text:
    The People, Pl’ffs, v. The Binghamton Trust Company, Def’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    1. Injunction—Submission on controversy.
    Section 1281 of the Code expressly prohibits the granting of an injunction in a controversy submitted upon admitted facts.

      2. Banks—Laws 1882, chap. 409, § 283.
    In chapter 409, § 283 of the Laws of 1882, which provides that “it shall not be lawful for any hank, hanking association or individual banker, firm, association, corporation, person or persons, to advertise or put forth a sign as a savings bank, or in any way to solicit or receive deposits as a savings bank,” the obvious intention was to render it unlawful to advertise, put forth a sign, solicit or receive deposits claiming or pretending to be a savings bank, and a trust company which advertises as such to receive savings deposits and issue pass-books does not violate the statute.
    This was a submission of a controversy under § 1279 of the <Jode of Civil Procedure. The admitted facts were substantially as follows:

      First That the defendant was incorporated in 1890, under the provisions of chapter 546 of the Laws of 1887, is located at Binghamton, N. Y., and commenced business on the 8th day of September, 1890.

      Second. That in connection with its other business the defendant receives from its customers loans or deposits in large or small amounts, and issues a pass-book, which contains the following printed matter:
    “ The Binghamton Trust Company. Interest' Department. Buies governing deposits:

      “ No. 1. This company will be open for the reception of deposits every legal business day from 9 Lit to 3 P. M., except Saturdays, when the hours will be from 9 A. M. to 12 M., and from 7 p. M. to 9 P. M.

      “ No. 2. All deposits will be entered in the books of the company, and a pass-book given to each depositor, in which the sum deposited and withdrawn will be entered by an officer of the company, and which shall be the evidence of the amount of money deposited and withdrawn.
    “ No. 3. In order to draw money the pass-book must be presented, accompanied by a written order or check of the depositor. If the signature of the depositor be not on signature book, it must then be properly authenticated. No depositor shall have the right to demand any part of his or her principal or interest without first giving to the company, in writing, ten days notice for all sums of $100 or under; twenty days notice on sums between $100 and $500, and thirty days notice on sums of $500 and upwards; but money may be voluntarily paid by the company at any time without such notice, and without thereby waiving the right of the trust company to exact such notice thereafter. In all cases, when the whole deposit is withdrawn the pass-book must be surrendered to the trust company.
    “ No. 4. Interest will be paid at the rate of four per cent, per annum on all deposits left three months or longer. Interest will be compounded semi-annually and entered upon the book of the depositor when presented. No deposit of a less sum than of one dollar will be received, and interest will not be computed on the fractional part of a dollar; and no less sum than one dollar shall be withdrawn at any time except to close an account.

      “ No. 5. The trust company shall be at liberty to return the whole or any part of the deposits of any depositor, with accrued interest, whenever it may deem it advisable to do so, and to refuse to receive the deposits of any individual whenever it may ■deem it proper.
    “ No. 6. Money may be deposited for the benefit of minors or -others with such directions as may be given in writing at the time •of making the deposit.
    “No. 7. Should any pass-book be lost, the owner is required to give immediate notice thereof to the trust company, and the ■company may require such testimony and security as it may deem expedient before making any payment to such depositor or to his order, or before issuing duplicate pass-book.
    “ No. 8. The acceptance of this book, and the entries therein, .shall be conclusive evidence that the rules governing deposits printed herein are agreed to by the trust company and the ■depositor.”

      Third. That the defendant issues and distributes a circular, of which the following is a copy:
    “The Binghamton Trust Company announces to the public that it is ready to receive deposits of money, and to transact such other business as its charter permits, at its office corner of State and Henry streets, Binghamton, N. Y. While a trust company may be something unique among the banking institutions of the 1 southern tier ’ of counties, its organization is intended to supply a need that has long existed. East of Binghamton there is none nearer than New York; north, none nearer than Syracuse ; west, none nearer than Buffalo ; while south, a large section of Pennsylvania is unsupplied with a similar institution. In this extensive territory there is a large amount of capital held by- its owners without earning any return, which, through the medium of a trust •company, can be made to realize a definite income. The large -capital employed, and the restrictions to which the trust companies are subjected by the laws of the state, render them the safest kind of depositories; and, as the name implies, are institutions that the people may trust with their savings. The Binghamton "Trust Company has a paid-in capital stock of $400,000, and its list of stockholders is a directory of the wealth of Binghamton. Each stockholder being liable to the amount of his stock, and ■every stockholder being abundantly responsible, the actual security afforded the depositor in The Binghamton Trust Company is $800,000, in addition to the assets in which the deposits are invested. The capital of the company is required by law to be invested in bonds and mortgages on unincumbered real estate in the state of New York, worth at least double the amount loaned thereon; on stocks of New York state, or in stocks and bonds of incorporated cities or counties of the state, duly authorized to be issued, thus placing the capital in securities of undoubted safety, ■of fixed value, and of a kind unaffected by stock manipulations. By its charter The Binghamton Trust Company has authority and is prepared to loan money on real or personal security; to act us fiscal or transfer agent, as trustee, guardian or receiver, as executor or administrator, as committee.of the estate of persons of unsound mind; to act as agent in. the collection of income or rents ; to accept and execute trusts of married women in respect to their separate property; to take, accept and execute any and all trusts that may be committed to it; to receive deposits in trust; to receive deposits of money in active account, subject to. check at sight without notice; to receive deposits, and issue therefor certificates transferable and payable on demand, with interest at the rate of four per cent per annum, if left three months, and special rates for other definite periods.
    “ An interest department has been organized and deposits therein will be governed by the following rules: (Which were the same as set forth in the second statement of fact.) This trust company differs from a savings bank in that it has a large capital, safely invested, that is pledged as security to its depositors. This pledge, with the liability of the stockholders, amounts to $800,000. Bight hundred thousand dollars, therefore, stand between a depositor in this company and any possible loss. Interest is paid at a fixed rate, and is not dependent upon earnings. There being no stated dividend period, deposits can be withdrawn at any time after three months, and full Interest will be paid to date of withdrawal. The trustees are well known business men. Successful in their personal affairs, they bring to the management of the trust company experience and sound judgment that are sufficient guarantees that any trust, committed to the company will be faithfully and honestly executed. The trust company is free from the contingency of death, which is so often a disastrous feature in the selection and appointment of an individual as trustee. When a person selects it to act as his trustee he has the assurance that it will be in continuance as long as the trust lasts. Securities will be cared for and receipts given. A special room will be assigned to the patrons of the company desiring to look over their securities, or for the transaction of private business. A suitable room, when desired, will be assigned corporations for holding meetings. To ladies in particular, the trust company is expected to be a benefit and convenience. Their patronage is especially solicited, and they will receive every attention and consideration. A room is provided for their exclusive use, and also a separate pay window. Any assistance or advice they may wish in regard to the transaction of their business will be gladly given by the officers of the company. Competent and courteous clerks in charge will give information and render all assistance desired for the prompt and satisfactory transaction of business. By courteous treatment and honorable dealing, the company hope to merit and receive your confidence and patronage.”

      Fourth. That the defendant inserts in the papers published in the city Of Binghamton and surrounding country the following advertisement:

      “ The Binghamton Trust Company, corner State and Henry streets, Binghamton. Paid in capital, $400,000. Stockholders personally liable for $400,000 more. Bight hundred thousand dollars stand between a depositor in this company and possible loss. It will receive active deposit accounts subject to check at sight. This company, is a legal depository for moneys paid into» court, and is authorized to act as guardian, trustee, executor and administrator; also as registrar, trustee, transfer agent and fiscal agent for states, cities, towns, railroads and other corporations. Collects rents, coupons and dividends. Ladies unaccustomed to . the transaction of business will find this company of great assistance. The company will loan money on real or personal security and issue drafts and bills of exchange. Approved mortgages purchased. An interest department has been organized and deposits therein will draw interest, until further notice, at the rate of four per cent per annum, if left three months or longer, subject to usual rules. Interest begins at date of deposit, and draws interest till withdrawn. Send for pamphlet giving full particulars.’’

      Fifth. The defendant receives deposits and loans from its customers upon the terms and under the regulations set forth in the pass-books delivered to depositors and in the advertisements set forth herein.

      Sixth. The plaintiffs claim and allege that the defendant in carrying on the class of business of receiving deposits of money, paying interest thereon, issuing the pass-book as referred to, and under the rules, regulations and advertisement herein set forth, is exercising privileges not conferred upon said corporation by law, and violates the provisions of law under which it was incorporated and other laws binding upon it, and particularly violates § 283 of chapter 409 of the Laws of 1882, known as the banking-law, and the superintendent of the banking department of the state of Hew York has reported such violation to the attorney general.

      Seventh. The defendant claims that, in carrying on the business in the manner stated, it is exercising powers conferred upon it by law, and not in violation of chapter 409 of the Laws of 1882, § 283.

      Eighth. The plaintiffs demand that judgment shall be entered upon this submission in favor of plaintiffs, restraining the defendant, “ The Binghamton Trust Company,” from carrying on business in the manner referred to, so far as said business is in violation of the provisions of the banking law of this state; that it may be decreed that the defendant is exercising franchises not conferred upon it by law : that the plaintiffs may recover a money judgment against the defendant for a penalty of $100 for carrying on said business as alleged in violation of law, and particularly § 283 of chap. 409, Laws» of 1882, known as the banking law, and that the plaintiffs may have such other and further relief as to the court it may seem just and proper to grant

      Ninth. The defendant demands that judgment shall be entered upon this submission, declaring that it has not violated any provision of law of this state, and especially § 283 of chap. 409 of the Laws of 1882, and that it is authorized to carry on business in the manner herein referred to, and under the rules, regulations and advertisements set out in this submission; but if not, then that the relief prayed for by plaintiffs may be granted.

      The district attorney of Broome county joined in this submission and demanded the enforcement of the penalty therein asked for.

      S. W. Rosendale, atty. gen., for pl’ffs; W. J. Welsh, for def't.
   Martin, J.

—The submission in this case discloses that the judgment sought by the plaintiffs is, to restrain the defendant from carrying on business in the manner described in the submission, so far as it is in violation of the provisions of the banking law of the state; to adjudge that the defendant is exercising franchises not conferred upon it by law; and for a penalty of $100 for carrying on business in violation of the provisions of § 283 of chap. 409 of the Laws of 1882. - The only actual relief which the plaintiffs ask is: 1. To restrain the defendant from

continuing business in the manner mentioned; and 2. To recover the penalty provided for by § 283. The former cannot be awarded.. ISTo relief by injunction can be granted in a proceeding like this. Therefore, so far as this proceeding is for an injunction, it should be dismissed. Cunard Steamship Co. v. Voorhis, 104 N. Y., 525; 5 St. Rep., 736; Paterson v. Mut. L. Association of America, 19 Civ. Pro., 262; 33 St. Rep., 703.

This leaves for consideration the question whether the plaintiffs are entitled to recover a penalty under the statute which provides, “It shall not be lawful for any bank, banking association or individual banker, firm, association, corporation, person or persons, to advertise or put forth a sign as a savings bank, or in any way to solicit or receive deposits as a savings bank; and any bank, banking association or individual banker, firm, association, corporation, person or persons, which shall offend against these provisions, shall forfeit and pay for every such offense the sum of $100 for every day such offense shall be 'continued, to be sued for and recovered in the name of the People of this state, by the district attorneys of the several counties, in any court having cognizance thereof, for- the use of the poor chargeable to said county in which such offense shall be committed.” Laws 1882, chap. 409, § 283. Whether or not such recovery can be had depends upon the construction to be given to this statute.

If the purpose of the statute was to prohibit any person, firm, corporation or association from either soliciting or receiving deposits in the manner in which they are usually solicited and received by savings banks, it would seem that the plaintiffs would be entitled to a judgment for the penalty demanded, for, when we consider the facts stipulated as to the nature of the business transacted by the defendant, the manner in which it was performed, the circulars the defendant distributed and the advertisements it published, it is quite manifest that the defendant solicited and received deposits in substantially the same manner as they are solicited and received by savings banks.

Thus, the question is presented whether the legislature intended to confer upon savings banks a monopoly of the class of business usually transacted by them, or whether the intent and purpose of the statute was to protect the public against deception or imposition by prohibiting the receiving and soliciting deposits by any person, iirm, corporation or association under the claim or pretense of being a savings bank. We think the latter was the purpose of the statute. This becomes quite obvious when we read all the provisions of that section. The manifest purpose of the section was to render it unlawful to advertise, put forth a sign, solicit or receive deposits claiming or pretending to be a savings, bank.

If such is the proper construction of the statute under consideration, and we think it is, it follows that the plaintiffs, are not entitled to recover the .penalty sought to be recovered in this action, as the statement of facts is insufficient to justify us in holding that the defendant in any manner held itself out as a savings bank or solicited or received deposits claiming or pretending to be such.

These considerations lead us to the conclusion that this action,, so far as it is for an injunction to restrain the defendant from carrying on its business in the manner mentioned, should be dismissed, and so far as it seeks to recover a penalty, judgment should be entered in favor of the defendant upon the merits, with costs.

Judgment is directed accordingly. The form of judgment, if not agreed upon, to be settled before Martin, J.

Hardin, P. J., and Merwin, J., concur.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    Maurice Nelligan, Resp’t, v. George G. Campbell, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    Principal and agent—Agent bound when he exceeds his authority.
    Defendant, president of a corporation, executed an instrument for the-corporation whereby the latter became surety upon a lease given by plaintiff. In an action brought against the corporation to recover the defaulted rent, it appeared that defendant acted without authority, and a non-suit was granted. Plaintiff then brought action against the defendant, personally to recover the rent. Held, that defendant, having as agent exceeded his authority, was personally liable for the defaulted rent.
    Appeal from a judgment of the county court of Onondaga county, affirming a judgment rendered in a justice’s court. The complaint in the justice’s court was “for breach of contract, and for rent due in the sum of $200.” The answer contained a denial of the complaint only. On the 12th of August, 1890, the plaintiff executed a lease of his premises 205 and-207 North Salina street, in Syracuse, to Ament & Waldroff, until the 1st day of May, 1891. In the lease it was stipulated “ that the lower floor of said premises shall be used for a saloon and restaurant only; and .that the family of the party of the second part shall occupy the upper floor of said premises, and occupy the same at night.” Subjoined to the lease was an instrument which recited, viz: “In consideration of the letting of the premises above mentioned to the above named Frank B. Ament and Bert Waldroff, and the sum of one dollar to me in hand paid by the party of the first part, the receipt whereof is hereby acknowledged, we, the Syracuse Brewing Company, a body corporate, do hereby covenant and agree to and with the pai’ty of the first part and his lawful representatives, that if any default shall at any time be made by the said Frank B. Ament and Bert Waldroff in the payment of the rent.and performance of the covenants in the foregoing lease, during said term, on their part to be paid and performed, we will well and truly pay the said rent or any part thereof, or any arrears thereof that remain due unto the said party of the first part, with tho agreement and understanding of all the parties hereto, that if said Frank B. Ament and Bert Waldroff or his assigns shall make default in the payment of any of the rents in said, lease mentioned, we shall have written notice of such default, within thirty days from the time it is made, and in consideration of said guarantee of payment, the said Frank B. Ament and Bert Waldroff hereby consents that we shall have the assignment of this lease as a collateral security for our guarantee of payment as aforesaid.
    “ In witness whereof, we have hereunto set our hands and seals, this 18th day of August, 1890. .
    “Syracuse Brewing Company. [l. s.]
    “ By Geo. G. Campbell, President.”
    Proof was given upon the trial of the service of two copies of the notice of default in the payment of the rent and demanding from the defendánt payment thereof, and that a personal demand was made of the tenants and of the defendant before the commencement of the action, and that “ There was due and unpaid on November rent, $48.00; on December rent, $83.33; on January, $83.33; no part of this has been paid to me.” Before the justice’s court the plaintiff remitted $14.66 and demanded a judgment only for $200, which was rendered in favor of the plaintiff. Prior actions were brought against the brewing company resulting in non-suits. In the trial of those actions the defendant was sworn as a witness and denied his authority to execute the guarantee of payment already referred to; he testified “ I was induced to think I had authority to sign by conversations had by some of the directors; I had no authority by any resolution of the defendant’s board of directors; I talked the matter over and they did not tell me to sign or not to sign it; directors of the company did not tell me to sign this guarantee or to make this affidavit; there was never any resolu- ' tians passed by the board of directors of the defendant which authorized me to sign guarantee or affidavit”

      Waters, McLennan & Waters, for app’lt; Charles G. Baldwin, for resp’t.
   Hardin, P. J.

—If the action is to be regarded as one founded upon an • implied guarantee on the part of the defendant to execute the contract, or an action for rent due, we think, with the laxity allowed in justice court in respect to the pleadings,, the complaint must be deemed sufficient.

We think Bartholomae et al. v. Kauffmann, 47 Supr. Ct., 553, sustains the plaintiff’s right of recovery. That was an action to recover the rent covenanted to be paid by a certain lease between the plaintiffs as lessors and “ the trustees of the German American Institute ” as lessees, and signed and sealed by the defendant “ for the board of trustees, by S. Kauffmann, treasurer.”

On the trial it appeared that the organization was a mere voluntary association and that Kauffmann had “ no authority to bind his associates;’’ a verdict was rendered against the defendant Kauffmann, and it was said by the general term : li That the defendant Kauffmann having executed the lease as treasurer, without authority from the other defendants as patrons of the •school, some of whose children had attended it, and there being no trustees in fact, and only a mere voluntary association, by such execution of the lease he became liable.” The case was taken -to the court of appeals, and was affirmed, as appears in 91 N. Y., 654. An abstract of the opinion delivered in the court of appeals by Danforth, J., appears in 16 W. Dig., 127, and it was held “ that K was not screened by the epithets used, and, when they were shown to be shams, he remained the contracting party, and, as such, personally liable for the obligation expressed in the lease; that is, he impliedly, if not expressly, undertook that the authority he professed to have did, in fact, exist, and as it did not, • he was also liable on that ground. Leake on Contracts, 511.” (The case was decided in January, 1883.)

In Simmonds v. Moses, 2 Eastern Rep., 299, decided by the court of appeals October, 1885, it was held: “ A contract made by an agent in excess of his authority from his principal binds the agent personally; and that is so, notwithstanding the agent acts in good faith, supposing that he is within the terms of the instructions received from his principal.” In that case it was said: The plaintiffs have no cause of action against the principals, for the order they executed was not their order. Hence, it was given by the defendants in excess of authority, and there seems no reason why they should not make good all damages which the plaintiffs •sustained in consequence of their belief that the authority assumed did in fact exist Baltzen v. Nicolay, 53 N. Y., 467.” In that case the contract was in writing, “ And was, moreover, sufficient in form to satisfy the statute of frauds. The defendants are held liable because they had no authority to make it, and hence, though sufficient in form, it cannot be enforced against the apparent principals.”

Ho question was raised in the court below that the agreement, if executed by the Brewing Company, would not have been valid. Ho evidence was given upon the trial from which we can infer or assume that the contract was illegal or ultra vires.

In Whitney Arms Co. v. Barlow, 63 N. Y., 63, it was held that The plea of ultra vires as a general rule will not prevail, whether 'interposed for or against a corporation, when it will not advance justice, but on the contrary will accomplish a legal wrong. ” Rider Life Raft Co. v. Roach, 97 N. Y., 378. We think it was found as a matter of fact in the justice court that the defendant impliedly warranted that he had authority to execute the guarantee, whereas in fact, as the evidence revealed, he had no such authority; and that the evidence justified the judgment given to the plaintiff by the justice court, and was properly affirmed by the county court. Burnham v. Butler et al., 31 N. Y., 480.

Judgment of the county court of Onondaga county and that of the justice’s court affirmed, with costs.

Martin and Merwin, JJ., concur.


author: Hardin, P. J. Merwin, J.

text:
    Jane Teeter, Resp’t, v. Andrew Teeter, Impl’d, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    Appeal—Verdict—Conflicting evidence.
    The general term will not in a doubtful case upon conflicting evidence disturb the verdict of a jury or the finding of a referee.
    Appeal from a judgment entered on the 13th day of April,. 1891, and from an order of the special term denying a motion for a new trial made upon a case and exceptions on the 1st day of December, 1891, entered in Tompkins county. In December,, 1890, a special term ordered the action to be tried before a jury and the following question be answered:
    “ Q. Did Andrew Teeter prior to the death of Guy Teeter execute and deliver to him a deed of the premises in the complaint mentioned ?”
    The jury rendered a verdict in favor of the plaintiff. After the verdict was rendered, and at a special term held on the 9th day of March, 1891, by the justice who presided at the trial at the circuit, upon the evidence submitted to him, found that on the-4th day of April, 1886, the defendant Andrew Teeter was the-owner of all the land described in the complaint, and that on. that day he “ caused to be drawn and duly signed, executed and acknowledged a good and sufficient deed of conveyance of said premises, conveying the same to Guy Teeter. That thereafter-said deed was delivered by the defendant Andrew Teeter to the said Guy Teeter, the grantee therein named; that the said Guy Teeter died on the 13th of May, 1889, intestate, leaving him surviving this plaintiff, Jane Teeter, his widow, and the infant defendants Libbie Teeter, Cecil Teeter and Clyde Teeter, being his. only children and heirs at law.” Also: “ That after the death of the said Guy Teeter, and before the commencement of this-action, this plaintiff duly demanded of the defendant Andrew Teeter the deed aforesaid, and the said Andrew Teeter refused to deliver up said deed to this plaintiff or to anyone in her behalf,” he having received the same from Guy Teeter for safe keeping. Among the conclusions of law the court found: “That Guy Teeter was, at the time of his death, May 13, 1889, the owner of the premises above described in fee simple absolute, subject to the inchoate dower right of the defendant Elizabeth Teeter; that upon his death intestate the said premises descended to his three children, Libbie Teeter, Cecil Teeter and Clyde Teeter, subject to the-dower right of his widow, this plaintiff, Jane’ Teeter, therein, and .subjecu to the inchoate dower right of Elizabeth Teeter, and they are now the 'owners of said premises.” He also found that the defendant Andrew Teeter “ should be compelled, ordered and adjudged to execute a good and sufficient deed of conveyance of the premises above described to the plaintiff, Jane Teeter, and to her three children; * *

      D. C. Bouton, for app’lt; M. M. Tompkins and C. C. Van Kirk, for resp’t.
   Hardin, P. J.

—Appellant claims “There was not sufficient evidence of the execution and delivery of the deed to warrant the verdict of the jury.” After a careful perusal of the evidence we .are of the opinion that the finding of the jury and the finding of the special term are sustained by ample evidence, and that the conclusions reached upon the evidence are in accordance with the weight of the testimony. It is true the defendant offered considerable evidence tending to support the position taken in his behalf. After a careful perusal of the evidence on both sides, and giving such weight as should properly be allowed to the verdict of the jury, and the finding of the trial judge, we are of the opinion that the findings made by the jury and the findings made by the trial court should be sustained. Weighmann v. Sire, 43 St. Rep., 27. "We think the principle stated by Boardman, J., in. Roosa v. Smith, 17 Hun, 139, is applicable here. He said: “ But we think it very clear that a-general term cannot in a doubtful case Upon conflicting evidence, like the one under review, assume the place of the referee, and determine from the mere reading of the evidence who has told the truth, or is best entitled to credit. This would be imposing upon us a duty unsafe to exercise, and dangerous in its ordinary use. It would make of a referee to try an issue simply a referee to report the testimony to this court, which in such cases would review nothing but the evidence, giving such a decision as in its judgment upon the evidence is just; * * * we do not understand it can be called on in doubtful cases upon conflicting evidence, depending upon the character and credibility of witnesses, to. review and readjust the facts upon the evidence as it shall appear to it on paper.” Beckwith v. The New York Central Railroad Company, 64 Barb., 299. In the latter case it was said that in order to warrant the court in sustaining the verdict, “ the finding must be either without evidence, or so decidedly against the weight of evidence that it must have been brought about by either partiality, corruption or gross ignorance.” Heritage v. Hall, 33 Barb., 347; Cohen v. Dupont, 1 Sandf., 260.

We have looked carefully at the rulings criticized by the counsel for the appellant, and we are not persuaded that any error was committed which was prejudicial to the appellant. Church v. Kidd, 3 Hun, 254; Post v. Mason, 91 N. Y., 539.

The result gives the widow and her children the farm which ■was apparently paid for by the deceased husband and father, in possession of which he had been for over twenty years prior to his death,, and accords with substantial justice as shown by the -evidence found in the appeal book. We think the language of Ruger, Ch. J., in Stanley v. National Union Bank, 115 N. Y., 138; 23 St. Rep., 966, is applicable where he says : “We may go still farther and say that, under the evidence in the case, we are of the opinion that the verdict accords with the probabilities and justice of the case.”

Judgment and order affirmed, with costs against the appellant.

Martin, J., concurs.

Merwin, J.

—I think the judgment should be affirmed.


text:
    The People ex rel. Patrick Ready, App’lt, v. The Mayor, etc., of Syracuse et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    1. Municipal corporations—Contracts—Interpretation—Action at LAW FORBIDDEN.
    The relator contracted with defendants to build a drain; by the terms of the contract no payment was to be made to him until the cost of the work should be ascertained and assessed upon and collected from the taxpayers liable to local taxation upon the same. Held, that under the provisions of such contract relator could not maintain an action at law for the recovery of the contract price.
    2. Same—Mandamus to enforce.
    Such contract contained the provision that “ the return of the city engineer shall be the account by which the amount of work done shall be computed;” that said engineer shall at once after completion and acceptance of the work send such account to the common council, and it, if satisfied, must approve the same. All this was done, an assessment roll for such improvement was left with the city treasurer and he received a small portion of the same, but took no steps to collect the rest nor paid over to relator the amount collected. On motion a peremptory writ of mandamus to enforce collection and payment was refused and a trial ordered, which was had before the court, a jury having been waived, and the writ refused. Held, that the writ was improperly denied.
    Appeal from a final order entered in Onondaga county clerk’s office on the 18th of April, 1892, denying the application of the relator for a peremptory writ of mandamus, with costs. August 8, 1890, an alternative writ was allowed at the special term and a! return was filed to 'the writ September 5, 1890. In behalf of the relator it was alleged that he was a contractor with the city for the construction of a 36 inch brick sewer in Spruce street from Washington to East Fayette street, and in East Fayette street from Spruce to Beech street; that he had completed the contract; that the city engineer had certified to such completion and to a final estimate therefor; that the common council upon the receipt of such certificate had adopted a resolution declaring its intention to issue local improvement bonds to pay for such improvement under the provisions of the city charter. That an assessment roll for such improvement was left with the city treasurer after the appointment of appraisers and the apportionment of the expenses upon the several lot owners ; that the treasurer had received and collected $1,371.19 on account of said improvement; that no furtlier proceedings have been taken by the defendants to collect the-balance, and that the relator had not received the $1,371.19, nor any part of it; that the relator asked to have the writ command the payment of the $1,371.19, the issuing of the bonds specified in the resolution and the application of the proceeds to the payment of the costs of the improvement, and that the collection of the taxes upon the said assessment roll remaining unpaid be enforced. There was a return to the writ which admitted the exe cution of the contract and averred that the relator undertook to perform the work and furnish the materials referred to in the contract, but that he had failed and neglected so to do; and had so performed the work and built the sewer as to make it practically useless and of no benefit whatever to any of the owners along the line of the improvement. The return also alleged that the certificate given by the city engineer was given under a mistaken idea of the facts and was erroneously and incorrectly made. It alleged that upon the receipt of said certificate the common council directed the cost of the improvement to be assessed upon the property along the line of the sewer and passed a resolution to that effect on the 31st of March, 1890. A peremptory writ was refused on motion and a trial ordered at the circuit in January, 1891; and a trial was had, a jury having been waived, before the court After hearing the evidence offered by the relator and the evidence offered by the defendants the court made and filed a decision denying the writ, with costs. From the judgment entered upon such decision this appeal is taken.
    The court found as conclusions- of law, as follows:
    “ 1. That any change or alteration made or consented to by relator of the said city engineer in the construction of said sewer, or in the depth or grade of the same, from that provided for. by said contract, plans, specifications and profile was illegal and unauthorized in law, and not binding on the city of Syracuse, or the common council of that city.
    “ 2. That the certificate or final account submitted by said city engineer on the 23d day of December, 1889, was not conclusive or binding on the city of Syracuse, and that said city of Syracuse, or the common council of said city, was not estopped by said certificate or account from denying the performance of said contract.
    “ 3. That the work as performed, and the sewer as constructed by said relator, was not a substantial compliance with the terms of said contract.
    “ 4. That the common council of said city was in no ways es-topped from rescinding the intent and directions expressed in the said resolution of March 31, 1890.
    “5. That the city of Syracuse cannot be compelled to issue bonds for the purpose of raising money to pay the balance of said assessment or any part thereof.
    “ 6. That the city of Syracuse cannot be compelled to issue a warrant for the collection of the balance of said assessment remaining unpaid or any part thereof.
    “ 7. That the city of Syracuse cannot be compelled to pay the relator any monies received by it from the property owners assessed for the construction of said sewer.” .
    Exceptions were duly taken to such findings of law. As matter of fact the court found: “ That on or about December 23, 1889, said city engineer made a certificate in writing to the common council of the city of Syracuse to the effect that said work had been performed and said sewer constructed in accordance with the terms of said contract.” He also found: “That said certificate of said engineer so given, was erroneous, incorrect, false and untrue.” Also: “ That as appears by said certificate and final account, of said engineer, the cost of the construction of said sewer amounts to the sum of five thousand two hundred and' forty-one dollars and twenty-five cents ($5,241.25).” Also found: u That upon the coming in of said certificate and final account, and relying upon the truth of the matters therein contained, and in the belief that said contract had been fully performed by the relator, the common council of the city of Syracuse passed the following resolution on the 31st day of March, 1890: ‘ Resolved. That this council hereby declares its intention to issue local improvement bonds to such portion of the cost of constructing a brick sewer in East Fayette street from Beech to Spruce streets, and in Spruce street from East Fayette street to East Washington street, as shall be proper under the provisions of § 142 of the city charter, as amended by the Laws of 1888; and the city treasurer is hereby authorized and directed to issue tax notices therefor in accordance with this resolution.’ That said common council in like reliance upon said account of said engineer, directed the cost of said sewer to be assessed upon the property benefited by the construction thereof, and the same was so assessed by the city assessors, and the assessment roll left with the city treasurer, and he has received the sum of one thousand three ■hundred and seventy-one dollars and nineteen cents ($1,371.19) ” from parties owning lands along the line of the sewer who were assessed therefor.

      M. M. Waters, for app’lt; Chas. E. Ide and C. G. Baldwin, for resp’ts.
   Hardin, P. J.

—According to the notice calling for bids and specifications and the contract between the parties payment for the work in question was not to be made until the samex shall have been completed and the cost assessed and collected from taxpayers owning property liable to taxation for the construction of said work.” In the contract between the parties it was agreed as follows: That no payment shall be made to the party of the first part under this contract until the cost of said work shall have been ascertained and assessed upon and collected from the taxpayers- liable to local taxation upon the same.” The contractor, under the provisions of his contract, therefore, was not in a situation to maintain an action at law for tire recovery of the contract price. Hunt v. The City of Utica, 18 N. Y., 442. The contract provided in terms that the work should be carried forward in the view and under the direction of the city engineer.' It expressly provided that “ all plans, explanations or directions necessary to the carrying out and completing satisfactorily the different descriptions of work contemplated and provided for under this contract will be given by the said engineer, and such plans and directions shall in all cases be complied with. And it is hereby mutually agreed between the parties hereto, that the return of the said engineer shall be the account by which the amount of work done and the materials furnished under this contract shall be computed.”

The contract contained also a further provision that “ when in the opinion of the said engineer the work shall have been fully completed in accordance with this agreement, the said engineer shall, as soon as practicable, make up the final account therefor, and upon his final acceptance of the work, shall return to the common council said account duly verified by him, whereupon said common council shall review, and when satisfactory, shall approve the same, and thereupon the moneys, or property deposited with his proposal for the work herein described, shall be returned to the party of the first part, and as soon thereafter as the cost of said work shall have been collected from the said taxpayers, the party of the first part shall be entitled to receive the amount due on said final account, retained in full settlement of this contract, less the amount hereinbefore specified.” By the evidence it appears that a final estimate and a statement of the items relating to the work were prepared by the engineer showing the city of Syracuse indebted to the relator in the sum of $5,241.24 for the work, labor and materials furnished in the statement and performed and delivered under the contract; subjoined to that statement was the following:

“ I certify the above amount to be correct, and that the work has been performed and completed 'according to contract and specifications.

“John B. Borden, City Engineer.

u Syracuse, Dec. 23d, 1889."

It is to be observed that the return contains no allegation of fraud or fraudulent practice on the part of the contractor or the engineer; nor is there any finding by the court of any fraud in obtaining the certificate of the engineer. During the trial Leonard Durston, who was an assistant engineer during the construction of the sewer, testified as follows: “I saw the work during its progress every time Mr. Borden was there; most every day ; I examined it as it proceeded, and knew the construction of it. We gave the contractor the grade of the sewer by driving a peg down into the soil every fifty feet. Sometimes the pegs were driven flush with the ground and sometimes a little above; * * * These pegs were driven under the supervision of Mr. Borden, the city engineer. We sometimes drove the pegs twenty-five- feet apart. The figures were marked on the peg and given to the inspector, with written instructions to the inspector. We gave the inspector'the figures in a book corresponding with the figures on the pegs. Those pegs and grade are made to control the contractor in laying the grade of the sewer. That was done in this case. The sewer was laid as deep as was required by the figures on the pegs. I know it was, because we went there every day ; I will say that it was within a quarter or an eighth of an inch; I would not say exactly. I know about the manholes; they were constructed according to the plans and specifications.” He also testified:

“ The sewer when it was finished had a regular continuous grade, and it was all right;” also, “I went there every time Borden went there; and pegs were set along there and the depth given to the contractor or inspector, and the figures marked on the top of the pegs. * * * Mr. Borden, the city engineer, brought the profile with him every time he went up there. I always noticed that he had the plan when he went along there. It was in his office and was for our use. Whenever we gave levels we took it with us. The plan was there at the time the stakes were set, every time. He had the plan there and compared that with the stakes when he went there; I know he did every time. ”

Steven Putnam, a witness called by the relator, testified that he was an inspector “ appointed to inspect this sewer by the city of Syracuse, and acted as such inspector during its entire construction. I directed the contractor in the construction of it, and gave him the grades. I gave Mr. Beady every grade from first to last. I gave him the grade as established by the pegs ■driven by Mr. Borden and according to the directions given to me by Mr. Borden. * * * It was built according to grade. ■* * * He built it just to the grade Borden gave him.” At no point was it built above the grade given to him by the witness. He also testified “ all the pegs were set by the engineer, and he made the marks upon the pegs.” “ The grade was given by Mr. Borden upon each one- of the pegs; the sewer was built, excavated according to the figures given on the pegs. * Whenever the contractor built the sewer above the grade as given to me by the engineer, I made him take it up and rebuild it on the grade. * * * Beady always put the grade of the sewer where I told him to put it. He followed my directions at all times.”

Jerry Beilly was called as a witness for the relator, and gave -evidence strongly tending to support the statements made by the inspector. The relator testified that the engineer “ drove those pegs; he marked the depth I should go; told me to go and build it according to them pegs. * * * As the work progressed he continued to give me pegs. I constructed and built the sewer on the grade given on the pegs in every instance.” “ I did it according to the measurements given by the engineer.”

Other evidence was given tending to show that the sewer was ■constructed in respect to its location and grade by the relator under the supervision of and in accordance with the direction of the city, through its inspector and its engineer. And evidence was given tending to show that the city had knowledge of the location and grade of the sewer before it accepted the same and took possession "of it and' appropriated it to its use, and before it. initiated the proceedings to assess the parties liable to pay for its construction. While on the other hand there was some evidence-given tending to show that the sewer was not in all respects in. accordance with the contract and specifications; that there were some defects and imperfections found therein by actual measurements taken in August, 1890.

When Dillon v. The City of Syracuse, 29 St. Rep., 912, was-before us, a similar contract was under consideration. In the course of the opinion in that case we had occasion to say “ The parties had a right to agree to be bound by the return of the engineer. Such a provision is obligatory. President etc., D. & H. Canal Co. v. Pa. Coal Co., 50 N. Y., 264, and cases cited. By the. fair construction of the contract in question, it must, I think, be held that the return of the engineer was conclusive on the contractors as to the material furnished or work done. * * * It. is quite apparent that nothing was to be left open for litigation under the contract, and that the return or final account of the-engineer was to include and represent and adjust all the claims oi the contractors. This was to be verified and presented to the common council. They were to' review and if satisfactory approve, and thereupon the contractors ‘shall be entitled to receive the amount due on said final account in full settlement of this-contract.’ ” Since our decision the court of appeals have decided Brady v. The Mayor, 44 St. Rep., 613; S. C., 30 N. E. Rep., 757, which approves of the principles contained in our decision in the Dillon case. In the Brady case the contract required the entire work to be completed “ to the satisfaction of the commissioner of public works and in substantial accordance with the specifications here annexed and the plan herein referred, to.” No fraud was charged, and it was held the contractor was entitled to recover the sum certified, with interest; and it was further held “Where the grades were given by the surveyor or his assistant, examination made after the excavation was completed and before filling in was done, the filling subsequently made to grade, and the work accepted, if the grade was mistakenly given to the contractor by the surveyor and the grade done in conformity therewith and certificates of completion afterwards given, the defendant cannot thereafter refuse to pay because as the result of a misdirection by its officers the specifications had not been literally complied with.”

In the course of the opinion delivered irj the Brady case it was-said “ The defendant distinctly provided in its contract that its-surveyor should be one • of the officers to represent its interest in the execution of the contract, and that his certificate that the work had been completed should be essential to the right of the contractor to demand compensation for his work. Not only does it appear that - the grades were furnished by the surveyor, or his: assistant, but it also appears that he subsequently certified to the completion of the work as provided by the contract.

“ That the contractor was at liberty to follow the directions of the officers whom the defendant had stipulated to represent it and speak for it in the execution of the contract is manifest not only from the provisions of the contract already referred to, but also from two others to which allusion may be briefly made. * * * So if the grade should be mistakenly given to the contractor by the surveyor and the work should be done in conformity therewith, and certificates of completion afterwards given, the defendant could not thereafter object that the plaintiff should not be compensated because as the result of a misdirection by its officers, the specifications had not been literally complied with.” See also Mulholland v. The Mayor, 113 N. Y., 631; 22 St. Rep., 347.

When the Brady case was before the general term of the superior court, 32 St. Rep., 102, it was said in the opinion delivered, “ The various officers of the city who had signed certificates testifying to the sufficient, completion of the work by the contractor, Brady, must be regarded as representing the city, and in the absence of any evidence of fraud their deliberate certificate must be regarded as binding on the city. Mulholland v. The Mayor, 113 N. Y., 632; 22 St. Rep., 347; People v. Stephens, 71 N. Y., 550. The acceptance of the work itself by the city without objection, and the application of the work when accepted to public use, are strong evidence that the contract has been practically and sufficiently carried out. Kingsley v. The City of Brooklyn, 78 N. Y., 200; Smith v. Alker, 102 id., 87.”

In the course of the opinion delivered by the trial judge reference is made to the case of Bond et al. v. Mayor of the City of Newark, 19 N. J. Eq., 376; that was a bill in equity to restrain the defendants from collecting an assessment, and after a statement by the chancellor of the facts in respect to the case, he intimated that there was a legal fraud in the case; however, in that case he did not set the assessment aside or deny the contractor any remedy ; on the contrary, he said, “ the only remedy is to make such deduction from the price as justice requires,” and he concluded his opinion by declaring that a reference should be had to a master to report what would have been the additional cost to O’Connor (the contractor) if, at the time the work was done, he had substantially not fully complied with every express requisition of his contract. * * *" We think that case is not an authority warranting entire disregard of the certificate and the acts of the city adopting the improvements. Peterson v. The Mayor, 17 N. Y., 453. It seems that some $1,500 of money has come,to the bands of the treasurer by the voluntary payment to him by some of the parties assessed for the improvement It is not apparent that the treasurer or the city can withhold the money thus paid for the purpose of satisfying the demands of the relator. The common council in effect approved of the return of the engineer and it has never rescinded that action. The People ex rel. Fielder v. Mead, 24 N. Y., 114; Ross v. Curtiss, 31 id., 606. In delivering the opinion in First National Bank v. Wheeler, 72 N. Y., 206, Andrews, J., said : “ But so far as the fund in the hands of the defendants is concerned, it has been raised through the machinery provided by the act; the commissioners reported to the supervisors; the supervisors levied the tax ; the collector collected it ^nd paid it to the defendants, and this has all been done with the purpose from the outset of paying the interest on the bonds. The town at this stage of the proceeding cannot intervene to arrest the-disposition of the fund and divert it from the purpose intended. The town does not own it, and has no right to its custody, and could not apply it to any town purpose if it had possession of it.”

The relator asks to have the defendants continue to discharge ■ their ministerial duties so that the relator may receive the moneys, due to him in virtue of his contract with the' city under the statute relating thereto.

The foregoing views, if adopted, lead to a new trial.

Judgment and order reversed and new trial ordered, with costs-to abide the event.

Martin and Merwin, JJ., concur.


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    Helen A. Meagher, App’lt, v. The Life Union, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    1. Benefit societies—Bubden of pboof.
    In an action to recover on a certificate of membership in a life insurance-association, its production establishes, prima facie, the standing of the deceased as a member of the association and casts, the burden 3f proof upon it to show that such standing had been lost at the time of the death, of the deceased.
    2. Pleadings—Allegation admitted taken to be tbue.
    An allegation of a complaint admitted expressly by the answer must betaken as true for all purposes of the action.
    3. Insurance (Life)—Assignment of bight of action.
    After a life insurance company has refused to pay a death claim the beneficiary has an undoubted right to assign his cause of action against-the company, nothing in the policy prohibiting such assignment.
    4. Same—Upon befusal to pat claim bight of action accbues.
    A distinct denial of liability and refusal to pay by a life insurance company, on the ground that there is no liability, is a waiver of the condition requiring proof of loss, and suit may be begun at once, although the time-within which, after proof of loss, the payment would be demandablemay not have expired.
    Appeal from a judgment entered in Oneida county on the. 2d day of February, 1892, on a nonsuit and an order dismissing the-plaintiff’s complaint made at the circuit in that county on the 5th day of January, 1892. Plaintiff’s complaint alleges the defendant, is a “ domestic corporation duly organized and incorporated under and pursuant to the laws of the state of New York as a cooperative or assessment life insurance association or society, and located and doing business as such in the city of New York; that the defendant upon due application therefor on or about the-8d day of December, 1888, received Hanorah Kelly, then of the-city of Oswego, state of New York, as a member of the defendant, and thereupon issued to her a certificate or policy of membership therein ; that thereupon the said Hanorah Kelly became and was a member of the defendant in good standing; that in and by said certificate or policy of membership and the contract between said Hanorah Kelly and the defendant, the defendant insured the life of said Hanorah Kelly in the sum of $1,000 for- the benefit of Mary Kelly, daughter of Hanorah Kelly, and thereby agreed that within ninety days after approval of proofs by the-executive committee of the defendant of the death of said Hanorah Kelly, the defendant would pay to said Mary Kelly the sum of $1,000 from the mortuary or benefit fund of the defendant at the time of said death, or from any moneys that should be realized to the said fund from the next premium due from all the members as in said certificate or policy of membership set forth, provided that the amount due-should not exceed the product of one premium payment upon policies in force at the time of said death.”
    The answer admitted all of the allegations quoted. The complaint further alleged that on the 26th day of February, 1891, Hanorah Kelly died in the city of Oswego. Also, that the policy provided that proofs of the death of said Hanorah Kelly should be made upon the blank to be furnished by the defendant, and “ after the death of said Hanorah Kelly the said Mary Kelly duly applied to the defendant for the blank, or blanks, mentioned in said certificate or policy of membership for the purpose of making proof as required by said certificate or policy of said membership of the death of said Hanorah Kelly; but the defendant declined and refused to furnish such or any blanks therefor, although the defendant was' provided with such blanks and it was the-custom of the defendant upon the death of any of its members or of the person insured by defendant to deliver such blanks to or for the beneficiary that proof of death might he made. That therefore and thereby the defendant waived the provisions of said certificate or policy of membership requiring proofs of the death of said Hanorah Kelly to be furnished”
    The complaint alleges that the mortuary or benefit fund of the defendant at the time of the death of said Hanorah Kelly “ amounted to, and was upwards of the sum of $1,000; ” and that the defendant has refused to pay the $1,000 due and payable on said certificate or policy of membership as aforesaid. The plaintiff further alleged that “ after the. claim upon said certificate or policy of membership matured and became vested in said Mary Kelly as hereinbefore stated, she for a good and valuable-consideration to her duly paid, duly sold, assigned, transferred, conveyed and set over by an instrument in writing to this plaintiff her claim, demand and cause of action against the defendant above stated and set out, and this plaintiff thereupon became and now is the owner and holder of the claim under said certificate or policy of membership issued by the defendant as aforesaid for $1,000.”
    The defendant in its answer admits “that the mortuary or benefit fund of the defendant at the time of the death of said Hanorah Kelly amounted to and was upwards of the sum of' $1,000 * * *; ” and the “ defendant admits that the moneys realized to the said mortuary and benefit fund from the next premiums due after said alleged death on all the members as in said policy or certificate of membership set forth, whose policies, were in force at the time of said alleged death, exceeded the sum. ■of $1,000.” The answer of the defendant also “ admits that it absolutely refused and still refuses to pay the $1,000 named in said policy.” By way of defense the answer alleges that the action was prematurely brought; that no notice was given of the .assignment or demand made by the assignee and that the policy was null and void at the time of the death of Hanorah Kelly “ by ■reason of her fadure and that of her beneficiary or anyone on her ■or their behalf to pay the premium which had become due and payable on the 3d day of December, 1890.” Upon the trial proof was given that Hanorah Kelly died February 26, 1891; that on the 11th of March, 1891, Mary Kelly, her daughter and beneficiary named in the policy, addressed a letter to the defendant in the following words:
    “ Oswego, March 11, 1891.
    ■“ Mr. Ralph Harden:

    “Dear Sir—Please send me blank proofs of loss on policy 5021, H. Kelly, who died February 26.
    “ Respectfully yours,
    “ Mart Kelly, Beneficiary.”
    To that letter she received a reply in the following language:
    “The Life Union, Mo. 234 Broadway, Mew York.
    “ Mew York, March 12, 1891.
    “ Miss Mary Kelly, Oswego, N. Y.:

      “ Madam—I have your favor of yesterday, asking for proofs of death on policy 5021 on life of Mrs. Hanorah Kelly. In reply I would state that the last payment made on this policy was September 15, 1890, and the premium due Movember 3, 1890, was not paid. I sent out two notices to this effect asking payment, neither of which were replied to. The policy, therefore, became null and void, and ceased to be in force on Movember 4, 1890.
    “Respectfully yours,
    “Ralph Marden, Secretary."

    Proof was also given that the beneficiary, Mary Kelly, on the '21st of March assigned to the plaintiff “all and every claim * * * and all moneys to which I am entitled under and by virtue of a policy of membership issued to and upon the life of Hanorah Kelly, now deceased, by the Life Union of the city of Mew York,” by a written assignment which was acknowledged on the 21st of March, 1891. Plaintiff put the policy in evidence bearing date December 3; 1888, issued by the defendant. Among the provisions in the policy was the following: “Within ninety days after approval of proofs by the executive committee of the Union of the death of the above named number, if occurring during the continuance of this policy in full force and effect, upon the following conditions, there shall be payable to Mary Kelly, daughter, of Oswego, state of Mew York, if living at the time of said death, "x" * * the sum of $1,000 from the mortuary and benefit fund of the Union, at the time of said death, or from any moneys that shall be realized to the said fund from the next premium due from all the members, as hereinafter set forth, it being understood and agreed that the amount due shall not exceed the-product of one premium payment on policies in force at time of said death.” Another provision in said policy was as follows; “ The proofs of loss by which this contract matures must be furnished to the Life Union within six months after death occurs, and must contain full and true answers under oath to all questions asked by the company relating to the life, health and death of the deceased member, and the said proofs must be completed upon the blank furnished by the Union.” At the close of the plaintiff’s evidence the defendant moved to dismiss the complaint and to nonsuit the plaintiff upon several grounds. The nonsuit was-granted apparently upon the ground “ that this action is prematurely brought; ” an exception was taken by the plaintiff.

      S. M. Lindsley, for app’lt; W H. Law, for resp’t.
   Hardin, P. J.

—Under the allegations of the complaint and admissions thereof by the defendant it must be assumed that it is incorporated under, and governed by chapter 175 of the Laws of 1883, and is “ engaged in the business of life insurance upon the co-operative or assessment plan.” The defendant issued its policy or certificate of membership to Hanorah Kelly, and she' thereby became a member of the defendant, and was insured in the sum of $1,000 for the benefit of her daughter Mary Kelly, which sum the defendant agreed to pay in case of the death of the assured from its mortuary or benefit fund or from any moneys that should be realized to said fund from the next premium or assessment due from all the members. It appears to have been admitted upon the trial that at the time of the death of Hanorah Kelly the mprtuary fund amounted to upwards of $1,000. The production of the certificate of membership established prima facie Hanorah Kelly’s standing as a member of defendant’s association, and cast the burden of proof upon the defendant to show such facts and circumstances as should indicate that she had lost such standing at the time of her death. Demings v. Supreme Lodge K. of P., 60 Hun, 353; 38 St. Rep., 979; Supreme Lodge v. Johnson, 78 Ind., 111. The complaint contained an allegation that “said Hanorah Kelly became and was a member of the defendant in good standing.” That allegation was admitted expressly by the answer of the defendant, and must, therefore, be taken as true for all purposes of the action. Code, § 522; Quimby v. Carhart, 44 St. Rep., 666.

(2) After the refusal by the company to pay or to furnish blanks, Mary Kelly had an undoubted right to assign any cause of action which she had against' the defendant; nothing in the policy prohibited such assignment Cooke on Life Insurance,. § 72, p. 118 ; 76 Mich., 146.

(3) Under the policy presumptively it was the duty of the beneficiary to furnish “ proofs of loss * * * within six months after death occurs,” and by a provision in the policy such “ proofs must be completed upon the blank furnished by the Union.” With a view of carrying forward that duty the beneficlary applied by a letter written on the 11th of March and gent to the defendant for “ blank proofs ■ of loss of policy 5021, H. 'Kelly; ” that application seems to have been received by the defendant, considered, acted upon and a refusal made to furnish the blanks; and the position taken by the company in its refusal was that “ the policy therefore became null and void and ceased to be in force on ¡November 4, 1890.” After the beneficiary received such notice of such refusal she was entitled to assume that the company would furnish no blanks to her upon which proofs could be made, and that proofs would be unavailing, and that the company absolutely refused to pay.

In § 469, May on Insurance, it is said: “A distinct denial of liability and refusal to pay, on the ground that there is no liability, is a waiver of the condition requiring proof of the loss. It is equivalent to a declaration that they will not pay," though the proof be furnished; and to require the presentation of proof in such a case, when it can be of no import¡anee to either party, and the conduct of the party in favor of whom the stipulation is made has rendered it practically superfluous, is but an idle formality, the observance of which the law will not sustain. * * * And of course the waiver of the proof is a waiver of the condition that payment is not to be made till a limited time after the proof; so that, in such case, suit may be brought at once upon the denial of liability, although the - time within which, after proof of loss, the payment would be demandable may not have expired.” The author cites for the doctrine just stated Nor. & N. Y. Transp. Co. v. Western Mass. Ins. Co., 34 Conn., 561; see Citizens' Ins. Co. v. Boisvert, 11 Quebec L. R., 337.

The learned counsel for the respondent calls attention to the case of McConnell v. The Iowa Mut. Aid Association, 79 Iowa, 757. The language of the policy in that case differs somewhat from the language of the policy at bar. We think that case does not overrule the doctrine we have taken from the writers on insurance. We think the language of the court in the case reported in Norwich & N. Y. Trans. Co. v. The Western Mass. Ins. Co., 34 Conn., 561, is appropriate to the case before us, and pertinent to the question under consideration. In speaking of a clause in the policy in that case, somewhat similar to the one before us, Shipman, J., said: “ This clause was for the protection or convenience of underwriters; and when they waived the preliminary proofs, they also waived the benefit of this stipulation, ana rendered it nugatory. It would be absurd to say that they still retained the right to have sixty days within which to pay the loss, when they had declared they would not pay at any time, nor under any circumstances.” This doctrine finds countenance in the following cases: Columbian Ins. Co. v. Catlett, 12 Wheat., 392; Allegre v. The Maryland Ins. Co., 6 Har. & Johns., 408; Phillips v. Protection Ins. Co., 14 Mo., 220; Williamsburg City Fire Ins. Co. v. Cary, 83 Ill., 453; Ætna Ins. Co. v. Maguire, 51 Id., 342; California Ins. Co. v. Gracey, 15 Col., 70; Travelers' Ins. Co. v. Harvey, 82 Va., 949; see, also, Cooper v. U. S. Mut. Accident Association, 57 Hun, 407; 32 St. Rep., 725.

We think the evidence produced by the plaintiff warrants the conclusion that the defendant absolutely refused to furnish blanks upon which proofs of loss could be made, and that the defendant intended to convey to the beneficiary the idea that proofs of loss would be useless and unavailing, and to take the position that the company absolutely refused to recognize the policy issued by it to Hanorah Kelly, and to declare that the same was null and void, and that the beneficiary had no claim upon the defendant. Under such circumstances, we think the defendant was not entitled to delay the plaintiff in the assertion of her claim by suit upon her supposed cause of action against the defendant

We are, therefore, of the opinion that the nonsuit ought not to be sustained upon the ground suggested at the circuit. We think a new trial should be granted.

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

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


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    Emanuel M. Reed, Jr., Resp’t, v. The Canastota Northern Railroad Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed September 30, 1892.)

    Trespass—Measure op damages.
    In an action of trespass against.a railroad company, it is erroneous to allow as the measure of damages the difference in value of the lands of plaintiff before the road was constructed and after.
    Appeal from a judgment entered upon the report of a referee in Oneida county for $1,200 damages, - and $345.09 costs, June 15, 1891. Plaintiff in his complaint alleges: “ That on or about the month of June, 1886, this plaintiff and the said defendant, by its duly authorized agents, servants or representatives, entered into a contract and agreement whereby said plaintiff agreed to allow said defendant to survey, stake out, build, operate and run its railroad, cars and tracks upon and over said plaintiff’s lands and premises in the town of Vienna, Oneida county, N. Y., where the said railroad track and road is now laid through and over said farm, provided and upon condition, and for a consideration that said defendant pay to said plaintiff the sum of $1,800 in money, and upon the further consideration, stipulation and condition that said defendant would build its station or depot, at which trains should stop for the loading and unloading of passengers and' freight and the accommodation of the public, upon said plaintiff’s said lands and premises in close proximity to said railroad track near plaintiff’s hotel, either at the place known as the orchard lot or at the place where plaintiff’s barns now are. And said defendant, its duly authorized agents, servants and representatives, stipulated and agreed to pay to said plaintiff said sum of $1,800, and to build said station or depot as ' aforesaid, either at said orchard lot (so called) or at the place where plaintiff’s said barns are situated on plaintiff’s premises near his hotel as aforesaid. At which station or depot trains should stop for the loading and unloading of freight and passengers and the accommodation of the public, as heretofore alleged and described, and not otherwise or elsewhere. And upon said considerations, and upon condition that said defendant would pay said money and build said station and depot for the stopping of trains as aforesaid, this plaintiff made said agreement and'gave his consent as aforesaid.” The complaint further alleges that in pursuance of such agreement “ said defendant went upon said plaintiff’s said land and premises, and by means of its agents, servants and representatives staked out, surveyed, dug up, trampled upon, made high embankments of earth and piled some to a great height and of the width of about sixty-six feet, and extending in length about nine hundred and sixty-five feet, and upon said embankment, which is at different places upwards of fourteen feet in height and level at the top, said defendant, its agents and servants, have laid or caused to be laid ties and railroad tracks, and the whole of said structure, made as aforesaid, ' extends the entire length, and through plaintiff’s farm, dividing said farm into two parcels, and by reason of said embankments and track and the fences defendant caused to be placed upon both sides thereof * * * plaintiff has been deprived of the use of his said land within said strip heretofore described, and on both sides thereof, and has been deprived of the free use, enjoyment, ingress and egress to and from his said farm, and has been put to great trouble, hindrance and delay in cultivating his said lands, and planting, tilling and harvesting his crops and in pasturing his cattle and live stock. And by reason of all the facts and acts of defendant aforesaid, said plaintiff’s farm has greatly depreciated in value, and this plaintiff has suffered and sustained damages as he verily believes to the amount of $5,000.”
    In the answer “ defendant admits that it went into possession of the premises described in plaintiff’s complaint under an agreement for the purchase thereof, which agreement has been fully performed on the part of this defendant, but denies that the consideration for said premises was $1,800, or that this defendant, its agents, servants or representatives, agreed to pay such amount or any other sum of money in consideration for such entry, or for any of the purposes alleged in the second subdivision of plaintiff’s complaint, but avers that said plaintiff voluntarily gave such right of way to this defendant in consideration of the building and operating said railroad, and in consideration of the enhanced value of this plaintiff’s premises by reason thereof.” And the defendant further avers “ that by the terms of said contract the plaintiff agreed, upon the performance and fulfillment of such conditions and covenants by this defendant, to execute and deliver to it a good and sufficient deed^ of conveyance of the premises described in plaintiff’s complaint and now occupied by this defendant”
    The referee found that the defendant “ in the years 1886 and 1887, built and constructed a steam railroad from the village of Canastota to the village of Camden in the county of Oneida and running through the town of Vienna, and upon and across the lands and premises then owned and occupied by the plaintiff.” That the farm consisted of about seventy-eight acres of land “ of which about twenty acres was woodland and lies some three-fourths of a mile distant from the remainder of the farm of fifty-eight acres.”
    The referee also found “ That in the month of June, 1886, one Fred G. Fisk was in the employ of the defendant, as its agent to obtain rights of way for the defendant’s proposed railroad. That in the month of June, 1886, plaintiff and said Fred C. Fisk made a paroi agreement whereby the defendant was to pay the plaintiff a sum of not less than $1,800 for the right of way across the lands and premises of the plaintiff in said town of Vienna as soon as defendant should commence operating its railroad, and by said paroi agreement defendant was also to build its depot and freight house upon plaintiff’s premises, either on the lot designated as the orchard lot, or where the barns were, and if built where the barns were then the said barns were to be moved by the defendant and a roadway was to lead from the freight house to the highway in front of .plaintiff’s residence. The defendant was also by said agreement to pay the plaintiff a sum in addition to the $1,800 for what land it took for freight house and depot, and was also to construct for plaintiff a pass under its, defendant’s, railroad, so that plaintiff could drive through. Upon these conditions- and considerations the defendant was to have the right of way across the lands and premises of the plaintiff, or that portion thereof consisting of about fifty-eight acres, and the right to build, construct, maintain and operate its railroad where the road was finally built and is now being operated by defendant. That in said month of June, 1886, said Fred. G. Fisk spoke to plaintiff in reference to changing the line of route of defendant’s road from where it had been surveyed and which was known as the ‘ Smalley Survey ’ so that it would run nearer to the buildings of the plaintiff, and the plaintiff refused to allow said change or the road to run nearer to his buildings, and thereupon the paroi agreement set out in the above sixth finding was made.” The referee also found that the defendant “ constructed and placed upon plaintiff’s said land and farm an embankment of earth, gravel and stones from five to fourteen feet in height and from one to four rods wide and extending from the center of the west boundary of plaintiff’s said farm and premises to the easterly boundary thereof, a distance of 967 feet.” He also found: “ That plaintiff intended and expected to receive the compensation specified in- his said paroi agreement with Fred C. Fisk for permitting and allowing the defendant to build its railroad where same was built and is being operated.”
    He also found: “ That for the purpose of fulfilling on his part said paroi agreement with said Fred C. Fisk to give the defendant the right of way mentioned therein, plaintiff and his wife signed, executed and duly acknowledged the deed of August 13th (defendant’s exhibit 2).”
    He also found: “ That said deed of August 13th, defendant’s exhibit, was never, in fact, delivered to the defendant; that said deed was by the plaintiff left with Bri Kinne, the justice before whom its acknowledgment was taken, and the same day, or very shortly thereafter, plaintiff went to said Kinne and informed him that he must not deliver said deed to the defendant till the defendant should settle with him, said plaintiff, for his compensation and damages; that no settlement was made between defendant and plaintiff, and said Kinne retained the deed in his possession until its production by him as a witness in court on the trial of this action.”
    The referee also found: “ That plaintiff did not intend to deliver the deed to the defendant when he left it in the care and custody of said Kinne; that defendant has never accepted the said deed; that no consideration was ever actually paid to or received by plaintiff for said deed; that the time when the said $1,800 was to be paid under said paroi agreement with said Bred C. Bisk had expired before the commencement of this action, and the defendant has not paid any part thereof, and the plaintiff has not received any compensation for his lands or for the injury thereto caused by the building and maintaining of said road and structures thereon.”
    The referee also found: “ That by reason of the building, placing and constructing upon plaintiff’s farm and premises, the said embankment of earth, gravel, stones, and said trestle, spiles, ties, rails, fénces, building structures, as specified in the eighth finding of fact, plaintiff’s said farm and premises was, and is, diminished in value, and was, and is, injured and damaged, and plaintiff was thereby deprived of the full and free use and employment thereof, and prior to the commencement of this action suffered damages in the sum and to the extent of $1,200.”
    In his conclusions of law he found:
    - First. That the paroi agreement between plaintiff and Bred 0. Bisk, purporting to give a right of way across plaintiff's land and premises, is void and cannot be enforced.

      Second. That defendant impliedly promised and agreed to, and in justice ought to pay and compensate plaintiff for the damages and injury which it has caused to plaintiff’s said land and premises.

      Third. That defendant is not entitled to any part of the judgment or relief demanded in its answer in tiiis action.

      Fourth. That plaintiff is entitled to judgment against the defendant for the sum.of $1,200 and costs of this action.
    Timely exceptions were made and served to the conclusions of the referee.
    The referee was requested to find and refused to find: “ That, on the 13th day of August, 1886, this plaintiff in performance of said contract made and executed a deed ■ of conveyance of the premises now occupied by this defendant through plaintiff’s (land) and that plaintiff delivered said conveyance to one Bri Kinne, for the use and benefit of the defendant, and to be delivered to defendant on the completion of defendant’s railroad to Camden, Oneida county, N. Y.; that the consideration of such deed was the nominal one of one dollar, payment of which was acknowledged in said deed, and the further consideration of the construction and maintenance of a cattle pass on the easterly side of' plaintiff’s premises.” The defendant requested the referee to find, and he refused to find, “ That Eri Kinne was, on the 13th day of August, 1886, the duly authorized and designated agent for this defendant for the receipt and acceptance of deeds and for the payment of money consideration connected therewith.” The referee found the incumbrances on the farm were $2,500, and he' refused to find that the defendant “ is lawfully in possession of premises alleged in the complaint herein, and is entitled to the delivery of the deed of conveyance, defendant’s exhibit 2, and is entitled to have the premises mentioned in said conveyance cleared! of incumbrance by plaintiff at his own cost and expense ; ” and! he refused to find “ That plaintiff is not entitled to recover any damages in this action.”
    On the 12th day of March, 1886, the plaintiff executed a contract to Milton Delano, Fred. C. Fisk and others “ representing the interests of all parties and persons interested in the construction of the railway,” in which was the following language: “The said party of the first part,, in consideration of the sum of one dollar to him duly paid the receipt whereof is hereby acknowledged, hereby agrees to sell and convey to said parties of the second part, or a railroad company to be organized for the construction of a railway from the village of Canastota, Madison county, to the village' of Camden,, Oneida county, passing through the towns of Lenox, Madison county, and Verona, Vienna and Camden in Oneida county, Mew York, a tract or parcel of land sixty-six feet in width, lying in the town of Vienna, county of Oneida, State of Mew York, the centre line of which is designated in the preliminary survey, the map and. profile of which is to be filed in the county clerk’s office of Oneida, and Madison counties, when the said company shall be so organized as aforesaid. The description of said premises beginning on the division line of lands between first party and Allen Little;- and said line is proposed to be changed, running thence northeasterly quite through said party’s land to the division line between said party and Lysander Kilts. The consideration to be-paid for the above premises is to be the nominal sum of one dollar and the public benefit to be derived from the construction off said railway as proposed from Canastota to Camden, Mew York;: such conveyance to be made and executed by party of the first: part to parties of the second part, or to said railway company so-to be organized, as soon as arid whenever such proposed railway company shall be duly and legally organized for the construction of said railway between the points above named, and shall have-filed a map and profile of its proposed route as aforesaid. * * *" When said railway shall be duly organized, the party of the first, part covenants and agrees as aforesaid that they may enter upon said lands, lay out and commence constructing its railway and' structures thereon before the execution and delivery of the deed1 hereinafter provided for, said railway company doing no unnecessary damage to the adjoining premises. And the said party of the first part upon the due and legal organization of said railway company, shall and will at once execute, acknowledge and deliver to said parties of the second part, or to the said railway company, or to its successors or assignees, a deed of conveyance of the hereinbefore described premises, in fee simple, and clear from all incumbrances, dower, and inchoate dower rights, which deed shall •contain a covenant of guaranty, and the usual full covenant, including a covenant against incumbrances.”
    The contract was signed and sealed by the plaintiff and delivered in the presence of Eri Kinne as a subscribing witness. On the 13th day of August, 1886, apparently in furtherance of the •stipulations contained in the contract, the plaintiff and his wife •executed a deed which stated: “ For and in consideration of the •sum of one dollar ($1.00) to them duly paid, have sold, and by these presents do grant and convey unto the said party of the second part (The Canastota Northern Railroad Company), and to its successors and assigns forever, all that tract or parcel of land situate in the town of Vienna ” (then follows a description of the premises). And the deed stated that the land described was one and forty-six one hundredths (1.46) acres of land, and that “ The party of the second part agrees to maintain for the benefit of the party of the first party an underground cattle pass on the easterly end of the premises hereby conveyed.” The deed was acknowledged before Eri Kinne on the. 15th of August, 1886, and by the plaintiff left with Kinne. In speaking of that deed, Kinne testified : “ At the time it was left with me I received no instructions from the plaintiff or his wife in regard to the deed; he was present when Mr. Fisk made request to me to put in clause in deed in reference to cattle-pass.” Subsequent to that interview Kinne testifies: “He, plaintiff, asked for a return of deed to him, and said the defendant had not performed its contract, and forbid me delivering deed to defendant.” The witness Jennings testified that he was present at the time of the execution of the deed, and that Reed objected to signing the deed “ for the reason that it did not provide for a cattle-pass. I then wrote in that clause referring to cattle-pass, and Mi’. Reed signed and acknowledged the deed. At the execution of the deed, defendant’s exhibit two, nothing was said by Mr. Reed or anyone else present that Mr. Reed was to have $1,800, or a location for depot as a consideration for deed. At this time I knew the location of the present line of railroad, and it has not been changed since that time.” Plaintiff testified upon the trial to an agreement between him and Fisk that the defendant should pay $1,800 and locate its depot and freight house substantially as found by the referee. On the other hand, Fisk denied the agreement absolutely ; contradicted the plaintiff’s statements in respect thereto; and the defendant gave evidence to the effect that the plaintiff had made declarations on several occasions that he had given the right of way through his land, and of other facts and circumstances inconsistent with his testimony in respect to the agreement.
    During the examination the of the witness David H. Tremain, the following questions were propounded to him :

      “ Q. In the year 1886 what was the fair market value of plaintiff's farm and premises without the embankment, track, ties, filling, fences and buildings which constitute the roadbed, railroad which runs across the farm and premises of plaintiff. What was the fair market value of the farm clear of these things ?
    “ Objected to as incompetent, immaterial, inadmissible under pleadings, not proper measure of damages.
    “ Overruled. Exception to defendant.
    “ A. I should think about $6,000.
    “ Q. Assuming same condition as in last question, what' was the value of farm in spring of 1887 ?
    “ Same objection as to last question and further as to- any evidence of value in 1887. ■
    “ Overruled. Exception.
    “ A. Think the value would have been the same.
    “ Q. How much less was this farm worth in year 1886 and spring of 1887 by reason of this roadbed, this embankment, the fences along side and the buildings, the ties on roadbed and the tracks having been laid and placed on the farm as they were ?
    “ Objected to as incompetent, immaterial, irrelevant, not admissible under the pleadings, and not the proper measure and rule off damages and further as to form of question. Overruled. Exception.
    “A. I should say $2,000.”
    Similar questions were propounded to the witness Colson; similar objections made thereto, overruled and exceptions taken. Also to the witness Meyrs. Similar questions were propounded to the plaintiff, and objections were taken thereto and an exception, and the plaintiff stated that the fair market value without, the road was “ Seventy-five dollars per acre for the whole farm ; about seventy-nine acres in the whole farm; ” and with the road “Fifty dollars an acre.”

      F. E. Tibbetts, for app’lt; Sayles, Searle & Sayles, for resp’t.
   Hardin, P. J.

—In respondent’s argument to sustain the judgment he cites the celebrated case of Day v. New York Central Railroad Company several times. That case was reported first in 31 Barb., 548; next in 53 Barb., 250, and next in 51 N. Y., 583. Thereafter a new trial of the case was had and it came to this court and was examined and the opinion of this; court was prepared by me and appears in 22 Hun, 412, and from the statement of facts and the opinion so appearing it is manifest that the case is quite unlike the one before us. Our decision was-affirmed, 89 N. Y., 616. In that case in 1855 the plaintiff and defendant entered into an oral agreement by which the former conveyed to the latter certain lands and a right of way over other-real property, and the latter agreed to lay a separate track to the-adjoining lands of the plaintiff, and to bring the cattle and stock: which might come to it from the west to the said plaintiff’s lands; to be there fed and cared for. The plaintiff conveyed the land' and right of way to the defendant, but the latter shortly thereafter repudiated the agreement, and failed and refused to bring the cat-tie to the plaintiff’s yard. We there held, viz.: “In this action brought by the plaintiff in "1857 to recover the damages occasioned by him thereby, that as the paroi agreement was void, because it was not to be performed within one year, the plaintiff could not recover the damages occasioned by the breach thereof. That as the defendant has repudiated the agreement after a partial performance thereof, the plaintiff was entitled to recover the value of the land and right of way conveyed, after deducting therefrom the value of the partial performance of the agreement by the defendant, viz.: the profits made by him from the business brought to him by the defendant.” In the statement preparatory to my opinion it appears, “ The plaintiff then amended his complaint, by •adding a second count, being a common count for land and right ■of way sold.” We think that case is quite unlike the one before us, especially if we assume that the referee’s finding of fact is correct that the deed in question never was delivered. If the referee in the case before us had found that there was a delivery of the deed and that as a consideration for the premises conveyed to the defendant there was to be paid to the plaintiff the sum of $1,800, and the depot and freight house were to be constructed as claimed, and that the defendant had failed to comply with its agreement, we might then have had a case before us somewhat analogous to the case of Day v. The N. Y. C. & H. R. R. R. Co.

According to the findings made by the referee, if the defendant should pay the damages allowed by the referee to the plaintiff, it would acquire no title to the right of way in virtue of such payment, nor would it have any deed securing to it the ownership of such right of way; it therefore would be liable to a subsequent action for trespass or an action to recover possession of the strip of land in the occupation of the defendant or its lessee.

(2.) We are inclined to think that the finding of the referee that there was an agreement to pay $1,800, etc., as stated in his findings of fact on that subject, is against the weight of the evidence produced upon the trial in respect to that issue. It is true the plaintiff testifies to facts which if believed would support the finding of the referee; but on the other hand there is the testimony of Fred. G. Fisk, a witness, who in the earlier stages of the case was called by the plaintiff, who testifies absolutely that there was never any such agreement made; and there are declarations of the plaintiff found in the case entirely inconsistent with his testimony, and declarations which tend to corroborate the version given by the witness Fisk. Besides the contract signed by the plaintiff in March, 1886, and the deed executed by him the 13th of August, 1886, coupled with the facts and circumstances xelating thereto as related by himself, Fisk, Jennings and Stroud are quite persuasive that no such agreement was ever made by Zislc as related in the testimony of the plaintiff.

(3.) If it be assumed that the plaintiff has a cause of action in the nature of trespass against the defendant, then the rule of damage adopted by the referee is erroneous.

The referee has allowed testimony as to the value of lands of the plaintiff before the road was constructed (including the 20 acres of land three-quarters of a mile from the parcel crossed) against the objection of the defendant; and has allowed evidence of the value of the plaintiff’s premises after the construction of the road. We think the rulings in respect, to the rule of damage were erroneous. Amerman v. Deane, 44 St. Rep., 567; Pappenheim v. Met. R. R. Co., 128 N. Y., 436; 40 St. Rep., 445.

These views lead to the conclusion that a new trial should be ordered upon the law and facts.

Judgment reversed on the law and facts and a new trial ordered, with costs to abide the event.

Martin and Merwin, JJ, concur.