text:
    Philip J. Baker, Resp’t, v. John R. Thomas and Clinton R. Thomas, Impl’d, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Record—Release oe mortgaged premises.
    A release of a portion of mortgaged premises is a conveyance within the provisions of the recording act.
    2. Same—Bona etde purchaser—Constructive notice.
    A portion of the premises covered by a mortgage were conveyed to defendants and released, but such conveyance and release were not recorded until after the assignment of the mortgage to plaintiff was recorded. The only occupancy by defendants was by moving the fence and using the land for pasturage, there being no buildings or improvements thereon. Plaintiff lived some miles distant and had no knowledge of the situation of the premises. Held, that defendants' possession of the premises was not of such a character as to constitute a notice to plaintiff of their rights, and that he was a bona fide purchaser under the recording act.
    Appeal from so much of" a decree of foreclosure and sale entered in the Oneida county clerk’s office, July 28,1890, as decreed the sale, upon the mortgage mentioned in the complaint, of eight acres of land of which the appellants claim to be the owners, discharged from the lien of the mortgage in suit, under a deed from the mortgagor and by virtue of a release made and delivered to the appellants by the plaintiffs assignor.

      Risley & Perry, for app’lts; P. C. J. DeAngelis, for resp’t.
   Martin, J.

—On the 1st day of January, 1875, James Mitchell was the owner of about 268 acres of land, being the premises described in the complaint On that day he executed a mortgage thereon, in which- his wife joined, to Samuel Douglas to secure the payment of $4,000 January 1, 1878, with annual interest The mortgagee having died, the executor of his estate on June 8, 1876, assigned the mortgage to Emily Douglas, which assignment was recorded on that day.

January 1, 1878, Mitchell and wife by warranty deed conveyed to the appellants eight acres of the premises mortgaged. On the same day Emily Douglas, who was then the owner of the bond and mortgage, executed and delivered a release of the eight acres thus conveyed from the lien of her mortgage.

January 3, 1883, Emily Douglas assigned to the plaintiff a portion of the bond and mortgage, and on February 13th of the same year assigned to him the remainder thereof The assignments of the bond and mortgage to the plaintiff were recorded on the days on which they were made, while the deed given by the mortgagor to the appellants and the release of the portion of the premises so -conveyed given by the then owner of the bond and mortgage were not recorded until February 25, 1886.

The eight acres conveyed to the appellants consisted of a strip of land about nine rods in width extending across the farm from north to south. It was pasture land, upon which there were no buildings, and none were erected thereon by the appellants, but immediately after they purchased they fenced the land, presumably by removing the fence about nine rods from its former location, and used it as a pasture. The plaintiff resided fifteen miles distant, and was not shown to have had any knowledge of the situation of the premises or how they were occupied.

The trial court held that the plaintiff purchased the bond and mortgage in good faith and for a valuable consideration; that he thereby became a subsequent purchaser within the meaning of the recording act, and was entitled to a judgment of foreclosure and sale, and to sell the eight acres purchased by the appellants, if necessary, to pay the mortgage debt and costs. The correctness •of this decision is challenged by the appellants upon the grounds: 1. That the plaintiff took title to the mortgage in suit subject to all the equities existing against it, and acquired no greater rights than were possessed by his assignor. 2. That the release of a part of the mortgaged premises given to the appellants was not a “ conveyance ” within the recording act; and 3. That the plaintiff was not a purchaser in good faith, as the appellants were in open and visible possession of the eight acres in question, which was constructive notice to him of the appellants’ title.

The question involved in this case is not, as the appellants’ counsel seems to suppose, what rights the plaintiff acquired by virtue of his assignment, as it is clear that independent of the recording act he acquired no greater rights than his assignor possessed. But the question here is what rights did he acquire, .if any, by virtue of the recording act, as a subsequent purchaser whose assignment was recorded prior to the recording of the appellants’ release. In other words, the plaintiff’s superior rights, if he has any, were acquired not under his contract alone, but by virtue of the rights given by the recording act to a subsequent purchaser whose conveyance is first recorded. Indeed, there is no pretense that, independent of the recording act, the plaintiff acquired any right to sell the eight acres in question. Hence, the only question in the case relates to the application of that act.

Therefore, the next question presented is, whether a release of a part of mortgaged premises is a conveyance within the provisions of the recording act

The term “ conveyance ” is declared by that statute “ to embrace every instrument in writing, by which any estate, or interest in real estate is created, aliened, mortgaged or assigned; or by which the title to any real estate may be affected in law or eauity.”’ * * * R. S., 8th ed., p. 2475, § 38.

In Bacon v. Van Schoonhoven (87 N. Y., 446), it was held that a satisfaction piece of a mortgage was a “ conveyance ” within the meaning of the recording act. In delivering the opinion in that case, Rapallo, J., said: “It (a satisfaction piece) is equivalent to a release of the mortgaged premises. Instruments creating liens by way of mortgage being expressly declared to be embraced, for the purposes of this act, in the term ‘conveyance/ it is difficult to conceive any reason why instruments discharging such liens should not be included in the general definition of ‘ instruments by which any estate or interest in land may be affected in law or equity.’ ” ín Brewster v.Carnes (103 N. Y., 562 ; 4 N. Y. State Rep., 264), it was said: “It is a well-established principle of law that the assignment of a mortgage and the satisfaction of the same are conveyances within the meaning of the recording act. (Van Keuren v. Corkins, 66 N. Y., 77 ; Westbrook v. Gleason, 79 id., 23, 25 ; Decker v. Boice, 83 id., 215; Bacon v. Van Schoonhoven, 87 id., 446.)”

In Mutual Life Insurance Company v. Wilcox (55 How. Pr., 43), it was held that a release of a part of mortgaged premises was a “ conveyance ” within the recording act. See also St. John v. Spalding (1 T. & C., 483), and opinion of Vann, J., in Frear v. Sweet (118 N. Y., 463 ; 29 N. Y. State Rep., 972). The doctrine of the cases cited leads us to the conclusion that the court properly held that the release to the appellants of a part of the mortgaged premises was a “ conveyance ” within the meaning of the recording act, and that the appellants’ release was void as to the plaintiff’s assignment, which was first recorded, if he was a purchaser in good faith and for a valuable consideration.

This leaves for consideration the question whether the plaintiff was a subsequent purchaser in good faith and for a valuable consideration. It is well settled that as an assignee of the mortgage the plaintiff became a purchaser under the recording act, and there is no claim that such subsequent purchase was not for a valuable consideration and in good faith, unless the plaintiff had constructive notice of the appellants’ title by reason of their possession of the premises. As we have already seen, the only occupancy of the premises was that the fence was changed and the premises used by the appellants as pasture land, there being n® building or other improvements thereon. Whether this was sufficient notice to impeach the plaintiff’s good faith and thus relieve the appellants from the operation of the recording act, is the only question we need consider.

In Brown v. Volkening (64 N. Y., 76, 82), Allen, J., in delivering the opinion of the court, said: “ The statute makes void a conveyance not recorded only as against a subsequent purchaser in good faith and for a valuable consideration. Actual notice of a prior unrecorded conveyance, or of any title, legal or equitable, to the premises, or knowledge and notice of any facts which should put a prudent man upon inquiry, impeaches the good faith of the áubsequent purchaser. There should be proof of actual notice of prior title, or prior equities, or circumstances tending to prove such prior rights, which affect the conscience of the subsequent purchaser. Actual notice, of itself, impeaches the subsequent conveyance. Proof of circumstances, short of actual notice, which should put a prudent man upon inquiry, authorizes the court or jury to infer and find actual notice. The character of the possession which is sufficient to put a person upon inquiry, and which will be equivalent to actual notice of rights or equities in persons other than those who have a title upon record, is very well established by an unbroken current of authority. The possession and occupation must be actual, open and visible; it must not be equivocal, occasional, or for a special or temporary purpose ; neither must it be consistent with the title of the apparent owner by the record.” After examining several cases, he continues: “I have met with no case in which anything short of actual, visible, and as it is said in some cases, notorious possession of premises, has been held constructive notice of title in a claimant (See Chesterman v. Gardner, 5 Johns. Ch., 29; Grimstone v. Carter, 3 Paige, 421; Cook v. Travis, 20 N. Y., 400; Webster v. Van Steenbergh, 46 Barb., 212.) All the cases agree that notice will not be imputed to a purchaser except where it is a reasonable and just inference from the visible facts. Neither will the principles of constructive notice apply to unimproved lands, nor to cases where the possession is ambiguous or liable to be misunderstood. (Patten v. Moore, 32 N. H., 382.) It should not apply within the same principle to an uninhabited and unfinished dwelling-house; there must be a possession actual and distinct, and manifested by such acts of ownership as would naturally be observed and known by others. The using of lands for pasturage or for cutting of timber is not such an occupancy as will charge a purchaser or incumbrancer with notice. (Coleman v. Barklew, 3 Dutch., 357; McMechan v. Griffing, 3 Pick., 149; Holmes v. Stout, 10 N. J. Eq., 419; see also Fassett v. Smith, 23 N. Y., 252.)” See also Page v. Waring (76 N. Y., 463); and Pope v. Allen (90 id., 298).

In Merritt v. Northern Railroad Co., 12 Barb., 605, it was held that the location and the staking out of a line of a railroad and setting posts for the fence was not such possession as amounted to notice to purchasers of a grant of a right of wray to the company. In Trustees of Union College v. Wheeler (59 Barb., 585, 617), it was said by Mullin, P. J., who delivered the opinion in that case, that “ the occupancy that is sufficient to charge a subsequent purchaser or incumbrancer with notice of the occupant’s rights must be open and visible, and he must actually improve the premises. Fencing, pasturing or cutting timber is not such an occupancy as will charge a purchaser or incumbrancer with notice. (McMechan v. Griffing, 3 Pick., 149, and cases cited ; Cook v. Travis, 22 Barb., 338; Troup v. Hurlbut, 10 id., 354; 4 Kent’s Com., 179, and notes.) ”

“The protection furnished by these laws (the recording act), should not be taken away except on clear proof of a want of good faith in the party claiming their protection, and a clear right in him who seeks to establish notice by means of possession. The circumstances must be such that a prudent man would be put upon inquiry, and would be chargeable with bad faith if he did not inquire.” 1 Jones on Mortgages, § 601.

We are of the opinion that the possession of the premises by the appellants was not of such a character as to constitute a notice to the plaintiff of the rights of the appellants in the premises, and that the court properly held, that the plaintiff was a subsequent purchaser in good faith and for a valuable consideration.

The case of Phelan v. Brady (119 N. Y., 587; 30 N. Y. State Rep., 256), is not in conflict with the authorities cited, but is. clearly distinguishable from them, as in that case the possession was actual, open, visible, notorious, unequivocal and such as manifested acts of ownership that would naturally be observed and known to others. Nor does the case of Frear v. Sweet (118 N. Y., 454; 29 N. Y. State Rep., 972), in any way aid the appellants, as it was held in that case that the premises sought to be charged .were never included in the mortgage or subjected to the lien thereof, and therefore the recording act did not create a lien and was in no way involved.

It follows that the judgment should be affirmed.

Judgment affirmed, with costa

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


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Daniel Quinlan, Appl’t, v. The Providence Washington , Ins. Co., of Providence, R. I., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Insurance (Fire)—Notice of loss—Condition precedent.
    The conditions of the standard insurance policy of this state requiring immediate notice of loss and proofs of loss within sixty days, are conditions precedent to a 'right of recovery thereon. Notice of loss served thirty-three days after a fire is not a compliance with such requirement.
    3. Same—Foreclosure.
    The pendency of an action to foreclose a mortgage on the premises without notice to or consent by the insurer renders the policy void.
    Appeal from a judgment entered in Jefferson county, December 19, 1890, dismissing the plaintiff’s complaint, with costs.

      Mullin & Griffin, for app’lt; A. H. Sawyer, for resp’t.
   Martin, J.

—This action was to recover $500, with interest, upon a three years policy of insurance issued by the defendant to the plaintiff July 12, 1887. The premises insured consisted of a dwelling house situated at Cape Vincent, N. Y.

The policy was the standard insurance policy of the state of New York, and contained a stipulation that it should be void, unless otherwise provided by agreement endorsed thereon or added thereto, if, with the knowledge of the insured, foreclosure proceedings be commenced or notice given of sale of any property covered by the policy by virtue of any mortgage or trust deed. It further provided that, if a fire occurred, the insured should give immediate notice in writing to the company of any loss thereby, and within sixty days after the fire furnish to the company verified proofs of the loss.

It also contained the following provision: “ This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be endorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement endorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have- such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.”

The plaintiff subsequently gave a mortgage on the property covered by the policy, which was being foreclosed, to the knowledge of the plaintiff, when the fire by which the building was destroyed occurred. There was no agreement endorsed on or added to the policy changing the stipulation in relation to the commencement of proceedings to foreclose any mortgage thereon. No notice whatever of the fire was given by the plaintiff to the defendant. More than a month after the fire occurred, Kelsey, a former agent of the defendant, wrote to it that the property had burned. No proofs of loss were furnished by the plaintiff until nearly seven months after the fire occurred.

At the close of the evidence, the defendant moved for a non-suit on the grounds: 1. That there had been no notice of loss given in conformity with the provisions of the policy; 2. That no proofs of loss were served within sixty days, as the policy required; and, 3. Upon the ground of a violation of the condition of the policy in reference to foreclosure proceedings. The motion was granted, and the plaintiff excepted.

The condition in the policy requiring immediate notice of loss was a precedent one, and its non-performance was a bar to the plaintiff’s recovery Sherwood v. Agricultural Ins. Co., 10 Hun, 593, 595; Union Ins. Co. v. McGookey, 33 Ohio,.555.

If it were admitted, which it is not, that the letter of Kelsey ■ to the defendant constituted a notice of loss, still, as it-was not written until thirty-three days after the fire occurred, it was not a compliance with the requirements of the policy to give immediate notice. Inman v. Western F. Ins. Co., 12 Wend., 460; Brown v. London Assurance Corporation, 40 Hun, 101; Trask v. State F. & M. Ins. Co., 29 Pa. St., 198; Edwards v. Lycoming Mut. Ins. Co., 75 id., 378; Roper v. Lendon, 1 El. & El., 825; Cornell v. Milwaukee Mut. F. Ins. Co., 18 Wis., 387; Whitehurst v. N. C. Mut. Ins. Co., 7 Jones (N. C.), 433; Railway Passenger Assurance Co. v. Burwell, 44 Ind., 460. In most of the cases cited, the provision in the policy was that the insured should “ forthwith ” give notice of loss, while in the policy in suit the insured was required to give “immediate” notice: yet it was held in those cases that an omission to give such notice for a time varying from six to forty days was not a compliance with the requirements of the policy and barred a recovery. We think the plaintiff failed to give the defendant the notice of its loss required by the policy, and that such failure was a bar to this action.

We are likewise of the opinion that the plaintiff’s failure to furnish the defendant with proofs of loss until nearly seven months after the fire occurred, when the policy required them to be furnished within sixty days, was also a bar to the plaintiff’s action. The furnishing of such proofs was a condition precedent to the plaintiff’s right of recovery. Underwood v. Farmers' Joint Stock Ins. Co., 57 N. Y., 500; Blossom v. Lycoming F. Ins. Co., 64 id., 162 ; O'Brien v. Commercial F. Ins. Co., 63 id., 111; McDermott v. Lycoming F. Ins. Co., 44 Supr. Ct. (12 J. & S.), 221; Bell v. Lycoming F. Ins. Co., 19 Hun, 238.

The pendency of the action to foreclose the mortgage on the premises without notice to or consent by the defendant rendered the policy void, and the plaintiff could not recover on that ground. Titus v. Glens Falls Ins. Co., 81 N. Y., 410.

As we find no evidence that would have justified the court in holding that any of these provisions had been waived by the defendant or in submitting the question of waiver to the jury, we conclude that the motion for a nonsuit was properly granted, and that the judgment, should be affirmed.

Judgment affirmed, with costs.

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


text:
    Charles Alleman, Resp’t, v. Ralph S. Bowen, Impl’d, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Negotiable paper--Endorser—Pleading.
    To constitute a cause of action against the endorser of a note, although his endorsement was made when the note was past due, it is necessary to allege notice to him of demand and refusal of payment, or of facts that would excuse such notice.
    2. Same.
    An admission hy the endorser that a certain amount remained unpaid and he supposed he was legally bound to pay it, is not sufficient to justify the court in holding, as matter of law, that he was given notice of nonpayment after demand of the maker.
    3. Pleading—-Amendment.
    Where the court improperly refuses to dismiss on the ground of insufficiency of the complaint, ana plaintiff does not apply for an amendment, the pleadings cannot after trial he conformed to the proof.
    Appeal from "a judgment, entered in Onondaga county, March 20, 1891, for $113, on the verdict of a jury directed by the court.

      B. N. Bailey and I. D. Garfield, for resp’t; W. S. Andrews, for app’lt.
   Martin, J.

—This action was against the maker and endorsers of a promissory note. No one defended except the appellant, who was the payee and first endorser. While the complaint contained allegations that the note was duly presented, at the place where the same was made payable, for payment and payment thereof duly demanded, which was refused, it contained no allegation that notice of such demand and refusal was given to the appellant. At the opening of the trial the appellant moved to dismiss-the complaint as to himself on the ground that it did not state facts sufficient to constitute a cause of action. This motion was denied, and the appellant excepted. We think this exception was well taken.

If it be admitted that the note was past due when it was endorsed by the appellant, still, as such endorser, he would be bound only upon the condition of demand upon the maker and notice of non-payment. Leavitts v. Putnam, 3 N. Y., 494; St. John v. Roberts, 31 id., 442; Eisenlord v. Dillenback, 15 Hun, 23; Rice v. Wesson, 11 Met., 400. To constitute a cause of action against the appellant, it was necessary to allege notice to the appellant of nonpayment or to allege facts that would excuse such notice. The complaint in this action contained neither, and was clearly insufficient. Cook v. Warren, 88 N. Y., 37 ; Clift v. Rodger, 25 Hun, 39.

The court erred in denying the appellant’s motion, and, as the plaintiff did not apply for an amendment of his complaint, but took the risk of its sufficiency, he cannot on this appeal be relieved from his position. Pope v. Terre Haute C. & M. Co., 107 N. Y., 61, 66; 11 N. Y. State Rep., 209; Tooker v. Arnoux, 76 N. Y., 397. In such a case the pleadings cannot .after trial be conformed to the proof. Southwick v. First Nat. Bk. of Memphis, 84 N. Y., 420.

We are also of the opinion that the evidence was insufficient to justify the court in directing a verdict for the plaintiff. There was no evidence of notice to the appellant of the demand and non-payment of such note by the maker, unless it was contained in the proof of the appellant’s statement that “ that amount ($50) remained unpaid and he supposed he was legally bound to pay it; morally he should not.” We think this evidence was not sufficient to justify the court in holding, as a matter of law, that the appellant was given notice of non-payment after demand of the maker, and that the court erred in directing a verdict. As was said by Judge Folger in Meyers v. Hibsher, 47 N. Y., 270: 11 Prima facie the appellant was entitled to have due presentment made of the note for payment, demand thereof, and notice of non-payment. (Spies v. Gilmore, 1 Comst., 321.) And before the respondent can recover of the appellant, he is bound to prove that he has taken these steps, or that he is excused therefrom, or that the taking of them has been waived.”

Judgment reversed on the exceptions, and a new trial granted, with costs to abide the event

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


author: Per Curiam. Martin, J., (dissenting.)

text:
    The Syracuse Moulding Co., Resp’t, v. Fred D. Squires, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Justice’s court—Appearance.
    A statement in a justice’s return that a certain person appeared and answered for the plaintiff and was sworn as to his authority to appear, is sufficient to show that § 2890 of the Code was complied with.
    2. Same—Jurisdiction.
    A constable’s return showing service of the summons and complaint on defendant in the town of the justice’s residence is sufficient, in the absence of proof to the contrary, to show that the justice had jurisdiction of the parties.
    3. Same—Verification of complaint.
    The complaint in an action upon a written .nstrument brought by an agent of the plaintiff may properly be verified by the agent when the instrument sued upon is in his possession.
    4. Same—Service of summons and complaint—Laws 1881, chap. 414.
    A return by a constable that the summons and complaint were personally served on defendant by delivering to him copies thereof, without stating that the same were left with him, is insufficient to justify the justice to render judgment without further proof. (Martin, J., dissents.)
    Appeal from a judgment of the Madison county court, affirming a judgment of a justice’s court, rendered in favor of the plaintiff for $32.12 damages and costs.

      Edward S. More, for resp’t; Cameron & Kiley, for app’lt.
   Per Curiam.

—The appellant challenges the validity of the judgment in this case, on the grounds:

1. That the authority of the plaintiff’s attorney to appear for it was not proved as required by § 2890 of the Code of Civil Procedure.

'2. That the justice acquired no jurisdiction of the parties.

3. That the complaint was not properly verified as required by chapter 414, Laws 1881, and, hence, that the justice was not authorized to render the judgment appealed from without further proof; and,

4. That the return of the constable was insufficient to justify the justice in entering judgment against the defendant upon the proof given.

The appellant contends that there was not sufficient proof of the authority of Edward S. More to appear as attorney for’the plaintiff in the justice’s court. The return qf the justice shows that “ E. S. More appeared and answered for the plaintiff, and was by me (the justice) sworn as to his authority to appear.” We think this was sufficient to show that § 2890 of the Code of Civil Procedure was complied with.

It is also claimed that it did not appear that the justice had jurisdiction of the parties, in that the return did not show that either of the parties was a resident of Madison county. The constable’s return shows that the summons and complaint were served on the defendant at the town of Cazenovia, which was the town in which the justice presumably resided, as the venue of the summons was Madison county, town of Cazenovia. Therefore, if the defendant was a non-resident of the county, the justice acquired jurisdiction under subdivision 3 of § 2869 of the Code of Civil Procedure, which provides that an action against a non-resident of the county may be brought before a justice of the town in which he is at the time of the commencement of the action. We think, as there was no proof to the contrary, the return sufficiently shows that the justice had jurisdiction of the parties.

Nor do we think the plaintiff’s claim that the complaint was not properly verified can be sustained. Chapter 414, Laws 1881, provides that the complaint shall be subscribed by the plaintiff or his agent and shall be verified in the manner and as provided by § 526 of the Code of Civil Procedure. It would seem that it was the intent of this statute that the complaint might be verified by the person subscribing it; if subscribed by the plaintiff, that it might be verified by him; if subscribed by his agent, that it might be verified by such agent. When we refer to § 526, we also find that that section contemplates a verification by a person other than a plaintiff. But the appellant contends that it must be verified as required by § 525 of the Code. That section provides that the verification must be by the affidavit of the party, except: “1. Where the party is a domestic corporation the verification must be by an officer thereof; 2, where the people of the state, or a public officer in their behalf, is the party, the verification may be made by any person acquainted with the facts; 3, where the party is a foreign corporation, or where the party is not within the county where the attorney resides, * * * or where the action or defense is founded upon a written instrument for the payment of money only which is in the possession of the agent or the attorney, or where all the material allegations of the pleading are within the personal knowledge of the agent or the attorney, in either case the verification may be made by the agent of, or attorney for, the party.” In this case the action was founded upon a written instrument for the payment of money only which was in the possession of. the plaintiff's agent who made the verification. We think it was sufficient.

The only remaining question is, whether the constable’s return was sufficient to give the justice jurisdiction to enter judgment in this action upon the proof given. The only proof in the case was as to the amount of interest due upon the draft in suit. Hence, the question arises whether the return of the constable showed a sufficient compliance with the statute of 1881 to authorize the entry of the judgment appealed from without further evidence. That statute provides that the summons and complaint shall be attached, and shall be served upon the defendant by delivering to and leaving with him personally true copies thereof. It also provides that the official certificate of the constable making such service shall be sufficient evidence thereof. The certificate of the constable was to the effect that the within summons and complaint were personally served on the defendant on the 11th day of July, 1890, at the town of Cazenovia, by delivering to him copies thereof.

The precise question here is, whether the jurisdiction of the justice to render a judgment without further proof failed because the officer omitted to state in his return that he left with the defendant the copies of the summons and complaint that he delivered to him. This question was somewhat considered by this court in McMullin v. Mackey, 6 N. Y. Sup., 885; 25 N. Y. State Rep., 265. In the opinion delivered by Merwin, J., in that case, it was said that a similar return was not a sufficient compliance with the statute, as it did not show that the copies were left with, the defendant. While this portion of the opinion was not concurred in by the other members of the court, a majority of the court are of the opinion that the doctrine of that case upon this question should be upheld, and that the constable’s return was insufficient! to justify the justice in rendering a judgment in the case at bar, without further proof. It therefore follows that the judgment should be reversed, with costs.

Judgment of Madison county court and judgment of justice, reversed, with costs.

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

Martin, J., (dissenting.)

—I cannot concur in the conclusion! reached by a majority of the court that the judgment should be reversed on the ground that the constable’s return was insufficient-to justify the justice in rendering the judgment appealed from without further proof. It is true that in the case of McMullin v. Mackey, 6 N. Y. Sup., 885; 25 N. Y. State Rep., 265, Merwin, J., said that a similar return was insufficient. In that case the case of Wilkinson v. Bayley, 71 Wis., 131, was cited and much relied upon as sustaining that doctrine. An examination of that case at first seems to indicate that it holds the doctrine contended for; but when the cases relied upon by the judge who wrote the opinion in the Wilkinson case are examined, it appears that the rule or statute regulating the service in those cases was unlike the statute- of 1881, as the rule or statute there under consideration provided that where the service should be made by a person other than the sheriff, it should be necessary for such person to state in his affidavit of service inter alia whether he left with the defendant a copy as well as delivered it to him. Matteson v. Smith, 37 Wis., 333.

The statute referred to in the Wilkinson case was similar to, if not identical with, rule 41 of the circuit court upon which the decision in the Matteson case was based, and required the affidavit to state whether a copy was left with the defendant or not. It was as follows : “ Proof of the service of the summons and of the complaint or notice, if any, accompanying the same, shall be as follows: 1. If served by the sheriff, his certificate thereof showing place, time and manner of service; 2. If by any other person, his affidavit thereof showing place, time and manner of service, that he knew the person served to be the defendant mentioned in the summons, and left with as well as delivered to him a copy.”

Thus it will be seen that in the cases cited the statute or rule required that the affidavits should state whether or not a copy was left with the party served, and hence they are clearly distinguishable from the case at bar. The statute of 1881 provides the manner of service, which is by delivering to and leaving with the defendant copies. It does not direct as to the form of the constable’s return, nor that it shall show that the officer serving it left copies with the defendant as well as delivered them to him. I do not regard the Wisconsin cases as binding authorities upon this question.

It seems to me that the return of the constable that he delivered the copies to the defendant included leaving them with him. A delivery must be regarded as a full surrender of the possession of the thing to the person to whom it is delivered, and this could not be accomplished without complying with this statute by leaving the summons and complaint with him. I am of the opinion that the return was sufficient; that the certificate of the fact that he delivered them to the defendant clearly implied that they were left with him; and that the judgment should be affirmed. While the opinion of Merwin, J., in the McMullin case is adverse to this conclusion, it will be observed that it was not concurred in by the other members of the court. Hardin, P. J., concurred only in the result, while Martin, J., concurred only upon another distinct ground, which was specified.

I think the judgment should be affirmed, with costs.

Judgment reversed, with costs.


text:
    The People, Resp’ts, v. Rachel Brooks, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Criminal law—Impeachment op witness.
    A refusal to permit defendant, in a criminal case, to testify to facts showing bias or ill-feeling on the part of a witness for the People against her unless such witness were first asked in relation thereto, is not such error as to require a reversal of the judgment where the unfriendly feelings between them have been shown by other evidence.
    2. Same—Charge—Good character.
    The court charged that defendant was presumed to be innocent, and in case the jury had a reasonable doubt as to her guilt, they should acquit; that good character might be sufficient to raise such doubt. He also charged that good character was not necessarily a bar to conviction, but that positive evidence of the commission of the crime, if believed, extinguishes the presumption arising therefrom. Held, that taking the whole charge together, there was no prejudicial error.
    3. Same—Remarks op district attorney.
    A judgment in a criminal case will not be set aside because of improper remarks of the district attorney, in his summing up, where he denies having made such remarks, and no exception was taken thereto.
    Appeal from a judgment of conviction and from an order denying the defendant’s motion to set aside the verdict of the jury and for a new trial herein. The defendant was convicted of the crime of arson in the first degree, and sentenced to imprisonment in the Onondaga penitentiary for the term of fifteen years.
    On the trial, after the defendant, who was called as a witness in her own behalf, had testified that a personal affray occurred between herself and Charlotte Brooks, who was a material witness for the People, the following questions were asked by the defendant's counsel:
    “ Now state whether or not. Charlotte was friendly with you or unfriendly ? Objected to as incompetent The Court: That is pretty general; any evidence of unfriendliness. By Mr. Goodelle : Did you and Charlotte have frequent difficulties during that time? Objected to as incompetent The Court: You had the witness here and can ask anything she has testified in regard to, and if you don’t think she has told the truth you can ask the witness about it,"and I think that is as far as you can go. Mr. Goodelle : As I said before, I cannot be mistaken. It seems to me under the rule that it is always competent to show by third parties or by the parties themselves feeling or ill-will against a witness who swears against another. It would be competent for me to call other witnesses in this case to show what Charlotte said against Mrs. Brooks and would indicate her feeling as a question of motive. I cannot be mistaken as to that rule. I wish the stenographer would take my objection to this. And that being the case much more is it competent to show the act of the party, which is always stronger than the declaration of the party, which indicates ill-will or hostility. Now it is with that view that this evidence is offered. I do not offer it to contradict Charlotte. I offer it as evidence, in chief in this case on the part of the defense, and that the jury may see that the principal witness in this case who has testified against Mrs. Brooks testifies from feelings of enmity towards her.
    “The Court: I think the rule is this: That a witness may be cross-examined as to his or her attitude of mind in regard to the defendant and his attention must be called to each and all the transactions upon which the counsel for the defendant desires to give evidence. If the witness admits- the acts and declarations that the defendant claims were made and done, that is the end of it If the witness denies, then I think it is competent to call other witnesses to contradict those matters; but to let a witness go off the stand not having questioned the witness as to the particulars and then calling third parties to prove independent transactions showing the attitude of the mind of the witness toward the party I think is not the rule. So. I have allowed, and do allow, this witness to testify as to any transactions bearing upon that point in regard to which the witness Charlotte was examined.
    “ Mr. Goodelle: And that is the extent to which you allow the defendant to go ?
    “ The Court: That is the rule which I should apply in regard to any question which should be put.
    “ Mr. Goodelle: I take an exception to the ruling.
    “ The Court: And I should say further that the witness referred to is in court now, so that there is no loss to the defendant by the application of the rule as I understand it.
    “Mr. Goodelle: Mrs. Brooks, did Charlotte assault you on other occasions but a short time previous to this fire ?

      “ Objected to upon the ground that the attention of the witness •Charlotte ought to have been brought to it, and it is incompetent as evidence in this case.
    “ The Court: Of course the application of the rule as I have .stated it, and as I understand it, would exclude that, unless her attention was called to it Do you say the attention of Charlotte was called to that point?
    “ Mr. Goodelle: The attention of Charlotte was called in this way: If your honor will remember that Charlotte put it- that •every rainy day they had trouble; that it was' their custom to have some trouble every rainy day. That was about as far as I •could get the witness to go upon that question.
    “ The Court: Did you put the question involving any specific occasion ?
    “ Mr. Goodelle : I think not, except the one to which she has already testified when Mr. Lacy was them
    “ The Court: Then I will exclude the question and sustain the •objection.
    “ Exception taken by the defendant’s counsel.
    “ Mr. Goodelle: The purpose being to show the animus of the witness Charlotte towards the defendant at about the time at which Charlotte claims that Mrs. Brooks said to her that she was ■going to set the store on fire; that is the purpose of the testimony.
    “ The Court: Yes, I understand.”
    The court in its charge instructed the jury as follows: “ The •question of good character, we mean by that reputation, is one that enters into a case. Where a man is charged with a crime and he has borne among his friends and neighbors, people who have known him in his daily life come in and say that his reputation among the people where he has lived has been good, that is to be taken into account in his favor, it is to be added to the presumption of innocence and is positive testimony in his behalf. Well, does that mean that no man shall be convicted of crime who has previously borne a good reputation, indeed, who lias never been known to have committed any crime or done any wrong? Hot at all It does not mean that; but it means that we find by experience that men do not suddenly go all wrong and commit some crime. It is a sort -of presumption that if a man had been upright, borne a good character, been honest and upright among his friends and neighbors for a course of years, that it is not to be expected that he will lapse into crime. Well, it would hardly be just to the law, or to this proposition of law, to say that that stands in the way of the conviction of a man of crime who has heretofore borne a good reputation. You should be more careful when you find such a man, in saying that he has gone all wrong and committed a crime, than you should in the case of a man who is shown positively, by positive testimony, to have been a criminal before. And in the trial .of a case, if that reputation has been shown to be good, or character is the word used has been shown to be good, yet, if the evidence in the case on the trial of the case, the evidence shows corruptness, fraudulent practice, bad heart, dishonesty, fraud, it rebuts, so far as it goes, the reputation for good character. That is to say, positive testimony of the commission of a crime extinguishes it altogether, if you believe the testimony.”
    At the conclusion of the charge the defendant’s counsel said: “ The charge is very satisfactory, and I do not rise to find any fault with it Your honor has charged that if the jury find that there is a reasonable doubt, that they must acquit. Now, I ask your honor to charge that good character may be sufficient to raise that reasonable doubt which requires the jury to acquit The Court: I charge that. Mr. Goodelle: I have simply one exception to take to your honor’s charge; do you desire me to take it at this time? The Court: Yes. Mr. Goodelle: Your honor charged that if, on the trial of a case, it is shown that the person has been corrupt and guilty of fraudulent practices, it rebuts the evidence and the importance attached to it of good character; is an answer to it I do not give your honor’s precise language, but that in substance, and what your honor did charge upon that question and all, I take an exception. The Court: Yes. Mr. Goodelle: And furthermore, I ask your honor to charge that these remarks are not applicable to this case. The Court: I refuse to charge that; to say that Exception taken by defendant’s counsel.”
    Six witnesses testified on the trial that they knew the defendant and knew her reputation and character in the neighborhood where she resided, and that her character was good. Upon the motion for a new trial the affidavits of William P. Goodelle, Frank Hopkins, Louis Marshall and Harry Brill were presented, stating that the district attorney while engaged in addressing the jury on behalf of the people, among other remarks made the following : “ This woman belongs to a race that worships money as it worships its Jehovah. As its golden calf was raised by the Israelites of old, it has been held aloft ever since. Give me money if I peril • my own soul and my own salvation! Any doubt about it? Is there any doubt that that woman loves the gold that her race loves ? ”
    The affidavit of the district attorney was also read, which in effect denies the use of the language attributed to him, and states that what was said was in answer to the argument of the defendant’s counsel.
    No objection or exception was taken by the defendant’s counsel to the remarks of the district attorney. The absence of such exception is sought to be explained by the defendant’s counsel upon the ground that the remarks were made before an objection could be interposed.

      Louis Marshall, for app’lt; B. J. Shove, for resp’ts.
   Martin, J.

—The appellant challenges the validity of the judgment and order appealed from on the following grounds only :

1. That the court erred in refusing to permit the defendant to testify that she and the witness Charlotte Brooks had other difficulties than those testified to by her, until the witness was interrogated as to the matters sought to be proved.

2. That it erred in its charge to the jury as to the effect to be given to the evidence of the good character of the defendant

3. In not granting a new trial because of the comments made by the district attorney as to the defendant, her race and its love ■of money.

The rule laid down by the court to the effect that a witness may upon cross-examination be asked any. question tending to show bias or ill feeling towards an adverse party, and if he denies the facts suggested, may be contradicted, but that he may not be contradicted unless the witness has first been examined on the subject, seems to be in accordance with the rule laid down by the text writers. Starkie on Ev., 213; Wharton on Ev., § 566; Stephen’s Dig. of Ev., 186 ; Taylor on Ev., § 1440 et seq.; Greenleaf on Ev., § 450.

The cases are not in harmony upon this subject In some, the doctrine stated is held. (Queen’s Case, 2 B. & B., 311; Edwards v. Sullivan, 8 Ired., 302.) While in others it is held that such proof may be given without a previous cross-examination. (New Portland v. King field, 55 Me., 172; Martin v. Barnes, 7 Wis., 239; Day v. Stickney, 14 Allen, 255, 258.) Although there are many cases where it has been held that evidence of this character is admissible, an examination discloses that in most of them the witness has first been interrogated upon the subject, and hence the question whether the witness must be first cross-examined has not been involved.. There is, however, no doubt but that the rule applied by the court in the case at bar has been generally followed in practice.

It may, perhaps, be inferred from some of the cases cited by the appellant that the rule in this state is, that such proof may be given without first cross-examining the witness. Starks v. The People, 5 Den., 106; Schultz v. Third Ave. R. R. Co., 89 N. Y., 242; People v. Thompson, 41 id., 6; Hotchkiss v. Germania F. Ins. Co., 5 Hun, 90; Starr v. Cragin, 24 id., 177; Campbell v. Campbell, 54 Supr. Ct. (22 J. & S.), 381; 6 N. Y. State Rep., 806. As it is always competent to show that a witness produced on the trial of an action is hostile in his feelings toward the party against whom he is called to testify or that he entertains malice towards the party,Schultz v. Third-Ave. R. R. Co., supra, it is difficult to perceive any good reason why he should be required either to prove that fact by the hostile witness or first obtain a denial of the fact by him before proving it by other evidence. The reason assigned by the authorities maintaining that doctrine is, that the witness should be first cross-examined on the subject so as to give him an opportunity for explanation. The logic of this doctrine is not apparent. We can see no good reason why a party should not be permitted to show the hostility and ill-feeling of a witness by such proof as he may have, and if the witness desires to explain, why he should not do ■so on the examination of the party calling him, rather than on the examination of the party to whom he is adverse.

But be that as it may, we do not think the rejection of the evidence offered constituted such an error as to require a reversal of the judgment The difficulties that had occurred between the defendant and the witness were material only so far as they showed that the relations between them were unfriendly, and this was-abundantly established by the evidence of the defendant as well as by the cross-examination of the witness.

¡Nor do we think that the exception to the charge of the court requires us to disturb the judgment. The court, in effect, charged that the proof of good character was not necessarily a bar to a conviction, that it created a presumption in favor of the prisoner,, but that such presumption could be overcome by evidence of crime, and as illustrative of that principle said that positive evidence if believed by the jury’would overcome the presumption-arising- from good character.

The. court had already in substance charged that the defendant was presumed to be innocent; that in case they had a reasonable doubt as to her guilt they should acquit, although the evidence and circumstances pointed to the guilt of the prisoner, and that good character might be sufficient to raise such a doubt. Taking the whole charge together, we are unable to see any error in it that was prejudicial to the appellant People v Sweeney, 36 N. Y. State Rep., 75.

This leaves for consideration the question whether the court erred in refusing to set aside the verdict and grant a new trial on account of the remarks of the district attorney as to the defendant and the race to which she belonged. While it may well be said that if the district attorney made the remarks attributed to him his course in that respect is not to be commended, still, as he in effect denies the making of the statements as charged, and as no objection or exception was taken by the defendant’s counsel, who was present at the time, we think we should not upon that ground disturb the order made by the learned county judge.

As we find no errors that were prejudicial to the appellant, it follows that the judgment and order should be affirmed. Code Grim. Pro., § 542.

Judgment and order affirmed.

Merwiit, J., concurs in resul


author: Per Curiam.

text:
    Charles E. Crouse et al., Resp’ts, v. Frederick Reichert, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Judgment—Service oe complaint.
    A summons and notice were served on defendant, an three days later attachment papers which included the complaint. Defendant appeared and demanded a copy of the complaint, which was not thereafter furnished. Held, that the service of the complaint in this manner was not sufficient to authorize the entry of judgment hy default.
    Appeal from order denying motion to set aside and vacate a judgment entered by default.

      J. E. Newell, for resp'ts; Homer Weston, for app’lt.
   Per Curiam.

—This was an appeal from an order denying a. motion to set aside and vacate the judgment entered herein July 8, 1891. The summons and notice provided for by § 419 of the Code of Civil Procedure were served on December 13, 1890. On the 16th day of December, 1890, an attachment was granted on the complaint and certain affidavits furnished by the plaintiffs, and it was served on that day. On December 31, 1890, the defendant served a notice of appearance and demanded a copy of the complaint, as provided for by § 479. Ho copy of the pom-plaint was served in pursuance of such demand. On January 6, 1891, twenty days after the service of the attachment papers, which included a copy of the complaint, judgment was entered. The only question involved on this appeal is, whether the service of the attachment papers, which included a copy of the complaint, was a sufficient service of the complaint to permit the plaintiffs to enter judgment in disregard of the defendant’s demand for a copy thereof.

In 6 Civ. Pro. R., 69, Merwin, J., held that where a complaint was served two days after the summons, and before the defendant appeared, the plaintiff acquired no rights thereunder, and that the service should be set aside. In 1 Hun, 78, the summons was served on June 17th, the complaint was served June 19th, the defendant served no notice of appearance, judgment was entered July 8th, and it was held regular, thus in effect holding that the defendant could have no advantage from the service of the complaint at a later date. The same doctrine seems to have been held in 7 How., 325. It would seem that the service of the complaint in this action was not sufficient, as it was not served with the summons nor after the defendant had served his demand. Moreover, it was not served as a complaint in the case, but only as a part of the papers on which the attachment was issued; hence, we are of the opinion that the judgment was irregular and should have been set aside.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.

Martin and Merwin, JJ., concur.


text:
    William Duffus, Resp’t, v. Eli T. Bangs et al, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Conversion—Assessment of damages—Evidence.
    A nonsuit in an action for conversion was reversed by the general term, and a new trial granted, and its order was affirmed by the court of appeals, and judgment absolute rendered against defendants on stipulation. Feld, that on the assessment of damages defendants were not confined to cross-examination of witnesses produced by plaintiff, but were entitled to introduce evidence of the value of the property in question, and that it was error to exclude such evidence.
    Appeal from a judgment entered upon an assessment of damages after final judgment ordered by the court of appeals, and 'from an order denying a motion to vacate the assessment and for a reassessment of the damages.

      T. K. Fuller, for app’lts; Walter S. MacGregor, for resp’t.
   Martin, J.

—On the trial of this case the plaintiff was non-suited. From the judgment entered thereon he appealed to the general term, where the judgment was reversed and a new trial granted. The defendants thereupon appealed from the decision of the general term to the court of appeals, stipulating that if the order granting a new trial was affirmed, judgment absolute should be rendered against them. The decision of the general term was affirmed and judgment absolute rendered on such stipulation. The case was then remitted to this court, and the judgment of the court of appeals made the judgment of the supreme court.

The action was for the conversion of personal property. An assessment of damages was had at circuit before a justice of this court and a jury. On the hearing the plaintiff read the testimony of one witness as to the value of the property in question, and rested. The defendants then offered to prove that the property was of much less value than testified to by the plaintiff’s witness, and also to impeach such witness. This evidence was objected to and excluded, the court holding that the plaintiff was entitled to recover thirteen hundred dollars, the alleged value of the property, as the testimony offered by him showed that it exceeded that sum. To this ruling the defendants excepted.

Subsequently a motion was made by the defendants to vacate the assessment of damages. On this motion the court held that the defendants were not entitled to introduce any evidence of the value of the property in question, but could only cross-examine witnesses produced by the plaintiff, and therefore denied the motion. The correctness of these rulings is challenged by the appellants, and presents the only question we are called upon to decide in this case.

It must be conceded at the outset that the judgment against the defendants determined all the issues in the case adversely to them and established the plaintiff’s right of recovery herein. But we think it did not entitle the plaintiff to the amount of damages alleged, nor to such as might be testified to by such witnesses as he might call, regardless of their credibility.

In an action for conversion the allegation of value is not a traversable one, and even on default, where all the traversable averments are taken as admitted, the plaintiff must prove his damages if he seeks to recover more than a nominal amount. Connoss v. Meir, 2 E. D. Smith, 314, and authorities cited in opinion ; Raymond v. Traffarn, 12 Abb. Pr., 52 ; McKensie v. Farrell, 4 Bosw., 192, 202; DeGraaf v. Wyckoff, 13 Daly, 366; Starr v. Cragin,24 Hun, 177.

As the allegation of damages in this case was not an issuable averment, it follows that the amount which the plaintiff was entitled to recover in excess of nominal damages was in no wise settled by the judgment awarded by the court of appeals. If the plaintiff was entitled to recover more, an assessment of damages was required to determine the amount

It is not claimed that the plaintiff occupied any better or different position than he would upon an assessment of damages before a sheriff’s jury or before a court and jury at circuit where there had been a default in answering. Thompson v. Lumley, 7 Daly, 74. The rule that on assessment of damages, either at the circuit or before a sheriff’s jury, a defendant may call and examine witnesses or otherwise prove all proper mitigating circumstances, seems to be well settled. Saltus v. Kipp, 12 How. Pr., 343; 5 Duer, 646; McDonald v. Walsh, 5 Abb. Pr., 69; Gilbert v. Rounds, 14 How. Pr., 46, 51; Warner v. Kenny, 3 id., 323 ; Lane v. Gilbert, 9 id., 150; Hays v. Berryman, 6 Bosw., 679; Thompson v. Lumley, 7 Daly, 79; 3 Wait’s Practice, 662; 2 Rumsey’s Practice, 602.

We think the court erred in excluding the evidence offered by the defendants as to the value of the property converted, and that for such error the judgment and order should be reversed and the motion for an order vacating the assessment of damages should be granted.

This determination of the defendant’s appeal renders it wholly unnecessary to consider the question sought to be raised by the plaintiff’s appeal; it is, therefore, dismissed without costs.

Judgment and order reversed and motion to vacate assessment of damages granted, with ten dollars costs of motion and costs of this appeal to the appellants.

Merwih, J., concurs.


text:
    In the Matter of the Application of Moses C. Tyler, Adm’r, for a Writ of Mandamus to the Board of Supervisors of Tompkins county.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Surrogates—Special county judge—Compensation.
    The office of special county judge of Tompkins county having been created by chapter 279, Laws 1858, which defines his powers and duties, his acts in the absence of the surrogate are performed in pursuance of that act, and not of the provisions of the Code, and hence, § 2493 of the Code, in relation to compensation, has no application to such acts.
    2. Same—Ratification—Laws 1889, chap, 221.
    Chapter 221, Laws 1889, ratifying the official acts of decedent, only legalized them so far as third persons were concerned, and did not change his status so far as the question of compensation was concerned.
    3. Same—Proof of authority.
    The making of the certificate of the surrogate, or the obtaining of the order, as provided in §§ 2487, 2488 of the Code, is a condition precedent to the right of another ofiicer to act in place of the surrogate, under § 2484.
    4. Same.
    Such officer is only entitled to compensation under the Code while he is acting as such surrogate, and is not entitled to compensation when not so acting.
    Appeal from an order denying the application of Moses C. Tyler, as administrator; etc., for a mandamus to the board of supervisors of Tompkins county to compel them to allow a claim of such administrator of $208.33 for services alleged "to have been rendered by John Tyler as acting surrogate of Tompkins county.
    In the year 1888 John Tyler was the special county judge of the county of Tompkins, receiving a salary as such. From February 9, 1888, to March 8th of the same year, Hon. Marcus Lyon, the county judge and surrogate of that county, was absent from the county. During his absence the special county judge on certain days performed acts of an official character as acting surrogate. On other days he neither performed, nor assumed to perform, any official acts whatever. He was a practicing lawyer in Ithaca, had a separate office, and occasionally during the time went to the county judge's office and performed acts as surrogate.
    There was a duly appointed clerk of the surrogate’s court during all that time, who received a salary from the county. The salary of the Tompkins county judge and surrogate is $2,500 per annum. No order or proof was obtained or made as required by §§ 2487 and 2488 of the Code of Civil Procedure authorizing or entitling the special county judge to act as surrogate of Tompkins county.
    On the 17th of November, 1888, John Tyler presented to the board of supervisors of Tompkins county a duly verified claim for $208.33 as compensation for the services alleged to have been rendered. This claim was for the entire time the county judge was absent It was rejected by the board. Subsequently the legislature passed an act legalizing the official acts performed by John Tyler, as acting surrogate, between January 1, 1886, and January 1, 1889. (Laws 1889, chap. 221.)
    John Tyler died in the month of August, 1889, in the state of Michigan, where he then resided, leaving a last will and testament. On November 1, 1890, ancillary letters of administration with the will annexed were duly issued to Moses C. Tyler within this state. The ancillary administrator on the 12th of November, 1890, presented this claim to the board of supervisors, and it was again rejected. Thereupon Tyler, as such administrator, procured an order to show cause "before a special term of this court, why a mandamus should not issue to compel the board of supervisors to raise by taxation an amount sufficient to pay such claim. Upon the return of the order to show cause the respondent appeared, and certain affidavits were read in opposition to the application of the appellant The appellant’s motion was denied. It is from this order that the appellant appealed.

      William N. Noble, for app’lt: William A. Finch, for resp’t.
   Martin, J.

—Section 16 of article 6 of the constitution of the state of New York provides: “The legislature may, on application of the board of supervisors, provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate, in cases of their inability, or of a vacancy, and to exercise such other powers in special cases as may be provided by law.”

In pursuance of this provision of the constitution, the legislature in 1858 passed an act declaring that there should be elected in Tompkins county a local officer “ to discharge the duties of county judge and surrogate of said county in cases of vacancy, or the absence or other inability of such officer.” This act, after stating that such officer should be a counselor at law of the supreme court and that he should possess certain powers and perform certain duties, provided that he should be designated as special county judge, and “ shall receive for the services to be rendered by him under the provisions of this act such compensation as shall be allowed to him by the board of supervisors in said county.” Laws 1858, chap. 279.

It is contended by the appellant that the decedent was authorized by this statute to act as surrogate in the absence of the county judge, and hence, that his right to so act was not dependent upon the provisions of § 2484 of the Code of Civil Procedure, nor restricted by the last paragraph of that section, which provides that before an officer is entitled to act as prescribed in that section, proof of his authority must be made as prescribed in § 2487.

Section 2484 provides: ■ “ Where, in any county, except Mew York or Kings, the office of surrogate is vacant; or the surrogate is disabled by reason of sickness, absence or lunacy, and a special provision is not made by law for the discharge of the duties of his office in that contingency, the duties of his office must be discharged, until the vacancy is filled, or the disability ceases, as follows: 1. By the special surrogate; 2. By the special county judge; 3. By the county judge; 4. By the district attorney."

It will be observed that § 2484 provides who shall act in case of a vacancy, absence or other disability only where there is no special provision of law for the discharge of the duties of that office in such contingency. In Tompkins county a local officer was elected to discharge the duties of surrogate in the absence of that officer. Hence, we are disposed to adopt the appellant’s theory that the provisions of § 2484 are not applicable in this casa

Assuming then that the statute of 1858 conferred upon the decedent the authority to act as such surrogate independent of § 2484, the question arises whether § 2493 has any application to this case. That section provides that an officer who acts as surrogate as prescribed in the last nine sections must be paid for the time he so acts a compensation equal pro rata to the salary of the surrogate or county judge. In this case the decedent acted as surrogate, not as prescribed by the sections of the Code relating to that subject, but independent of those sections and under the provisions of the statute of 1858, which declared that he should receive for his services such compensation as the board of supervisors should allow. Therefore, we are of the opinion that § 2493 of the Code of Civil Procedure is not applicable to this case, and that the decedent was entitled only to such compensation as was allowed by the board of supervisors.

If, however, our conclusion that the provisions of the Code are not applicable in this case is wrong, still, as those provisions were not complied with, it is difficult to discover upon what theory the appellant is entitled to the relief sought Mo proof of the authority of the decedent to act as such surrogate was given, nor order made as required by §§ 2487 and 2488 of the Code. We think the making of such proof, and the obtaining of such an order was a condition precedent to the testator’s right to act as such surrogate, if acting under the provisions of the Code, and that at least as to him his acts were so far unauthorized that he was not entitled to the compensation provided for by § 2493.

But it is said that the act of 1889 (Laws 1889, chap. 221), which was a statute to legalize the official acts of the decedent performed between January 1, 1886, and January 1, 1889, by reason of any failure to make proof as to his authority, has by relation supplied the required authority for the acts of the decedent as such surrogate. By this statute his acts were legalized as to third persons, so far as the legislature could do so, but we think it was not its purpose or intent to change the status of the decedent so far as the question of compensation was concerned, nor do we think that such was the effect of the statute.

There is also another reason why this order should be affirmed. Section 2493 provides that the officer or person therein mentioned “ must be paid for the time during which he so acts a compensation equal prorata to the salary of the surrogate or county judge.” We think a fair construction of this provision requires us to hold that even if entitled to compensation under the Code, the decedent was entitled only to such compensation while acting as such surrogate, and that he was not entitled to compensation when not so acting. The papers read on the motion in this case show that the testator acted during only a portion of the time for which he seeks compensation. Therefore, in any event his claim was for too much and properly disallowed. People ex rel. v. Green, 64 Barb., 162; People ex rel. v. Cady, 2 Hun, 224.

These considerations lead to the conclusion that the order should be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Merwest, J., concurs.


text:
    William Duffus, Resp’t, v. Rose Cole, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Contempt—Supplementary prooeedinss.
    After service of the order and injunction in supplementary proceedings the defendant effected the substitution of one mortgage for another on property which was in the hands of the first mortgagee under a parol mortgage. The last mortgage was for a smaller sum than the first. Held, not a violation of the injunction order.
    Appeal from an order adjudging the defendant guilty of contempt in transferring her property after the service upon her of an injunction order restraining such transfer, and imposing upon her a fine of fifty dollars to apply on the judgment, with ten dollars costs.

      Sam. Wandell, for resp’t; L. E. Fuller, for app’lt.
   Per Curiam.

—The injunction order in this case forbade the defendant from making or suffering any transfer or other disposition of or interference with her property or in which she had any interest, legal or equitable, not exempt from execution. The alleged contempt was, that the defendant effected a substitution of one mortgage for another upon property on which she had previously given a mortgage. The diamond ring was held by the first mortgagee under and by virtue of a parol mortgage. After the order was served, the first mortgagee told the appellant that she must get some one to take the property off his hands. She procured Jenkins to do this. He took a new mortgage for a less sum than the old one. She in no way disposed of any interest or equity she had in the property. What she did may possibly have constituted a technical interference with her property,- but there was no real interference. Suppose she had procured Jenkins to take an assignment of the Tyler mortgage, surely that could not have been regarded as an interference with her property. It seems to us that that was all that was in effect dona She in no way lessened or interfered with or disposed of any interest she had in it In Beard v. Snook (47 Hun, 158; 13 N. Y. State Rep., 233) we held that to support a conviction for contempt of an injunction in supplementary proceedings, the legal title to the property transferred must be shown to be in the accused. Here the legal title to the interest transferred to Jenkins was not in the defendant It was in Tyler, and passed immediately to Jenkins. If, however, it can be said that it rested in the defendant for a point of time, still the interest which she transferred was acquired subsequent to the time when the order was served, and, therefore, the injunction did not apply to such subsequently acquired interest Potter v. Low, 16 How., 549; Atkinson v. Sewine, 43 id., 84; Gerregani v. Wheelwright, 3 Abb., N. S., 264. Again, the defendant was not liable for contempt unless her act might defeat, impair, impede or prejudice the right or remedy of the plaintiff. We are unable to see how her act in any way tended to do that There was no proof of any loss to the plaintiff. 37 Hun, 329; 42 id., 535; 4 N. Y. State Rep., 657. We think the order should be reversed.

Order reversed, without costs to either party.

Martin and Merwin, JJ., concur.


author: Merwin, J.

text:
    Henry C. Kenyon et al., Adm’rs, App’lts, v. William R. Olney et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Conversion—Executors and administrators.
    Plaintiff’s intestate was engaged in the ice business. After his death the business was carried on by K.,one of the administrators, in his own name for the benefit of the widow and children. The stock of ice on hand was sold and K. gave chattel mortgages on the property connected with the business and on the stocks of ice subsequently harvested, to enable him to carry on the business, which mortgages were foreclosed and the property sold to defendants. Held, that as to the property subsequently acquired the administrators had no such title as to enable them to maintain an action for conversion; that as to the property left by the intestate they could not recover as they knew of the mortgages and did not object and there was no proof that defendants knew that it was a portion of the estate.
    Appeal from a judgment entered in Oneida county February 14, 1888, upon a nonsuit granted at Oneida circuit November, 1887.

      C. W. White, for app’lts; J. P. Olney, for resp’ts.
   Merwin, J.

—This is an action at law for the conversion by the defendants of certain personal property. It is alleged in the complaint that Isaac N Williams died on 28th February, 1874, intestate, and on the 25th March, 1874, the plaintiffs were duly appointed administrators of his estate; that “on or about the 2d April, 1884, said plaintiffs as such administrators were lawfully possessed of certain goods and chattels, the property of the estate of the said Isaac H. Williams, deceased,” consisting of a quantity of ice, three horses, three ice wagons, two harnesses, a frame building used as an ice house, pair of bobs and rack, a straw cutter, and several other articles used in connection with the ice business and a quantity of saw dust, and that on or about the 2d April, 1884, the defendants converted this property to their own use. It is also alleged that on or about 15th January, 1885, the plaintiffs were in like manner possessed of certain other property of said estate, consisting of a quantity of ice and a lease of a mill pond given by one Sillenbeck to the plaintiff H. C. Kenyon, and that at the date named the defendants converted the same to their own use.

Isaac H. Williams, at the time of his death, was engaged in the ice business at Boma He left a widow, the plaintiff Nancy H. Williams, and several children all then minors. Mr. Kenyon is the father of the widow. Kenyon, upon his appointment, made an inventory of the estate. This is dated April 15, 1874, and shows ice to the value of $700, and other property to the amount of about $200. The ice was stored in an ice house that belonged to Williams and which was on land of which Williams had a lease, which had four years to run when he died. Neither the ice house or lease were in the inventory. After the appointment of the administrators, Kenyon, at the request of his co-administrator, and with the help of two of her sons for most of the time, carried on the ice business in his own name for about ten years, and down to the time of the alleged conversions. The ice on hand at Williams’ death was peddled out, the horses and wagons and tools which he had being used, and each season thereafter a crop of ice was gathered and used -in the business. Mrs. Williams and her family lived out of the business, and the debts of the estate were paid or compromised. The administrators had no judicial accounting. The lease referred to covered an ice pond, and when the lease expired it was renewed by Kenyon in his own name. There was. another renewal in May, 1881, which is the one referred to in the complaint.

At the trial it appeared that some of the articles- which the plaintiffs sought to recover had been sold by the plaintiff Kenyon directly to the defendant Burt Olney and for which Kenyon received from Olney his pay in full and the other defendants bad nothing to do with the transaction. These, it was held, the plaintiffs could not recover for, as there could be no separate judgment against one defendant. It is very clear that after a sale by one administrator and payment in full of the price, no fraud or collusion being charged, the administrators cannot maintain conversion.

As to the balance of the property, the alleged conversions were through sales upon foreclosure of chattel mortgages given in 1883 and 1884, by Kenyon individually to the defendants W. R Olney and Kinney, to secure them for endorsements to enable Kenyon to raise money to carry on the ice business. There was no evidence showing the foreclosure sales improper, assuming the power to sell existed. The defendant Burt Olney was the purchaser at the sales. Of the propety so sold, one horse, one ice wagon and a straw cutter were in existence at the time of the death of Williams and part of his estate as inventoried. All the other property sold was what was made or accumulated in the ice business, the main item being the ice, and that was production of the years 1884 and 1885.

As to the latter class the main ground of nonsuit was that as it was not in existence at the death of the intestate, but was the product or result of one of the administrators carrying on the business in his own name, the administrators as such had no such title or possession as would enable them to maintain conversion. In this we think the court did not err. It is well settled that debts contracted by an administrator in continuing the business of the intestate would not bind the estate. Willis v. Sharp, 113 N. Y., 591; 23 N. Y. State Rep., 670, and cases cited; 3 Williams on Exrs., 6th Am. ed., 1891. 1ST or would the product belong to the estate. The title or possession would not be in the estate but in the party who run the business. It is true that in such a case, if profits were made, the administrator might be made to account for them. 3 Williams Exrs., 1890. But the right to an accounting for profits is one thing, and the right to take the product as owner without reference to the question of profits is an entirely different matter. The doctrine of confusion of goods does not apply. The case of Williams v. Kinney, 43 Hun, 1; 6 N. Y. State Rep., 560, is materially different from the present casa It may be that any benefit that Kenyon derived from the renewal of the lease might be reached by the parties interested in the estate, but it would not follow that the estate as such became the owner of the lease and could sue for its conversion. The estate was not liable for the rent due under it.

As to the three items which were in existence at the death of the intestate, there are some other things to be considered. These were a part of the estate, and a recovery for them would be assets. In such a case the administrators had a right to bring the action in their representative capacity, although the conversion was in fact after their appointment 2 Williams Exrs., 947. The fact, therefore, in this case that the conversion was after the appointment of the plaintiffs will not justify the nonsuit Other grounds, however, were taken. The sale was with the express assent of Kenyon, one of the administrators, and the other knew of the mortgages before the sale, and did not object to the sale. The proceeds of the sale were accounted for to Kenyon in discharge of obligations incurred by him in conducting the business for the benefit of the parties interested in the estate. He represented that he was the owner of the property. There is no evidence to show that the defendants knew that any of it was portion of the original assets of the estate, or that Kenyon was disposing of it in violation of any trust They knew that Keúyon was in possession of the property, and had been carrying on the business for about ten years in his own name, and that Mrs. Williams and her family were interested in it The mortgages were in aid of the business. Ordinarily, the acts of one administrator bind the estate. Had Kenyon directly sold this property to the purchaser upon the sales and received the proceeds, it would hardly be claimed that conversion would lie. Substantially, that is what he has done in this case through the mortgages. An administrator for some purposes has a right to pledge or mortgage property in his hands. 2 Williams Exrs., 1000; Wheeler v. Wheeler, 9 Cowen, 34.

In Poole v. Munday, 103 Mass., 174, it was held that an administrator may be allowed in his account for inventoried property which he has spent or consumed in carrying on in good faith, by the request of all parties interested in the estate, the business of the intestate after his death. There, as here, there were no creditors and there was a widow and minor children.

The case of Wetmore v. Porter, 92 N. Y., 76, is relied on by the plaintiffs. In that case it was held that whoever receives property knowing that it is a subject of a trust and has been transferred by the trustee in violation of his duty or power takes it subject to the right, not only of the cestui que trust, but also of the trustee, to reclaim possession or to recover for its conversion. We think the plaintiffs have not made a case that brings them within the rule of that authority.

Upon the whole, we are of the opinion that the non-suit should not be interfered with, and that the judgment should be affirmed.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


text:
    Ellen I. Ballard, Ex’rx, Resp’t, v. The Hitchcock Manufacturing Company, App’lt

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Master and servant—Negligence—Evidence.
    Where it appears that a corporation has a superintendent and an assistant who have charge of all the works, including the boilers and engines, it cannot be said that an engineer employed to run the engine stands in the place of the the master toward an employe who is injured by an explosion of the boiler, and it is error to admit his declarations as to the condition of the boiler and the thoroughness of repairs that had been made to it.
    Appeal from a judgment entered in Cortland county, November 14, 1889, upon a verdict for plaintiff for $2,050, recovered at the Cortland circuit, October, 1889 ; also appeal from an order of the Cortland special term, October, 1890, denying a motion for a new trial made upon a case and exceptions and from a judgment entered thereon December 18, 1890.

      B. A. Benedict, for app’lt; Franklin Pierce, for resp’t.
   Merwin, J.

—The defendant is a corporation engaged in the manufacture of wagons and sleighs at Cortland ville, and was such on and prior to May 30, 1887. At that date William P. Ballard, whom the plaintiff represents, was in its employ and received injuries from the explosion of a boiler, by reason of which he afterwards died. This boiler was used by the defendant in its works for the purpose of generating steam for propelling one or more engines used in defendant’s factory. The claim of the plaintiff is that the explosion was the result of negligence on the part of defendant. The important if not the main issues at the trial were whether the explosion was caused by a defect along a horizontal seam of the boiler, and whether the defendant had notice of this defect. Upon the subject of notice and consequent neglect, the plaintiff was permitted to prove declarations made to or by one William Howard, who was an engineer in defendant’s employ. Prior to giving the evidence it appeared that Floyd Hitchcock was the general superintendent of the concern, giving his personal supervision to all the affairs and departments; that he had an assistant, Mr. Bennett, whose duties were to look after the entire works, including the boilers and engines; that .Caleb B. Hitchcock was the president of the defendant; had an office there and was giving his personal attention to the business, and Mr. Gleason, a director, had an office there and was an active member of the concern. The other directors were Caleb B. and Floyd Hitchcock. Upon the subject of the position or duties of Howard, Floyd Hitchcock, upon the examination of plaintiff, testified as follows:

“ Q. Who was your engineer there ? A. Mr. Howard.
Q. Who saw to the repairs on the boiler; who looked after that? A Well, Mr. Howard had charge of that
“ Q. Who paid the help for making the repairs on the boiler? A. Sometimes Mr. Howard paid for it; sometimes Mr. Howard might have paid for it or ordered it paid ; if we had any one do the work he would naturally make the order.
“ Q. He suggested the help that should be hired about the boiler ? A. Mr. Howard, being the engineer, would naturally •suggest any help he wanted around the boiler.
“ Q. Mr. Howard in fact had control of those boilers, fixing and making the repairs ? A. He had control of the boiler, practically; he generally conferred with myself or Bennett”

Upon cross-examination he testified:

“ Q. When you say he had control of the boilers you mean he ran the boiler ? A. Yes, sir.
“ Q- As any engineer runs his engine ? A As chief engineer.
“ Q. That is all there was of it? A Yes, sir.
“ Q- The business was under your supervision and that of the president ? A. Yes, sir.”

He also testified that the help, including the men who worked about the boiler, got their pay from the treasurer of the company at the office there.

Mr. Keese, the treasurer of the defendant, upon the examination of the plaintiff testified':

“ The engineer, William Howard, had charge of the boilers down at the Elm street factory. He had charge of them at the time of this explosion. I can’t tell how long a period before that he had charge of them. He may have had charge of them before I came here; I cannot tell you. I have been here four years and a half. During that time he has had charge of them. I have been there four, years and a half, and about two years before the explosion. During all of that period he had charge of these boilers, I think.”

Upon cross-examination he said: “ I have been in the boiler room, but not very often. I know positively that Mr. Howard was the engineer. He was simply the engineer running the boilers and the engine. When I say he had charge of them I mean to say he looked after the running of them. I suppose he had the general supervision of them; that is my idea of it. He simply filled the place of engineer.”

Other evidence was afterwards given by the defendant on the subject of Howard’s position. It need not be here referred to, except to say that it at least was not more favorable to plaintiff. As to the declarations the evidence is substantially as follows:

John M. Osborne, a witness for the plaintiff, testified that he was a boiler maker and in the employ of the defendant from the summer of .1886 until the latter part of January, 1887; that in September, 1886, he was directed by Gleason to repair the boiler in question as to some leak in the fire box, and did so; that after-wards and in December, 1886, he was at the boiler room and Howard called his attention to a coloring on the bottom of the boiler, and he told Howard “ the boiler would have to be fixed in that spot on the third ring; didn’t tell him how it would have to be fixed; he wished me to see them up to the foundry, part of defendant’s works, and have them fix it; I did see Mr. Gleason and Mr. Saeger; ” that in the fore part of January Howard came after him and he went and calked the horizontal seam where steam was escaping; that after he got through he waited for them to get up steam and it was found that some steam still escaped, and that he said to Howard “ that he must have it repaired, for I wouldn’t stay there and run it for no money, and he asked me to get them to fix it; I said, you had better, and he said you can see them; I told him it was dangerous, and he asked me to see them up to the foundry and have it fixed; ” that, in pursuance of this talk, he saw Gleason at his office. These conversations with Howard were properly objected to and exception taken. «

The plaintiff was also permitted to show by one Adams that on a subsequent occasion, in January or February, he was there calking the boiler, and he told Howard that the previous .calking was done by some one not a practical man, and after he got through he told Howard it was liable to break out most any time because he didn’t give it a thorough calking, and if it leaked any more to let Mm know the following .Sunday and he would thoroughly examine it; by one Barton, a night watchman, that the steam did escape after this time and prior to Sunday, and that on Saturday night he asked Howard if he should call on Adams to come and do the necessary repairs, and Howard replied, “ No, it was good enough; ” by one Cady that he called the attention of Howard to the safety valve not working properly, and that when he left the employ of defendant about the 15th May, 1887, he told Howard he didn't think he should stay there any longer for he didn’t think the boiler was safe; by one Bunn that he told Howard he didn’t like these little leaks, and asked him if they couldn’t stop them; by one Shirly that he said to Howard, “ Can’t you get up steam so we can have the full amount on our machinery,” and Howard replied, “ With the fuel I have I can’t do it, you can’t keep it up; we are using too much steam, had too much machinery attached to our engine for them to keep up with the boiler;” that the witness told him it was not hardly safe to run the boiler in that shape, and Howard replied he thought that was no such thing, and “ I don’t think you know as much about this boiler as I do; I have the care of this boiler and the charge of it;” that on one occasion witness called Howard’s attention to steam escaping in the direction of the dome, and asked him why he didn’t have it calked, and he replied, “ I have had it calked, but the man didn’t understand his business and didn’t make it hold.”

These statements were made to or by Howard while he was at work about the engina . It is conceded that they are material. It is to be observed that they include statements of the opinion of Howard as to past transactions. That is the case when, referring to a previous calking, he on one occasion says it is good enough, and on another occasion says the man didn’t understand his business and it didn’t hold. How these opinions were in any view competent I fail to see.

The competency of these statements is sought to be sustained by the plaintiff upon the theory that it was competent and proper for the court to submit to the jury the question whether or not Howard was at the time in sole charge of the boiler room and in sole charge of the repairs on the boiler, and if so, that the statements bind the defendant, otherwise not This the court in substance charged. It also charged that Howard was a fellow servant with the deceased, and left to the jury the question whether he was standing in the place of the master.

The evidence was not, in my opinion, sufficient to authorize the finding that Howard had sole charge, and it should have been so held as matter of law. Crispin v. Babbitt, 81 N. Y., 516. He was there as an engineer running the engines and boiler. There was a superintendent and an assistant, both of whom were the superiors of Howard and who had charge of the entire works, in- - eluding the boilers and engines. They and not Howard stood in the place of the master.

In Wharton on Negligence, § 229, the rule is said to be that where the employer leaves everything in the hands of a middleman, reserving to himself no discretion, then the middleman’s negligence is the employer’s negligence, for which the latter is liable. There was no such entire charge in this case. True, Howard had charge of the repairs and might suggest as to any help he wanted around the boiler, but it was all under the superior and immediate care of the superintendent This is, in substance, the testimony of witnesses called by plaintiff, and is not disputed. Osborne, who made the first repairs, was directed so to do by Gleason, an officer of the company. The interviews between Osborne and Howard, as testified to by Osborne, indicate that they both looked to Gleason to give further directions, and Osborne saw Gleason with that in view. Who employed Adams does not appear on the part of plaintiff. It subsequently appeared in the case that he was employed by the direction of Bennett, the assistant superintendent

So far as the ordinary running of the engine and boilers was concerned, Howard was only a co-employe. As to the repairs, it is quite clear that he didn’t have full or sole charge, it was not a part of his duty personally to make the repairs, nor was the duty on him to select and employ the parties who should do it. It seems to me that the plaintiff did not make a case for binding the defendant by the declarations to or by Howard, and that therefore they were improperly received.

The foregoing considerations lead to a reversal, and it is not necessary to consider the many other questions raised, as upon another trial they may appear differently or not at all.

Judgments and order reversed and new trial ordered, costs to abide the event

Hardin, P. J., and Martin, J., concur.