text:
    Marcus P. Mason, Resp’t, v. Amasa Corbin, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Contract — Fraud—Recission.
    A party defrauded, on discovering the fraud, may rescind, returning whatever he has received, and recover the purchase price paid ; or, he may retain the property he ha? received and sue to recover his damages.

      2. Pleading — Complaint—Sufficiency.
    A complaint, where no objection has been raised to it by motion, demurrer or on trial, will be deemed sufficient on appeal.
    3. Evidence — Heabsay.
    A party cannot prove, by his own witness, conversations between himself and such witness, which occurred in the absence of the adverse party.

      4. Witness — Impeachment.
    A party cannot impeach the statement of his own witness by proving contradictory statements made out of court.
    Appeal from a judgment, entered in favor of plaintiff.

      E. H. Neary, for appl’t; A. E. Kilby, for resp’t.
   Putnam, J.

— The action was brought to recover damages for the alleged fraud of the defendant, on the sale of stock of the St. Lawrence Manufacturing Company to the plaintiff, in falsely representing the condition of said company. The learned counsel for appellant urges that plaintiff cannot maintain the action ; that he is estopped by his conduct since January, 1889; that soon after his subscription for the stoiA, in December, 1888, he was informed of the true condition of the company; and that, retaining his stock, and afterwards becoming an officer of the company and acting as such, he cannot now maintain the action. The referee, however, found as a fact that the plainti did not learn the real condition of the company until the month of May, 1890. Were it otherwise, however, the action was brought to recover damages. The plaintiff did not claim to rescind. It is well settled that a party defrauded, on discovering the fraud, may rescind, returning whatever he has received, and recover the purchase price paid; or he may retain the property he has received, and sue to recover his damages. Such an action the plaintiff has brought. We see no reason why he should not recover, if the facts are as claimed by him. Miller v. Barber, 66 N. Y. 558 ; Krumm v. Beach, 96 N. Y. 398; Strong v. Strong, 102 N. Y. 69 ; Pryor v. Foster, 17 St. Rep. 472.

It is suggested by the appellant that the complaint does not allege, nor does the referee find, that on the’sale of the stock in question the defendant acted fraudulently or made the alleged representations with the intent to defraud or deceive. The complaint — no objection to it having been raised to it by motion, demurrer or upon the trial — should be deemed sufficient on appeal. On examining the referee’s report and findings, we think he does find as a fact that the defendant, in the transaction which is the subject of the action, acted fraudulently and with intent to defraud the plaintiff. The referee finds that the defendant made the alleged representations about the condition of the company knowing them to be false, and with the intent to and for the purpose of inducing the plaintiff to purchase the stock in question.

The appellant further urges that the referee’s findings were not supported by the evidence. We will not undertake to discuss the evidence in the case. After a careful consideration of it, we are of opinion that it was such that this court could not properly reverse the judgment directed by the learned and experienced referee on the facts. Nor do we think it necessary to discuss the many exceptions made by appellant on the trial, which are referred to in his brief, and which is now claimed should cause a reversal of the judgment entered in the action. After a careful reading of the case, and consideration of the briefs presented by the parties, we should be in favor of an affirmance of the judgment, were it not for what was doubtless an inadvertent error of the learned referee in overruling the objections of defendant to improper evidence offered by the plaintiff.

On the trial, the plaintiff read the reports of the St. Lawrence Manufacturing Company for January 1, 1888, and January 1,1889. Plaintiff also called as a witness Sylvester F. Hartley, who was a trustee of said company at said periods, and acted as treasurer or secretary. It was shown by the witness that he was at plaintiff’s house on one occasion in 1890. He was asked : “Did you on that occasion state that Mr. Corbin (defendant) stated that it was necessary to put in these patents to cover the deficiency ?” The question referred to the report of 1889. The witness answered: “No, sir.” He was further asked:

“Q. Did you state to him that these were put in to cover a deficiency ? A. Not to my knowledge. I will not swear that I didn’t. Q. Did you state to Mr. Mason what else could they be put there for except to cover a deficiency? A. That was the position taken by Mr. Mason. Question repeated. A. No, sir.- Possibly Mr. Mason did ask me if I put my name on that statement, and possibly I did tell him that I didn’t put it there, but that I supposed Mr. Corbin did.”

The witness further testified:

“ I was not aware that any old and worthless accounts went into the statement of January 1, 1888. Did not so state to Mr. Mason at his house at Carthage. Did not state to him that of $5,000 that went into that inventory they were not worth five cents on the dollar. Did not state to him that of the $7,000 I would not give over $2,000.”

The above-quoted evidence of conversations of witness with plaintiff was properly objected to by the defendant. It did not appear that the defendant was present. Hartley was plaintiff’s witness, and under well settled principles his testimony as to said conversations was hearsay and incompetent.

Afterwards Ezra E. Jenne was called by plaintiff, and testified as to 'the interview of Hartley with plaintiff at the latter’s house. The witness was then, among other things, asked the following questions, and made the following answers, defendant interposing the proper objections after the witness had stated:

“Met Mr. Hartley at Mr. Mason’s house in February or March last. There was a conversation between them in reference to the annual statement of 1889. Q. Upon that occasion did Mr. Mason ask Mr. Hartley this question ' What are the patents put in for? A. Yes, sir. Q. Did he reply, ‘You can judge for yourself ?’ A, That was not just the answer. Q. Did Mr. Mason say to him, ‘I have my own opinion about it; what do you think they were put in for?’ A. That was not the conversation. Q Did Mr. Hartley say, ‘What else could they be put in for, except to cover up a deficit?’ A. Yes; he did say that. On that occasion Hartley and plaintiff talked with reference to the statement of January Í, 1888. Q. Did Mr. Hartley upon that occasion say that worthless accounts went into that statement under his objection? A. Yes, sir. Q. Did Hartley say there were $5,000 put in that he would not give five cents upon the dollar for? A. Yes, sir; he said that. Q. Did he say, with reference to the statement of January 1, 1889, that he refused to sign that statement ? A. He did. Q. Did Mr. Hartley say no you, on the train going to Champlain, that he declined to sign the statement, and left the room ? A. He did.” •The plaintiff was thus allowed by the. referee to prove by his own witness conversations had between the plaintiff and the witness, and to impeach the statement of his own witness as to said conversations by proving contradictory statements made out of court. It is clear that such evidence was incompetent. People v. Safford, 5 Denio, 112; Thompson v. Blanchard, 4 N. Y. 303 ; Pollock v. Pollock, 71 id. 137, 138; Becker v. Koch, 104 id. 394, 401; 5 St. Rep. 688. We are unable to say that the evidence so improperly received was immaterial, and did not affect the result. Ho such claim is made by the counsel for respondent.

For this error we feel compelled to direct a reversal of the judgment and a new trial of the case, and costs to abide the event.

All concur.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    Charles B. Rouss, Resp’t, v. Russell J. McDowell, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    Evidence — Copy of entries in account book.
    A copy of entries in an account book kept by a merchant is not admissible in evidence, without proof that the original is destroyed or cannot otherwise be produced, or that it is a correct copy of the original memoranda.
    Appeal from a judgment, entered in favor of plaintiff.

      H. S. Haff (G. H. Beckwith, of counsel), for app’lt; Shedden & Booth (L. L. Shedden, of counsel), for resp’t.
   Putnam, J.

— This action was brought to recover an alleged balance due for merchandise sold and delivered by the plaintiff to the defendant. The defense was interposed that a part of the goods for which the plaintiff sought to recover had been returned, and defendant also set up payment of whatever sum was due plaintiff for those retained. On the trial, the question chiefly litigated was as to the amount of the articles in fact returned; the defendant offering evidence tending to show that articles embraced in the account of plaintiff of the value of $287.38 had been returned to him, while testimony produced by the plaintiff tended to show that the value of the goods so returned was only $102.33.

Greorge H. Hoer, a witness sworn for the plaintiff, testified that he was at the time in question receiving clerk for the plaintiff, and he gave the items of all the goods which he testified were returned by the defendant to the plaintiff. Defendant, on the direct examination of the witness, objected to his testimony, because the original memorandum of the goods that were returned, called the “receiving book," was not produced, but a copy thereof was used by the witness on the examination. The objection was overruled, and the defendant excepted.

The witness testified as follows :

“ I keep a receiving book, which shows all goods received. This memorandum which I have used in testifying is taken from that book. One of the men in my department opened this box under my supervision. I can remember independently of the memorandum that about that time a case of goods was received by plaintiff from defendant by freight, but I cannot remember what the contents were. I say those goods (referring to the goods he had testified had been returned) were received because I find entries to such effect, and that is the only reason I have for saying that those were the goods received.”

After the witness had so testified, the defendant renewed his objections, which were overruled, and an exception taken.

We think that the referee erred in not sustaining the objections of the defendant to the testimony of Hoer. The memorandum was not used to refresh the memory of the witness. It was in fact received and read in evidence to prove the items of goods on plaintiff’s account chat were returned. There was no proof given that the original memorandum was destroyed or could not be produced. It was clearly error, under the circumstances, to show the articles returned to plaintiff by a copy of the original memorandum. See Peck v. Valentine, 94 N. Y. 369.

Again, if the said copy could, under any circumstances,; have been properly read in evidence, before that could be done it was incumbent on the plaintiff to show the correctness of the original memorandum from which the copy was made. In this case the witness Hoer failed to prove that the receiving book, of which a copy was used by him on the trial, was correctly made. See Nat. Ulster Co. Bank v. Madden, 114 N. Y. 280-284; 23 St. Rep. 220.

In the absence of testimony as to'the correctness of the original memorandum, there was no competent evidence in the caseto sustain plaintiff’s contention as to the goods in fact returned by defendant to plaintiff.

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


text:
    Josephine Van Olinda, Resp’t, v. Mary B. Hall, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Husband and wife — Alienating affections.
    In order to maintain an action for alienating the affections of a husband, proof of an unsuccessful attempt is not sufficient.
    3. Damages — Excessive—Alienating affections.
    Where the husband did not provide for his family and the plaintiff was not anxious for his presence at home, a verdict for $2,000 for alienating his affections and enticing him away is excessive.

      Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Will. W. Smith (Winsor B. French, of counsel), for app’lt; George A. Swart (L. Varney, of counsel), for resp’t.
   Putnam, J.

— This action was commenced on March 7, 1894, to recover damages against defendant for alienating the affections of the husband of the plaintiff, enticing him away, and depriving plaintiff of his society. The plaintiff recovered a judgment of $2,000, and defendant appeals.

That such an action may be maintained by a married woman is-now well settled. Eldredge v. Eldredge, 79 Hun, 511; 61 St. Rep. 540; Manmarren v. Mason, 79 Hun, 592; 61 St. Rep. 533 ; Bennett v. Bennett, 116 N. Y. 584; 27 St. Rep. 679. It is held that such an action may be maintained for alienating the affections of the consort of a plaintiff, although such consort has continued to live with the party. Heermance v. James, 47 Barb. 120. To maintain the action, plaintiff was compelled on the trial to show a wrongful and willful attempt on the part of the defendant, to alienate the affections of her husband, or to entice him from her, and to deprive her of his society; that such attempt was successful; and that plaintiff was not a consenting party. We will not attempt any extended discussion of the evidence, but we have examined and considered it carefully, and we are of opinion that it was insufficient to support the verdict. There is no proof whatever that when Mr. Yan Olinda came to the defendant’s house, in December, 1893, he came at her solicitation or request. Whatever evidence there is in the case on the subject shows that he came in search of employment, and that she gave him work at his-solicitation. Nor is there any satisfactory evidence that, while he was there, she used any improper or other influence to keep him at her house, or to alienate him from his wife, or that there was any improper or wrongful intercourse between them. All the evidence in the case on that subject seems rather to show a contrary state of facts. It is shown that on February 14, 1894, the last day that Yan Olinda lived in defendant’s house, "while she remained at home, plaintiff called there, and saw her husband and defendant; that the interview was friendly. Plaintiff made no complaint of her husband’s absence from home or his relations with defendant. Up to the time that defendant left her home in Saratoga Springs, and went to St. Paul, Minn., there is no testimony in the case showing any wrongful act on the part of the defendant, any wrongful intercourse between her and Mr. Yan Olinda, or any attempt on her part to entice him from his wife. After she left for St. Paul, it does not appear that she and Mr. Yan Olinda ever met again, except two or three times in Schenectady, where she saw him, as far as the evidence discloses, upon business, and in the presence of the family with whom she was living.

While defendant was at St. Paul and other places in the West, and afterwards at North Adams, Mass., she wrote a number of letters to Mr. Yan Olinda, and it is claimed that the admissions and statements contained in those letters are sufficient to Uphold the verdict rendered by the jury. The letters show a considerable intimacy between the parties, a strong desire on her part that Mr. Van Olinda should join her in the West, and afterwards at North Adams; and one of the letters seems to suggest a proceeding for a divorce to be undertaken by him. In regard to those letters, it should be remembered that defendant and Mr. Van Olinda were connected by marriage; that she was among strangers, in a Western state and might naturally desire the presence of Mr. Van Olinda, who was to be accompanied by her adopted daughter. But assuming that the letters evince an intent on her part to entice Mr. Van Olinda from his wife, or to alienate his affections, the evidence fails to show that defendant succeeded in her attempt. Van Olinda did not gr West. He did not go to North Adams. He did not undertake any proceedings against ins wife for a divorce. He never after the letters, as far as the evidence discloses, met the defenddant, except on two or three occasions, upon business, and in the presence of the family with whom she was boarding. Therefore, there is no satisfactory evidence that by the letters in question defendant enticed Van Olinda from his wife.

Nor does the testimony sustain the contention of the plaintiff' that the defendant alienated the affections of Van Olinda from the1 plaintiff. As we have seen, while Van Olinda and defendant were living in her house at Saratoga Springs, there is no evidence indicating any improper attempt on her part to estrange him from his wife, or to show that she had succeeded in such attempt, if made. If her letters from the West and from North Adams indicated an attempt to alienate the husband from his wife, the evidence does not show that the attempt succeeded. We have no letters from Mr. Van Olinda to the defendant in evidence. We are not shown the state of his feelings towards the defendant or his wife. It does not appear that there was any change in his feelings in regard to the plaintiff. The evidence in the case hereinafter referred to indicates that prior to this time the relations between the plaintiff and her husband were not what they should have been. Whether those relations were at all changed in consequence of the letters of defendant, or her influence, the evidence does not disclose. As we have seen, plaintiff was bound, not only to show the wrongful attempt of defendant to alienate Van Olinda, and entice him from the plaintiff but that such attempt had succeeded. The letters of defendant may show the unlawful attempt on her part to influence Van Olinda, but plaintiff fails to show by satisfactory evidence that defendant was successful in such attempt. -

We are also of the opinion that the court should have granted defendant’s motion for a new trial, on the ground that the damages were excessive. As above mentioned.- when the plaintiff called at defendant’s house February 14, 1894, and found her husband there with defendant, it is not claimed that she made any complaint whatever. Nor is there any evidence that at any time before the commencement of the action she complained of her .husband’s absence! or requested him to return home or to leave the house of Mrs. Hall, or that she remonstrated with defendant. The witness Goodrich testified that in a conversation with the plaintiff, in 1893, the latter said she “expected to get some money from her brother, and that she expected to buy a home and settle down, and to make Mr. Van shift for himself, as she would not support him any longer. Q. Did she say anything at the time ¿about whether he provided for her ? A. She always found fault about that. That has been the principal thing all through.” The witness Stephenson testified that she had a conversation with the plaintiff when Mr. Van Olinda was at Saratoga. “She said she would as soon he would be away as at home: ” “that he didn’t provide for the family.” After these witnesses had been sworn, plaintiff was called to testify, and did not contradict their evidence .and hence we must assume that they stated the conversation correctly. The testimony above quoted, and the other evidence in the case, indicated that Mr. Van Olinda did not provide for his family; that the plaintiff was not anxious for his presence athome. It is held that the basis of such an action as this is the loss of consortium, or the right of the wife to the conjugal society of her husband. Bennett v. Bennett, 116 N. Y. 587; 27 St. Rep. 679. We think, therefore, that a verdict for $2,000 for the loss of the •conjugal society of Mr. Van Olinda, which, the evidence in the -case shows, plaintiff did not desire, was excessive in amount.

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

All concur.


author: Hardin, P. J.

text:
    John Franey, App’lt, v. Alvin C. Smith, Impleaded, etc., Resp’t (Two cases).

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    •Supplementary proceedings — Affidavits.
    An affidavit in supplementary proceedings, which fails to state the residence of the judgment debtor at the time it was made, is insufficient to confer jurisdiction upon a county judge to grant an order for his examination.
    Appeal from an order, holding that the court had no jurisdiction.
    On the 4th day of October, 1892, the county judge of Broome •county, on a notice of motion that the referee’s report bearing the •date March 31, 1890, be confirmed, “Ordered that the motion herein be, and the same is hereby, denied upon the ground that the county judge of Broome county had no jurisdiction to make or grant the order in supplementary proceedings herein." By the affidavit of the attorney for the plaintiff it appears that a judgment was recovered, and the roll was filed and docketed, in Broome county, and that a transcript of the judgment was filed in the office of the clerk of the county of Delaware on the 30th of October, 1884; that an execu tian was issued thereon against Alvin C. Smith and Heman T. Smith, the defendants, on the 27th day •of October, 1884, to the sheriff of the county of Broome, and also, on the 2d day of December, 1884, to the sheriff of Delaware county, “where the said judgment debtor, Alvin 0. Smith then resided; and that such execution has, within the ten years last past, been returned wholly unsatisfied.” In the affidavit it is further stated that John M. Wilson has property of said judgment debtor, Alvin C. Smith; “is indebted to said Alvin C. Smith for moneys collected and received by him to and for the use and benefit of said Alvin 0. Smith, in an amount exceeding $10. to wit, $120, or upwards; that said John M. Wilson resides, and has an office for the regular transaction of business in person, at Deposit, Delaware county, H. Y.” That the affidavit was verified on the 17th of March, 1890. Thereupon the county judge of Broome county, on the 18th day of March, 1890, granted an order appointing a referee to take testimony, and ordered said Wilson to appear before the referee at his office in Deposit, Delaware county, on the 20th of March. The referee certifies that, in pursuance of the order, at the time and place mentioned in it, the plaintiff appeared by counsel and John M. Wilson, by counsel, and answered; that the proceedings were adjourned to March 28th ; and on the 28th of March, 1890, the plaintiff again appeared, and Wilson appeared in person; and at the request of plaintiff’s attorney, and consent of Wilson, the examination was adjourned to March 31st; and on March 31, 1890, Wilson was sworn and examined, and he disclosed the fact that he had moneys belonging to Alvin C. Smith, the judgment debtor, at the time of the service of the order upon him. The referee made a report of the proceedings before him, bearing date March 31, 1890 ; and by a notice made on the 12th day of May, 1890, served upon Wilson and upon Alvin 0. Smith, to the effect that an application would be made on the 26th of May, 1890, for an order requiring Wilson to pay the plaintiff’s attorney in the action the money in his hands belonging to Alvin 0. Smith. The proceedings were brought before the county judge on the 4th of October, and the county judge, after hearing counsel for the plaintiff, and counsel for the defendant Alvin 0. Smith in opposition to the motion, made the order in question.

      Arthur More, for app’lt; A. Mumford, for resp’t.
   Hardin, P. J.

— The affidavits used before the county judge of Broome county fail to state facts sufficient to confer jurisdiction upon the county judge of Broome county. The affidavit presented to the county judge did not state the residence of Alvin 0. Smith at the time the order was granted, nor his residence at the time the affidavit was made. It does state, however, that his residence was in the county of Delaware at the time of issuing the execution in the year 1884. Merrill v. Allen, 46 Hun, 623 ; 13 St. Rep. 20. In the course of the opinion delivered in that case, Barker, J., said, in speaking of proceedings against a third party who was indebted to the j udgment debtor, viz.: “When proceedings are taken against a debtor of the judgment debtor, for the purpose of securing an application of an indebtedness toward the payment of the judgment, where the execution is in the hands of the sheriff, as in this case, the judgment debtor is, in a sense, a party to such proceedings. Such remedy is resorted to for the purpose of reaching his property and converting it to a particular purpose. His interests are directly involved in the procedure. In order that he may protect his rights, so far as they are involved by the proceeding, provision is made, in section 464, that no receiver shall be appointed without notice given to him, if he can be found in the state.” It is said further in the course of the opinion in that case that the county judge did not have jurisdiction over the subject-matter, and an order vacating the proceedings attempted to be had before the county judge of Ontario county was affirmed. That case was referred to with approval by Judge Martin in delivering the opinion in Schenck v. Erwin, 68 Hun, 104; 43 St. Rep. 862, and we are inclined to think the reasoning of the learned judge in the latter case sustains the order of the county judge in the proceedings now before us. We think the order should be affirmed, with costs.

Order affirmed, with $10 costs and disbursements.

All concur.


text:
    John Franey, App’lt, v. Alvin C. Smith et al., Resp’ts.

      (Supreme Court, General Term Fourth Department,

      Filed July 5, 1895.)

      Arthur More, for app’lt; A. Mumford, for resp’t.
   Hardin, P. J.

— The views expressed in Franey v. Smith, 68 St. Rep. 714 lead to an affirmance of the order.

Order affirmed.

All concur.


author: Martin, J.

text:
    James B. Wise et al., App’lts, v. Clinton W. Rider, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5 1895.)

    1. Mortgage — Chattel—Validity.
    The validity of a chattel mortgage is not, so long as the debt is valid, affected by the fact that a previous chattel mortgage to secure the same debt contained provisions which rendered it void as to creditors.
    3. Same — Sale of chattels.
    A sale by the mortgagor of some of the mortgaged goods, where it was not done pursuant to an agreement between him and the mortgagee, does not invalidate the chattel mortgage.
    Appeal from a judgment, dismissing the complaint.

      Rogers & Atwell, for app’lts; Purcell & Carlisle, for resp’t.
   Martin, J.

— A thorough examination of the evidence contained in the appeal book had led us to the conclusion that the findings of the trial judge were fully sustained, and that the court properly directed a judgment dismissing the plaintiffs’ complaint with costs. The opinion of the learned trial judge so clearly presents the questions involved and the principles of law which govern them' as to render any further discussion unnecessary. We have also examined all the rulings of the trial court to which our attention has been called by the appellants, but have found none that would justify a reversal of the jndgment, or that require special discussion. ' It follows that the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.

The opinion of Mr. Justice Yakít at special term is as follows:

The first and second chattel mortgages are conclusively presumed to be fraudulent on account of the implied agreement between the parties thereto that the mortgagor might sell the mortgaged property and use the proceeds in his general business. Southard v. Benner, 72 N Y. 424 ; Hangen v. Hachemeister, 114 N. Y. 566; 24 St. Rep. 526. The debt, however, which these mortgages were given to secure, was not fraudulent, but was supported by a valuable and adequate consideration. The fact that the mortgages were void, so' long as the debt was valid, did not prevent the debtor, who still honestly owed the debt, from securing his creditor by giving him a third mortgage, free from the taint that had infected its predecessors. This was accordingly attempted to be done, at least in form, and the controlling question in this case is whether it was done in fact as well as form. The evidence of the debt was a promissory note, which was renewed at intervals, and the last renewal was on the 27th of May, 1894, while the last mortgage was given on the 27th of July following, but at too late an hour for filing in the clerk’s office on that day. It was filed, however, the next day, which was September, at 8.50 a. m. On Monday, at about nine o’clock, the sheriff seized the mortgaged property under the executions issued in favor of the plaintiffs, and an hour or two later the defendant took possession under his third mortgage, which was not yet due, but it contained the usual safety claims. During the period covered by all the piortgages, the mortgagee occupied a desk in the store where the mortgaged property was kept, was familiar with the business of the mortgagor' and knew that he was selling the property therein, which was a stock of hats, caps, and furs. The last mortgage was given upon the request of the defendant, who insisted that it should contain a clause requiring that the proceeds of all sales should be applied upon his debt, but Holbrook refused to give it in that form, and it was executed without it, although Eider warned him that he must take the consequences. The defendant intended to foreclose this mortgage at once, as he had become alarmed at the way things looked, but waited from Saturday, the 28th, until Monday, the 30th, at the request of an outside creditor, who was negotiating for the purchase of the stock, with the view of securing his claim. Mr. Eider did not know that Mr. Holbrook was owing any debts aside from those alluded to. The defendant was in and out of the store during the forenoon of Saturday, but at 2 P. M. went to Henderson Harbor, to spend Sunday with his family; and upon his return at about 9 o’clock on Monday morning found the sheriff in possession. Eo goods were sold from the store on Monday, but on Saturday sales were made by the clerk in charge to the amount of $12.30, of which he retained. $6 for his weekly wages, and. turned the rest over to Holbrook, who used some of it for himself. There is no evidence of any express agreement between the mortgagor and mortgagee that the former might sell the property and use the proceeds as he saw fit, nor am I satisfied that there was any implied agreement to that effect. There was, doubtless, an expectation on the part of Holbrook that he would be permiited to go on in the future as he had in the past; but, as was held in Brackett v. Harvey, 91 N. Y. 214, this is not enough, for an actual agreement having “the conscious and concurrent assent of both" parties is required to vitiate the mortgage. I think the evidence warrants the conclusion that the defendant did not, even by implication, assent to any such arrangement, but that he had actually determined to take possession and foreclose at puce, and was only prevented from doing so by the request of another creditor. It is true that he knew, or had good cause to believe, that sales were made on Saturday, and that Holbrook did not intend to apply the proceeds upon the mortgage ; but, under the circumstances, Í cannot draw the inference from that fact of an implied agreement of the character under consideration. It does not follow that he assented to it simply because he knew it. It had been held that the fact that the mortgagor continues to sell goods covered by the mortgage for a few days, with the kno wledge of the mortgagee, in the absence of proof that this was pursuant to an agreement between the parties, does not render the mortgage fraudulent in law as against other creditors. Frost v. Warren, 42 N. Y. 204. As Was said in Hangen v. Hachemeister, supra, is is the agreement authorizing the mortgagor to sell that vitiates the mortgage, not the fact that a sale was made. The complaint should be dismissed, with costs, and findings may be prepared accordingly.


author: Ingraham, J.

text:
    Martin, Pl’ff, v. Bernheim, Def't

      (Supreme Court, New York Special Term,

      Filed May, 1895.)

    Pleading — Answer—Unverified.
    The fact that the defendant has the right to serve other defenses in the same answer, does not deprive him of the privilege of serving an unverified answer, where it contains an allegation or denial as to which he would not he required to testify as a witness, under section 523 of the Code.
    Motion for leave to serve an unverified answer.

      John J. Adams, for pl’ff; Root & Clarke, for def’t
   Ingraham, J.

— It is clear that if the allegations of the complaint are true the defendant is guilty of a misdemeanor, under section 254a of the Penal Code; and by section 523 of the Code of Civil Procedure it is provided that, where a party pleading would be privileged from testifying as a witness concerning an allegation or denial contained in the pleading, the verification may be omitted. The only question to be determined is whether or not the defendant in this case would be privileged from testifying as a witness concerning the allegations of the complaint that the defendant made a statement of and concerning the plaintiff in the presence and hearing of reporters, and intending that the said words should be published in the newspapers. If he would be so-privileged from testifying as a witness if asked that question, under the section of the Code above referred to, the verification may be omitted. And yet it is clear that if he made the statement contained in the complaint to the reporters, with the intent, that the words should be published, he would be'guilty of a misdemeanor, under the section of the Penal Code above referred to. In his answer to a complaint alleging the fact of such a statement he is compelled to either admit that the statement is true, deny the statement alleged, or deny knowledge or information sufficient, to form a belief. Under the express provision of the Code, he is allowed to answer such an allegation in the complaint by an unverified answer. The fact that in the same answer he has the right to plead other defenses does not take away from a defendant a right to answer such an allegation as is contained in this complaint without verifying the answer. All of the defenses to the action, and all facts pleaded in mitigation of damages, must be set-forth in one pleading. In this case the answer does deny the fact that the defendant made the statement it is alleged that he made with the intention of having it inserted in the newspapers. I think, on the whole case, that the defendant was entitled to serve an unverified answer, and that the motion must be granted.


author: Beekman, J.

text:
    White et al., Pl’ff, v. Goodson Type Casting and Setting Machine Company, Def't.

      (Supreme Court, New York, Special Term,

      Filed May, 1895.)

    Attachment? — Conjectural damage.
    An attachment will not be granted where the amount of damages is conjectural.
    Motion to vacate an attachment.

      Charles M. Ingraham, for pl’ffs; Steele & Dickson, for def't.
   Beekman, J.

— This motion is made to vacate an attachment granted against the defendant, as a foreign corporation, on the ground that the damages are indefinite and uncertain, and incapable of ascertainment, upon the face of the papers. The plaintiffs sue to recover commissions on the sale by them of the stock of defendant. There was no agreement as to the amount of their compensation. They sue, therefore, to recover the reasonable value of their services, and allege that the customary charge or commission for such services is twenty per cent, upon the cash value of the stock. In the complaint this averment is made on information and belief. In the affidavit which is made by one of the plaintiffs, the averment is made on his belief only. Nowhere do the papers disclose the sources of information upon which any such belief is predicated, nor is there any affidavit, on the part of any one qualified to testify to the fact, that such a commission is either customary or reasonable. The percentage seems to be so exorbitant and unreasonable as to furnish the court with no measure of value from which it may be reasonably inferred that, if the plaintiffs should establish their right to recover, the jury would award them the amount they claim, or anything in any way approaching it. The case, therefore, is one which, in my opinion, comes within the decisions denying the right of a party to an attachment in cases where, upon the papers, the amount of the damages is largely conjectural. For this reason the attachment should be vacated. I do not think, either, that, when the defendant moved for an increase of security on the part of the plaintiffs, it exhausted its right to make any further motion under section 682 of the Code. Order signed.


author: Lawrence, J.

text:
    In the Matter of the Probate of the Will of Sophia Moss, Deceased.

      (Supreme Court, New York Special Term,

      Filed May 29, 1895.)

    1. Will — Probate—Judgment.
    The entry of judgment on a verdict in a probate proceeding, where the issues have been tried by a jury, will not be stayed, because a motion for a new trial is pending.
    2. Costs — Abide event.
    A reversal of a judgment, with Costs to abide the event, entitles the appellant, on recovering judgment on the second trial, to costs of the first trial, the appeal and the second trial.
    Motion for final judgment on the verdict, adihitting the will to probate.

      Weed, Henry & Meyers, for proponent; Abraham Cohen, for contestant
   Lawrence, J.

— The facts in this case are these: A decree of the surrogate of this county was made on the 14th of July, 1892, refusing the probate of the will in question, and imposing the costs of the proceeding upon the proponent From this decree an appeal was taken to the general term of this court Thereupon the general term on the first Monday of May, 1894, made an order that the said decree of ,the said surrogate, dated the 14th day of July, 1892, declaring said instrument purporting to be the last will and testament of Sophia Moss, deceased, dated the 12th day of February, 1871, null and void, and also rejecting said will, and refusing the probate thereof, be, and the same hereby is, in all respects reversed, with costs to the appellant to abide the event; also, that “a new trial be had upon the issues herein in the court of common pleas for the city and county of New York, before a jury, on which trial the following issues shall be submitted to the jury for their determination.” Then follows a statement of the issues. In accordance with said order, a trial was had before one of the judges of the court of common pleas and a jury. Upon said trial the jury answered all the questions submitted to them in favor of the proponent No motion for a new trial has been made by the con testant in this court. Application was thereupon made for judgment to the general term, which decided that the motion should be made at the special term of this court, and, in accordance with that decision, the proponent now applies for final judgment. The entry of such judgment should not be stayed by reason of the fact that a motion for a new trial was made on the minutes of the judge who presided at the trial of the issues before the jury in the court of common pleas. See In re Patterson, 63 Hun, 529 ; 44 St. Rep. 842.

I agree witn the counsel for the proponent that the application for judgment upon the whole issue, including the question of costs, is therefore properly before the special term of this court, under subdivision 1, section 1225, of the Code of Civil Procedure; and I am also of the opinion that the contention of the proponent that as the general term, on an appeal from the surrogate, gave costs to the appellant, to abide the event, the contestant should now be required to pay the costs of the first trial, the appeal, and all subsequent proceedings as the same may be taxed, is correct. See First Nat. Bank of Meadville v. Fourth Nat. Bank of New York, 84 N. Y. 469. As was said by Andrews, J., in that case: “The event of the new trial was the circumstance which was to determine which party should recover costs of the appeal.” The order did not limit the recovery of costs to the prevailing party on his appeal in case he should finally succeed in the action. It was therefore held that the plaintiff, should it finally prevail, was entitled to tax all the costs in the action. Again, in the case of Franey v. Smith, 126 N. Y. 658; 37 St. Rep. 480, it was held that “ where it is provided that costs shall abide the event, this means all the costs of the action up to and including the decision of the court of appeals.” And In re Hood, 30 Hun, 472, the general term of the second department said: “ While it may be assumed that the appellate court awards costs of such courts only; yet, if it assumes to deal with the whole subject, and wipes out and reverses the judgment or decree appealed from, with costs, that includes all the costs of the inferior courts.” In obedience, therefore, to what I understand to be the decision of the general term in this case and the cases above cited, I have signed the decree which has been submitted on behalf of the proponent


text:
    Gardner H. Wheeler, as Receiver, etc., App’lt, v. Jewell Vanderveer, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    4. Replevin — When lies.
    In order to maintain replevin, the plaintiff must show that he is entitled to the possession of the property at the commencement of the action.
    2. Same — Presumption.
    The presumption of tille in defendant, arising from possession, is not overcome by proof of title in a third person six months prior to the appointment of the latter’s receiver in supplementary proceedings.

      Appeal from a judgment of the county court, affirming a judgment rendered by the municipal' court of the city of Syracuse.

      II. E. Miller, for app’lt; Giles B. Everson, for resp’t.
   Martin, J.

— Upon the trial the plaintiff wás nonsuited. The , grounds upon which the plaintiff now seeks to reverse the judgment herein are twofold: (1) That the court erred in rejecting evidence offered by him as to the price paid for the property in question ; and (2) that the court erred in granting the defendant’s motion for a nonsuit.

As evidence of the price paid for the property could have been material only upon the question of damages, the rulings of the court in rejecting it, if erroneous, were harmless, if the defendant’s motion for a nonsuit was properly granted. If the nonsuit was improperly "’’anted, the judgment must be reversed for that reason, and consequently it is unnecessary to discuss or determine the-question of the propriety of the rulings of the trial court in rejecting that evidence.

The action was replevin, and was to recover certain personal property, which it is claimed belonged to Alfred E. Crane, and to which the plaintiff claimed to have acquired title as receiver appointed in proceedings supplementary to execution, under a judgin' recovered against the. judgment debtor, Alfred E. Crane. Thu" ’> plaintiff was duly appointed as such receiver there is no '<r-.’ha" the judgment debtor was once the owner of the m; ir cuestión is equally clear. But that he was such owner "tf 'il.i when the proceedings supplementary to the execution wpm commenced was not proved. The most' that can be said of -he phiimifl’e proof is that it tended to show that, at least six months before the proceedings which resulted in his appointment verc instituted, the judgment debtor was the owner of at least a oorticn of the property in question. On the other hand,- the evidence drawn out on the cross-examination of the plaintiff’s witnesses tended to show that at the time such proceedings wen-instituted, and when the plaintiff was appointed receiver, the judgment debto” did not have the title to, the possession of, or the right to the possession of, such property. A careful reading of all the evidence giver, upon the trial has led us to the conclusion that it was insufficient to sustain the plaintiff’s cause of action, and that the trial court was justified in nonsuiting him.

The purpose of the action of replevin is the recovery of specific personal property. While the action is of the same general class as trespass and trover, it is a possessory action, is partly in rem. and is unlike either. To maintain the action, the plaintiff mu.-show that he is entitled to the possession of the property a; commencement of the action. Austin v. Wauful, 86 St. Rep. 7 Wood v. Orser, 25 N. Y. 348; Redman v. Hendrinks, 3 N. Y. Supr. Ct. 32; Duncan v. Brennan, 83 N. Y. 487; Thompson v. St. Nicholas Nat. Bank, 113 id. 325, 333; 22 Si Rep. 927. This the plaintiff failed to do. It is obvious that the defendant had possession of the property when this action was commenced. This was presumptive evidence of liis ownership, Wickes v. Adirondack Co., 2 Hun, 112; Fish v. Skut, 21 Barb. 333; 1 Greenl. Ev. § 34, and cases cited in note. This' presumption was not overcome by the plaintiff’s evidence. Moreover, the proof tended to show that the defendant’s title had been transferred before the judgment creditor had obtained his judgment.

Judgment of the county court affirmed, with costs.

All concur.


author: Rumsey, J.

text:
    Thomas P. Wood, Pl’ff, v. Third Avenue Railroad Company, Def't.

      (Supreme Court, Kings County Circuit,

      Filed June 26, 1895.)

    1. Neuliqencb — Construction of cab tracks.
    Any mode of construction, not absolutely dangerous, which has been in operation for a long time and has uniformly proved adequate and safe, may be continued in use without the imputation of negligence.
    2. Same.
    If the accident is one which could not reasonably have been anticipated, and which had never happened before, negligence cannot be predicated of the existence of its condition which brought about the injury.
    3. Same.
    A street railroad company, in restoring the street after the construction of its track, is bound to use only reasonable care.
    4. Same — Question of fact.
    Unless it has been made to appear that the defect was one from which a reasonable man might anticipate that injury might occur, the fact that the construction complained of had proved safe and convenient in practice, and that no other accident had ever happened because of it, requires the court to hold that there was no negligence and to dispose of it as a question of law.
    Motion for a new trial on the minutes, after a verdict in favor of plaintiff.

      Isaac M. Kapper, for pl’ff; William N. Cohen and Henry L. Scheuerman, for def't.
   Rumsey, J.

— The Third Avenue Railroad Company operates a cable road in the city of Hew York, commencing somewhat south of the Hew York entrance of the Brooklyn bridge, and passing along the street immediately opposite the entrance, and on to the northern part of Manhattan Island. For the convenient operation of the road, it is necessary that access should be had to the underground cables, by means of which the cars are moved. This access is obtained by manholes, located at convenient places in the roadway, between the rails of' the railroad. These manholes are two feet nine inches square, constructed of plates of iron, of a thickness sufficient to carry the weight of any trucks or wagons which pass up and down the roadway, and consequently are' of very considerable weight. For the safe operation of the road, it is frequently necessary that access be had to the cable underground without delay, and, for that purpose, that the manhole covers may be speedily lifted as occasion required. In order to lift them, there has been cast in the center of each cover a circular hole, one and seven-eighth inches in diameter. Underneath this hole, in each case, was a pit; so that anything getting into the hole would fall several feet before striking the bottom of the pit There are some 1,200 manholes thus covered. On a day in April, 1894, the plaintiff, who lived in Brooklyn, had occasion, as was his daily custom, to go over the Brooklyn bridge, and cross the street upon which the defendant's tracks had been built. He was at the time lame, so that he was obliged to use a crutch. In crossing the street, by the defendant’s track, his crutch went into one of the holes in the center of the manhole cover, and he was thrown to the ground, and severely injured, and brings this action to recover damages for the injuries he then received. Upon the trial the plaintiff recovered a verdict, and the defendant now moves for a new trial, upon the judge’s minutes. At the close of the case, the defendant moved to dismiss the complaint, upon the ground, among others, that there was no evidence of any negligence on its part. This is the only question which will be considered upon this motion.

It appeared that the defendant was authorized to build its tracks, and that the manner in which they were laid was approved by the department of public works of the city of New York, and a permit issued for their construction in that way. Without such authorization, the defendant would undoubtedly have been a wrongdoer in interfering at all with the public highway, and would have been liable for any accident which happened because of its interference, without reference to the question of negligence. Clifford v. Dam, 81 N. Y. 52. The authorization and approval of the manner of doing its work relieved the defendant from the charge of maintaining a nuisance in the highway, and it became liable for interference with the highway only if it failed to use proper care and skill in the construction of the railroad which it was authorized to build and maintain thereon. It was held in the case of Bellinger v. Railroad Co. 23 N. Y. 42, that one who had legislative authority for constructing a railroad was liable only for such injury as resulted from the want of due skill and care in doing the work. But that case, while it carried the immunity of railroad companies further than had been before supposed to be the law, and further than was done by the cases in any other country, still held the party erecting the road liable for negligence in the manner of doing the work.

The question, then, is, was there evidence.from which the jury might have found that the defendant was guilty of negligence in leaving a hole of this size in the manhole cover? Whether or not such a hole was absolutely necessary for the operation of the defendant’s road was disputed, and the jury might, upon the testimony, have found that that manner of construction of the manhole cover, while it was convenient, was not indispensably necessary for the operation of the defendant’s road, and might have been, replaced by some other construction in which there would have been no hole of this kind. Upon this motion, it must be presumed that the jury did so find. The location of this manhole cover was immediately opposite the entrance to the Brooklyn bridge, — a place which, at all hours of the day, is thickly thronged with people, and over which, morning and evening, as many people pass as over any other part of the city of New York. It was made to appear that the number of people who pass over the Brooklyn bridge on foot, leaving the bridge in close proximity to this place, runs up into the millions yearly. Not only a great many of these people, but large numbers of other people, pass backward and forward over these manholes daily ; and the number ' of people who went over the manholes of this construction along the length of the road of the defendant every day must have been exceedingly great. It was made to appear that not one accident had ever happened to any one of this great number of people on account of the existence of these holes in the covers. Upon this state of facts, the defendant insists that there is no sufficient proof of its negligence in constructing these covers in this way. In considering this question it must be borne in mind that the defect alleged is not a failure to keep in repair, but one of original construction. If these manhole covers had been constructed in some other way, and by long use the holes had become worn in them, it might fairly be insisted that, because the holes had not been put in the covers in the first place, they were not thought proper, and their existence created a defect which it was negligence to permit. This consideration takes the case out of the authority of several cases cited by the plaintiff, where a defect had come to exist because the construction was out of repair, and the defect was the direct cause of the accident. In such a case as that, presumably the original construction was proper and safe, and the fact that it was permitted to get out of repair, and develop a defect which caused the accident, is of itself evidence of negligence. Such were the cases of Fash v. Railroad Co., 1 Daly, 148, and Rockwell v. Same, 64 Barb. 438. So, also this case is not to be governed by those in which the precise construction was prescribed by the statute; as in Humbert v. Cable Co., 12 St. Rep. 172. In that case the law prescribed that the slot for the cable should be three-quarters of an inch wide. That dimension of the slot having been prescribed by the statute, it was, by force of the statute, the proper and safe dimension to give to it. Any increase of that dimension was a violation of the statute, and therefore, presumably, negligence. Neither is this case like those in which the rail of the track was permitted to project above the street, without any planking upon the side of it, when it was made to appear that to put down such planking was the ordinary and usual mode of constructing a railroad track upon a highway ; as the case in Wasmer v. Railroad Co., 80 N. Y. 212.

In this case, as has been said, the hole was made in the cover as it was originally constructed; and the question then presents itself whether this original construction was unsafe, or whether the highway, as thus restored, was left in an unsafe condition. The duty of a railroad corporation which interferes with a highway is to use reasonable care to restore it so as not to unnecessarily interfere with its usefulness. But the corporation is not called upon to restore it to such condition as under no circumstances can harm come to one who uses it Its duty is simply to use reasonable care in that direction. The corporation is entitled in building its road, iti the first place, to erect in the highway, whatever is absolutely necessary to enable it to operate the road; and if such construction is made with proper care and skill, however inconvenient it may be to the rest of the community, it is damnum absque injuria. Such is the plain holding of the case of Bellinger v. Railroad Co., supra, as interpreted by the long line of cases in which it has been considered. But although that which is done by way of constructing the road is not absolutely essential, but only adopted as a more convenient appurtenance instead of some other mode of construction, which would be equally useful, it cannot be said that it is negligence to adopted that mode, unless some danger might have been apprehended from its use. One is not guilty of negligence unless he omits to do something which a reasonable man would do, or does something which a reasonable man would not do. Davis v. Winslow, 51 Me. 264. It is said by Judge G-rover that legal evidence is the omission of such care as persons of ordinary prudence exercise and deem adequate to the circumstances of the case. In restoring the highway, it is the duty of the corporation to take into consideration the conditions that exist in that part of the highway where it has occasion to build its road, the extent of its use, the manner in which the road is to be built along or upon it, what is likely to happen in the place where it is to be built, the effect which any particular mode of construction will have upon its use, the danger to which the public will be exposed by the use of that mode of construction, how far a due regard for their safety will permit such a mode of construction to be adopted, and whether, upon the whole, such a mode of construction as is adopted will be sufficient for the purposes for which the highway is to be used. One element to be taken into consideration is whether any accident is likely to happen from the particular mode of construction ; and if the mode is such that no accident is likely to occur from it, it is not negligence to adopt it In the case of Blyth v. Waterworks Co., 11 Exch. 781, it is said that negligence is the bhnssion to do something which a reasonable man, guided by ''those considerations which ordinarily regulate the conduct of human affairs, would, or the doing of something which a prudent and reasonable man would not do; and it is also said that a reasonable man w’ould act with reference to ordinary circumstances. In that case, it having appeared that the act which was complained of as negligence was proper, having in view the conditions which usually existed, the court held that the verdict should have been ordered for the defendant. So, in the case of Gould v. Woolen Co., 147 Mass. 315, it was held that a manufacturer who used, in dyeing his cloths, a common mordant, which so far as known, had never caused injury to any one merely handling cloths dyed with it, and which he did not know or suppose, and had no reason to'know or suppose, to be injurious, was not liable to a purchaser injured by handling the cloth. The opinion in that cáse is a short one, but it refers, among other cases to the case of Com. v. Pierce, 138 Mass. 168, in which, at pages 179 and 180, is found a discussion of the subject, which shows the views of the supreme court of Massachusetts. In this state it aeems to be settled that any mode of construction,- not absolutely dangerous which has been in operation for along time, and has uniformly proved adequate and safe, may be continued in use without the imputation of negligence. Ryan v. Man Railroad Co., 121 N.Y. 126; 30 St. Rep. 624; Dougan v. Transportation Co., 56 N. Y. 1; Loftus v. Ferry Co., 84 id. 455; Cleveland v. N. J. Steamboat Co., 125 id. 299; 34 St. Rep. 938. In all these cases the rule seems to have been adopted that if the accident was one which could not reasonably have been anticipated, and which had never happened before, negligence cannot be predicated of the existence of the condition which brought about the injury. The same rule has been .adopted in Massachusetts and by the court of exchequer in England, as appears from the cases cited above.

Applying this rule, it must be said that the defendant is not iguilty of negligence in adopting this construction of the manhole cover, unless it is made to appear that injury to persons using the highway might reasonably be anticipated from such a mode of -construction. It is a more serious question whether or not it should have been submitted to the jury to decide if such an accident might have been reasonably anticipated orkif that matter should have been disposed of as a question of law by the court. In each one of the cases cited above, the question was disposed of by the court. In the English case it was held that there should have been a nonsuit, and without ordering a new trial, the verdict was directed for the defendants by the appellate court. In Gould v. Woolen Go., the court, at the trial, ordered a verdict for the defendant, for the reason that the facts which appeared did not warrant the finding of negligence, and the exceptions to that ruling were overruled by the supreme court. In the case of Ryan v. Man Railroad Co., 121 N. Y. 126; 30 St. Rep. 524, the plaintiff was hurt by stepping between the car and the platform at an elevated railroad station. Because of a curve in the platform there had been left a space of about eight inches between it and the car step, through Which space the plaintiff fell. It appeared, that this space had been there ever since the construction of the elevated railroad; that during all that time it had proved to be safe, because thousands and thousands of persons had stepped over it without any danger; and that the plaintiff was the only person who ever had been injured by it. The court of appeals, reversing a judgment for the plaintiff, held that those facts showed that there was no negligence in permitting such an opening to exist, and that.-the plaintiff should have been nonsuited. The same thing was held in the case of Fox v. City of New York, 70 Hun, 181; 53 St. Rep. 902, upon substantially the same state of facts. The rule there laid down was that such an opening, over which many thousands of persons had daily passed, without in-convenience,: was not negligence upon which recovery could be Based.

The necessary inference from these cases is that, unless it has been made to appear that the defect was one from which a reasonable man might anticipate that injury might occur, the fact that, the construction complained of had proved to be safe and convenient in practice, and that no other accident had ever happened because of it, requires the court to hold that there was no negligence,, and to dispose of it as a question of law. Negligence in such a ease cannot be inferred from the mere happening of a single accident. It was error, therefore, to deny the motion of the defend- , ant, to dismiss the complaint, and for that error a new trial must be granted.


author: Brown, J.

text:
    Isabella S. Griswold, Pl’ff, v. Mary E. Little, Def't.

      (Supreme Court, Kings County Circuit,

      Filed April 29, 1895.)

    1. Vendor and purchaser.
    Though a purchaser has been in possession of land more than thirty years, a map bearing his name as the owner of the property, an agreement, between him and others for a right of way across the premises and a deed by the vendor of adjoining land describing it as bounded by property of the purchaser, are no evidence of the payment of the purchase price of such land or of the delivery of a deed thereof, where the purchaser was originally put into possession of the land by the terms of the contract prior to the time of payment and delivery of deed.
    2. Same.
    The fact that a purchaser who, by the terms of the" contract, is given immediate possession of the land and is to pay the purchase money two-years after the making of the contract, begins upon taking possession and. continues to make large expenditures for buildings and other improvements, is no evidence of the payment of the purchase money.
    3. Same — Adverse possession.
    A purchaser, who enters into possession of land under his contract of purchase, is presumed to hold in subordination of the vendor’s title until some hostile act is shown.
    The action was brought to recover possession of an acre and three-quarters of land in Bay Ridge, in the county of Queens. At the trial the following facts appears : In 1854 one Zachariab Gris-wold died intestate and seised of the premises in suit. His heirs W'ere his four children and the son of a deceased child. On June 18, 1856, the Griswold heirs made a contract of sale with Charles H. Little, by which they agreed to sell the property in question for $2,540. The price was payable $100 down, $440 and interest, on $2,440 in cash on the delivery of the deed, and a mortgage for $2,000. It was agreed that the vendors would, “at some time-within two years from the date hereof (said time to be at their option, provided it is within said two years), at their own proper costs and expense, execute and deliver” to the vendee a deed of the premises. The contract further contained the following provision : “And it is further agreed by and between the parties to-these presents that the said parties of the first part shall have and1 retain the possession of the said premises, and be entitled to the rents and profits thereof, until the 13th day of June, 1856, when full possession of the same shall be delivered to the said party of the second part by the said parties of the first part.” At the trial it appeared that, pursuant to this contract, the vendee immediately entered into possession, and without any delay began the erection of a building for his own use, which cost several thousand dollars. At various dates subsequent to 1856, he erected additional dwelling houses, barns, etc., and the total cost of the improvement was upwards of $15,000. The vendee remained in possession until November 1, 1885, when he made a quitclaim deed to his daughter, Mary E. Little, the defendant in this action. After the execution and delivery of that deed, the defendant was in the possession and control of the property. Charles H. Little, the vendee, died in 1889. By deeds dated July 1, 1856, and February 10, 1863, the other Griswold heirs conveyed their interest in the premises in suit to Charles Griswold. It appeared in evidence that from 1856 down to the time of his death, in 1867, Charles Griswold resided abroad, and never visited the country. He died February 18, 1867, leaving the plaintiffs his heirs. Ón May 16,. 1893, the present action was begun by the service of a summons, and complaint. At the trial, the map of a public improvement was introduced by the defendant in evidence, for the purpose of showing that Charles H. Little had been regarded as the owner of the premises in suit. The name “Charles H. Little1' appeared on this map as the owner of the property. The defendant further introduced in evidence a deed by Charles Griswold, conveying an adjoining plot to one Kent, and bounding the lands conveyed by “land heretofore sold by the heirs of Zachariah Griswold to Charles Little.” The defendant further offered in evidence agreement between Charles Griswold, Charles H. Little, and other persons who owned property in the immediate vicinity, as to the closing of a right of way across the premises and the opening of a new road or street. In this agreement the lands in suit were referred to as “land he (Charles Little) owes or has agreed to purchase.” There was no evidence of an actual payment of the purchase price. At the trial the plaintiffs moved the court to direct a verdict in their favor, and Bbowk, J., reserved decision on the motion, and submitted special questions to the jury. These questions were: (1) Whether Charles H. Little, prior to February 10, 1863 (the date when Charles Griswold acquired the whole title to the land), held adversely to the Griswold heirs ; (2) whether Charles H. Little held adversely to Charles Griswold between February 10, 1863, and February 18, 1867, the date of Charles Griswold’s death ; (3) whether the purchase price of the property in suit had been paid. The jury returned an affirmative answer to each question. The plaintiffs thereupon moved to set aside the special findings of the jury, and for judgment in their favor on the motion already made, and upon which decision had been reversed. The defendant moved for judgment on the evidence and the special verdict of the jury.

      Arthur O. Townsend and John O. Thomson, for pl’ffs; Parsons, Shepard & Ogden (Edward M. Shepard, of counsel), for def’t.
   Brown, J.

— The defendant moves for judgment in her favor upon the evidence and the special verdict of the jury. The plaintfffs move to set aside the special verdict, upon the ground that it is not sustained by the testimony, and that a general verdict- be directed in their favor. The jury have determined (l)-that the consideration named in the contract with Charles H. Little has been paid, and (2) that Charles H. Little held the land adversely to the heirs of Zachariah Griswold prior to January 22,1863, and adversely to Charles Griswold subsequent to that date. In the judgment of the court, these findings have no support in the testimony, and must be set aside. The finding that the consideration expressed in the contract of sale has been-paid rests wholly upon the presumption arising from lapse of time. Independent of the fact of Little’s possession of the property, and the expenditure by him of large sums of money thereon, the only testimony from which it is claimed that the jury could infer payment are the map, the road agreement, and the deed to Kent. But these exhibits have no tendency to show a payment of the purchase price of the land, or a delivery of the deed, therefor, when considered in connection with the fact that Little was given possession by the express terms of the contract, and that it was intended that he should, from and after the date of that instrument, be entitled to the enjoyment of all the rights of an owner. The fact that he was treated as such by Charles Griswold or his attorney in fact throws no light upon the question of the payment of the purchase money. All the expressions of the paper referred to are entirely consistent with the fact that he was a vendee in possession of the land. The fact of possession, and the large expenditures made by Mr. Little for buildings and other improvements upon-the property, have likewise, in my judgment, no bearing-upon this question. Possession was given by the contract. It was a fact existing immediately upon the execution and delivery of that instrument. So the improvements and expenditures began immediately upon possession being taken. The expenditure of money was made in the beginning upon the faith of possession,-and not upon the acquisition-of the legal title. It is impossible to draw any inference from these facts that payment of the purchase money was made two years after possession began. The case is barren, therefore, of any testimony from which the jury could find that the purchase money had been paid, unless that fact could be presumed from the 7apse of time. But that such a presumption cannot be drawn in a case of this character is settled by authority. Morey v. Trust Co., 14 N. Y. 302; Lawrence v. Ball, id. 477; Brady v. Begun, 36 Barb. 533.

I fail to find any testimony tending in the slightest degree to support a finding of adverse possession. The plaintiffs show a perfect paper title, and the occupation of the land by any other person is presumed to be subordinate to their title, until the contrary is shown. When a stranger to a recorded title enters into ' possession of land, his entry is assumed to be hostile to the real owner, and his possession is the continued assertion of an adverse . right. But in this case, the entry was under the Griswold title, . and the subsequent possession is presumed to be subordinate to that title, until some act hostile thereto is shown. The burden of proof rested upon the defendant to show an adverse holding, but she has shown none. It nowhere appears that Charles Little ever asserted any claim to the land hostile to Griswold’s rights. That he spoke of it as his property is true, but that of itself is of no importance, unless the assertion was made to his vendor, and amounted to a claim of the entire title. To say that the property was his did not, in view of the fact that his possession was with the assent of the vendors, necessarily deny their legal title. It is apparent, therefore, that, in the absence of proof of an assertion of an adverse right, there could be no possession adverse to the Griswolds, until the contract of sale was performed by payment or tender of the purchase money, There being no proof of that fact, the finding of adverse possession is unsupported. The testimony shows no act of Mr. Little’s which was hostile to Griswold’s title until the conveyance to the defendant in 1885, but sufficient time has not elapsed since that date for the defendant’s possession to ripen into a title. The defendant’s motion for judgment is therefore, denied, and the plaintiffs’ motion to set aside the special verdict is granted. It follows that a verdict must be directed for the plaintiffs, unless a tender of a deed was essential to a máintainance of the action. Upon the trial, I was of the opinion that a tender was necessary to support the action, but subsequent reflection has changed the opinion then expressed. The defendant’s position on this question would be unassailable, if she claimed the land as a vendee in possession. But she repudiates that character wholly. She claims title to the land under the deed from Charles H. Little, exclusive of any other right, and asserts a title adverse to the plaintiffs. Ü nder such a claim, a tender would be a useless act The defendant, while denying the plaintiff's title, cannot claim the benefit of a rule the observance of which would- be founded solely upon the existence of that title, and the fact that her rights were subordinate thereto. The motion to dismiss the complaint is therefore denied, and a verdict is directed in favor of the plaintiffs for the possession of the land. In the brief submitted by the plaintiffs they offer to accept a judgment in the alternative which would permit the defendant to take title on payment of the purchase money and interest. A court of equity has the power to relieve the defendant from default, and permit a performance of the contract, but no equitable right is claimed by the defendant; and I have no power in this action, as the pleadings now stand, to treat the case as other than an ordinary action in ejectment I shall therefore direct a verdict for the plaintiffs, with leave, however, to the defendant to apply to me within twenty days to amend her answer in such form as to permit such a judgment as the plaintiffs’ offer, should she desire to avail herself thereof.


author: Gildersleeve, J.

text:
    The People ex rel. Thomas Cairns, App’lt, v. Joseph Murray et al., as Excise Commissioners, etc., Resp’ts.

      (New York Superior Court, General Term,

      Filed July, 1895.)

    Excise — License—Schoolhouse.
    A person may be licensed to sell liquors in abuilding within the prohibited distance, where liquors have been sold, in such building continuously for many years before the passage of chap. 401 of 1892, under licenses to various persons, and the right is not restricted by the statute to the person who held the license at the time the act was passed.

      Certiorari to review the decision of the board of excise commissioners in refusing to grant a license.

      A. R. Page, for the board of excise; F. J. Myers, for relator; S. Untermeyer and G. E. Mott, for interveners; William F. Sheehan, for owner of premises.
   Gildersleeve, J.

— A writ of certiorari, heretofore duly issued out of this court, brings before us for review the refusal of the board of excise to grant and issue a saloon license to the relator, Thomas Cairns, for the premises No. 700 Third avenue, in the city of New York. The relator, for fourteen years last past, has been engaged in selling wines and liquors at retail, under licenses granted by the board of excise in this city, and for three years last past has been engaged in such business in Twelfth street, in said city, under licenses issued to him in his own proper name by the commissioners constituting the board of excise. For a period of upwards of forty years the saloon business has been conducted on the premises No. 700 Third avenue, and continuously during that time, under license or permission of the board of excise, down to the 6th day of April, 1895. The relator purchased the good will of said business and the then existing license from the licensee, one Thomas B. Nugent, whose license expired on the 6th day of April, 1895, and obtained from the landlord a lease of the premises for the term of ten years, and entered into engagements and obligations in the fitting up of the place as a saloon for carrying on the liquor business. The business, by reason of the long period of time it had been conducted upon the premises, had acquired a good will which had a large commercial value. The board of excise has a general rule of long standing, that is strictly adhered to, which provides that the number of saloons shall not be increased, and that an applicant for a license must first surrender for cancellation a license granted by the board of excise with his application for a license, so that in granting the application there may be no increase of the number of places licensed for the sale of liquors within this city. This rule, and the practice thereunder, has given to the certificates evidencing such licensing a defined commercial value. Relying upon this rule, and upon the facts above set forth, the relator purchased the license aforesaid, expiring on April 6, 1895, and entered upon the work of fitting up the place, as we have above stated. With full knowledge of the existence of the saloon in question for many years, under several licenses, as aforesaid, the persons controlling the Church of St. Agnes, erected in the year 1893, within eighty feet of the main entrance to the saloon, the school building occupied by St Agnes’ Parochial School. The circumstance, under section 43 of the excise law, as construed by the respondents, places the relator’s building within restricted territory, available only for saloon purposes to persons who were licensed therein at the time of the passage of this act in the particular building for which the license is sought. Accordingly the respondent denied the relator’s application for a license on the following grounds:

“ The application of Thomas Cairns for a saloon license for the premises No. 700 Third avenue is rejected, and a license refused, for the reason that Thomas Cairns was not licensed at these premises prior' to April 29, 1893, and the premises are on the same street with, and the nearest entrance to the said premises is within 200 feet of, the nearest entrance to a building occupied exclusively as a school.”

It is contended by the counsel for the relator that the edifice known as “St. Agnes’ Parochial School” was not occupied exclusively as a schoolhouse, and therefore was not an obstacle to the granting of the license. We do not agree with this contention. It seems to us that the facts disclosed before the respondents fully warrant the conclusion that the building in question was occupied exclusively as a school. The determination of the question here presented depends upon the construction that should be given to section 43 of chapter 401 of the Laws of 1892, as amended by chapter 480 of the Laws of 1893. The section reads as follows:

“ No person or persons, who shall not have been licensed prior to the passage of this act, shall hereafter be licensed to sell strong or spirituous liquors, wines and beer, in any building not used for hotel purposes, and for which a license does not exist at the time of the passage of this act, which shall be on the same street or avenue, and within 200 feet of a building occupied exclusively as a church or schoolhouse.”

The respondents claim that the effect of this section is to take from them, the power to grant a license for a saloon within 200 feet of a church or schoolhouse to any person other than to the individual who held such license at the time of the passage of the act. They refused the license solely on the ground that the relator did not hold a license for this particular place at the time of the passage of the act. They admit that he has in every other respect met the requirements of the law and of their board, and established his eligibility to receive a license. The relator, on his part, contend (1) that section 43 applies only to a building for which a license did not exist when the act was passed; and (2) that the prohibition against persons not then licensed applies only against licensing them for buildings, within the prohibited distance, for which a license did not then exist; and that, as to the buildings for which licenses then did exist, a person not licensed when the act was passed would be entitled to take out a lice use within the prohibited distance. In other words, the respondents say that no one can secure a renewal of a license for a saloon within the prohibited distance except the individual who held the license prior to the passage of the act; while the relator asserts that section 43 has no application to the case of hotels or buildings for which a license existed at the time of the passage of the act, as those cases were taken out of the operation of that section by the terms of the exception, and that as to hotels and buildings within the prohibited distance which had licenses at the time of the passage of the act, any person otherwise eligible might secure a license. It was manifestly the purpose of the legislature to preserve a reasonable distance between the saloon and the school, and by the enactment under consideration, to limit the licensing of saloons in close proximity to schools and churches. The lawmakers, by this effort to protect the young and impressionable from the evil influences of the saloon, were exercising a power for the welfare of the community; but at the same time they considered it good policy not to destroy the value of saloons already existing. Applying to the1 section of the statute under consideration the well established rules of construction, we are of opinion that it was the intention of the legislature, in enacting section 43, to provide that buildings, within the prohibited distance, used for hotel purposes, or for which licenses existed when the act was passed, should not be affected by it, and that as to such building any person, otherwise eligible, should have a license. The fair reading of the prohibition clearly indicates that the legislature intended not to destroy the property rights in places of business ' which were then established, but that no other places should be licensed within the prohibited area, other than those which were licensed at the time of the passage of the act. To allow any one who held a license at the time of the passage of this act to conduct the saloon business anywhere within the 200 feet limit would not be carrying out what we have above declared to be the manifest intention of the legislature. Such an interpretation would permit the establishment of any number of saloons within the 200 feet limit, in cloSe proximity to schools and churches, for a considerable number of years, and until such time as the licensees existing in this city at the time of the passage of the act went out of the business, or departed this life. The true construction and interpretation of the act under consideration calls for the conclusion that the legislature has not interfered with such property rights as arose from the possession of a license to carry on the sajoon business in a particular building, and existing when the act was passed. This construction is the only one that can be given without violating a long line of recognized authorities, which declare the rule that a statute must be so construed as to promote in the fullest manner the policy and object of the legislature. The saloon in question has been continuously licensed for forty years, and has a good will of large commercial value. Shall it be said that the managers of-the church or school can erect a building for their purposes, deliberately and knowingly, in the neighborhood of such a saloon, and thereby destroy the use for saloon purposes of a building thus occupied ? All are presumed to know the law, and it is not too much to ask of the manager's of ecclesiastical and educational institutions that in selecting a site for their buildings they require in the neighborhood in which they propose to locate as to the existence of established rights of saloons of long standing, that enjoyed the protection of the law at the time of the passage of the act under consideration. The grounds upon which the respondents place their refusal of the relator’s application are not tenable. The relator is entitled to the license applied for, and the decision of the board of excise should be reversed, with $50 costs, and a mandamus should issue requiring said board to grant a. license to the relator.


author: Per Curiam.

text:
    James A. McDonald, by his Guardian, etc., Resp’t, v. Bryon O’Hara, as Surviving Executor, etc., et al., App’lts.

      (New York Superior Court, General Term,

      Filed July 1, 1895.)

    Will — Conversion—Power oe sale.
    Where the beneficiaries under a will which, by conferring upon the executors a mandatory power of sale, converts the land into personalty, elect to take the land, there is a reconversion into realty, and the power of sale is extinguished.
    Appeal from an order, continuing an injunction pendente lite.

      William J. Lacey, for app’lt; James Kearney, for resp’t;
   Per Curiam.

— The order should be affirmed, with $10 costs and disbursements, upon the opinion filed by the learned judge at special term.

All concur.

The will, by conferring on the executors a mandatory power of sale, converted the land into money. The parties in interest, having elected to take the land as such, have worked an equitable reconversion. It is again land, and the title is in them in fee. Cases cited in 9 Misc. 686 ; 62 St. Rep. 122 ; affirmed 144 N. Y. 566; 64 St. Rep. 236. The infant, by its testamentary guardian and its guardian ad litem, with the sanction of the court, hereby expressed, has joined with the adults in the election, so as to make it the united as well as the binding act of all. The conversion is complete and the power of sale extinguished. If the executor, as he claims, has incurred expenses in reference to the land prior to the reconversion, and he cannot obtain reimbursement from the estate in his hand, he may plead the facts, that the court may in its :íí;:-1 decree protect, by equitable lien or otherwise, any just deni an-. he may have. Those who seek equity must do equity. In the meantime the injunction prayed for, restraining further interference with the land by the executor, will be granted. Ho costs.


author: McAdam, J.

text:
    Peter Schaeffler, Resp’t, v. Charles Miehling, App’lt

      (New York Superior Court, General Term,

      Filed, July 1, 1895.)

    Covenant — Beam right — Incumbrance.
    A beam right in favor of adjoining premises, to continue until the wall of the servient building is destroyed in any manner or torn down for the purpose of rebuilding, is an incumbrance.

      Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying» a motion for a new trial.

      Edward Miehling, for app'lt; Frank Schaeffler, for resp't.
   McAdam, J.

— The defendant, on October 1, 1890, conveyed the premises Eo. 91 Second avenue to plaintiff, by deed containing covenant against incumbrances of every character, except a mortgage of $15,000. At the time of the conveyance, the pz’emises were incumbered by a beam right existing in favor of the adjoining premises, Eo. 93, created by agreement in writing, under seal, executed by the defendant and the adjoining owner; the right to continue until the wall of Eo. 91 “be destroyed in any manner, or be torn down for the purpose of rebuilding.” This means that, unless the wall be destroyed by fire or other accidental means, or its removal be imperatively required for rebuilding on Eo. 91, the beam right is to continue. The appellant calls the right a “ revocable license." It is more. It is an urban servitude imposed on Eo. 91, in the nature of an easement in favor of the adjoining property, which continues into whosesoever hands the respective estates come, subject to be defeated only by the happening of either contingency expressed in the grant. Washb. Easem. (5th ed.) pp. 20, 605, 37. An easement always implies an interest in the land, while a mere license does not. The former passes by grant, while the latter is generally unassignable. Whatever charges or burdens real property in favor of a person other than the owner is in the nature of an incumbrance; and the beam right or easement granted in favor of Eo. 93 is such, within the meaning of the covenant in the grant made by the defendant to the plaintiff. The easement was buried in the wall. There was no apparent sign of servitude, and the plaintiff purchased without knowledge of its existence. The action was for breach •of the covenantxagainst incumbrances, and the plaintiff recovered $150 upon the finding of the jury that his property had been injured to that extent by the incumbrance. The plaintiff subsequently sold the property to another, who discovered the existence of the beam-right agreement, and declined to take title unless allowed $150 for the deterioration in value; caused thereby. The plaintiff allowed this sum to the purchaser;' and while the actual damages proved at the trial exceeded $150, the jury, influenced perhaps by the fact of such payment, fixed the recovery at that •sum. This circumstance benefited the defendant; and, as the plaintiff does not appear, neither party can assign as error the fixing of the amount of damages at an amount less than that proved.

The judgment and order appealed from must therefore be affirmed, with costs.

All concur.


text:
    Richard G. Platt, App’lt, v. Joseph J. Zimmerman et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed July 1, 1895.)

    Specific performance — Default—Excuse.
    Where the plaintiff failed to perform at the time fixed by the agreement, specific performance of a contract to exchange land will not be decreed, unless he satisfactorily excuses his default.
    Appeal from a judgment dismissing the complaint on its merits.

      Frederick Hughes (F. H Parker, of counsel), for app’lt; J. George Flammer, for resp’ts.
   Per Curiam.

— On the day and at the hour and place named in the contract for the exchange of the properties in question, the defendant Joseph J. Zimmerman attended, ready, able, and willing to perform on his part. The plaintiff was unprepared, applied for an adjournment, and, on this being refused, made no effort to consummate the exchange until two days afterwards. The plaintiff’s deed was not acknowledged until nearly four months after the time fixed for its delivery. There were unpaid on the plaintiff’s property at these times, and up to the trial, taxes, for 1893, $440, for 1894, $322.20, besides an assessment and unpaid water rents. No moneys were to pass upon the exchange ; so that deductions for the unpaid taxes, etc., could not have been made from the purchase money, as in Webster v. Trust Co., 80 Hun, 420; 62 St. Rep. 112, and kindred cases. Under the circumstances, the plaintiff was guilty of want of diligence and inexcusable neglect, sufficient to warrant the trial judge in withholding specific performance, which is not to be had as of right, but "rests largely in the discretion of the court. Though time is not regarded in equity as of the essence of a contract, it is in all cases so far material that it cannot be allowed to pass without evidence satisfactorily excusing the default. 3 Pom. Eq. Jur. p. 445.

Though the case is close, we find no abuse of discretion, and no error which requires a new trial.

The judgment is therefore affirmed, with costs.


text:
    Richard H. Smith, as Receiver, etc., Resp’t, v. Mary Lavalle, App’lt.

      (New York Superior Court, Special Term,

      Filed July 1, 1895.)

    Receiver — Action for rent.
    A receiver, appointed in an-action for the partition of realty, to which all persons interested are parties, can maintain an action for rent after the tenant in possession has recognized his title to the realty by joining in the execution of a lease from him, in which such tenant agrees to pay the receiver a stated rental.
    Appeal from a j udgment in favor of plaintiff.

      Henry Cooper, for app’lt; William H. Deady, for resp’t.
   Per Curiam.

— The judgment should be affirmed, upon the opinion oE the learned judge who tried the issues.

All concur.

The opinion of McAdam, J., at special term, is as follows:

The defendant is in error in assuming that the question presented in whether one tenant in common can recover from another, holding a similar title, rent for the use of property so owned, while in the exclusive.use and enjoyment of the latter. Rich v. Rich, 50 Hun, 199; 19 St. Rep. 384. The real proposition with which the court must deal is whether a receiver appointed in an action for the partition of the realty, to which suit all persons interested are parties, can maintain an action for rent after the tenant in possession has recognized the receiver’s title to the realty, by joining in the execution of a lease from him, in which she agrees to pay the receiver a stated rental; and this point must be decided in favor of the receiver. Whatever doubt might have arisen if the lease had not been executed is put at rest by the relation it creates. There was no fraud or imposition, and all the defendant claimsis that the receiver assumed to have the right to exact the lease, and she supposed she was bound to execute it. This, at most, was error of law, which furnishes no defense. uIgnorantia juris non excusai.” Whether the rent might have been fixed, liability determined, and the true measure of justice administered in the suit for partition (Code, § 1589 ; Rich v. Rich, supra) need not be considered, because the defendant by her act has estopped herself from asserting that the equitable remedy available therein is exclusive.

There must be judgment in favor of the plaintiff for $281, with costs.