,780.84. He further alleges that on the 26th of" March, 1890, the defendant “unlawfully and wrongfully entered said store where said stock of goods then was, and unlawfully and wrongfully dispossessed the plaintiff and took possession of said stock of goods aforesaid and converted them to his own use and wholly deprived this plaintiff of the-same. * * * ” In the answer of the defendant several judgments-against John H. Hanson are set out and an averment that executions were issued thereon and placed in the hands of the sheriff, the defendant, and that in virtue thereof he made a levy upon the property; and that in virtue of the levy and executions the defendant, the sheriff, sold the property referred to in the complaint. Upon the trial the plaintiff gave evidence that he was in possession of the property at the time of the levy and gave evidence tending to support his title to the property; and that theretofore he had received from Hanson a chattel mortgage •collateral to the notes and indebtedness of Hanson to him, and that pursuant to the purchase of the goods in satisfaction of the mortgage and indebtedness so held by the plaintiff against Hanson, he surrendered the notes and claims which he held against Hanson, on the 10th of March, or the next da3, in pursuance of the purchase of the property made by him of Hanson.

The plaintiff also gave evidence that lie had taken from Hanson a bill of sale transferring the property in pursuance of the arrangement already stated. There was .some dispute as to the circumstances attending the bill of sale and as to its validity, and a conflict in the evidence relating thereto. There was the positive testimony of the plaintiff to some extent corroborated as to the essential facts to sustain the issue in behalf of the plaintiff. Hanson was called as a witness, and in many particulars disputed the testimony given by the plaintiff; and some other testimony was given tending to support the position taken by Hanson in respect to the bill of sale. It appeared, however, upon all the ■evidence, that the plaintiff was in possession of the property at the time the levy Vas made, claiming to be the owner thereof; and after considering all the evidence that relates, to the question •of ownership, we are of the opinion that the court was authorized to submit the question to the jury as to whether at the time of the levy the plaintiff was the owner and in possession of the property as such ; and also whether Hanson had any title, interest or ownership in the property at the time the levy was made by the sheriff. Upon the conflicting evidence we are not inclined to disturb the verdict rendered by the jury, finding in effect that the plaintiff was the owner of the property at the time the levy and sale were made by the defendant as sheriff. Upon the trial, “ it was conceded by the defendant for the purposes of the trial that the value of the goods taken and sold by the sheriff was $1,500.” Defendant’s position upon the trial, as presented by his •answer and by the evidence, was, that the levy was justified inasmuch as the property at the time of the levy was the property of Hanson, the judgment debtor. Upon the evidence it was a question of fact for the jury to determine whether the plaintiff was in possession of the property at the time of the levy; whether there was any fraud in the mortgage which he held upon the property; whether he had an actual indebtedness against Hanson which was the basis of his purchase of the property from Hanson, and whether the purchase was made in good faith without any intent to defraud creditors. Nichols v. Mead, 2 Lansing, 226. Upon looking into the charge we find these questions of fact were fairly presented to the jury, and upon the evidence the jury were warranted in finding that the purchase was made by the plaintiff in good faith for the purpose of paying to the plaintiff an honest debt held by him against Hanson. Dudley v. Danforth. 61 N. Y., 626.

(2) It is claimed that the court erroneously refused to allow the witness Hanson to answer the question, “You handled this stock in a proper manner, did you?” also the question, “You managed that business in the way most likely to produce the best, results for a profit? ” And in excluding an offer “to show by this witness the amount of money that was actually put in the goods in the business.” The witness had already been permitted to state that “ The goods I bought were in value altogether about $1,800 ; ” and it was not a question for an opinion by the witness whether he had managed the business well or otherwise, and the rulings referred to and the exceptions thereto do not require an interference with the verdict.

(8) Defendant sought to justify the taking of the property under the judgments and executions issued thereon against Hanson. That was an «affirmative defense, and we are of the opinion that the court committed no error in saying that the burden of establishing that defense rested upon the defendant.

(4) In the body of the charge the court had referred to witnesses who had been upon the stand and gave evidence tending-to corroborate the testimony given by Hanson on some branches of the case, and at the close of the charge a general request was made, enumerating witnesses, that the court charge “ That the testimony of Hanson as to the signing of tlie contracts and transferring the property to Hills from Hanson was corroborated by the witnesses ” named. In response thereto the court, observed that it “ declined to charge the proposition any further than he had charged it; ” to which refusal the defendant’s counsel duly excepted. We think the exception presents no error, and that the body of the charge had substantially and correctly informed the jury of the bearing of the testimony that, had been given by the witnesses enumerated.

(5) The defendant’s counsel requested the court to charge “That a chattel mortgage upon the stock of goods in a business place where the goods are being soli from time to time-by the mortgagor, is void as against creditors." .In response-thereto the court observed, “It is possible that there are some circumstances under which a chattel mortgage may be rendered void if it gives to the mortgagee the right to sell, or if mortgagor sells it may become void as to creditors. It depends upon the circumstances.” An exception was taken thereto. We think the court committed no error which the exception presents. Cook v. Bennett, 60 Hun, 8; 38 St. Rep., 632, and cases, there referred to in the opinion. We have looked at the other-exceptions to which our attention has been called and are of the opinion that none of them require us to disturb the verdict.

Judgment and order affirmed, with costs.

Merwbst, J., concurs ; Parker, J., not sitting.


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    Joseph E. West, Resp’t, v. The City of Utica et al., App’lts.

      (Supreme Court, General Term, Fourth, Department,

      Filed September 23, 1893.)

    1. Municipal corporations—Waste—Injunction.
    The common council of a city has no power to employ counsel or use: the funds of the city to discharge an indebtedness arising on the part of its-members for counsel in their defense against proceedings for contempt, which proceedings resulted in an adjudication that they were guilty of contempt in violating an order of the court; and a taxpayer is entitled under § 1925 of the Code to an injunction restraining them from auditing, allowing or paying out moneys of the city for that purpose.
    3. Same—Costs.
    The complaint also stated other facts on which a perpetual injunction! was asked restraining defendants from extending or causing the collection of taxes for certain paving and a school-house, which was refused. Feld, that as each of the parties succeeded as to a part of the mailers in litigation,' neither party should be allowed costs as against the other.
    Appeal from a part of a judgment entered in Onondaga county-on the 12th of December, 1892, and amended by an order entered the 7th of January, 1893, upon a decision made at special term. In the conclusions of law stated by the special term are found the following: “That the passage of the resolution of August 31, 1892, on the subject of employing counsel, and its repassage over the mayor’s veto, did not bind the city in anyway or sum whatever for the defense of said eight aldermen in said contempt proceedings in which they were convicted. That the attempt to bind the city was an illegal official act. 3. That the plaintiff is entitled to a judgment against the defendants herein perpetually restraining-them and'each of them ‘from auditing, allowing, ordering paid,, drawing a warrant, or signing or countersigning, or paying any warrant for any sum whatever for the payment of the costs, expenses or counsel fees or charges of or for the defense-of said eight aldermen, Daniel McGrucken * * * or any of them, against their contempt in violating the said injunction of this court, which they voted for themselves August 31, 1892,, and again September 27, 1892, or about those dates.’ ”

      Josiah Perry, A. M. Beardsley and Matteson & DeAngelis, for app’lts; C. D. Adams, for resp’t.
   Hardin, P. J.

Plaintiff is a taxpayer in the city of Utica upon an assessment of more than a thousand dollars, and brings this, action “ to obtain a judgment preventing waste of or injury to the estate, funds or other property of” the city of Utica. See § 1925 of the Code of Civil Procedure. This section was intended “to protect against the fraud or bad faith of the officer or to restrain illegal action on his part. Ziegler v. Chapin, 126 N. Y., 342; 37 St. Rep., 490. After proceedings were taken against eight of the aldermen of the city to punish them for contempt in violating an injunction order of this court, by a vote of eight of the twelve aldermen a resolution was passed August 31, 1892, that counsel be employed for their defense in said contempt proceedings, and the resolution was in the following language: “Resolved, That a committee consisting of the president of the common council and two aldermen be appointed with power to employ-suitable counsel to defend the proceedings in contempt, instituted by the service of papers on the president, Daniel Mc-Gucken.” It is found by the special term that after the mayor had vetoed the resolution, and after the aldermen were convicted •on contempt, the resolution was again passed September 27,1892, over the veto by the same vote, the said aldermen having two-thirds of the votes of the council. Although it was assumed at the trial, as well as upon the argument of the appeal before us, that counsel in pursuance of the resolution were employed, it is found as a fact by the special term “ that no bill or claim has ■ever been presented to the common council or to the city of Utica for any services, costs or counsel fees, or charges in the matter of said contempt proceedings, or in the defense thereofand it is also found that no bill has been audited or warrant drawn therefor in payment of costs, expenses, counsel fees or charges “ in the defense of said contempt proceedings, or of said eight aldermen, and they have not undertaken or attempted any such thing or act.” And it was found as a conclusion of law by the special term that the plaintiff is entitled to judgment “perpetually restraining them and each of them from auditing, allowing, ordering paid, drawing a warrant, or signing or countersigning, or paying any warrant for any sum whatever for the payment of the costs, expenses or counsel fees or charges of or for the defense of said eight aldermen, Daniel McGucken * * * or any of them, against their contempt in violating the said injunction of .this court, which they voted for themselves August 31, 1892, and again September 27, 1892, or about those dates.”

Our attention is called by the appellants to Powell v. The Trustees of the Village of Newburgh, 19 Johns., 283, which came before the court upon facts “ agreed to by the parties.” In that case the trustees of the village were sued for an act done by them in virtue of their office “ in the faithful discharge of their duty as trustees and agents of the corporation,” and for the necessary costs and charges in and about their defense they sought to recover, and' in closing the opinion in that case, Spencer, Oh. J., said: “ They acted faithfully and without fault, and are entitled to recover for everything reasonably and necessarily disbursed in and about their defense * * * .” We think the case is quite distinguishable from the one before us. When the special term was called upon to make its decision the eight aldermen had been, by an order of this court, adjudged guilty of contempt. The effect of the contempt proceedings brought to the attention of the special term was to indicate a want of good faith on the part of the eight aldermen, and by reason of that violation of the injunction order, their contemptuous act, the proceedings were taken.

Our attention is directed to McCredie v. The City of Buffalo, 2 How., N. S., 336, which is a case where an officer incurred expenses in establishing his right to the office. The case is quite unlike the one before us; and in the course of the opinion delivered in that case it was said: “ It is an established rule that á, municipal corporation may indemnify its officers and agents for expenses necessarily incurred in the bona fide discharge of their duties; ” and cases are cited to .support that proposition. See opinion, page 340. In the case before us the decision at special term proceeds upon the ground that the eight aldermen, being in contempt of court and violating its order, were not acting in good faith or “ in the bona fide discharge of their duties.” The case, stated, therefore, does not aid the appellants.

In Board of Supervisors v. Ellis, 59 N. Y., 620, it was held that a board of supervisors has no power to audit and allow accounts not legally chargeable to their county ; and it was further held in that case that the board “ cannot lawfully engage a county in, or bind it to the payment of the expenses of a litigation by an individual to establish his right to an office, and the audit and payment .thereof is unlawful.” We think the special term was warranted in reaching the conclusion that the common council had no power or authority to use the funds or the machinery to reach funds of the city to discharge any indebtedness arising on the part of the eight aldermen for their counsel in their defense against proceedings for contempt, which proceedings resulted in an adjudication by the court that the eight aldermen violated an order of the court, and were, therefore, guilty of the alleged contempt. The learned judge who held, the special term, in an opinion delivered, expressed himself as follows: “ The employment of counsel pursuant to a resolution of the common council was a contract in behalf of the city, and if valid rendered it liable to pay a reasonable compensation to the gentlemen employed for such services as they should render. It must be presumed from the judgment of conviction that the eight aldermen were guilty of contempt, and lawfully punished. Their action, therefore, in employing counsel in the name of the city was an attempt to make the city liable for their own obligations; because the city is not bound to pay the expenses of defending an illegal act of its officers, even if purporting to be done in its behalf. As the evidence stands before me, therefore, with the judgment of conviction unreversed, their action was unauthorized and illegal.” We find no occasion to differ from the views expressed by the learned trial judge. Although it did not appear at the special term that any claim or bill for services of the counsel who acted in defense of the eight aldermen had ever been presented to the common council, allowed and audited, yet, upon the evidence found in the case made at the special term, and the papers therein referred to, it is quite obvious that valuable services were performed after the passage of the resolution, and that those services had not been paid for; and the inference is justified that it was the expectation of the eight defendants that such services would be presented to the common council for payment (and perhaps it is not unreasonable to suppose that the counsel, who performed those services, expected that they would be paid in the manner suggested). It was not improper for the trial court to declare the employment of counsel not binding upon the city, and that its funds were not liable therefor. In dealing with the situation, and thé several acts of the eight aldermen, the trial judge, in his opinion, said: “ Their action is in the nature^ of a threat to waste the funds of the city by paying them out for services rendered in defending themselves against a charge of personal misconduct of which they were guilty. I think that the plaintiff is entitled to a permanent injunction restraining the defendants from auditing, allowing or' paying out of moneys belonging to the city any part of the expenses incurred by employing counsel to defend the contempt proceedings * * * .”

(2) It is insisted that the special term erred “ in awarding costs of this action against the aldermen who were convicted of contempt.” This action was brought on the equity side of the court, and the rule regulating costs is found in § 3230 of the Code of Civil Procedure, which provides that in such an action as this ‘‘the court may, in its discretion, award costs to any party, upon the rendering of a final judgment." In considering the question whether the discretion was properly exercised or not, regard must, be had to the circumstances attending the other branch of the case which was presented to the special term. In the plaintiff’s complaint facts were stated upon which the plaintiff asked a perpetual injunction against the defendants ‘‘from extending, or in any way or manner attempting to extend, or causing or suffering to be extended upon any of the assessment rolls of Utica, or any ward therein, of the year 1892, said $50,000 for paving work in the city of Utica for the year 1892, beyond $6,000, as any part of any tax against any taxpayer or any taxable property in the city of Utica or any ward therein. Also from causing, suffering or permitting, or attempting to do so, any tax for said sum of $50,000 beyond $6,000 to go into or upon the tax lists of said city for any ■ward therein against any taxpayer or taxable property. Said officers respectively shall neither sign nor deliver any assessment roll or tax list with any such tax in it. From extending or in any maimer or way attempting to extend, or causing or suffering to be extended upon any of the assessment rolls of Utica or any ward therein, of the year 1892, said $8,000 for or on account of building the twelfth ward school-house in the city of Utica, as any part of any tax against any taxpayer or any taxable property in the city of Utica or any ward therein. Also from causing, suffering or permitting (or attempting to do so) any tax for said sum of $8,000 to go into or upon" the tax lists of said city for any ward therein against any taxpayer or taxable property. Said officers respectively shall neither sign nor deliver any assessment roll or tax list with any such tax in it.” The special term refused to grant the prayer in that regard, and under its decision a judgment has been entered to the effect that the plaintiff is not entitled to the relief asked for in the language quoted.

In Law v. McDonald, 9 Hun, 23, it was held as follows: “ Where in an action in equity each party succeeds as to a part of the matters in litigation between them, costs are not allowed to either as against the other,” and in that case the judgment apr pealed from was “ modified so as to stand without costs to either party as against the other.” A similar rule was laid down in Crippen v. Heermance, 9 Paige, 211; McCulloch v. Vibbard, 14 Civ. Pro., 388; Ten Eyck v. Holmes, 3 Sandf. Ch, 428; Couch v. Millard, 41 Hun, 215; 4 St Rep., 167.

In Rosa v. Jenkins, 31 Hun, 384, it was held by this court that the discretion exercised in an equity action as to costs may be reviewed here.

Rundle v. Allison, 34 N. Y., 185, contains nothing inconsistent with the rules already stated. We think the, judgment should be modified so far as it awards'costs against the defendants, and a clause inserted therein to the effect that neither party shall recover costs against the other, and as so modified we think it should be affirmed, without costs of this appeal to either party.

Judgment modified as stated in the opinion and as modified •'affirmed, without costs of the appeal to either party.

Merwin, J., concurs; Parker, J., not sitting.


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    Harry Evans, Resp’t, v. Frank W. Conklin and Luther Conklin, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    1. Lease—Execution.
    A lease is valid as between the lessor and the lessee who occupied under the same, although not signed by the lessor.
    2. Same—Parties.
    One not named in the body of the lease, who signs beneath the lessee without statement as to the nature of his signature, is not a party to the agreement so as to be liable as a joint lessee for the rent reserved.
    Appeal from a judgment of the county court of Onondaga county, affirming a judgment of the justice’s court in favor of the respondent for damages, $82.91; costs, $4.65, total, $87.56.
    “ Action to recover rent alleged to be due from Frank Conklin by virtue of a lease.

      J. E. Newell, for app’lt; William Kennedy, for resp't.
   Hardin, P. J.

Loughran v. Smith, 11 Hun, 311, is an authority for holding that the lease is valid between the plaintiff and the lessee who occupied under the same, notwithstanding the fact that it was not signed by the plaintiff; and the production of the lease and the proof given on the trial that the lessee, Frank Conklin, entered into possession of the premises 'and occunied the same and the rent had not been paid quite satisfactorily established a cause o£ action against Frank Conklin, the lessee.

(2) When the plaintiff rested, a motion was made to “ dismiss the complaint as against Luther Conklin on the ground that he is not a party to the lease and is not liable thereon;” and second, that there is no evidence that will warrant a judgment against Luther Conklin or against any defendant that will support a joint judgment in this action.” The motion was denied. Thereupon Luther Conklin was sworn as a witness, and he was asked : “ Did you sign the lease as a subscribing witness only ?” This was objected to, and the objections were sustained. The following question was then put to him: “ Did you ever sign that paper, plaintiff's exhibit A,' except as a witness to the execution of it?" This was objected to, and the objections were sustained. At the close of the evidence a motion for a non-suit was renewed on the whole evidence on the same grounds and on the further grounds, “ That the plaintiff has not signed the lease, and the minds of the parties did not meet, and the lease is void." The motion was denied. The lease produced bore date January 10, 1891, and read as follows : “ This article of agreement made and entered into this 1st day of February, 1891, by and between Harry Evans * * * party of the first part, and Frank W. Conklin * * * party of the second part, witnesseth, that the party of the first part agrees to let, and by these presents does let unto the party of the second part, for the term of one year, his farm situate in the town of Fabius." Many other stipulations are found in the lease, and there is nothing in the body of it nor in any attestation clause indicative that Luther S. Conklin was in any way a party to the agreement. However, his name appears to have been written immediately under the name of the lessee, Frank W. Conklin.

In Decker v. Gaylord, 8 Hun, 111, it appeared that a lease had been signed by the lessee,, and thereafter appeared the words “ Chester Gaylord, security for Frederick S. Gaylord; ” and in the course of the opinion delivered in that case it was said that the defendants were not joint lessees of the plaintiff and that they could not be held liable upon the lease given in evidence in that capacity; and in the opinion it was said: “ The lease was clearly a contract between the plaintiff and the defendant Frederick S. Gaylord. He was the lessee and the sole contracting party as such in the lease, and the defendant Chester signed the same as his surety, and is not a lessee named in the lease, and he did not make himself a party to the same, except as a guarantor, or as he expressed it in words following his signature, as ‘security for Frederick S. Gaylord.’ ”

In Gould v. Moring, 28 Barb., 444, there was an agreement to pay rent of certain premises made by Heilbert; after his signature appeared the words, “ Security, H. E. Moring," and it was held that “ The consideration not being expressed in the undertaking of the defendant, it was. void by the statute of frauds and in the opinion it was said: “In this case the defendant undertakes as security for the tenant; that is, that he will pay if the defendant does not. A joint action will not lie against them both; they are not the same, but different and distinct contracts. De Ridder v. Schermerhorn, 10 Barb., 638; Allen v. Fosgate, 11 How. Pr., 218. It follows, therefore, that the present case falls directly within the rule laid down in Brewster v. Silence, and the consideration not being expressed in the undertaking of the defendant, it is void by the statute of frauds, as the same exists in this state.” We think the plaintiff failed to make out a cause of action against Luther Conklin. We think there was no error in the county court affirming the judgment as to Frank Conklin and that the judgment rendered by the county court, as to Frank Conklin, should be affirmed by this court. The notice of appeal to the county court was signed in behalf of both defendants; so too the notice of appeal to this court. Evidence was given on the trial before the justice tending to show that the defendant, Luther, at the time of the execution of the lease, became aware that the plaintiff expected that he would be surety for the lessee, and that his defense has more foundation in technical law than it has in the equities surrounding his case.

Under such circumstances we are inclined to affirm the judgment as to Frank Conklin, and to modify the judgment of the county court so far as it affirms the judgment as to Luther Conklin by providing that the judgment of the justice be reversed as to Luther Conklin, with ten dollars costs, besides disbursements in the county court, and that the judgment, as so modified, be affirmed, without costs to Luther Conklin in this court.

Section 8063 of the Code of Civil Procedure provides that the appellate court may affirm or reverse the judgment of the justice in whole or in part and as to any or all of the parties, and for errors of law or of fact; and § 3066 in subd. 5 provides, viz: ‘‘If the judgment is affirmed only in part, the costs, or such a part thereof as to the appellate court seems just, not exceeding ten dollars besides disbursements, may be awarded to either party.”

Judgment of the county court modified so that the same shall contain a provision affirming the justice’s judgment as to Frank Conklin, with costs; and reversing the judgment as to Luther Conklin, with ten dollars costs and disbursements in that court; and the judgment as so modified affirmed, with costs of the appeal in this court to the respondent against Frank Conklin only,, and without costs of the appeal in this court to Luther Conklin»

Merwin and Parker, JJ., concur.


text:
    H. Wilson Blashfield, Resp’t, v. The Empire State Telephone & Telegraph Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 23, 1893.)

    I. Highways—Telephone lines.
    The construction of a telephone line by the erection of poles and the placing of wires thereupon within the limits of a country highway constitutes an additional burden upon the fee of adjacent lands extending to its center not contemplated or included in the original dedication, for which the owner is entitled to compensation.
    8. Beeerence—Evidence.
    A referee has no power, after the case has been closed and submitted to him, to strike out evidence which has been improperly admitted, unless the right to do so has been specially reserved.
    (Merwin, J., dissents.)
    Appeal from a judgment entered upon the report of a referee in Cortland County, April 9, 1892, for $2,076.61. The action was trespass brought by the plaintiff as assignee of sixty-eight alleged causes of action for building and maintaining telephone lines along certain highways in Cortland county without having made compensation to the owners of the fee of the highways over which the lines extended.

      Frederick E. Stroke, for app’lt; Franklin Pierce, for resp’t.
   Hardin, P. J.

An opinion was delivered by the learned referee in which he states “The principal question in this case, and the first one to be met and disposed of is, whether or not the construction of a telephone line by the erection of poles and the placing of wires thereupon within the limits of a country highway constitutes an additional burden upon the fee of adjacent lands extending to its center not contemplated or included in the original dedication or appropriation of the land for highway purposes.” Upon the question the learned referee concludes a lucid opinion as follows: “That the construction of defendant’s telephone lines did impose an additional burden upon the fee of the highway for which the owner was entitled to compensation.” Since the learned referee’s opinion was written the case of Eels v. American Telephone & Telegraph Co., 48 St. Rep., 303; S. C. 20 N. Y. Supp., 600, has been decided by the. fifth department, and in that case it was held, “The occupancy of a highway by the poles of a telegraph or telephone company is not one of the ordinary and legitimate uses for which highways are established, and is the imposition of an additional burden on, and the talcing of, the property of the owner of the fee, which enables him to maintain an action to compel the removal of the poles, and to recover possession of the premises occupied thereby, with damages, where such occupancy is without his consent and without compensation having been previously made him therefor.”

(2) Plaintiff produced upon the hearing before the referee numerous witnesses to detail facts relating to the extent of the damages sustained by the several assignors of the plaintiff by reason of the acts of the defendant. It was also stipulated that the referee might pass along the lines and view the several poles and the locations and the facts and circumstances surrounding them, and to take such observations into account in assessing damages. He, in company with the attorneys, passed over a larger portion of the lines, and it' must be assumed he observed the situation of the poles and lines and the extent of the interference with the properties of the several assignors. Plaintiff called numerous witnesses to give evidence upon the subject of the damages sustained by the several assignors. Questions were propounded to them calling for their opinions as to the extent of the damages sustained by reason of the acts of the defendant. Objections were seasonably taken to the opinions ; they were overruled and exceptions were taken to the rulings. The evidence was submitted to the referee, and during the time he had the cause under deliberation he discovered the decision made- by the court of appeals in Dwight v. E. C. & N. R. R. Co., 132 N. Y., 199; 43 St. Rep., 723. Without any further hearing of the parties or without .their being before him and-asking any ruling or decision, and while having the cause under consideration for final determination of the issues, he became doubtful about his rulings as to the admission of the opinions of the witnesses on the subject of the damages; and in his report he states in the seventy-fourth finding as follows : “ I allowed the plaintiff upon the trial to call a number of witnesses, chiefly from among the plaintiff’s assignors, and after the witnesses had described the nature of the injuries to their respective farms, I permitted them, upon the question of the injury to the rental value of their respective premises by the erection and maintenance of these telephone lines, to give in some cases their opinion as to what the rental value would be or would have been without the telephone poles thereon. After such evidence was given, I was invited by the attorneys for the respective parties to ride over the telephone routes involved in this controversy, and to observe the nature and the extent of the injuries described in the evidence, and it was stipulated that I might consider what I thus observed in determining the amount of the plaintiff’s damages if it should become necessary for me to so determine. I made such examination in company with the attorneys of the respective parties in September, 1891.

Upon reflection and examination, I became doubtful as to the competency of the said opinion evidence given by--, plaintiff’s witnesses, as before detailed, and before assessing the damages herein I called the attention of the attorneys of the respective parties to my doubt as to the competency of such evidence, and stated to them that upon my own motion I should strike out such evidence and disregard the same in assessing damages herein. I have, therefore, stricken out all such opinion evidence on the part of the plaintiff’s witnesses, and I have entirely disregarded the same in my assessment of the plaintiff’s damages, and I have assessed said damages entirely upon a consideration of the description of the damages given by both the plaintiff’s and defendant’s witnesses herein, and also upon my personal observation as to the nature and extent of such damages so far as the same could be ascertained by me in an examination while riding along said line. An exception to my action in thus striking out such evidence is hereby given to either party who feels himself aggrieved thereby with the same effect as though taken by him upon the trial of the action.” Our attention is called to several reported cases adverse to the action of the referee. Allen v. Way, 7 Barb., 585; Meyers v. Betts, 5 Denio, 81; Bloss v. Morrison, 47 Hun, 218; 14 St. Rep., 379. In the last case it was held, viz.: “ Whatever may be the power of the court or the referee, during the progress of the trial, as to striking out evidence which has been improperly admitted, no such right can exist after a case has been submitted for decision, unless such right has been specially reserved.” Hear the close of the opinion in that case it was said : “ The record of the evidence is closed with the submission of the case and cannot be thereafter altered except by the consent of the parties. It may be that in the case at bar the erroneous ruling of the referee made no difference in the defense offered by the appellant, but of this we cannot be certain, and even the seeming recognition of the right under discussion as possessed by either a court or referee would be so dangerous to suitors that in this instance it cannot pass unchallenged.” Respect for that authority seems to require us to condemn the action of the referee.

(3) Numerous other questions have been presented by the appellant. Doubtless upon another trial the evidence will be changed to some extent and it is not' deemed useful to comment upon the evidence nor to consider the rulings in detail.

Judgment reversed and a new trial ordered before another referee, with costs to abide the event.

Parker, J., concurs; Merwin, J., dissents.