text:
    The Essex County National Bank of Newark, Resp’t, v. Thomas V. Johnson, App’lt.

      (Supreme Court, General Term, First Deparment,

      Filed October 16, 1891.)

    1. Attachment—Aejjidavit.
    In an affidavit for an attachment, it is not necessary for the plaintiff to state that the note in question was not paid or whether it was taken for value before or after maturity.
    2. Same—President op bank.
    An affidavit of the president of the plaintiff bank, stating that there are no counterclaims against it known to the plaintiff or to deponent, is a compliance with the Code. The president will be presumed to have knowledge in reference to claims which might exist against the corporation which he represents.
    Appeal from order denying motion to vacate attachment

      A. B. Carrington, for app’lt; G. A. Strong, for resp’t
   Per Curiam.

We see no reason for disturbing the attachment granted in this action. Most of the allegations as to which the knowledge of the president of the bank in making the affidavit is challenged were entirely immaterial and need not have been made in order to make a perfect cause of action.

As to the question of payment, or whether the note was taken for value before or after maturity, those are affirmative defenses which it is not necessary for the plaintiff to rebut in the first instance. The president of the bank at the time of making the affidavit, states that there are no counter-claims to the cause of action set up in the affidavit, known either to the plaintiff or to deponent; and this is a compliance with the Code. There is no requirement which compels the party making the affidavit to have knowledge of all the transactions of the plaintiff for the six or twenty years prior to the time of the application for the attachment during which the counter-claims might have arisen. The position of the affiant was such that he would be presumed to have knowledge in reference to the claims which might exist against the corporation which he represented at the time of the commencement of the action.

We think, therefore, that the order should be affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., Daniels and Ingraham, JJ., concur.


source: Caselaw Access Project

author: Barrett, J.

license: Public Domain

text:
    In the Matter of Proving the Last Will, etc., of John Patterson, Deceased.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Appeal—Reargument—Probate.
    After an appeal from a decree rejecting an alleged will has been argued

      on the facts, without objection, the respondents are estopped by their action and cannot claim a reargument on the ground that the surrogate was in error in holding that findings were unnecessary.
    8. Same—Exceptions.
    Exceptions are unnecessary for the proper presentation of the question whether there should be a new trial before a jury.
    3. Same.
    Where the notice of appeal is general and the case is made and settled: as provided for a review of the facts, and contains a statement that it contains all the evidence, the general term has jurisdiction to review the facts and perform all the functions conferred qn it by § 2586 of the Code.
    Motion for-a reargument.
    W. H. Hamilton, for motion; Henry Hoyt and C. G. Moritz opposed.

       See 36 N. Y. State Rep., 813.

   Barrett, J.

The general term did not overlook the nature of the case here presented. The respondents chose to enter a decree in the surrogate's court without a preliminary decision containing the surrogate’s findings of fact and conclusions of law. It appears that thereafter the appellants applied to the learned surrogate for an order to show cause why such findings should not he made and filed in conformity with the provisions of § 2545 of the Code, but the application was denied upon the ground, endorsed upon the papers, that findings were not necessary. The respondents now contend that the learned surrogate was wrong, and that findings were necessary. In this contention they are probably correct, but the difficulty with their present position is that they cannot be permitted to take advantage of their own error. If, upon the argument, they had objected to a review upon the facts, because of the irregularity in their own practice, the court would have suspended the consideration of the appeal until the findings had been made and inserted in the appeal book. The result would necessarily have been the same in the end. Instead, however, of making any such objection or claiming that the appellants were limited to a review upon the law, the respondents argued the appeal upon the merits as an appeal upon the facts, and took their chances of a favorable result. The suggestion that the respondents reviewed the testimony merely to. demonstrate that the surrogate had before him some evidence to support his rejection of the will, so that such rejection was not an error of law, is an afterthought, borne out neither by what actually transpired upon the argument nor by the elaborate-brief submitted in support of the respondents’ contention. The same observation applies with even greater force to the pretence that the discussion upon the facts proceeded upon the idea of showing that even if certain testimony was improperly admitted, such admission could not' have prejudiced the appellants. The truth is, that the appeal was unqualifiedly argued upon the facts and that the case was duly prepared and settled for that express purpose. Exceptions were unnecessary for the proper presentation of the question whether there should be a new trial before a jury. This was expressly held in Burger v. Burger, 111 N. Y., 523; 20 N. Y. State Rep., 105, where the analogies of a rehearing in equity and of an appeal from an order denying a motion for a new trial in a jury case were considered. In the case at bar the notice of appeal covered both the facts and the law. It was general and in no wise limited the appellants to a review upon the law. The case was made and settled expressly as provided by law for a review upon the facts, and we found in it even the usual statement that it contained all the evidence. The general term, therefore, had jurisdiction to review the facts and to perform all the functions conferred upon it by §2586 of the Code. We were, in substance, requested by the respondents to review the facts, both in their argument and in their brief. And we were so requested after the respondents had signified by their practice .and the learned surrogate by his decision that findings were deemed unnecessary.

The motion for a reargument should therefore be denied, with •costs.

Van Brunt, P. J., concurs; Bartlett, J., concurs in the result


author: Bartlett, J.

text:
    Linus A. Gould, Resp’t, v. The Chicago, Burlington & Quincy Railroad Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Bar—Pendency of foreign action.
    After one who is indebted to or holds money belonging to a debtor has paid the same to one of several claimants, he cannot set up in bar of an action for such moneys or debt by one of such claimants the pendency of an action in a foreign jurisdiction against his creditor in which he has been garnisheed.
    2. Same—Judgment.
    A judgment which merely determines that one of several claimants is entitled to priority, but neither orders or directs that he shall recover anything, or that the other claim shall be dismissed, is not such a definitive judgment as will constitute a bar to the prosecution of another action in this state; especially where it appears that such other claimant expressly withdrew his claim in the former action.
    3. Trial—Evidence.
    An error in the admission of a judgment in evidence is not prejudicial where the court in its findings refuses to treat it as conclusive.
    Appeal from a judgment rendered at special term after a trial upon the merits.

      Lawrence Godkin, for app’lt; Joseph M. Keatinge, for resp’t.
   Bartlett, J.

This is an action brought to recover the amount of certain freight rebates due in the year 1884 from the Chicago, Burlington & Quincy R. R. Co. to the firm of B. D. Brown & Co. of Burlington, Iowa. There was no dispute about the amount, which was agreed upon as being $3,316. The plaintiff, Linus A Gould, sues as assignee of the firm of B. D. Brown & Co., claiming under an assignment executed by one of the partners assuming to act in his own behalf and in behalf of the firm. The First Rational Bank of Burlington, Iowa, claimed these same freight rebates by virtue of a subsequent assignment made to that institution by another memher of the firm also assuming to act in its behalf. The defendant railroad company, with notice of the conflicting claims, made payment to the First National Bank of Burlington instead of to the plaintiff; and the main question litigated upon the trial of the present suit was whether or not the assignment to the plaintiff was valid. The defendant contends that the finding of the trial court in favor of its validity is against the weight of evidence and is based upon errors of law which demand a reversal of the judgment. We will examine these alleged errors in the order in which they are presented in the brief for the appellant.

At the time of the trial there was pending in the circuit court of the United States for the southern district of Iowa an action between the First National Bank of Chicago as plaintiff and the firm of B. D. Brown & Co. as defendants, to which the Chicago, Burlington & Quincy Railroad Company and the First National Bank of Burlington had been made parties as garnishees of the firm of B. D. Brown & Co., and in which action this plaintiff, Linus A. Gould, had intervened, claiming the same freight rebates that he does in this action, and praying judgment therefor against the railroad company. The defendant insists that the pendency of this suit constituted a bar to the prosecution of the present action. The rule that the pendency of another action is ordinarily only a defense where the other action is pending in the same jurisdiction, is not disputed, but the appellant argues that it does not apply to the case of a garnishee, and that inasmuch as the defendant was sued as a garnishee in the circuit court case in Iowa, the pendency of that prior suit was a good defense in the present action against the same garnishee here. In support of this position the appellant relies chiefly on the well known case of Embree v. Hanna, 5 Johns., 100, in which it was held that the pendency of foreign attachment proceedings in Maryland to reach a debt concededly owing by the defendant but claimed by different parties was pleadable in abatement to a suit against the defendant here to recover the same debt '

“Nothing can be more clearly just,” said Chief Justice Kent, “than that a person who has been compelled, by a competent jurisdiction, to pay a debt, should not Be compelled to pay it over again. It has accordingly been a settled and acknowledged principle in the English courts that where a debt has been recovered of the debtor, under this process of foreign attachment, in any English colony or in these United States, the recovery is a protection in England to the garnishee against his original creditor, and be may plead it in bar.” Applying this principle to the case before the court, he added : “ If, then, the defendant would have been protected under a recovery had By virtue of the attachment and could have pleaded such recovery in bar, the same principle will support a plea in abatement -of an attachment pending and commenced prior to the present- suit.”

The doctrine of this decision was followed by the supreme judicial court of Massachusetts in the case of the American Bank v. Rollins, 99 Mass., 313, where it was said: “If the trustee process is prior in time, it is a defense to a subsequent action against the trustee in another state. The doctrine constitutes an important exception to the ordinary rule that a Us pendens in a foreign court is not a good plea. It is essential to justice and to the protection of the party summoned as trustee, who might otherwise be harrassed and imperilled without any fault of his own.”

But the case at bar does not come within the reason of the rule which thus protects a defendant against whom proceedings are pending as garnishee in a foreign jurisdiction. It is designed to guard him against the injustice of being constrained by different courts to pay the same debt twice. After he has paid the debt voluntarily, however, to one of several claimants, he is no longer in a position to invoke the operation of the rule in his favor. The element of compulsion, or possible compulsion, is then wholly wanting, and if the debtor is thereafter harrassed or imperilled, it cannot truly be said that it is without fault of his own; it is simply because he has preferred to pay a particular claimant without being legally forced to do so, instead of awaiting a judicial ascertainment of the validity of the various claims to the debt

As another defense to the present action, the appellant pleaded, in a supplemental answer, a judgment rendered in the district court of Des Moines county, Iowa, on April 12, 1890, in a suit in which one Lew Robertson was plaintiff, and the firm of B. D. Brown & Go. were defendants. In this suit, the Chicago, Burlington & Quincy Railroad Company was attached as a garnishee, and Linus A. Gould intervened and claimed, by virtue of the same assignment under which he claims in this action, to be the absolute owner of the balance due the firm of B. D. Brown & Co., “ pretended to be garnisheed ” in the hands of the railroad company. The garnishee answered, admitting that it had in its possession $976.71 belonging to B. D. Brown & Co., but showing that various claims were made thereto by the First National Bank of Burlington, Iowa, Linus A. Gould, and the First National Bank ■of Chicago, and asking that they be impleaded as defendants, and that their priorities be adjudged. Subsequently, one N. P. Sunderland also intervened, claiming the debt under another assignment from B. D. Brown & Co., and denying the priority of Gould’s claim. The next important step in the case was the filing •of a paper in behalf of Gould by his attorneys, which says: “Now comes the intervenor, L. A Gould, and dismisses, without prejudice, his petition of intervention in this case.” Then followed the judgment upon which the appellant relies. It recites the proceedings substantially as they have already been stated; “ that on February 3, 1890, said Gould filed herein a written dismissal of his petition of intervention; ” that the court finds in favor of the said N. P. Sunderland, assignee; and it concludes as follows: “ It is, therefore, considered and adjudged that the claim of N. P. Sunderland, as assignee, to the said debt due from the said Chicago, Burlington & Quincy Railroad Company as garnishee, is the first and superior claim thereto.” On May 14,1890, the judgment was modified by a declaration that it should not affect the rights of the plaintiff, Lew Robertson, and that the case as between him and all other parties was continued for further hearing.

Taking into consideration the entire record in this case in the district court of Des Moines county, and the testimony in reference to the proceedings therein, it is evident that the so-called judgment was a mere finding, neither accompanied nor followed by any order or direction that Sunderland should recover anything or that the demand of Gould should be dismissed. It was nothing more than a declaration of the court that when a final adjudication was reached the claim of Sunderland should be preferred. This is not such a definitive judgment as will constitute a bar to the prosecution of another action in this state Brinkley v. Brinkley, 50 N. Y., on 202. Furthermore, it would seem that Gould had ceased to be a party to the suit several months before the judgment was signed.

The appellant argues that he was still before the court, inasmuch as no order is to be found in the record permitting his withdrawal ; but the propriety and legality of such withdrawal appear to.be recognized by the recital in the decree that he had previously filed a written dismissal of his petition of intervention, and by the care which the presiding judge took to have all expressions indicative of any adjudication against Gould stricken from the proposed judgment

Two other alleged errors remain to be examined.

One is the admission in evidence in behalf of the plaintiff of a j udgment in an action brought by him against the Delaware, Lackawanna & Western Railroad Company. Its admissibility was doubtful, but it could have done no injury to the defendant, for the learned trial judge, as appears by his fourth conclusion of law, refused to treat it as conclusive, which was equivalent to giving it no effect at all.

The other ruling of which complaint is made was the reception of the judgment roll in a suit against the firm of B. D. Brown & Co., brought by the plaintiff to recover $10,000 money loaned. This judgment was obtained by default, after service of process on one partner only, long subsequent to the assignment under which the plaintiff now claims. I do not see how it could be evidence, as against this defendant, of a consideration for that assignment. All the material facts which it tended to establish, however, were amply proved by other evidence; and it seems hardly possible, therefore, that this judgment could have had any influence on the result

The judgment of the special term should be affirmed, with costa

Van Brunt, P. J., and Barrett, J., concur.


author: Bartlett, J. Barrett, J.

text:
    Jose A. Del Valle, App’lt, v. Josiah A. Hyland and Jose F. Navarro, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    1. Fraudulent transfer—Consideration.
    Defendant H. found upon his desk an assignment by N. to him of five

      policies of insurance amounting to $50,000 subject to a claim of $15,000 for which they were pledged. He knew that N. was pecuniarily embarrassed. No money passed between them, but he claimed that the consideration therefor was claims he held against N. for past transactions. In. an action by a judgment creditor of N. to set aside the assignment as fraudulent it appeared that such claims consisted in large part of moneys alleged to have been loaned to N. and legal services rendered for him, but the evidence tended to show that the moneys were used in stock speculations for the benefit of both, and that no charges for the services were made and that H. was an Inmate of N.'s family. Held, that the proof would have sustained, although it did not require,a finding that the assignment was made in bad faith and with intent to hinder creditors, and that it was error to dismiss the complaint.
    2. Creditor’s action—Return op execution.
    An action to set aside an assignment of a chose in action may be commenced after the return unsatisfied of an execution. In such case the rule that a judgment creditor who wishes to reach personal property must commence his action while the execution is in the hands of the sheriff does not apply.
    (Van Brunt, P. J., dissents.)
    Appeal from a judgment entered upon a dismissal of the complaint at special term, at the close of the plaintiff’s case.

      G. O. Hulse, for app’lt; Julien T. Davies, for resp’ts.
   Bartlett, J.

In January or February, 1889, Mr. Josiah A. Hyland, one of the defendants, found on the table in his private office a written instrument purporting to have been executed by Mr. Jose F. Navarro, the other defendant, on the 31st day of December, 1888, whereby that gentleman transferred to him all his. right, title and interest in and to five policies of life insurance for $10,000 each, subject to a claim thereon of $15,000 by Charles Coudert, as executor, for which Mr. Coudert held the policies as collateral security. The plaintiff is a judgment creditor of the defendant Navarro, and has brought this action to have the assignment of these policies set aside on the ground that it was made with intent to hinder, delay and defraud Navarro’s creditors. At the close of the evidence offered to sustain the plaintiff’s case, the learned judge who presided at the trial directed a dismissal of the complaint; and from the judgment entered against him upon this decision the plaintiff has appealed.

If the evidence was such as would have justified a finding in favor of the plaintiff, it was error to dismiss the complaint at that stage of the case. The rule to this effect is well settled. Scofield v. Hernandez, 47 N. Y., 313; Place v. Hayward, 117 id., 487 ; 27 N. Y. State Rep., 710. It has been necessary, therefore, to go carefully through the testimony to see whether it presents no questions of fact which it would have been the duty of a court to submit to the jury upon a jury trial; or, in other words, whether the case for the defendants was so clear, upon the plaintiff’s own showing, as to entitle them to judgment.

I do not think it was. It seems to me that the proof would, have sustained a finding that the assignment was made in bad ,faitli and with an intent to hinder and delay creditors, although it did not necessarily lead to that conclusion.

Mi*. Navarro was in serious pecuniary embarrassments at the time of the transfer, and Mr. Hyland knew it. No money passed between them. then. According to Mr. Hyland, the consideration for the assignment consisted of a number of claims which he had against Mr. Navarro growing out of past transactions with that gentleman, and aggregating with interest upwards of $19,000, for which he accepted in payment these five policies of life insurance, the value of which he assumed to be from $20,000 to $25,000. An examination of the several items which go to make up this consideration, and the testimony relating to them, readily shows that the proof in almost every instance is susceptible of conflicting inferences, and is favorable or unfavorable to the defendants according to the view which is taken of it.

The first item is one of $7,000 alleged to have been loaned to Mr. Navarro. “ He borrowed $7,000 cash from me,” says Mr. Hyland, “ in 1880, down, covering a period of two or three years.” This statement standing by itself would be clear proof of a loan; but it is followed by further testimony which shows that the witness turned over all the spare money he had at that time to Mr. Navarro, to be invested in mining stocks; that he received some stock, but returned it to Mr. Navarro with the understanding that Mr. Navarro would give it back to him or pay him the money which it represented; and that in the result he found himself without either stock or money. He declared that he did not regard this transaction as a speculation into which he had entered with Mr. Navarro ; but to my mind it seems quite as much like a joint speculative adventure in mining stocks as it does like a loan. It is to be observed that Mr. Navarro gave Mr. Hyland no note or other evidence of any indebtedness on his part growing out of this matter.

In magnitude, the next item going to make up the consideration for the assignment is a claim of $5,000 for legal services. These appear to have related chiefly to the purchase of New Jersey lands for Mr. Navarro, and to a litigation concerning the Commercial Warehouse Company. The testimony as to the character of these services is very general and a very liberal estimate seems to have been put upon their value. Mr. Hyland never rendered Mr. Navarro any bill on account of his labors as a lawyer, and nothing appears to have been said about how much they were worth, either in the conversation which immediately preceded the assignment of the insurance policies, or, indeed, at any other time. Another remarkable circumstance is Mr. Hyland’s omission to make any entries in his books relating to any professional services to Mr. Navarro. It seems, however, that he was an inmate of Mr. Navarro’s family for months at a time, during many years; gave instruction to the sons and was himself treated by lír. Navarro like a son. “I never felt as if I would like to render Mr. Navarro any bill,” he says. “If I wanted anything I could have gone to him for it.” In view of all these facts, would it be a harsh or unwarrantable inference to conclude that these legal services were really gratuitous, and that the idea of charging for them was an afterthought ? If such an inference can fairly be drawn it would bring this item within the operation of the rule that “ a gratuity cannot be subsequently converted into a debt so as to become the consideration of a conveyance made by the grantor to the injury of his creditors.” Clay v. McCally, 4 Woods C. C., 605. The case cited presents considerable similarity to the case at bar in the remarkable failure of the grantee ever to have kept any account of the alleged transactions with the grantor or to have made any charges against him, until the grantor became embarrassed, and it was desirable to shield his property from execution.

The other items of the alleged consideration are the payment by Mr. Hyland of a deficiency judgment for nearly $2,600, which Mr. Navarro was clearly under a moral obligation to pay, and a claim of $2,000 for office rent for Mr. Navarro’s sons, which the father, according to Mr. Hyland's testimony, agreed to pay, beginning with the time when the young men were admitted to the bar. Conceding the indebtedness of Mr. Navarro, so far as these two items are concerned, they would not constitute an adequate consideration for the transfer of the insurance policies, if there was no real claim in Mr. Hyland’s behalf for money loaned in the mining stock transaction, and on account of legal services rendered. I have shown that the proof would justify, although it does not require, a rejection of his claim in these respects; and hence it follows that upon the evidence the trial court could have found that the disposition between the actual consideration for the assignment and the value of the property assigned was so great as to indicate an intent to hinder and delay his creditors on the part of the assignor, which intent was shared by the assignee or of which he had notice. In such a case notice of the fraudulent design could well be imputed to the assignee from his own. knowledge that the debt due to him was so much less than the value of the property transferred in ostensible payment thereof.

For these reasons, I think- it is our duty to grant a new trial. The objection to the maintenance of the action, based upon the language of the court of common pleas in Buswell v. Lincks, 8 Daly, 518, to the effect that where a judgment creditor wishes to reach personal property the action must be commenced while the execution is in the hands of the sheriff, has no application to the facts of the present case. “ Where the subjects sought to be reached are choses in action, an execution returned is necessary by the express provision of the statute.” Shaw v. Dwight, 27 N. Y, 244; Code Civ. Pro., §§ 1871, 1872.

Barrett, J.

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

Van Brunt, P. J., dissents.


author: Per Curiam.

text:
    Dennis Nugent, App’lt, v. The Atlas Steamship Co., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    FTegligence—Fellow servants.
    Plaintiff was employed by a Arm of painters, who were engaged in painting one of defendant’s ships, and was injured by the fall of a scaffold, caused by the breaking of a rope which supported it. Defendant was to furnish, the ropes, and did so, the workmen choosing from those furnished. Held, that defendant was not liable; that the injury was caused by the negligence of plaintiff’s fellow servants.
    Appeal from judgment dismissing complaint after trial at circuit
    Action for injuries alleged to have been caused by defendant’s negligence. Plaintiff was injured by the fall of a scaffold while engaged in painting one of defendant’s vessels, caused by the breaking of a rope. He was not in defendant’s employ, but was working for a firm of painters who had contracted to paint the vessel; defendant agreeing to furnish the ropes to support the scaffold. Some ropes were brought on deck which were not fit for "that use, and defendant’s rigger told plaintiff and his companions to use what ropes they could find. They then took the rope in question, which broke under their weight and caused the injuries complained of.

      G. F. Langbein, for app’lt; L. Godkin, for resp’t.
   Per Curiam.

This action was before the court on a previous ■occasion, a judgment having been rendered for the plaintiff. Upon that appeal, the judgment was reversed and a new trial -ordered. 21 N. Y. State Rep., 761. Upon the new trial the same evidence was introduced before the jury as had been introduced upon the first trial, and in pursuance to the decision upon "the previous appeal the judge presiding dismissed the complaint ; and from the judgment thereupon entered this appeal is taken.

Upon an examination of the record now presented we see no Teason to change the views expressed upon the previous appeal, which seem, moreover, to be sustained by the case of Butler v. Townsend, 126 N. Y., 105; 36 N. Y. State Rep., 508.

For the reasons stated in the opinion upon the previous appeal, the judgment should be affirmed, with costs.

Van Brunt, P. J., and Daniels, J., concur.


author: Lewis, J.

text:
    David Wright, App’lt, v. James Shanahan, Supt. of Public Works, and James Shanahan, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    .Nuisance—State dam: — Superintendent must exercise discretion as to use OT BLUSH boards.
    In 1868 flush boards were put upon the upper dam at the outlet of Owasco Lake, to be removed when not needed for storing water for canal purposes. Since 1884 they have remained on the crest of the dam continuously, creating an overflow on plaintiff’s lands in times of freshets. Defendant paid no attention to complaints made by plaintiff except to refer the matter to his assistant, who refused to consider it. Defendant replied to an inquiry by the legislature that he claimed the right under the act of 1817 to put flush boards on the dam, but had not exercised that right. Held, that it was the duty of the superintendent to cause the flush boards to be removed when in his opinion the interests of the canals did not require their use, and it was his duty to exercise his discretion upon the subject; and that plaintiff was entitled to a mandatory injunction directing him to cause the boards to be raised so as to allow the water to flow over the dam during such times as in his judgment they were not needed for the purpose of storing water for the canals.

      Appeal from a judgment dismissing the plaintiff’s complaint with $457.75 costs, entered in Cayuga county upon the report of .a referee.

      H. P. Howland, for app’lt; John N. Hagen, dep. att’y-gen., for .Tesp't
   Lewis, J.

This action was commenced in January, 1889, to restrain the defendant, as a public officer and individually, from using, keeping up, permitting or suffering to be used or kept up ■continuously, flush boards upon the top of the upper dam across the outlet of wasco lake, causing the water of the lake to set back, overflowing the lands of the plaintiff. Other claims for j-elief were stated in the complaint. This action was referred.

The following facts were found by the referee: That the plaintiff was the owner and in possession of the farm described in the ■complaint, situated upon the inlet of 0wasco lake; that the lands were partly cleared and were productive and valuable for agricultural purposes; that Owasco lake was a natural body of water "having an inlet and an outlet; that many years prior to 1857 a dam was constructed across the outlet, forming a reservoir, from which water was taken for the use of the Auburn Hydraulic Association, and also for the use of the state’s prison - at Auburn; that under and by virtue of acts of the legislature, passed in the jears 1857 and 1858, the state appropriated the dam to its own use, with the right to control and store the waters of the lake for canal purposes; that in the year 1868 the canal division engineer "recommended the use of flush gates upon the dam for the purpose of storing the water for canal purposes, the flush gates to be taken off from the dam when not needed for storing water, and to be replaced when needed for that purpose. The canal board adopted "the recommendations of the engineer, and the canal commissioners and their agents kept and maintained upon the crest of the ■dam flush boards of the width of eighteen inches until the year 1874 or thereabouts, and thereafter flush boards of the width of "two feet were put on and used until the year 1884; these boards were not kept up continuously, but were removed in times of freshet or high water, to permit the waters of the lake to settle even with the height of the flush boards above the crest of the dam; the defendant was duly appointed superintendent of public works, and entered upon the discharge of the duties of the office on the 1st day of February, 1884, and continued therein until after the commencement of this suit; during that period the defendant did not remove said flush boards from the dam, but they were kept upon the crest of the dam continuously by the direction or with the consent of the defendant in times of freshet or high water as well •as at other periods of the year; that whenever such flush boards were removed prior to 1884 the waters of the lake were not caused to rise by means of the dam so as to flow back upon the plaintiff’s land or to saturate them to such an extent as to make them unfit for cultivation ; but the keeping up of the flush boards continuously had the effect in each year in periods of freshet and high water, to raise the water of the lake and inlet so that the plaintiff's lands were thereby submerged and saturated to such an extent as to greatly injure them for agricultural purposes. He found as conclusions of law that at all times after the acts of 1857 and 1858, the canal commissioners had authority to raise the height of the water above the dam by the use of flush boards upon the crest of the dam or otherwise, of such width as they should prescribe from time to time, and to keep them up continuously if in the exercise of their discretion they should think it necessary or advisable to do so, subject to the right of the owners of the lands injured thereby to compensation from the State; that the authority possessed by the canal commissioners became vested in the defendant as superintendent of public works, and that in keeping up said flush boards continuously the defendant acted officially as the agent of the state, and that the plaintiff had established no cause of action, legal or equitable, against the defendant, either in his official or individual character, and that his claim for damages, if any, was against the stat.e and not against, the defendant, and dismissed the complaint with costs.

The facts thus found by the learned referee are all sustained by the evidence with the exception of his finding that the flush boards were kept upon the crest of the dam continuously by the direction or with the consent of the defendant. If by that finding it is meant that the defendant at. any time took the matter of keeping the flush boards on the dam or removing them into consideration, and exercised his discretion upon the question, I do not think the finding sustained by the evidence, for I am unable to find any evidence or facts warranting such finding. There is an entire absence of any evidence tending to show that the de fendant ever reflected upon or exercised any discretion in the premises. The evidence shows that from the first to the last he ignored the matter and refused to give the slightest attention to it.

His attention was called to the question of the flush boards by the letter from the plaintiff dated June 5, 1885. He was informed that the plaintiff was suffering damages by their being kept upon the dam during high water. He failing to pay any attention to the communication, another letter was addressed to him upon the subject in October of the same year. In answer to the last letter he writes October 23, 1885: “D. Wright, Esq., Auburn, N. Y. Dear Sir—Both of your letters, one of June 5th and the other of October 6th, were received and placed on file. Yours very truly, James Shanahan, Superintendent of Public-Works.”

A resolution was adopted by the senate of the state in April, 1886, requiring him to report to the senate whether or not he claimed, and, ff so, by what authority, the right and power to-cause flush boards to be placed upon the upper dam of Owascooutlet, in Cayuga county, and to what height and for what purpose ; and whether or not he had directed such flush boards to be placed on the said dam, and to what height; and whether or not. he had appointed, or caused t.o be appointed, any person to place or keep or have the management of flush boards upon said dam ; if so, who, and the date of such appointment. He replied to the interrogatories as follows: “I have not appointed, or caused to be appointed, any person to place or keep or have the management of flush boards upon the upper dam of the 0wasco outlet, in Cayuga county, nor have I directed flush boards to be placed on said dam. Under chapter 262 of the Laws of 1817, I claim authority to put flush boards on said dam in case of emergency, but I have not exercised the right during my term of office.” After the receipt of another letter from the plaintiff, calling his attention to the matter again, he wrote to the plaintiff that he had referred his letter to his assistant superintendent, John Stebbins of Syracuse, and directed that all further communications upon the subject should be sent to him. After the receipt by him of three other letters written by the plaintiff upon this subject, he again writes: “ Matter upon which you touched in your letter of yesterday is in the hands of Assistant Superintendent Stebbins, and I would prefer that you send your communications on this subject to him.”

The plaintiff testified that he called upon Mr. Stebbins upon the subject, and he refused to consider the question, and in effect directed the plaintiff to leave his office.

Five other letters addressed to the defendant by the plaintiff upon the subject during the years 1886, 1887 and 1888 elicited no reply. The defendant failed to attend the trial of the action, or pay any personal attention to the matter. He has not vouchsafed even to say that other matters had so engrossed his attention that he had not the time to consider the question. He knew, if he read the plaintiff’s letters, that it was a matter of large pecuniary importance to the plaintiff and others occupying lands adjacent to the inlet to the lake. He refused to pay any attention to the plaintiff’s complaints.

The law of 1817 to which he referred in his answer to the resolutions of the senate gave to the canal commissioners power to take possession of and use any waters in the state necessary for the construction and use of the canal, “ but doing nevertheless no unnecessary damage.” If the case furnished any evidence that he had exercised his discretion and determined that the interests of the canal required that the flush boards should remain upon the dam continuously, a different question might be presented, although it would be difficult to convince a court that he had in good faith reached any such conclusion. It must be apparent to any one who gives the subject any reflection that the flush boards in the fall, winter and spring were not necessary for any great length of time to store the water in the lake for use in the dry •season of the year.

The evidence shows conclusively that they were not needed except in the dry season when the canals were in use. Keeping them on the dam during the winter and rainy seasons caused the plaintiff’s land to be submerged and saturated with water the greater part of the year and it was thereby rendered unfit for agricultural purposes. The flush boards were so constructed that their removal and replacement were the work of a short time, and. inexpensive.

There can be no doubt that it was the duty of the defendant as.superintendent of public works to cause the flush boards to be-removed from the dam when not necessary for storing water.

The referee correctly decided that the defendant was not bound by the action of his predecessors as, to the manner of using the-flush boards or as to their height.

He as representative of the state had control of the dam. H» had authority to determine what flush boards should be used and when they should be placed on the dam for the purpose of' the canal.

Section 3 of article 5 of the constitution provides that the governor shall appoint a superintendent of public works who shall, be charged with the execution of all the laws relating to the repair and navigation of the canals of the state, and also of those-relating to the construction and improvement of the canals except, so far as the execution of the laws relating to such construction or improvement is confided to the state engineer and surveyor; subject to the control of the legislature, it also provides that he= shall make the rules and regulations for the navigation and use of the canals. He is required to give security for the faithful discharge of his duties as such officer. He is an administrative-officer. 1 R. S., 7th ed., p. 840. His duties are ministerial; not. judicial. In the discharge of the important and responsible duties of his office he is frequently called upon to exercise discretion and when he honestly and fairly -exercises such discretion bis-conduct is not subject to the control or direction of the courts. The courts, however, frequently assumed jurisdiction over the-acts of ministerial officers.

They have been restrained by injunction from proceeding in violation of the law to the injury of individual rights. They may be set in motion in the discharge of their duties by the courts if they neglect and refuse to perform the duties of their office.

They are amenable to the jurisdiction of the courts of equity in. the administration of their trusts at the suit of an individual having a special interest in the execution of the trust. The People v. The Canal Bd. of N. Y, 55 N. Y., 393; Adsit v. Brady, 4 Hill, 630.

Judge Bronson, speaking for the court in Adsit v. Brady, says,. “ When an individual sustains an injury by the misfeasance or non-feasance of a public officer who acts or omits to act contrary to his duty, the law gives redress to the injured party by an. action adapted' to the nature of the case.

This principle is so well settled that it is only necessary to inquire whether there be anything in this case to take it out of the-operation of the general rule.” ,

In this case one of the superintendents of repairs on the canals was sued for damages sustained in consequence of his neglect to-keep his section in repair.

While this case has been somewhat criticised and limited by later cases, the general doctrine enunciated by Judge Bronson above quoted is not disturbed.

Judge Rapallo says in McCarthy v. The City of Syracuse, 46 N. Y., 196, “ The principle appears to be settled in this state that where a duty of a ministerial character is imposed by law upon a public officer or corporation a negligent omission to perform that duty creates a liability upon the part of such officer or corporation for damages which individuals may sustain by reason of such omission, and that such liability may be enforced by the party injured.” See Robinson v. Chamberlain, 34 N. Y., 389.

It was the duty of the defendant as superintendent of public works to cause the flush boards upon this dam to be removed when in his opinion the interests of the canals did not require their use. It was his duty to exercise his discretion upon the subject.

The property of citizens was being injured by the neglect to remove the boards. He persistently refused to take the matter into consideration and perform his duty in that regard.

It is suggested that the plaintiff’s remedy was the presentation of his claim for damages from time to time to the court of claims. Such a course would involve a multiplicity of actions, and involve the plaintiff and also the state in great expense in trying the cases. A moment’s consideration and action by the defendant would Have avoided and saved all such trouble and expense.

If he had devoted a portion of the time that he was occupied in answering letters and inquiries propounded to him in consideration of the question, the whole difficulty would have been removed.

I think it was within the power of the court to give the plaintiff relief and while his principal claims in his complaint against the defendant were properly refused, he was I think entitled to a mandatory injunction directing the defendant to cause the flush boards to be from time to time raised so as to allow the water to flow over the dam unobstructed during such times as in his judgment they were not needed thereon for the purpose of storing water for the use of the canals. Instead of the plaintiff obtaining this relief his complaint was dismissed and a judgment entered against him for $457.75 costs.

Justice demands that the judgment should be reversed and a new trial granted, with costs to abide the event

Macomber, J., concurs.


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    Ambrose Moore, App’lt, v. Percival L. Drayton, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23,1891.)

    Negligence—Pleading—Charge.
    In an action for negligently driving upon a highway in such a manner as to overturn plaintiff’s wagon and injure him, the complaint alleged that defendant negligently, recklessly and wilfully so drove, etc. The action was tried and submitted as one for negligence. Held, that the complaint contained but one cause of action, viz.: for negligence; that the words “recklessly and wilfully” were surplusage, and that the court properly refused to submit to the jury the question whether defendant’s conduct was wilful.

      Appeal by the plaintiff from an order made at the Livingston circuit, denying the plaintiff’s motion for a new trial after a verdict upon the court’s minutes.

      Hubbard & Coyne, for app’lt; Scott & Read, for resp’t.
   Lewis, J.

The action was brought by the plaintiff against the defendant for negligently driving his team of horses upon the highway in such a manner as to overturn the plaintiff’s wagon and injure him. The parties were driving in the same direction ■on the highway in the county of Livingston.

They were both going to a horse show. The plaintiff was 'driving one horse with a top buggy and had another person with him in his buggy. The defendant was driving four small horses ■or ponies; and driving a vehicle called a break or drag. He had in his party eleven gentlemen and one lady.

The plaintiff gave evidence tending to show that the defendant drove up behind him upon the highway, and in attempting to pass he carelessly and negligently drove his team in front of plaintiff’s horse in such a manner as to force his horse and buggy off the highway track and into the ditch, upsetting the plaintiff’s buggy and injuring the plaintiff.

The plaintiff gave some evidence which slightly tended to show that the defendant intentionally drove his team in front of the plaintiff and forced him into the ditch.

The defendant and his witnesses gave a very different account of the transaction. Their version of it was that the defendant, in proceeding upon the highway going to the fair, drove up behind the plaintiff and made an attempt to pass him; the plaintiff whipped up his horse and so monopolized the highway as to prevent defendant’s passing; the defendant repeated the attempt to pass several times, the plaintiff managing to prevent his passing. The defendant finally put his ponies upon a run and succeeded in getting his leaders ahead of the plaintiff’s horse, and his vehicle abreast the plaintiff’s buggy, and while driving along side by side the defendant, ascertaining that he was himself in danger of running his vehicle into' the ditch, pulled his team toward the middle of the road, and plaintiff’s horse became frightened, shied into the ditch and upset the plaintiff without any fault or negligence on the part of the defendant

While the defendant was giving his testimony he dropped a remark which the appellant insists was evidence that he intentionally drove in front of the plaintiff, with the view of forcing him into the ditch; but taking all of the defendant’s testimony together, it tended to prove that he conducted himself with care and prudence and was not guilty of negligence or of any intention of injuring the plaintiff.

The jury after listening to all the evidence, and there was a large number of eye witnesses to the transaction who testified to what they claimed to have seen, found a verdict for the defendant.

The account given by the defendant and his witnesses absolved the defendant from any negligence or misconduct, and the jury evidently believed their testimony, and their verdict should not "be disturbed, unless there were errors committed upon the trial requiring a reversal of the order appealed from.

The complaint alleged that the defendant negligently, recklessly and wilfully so drove and managed his horses as to force the plaintiff into the ditch and upset him, etc.

The case was tried and presented to the jury by the trial justice upon the theory that the complaint was for negligence of the defendant.

He presented the case to the jury, in his charge, with great care and clearness, and submitted to them the questions of fact as to the negligence of the defendant and as to whether the plaintiff was free from negligence contributing to his injuries.

At the close of the charge the plaintiff requested the court to submit the question to the jury, whether the conduct of the defendant was not wilful. The court declined and the plaintiff duly excepted, and the appellant insists that this was error which entitles him to a new trial.

The complaint contained but one count. - The plaintiff was, therefore, not entitled to have submitted to the jury two separate and distinct causes of action.

After the submission of the claim of the plaintiff for the negligence of the defendant, his request was to submit to the jury the cause of action for wilful trespass or assault

This complaint was for negligence, and after stating the proper allegations in an action on the case for negligence the pleader added the words “ recklessly and wilfully.” They were not necessary to make out a count for negligence. They were surplusage and were properly treated as such. If the plaintiff’s act was intentional, he was guilty of an assault or assault and battery, and the action should have been in that form.

If unintentional, an action on the case for negligence was the proper remedy. Blin v. Campbell, 14 Johns., 432; McAllister v. Hammond, 6 Cow., 345.

The same act cannot be said to be both negligent and wilful. In negligence, whatever may be its grade, there is no purpose to do a wrongful -act or to omit the performance of a duty. It is strictly nonfeasance; not malfeasance. Gross negligence may be evidence of bad faith, but it is not the same thing. Shearman & Eedfield on Negligence, § 3, and authorities cited in marginal note.

If the defendant’s acts were wilful then the intention to injure the plaintiff was present in his mind and it was not a negligent act. The appellant, however, contends that he was entitled to have his request charged with the view of the recovery of exemplary damages. The answer to this claim is that as defendant’s wilfulness was not a factor in establishing the charge of negligence, and the jury having found the defendant free from negligence, and the plaintiff consequently not entitled to any damages, he certainly could not be entitled to exemplary damages. If the plaintiff claimed that his evidence sustained a cause of action for trespass or assault he should have requested the court to be permitted to withdraw the claim for negligence, for he was not entitled to recover for both causes of action.

The evidence undoubtedly satisfied the jury that the plaintiff’s conduct in endeavoring to prevent the defendant from passing him excited and frightened his own horse as well as the horses of the defendant, and that the defendant under the circumstances in which he was placed by the plaintiff managed the team to the best of his ability, and that the plaintiff’s injuries were not the result of _ any negligence on the part of the defendant, and our examination of the evidence satisfies us that the jury came to a correct conclusion, and we find nothing in the exceptions of the plaintiff which should cause a reversal of the order.

Hence the order appealed from should be affirmed, with costs of the appeal against the appellant

Dwight, P. J., and Macomber, J., concur.


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    George W. Finton, Resp’t, v. James W. Eggleston, Surviving Adm’r, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Deed—Warranty—Limitation.
    Defendant’s intestate executed and delivered to plaintiff a deed of land. In an action brought against him for damages for cutting timber on said land, it was adjudged that another person had title and was entitled to possession of said land, and that intestate’s deed conveyed no title. This was reversed at general term, but affirmed by the court of appeals. Held, that a cause of ■ action for breach of covenant in the deed accrued when it was adjudicated that the deed conveyed no title, and that the statute of limitations did not begin to run until that time.
    2. Same—Damages—Notice to grantor to defend action.
    In such case the grantee is entitled to recover the value of the premises, but if he seeks to make his grantor liable for his costs and expenses in defending his title, he must show that he gave him timely notice of the action so that he might control it; a notice given after the action is pending in the court of appeals, is not sufficient for that purpose.
    3. Same—Evidence—Code Crv. Pro., § 829.
    On the reference of a disputed claim against an estate for such damages, the evidence to show service ef such notice was insufficient without the testimony of plaintiff to the effect that he prepared the notices and took them to the house of the’deceased, and came away without having them in his possession. Held, that such evidence related to a personal transaction with the deceased and was inadmissible under § 829 of the Code.
    Appeal from an. order confirming the report of a referee directing a judgment for the plaintiff in a proceeding under the statute to recover a claim against the estate of Eggleston, deceased; and from an order of the special term of the supreme court denying the defendant’s motion for a new trial upon a case and exceptions.

      Alvin J. Hughson, for app’lt; William S. Briggs, for resp’t.
   Lewis, J.

On the 8th day of February, 1867, Stephen Eggleston, the defendant’s testator, executed and delivered to the plaintiff, Finton, a full covenant deed of three parcels of land in the town of Barrington, Yates county. One of these parcels contained eight acres three roods and thirty-one rods, and is the lot about which this contention arises.

After the delivery of the deed the plaintiff entered upon the eight acre lot and cut and removed therefrom timber. One Samuel Thayer, claiming a life tenancy in the lot, commenced an action in a justice’s court for damages for cutting and removing the timber. Finton interposed a plea of title to the premises, and the action was thereupon transferred to the supreme court, was tried and resulted in a judgment qf this court against Finton adjudicating that Anna Maria Thayer was at the time of her death the owner in fee of the premises; that Samuel Thayer, as tenant by curtesy, was entitled to the possession thereof; and that the deed from Eggleston to Finton of the eight acres of land conveyed n’a title to Finton. An appeal was taken by Finton to the general term of the supreme court from said judgment, that court reversed the judgment of the trial court, and thereupon Thayer appealed to the court of appeals.

That court reversed the judgment of the general term and affirmed that of the trial court, thus establishing that the plaintiff’s grantor, Eggleston, did not have title to the eight acre lot and had no right to convey the same to the plaintiff, and judgment was recovered against the plaintiff for costs, which he paid, and thereupon presented to the defendant as executor, etc., a claim against the estate of Stephen Eggleston for the value of the eight acres of land and for the costs and expenses of the litigation paid by him. The claim being disputed by the executor, it was pursuant to statute referred. The issues thus made were duly brought to trial before the referee, who subsequently made his report, wherein he found in favor of the plaintiff for the value of the land, including interest, $1,184.40; costs of the action, $353.-54; costs and disbursements paid by Finton to his counsel, $356.34; making in all $1,894.28.

The special term upon motion confirmed the report and directed judgment for the plaintiff for the amount thus reported. A motion was thereupon made at special term upon a case and exceptions for a new trial. The motion was denied and Finton thereupon appealed to this court from the order confirming the report and from the order denying the motion for a new trial, and claims that the statute of limitations has run against the claim of the plaintiff, as more than twenty years expired after the delivery of the deed, and before the commencement of the action.

We think the special term correctly held that the cause of action accrued when it was adjudicated that the deed conveyed no title to the premises, and that the statute had not run against the claim.

The judgment was prima facie evidence that the covenants in the deed to Finton were broken without proof of notice to the testator Eggleston of the pendency of action against Finton. Taylor v. Barnes, 69 N. Y., 433.

The referee correctly decided that the plaintiff was entitled to recover the value of the land with interest.

It was incumbent upon the plaintiff, however, if he sought to make the defendant liable for his costs and expenses in his efforts to defend his title, to prove that a timely notice of the commencement and pendency of the action against him was given to his grantor, with a request to him to assume the defense thereof. The .appellant contends that the plaintiff failed to make proof of the service of such notice.

Evidence was given upon the trial of the admissions of the .grantor of notice to him of the pendency of the action of Thayer v. Finton. Without the evidence of Finton as to the service of the notices (which will be considered hereafter), the case was left in great doubt as to when the notice was served, at what stage of the litigation it was given, and also as to the purport of the notice.

The plaintiff, George W. Finton, was called as a witness in his own behalf and was permitted to give evidence that he caused to be prepared duplicate notices of Exhibits 7 and 8 printed in the case; they are formal notices to the deceased of the pendency of the action, and calling upon him to defend the same; that he went with the notices at the time they bear date to the residence of Stephen Eggleston, deceased, upon two occasions; first, with the duplicates of Exhibit 7, and afterwards with duplicates of Exhibit 8, and that on neither occasion did he bring away with him the duplicate of the exhibit This evidence of the plaintiff was objected to by the defendant on the ground that it. was not competent evidence under § 829 of the Code. The objection was overruled and the defendant duly excepted and the exhibits were offered and received in evidence.

The witness Fred. Crosby testified that he .accompanied Fin-ton to the residence of the deceased on the occasion of the service of the last notice, Exhibit 8, in August, 1884, and that Finton delivered to Eggleston a paper and stated to him that he was going to appeal the suit, and there was a notice for him ; that Finton’s counsel had advised him to appeal and he was going to do so. This witness had no knowledge of the contents of the paper served. The only evidence tending to prove the service of the first paper, Exhibit 7, was that given by the plaintiff.

To entitle the plaintiff to recover his costs and disbursements it was incumbent upon him to establish that his grantor had notice of the action brought against him and that he was requested to defend his title. This notice should have been served in time so that the grantor could have control of the action if he so desired. A notice served after the action was pending in the court of appeals was undoubtedly "too late. Eggleston was under no obligations to assume the defense of the action if he had not received notice of it till then.

The referee, in his twelfth and thirteenth findings of facts, finds that Exhibits 7 and 8 were served upon the deceased at the time they bear date, respectively, and to which findings the defendant duly excepted. Without the testimony of Finton these findings are unsupported hy the evidence in the case. The appellant contends that the evidence of Finton, as to the service of the notices, was improperly admitted, and it is quite apparent that he is right in this contention. ,

The action was against the executors of Eggleston. One of the executors before the trial of the action died. While Finton did not testify to the actual delivery of the notice to the deceased, he was permitted to testify as to the preparation of the notices, to his taking them to the house of the deceased, to his coming away from the house without having them in his possession and to the identity of the notices. The purpose and object of this evidence was to establish the service of the notices. This evidence, it must be held, related to a personal transaction or communication with the deceased. Without his evidence the testimony of the witness who accompanied him would he practically ineffectual to establish any material fact. He knew nothing as to the contents of the paper.

To hold that the testimony of Finton was competent would be to thwart and render ineffectual the object and purpose of § 829 of the Code.

Theffacts in the case of Gregory v. Fichtner, 14 N. Y. Supp., 891; 38 N. Y. State Rep., 192, are very similar to the case at bar. The court there held such evidence to be inadmissible.

It appears from the opinion of the justice at special term that the question of the competency of this evidence was not raised before him, but it appears from the case that the appellant duly excepted to the admission of the evidence, and can avail himself of' the point upon this ‘ appeal, notwithstanding his omission to present it at special term. Witherbee v. The Board of Supervisors, etc., 70 N. Y., 228; Mackay v. Lewis, 73 id., 382; Fenno v. Hannan, 2 N. Y. Supp., 474; 18 N. Y. State Rep., 659.

We think that because of the admission of this improper evidence the judgment and order appealed from should be reversed,, and a new trial granted before another referee to be appointed, with costs to abide the event of the action.

Dwight, P. J., and Macomber, J., concur.


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    Benjamin D. Conable, Resp’t, v. Mattison Keeney, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Bills and notes—Alteration—Estoppel.
    In an action against endorsers oí a promissory note, it was alleged in the answer that the note was altered by the insertion of an interest clause. It appeared that plaintiff was a bona fide holder for value before maturity; that when he received it he showed it to defendant, who made no claim of an alteration, and that the defendants executed an agreement consenting to the maker’s release on payment of twenty-five per cent., the agreement setting out a copy of the note, including the interest clause, and containing a covenant that it should not affect their liability. Held., that they were thereby estopped from claiming that such alteration released them from liability.
    2. Same—Burden of proof.
    A defense of alteration of a note sued upon is an affirmative one, and the burden of proof rests on the defendant.
    Appeal by the defendant from a judgment entered against him in Wyoming county in favor of the plaintiff on the verdict of a jury-

      Byron Healy, for resp’t; Augustus Harrington, for app’lt.
   Lewis, J.

The action was brought to recover upon a promissory note of $2,000 made by Henry Garretsee, payable to the order of Norris Gay and endorsed by the payee and the defendant Mattison Keeney.

The answers of the defendants were a general denial of the complaint ; that the defendants were accommodation endorsers, and that after the making, endorsing and delivery of the note it was without the defendant’s consent altered by enlarging the time of its payment, and by adding thereto the words “ with interest after the first day of March next” At the close of the evidence the complaint as to the defendant Gay was dismissed.

The plaintiff proved the making of the note, its endorsement by the defendant, the transfer of the same to him before maturity for a valuable consideration, and the protest thereof, and read the note in evidence.

The defendants Keeney made no objection to its being read in evidence, and made no claim that the alterations complained of were such upon the face of the note as to excite attention or suspicion.

The defendant thereupon introduced evidence tending to show that at the time they endorsed the note the time of the payment of the note was left blank, and that the interest clause was not then in the note.

The evidence thus introduced consisted of the testimony of the defendants Keeney and Gay and the testimony of a witness who had been a druggist and claimed to be acquainted with the composition and properties of ink.

He testified that, in his opinion, the words “ with interest after the first day of March next ” were written in different ink from the balance of the note. He was allowed, and testified that the letter “y” in the word “day” in the interest sentence overlapped the letter “ g ” in the maker’s name, and in his opinion was written after the signature of the maker.

At the close of the defendants’ evidence the plaintiff testified that there has been no alteration or changes made in the note since the purchase of the same by him; that he showed it to the defendant Keeney about the time it became due; that Keeney examined it, admitted his endorsement, and made no claim that the note had been altered. He gave farther evidence tending to show that the words “ with interest after the first day of March next ” were in the handwriting of the maker of the note. He read in evidenpe an agreement executed by the defendants after the note came due, consenting that the plaintiff accept from the maker twenty-five cents on the dollar of the amount of the note and release him from liability upon the note.

The agreement contained a clause that the release of the maker should not in any sense affect or modify the liability of the endorsers to the owner of the note, and should not modify or impair their liability upon the note. Upon the delivery of the agreement the plaintiff accepted the twenty-five per cent upon the note from the maker and released him from all liability thereon.

There was embodied in the agreement what purported to be a true copy of the note, interest clause included.

No question was raised by the defendant as to its correctness. This was an important item of evidence against the defendant.

This appeal being only from the judgment, and no motion for ■a new trial having been made, nothing but the exceptions were brought up for review.

The plaintiff made a prima facie case against the defendant, Keeney. The claim that the note had been materially altered was for the defendant to establish. Gay being a party to the action at the time he gave his testimony, the question of his credibility and that of Keeney was for the jury.

The plaintiff contends that the agreement estops the defendant from questioning the note. He had presented to him in the .agreement what purported to be a correct copy of the note; the interest clause was concededly in the handwriting of the maker.

He allowed the plaintiff to release the maker upon his pajing twenty-five per cent of the note, without disclosing to him that .an alteration had been made which released him as endorser.

Having kept silent, it may well be held he is now estopped from making the claim, notwithstanding the clause in the agreement that it shall not be construed to deprive him of any valid' defense which he had before making the agreement.

It was a question for the jury on the evidence whether the defendant established the defense of the alteration of the note, and their verdict on that question cannot be reviewed here.

The appellant contends that the judgment should be reversed 'for errors in the charge of the judge, and claims first that it was ■error to charge that it was incumbent upon the defendant Keeney to satisfy the jury that the note was altered as alleged.

We have examined the charge, and fail to find that any material error was committed. It seems to have been fully and fairly presented to the jury.

The court charged the jury, if they were satisfied of the facts ¡shown by the plaintiff, he was entitled to a verdict against the defendant unless the defense interposed by the defendant Keeney ■was made out to their satisfaction.

The defendant contends that the burthen of proof was upon the plaintiff to establish that the note had not been altered as alleged by the defendant. We do not so understand the rule. The alteration of the note was an affirmative defense, and was to be established by the defendant.

The appellant specially calls attention to the refusal of the judge to charge the request of the defendant that “ the plaintiff is here seeking to recover upon the endorsed instrument which he produces. Now it is incumbent upon him under all the evidence in the caseto satisfy the jury that the defendant indorsed that instrument as it now is, so far as the question of execution is concerned.” And the court declined to so charge. The trial justice had substantially .charged that proposition in the body of his ■charge, and had fully and correctly instructed the jury as to the burthen of proof.

The defendant’s counsel, as is not unusual, presented many requests to charge, which were substantially alike.

The one refused was in effect the same as was afterwards at defendant’s request charged by the court, and we are not able to see that the jury could have been misled by the refusal of the court to make the charge complained of.

Other questions raised by the appellant have been examined,, and we fail to discover any reason for a reversal of the judgment. The judgment should be affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


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    Mary A. Guenther, Adm’rx, Pl’ff, v. James Lockhart, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

      ' NEKLIGEirCE—COBTBrBUTOBY.
    Plaintiffs intestate while working in the employ of defendant was killed' by falling down an elevator shaft. Deceased had worked there two years and was a foreman. The employes were instructed not to use the elevator except when engaged in moving freight. Deceased ascended in the elevator to the third floor when there was no freight on the elevator, got off, stated to a workman that he was going up for some mouldings and then out to see a train, and then started toward the elevator, and a few seconds later was found at the bottom of the shaft, and the elevator was found at. the fourth floor. It was shown that on a previous occasion he had failed, to stop the elevator. Held, that he was not shown to be free from contributory negligence, and a recovery could not be had.
    Motion for a new trial upon a case containing exceptions. The-action was brought by the appellant as administratrix of the estate of Samuel Guenther, deceased. The plaintiff was non-suited and the exceptions were directed to be heard in the first instance; at the general term.

      James A. O'Grady, for app’lt; Raines Brothers, for resp’t.
   Lewis, J.

The defendant was the lessee and occupant of a four-story building in the city of Rochester, which he used for-manufacturing picture frames. He used in his factory an elevator for the purpose of moving freight from floor to floor. The openings into the elevator shaft from the different floors were protected by doors which opened into the rooms and were fastened when closed by a door latch. The employes of the factory were-, "required to see that the doors were kept closed. These openings-into the elevator shaft were not furnished with the trap or automatic doors required by the acts of 1886 and 1887. The well-hole or shaft was practically dark when the doors were closed. The rules of the factory prohibited the employes from using the elevator except when they were engaged in moving freight. A sign was attached to the cross-beam where the cable was attached, so that it could be seen as a person stepped upon the elevator,, reading, “For freight only. Lockhart & Powell.”

The deceased had been employed in this factory for two years-at the time of his death, and had been for some time foreman of the hands working upon the third floor of. the factory. He was-familiar with the elevator and with the rules of the factory governing its use. On the morning of December 17, 1888, he used the elevator for the purpose of elevating himself to the third floor, there not being at the time any freight on the elevator. He opened the door leading to the third floor, passed along near the witness, August Kramer, Jr., having a newspaper in his hand, and read from the paper that the first train was going to stop at the Central Park station twenty minutes past seven, and remarked that he was going up stairs to get some mouldings and then was going out to see that train, and started towards the elevator, as Kramer testified, on a slow trot, and in a few seconds the alarm was given that lie had fallen down the elevator shaft. It appears from the evidence that the moulding was of such a length that it could not he transported upon the elevator ; that it weighed only a few pounds and could easily have been carried in the hand. He was found at the bottom of the elevator shaft, having received injuries from which he soon died.

The evidence tends to show that he probably failed to close the elevator door as he came from below to the third floor. The case contains no evidence tending to show that any other person interfered with the elevator after the deceased left it at the third floor. He probably failed to stop the elevator on leaving it at the third floor, and it passed on up to the fourth floor, where it was found after the accident; in his hurry when returning without proper examination, he stepped off into space and fell down the shaft. The evidence shows that he had been known, before the accident, to neglect to stop the elevator when leaving it.

The trial court at the close of .plaintiff’s evidence held that she had failed to make a case, and directed that the plaintiff be non-suited.

We think he decided correctly.. While the defendant was negligent in not providing the safe guards required by statute, he had not assumed to furnish an elevator to be used by the employes, except as they were engaged in transferring freight, and when the deceased used it for his own convenience, he. assumed .the risks attending its use. He was an intelligent man; was acting as foreman of the hands employed upon the third floor of the factory, and had been using the elevator for two years; knew all about its construction and appliances; he was aware that the automatic trap or door required by the statute had not been provided ; he fully comprehended the situation, and chose to use it for his own convenience, and, under the circumstances, it must be held that the defendant did not owe the deceased the duty to furnish the appliances required by the statute.

The plaintiff, therefore, failed to show the deceased free from negligence contributing to his death. If he did not, in fact, fail •to stop the elevator as lie left at the third floor, the evidence shows that he approached the shaft in a hurried and apparently thoughtless way, and must have stepped into the shaft without stopping to ascertain if the elevator was in fact at the third floor, where he supposed he had left it.

The authorities referred to by the appellant have been examined, and we think fail to justify a recovery in a case like this.

The motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit

Dwight, P. J., and Macomber, J., concur.


text:
    William Garratt, App’lt, v. The Trustees of the Village of Canandaigua, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Municipal corporations—Defective sewerage.
    Where a municipal corporation has adopted in good faith a scheme for sewerage or other improvement and the work is done in accordance therewith, the corporation is not liable- for injuries caused by defects in such-scheme.
    Appeal from judgment in favor of defendants.

      H. M. Field, for app’lt; Edwin Hicks, for resp’t.
   Lewis, J.

The trial court made the proper disposition of this, case.

The village officials entered upon a work having in view, as-its main object, the providing of a sewerage system for the village.

It was supposed and expected that it would also afford a means-of draining the appellant’s farming lands.

When completed and put into use, partially from an inherent, defect in the plans, it did not afford that relief to the appellant’s, lands that was expected.

There was an unusual and extraordinary rainfall after the completion of the work and up to the time of the commencement of the action, which probably contributed to the failure of the system accomplishing all that was expected.

The trial court found that it did not appear that there was any failure of the defendant to do the work as contemplated originally,, but that the scheme adopted was defective, and that it was adopted, in good faith.

In such a case it is well established that a municipal corporation, is not liable.

Judgment appealed from should be affirmed, with costs against, the appellant

Dwight, P. J., and Macomber, J., concur.


text:
    In the Matter of the Judicial Settlement of the Accounts of Benjamin F. Grant, Ex’r, etc., of James Benedict, Dec’d.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Executors and administrators—Accounting—Monets expended by" widow.
    The will of testator gave to his widow the right to possess and enjoy the-rents and profits of his estate during her life, and that if they were not sufficient for her support a sale might be had, with remainder over after her decease. No trustee was provided for. Held, that the widow was entitled to possession of the corpus of the estate, and that the executor-was not chargeable with the moneys expended by her for her support, including money spent for the purchase of a house, or for moneys paid by her to one whom she recognized as a creditor of the estate, although the. evidence as to the indebtedness was slight.
    2. Same—Funeral expenses.
    Allowance should not be made to the executor for tombstone and funeral expenses in the absence of vouchers therefor or proof that the amounts, claimed have been paid.

      3. Same—Distribution.
    The decree on a settlement of an executor’s accounts directed distribution among testator’s four children, it having appeared in the early part of the proceeding that testator left only four, when in fact there were five. Held, that the decree should be amended in this particular.
    Appeal from the decree made and entered in the surrogate’s court of Steuben county May 2, 1890, settling the accounts of the executor.

      J. O. Sebring, for app’lts and legatees; J. F. Parkhurst, for resp’t executor.
   Lewis, J.

We think the learned surrogate gave the correct construction to the clause of the will providing for the testator’s widow.

It gives her the right to possess and enjoy the rents and profits of the entire estate during her natural life, and it further provides that if the use and profits are not sufficient for her support that a sale thereof may be made for her support The remainder over, after the decease of his wife, he gives to his children and grandchildren, and appoints his wife one of the executors of the will.

No trustee of the fund is provided for during the lifetime of the wife.

Who but the widow is to determine how much she may need for her support ? and if she is to decide, she must necessarily have possession of the corpus of the estate. Smith v. Van Ostrand, 64 N. Y., 278; Flannagan v. Flannagan, 8 Abb. N. C., 413 ; Matter of Woods, 35 Hun, 60; Thomas v. Wolford, 1 N. Y. Supp., 610; 16 N.Y. State Rep., 764.

This disposes of the question as to the money used by the widow for the support, including the amount invested in the purchase of the house and lot, for if she was entitled to the possession of the funds of the estate for her support, she was given the power to decide as to the propriety of the purchase of a dwelling house to reside in. It appears from the case that the house and lot she purchased was, after her death, sold pursuant to judgment in an action of partition and the proceeds divided amongst the testator’s heirs, including the contestants appellants.

The judgment was a sufficient voucher and the amount thereof was properly allowed.

The evidence of the indebtedness of the estate to Luther A. Wing is not very satisfactory. There is, however, some evidence tending to show that the testator was at the time of his death indebted to Wing for money paid. Mrs. Benedict recognized the indebtedness, and we think she was justified in so doing; and being entitled to the possession of the funds of the estate, it was not proper to charge the executor with the amount paid to Wing. The items of Crook and Meserve for tombstone, fifty dollars and expenses, $100, should have been disallowed upon the evidence before him. The case contains no evidence showing that they were paid by the executor. Vouchers for these items were not produced, nor was the evidence required by the Code given.

The surrogate unintentionally omitted in his decree for distribution the name of the appellant D. Burtqn Benedict.

In the early, part of the trial before the surrogate, it appeared that Harris S. Benedict left but four children. It subsequently appeared that he left five; the fifth one not first mentioned being H. Burton Benedict

The decree appealed from should be set aside, and the proceeding remitted to the surrogate’s court of Steuben county, to the end that the executor may furnish proof of the $50 and $100 items, and that the decree may be amended by providing that the amount to be distributed to the heirs of Harris S. Benedict be divided equally amongst his five heirs instead of four, as stated in the decree.

No costs of the appeal are allowed.

Dwight, P. J., and Macomber, J., concur;


author: Per Curiam

text:
    James Ryan, Resp’t, v. Jacob Parr, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Justice’s court—Execution—Code Crv.' Pro., § 1319.
    Section 1319 of the Code does not apply to appeals from" a justice’s court to the county court.
    3. Execution—Discharge oe judgment debtor.
    A judgment of justice’s court in an action for tort was affirmed on appeal to the county court, and judgment rendered thereon docketed as a county court judgment. Execution was issued hy the plaintiff's attorney and the defendant imprisoned thereunder. Meld, that the judgment was a county court judgment, the execution was properly issued, and the defendant was not entitled to his discharge hy delivering to the sheriff an affidavit under § 3034 of the Code.
    Appeal from an order of the county court of Monroe denying a, motion made by the defendant for his discharge from imprisonment within the jail liberties of the county of Monroe, upon an -execution issued against the person in the above entitled action.
    The action was commenced in justice’s court to recover damages for a tort; was tried and judgment rendered for the plaintiff for the sum of fourteen dollars damages, besides costs. The defendant appealed from said judgment to the county court of Monroe county upon questions of law. The appeal was argued and n, decision handed down affirming the judgment appealed from, with costs. Upon this decision judgment was entered entitled in the county court, reciting the judgment of the justice's court, its affirmance by the county court, and adjudging that the plaintiff recover of the defendant the sum of fourteen dollars damages found by the justice’s court together with the further sum of twenty-seven dollars and thirty-five cents, the costs of the appeal, making in all the sum of forty-one dollars and thirty-five •cents.
    This judgment was docketed as a judgment rendered in the county court and an.execution was thereupon issued upon the judgment against'the property of the defendant to the sheriff of Monroe county and returned nulla hona.

      Thereupon an execution against the person was issued to the sheriff of said county, and under it the defendant was arrested and confined in the jail of said county.
    Both of the executions recited a judgment of the county court, rendered in that court, and were in the regular form of execution issued upon a judgment rendered in a court of record. ISTeither of them was issued by the clerk, but both by the attorney for the plaintiff.
    The defendant gave bail to the limits and at the expiration of thirty days made and filed with the sheriff an affidavit stating that he was a married man and had a family within the state for which he provided, and that he had remained in custody under the body execution for thirty days and thereupon demanded his discharge. The sheriff refused to discharge him, and he then made a motion for his discharge, claiming that the execution upon which he was held was issued upon a judgment recovered before a justice of the peace, and that he was entitled to his discharge under § 3033 of the Code of Civil Procedure
    The claim of the plaintiff was that the judgment was not a judgment recovered before a justice of the peace, but a judgment rendered in a court of record, docketed as a judgment of such a court, and, therefore, the defendant could obtain his discharge only in the manner provided for by § 111 of the Code
    The motion for discharge was denied and the appeal is from that order.

      H. B. Hallock, for resp’t; O. H. Stevens, for app’lt.
   Per Curiam

The order appealed from should be affirmed. The judgment which the execution was issued to collect was the judgment of the county court of Monroe county. The Code makes no distinction in respect to the judgment between an appeal for a new trial and an appeal on questions of law. In either case it is a judgment of the county court. Sections 3063 and 3071 of the Code of Civil Procedure

Section 1319 of the Code does not apply to appeals from a justice’s court to the county court

Chapter 12, of which that section is a part, relates only to appeals to superior city courts, the supreme court and the court of appeals.

It is so stated in the title of the chapter. The signature of the county clerk to the executions was unnecessary and maybe treated as surplusage

They were signed by the attorney as they should be

The execution was not issued by a county clerk on a transcript of a judgment recovered before a justice of the peace, as provided by § 3033 of the Code, and hence the appellant was not entitled to his discharge by delivering to the sheriff an affidavit under § 3034.

The'order appealed from should be affirmed, with ten dollars costs and the disbursements of the appeal against the appellant.

Dwight, P. J., Macomber and Lewis, JJ., concur.