author: Bookes, J.:

text:
    HENRY L. SWEET, Appellant, v. THE VILLAGE OF GLOVERSVILLE, Respondent.

      Municipal corporations — defects in sidewalks of — when corporation liable for injuries arising from. ,
    On the 13th of May, 1875, the defendant, a municipal corporation, passed a resolution requiring certain persons to lower the sidewalks in front of their lots and conform the same to the established grade, and served the same, on May twenty-first, on one Avery. Avery entered into a contract with one Seymour, in pursuance of which the latter excavated and lowered Avery’s sidewalk to the established grade and completed his work on the evening of the twenty-fourth. The change in the grade of the walk left it, at its north end, some fifteen inches lower than the adjoining walk. On the night of the twenty-fourth, the plaintiff, while passing along the walk, in ignorance of the change, fell and sustained injuries, to recover damages for which he brought this action.

      Held, that the defendant was not liable for the negligence of the contractor, if any existed, since he was not its agent or servant, but that of Avery.
    That it was not liable for a failure to keep the walk in proper repair, as there was no proof of any notice, actual or constructive, to it of the existence of the defect.
    Appeal from a judgment in favor of the defendant, entered upon an order made at the Circuit nonsuiting the plaintiff and dismissing his complaint.
    The action was brought to recover damages for injuries received by the plaintiff in falling into an unguarded excavation in the' sidewalk on Bleecker street, in the village of Gloversville, on the night of May 24, 1875.
    The defendant required the bed of Bleecker street to be cut down the year before to a uniform grade, leaving the sidewalks on both sides much higher than the bed of the street. On May 13, 1875, the defendant, by its board of trastees, passed an ordinance requiring A. H. Avery and some others owning and occupying land on the east side of Bleecker street, to repair or relay their sidewalks in front of their premises on or before June first, or the. same would be done by the village at their expense.
    On May twenty-first the defendant caused a copy of this ordinance to be duly served on the said lot owners and published, with a notice to relay their said sidewalks in accordance with the requirements of said ordinance. The street or sidewalk committee who had charge of fixing grades of streets and walks in the village went upon Bleecker street and fixed the grade to which the sidewalk was required to be out down and lowered along said lots, up to the north line of A. H. Avery’s lot.
    A. H. Avery let the contract for cutting, down the walk along his premises to the established grade, and relaying his sidewalk, as he had a right to do under defendant’s charter. The old walk was taken up, which had been made of plank, and the walk was cut down about eighteen inches up to A. H. Avery’s north line, leaving an abrupt cut or descent in the walk at that place, which was left open and unguarded and unprotected during the night of May twenty-fourth. The work was completed on that day. The plaintiff, while lawfully passing along the walk about ten o’clock that night, when it was very dark, not knowing that the street had been interfered with, stepped off into the excavation and was thrown down upon his back and neck and was seriously injured.

      Z. S. Westbrook, for the appellant.
    It is the duty of the defendant to keep its streets and sidewalks in a safe condition and good repair at all times; and it knew or had reason to know that this dangerous place was being made in the sidewalk. It was therefore guilty of negligence in not seeing that it was properly guarded and protected by lights and barriers. ( Wilson v. City of Watertown, 3 Hun, 508; Deyo v. Village of Saratoga Springs, 3 Sup. Ct.., 504; Clemence v. City of Auburn, 4 Hun, 386; Village of Seneca Falls v. Zalinski, 8 id., 571; Wallace v. Mayor, etc.r of New Yoi'k, 2 Hilt., 440; Storrs v. The City of Utica, 17 N. Y., 104; Nims v. Mayor, etc., of Troy, 59 id., 500-504; Weet v. Village of Brochport, 16 id., 161; Hutson v. The Mayor, etc., of New York, 9 id., 163; Hines v. The City of Lockport, 50 id., 236.)

      Parkhurst <& Baker, for the respondent.
   Bookes, J.:

It was held in Pack v. The Mayor (8 N. Y., 222) that a city corporation was not liable for injuries to third persons, occasioned by the negligence of workmen engaged in grading a street, under the direction of a person having a contract with the corporation for the performance of the work, at a fixed and stipulated price therefor. The case here before the court is less favorable to the plaintiff’s right of action on the facts than was the one cited. In the latter case the work was being done under an express contract with the corporation for its performance. In the case in hand, there was no contract with the corporation for the performance of the work, by the party having it in charge. The authority from the corporation was here, but permissive, viewed in the strongest possible light in that regard. Those engaged in the work were in no respect the agents or servants of the corporation. According to the decision in the case cited, a recovery for an injury growing out of negligence, could be had only against the person actually guilty of the misfeasance or non-feasance, or against one to whom he stood in the relation of servant or agent. The same rule of liability, or rather non-liability, was again enunciated in Kelly v. The Mayor (11 N. Y., 432); and again in McCafferty v. S. D. and P. M. R. R. Co., (61 N. Y., 178.) In this case in hand, the injury is alleged to have occurred by reason of the omission of the workmen to make a gradual and proper descent from the higher to the lower grade of the walk; They left the descent abrupt, and as is claimed, in an unguarded and dangerous condition. The alleged ground of negligence was, therefore, the non-feasance of those employed in the work. The rule of law above alluded to applies to cases of non-feasance and misfeasance alike. The learned judge was right in his application of the rule.

But it is now urged on this appeal that the injury was not occasioned by any negligence in doing the work, but by reason of leaving the abrupt descent unguarded, and it is insisted that there was a direct and independent duty devolving on the defendants to-keep the streets and sidewalks within the corporate limits in safe condition for travel, and that they were liable to respond in damages to all persons, who, without fault on their part, should receive injury from neglect of such duty. (Wilson v. City of Watertown, 10 N. Y. S. C. [3 Hun], 508; Deyoe v. Village of Saratoga Springs, 3 N. Y. Sup. Ct. R. [T. & C.], 504; Clemence v. City of Auburn, 11 N. Y., S. C. [4 Hun], 386; Storrs v. The City of Utica, 17 N. Y., 104; Todd v. City of Troy, 61 N. Y., 506.) But the corporation will not be held liable without notice of the defect in the highway causing the injury. It was said in Wilson v. City of Watertown (supra), that a municipal corporation will not be held liable for an injury caused by a nuisance in a street, created without rts authority or sanction, of the existence of which it had no notice. So in Todd v. City of Troy (supra), Judge Earl, speaking for the court, said that it was the duty of the municipal authorities to exercise an active diligence over the streets, to see that they were kept in a reasonably safe condition for public travel. But, he added, that before the city could be made liable in any case, it must be shown that it had notice of the bad condition of the street, and further as follows : This notice can be either, express or constructive. By constructive notice is meant such notice as the law imputes from the circumstances of the case. * * * After a street has' been out of repair so that the defect has become known and notorious to those traveling the street, and there has been full opportunity for the municipality through its agents charged with that duty, to learn oi its existence and repair it, the law imputes to it notice, and charges it with negligence.” (Page 509.) Now, there is no proof in this case of actual notice to the municipality, nor is there any sufficient evidence of constructive notice, as such notice is above explained by Judge Earl. The work of grading had been progressing but a very short time. It does not appear that the particular defect complained of had existed for any considerable period before the acci dent. There is no evidence whatever that the officers of the municipality had reasonable ground, or any ground whatever, to anticipate the defect, or any opportunity to look to it and guard or remedy it after it existed and before the injury. Then, there was no actual notice to the municipality of the defect, nor was such a state of facts proved as would authorize a jury to find that it had constructive notice of its existence.

It is quite doubtful whether this question is raised by any exception in the case ; but if well raised, there was not sufficient proof submitted to make it available as ground of error. We are of the opinion that the nonsuit and dismissal of the complaint was properly directed.

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed with costs.


source: Caselaw Access Project

author: Bockes, J.:

license: Public Domain

text:
    THE UNION NATIONAL BANK OF ALBANY, Respondent, v. SAMUEL S. WARNER and others, Appellants.

      Xh'auduUnt conveyance — when grantee not protected hy paying consideration —form of judgment in creditors’ action.

    Where a father conveys real estate to Ills sons, with intent to defraud his creditors, and the conveyance is accepted by them with knowledge of such fraudulent intent, and to aid in carrying it into effect, the fact that by the conveyance they assume and agree to pay certain of the father’s debts, does not render the conveyance valid, or protect them from the claims of the father’s creditors. Where, in an action brought by a creditor to set aside, as fraudulent, a conveyance made by his debtor, the plaintiff is successful, the judgment should either declare the conveyance fraudulent and void as against his judgment, and allow him to enforce the same in the usual manner by execution, or it should appoint a receiver of the property, and direct and enforce a conveyance of it to him, and vest him with a power to sell the same and apply the proceeds to the discharge of the plaintiff’s claim.
    Where, in such an action, the judgment declares the conveyance fraudulent and void as against the plaintiff's judgment, and directs a sale of the premises by a referee in the usual form of a judgment in an action to foreclose a mortgage, without appointing a receiver of the property or directing a conveyance to him, held, that the judgment was irregular and should be set aside.
    Appeal by tbe defendants from a judgment in favor of the plaintiff entered on the report of a referee, by which a deed was declared to be fraudulent and void, and the property ordered to be sold as under an ordinary judgment of foreclosure.
    The plaintiff recovered two judgments against Michael Warner, one on 30th October, 1875, and another December 1,1875, on which executions were returned unsatisfied.
    The notes on which the judgments were recovered were dated in 1873.
    On the 2d of April, 1875, Michael Warner, the father of the defendants, conveyed to the defendants certain real estate lying in Rensselaer epunty, by a deed which was made subject to the payment of certain debts of the grantor amounting to $5,017, enumerated therein. By the deed, the property conveyed was charged with the payment of these debts, which were assumed to be paid by the grantees.

      These debts, thus assumed, constituted the sole consideration of the deed.
    The real estate conveyed by the deed of 1875, was worth several thousand dollars more than the debts charged upon it.
    The referee decided that the conveyance was made with intent to hinder, delay and defraud creditors, and that the plaintiff was entitled to a judgment adjudging the deed to be fraudulent and void, and directing that the premises be sold as under an ordinary judgment of foreclosure, and the proceeds applied to the payment of plaintiff’s judgments and costs. Judgment was entered accordingly, and the defendant appealed.

      A. J. Parker, for the appellants.

      Matthew Hale, for the respondent.
   Bockes, J.:

The evidence seems quite sufficient to sustain the finding of the referee, that the conveyance of April 2, 1875, by Michael Warner to the defendants was fraudulent and void as against the plaintiff. This deed was evidently made by the father to the sons, with the intent to defraud the creditors of the former, and was accepted by the defendants with knowledge of such fraudulent intent, and to aid in carrying it into effect. The evidence fully sustains the plaintiff’s case in this regard.

By the terms of the fraudulent conveyance several of the creditors of the grantor’were sought to be protected. Those'creditors were named in the deed; the debts were assumed by the grantees, and were also declared to be a charge on the premises conveyed. Those creditors were not made parties to the action. But no objection was taken to the omission by demurrer or answer; hence, it must be deemed to have been waived — even if it could have been made available, had it been timely and properly interposed. It maybe here suggested that, inasmuch as those persons are not parties they are not concluded in their rights, if they have any, by the judgment in this action. It is urged that the deed of April second should not be held fraudulent and void for want of consideration, because the defendants, the grantees, had, by its terms, assumed the payment of the debts therein specified. So it is insisted that there was an actual consideration paid by the grantees at the time of the grant, by their agreement to pay those debts to the creditors named.' But the conveyance was not held fraudulent and void for want of consideration merely, but because of a corrupt purpose participated in by the grantees themselves. They accepted the conveyance with the fraudulent design and intent on their part to hinder, delay and defraud the creditors of the grantor. They were gyartieegos criminis in the corrupt arrangement, and can, therefore, claim nothing under it, either to their own advantage or to the advantage of any one else. As is stated by Johnson, J., in Briggs v. Merrill (58 Barb., 389): “ A party bargaining with a debtor, with fraudulent intent, does it at the peril of having that which he receives taken from him by creditors who he is attempting to defraud, without having any remedy to recover what he parts with in carrying out his bargain.’1 The learned judge adds: “ The law will leave him in the snare his own devices have laid.” In such casej actual payment of full value will not protect the fraudulent vendee or grantee against the claim of the creditor. As was-said in Wood v. Hunt (38 Barb., 302), the complicity of the grantee in the fraud of the grantor deprives him of any right to relief in respect to such payment. (See, also, Goodhue v. Berrien, 2 Sandf. Ch., 630, and Fullerton v. Viall, 42 How., 294.) This last case cited is not very fully reported; but there can be no doubt, I think, as to the law as there laid down on this point. The case of Robinson v. Stewart (10 N. Y., 189), does not touch this question, as that was an action by a creditor without lien, who took proceedings after the death of an intestate debtor who died insolvent; which proceedings inured to the benefit of all the creditors alike. The defendants- in the case in hand, can, therefore, claim nothing in their own favor, by reason of having assumed the payment of the debts specified in the fraudulent deed to them; nor are they in a position to make claim under such deed for or in behalf of any others.

Nor was Ayers, the joint debtor with Michael Warner, a neeesary party to this acticn. The plaintiff had exhausted all remedy at law against him, and was here seeking relief against Michael Warner’s property only. In such property Ayers had no interest. (Fox v. Moyer, 54 N. Y., 125.) He was not, therefore, a necessary party.

The conclusions above reached would leave the case free from all difficulty, were it not for an error or informality in the judgment ordered by the referee, and sanctioned by the court at Special Term. The referee found, as one of his conclusions of law, that the plaintiff was entitled to have the real estate embraced in the fraudulent conveyance sold in the same manner as under the ordinary judgment of foreclosure,” and to have the proceeds of such sale applied to the payment of the plaintiff’s judgments and costs of action, but omitted to direct the appointment of a receiver to take charge of the property and to make the sale. It seems that application was then made at Special Term on the findings of fact and law certified by the referee for judgment, and judgment was awarded thereon declaring and adjudging the deed fraudulent and void as against the plaintiff’s judgments, and directing a sale of the premises by a referee in the usual form of a judgment in mortgage foreclosure cases. No receiver of the property was appointed. The latter portion of this judgment was irregular and, as I think, erroneous. There is no authority under the statute, nor in the practice of the court, for such a proceeding in a case like this, having for its purpose the removal of an obstruction to the enforcement of a judgment and execution. The more usual judgment to be entered in such case is to declare the conveyance fraudulent and void as against the creditor and his judgment, with the necessary and appropriate formalities in that regard, leaving the latter to enforce his judgment in the usual way by execution. But the court may also, in the exercise cf its common-law powers, appoint a receiver and direct and enforce a conveyance to him by the party or parties having the apparent or legal title, and vest him with the power of sale and with the application of the proceeds. This was held in the case of The Chautauqe County Bank v. Risley (19 N. Y., 369; see, also, Chauctauqe County Bank v. White, 6 id., 236, on page 252; also remarks of Dwight, J., in Cole v. Tyler, 65 id., 73). This latter course of practice is not always safest, for in that case the purchaser at the receiver’s sale must trace his title through the conveyance to the receiver, which might, as in the ease of The Chautauque County Bank v. Sisley, let in other liens which attached subsequent to the judgment, which was the foundation of the creditor’s suit, to defeat his title. The principles of law applicable to this branch of the subject here under consideration, are discussed with elaboration by Judge Comstock in the case last above alluded to, and need not be here repeated. It is sufficient here to say, that the judgment entered in this case is not in accordance with either course of procedure above indicated. It does not contemplate and provide for the enforcement of the plaintiff’s judgments by execution, and thus preserve their liens on the lands fraudulently conveyed, nor was a receiver appointed with directions for a conveyance of the title to him with power of sale as in those cases where a receiver is directed to make sale of real property. Even when a receiver is appointed in cases like this in hand, it is now the settled rule, that he takes no title to i*eal property, and therefore could convey none, without a transfer to him by the party having title. It was held in the Chautauque County Bank v. Risley, that the appointment of a receiver by a court of equity, vests in him the title to the debtor’s personal estate, but that the title to real estate was transferred only by force of the debtor’s own conveyance, which the court had the power to compel him to execute. This decision has been recognized and adhered to in many more recent cases. (Moak v. Coats, 33 Barb., 498; Scott v. Elmore, 17 N. Y. S. C. [10 Hun], 68.) At the September General Term, 1877, in this (third) department, the decision in the last case was followed in Dubois v. Cassity (Mem. by Learned, P. J). Perhaps the objection here under discussion might be deemed under the authority of Cole v. Tyler (65 N. Y., 73) mere matter of practice, and not ground of error on appeal. But I think otherwise. The difficulty strikes deeper in the case in hand than in that cited. In the latter, the judgment appointed a receiver and directed a sale by him. It was held that the omission of the usual direction that the judgment debtor convey to him was an omission of mere matter of detail, to be corrected by motion. Here, however, no receiver was appointed, and a sale by a referee, as in the case of a mortgage foreclosure, was adjudged. The judgment proceeded upon an entirely different theory from a case where it was to be executed and made effectual “through a receiver. It was erroneous in that regard, and therefore, the difficulty presented is more than one arising from mere irregularity in practice. The proceeding was unauthorized ; hence radically wrong both in theory and in detail. That part of the judgment, therefore, which provides for a sale of the premises by the referee, as in the case of a mortgage foreclosure, should be annulled by reversal.

Perhaps the decree might be here corrected by a modification; but on the whole it seems best to reverse the judgment without costs of appeal, and without prejudice to an application at Special Term for the proper judgment on the referee’s findings, with liberty also, if deemed advisable, to move at Special Term for an amendment or correction of the conclusions of law by the referee. A new trial is quite unnecesary as the case seems well decided on the merits. The error in the entry of judgment, although substantial as here presented, may be remedied on application to the court at Special Term, the present erroneous judgment being out of the way.

The disposition of the case above indicated is deemed best, in view of the fact that the plaintiff may prefer a judgment or decree declaring the deed to the defendants fraudulent and void as against the judgments, and that they are valid liens on the premises sought to be charged with their payment.

If, however, a sale by a receiver be demanded at Special Term, and the court should see fit to grant a judgment having that end in view, then it should be so entered in form as to meet the requirements of the law in its execution.

Judgment ordered at Special Term, March 13, 1877, reversed, but without costs of appeal, and without prejudice to an application at Special Term for the proper judgment on the referee’s findings, with liberty also to the plaintiff, if so advised, to move at Special Term for an amendment or correction of the findings or conclusions of law by the referee.

Boardman, J., concurred; Learned, P. J., not sitting.

Judgment reversed without costs, with leave to make further application to the court, as stated in the opinion. Order to be settled by Bockes, J.


text:
    WILLIAM W. CORNELL and LATHAM C. STRONG, as Executors of, etc., of LATHAM CORNELL, Deceased, Appellants, v. LOUISA CORNELL, Respondent.

      Code, § 399 — admissibility of evidence under — gift, mortis causa— delivery of nonnegotiaMe securities — title passed by.

    This action was brought by the plaintiffs, as executors, to recover from tbe defendant certain securities, to which she claimed title by a gift, mortis causa, from the testator.
    Upon the trial, plaintiffs’ counsel offered to prove by one of the plaintiffs and also by the residuary legatee of the testator, conversations had between themselves and the deceased, tending to disprove the gift. Held, that the evidence - was properly excluded under section 399 of the Code.
    By a gift, mortis causa, the title to non-negotiable choses in action will pass by delivery only, and no written assignment is necessary.
    Appeal from a judgment in favor of the defendant entered upon a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought by the plaintiffs, as executors of the last will and testament of Latham Cornell, deceased, to recover the value of certain securities in the possession of defendant, and alleged by them to belong to the estate of said Latham Cornell. The defendant, who was the widow of- said Latham, claimed title to said securities by gift from her husband in his lifetime. The securities in dispute consisted of railroad stocks and bonds, bonds of municipal corporations and bonds and mortgages of individuals. No written assignment was made by deceased to defendant, of any of these securities, but they were claimed by the defendant to have been. given to her by her husband shortly before his death in lieu of dower.
    The plaintiff Latham C. Strong, and Sarah E. Herrington, daughter of plaintiff’s testator, and residuary legatee under his will, were offered to prove conversations between themselves and deceased, with a view of showing, first, that his feelings towards the defendant were such as to make it unlikely that he would have made the gift; and second, that he was not of sufficient mental capacity to make it. These offers were excluded under section 399 of the Code. The plaintiffs also requested the court to hold, that the title to the stocks and bonds did not pass to defendant by delivery alone, which was refused and plaintiffs excepted.
    - La Mott W. Rhodes, for the appellants.

      JEsek Go-wen, for the respondent.
   Bockes, J.:

The evidence in support of the alleged gift by the testator to the defendant, stands entirely uncontradicted. There were two witnesses to the transaction, who agree in all material points as to what occurred, and there is nothing in the case casting suspicion or reasonable doubt as to the correctness or truthfulness of their statements. Nor is there any thing indicating a want of mental capacity in the donor, fully to originate the purpose and to execute it, with a full and complete understanding and comprehension of the act and its legal effect. Besides, there is abundant evidence that the act is in accordance with a natural and just inclination or impulse, not at all unreasonable in itself in view of surrounding circumstances. The evidence standing undisputed, clear and positive; there was no question for the consideration of the jury.

It is insisted as matter of law that no title could be acquired by the gift in this case, as to such of the securities as were not negotiable : and to support this position it is urged that the gift was inter vi/oos, and not causa mortis, hence it is claimed the gift was not good without formal assignment. But I am of the opinion that the evidence shows sufficiently a gift causa mortis. Id was made by a very old man in his last illness, and in apprehension of death, and when he did not expect to recover. He undoubtedly believed death to be near, and there was good ground for such belief, and the gift was made in view of and because of its immediate approach. Under the law applicable to gifts causa mortis, the title of non-negotiable choses in action will pass by delivery only. (Gray v. Barton, 55 N. Y., 73; Westerlo v. De Witt, 36 id., 340; Johnson v. Spies, 12 N. Y. S. C. [5 Hun], 468; Allerton v. Lang, 10 Bos., 362; Hackney v. Vrooman, 62 Barb., 650.) In the last case cited it is intimated that a gift i/nter vivos of non-negotiable choses in action may be effectual by delivery without writing, the same as in the case of a' gift causa mortis. (See also remarks of Hunt, J., in Westerlo v. De Witt, supra; also of Mullin, J., in Hachney v. Vrooman, supra.) But this question, as we think, need not be here considered. "We regard this case as controlled by the law applicable to gifts causa mortis.

It is urged that there was error in the exclusion of the evidence offered to be given by Latham C. Strong, and by Sarah Harrington. The former was one of the plaintiffs in the action, and the latter was residuary legatee under the will of the alleged donor. The evidence offered related to conversations between the donor and these witnesses personally, and the evidence was excluded under section 399 of the late Code of Procedure. The ruling was certainly in accordance with the spirit of the law, and as we think, substantially within its letter. Mrs. Cornell was, in one sense, an assignee of the donor. She was the tra/nsferee from the latter under what, in law, is an executed contract — a gift. In Mattoon v. Youing (45 N. Y., 696) it was held that although grantees are not named, they are within the reason of the act, and that the word “assignee” must be held to include them. (See also Buck v. Stanton, 51 N. Y., 624.) The rule laid down in Van Tuyl v. Van Tuyl (57 Barb., 235) seems to be a sensible construction of section 399. Gilbert, J., says that the fair construction of the section is, “ that'when adverse rights by succession are involved, one litigant shall not testify to a transaction with the deceased predecessor in title, invalidating or impairing the right or title of the other.” Such, too, is the substance of the decision in Timon v. Claffy (45 Barb., 438). (See, also, Howell v. Taylor, 5 Weekly Dig., 234.) We are of the opinion that the offer of proof by these witnesses was properly rejected. It may also be well urged that this evidence was inadmissible for the reason that the offer was to prove the declarations of the plaintiffs’ testator in their own favor.

After a careful examination of the case, we are of the opinion that it was properly disposed of at the "Circuit, and that the order and judgment appealed from should be affirmed with costa., So ordered.

Learned P. L, and Boardman, J., concurred.

Judgment and order affirmed with costs.


text:
    THOMAS B. BORST, Plaintiff, v. STEPHEN W. ZEH, Defendant.
    Assault— Trespass on real estate— Parol agreement for exchange of land — title transferred by.

    In an action for an assault, the defendant alleged that it was committed while plaintiff was unlawfully trespassing upon his land, and in an effort to remove him therefrom. Upon the trial,' although the record title was admitted to he in the defendant, plaintiff was allowed to prove, against the defendant’s objection and exception, a parol agreementfor an exchange of land by former adjoining owners, and a. subsequent occupation in pursuance thereof, by virtue ol which one M. claimed to own the land in question, and that a right of way over the same had been granted by him to the plaintiff.

      Held, that as plaintiff claimed that, in any event, an excess of force had been used in removing him, the evidence was properly admitted as tending to show good faith on his part in entering upon the land; that the evidence was also' admissible as tending to establish a legal right in the plaintiff to cross the land.
    Motion for a new trial on a case and exceptions ordered to be .heard in the first instance at the General Term, after a verdict in favor of the plaintiff.
    , This was an action for an assault and battery. The answer alleged that the plaintiff committed the first assault, and that what defendant did was in defending himself against that assault of’ the plaintiff. Also, that at the time of the alleged assault the plaintiff was wrongfully upon the defendant’s land with his team after he was ordered off by the defendant, and while there assaulted the defendant, and what the defendant did to plaintiff was only in the necessary defense of himself and his premises.
    The testimony shows that the record title to the land on which the alleged assault was committed was in the defendant.
    On the trial the plaintiff proved by parol, under objection of defendant, a parol agreement by former owners of adjoining lands, and subsequent occupation thereunder, by which one Michaels claimed to be the owner of the strip in question, and that the latter had granted to the plaintiff a right of way over the same, and that while exercising the same he was ejected by the defendant.

      Baljph Brewster, for the plaintiff.

      S. L. & F. M. MayTictm, for the defendant.
   Bockes, J.:

There was a question of excess of force in this case, which leaves it quite free from difficulty on this motion for a new trial. The plaintiff was accustomed to pass and repass over the strip of land where the affray occurred, and claimed the.right so to do. Admitting that the title was in the defendant, and that he had the right to prevent the plaintiff from entering upon the land, and to expel him therefrom by force in case he made an entry, then the plaintiff would be allowed to show his good faith in entering as a fact bearing on his conduct, and, consequently, on the question of damages, in case he made out a right of action for excess of force. The case would stand quite different on the question of damages if he went upon the land of the defendant, in good faith, believing that he had a right to enter, from what it would were he a willful trespasser. For the purpose of covering this point in his case, it was competent for the plaintiff to show that he had been accustomed to pass over the strip of land on an open, notorious claim of right for a great number of ye.ars; and, further, that there had been an exchange of lands between parties, who were predecessors in title, on which he predicated his right. Even if the alleged exchange was not valid in law, it was competent for the plaintiff to prove it with a view to establish good faith in his conduct. In this view of the case, it stands free from error. For aught that appears, the' case was disposed of by the jury simply on the question of excess of force. But no error is apparent if the case be considered on the defense of justification. If it were true that there had been a parol agreement to exchange lands, made, fully executed and acquiesced in by the parties to it, years prior to the affray, and that the defendant held the full benefit of the exchange, and that by such exchange the defendant no.longer had control of the strip of land claimed by him, then he stood wholly without justification. An executed parol exchange of lands, actually observed by occupation of the parties, with substantial improvements on the faith of it, will be binding in law; and especially will this be so against one who, holding the benefits and advantages of the exchange, refuses recognition of the other’s rights. One who accepts performance of a contract, and holds its advantages, cannot withhold an execution of it on his part. So, too, part performance of a parol contract for the exchange of lauds will take the case out of the operation of the statute of frauds; so be it, that, by reason of such part performance, the parties cannot be restored to their original position.

On the whole, this case seems to have been tried on sound principles both of law and equity. The charge of the learned judge was clear and, as we think, free from error, both as to what he did charge and also in his refusals to charge as requested. Nor is there any error in admission or rejection of evidence calling for a new trial.

The motion for a new trial must be denied, and judgment must be given for the plaintiff on the verdict. So ordered.

Learned, P. J., and Boardman, J., concurred.

Motion for new trial denied and judgment ordered on verdict, with costs.


author: Bockes, J.: Leabned, P. J.

text:
    THE ST. VINCENT FEMALE ORPHAN ASYLUM OF THE CITY OF TROY, Respondent, v. THE CITY OF TROY, Appellant.

      Abandonment of a portion of a street — power of municipal corporation — estoppel— Non-user of easement for twenty years.

    The common council of the city of Troy, under the authority given to it to ascertain, fix, establish and settle the boundaries of all streets, may so establish the boundaries as, in effect, to abandon a portion of the pre-existing street lying outside thereof; and where an adjacent owner makes substantial improve- _ ments upon the portion of the street so abandoned, the city is estopped from setting up any claim thereto.
    A. mere non-user of an easement for twenty years, will be deemed an abandonment of it.
    Appeal from a judgment in favor of the plaintiff entered upon a verdict directed by the court, and from an order denying a motion for a new trial.

      12. A. la/rmenter, for the appellant.

      O. A. Martí/n, for the respondent.
   Bockes, J.:

In 1853, Peter Havermans owned and was in possession of a lot. on the south-east corner of ’Washington and Hill streets, in the city of Troy, which lot was bounded north by Washington street and west by Hill street. The plaintiff succeeded to his title. On the 24th of August, 1853, the common council of the city of Troy adopted and placed on record a resolution reducing the width of Hill street southerly from Washington street, to forty feet, and directed the excess beyond forty feet to be laid off on the east side of the street; and further declared that the Troy hospital, which then stood on the adjacent lot, was at liberty to enclose that excess within its grounds for the use of that institution. In pursuance of that resolution the east line of Hill street was immediately fixed and determined by the city surveyor, leaving the street forty feet wide; and the lot on the east side was from that time occupied and improvements were made with a view to such designation of the street line; and a heavy and permanent wall was built along the line so designated, and such wall was maintained by Havermans and those holding under him until April, 1874, when the city authorities commenced its removal. Thereupon this action was brought on the hypothesis that such action by the city authorities was wrongful. On the trial the learned judge ruled in favor of the plaintiff, and directed a verdict against the defendant for nominal damages.

Prior to and until 1853, the public had an easement over the strip of land on the west side of the plaintiff’s lot, lying east of the line fixed by the resolution of August twenty-fourth of that year. This strip was within the line of the public highway. By that resolution it was intended to surrender the public right, which was merely an easement. It is not pretended that the city had any title to the strip, or any other right to it than such as pertained to it as part and parcel of the public highway. The fee was in the owner of the lot, which, by the express terms of the conveyance, was bounded on the west by the street. It will be seen by reference to the resolution that it was intended thereby to surrender the right of way held by the public over this strip of land in dispute. The language of the resolution is, “that Hill street * * * be reduced to forty feet in width,” and it further provides that the excess beyond, forty feet be laid off on its east side. Tms action of the common council was taken under the provision of the city charter which authorized that body to ascertain, fix, establish and settle the boundaries of all streets, alleys and lots in the city. In fixing, establishing and setting the line of Ilill street, the common council was acting within the powers conferred by law on that body. Such action was more than the granting of a mere revocable license to the Troy hospital to use the land. The common council had no authority to license the public highway for private use; but it might fix, establish and settle the boundary of a street, which -would in effect be a surrender of the easement, an abandonment of the public use or right of way over the adjacent lands not embraced within the boundary line fixed and established by its authorized action. Such abandonment or surrender of the public use would inure to the benefit of the owner of the adjacent lot bounded by the street. It seems, then, that the public, acting through the common council, its lawful agent in that behalf, relinquished and abandoned its right of way over the piece of land to the line of the' street as fixed and established by that' body in 1853, and that the plaintiff and its predecessors in title held the land to such line against the public from that time forward, being a period of over twenty-years, asserting at all times full and absolute title thereto, and manifesting its claim of absolute right by making substantial and permanent improvements thereon. A mere non-user of an easement for twnnty years will be deemed an abandonment of it. (Corning v. Gould, 16 Wend., 531.) But here was more than simple non-user. There was an express surrender or relinquishment of it with non-user pursuant to such surrender, for a period exceeding twenty years. Again, the evidence was here sufficient to establish an estoppel against the defendant’s claim of right beyond the boundary of that street, fixed and settled by its action in 1853. The common council had determined the line of the street by the resolution of August twenty-fourth of that year. It had been made certain and definite on the ground by the city surveyor. The owner of the lot took immediate possession, and such owner and those who succeeded to him in title, made permanent improvements thereon, on the faith of such action. The doctrine of estoppel in pens applies to such a case. (Corkhill v. Landers, 44 Barb., 218.) Tbe learned judge was right, therefore, in holding that the defendant was concluded by the resolution of August 24th, 1853, followed as it was by actual and continued occupation under claim of absolute right, especially in view of the improvements made on the faith of the action of the common council.

It is insisted, however, that there was a question of fact for the jury, on the evidence as to the location of the wall; whether or not it was erected on the line of the street, as fixed and established by the city surveyor, pursuant to the resolution of August 24th, 1853. It is well proved that possession was taken immediately after the resolution was adopted by the common council, and it seems also well established by the evidence that such possession was limited by the line fixed by the city surveyor on the east boundary of the street. Indeed, a careful examination of the testimony makes the case clear and without conflict on this point. Some confusion arose from the fact, that there was an old fence erected about the time the hospital was built in 1849. This old fence was some ten feet east of the line along which the wall was constructed. But all the evidence goes to establish, and does unquestionably establish the fact, that the wall was built along the line of the street, located and settled by the city surveyor in pursuance of the resolution of August 24, 1853.

There was manifestly no question of fact in the case for the jury.

The motion for a new trial on the minutes of the court was properly denied, and the order and judgment appealed from should be affirmed with costs.

Boakdman, J.. concurred.

Leabned, P. J.

(dissenting) :

I think that the question of actual possession is not free irom doubt, upon the evidence. According to the testimony of some witnesses, the wall was several feet .further west than the fence had been. If the question of possession be material, there was conflicting testimony on the point how far westward that possession had extended; that is, on the point whether the plaintiff had been in possession as far westward as the present wall, at any time prior to its erection. Because the possession of the plaintiffs, prior to the erection of the wall, had extended only as far as the fence And the witnesses disagreed on the point whether the wall stands where previously the fence had stood.

I cannot, therefore, concur.

Judgment and order affirmed, with costs.


author:
Learned, P. J.:
      Bookes, J.

text:
    ANDREW MIAGHAN, Respondent, v. THE HARTFORD FIRE INSURANCE COMPANY, Appellant.

      Reformation of contract — what must be shown to justify — Insurance policy— warranty in, how effect of, amoided.

    To justify the court in reforming a contract, the mistake must be one made by both parties to the agreement, so that the intentions of neither are expressed in it.
    Knowledge on the part of an agent of an insurance company of its falsity, is not enough to relieve the insured from the effect of a warranty ; there must be a mistake of one party, whereby his intentions have failed of correct expression, and fraud in the other party in taking advantage of that mistake.
    The proof of mistake should be so clear and convincing as to leave no room foi doubt.
    Appeal by the defendant from a judgment entered in favor ol the plaintiff, at the Rensselaer Circuit, and from an order denying defendant’s motion for a new trial.

      Matthew Hale, for the appellant.

      Esék Gowen, for the respondent.
   Learned, P. J.:

This action is brought to reform a policy of insurance • and to recover for a loss under the policy as reformed. The reformation which is ashed for is that the interest of the plaintiff in the property be stated to be that of an equitable owner only having a contract for the purchase. The policy contains a clause that if the assured is not the sole, absolute and unconditional owner by title in fee simple, and this fact is not expressed in the written portion of the policy, the policy shall be void. In fact, the plaintiff held only a contract for the purchase of the land, and nothing of this kind is stated. The plaintiffs, therefore, seek a reformation of the policy; and after such reformation, then they ask a recovery for the loss. (Rohrbach v. Germania Ins. Co., 62 N. Y., 47.)

The reformation of contracts in equity is contrary to the rule which excludes parol evidence to vary written contracts. (1 Story Eq., § 154.) Since law and equity are administered in the same court, and under the same form of action, there is danger that the right to reform a contract in case of mistake, may be extended so as to break down that most salutary rule.

We must then limit this right of reforming contracts by the strict doctrine laid down in Bryce v. Lorillard Fire Insurance Company (55 N. Y., 240).

1. The mistake must be one made by both parties to the agreement, so that the intentions of neither are expressed in it. That is, to apply the rule to the present case, the parties must have come to a full agreement between themselves to insure the plaintiff’s equitable interest; and by-mistake the policy must have failed to express that agreement. Now, there is no finding of the court on this point. Besides the general verdict, the only finding is this; that the jury found that at the time of obtaining the policy, or prior thereto, the plaintiff notified the defendant’s agent of the nature of his interest. This fails to find an agreement between the parties to insure such interest. It does not find that the parties agreed to something which was different from that which was afterwards expressed in the contract. (Mead v. Westchester Fire Ins. Co., 64 N. Y., 453.)

The knowledge of the agent has been held not enough to destroy the effect of a warranty. (Alexander v. Germania Ins. Co., MS., Co. Appeals.) And so the mere knowledge (found by the jury) of the defendant’s agent in this case, does not alone establish the agreement claimed by the plaintiff. (Hughes v. Mercantile Fire Ins. Co., 55 N. Y., 255-2.)

The mistake must be that of one party by which his intentions have failed of correct expression, and there must have been fraud in the other party in taking advantage of that mistake. (Bryce v. Lorillard Ins. Co., ut supra.) And here, too, the present case fails to come within the rule. There is no finding of fraud on the part of the defendants, and there is no evidence of such fraud.

But again, it has been settled that the proof of mistake “ should be so clear and convincing as to leave no room for doubt.” (Mead, v. Westchester Ins. Co., ut supra) There is no safety if the written agreements of parties can be disregarded under pretense of reform ing them, and on proof which is contradictory. In the present case, no proof which can be called unquestionable is presented. The plaintiff and his brother testify that ho stated his equitable title. The insurance agent and clerk deny this. The memorandum or entry in the register, made at the time, does not state this equitable interest. And the policy made and delivered at the time, contains no allusion -to it. The plaintiff fails to give that entirely satisfactory proof of mistake, which alone authorizes the reformation of a contract. Belief cannot be granted where the evidence is loose, equivocal or contradictory. (1 Story Eq., §§ 152, 151.)

After this case had been tried, and a verdict rendered, a motion was made by the defendant for a new trial on a case and exceptions, which was denied. There has been no formal decision made by the learned justice who tried the case on the question whether or not the policy should be reformed. But as the whole matter thus came before him, it is reasonable to understand that the learned justice intended to hold that the policy ought to be reformed in the manner asked by the complaint.

As is pointed out in Vermilyea v. Palmer (52 N. Y., at 414, 415), only one specific question of fact was to be tried by the jury. The issue in the case was one to be tried by the court. (Code, §§ 253, 254.) Eor the complaint demanded equitable relief. The finding of the jury, therefore, on that question of fact, must, “ if approved by the court, become by adoption the finding of the court.” The case comes before us then as an equity case on the facts. (Birdsall v. Patterson, 51 N. Y.,43; Vermilyea v. Palmer, ut supra, p. 475.)

Ve are of opinion, as stated above, that no proof was given which would warrant the reformation of the policy. In numbers, the witnesses were balanced. In prejudices, the balance, if there was any, was against the plaintiff.

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

Bookes, J.

(dissenting):

This ease is not without its difficulties; but I am still of the opinion, entertained by me on the argument, that the judgment should be affirmed. I am of the opinion that a case was made for a reformation of the policy in the particulars claimed by the plaintiff ; or rather that a case was made for the jury on the facts in that regard. "We should then accept the case as it stands upon the verdict. On the evidence submitted, the jury found that the plaintiff at the time, applied for insurance, informed the defendant’s agent, through whom he obtained his policy, of the true nature of his title and interest in the property; and also rendered a general verdict in the plaintiff’s favor. The verdict, therefore, is to the effect that the plaintiff applied for an insurance on the property, truly and fully stating his title and interest in it, and that the defendant accepted his proposition, took the premium demanded, and gave him his policy; which, however, either through fraud or mistake, erroneously described such title and interest. The evidence is sufficient, I think, to uphold this verdict. Now, it cannot be denied that the parties negotiated for an insurance upon the property; nor can it be denied (over the verdict) that the plaintiff gave his title and interest in it correctly. His statement as to what he wished the policy to cover, and in what respect he desired indemnity against loss, was correct and full. His proposition for insurance was accepted by the defendant, with the premium demanded therefor. Now, in the absence of all intentional wrong or fraud on the part of the defendant, and have we not the precise case stated by Judge Rapallo, that if the defendant intended to insure the plaintiff’s interest, and received the premium for that insurance, but by a clerical error a wrong description was inserted in the policy, a case would be made out for reformation ? (64 N. Y., 453, on p. 457.) It seems to me that we have precisely such case; that is, waiving the question of fraud; that view being the most favorable one for the defendant. There then was an error or mistake by which the intention of the parties have failed of true expression. It is then a proper case for reformation of the policy to the end that.the intention of the parties may be truly set forth therein.

If this branch of the case be found in the plaintiff’s favor on the papers presented, the record is, in my judgment, free from error

I am of the opinion that the judgment should be affirmed, with costs.

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

Judgment reversed and new trial granted, costs to abide event.


author: Bocees, J.: Learned, P. L

text:
    ORANGE R. YOUNG, Appellant, v. THOMAS J. GUY, impleaded, with others, Respondents.

      Contract of sale — rights of buyer — mortgagee with notice of, how affected by — failwre to give notice of mortgage — effect of — record—not notice.

    One Scribner having contracted to sell certain real estate to defendant Guy, subsequently mortgaged the same to the plaintiff, who had notice of the contract. The mortgage was recorded when given. Guy, having no actual notice of the mortgage, subsequently took a deed from Scribner, and paid up all the purchase-price, except $1,800, for which he gave back a mortgage to Scribner, who subsequently assigned the same to defendant Flack, Flack having no notice of the plaintiff’s mortgage. After the commencement of this action, brought to foreclose plaintiff’s mortgage, and service therein on Guy, Guy paid Flack the amount due on the $1,300 mortgage. Held,

    That plaintiff’s mortgage was a lien on the premises to the extent of the unpaid purchase-money.
    That Guy was protected as to all payments made before he had notice of plaintiff’s mortgage.
    That the recording of plaintiff’s mortgage was not notice to Guy.
    That the giving of the $1,300 mortgage to Scribner did not constitute a payment. That the assignee of the $1,300 mortgage to Scribner had no greater rights than Scribner himself would have had.
    That the commencement of this action was a notice to Guy of plaintiff’s rights, and that after such notice Guy was not protected in making the subsequent payment of the $1,300 mortgage to Flack.
    That plaintiff was not bound to bring an equity action seeking an assignment to himself of the Flack mortgage, or enjoining Guy from paying the same; that this action in foreclosure properly presented his claim. (Learned, P. J., dissenting.)
    Appeal from the judgment of the Bensselaer Special Term, dismissing the complaint as to the defendant Thomas J. Guy and Delia, his wife, and rendering judgment in their favor, and against the plaintiff, for costs, and granting the usual decree of foreclosure and sale against the other defendants.

      The action was brought to foreclose a mortgage. Upon the trial it appeared that, prior to the 20th day of October, 1874, the defendant Scribner was the owner of Nos. 3 and 5 St. Paul’s place, in the city of Troy. No. 3 was incumbered as follows:
    Mortgage to Troy Savings Bank.................... $2 >000 00
    Mortgage to Kennedy, held by Flack................ 1 > 057 86
    Judgment held by the Warrens.................... 1, 307 44
    Judgment held by the Smarts...................... 411 49
    $4,776 79
    On the 20th day of October, 1874, the said Scribner and the defendant Guy entered into an agreement in writing, by which Scribner agreed to sell to Guy lot No. 3, and to deed and give possession on the 1st day of May, 1875, for the sum of $8,500, of which $2,200 was to be, and was, paid on the execution of the contract, and the remainder was to be paid, or secured, on the delivery of the deed. Out of this $2,200 Scribner paid the Smart judgment of $411.49. On the 2d day of February, 1875, Scribner executed a mortgage of lots 3 and 5 St. Paul’s place, to the plaintiff, for $7,000, to secure two notes then held by the plaintiff, amounting, with interest, to about that sum. When this mortgage was given, the plaintiff had notice of the contract of sale with Guy. On the 1st day of May, 1875, Guy, without notice of the plaintiff’s mortgage, accepted a deed from Scribner of the premises in question, and paid him $3,000 in money, and assumed the $2,000 savings bank mortgage. He also gave a mortgage to Scribner of $1,300, which made up the balance of the purchase-money of $8,500. Plaintiff had notice of this mortgage soon after its execution. A part of the money so paid to Scribner was used to pay off the Kennedy-Flack mortgage and the Warren judgment above mentioned. Some time after-wards— the exact time does not appear — Scribner assigned the $1,300 mortgage from Guy, to Flack brothers. This mortgage was given May 1, 1875, and the plaintiff’s mortgage was then on record, having been recorded February 3, 1875. This action was commenced on the 11th day of February, 1876, and the papers served on the defendants, Guy and wife, March 10, 1876. After the action had been so commenced and the papers so served, the defendant Guy, witli full knowledge of all the facts, paid the §1,300 of the purchase-money, then unpaid, to Elaclc brothers, the holders of the mortgage given by him to Scribner.
    The plaintiff claimed at the trial that he had a lien on lot No. 3, St. Paul’s place, at least to the extent of the $1,300 of the purchase-money which remained unpaid until after the defendant was fully notified of the plaintiff’s mortgage, by the service of the foreclosure papers. The judge refused to sustain that view, and dismissed the complaint as to the defendants, Guy and wife, with costs, and the plaintiff appealed.

      Esek Coioen, for the appellant.

      R. A. Parmenter, for the respondent.
   Bocees, J.:

The defendant, Guy, held “No 3, St. Paul’s place,” under a contract of purchase from Scribner, the owner of the fee, when the latter gave to the plaintiff the mortgage on those premises sought to be foreclosed in this action. The mortgage then became a lien on “No. 3,” but only to the extent of the unpaid purchase-money, and it would lose its lien as to all purchase-moneys subsequently paid by Guy to Scribner on the contract, if paid in good faith without notice to the former of the mortgage lien. The rule of law applicable to the case as above stated is clearly laid down in Moyer v. Hinman (13 N. Y., 180); see, also, Trustees of Union College v. Wheeler (61 N. Y., 88). Guy was entitled to protection-for all payments made to Scribner on the contract of purchase until he had notice of the plaintiff’s mortgage lien, and the recording of that mortgage was not such notice. (See cases above cited.) He was, therefore, protected in his payments made prior to, and at the time he received his deed from Scribner pursuant to the contract of purchase, May 1, 1875, including the liens on the lot then assumed by him, for he was then without notice of the plaintiff’s mortgage. There then remained but $1,300 of the purchase-price unpaid, and for this sum he gave Scribner his bond with a mortgage covering the premises. The giving of the bond and mortgage by Guy to Scribner was not payment of the $1,300. (Hill v. Beebe, 13 N. Y., 556.) The plaintiff’s mortgage lien therefore yet continued to this extent, liable however to divesture or defeat, by payment of the Guy mortgage by the latter in good faith without notice of the lien. It seems that this balance of the purchase-money was not paid until the plaintiff commenced the foreclosure of his mortgage. Guy being made a party to the action, then had notice of the lien and claim, and there yet remained this $1,300 of purchase-money unpaid by him. Now if the bond and mortgage given by Guy to Scribner for this sum had still been held and owned by the latter, there could have been no question but that the plaintiff’s lien would have prevailed over any claim he, Scribner, could have asserted under Guy’s mortgage to him. The plaintiff in that case would have had a superior right in equity to any which Scribner could interpose. But the bond and mortgage given by Guy had been assigned by Scribner to the Flack brothers, and Guy paid and satisfied them to those assignees, with knowledge, however, by him of the plaintiff’s position and claim. Now, had Scribner remained the owner of the bond and mortgage, and had Guy made this payment to him, having notice of the plaintiff’s claim, he, Guy, would not have been protected in it against the claim and lien of the plaintiff. Is Guy any better protected in the payment because made to the Flacks, the assignees of Scribner ? It should be here noticed that the Flacks were also parties to this action, if that fact be of any importance, and hence, like Guy, had notice of the plaintiff’s claim, when they received payment from him. It is now the settled rule of law, that an assignee of a bond and mortgage takes the exact position of his vendor. (Bush v. Lathrop, 22 N. Y., 535 ; Trustees of Union College v. Wheeler, 61 N. Y., 88; Greene v. Warnick, 64 N. Y., 220.) In the last case cited it was held, that an assignee of a mortgage takes it not only subject to all equities existing between the parties to the instrument, but to the equities which third persons could enforce against the assignor. The plaintiff’s claim and lien were therefore unimpaired by the assignment of the Guy bond and mortgage to the Flacks. His right and equity remained to him to the extent of the $1,300 unpaid purchase-money, inasmuch as Guy had notice of his lien and claim to it while it yet remained unpaid. It follows that Guy cannot be protected by his payment to the Flacks against the plaintiff’s lien. The learned judge who directed judgment in this ease was, therefore, in error in holding No. 3, was, by reason of the payment by Guy to the Flacks, released and discharged from the operation of the plaintiff’s mortgage.

The learned judge has found that the plaintiff never asserted, any other lien or claim except the ordinary mortgage lien on the premises, evidenced by his mortgage here sought to be foreclosed. The legal aspect of the case is not at all changed by this finding. All right that he had against the premises was his mortgage lien. This he asserted by his action to foreclose the mortgage. Whether he had a lien, and if he had, the extent of it, were subjects involved in the action. All he could do was to assert his lien under his mortgage. He had no claim upon the Guy mortgage, nor upon the unpaid purchase-money. His claim was on the land by virtue of his mortgage lien, limited in amount to the unpaid purchase-money. The action presents his claim in its true and only aspect. He could make it in no other way than on the facts stated in the complaint. He had no right to demand a surrender or an assignment to himself of the Guy mortgage, nor could he’ enjoin Guy from paying it, if the latter was disposed so to do. All he was required to do was to give Guy notice of his lien, after which the latter was bound to respect it. The judgment appealed from must be reversed.

Boardman, J., concurred.

Learned, P. L

(dissenting):

A fact should be noticed in regard to the case of Moyer v. Hinman (13 N. Y., 180), which has been cited on this argument. That is, that the purchaser was in possession of the land, and that his possession was, therefore, constructive notice to all the world that he had some rights to the land.

In the present case it is found, as a fact, that the plaintiff had actual notice of the contract for sale, at the time when he took his mortgage. It is not necessary, therefore, to inquire what his rights would have been, in case he had had no notice of the contract, either actual or constructive.

The plaintiff then knew, when he took his mortgage, that Scribner was bound by Ms contract, to convey to Guy, upon receiving pay ment of tbe contract-price. And therefore, be stood substantially as an assignee of Scribner’s interest under tbe contract, bolding tbe same as security for bis debt against Scribner. If then be bad desired to protect himself, and to prevent Guy from dealing with Scribner as tbe absolute owner of tbe title, he should at once have notified Guy of bis ownership of Scribner’s interest. This be did not do. And, in ignorance of the rights of tbe plaintiff, Guy paid and secured tbe purchase-price of tbe land and took bis deed from Scribner, as be ' might lawfully do. Indeed, it was only from Scribner that Guy could have obtained a deed.

At tbe time of receiving tbe deed and completing the purchase, Guy might have paid tbe whole of tbe purchase-money to Scribner, because be bad no notice of tbe plaintiff’s mortgage. And although be did not pay tbe whole of tbe purchase-money, yet be gave to Scribner a bond and mortgage for that part of tbe purchase-money which be did not otherwise pay. To this bond and mortgage Guy bad no defense. For it was given for a good consideration, tbe conveyance of tbe land. And, when it was given, Guy bad no notice that Scribner’s interest in the contract bad been transferred as collateral to tbe debt owing to tbe plaintiff.’

This is like any case of an assignment by one party of bis interest in a contract non-negotiable. Tbe other party to tbe contract, not being notified of tbe assignment, may safely deal with tbe original party. And if, in such dealing, instead of paying money, be gives a bond, tbe bond is valid. If Guy might- have safely paid Scribner tbe amount owing on tbe contract, then it follows that the bond given by Guy to Scribner was a valid obligation, to which Guy bad no defense.

If then tbe bond and tbe accompanying mortgage were valid, they did not lose their validity by tbe transfer to tbe Flacks. And Guy was as much bound to pay tbe Flacks, as be bad been to pay Sctibner. It is very possible that tbe plaintiff was, in equity, entitled to compel Scribner to assign that bond and mortgage to him. I see no reason to doubt that be could have compelled such a transfer before Scribner bad assigned tbe bond and mortgage to tbe Flacks. But be did not do this, although be knew of this bond and mortgage, directly after tbe execution thereof. This right be would have had, on the ground that by conveying the property and taking this bond and mortgage in part payment, Scribner was equitably bound to give the plaintiff security on the bond and mortgage which he had before had on the land. But this right would not have been an assertion that the bond and mortgage were invalid. It would have been an assertion that the bond and mortgage were valid, and that Scribner was equitably bound to transfer them to the plaintiff. Guy would still have been hable to pay them. To illustrate this, suppose that Scribner, instead of giving a bond and mortgage to Young, had assigned to him the contract of sale as collateral to a debt. Guy, having no notice of this, could have safely paid Scribner, or could have given a bond and mortgage. The bond and mortgage would have been valid. Guy would have been hable to pay the same to any legal holder thereof. And the plaintiff’s only remedy would have been, to bring a suit in equity to compel a transfer to him of the bond and mortgage by the holder thereof.

Even admitting that the Flacks took the bond and mortgage, sub1 , ject to the same equity which might be enforced by an action brought to recover the bond and mortgage, then the difficulty is that the plaintiff has not brought an action to enforce his equitable right to that bond and mortgage. His complaint is simply one of foreclosure. He alleges that the defendants, including the Flacks, have some interests in the premises which have accrued subsequently to his own mortgage. His action necessarily claims to cut off altogether the mortgage given by Guy as a second lien.

There is nothing in the comjdaint setting forth the mortgage given by Guy, and claiming that the plaintiff is the equitable owner and that the Flacks should assign it to him. There is nothing, therefore, in the action to apprise Guy of this equitable claim. Guy was, therefore, at liberty to pay to the legal owner. If Guy had been sued by the Flacks, he would have been in no position to assert that the plaintiff was the equitable owner of the mortgage, for the plaintiff had made no such claim.

H the plaintiff had really thought that he had any equitable right to the bond and mortgage held by the Flacks, he should have brought an action against them and Guy, asking to restrain the payment of the money and to adjudge that the bond and mortgage be transferred to him. Instead of doing this, he commenced a foreclosure of his own mortgage, claiming a priority thereunder both to Guy and to the Flacks. If his own mortgage was, in fact, prior in right to the mortgage given by Guy, then the plaintiff had no equitable claim to that mortgage. He has no right to change his simple action of foreclosure into a claim entirely inconsistent with it.

A debtor who is ready to pay his debt to the legal holder thereof, is certainly not bound to assert the alleged equitable rights thereto of some third party, which the party neglects to assert himself, and whidh by his own litigation he disavows.

I think the judgment should be affirmed.

Judgment reversed and new trial granted, costs to abide event.


author: Learned, P. J.:

text:
    MILO C. OSBORN, Respondent, v. ASHER MERWIN, Appellant.

      Statute foreclosm'e— aba/r though no affidavits are made — In default of affidavits, sale how proved, — Pa/rol agreement to sell, change of possession, etc. —effect of.

    A sale liad under a foreclosure by advertisement, pursuant to the statute, bars tbe equity of redemption, although, no affidavits are made, tn default of such affidavits, the sale may be proved, as against the mortgagee, by secondary evidence, which would include the entries relative to the sale in the register of the attorney who conducted the proceedings; an entry made in his book, in the due course of business, by the printer of the paper in which the notice was claimed to be published, charging the attorney with the expenses of such advertisement, as tending to show that the advertisement was made; and, also, evidence of a parol agreement by which the mortgagee, with the assent of the mortgagor, purchased the mortgaged premises for the amount of the mortgage, and the subsequent taking possession thereof by the mortgagee* In such case a verbal agreement between the mortgagor and the mortgagee for the sale of the property for the amount of the mortgage, possession being delivered and improvements being made, would be valid.
    Appeal from a judgment entered upon a verdict in favor of the plaintiff at the Washington Circuit.
    This action was brought to recover the deficiency on a bond after a foreclosure of the mortgage by advertisement. The foreclosure took place in July, 1859, and the assignee of the mortgage was the purchaser. The obligor set up, as a defense, that before that time, and in August, 1855, the same assignee foreclosed the mortgage by advertisement, bought the property for the whole amount of the mortgage debt, and went into possession.
    The defendant testified that, in 1855, a notice was served on him by the plaintiff, by mail, of the foreclosure of the mortgage in question for the 13th of August, 1855. He testified that he had lost the notice, but he gave its contents; that he attended the sale on that day. Another witness testified that he saw the notice stuck up on his office door, and saw the notice in the Eagle, a newspaper. The printer of the newspaper testified that he published a notice of a mortgage sale, in which the plaintiff was assignee, in 1855. He testified that he could find no file of his paper. The charge for the services was in June.
    The defendant offered in evidence the register of a deceased attorney, who it was claimed conducted the foreclosure of 1855, but this was excluded. He offered to show, by parol, the contents of the notice of sale published in the Eagle, and of the notice stuck upon the office door, but this was excluded.
    The defendant then offered lto show a sale of the premises on the 13th of August, 1855, for more than enough to satisfy the mortgage, but this was excluded. The defendant then proved that the plaintiff took possession shortly after that time.

      James B. OT/ney, for the appellant.

      J. J. Werner, for the respondent.
   Learned, P. J.:

In Tuthill v. Tracy (31 N. Y., 157), it was held that a sale pursuant to the statute bars the equity of redemption without any affidavits being made. This ease is cited in the recent case of Mowry v. Sanborn (MS., Ct. App.), without criticism, and must, therefore, be the law.

If there were no affidavits, then, of course, there was no reason for the exclusion of other proof of the facts, if such proof was otherwise proper.

The service of the notice of sale on the defendant was proved without dispute. As to the publication in the Eagle, Mr. Ives testiffed that he knew of a foreclosure commenced by one Watson Osborn for the plaintiff against the defendant’s property; that it was commenced in 1855, he thinks, in May, and that he- saw the notices. The printer testifies that he cannot find any files; that he published a notice of mortgage sale, in which the plaintiff was the assignee ; that the notice was brought to him by Mr. D. 3L Olney. The register of Mr. Olney, who is deceased, is offered in evidence, and excluded. It contains the title of the case, a statement that he is counsel, and W. Osborn attorney, and, among other things, these entries : “ Prepared advertisement and put in the Eagle, May 16, 1855 “Posted notice of sale on court-house door — done by me.”

In the case of Hawley v. Bennett (5 Paige, 104), which also is cited approvingly in Mowry v. Sanborn (ut supra), it was held that entries in an attorney’s register of a sale on the day mentioned in the notice were admissible in evidence. It is true that this was before the act of 1808, which made the affidavits prima facie evidence. But we have already seen, in Tuthill v. Tracy, that it is not necessary, in order to cut off the equity of redemption, to make any affidavits. In the present case, if any affidavits were 'made, the plaintiff was notified to produce them; and, failing to do so, secondary evidence was admissible. If no affidavits were ever made, then it was necessary and proper to introduce ordinary common-law proof. And, as such, these entries were admissible.

So the printer testified that, aside from his book, which was produced in court, he could not remember that he published the notice thirteen weeks. The defendant offered in evidence an entry on the book, and the court excluded this and also, the evidence in regard to it. It does not distinctly appear what this entry was. It seems to have been a charge against Mr. Olney for printing this advertisement. Mr. Olney’s register would have shown him to be the plaintiff ’s agent in this business of foreclosure. So that this entry by the printer would seem to have been a charge against the plaintiff’s agent for doing certain work in his behalf. And the question is whether this was admissible in evidence that the work had been in fact done, that is, that the printer had actually published the advertisement for which he made a charge.

It seems to me that this comes within the doctrine of Guy v. Mead (22 N. Y., 462). From wbat appears, tbe memorandum must bave contained, or implied, a statement tbat this advertising bad been done. The witness testified tbat it was made in tbe ordinary course oi business, and would not bave been made if it bad not been true. And certainly (aside from tbe former strict rule of evidence), such a charge, made at the time, is more convincing than tbe memory of a witness as to a matter nearly twenty years old.

There is another consideration. A sale under such proceedings as these is made by virtue of tbe power given by tbe mortgagor to tbe mortgagee. Tbe mortgagee is by statute permitted to be a purchaser, but be sells by virtue of tbe mortgagor’s authority, just as if tbe mortgagor sold tbe property himself. Tbe statute regulations as to notice, etc., are for tbe benefit of tbe mortgagor. Now, tbe defendant offered to prove tbat, at tbe time fixed by tbe notice served on him, viz., August 13, 1855, tbe plaintiff did sell tbe property to himself for more than enough to satisfy tbe mortgage, and tbat tbe defendant was present; be proved tbat tbe plaintiff told the defendant be bad bought tbe premises; tbat be took possession soon thereafter and exercised acts of ownership; and tbat, at the plaintiff’s request, tbe defendant in a few months gave up possession and went away. He offered to show tbat, in March, 1859, tbe plaintiff made a contract to sell a part of tbe property by warranty deed, which contract was, by its terms, to be completed by April 1, 1859, two months before tbe second foreclosure was commenced; and that the plaintiff received tbe full amount thereof April 11, 1859.

Tbis, then, was evidence tbat tbe defendant surrendered to tbe plaintiff possession of tbe premises, upon a sale thereof to tbe plaintiff, at a price equal to the amount of the mortgage. If we look upon this merely as a verbal agreement between tbe plaintiff and tbe defendant to sell tbe property for tbe amount of tbe mortgage, they eoidd make such an agreement; and they could carry it out by respectively giving and taking possession. They did so, and tbe plaintiff, after taking possession, went on and made improvements by building. Tbis would bave made the verbal agreement binding. By tlie sale, which tbe defendant offered to prove, tbe plaintiff agreed to give for tbe land the amount of tbe mortgage; and tbe defendant accepted tbis by giving up possession under tbat offer. If the plaintiff, by neglect, has failed to preserve that evidence of the sale which is authorized by the statute, viz., the affidavits, he should not be allowed to deprive the defendant of the benefit of the plaintiff’s own bid for the property. The defendant makes no objection to the regularity of the proceedings; he accepted them as valid and yielded possession.' No one else can complain, if he does not. The plaintiff ever after that time continued possession as ownei’, claiming the premises in fee. He can, even now, make out the proper affidavits. (Tuthill v. Tracy, ut supra.)

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

Present — Learned, P. J., and Boardman, J.; Bookes, J., taking no part.

Order reversed, with costs.


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    RICHARD MCMICHAELS, Respondent, v. CHAUNCEY KILMER, Appellant.

      Mutual accounting — party to — when hound to state item against himself.

    Inhere two parties have a settlement of mutual accounts, having, among other things, been mutually interested in a sale made by one of them of Certain property, the proceeds of which are embraced in the account, the party selling the property is bound, on the accounting, to state any item against himself relating to such sale, if such item is overlooked by the other.
    His failure to act affirmatively in making known to the other party his omission of such item is constructively fraudulent, and the settlement will, for that reason, bo opened.
    Appeal from a judgment in favor of the plaintiff entered on the decision of the court. ■
    The action was brought to recover the sum of $414 and interest, írom April 1, 1867, being a portion of ^the price of the American Hotel, Saratoga Springs, N. Y., in which both the parties were interested, omitted from a settlement of accounts between the parties by an alleged fraudulent concealment by the defendant. The defendant leased the real estate in question to the plaintiff, who had a right to purchase it if the defendant should choose to sell at less than a certain sum; the plaintiff might at any time sell for more than that sum, and if he sold for more, then he was to pay the plaintiff one-half of the excess of the purchase-money over such sum. The court below found, among other things, that, in * * * the settlement between the parties, defendant was charged with $30,000, as the purchase-price he received for the said premises * * * as received April 1, 1867. That, in fact, defendant, on November 8, 1866, executed a deed of said premises for. $30,000, and interest from that date, to one William II. McCaffrey, the possession of. the premises, however, not being given, and being reserved and the purchase-money not being paid until April 1,1867. That, on April 1, 1867, up to which time plaintiff occupied said premises under agreement * * * and paid rent therefor, defendant had received, as the purchase-price for said premises, $30,000, and interest thereon from November 8, 1866, amounting to $828, and that on said set tlement defendant, instead of being charged with $30,000, as the purchase-price of said hotel and premises, received April 1, 1867, should have been charged with $30,828 April 1, 1867. That one-half of said sum of $828, to wit, $111, and interest from April 1, 1867, plaintiff was justly entitled to be allowed and paid on said settlement, and was not.

      A. Pond, for the appellant.

      John P. Putnam, for the respondent.
   Learned, P. J.:

This case comes up on substantially the same evidence as before. A reference to the former opinion would be sufficient, were it not that the learned justice has found that the defendant committed a fraud in not mentioning the disputed claim.

There were mutual accounts between the parties and litigation was threatened. Their respective attorneys met and had a settlement, at which neither of the parties was present. The plaintiff's attorney made out the statement, which formed the basis of the settlement. The plaintiff yielded two items, the defendant yielded one and waived objection to three others claimed by the plaintiff. Finally, the defendant’s attorney offered to pay $1,000, and said that if he paid that, the defendant wanted a receipt in full. To this the plaintiff’s attorney consented. The money was paid and a receipt given in full of within account and of all demands to date, signed in the plaintiff’s name by his attorney.

The alleged fraud consists in this: The statement made out by the plaintiff’s attorney contained an item for profits on the salo of the hotel. In this the sale price was stated at $30,000 as of April first. In fact, the hotel was sold for $30,000 with interest, from November eighth previous. The defendant had received that statement by mail from the plaintiff’s attorney.

The plaintiff testifies that the defendant told him he had sold th'e property for $30,000 and was to get his pa^- April first, and that he so supposed. The defendant denies this. The learned justice does not find that the defendant made any false statement in this respect. He finds only that the plaintiff did not know that the defendant had received the interest ($828) that the defendant knew this and remained silent with intent to procure a receipt discharging him from liability.

The cases cited by the learned justice ih his opinion are not quite analogous to the present. They are cases where a purchaser of goods is insolvent, and knowing this, conceals the fact, with intent to defraud, by a pretended purchase for which he does not intend to pay. (Devoe v. Brandt, 53 N. Y., 462.) When a man buys goods he promises to pay. If he knows himself to be insolvent, he knows too that his promise is valueless and a fraud.

But the question here is, when two parties have a settlement of m utual accounts, is each legally bound to state every item against himself which the other has omitted % I think the answer to this question must depend principally on the relation between the parties. If, in any sense, one stands in a confidential position to the other, then he is certainly bound affirmatively to disclose every item against himself.

Now, looking at the present case we have a contract between the plaintiff and the defendant. The defendant leases this property to the plaintiff, the plaintiff has a right to purchase, if the defendant should choose to sell at less than a certain sum> the plaintiff has a right at any time to sell for more than that sum; and if he sells for more, then he is to pay the plaintiff one-half of the excess.

! It is true that this contract did not make a strict trust. Yet I think that it placed the parties in such a position to each other, that the defendant was bound affirmatively to make known to the plaintiff the amount of the sale. And though I do not think that there is evidence of intentional fraud, still, in my opinion, the case comes under what is called constructive fraud. The parties were, in a certain modified sense, partners in respect to the sale of the property, and each owed to the other the duty of full disclosure. It seems to me, therefore, right that the settlement should be opened.

The defendant did not offer to give evidence in regard to the other items of the account, which were said to have been compromised on the settlement.

Judgment should be affirmed, with costs.

Present — Learned, P. J., and Boardman, J., Bocees, J., taking no part.

Judgment affirmed, with costs.


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    MARGARET FINN, Respondent, v. TIMOTHY FINN, Appellant.

      Divoi’ce — testimony of parties to action for — competency of.

    In an action for divorce on the ground of adultery the testimony of one, who, when offered as a witness, by the evidence thus far taken and the pleadings, appears to he the husband of the other party, is inadmissible under section 2, chapter 887 of the Laws of 1867.
    The words “ except to prove the fact of marriage ” in that act refer to the marriage which took place between the parties, and it is not competent thereunder for a party to testify to a previous marriage for the purpose of showing that his subsequent marriage to his adversary in the action was void.
    Appeal from an order denying defendant’s motion for the con firmation of a referee’s report and for judgment thereon, and setting aside, vacating and discharging the referee’s findings and report in an action for divorce on the ground of adultery.
    The complaint averred that the plaintiff was duly married to the defendant on a certain day, and that she continued to live with him as his wife till a certain date, being for about ten years. The' answer admitted the allegations except that it denied that he was ever married to the plaintiff “ only as hereinafter stated.” The statement afterwards made in the answer was, that “ at the time of the marriage with the plaintiff stated in the complaint,” the defendant wTas and had long been a married man, etc.
    The defendant, under objection, testified to a marriage contracted between him and one Catherine, at a date several years previous to his marriage with the plaintiff; he testified to his seeing said Catherine at a date about ten years after his marriage with the plaintiff, and that he had not been divorced from Catherine before he married the plaintiff, and that Catherine had not been imprisoned for life.
    The referee dismissed the complaint, and the Special Term set aside his conclusions and directed a new trial. The defendant appeals.

      II. Boa/rdmam, Smith, for the appellant.

      Jno. T. Dcmdson, for the respondent.
   Learned, P. J.:

The appellant urges that there was no competent proof that the defendant was the husband of the plaintiff, and that, therefore, he was admissible as a witness. The fact that a marriage had taken place between the parties is alleged in the complaint. It is admitted in the answer; only the defendant avers a prior marriage with Catherine, and hence the invalidity of that between him and the plaintiff. This is the averment of a distinct fact, not connected with the fact of the second marriage. The admission plainly means that the ceremony had been performed between plaintiff and defendant. That is enough ¡prima facie.

Very possibly, to authorize a divorce, the court will require other proof of marriage than by admissions of the parties. This is a rule of public policy. (See, however, Law of 1867, chap. 887, § 2.) But this case necessarily came before the Special Term. (Rule 92, Blott v. Rider, 48 How., 90.) And it has been sent back for further proof, or a new trial; and then affirmative proof of the marriage may be given. "When the defendant was offered as a witness there was enough prima facie to show that he was the plaintiff’s husband. .

The appellant again urges that he was properly admitted as a witness ; because he was to show, and did show, that he was not the plaintiff’s lawful husband, and that if he was not her husband he was competent. But as the case stood, when he offered himself, there was evidence by admissions at least, that a marriage contract had been made and consummated bétween the parties. True, if that marriage was void, so that the defendant was not the plaintiff’s husband, then the disability as a witness did not apply. (Dennis v. Crittenden, 42 N. Y., 542.) That case, however (cited by. the appellant), does not show that the invalidity of the marriage may be shown by the testimony of one who, when offered as a witness, appears to be the husband or wife of the other party.

After hearing the defendant testify the referee might hold, as a matter of fact, that no prior marriage had taken place. So that the admissibility of the witness would depend on the conclusion of the referee, after the witness had given his testimony. In bigamy,” says Hr. Best, the second wife or husband is competent, after proof of the first marriage.” (1 Best Evid., § 177.)

The appellant further urges that he was competent under the present statutes. The decision of Matteson v. New York Central Railroad Company (62 Barb., 364), cited by the appellant, although published in 1872, was made ten years before that date. During the time that had elapsed after the decision was made, and before it was published, the language of the Code had been changed. Ye must take the Code as it stands now. Section 398 removes the objection that the appellant was a party. Chapter 887, Laws of 1867, to a certain extent, removes the objection that he was the husband of the plaintiff. (Southwick v. Southwick, 49 N. Y., 510.) But section 2 of that act provides that husband and wife shall not be competent to give evidence for or against each other “ in any action or proceeding for divorce 'on account of adultery (except P* prove the fact of marriagd). ” The appellant insists that the exception. renders him competent, in this case, to show a prior marriage, and thus to prove that the marriage which took place between him and the plaintiff was void.

The case of Bissell v. Bissell (55 Barb., 325), cited by the appellant, was not an action for divorce on the ground of adultery, and therefore has no application.

In an action like the present, the only matter as to which the statute makes the parties competent is to prove the fact of marriage. This refers to the marriage between them — to the contract which actually took place. It would be a forced construction to hold that this exception permits husband or wife to prove some independent fact, because such independent fact shows that the marriage which took place between them was void.

Bor these reasons the order appealed from should be affirmed, with costs.

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

Order affirmed, with ten dollars costs and printing disbursements.