author: Mullin', P. J.:

text:
    JOSEPH BARTON and another, Appellants, v. ANTONY SPEIS and another, Respondents.

      Improper joinder of causes of action — against malcer a/nd gua/rantor of note— demurrer.

    Where the maker and guarantor of a promissory note are joined as defendants in an action thereon, the complaint setting out in a single count a good cause of action against each, a separate demurrer by each defendant, on the ground of an improper joinder of causes of action, is proper and should be allowed.
    Appeal from an order made at the Special Term, sustaining demurrers to the complaint, and granting leave to plaintiffs to amend.
    The complaint, after alleging that the defendant Antony Speis made the note in suit to the order of his wife, and delivered the same to her, alleged that she “ thereupon duly indorsed the said note in the following words: ‘ For value received, I hereby guarantee payment of the within note, and hereby, for value, dedicate and set apart my real and personal estate for the payment thereof. Mrs. Mary Speis, Buffalo, N. Y.; ’ and assigned and transferred such note to the plaintiff.”
    The defendants demurred separately, on the ground of an improper joinder of causes of action. The following is the opinion of HaediN, J., at Special Term.
    HaediN, J.:
    All the essentials to make out a good cause of action against the maker are found in the complaint, and all the essentials to make out a good cause of action against Mary, as guarantor, are found in the complaint. Two separate causes of action are stated, arising upon separate “ instruments or obligations.” As the instruments are separate, the complaint is not authorized by section 120 of the Code. The undertaking of Mary is not that of an indorser, which is a conditional one, but of a guarantor, which is absolute and unconditional. (Alien v. Rightmere, 20 John., 364; Brewster v. Silence, 4 Seld., 207; Allen v. Fosgate, 11 How. Pr., 218; De Bidder v. Schermerhorn, 10 Barb., 638 ; Hier v. Staples, 51 N. Y., 136; Draper v. Snow, 20 id.', 331; Henderson v. Marvm, 31 Barb., 297.) Nor can this joinder be upheld under the statute of 1832, which authorizes all persons liable as makers, indorsers or acceptors of a promissory note, to be 'joined in the same action.. That statute does not, in terms, include a guarantor of a promissory note. (De Bidder v. Schermerhorn, supra.) Section 144 of the Code authorizes a demurrer when several causes of action have been improperly united. The demurrers interposed here clearly specify the grounds thereof. In Cheney v. Fish (22 How., 239), the specification was imperfect according to the opinion of Wells, J., and that case was also disposed of, chiefly upon other questions than the one arising here.- The case of Henderson, v. Jackson (9 Abb. [N. S.], 295), cited by the learned counsel of the plaintiffs, was decided by the Superior Court of New York, and by a divided court, and is opposed to several of the cases in this court, quoted supra, and to the rule stated in 51 New York, 136. Section 167 of tbe Code provides for the union of several causes of action, but declares that they “ must affect all the parties to the action.” Certainly the causes of action set out in the complaint here do not affect all the parties. The one against the maker does not affect the guarantor, and viee versa. They are as independent as though upon separate notes ; one made by one defendant, and the other by the other defendant. The allegations of the guarantee were not essential to a complete and perfect cause of action against the maker. The plaintiffs could maintain separate actions, and .they are not entitled to maintain a joint action^ upon separate instruments. The demurrers are well taken and must be sustained, and with leave to the plaintiffs to amend upon payment of costs. The defendants will serve a copy of this opinion, and then may enter the proper order.

      Runt <& Weaver, for the appellants.

      W. G. Huger, for the respondents.
   Mullin', P. J.:

This action is brought against the defendants, the one as maker, and the other, the wife, as guarantor of said note. The defendants demur separately, because of the improper joinder of two independent causes of action. The demurrers were allowed, and leave given to the plaintiff to amend. The order of the Special Term was right, for the reason stated in the opinion of HardiN, J., and must be affirmed. We áre referred to cases in support of the proposition that a demurrer will not lie to a complaint for joining in the same count two distinct causes of action. The complaint can only be demurred to for an improper joinder of causes of action when they are set out in separate counts. When they are contained in a single count, the remedy of the defendant is by motion. (Cheney v. Fisk, 22 How., 236, so holds.) In this case, there is not a joinder in .one count of two causes of action, but each cause of action is against one of the defendants only. What remedy can defendants get by motion in such a case? If the husband was to have the suit dismissed as to him, or, what is the same thing, the cause of action against him stricken out, the plaintiff might say he was the party primarily liable, as he is the one who is most able to pay the debt, and he ought not to be turned over to a less certain liability against the wife. If the wife moved, plaintiff might say-that she was the only one who had the ability to answer over in damages, and he ought not to be turned over to a party less able to pay. There being no joint liability, no joint motion can be made. There being a misjoinder of causes of action, the case seems to be a proper one for a demurrer.

Order of the Special Term affirmed, with leave to plaintiffs to amend on payment of the costs of the demurrer.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    MARY McARTHUR, Administratrix, and another, Administrator, etc., of ADAM McARTHUR, Deceased, Respondents, v. MATILDA V. SOULE, Appellant.

      Witness examined, de bene esse — declarations of, showing his mobility to be present at the trial — when admissible — Ageney—how established, — deela/rations of agent admissible for what purpose — Sill of sale — may be contradicted by parol evidence.

    When a witness who has been examined de bene esse in a canse does not appear on the trial thereof, it is competent for a party proposing to show that he was too unwell to attend, to give evidence as to his declarations made in answer to questions put to him shortly before the trial, as to his ability to be present.
    Although the general rule is that an agent’s authority cannot be proved by his declaration or act alone, yet the agency being established by competent evidence, his declarations bind the principal in regard to acts done within the scope of his authority.
    It is competent to establish by parol evidence the fact that a sale was in reality made to one person, although the bill of sale given by the seller shows a sale to another.
    Appeal from a judgment in favor of the plaintiffs, entered on the verdict of a jury, at the Onondaga Circuit.

      F. M. Fvarts and Gott dk Garfield, for the appellant.

      A. JY. ludington, for the respondents.
   Mullin', P. J.:

This action was brought to recover the amount due on a promissory note, made by defendant by her husband as her agent, for $250, payable to James Carlisle, or bearer, one year from date, with interest, and dated September 3d, 1867.

It is alleged in the complaint that the defendant was a married woman at the time of making the note, that she was possessed of a separate estate, and that the note was made for the benefit of said estate, and intended to be a charge thereon. The defendant in her answer admits the execution of the note; that she admitted, when she executed the note, that she was a manned woman and had a separate estate. She denies that it was made for the benefit of her separate estate, or was designed to be a charge thereon; and she denies that she owes the plaintiff on said note any sum whatever.

She sets up, by way of a second defense, that about the day of the date of said note, James Carlisle and her son, Smith Soule, were owners of a canal boat and team of horses ; that Carlisle sold his interest in said property to Smith, and, to secure the sum agreed to be paid the defendant, gave the note in question ; that she was then, and still is, a married woman ; that neither she nor her separate estate was benefited by or interested in said property.

The court submitted to the "jury two questions: 1st. Whether the defendant bought the boat. 2d. Whether, when McArthur applied to her, before purchasing the note of Carlisle, to know whether those notes (of which the note in suit was one) were all right, she replied they were, and she was glad if he could get them and would pay them when they came due; and instructed the jury that if she bought the boat, plaintiff was entitled to recover, and if she told McArthur, before he purchased, what he .testified she did, she was estopped from denying her liability on the note, and the verdict must be for the plaintiff.

The jury rendered a verdict in favor of the plaintiff for the amount of the note and interest, and from the judgment entered thereon the defendant appeals.

.Both parties gave evidence on the issues submitted to the jury, and, according to the well settled practice of the court, the verdict is conclusive upon the parties and cannot be disturbed, unless some error was committed upon the trial in admitting or excluding evidence, or in the charge to the jury.

I will examine the exceptions of the appellant in the order they are stated in his points. Mr. Fuller, a witness on the part of the plaintiff, being sick, his testimony was taken de Vene esse before the trial; and to show that the witness was at the time of the trial too unwell to attend and give evidence, the plaintiff’s intestate, being sworn, was asked by his counsel, when he had last seen Fuller, and he replied that he last saw him on the Wednesday evening preceding the day on which McArthur was being examined ; he saw F. at his house; he was sitting up, and he said he had been walking out. The question was then put: What did he say about being able to come ? The question was objected to on the ground that the declarations of the witness to a non-expert are not admissible. The court permitted the witness to state Fuller’s appearance, and, in connection with that, his declarations. To which ruling the defendant’s counsel excepted. The question was competent, and the objection to it properly overruled. A man is found lying on the road side calling for help, a good Samaritan comes along and proceeds to raise the man from the ground, and he cries out that his legs or his back are broken, and begs the passer-by not to attempt to raise him to his feet. The sufferer dies, and his administrator sues a railroad company for negligently injuring him with one of its engines, and on the trial the statement of the deceased to the man who attempted to aid him, as to his injuries, are not competent if the learned counsel is right.

This cannot be law. None of us can have a doctor constantly with us to whom we can disclose the injuries that may be done in our journey through life, and if we cannot, then we must submit to allow the injured party to disclose his condition to any one who may be present, who has capacity to understand, retain and relate what was' said to him.

The witness Fuller was permitted by the court to testify to the statements of defendant’s husband, that he (the husband) was acting for the wife, and that he was buying the boat for her. These statements were made to Fuller while the notes and bill of sale of Car-lisle’s interest in the boat were being drawn by him. The defendant’s counsel objected to the evidence. The court overruled the objection, and defendant’s counsel excepted. The defendant admits in her answer that her husband had authority to sign the note as her agent, and that she was bound thereby. It was also proved that he was her general agent in the management of her business, which was. carrying on a farm she owned, and the management of the property connected therewith. An agency, then, was conclusively established. But it is said it did not extend to buying Carlisle’s interest in the boat and giving a note for the price. If there was in the case no other evidence of the husband’s authority to buy the boat and give her note therefor, it might well be that his agency did not authorize those acts, but witnesses were called by the plaintiff, who testified that the defendant admitted to them that the boat was purchased for her.

Although the general rule is that an agent’s authority cannot be proved by his declaration or act alone, yet, the agency being established by competent evidence, his declarations bind the principal in regard to acts done within the scope of his authority. The evidence as to the extent of the agent’s authorhy being conflicting, it was the duty of the court to submit it to the jury to say whether his agency extended to the purchase of the' boat so as to admit in evidence his declarations against the principal. This precise question was not submitted to the jury, nor was he asked to submit it. He did say to them that if he said, when the writings were drawn, that he was purchasing the boat for his wife, that it was the understanding that she was to become the purchaser, then she was the purchaser, although she was not aware of it at the time, upon the ground that he was her general agent, authorized to do her business generally. The defendant’s counsel excepted to this part of the charge. What was said by the agent while the writings were being drawn, was a part of the res gesteé, and admissible as such, if the husband was in truth the wife’s agent so as to bind her by his declarations. This fact was established if the jury believed the witnesses who testified to her admissions. When the court told the jury that the agent’s declarations were admissible because he was her general agent, he did not mean to say that he was her agent for the transaction of all manner of business for her, but that, in reference to her farming business, and in the purchase of the boat, his statements, being parts of the res gestae, bound her. Had the appellant’s counsel called on the court to instruct the jury that if they should find that he was the general agent of defendant in the management of the farm merely, that he could not bind her by declarations made in purchasing the boat, and the court had refused to charge as requested it is probable that the refusal would have called for a reversal of the judgment. The jury must have found that defendant purchased the boat. They must also have found that the husband was her agent for that purpose; and these facts being found, it necessarily followed that the agent’s declarations were admissible. Although the charge upon’ the question under consideration is open to criticism, I am nevertheless of the opinion that the statements of the agent were properly received.

We have on one, and perhaps two occasions held, that it was competent to prove by parol that the boat was sold to defendant notwithstanding the bill of sale from the seller showed a sale to the son. To that proposition we adhere, and it is not open to discussion in this court.

The instruction given to the jury on the question of estoppel were not excepted to, and there is no question before us upon that branch of the charge. The judgment should be affirmed.

Present — Mullin, P. J,, Smith and Gilbbet, JJ.

Judgment affirmed.


author:
MeewiN, J.:
      GilbbRt, J.

text:
    JOHN LUTES and others, Respondents, v. MARTIN BRIGGS and others, Commissioners of Public Works of the City of Rochester, and others, Appellants.

      Public works — contract for, which includes work not mentioned m ordinance— remedy of persons assessed therefor — Where municipal officers do not constitute a body corporate, when the city may be made a party — Injunction to prevent illegal acts likely to result in a multiplicity of suits.

    An ordinance was adopted by tire commissioners of public works of tbe city of Rochester relative to certain public work, and proposals advertised for. After the bids were received the contract was awarded by the board to S. (one of the bidders) for the work advertised for. Afterward, on the petition of certain persons, the resolution awarding the contract was reconsidered, and thereafter a resolution was passed, and a contract entered into with S. in pursuance thereof, providing for work not authorized by the ordinance. Held, that an action might be maintained by persons liable to assessment for the expense of said work, for the purpose of having the proceedings of the commissioners declared void, and to restrain the collection of any assessment therefor, as well as the payment of any moneys already collected; and that, as the commissioners of public works are not in terms, by the statute, declared to be a corporation, and it was questionable, therefore, whether the contract should not have been made with the city of Rochester, and especially as the city of Rochester had the custody of the fund, it was properly made a party defendant with the commissioners.
    A court of equity'lias power to interfere, by injunction, when public officers are proceeding illegally to the injury of parlies, and when the exercise of such jurisdiction is necessary to prevent a multiplicity of suits at law.
    This was an action brought to declare void certain proceedings of the. commissioners of public works of the city of Rochester, in relation to the construction of a sewer, and to restrain the collection of an assessment therefor, as well as the payment of any moneys already collected.
    On the 19th of January, 1874, after hearing the allegations of all parties, an ordinance was adopted by said commissioners, ordaining, among other things, “ the deepening and enlarging of Platt street sewer, from the east high bank, in the rear of the Jefferson mills building, to the west line of State street, by enlarging that portion under said mill, constructing a tunnel under the race and deepening that portion of the sewer in Mill street and Platt street, to the west line of State street; said sewer to be not less than seven feet square, and an arch cover, except that portion which is tunneled, and to be at least twenty-five feet deep at State street; also to construct the necessary surface sewers, man-holes and connections for side sewers; and the whole expense shall be defrayed by an assessment upon the lots and parcels of land to be benefited thereby.” An assessment was accordingly ordered to be made, for the sum of $23,000, the estimated expense, and the same was afterward made and confirmed. The commissioners duly advertised for proposals for the construction of the work, and, among others, John D. Spalding made a proposal, in an alternative form, one alternative being “ for sewer through Mill and Platt streets, per lineal foot, twenty dollars,” and the other alternative being “ for tunnel under Mill and Platt streets, per lineal foot, twenty-five dollars.” On the lOtb of April, 1874, the commissioners, by resolution, awarded the contract to Spalding “ for $18,680, for an open cut and tunnel sewer.” On the 24th of April, 1874, some of the parties interested petitioned.the commissioners “to contract.for a tunnel, and not for an open cut;” and on the same day the commissioners passed a resolution, that the vote awarding the contract for building an open sewer be reconsidered, and postponed further action. On May 1st, 1874, the commissioners, without further advertisement or ordinance, awarded the contract to Spalding, under the alternative in his proposal, for a tunnel under Mill and Platt streets, and a formal contract was executed. Under this Spalding has gone on with the work and has received some portion of the assessment that has been collected. The last award, being for the tunnel under Mill and Platt streets, increases the expense about $4,000.
    The plaintiffs are some of the owners of real estate assessed, and they bring the action in behalf of themselves and. all others simi-larty interested. “The city of Rochester” -was made a party defendant, and in its answer claimed specially that it was not a proper party.
    The case was referred, and the referee ordered judgment for plaintiff's for a perpetual injunction restraining the appropriation or payment of any money, out of the fund raised by the assessment, for any work done under that portion of the contract providing for the construction of a tunnel under Mill and Platt streets, and that the plaintiffs recover costs of the defendants generally. The defendants excepted to so much of the report as found that said ordinance did not provide for a tunnel under Platt and Mill streets; that the defendants were all necessary and proper parties to the action, and that plaintiffs were entitled to bring the same; that the second letting of said work for a tunnel, except for that portion under the race, was contrary to the terms of the ordinance and void; that the board, in making said improvement, acted as the agent or instrument or trustee of the land owners; that the plaintiffs were entitled to a perpetual injunction as above stated.
    The defendants, the commissioners, etc., and the city of Rochester, appealed, and the case now comes up on reargument.

      J, B. PerTtins, for the appellants.

      J. O. Cochrane and V. M. Smith, for the respondents.
   MeewiN, J.:

The referee held that the ordinance of 19th January, 1874, did not provide for or authorize the construction of a tunnel under Platt and Mill streets, and this the appellants claim was error. The ordinance was passed after hearing all parties interested, and was the basis of the future action in regard to the sewer. The object to be accomplished, as specified in the ordinance itself, was : The deepening and enlarging of Platt street sewer; ” in other words, to improve what already existed. The portion to be improved is specified, and a part is under the Jefferson mills, a part under the race, and the balance in Mill and Platt streets. This division indicates the propriety,'and, perhaps, necessity of a different kind of work for each division. Then the ordinance specifies for each division the kind of improvement, as follows: “ By enlarging that portion under said mill, constructing a tunnel under the race, and deepening that portion of the sewer in Mill street and Platt street.” The claim of the appellants calls for a construction of the ordinance the same as if it read: “ Constructing a tunnel under the race and through Mill street and Platt street.” If this was meant, why was it not so expressed ? Between tunneling and deepening in the ordinary way, there was a difference in expense of some $4,000. When the ordinance was passed, had not the parties interested a right to believe that the board intended to tunnel a part and deepen the rest in the ordinary way ? The ordinance expresses no alternative. It reserves no discretion to be thereafter exercised. Undoubtedly the board had power to provide in the ordinance for tunneling the whole. They then acted on the subject and did not so in terms provide, but did provide for a tunnel in part. The argument seems to me conclusive that the board did not then intend to have a tunnel constructed, except as specifically stated. I think the referee did not err in holding that the ordinance did not authorize a tunnel through Mill and Platt streets.

The appellants further claim that the plaintiffs have no right to maintain this action, and, to sustain their position, cite Doolittle v. Supervisors (18 N. Y., 155); Roosevelt v. Draper (23 id., 318); Bank v. Supervisors (25 id., 312); Western Railroad Company v. Nolan (48 id., 513).

The Doolittle ease was an action by a citizen of a town to restrain the board of supervisors from erecting a new town. The Roosevelt case was an action by a resident and tax-payer of the city of New York, to declare void an alleged illegal conveyance by said city, of some of its real estate. The case in 25 New York was an action brought by the plaintiff, a bank, against the board of supervisors and collector, to restrain the collection of a tax on plaintiff’s personal property, on the ground that the- tax was illegal; and the court say such an action would not lie unless it wére brought within some acknowledged head of equity jurisprudence. The case in 48 New York was an action to restrain assessors from assessing certain personal property in the hands of trustees, in which plaintiff had a beneficial interest. In the present case the tax or assessment is conceded to be legal; the money is, or will be, collected and paid to the treasurer of the city, subject to the order of the board of public works. (§■ 12 of chap. 771 of 1872.) It was raised for a particular, specified purpose, and the board have no right to appropriate it to any other purpose. In the disbursement of the fund, the board acts ministerially. A fund has been collected, is deposited with the treasurer, and is to be administered for the benefit, real or supposed, of the plaintiffs and the others who have paid it in. In one sense the board are trustees, and the plaintiffs beneficiaries, and the action is to prevent a- maladministration of the fund. The public generally are not interested, nor the inhabitants of any entire town or city, or division thereof. I think the case is so different from the cases cited by appellants’ counsel, that the rule laid down in them does not apply.

The charter of the city of Rochester (§ 207 of chap. 143 of Laws 1861) provides that if a greater amount is collected than is necessary"to defray the expense of the improvement, the common council shall apportion and pay the same back to those from whom the same has been collected. It is suggested that by this provision the plaintiffs have a full remedy at law. But suppose the treasurer has paid it all out on the orders of the board, is the city then liable, and must the city or the treasurer guarantee the validity of the orders or acts of the board % The remedy here would at least be doubtful. Perhaps the members of the board would be individually liable, but should the. contributors be compelled to lie still and allow the money to be spent in an illegal way and then resort to their actions, many in number, when the whole matter can be fairly determined in the present way? There are many cases where the Court of Chancery had jurisdiction to interfere by injunction, when public officers were proceeding illegally and improperly under a claim of right to the injuiy of parties, or when the exercise of such a jurisdiction was necessary to prevent a multiplicity of suits at law. (Mohawk and Hudson R. R. Co. v. Artcher, 6 Paige, 83, 88; Western R. R. Co. v. Nolan, 48 N. Y., 518.) My conclusion is that the plaintiffs can maintain the action.

It is further claimed by the defendants, that the city of Rochester was not a proper party defendant. It is a question under the charter of the city, as amended in 1872, whether or not the contracting party with Spalding was not in fact the city. The commissioners of public works are not, in terms, made a corporation, and it may be that all formal contracts should be made in the name of the city by the commissioners of public works, and that when the commissioners accepted the bid of Spalding, the city was formally bound. Besides, the city, by its treasurer, had the custody of the fund. I think, therefore, the city was properly made a party. It was an equity case, and it was proper to make parties all that in any contingency would be affected or controlled by the judgment.

Upon the trial the plaintiffs were allowed, under defendants’ objection, to ask one of the commissioners, a witness called in their .behalf, whether he knew, or supposed the letting the contract for the tunnel amounted to $4,000 or $5,000 more than the contract as first awarded. It may be, the form of this question was not right, but I cannot see how the error, if any, could in any way affect the result. The plaintiffs were also allowed to prove that it was more expensive to put lateral sewers into a tunneled sewer than an open cut. ■ This was competent though not very material. The error, if any, does not affect the result.

The judgment should be affirmed.

GilbbRt, J.

(dissenting):

I am of opinion that this action cannot be maintained. In tbe first place, tbe plaintiffs do not seek to invalidate tbe assessment. Although it is averred in the complaint that it is illegal, yet that point was expressly waived on the argument of this appeal. And probably the rule of law on this subject would deprive the plaintiffs of a right to sue for equitable relief upon that ground. (See 14 N. Y., 534; 25 id., 322; 43 id., 290 ; 15 Barb., 375; 43 id., 239; 56 id., 340; 10 Abb. [N. S.], 119.) In the second place, the plaintiffs have no such interest in the fund raised by the assessment, as entitles them to interfere with the disposition of it. The referee seems to have regarded the commissioners as agents of the plaintiffs and other tax-payers who have been assessed for making the sewer, and, upon that ground, accorded to' them an interest in the fund. But this is a mistake. It would be preposterous to hold, that the legal relation of principal and agent existed between the tax-payers and the commissioners. The cases referred to by the referee, which so designate such commissioners, do not mean that the legal relation of principal and agent exists, but merely use the language to illustrate the interpretation placed upon a contract nominally between the city corporation and the contractor, where the city in reality contracts, not in behalf of the citizens at large, but for the sole benefit of the persons assessed for the improvement. The commissioners are officers of the corporation. The collection of the assessment is an exercise of the power of taxation which belongs to the sovereignty of the State, and which, in this instance, has been delegated by the legislature to the corporation. The money paid by the tax-payers is in no sense a voluntary contribution to a common fund, but it is a compulsory payment in discharge of a public burden. Nor does the right to a return of the excess of the assessment over the amount necessary to defray the expense of the work, give to the persons entitled to participate in such distribution any interest in the fund before such excess is ascertained, or any right to have the cost of the work cheapened in order that the amount to be distributed may be increased. For it is only after it has been ascertained that a surplus exists after defraying the actual cost of the work, that their interests respectively attach.

Independently of these considerations, I am of opinion that no illegality bas been shown in the action of the commissioners. The conclusion of the referee that the ordinance does not authorize the contract in question, seems to rest wholly upon the idea that it bears a construction that the sewer should be deepened by some process besides tunneling. I cannot assent to that proposition. Here is an old sewer whidh the public authorities have thought best to enlarge. They therefore passed an ordinance declaring that the following improvement is expedient, namely: “ The deepening and enlarging of Platt street outlet sewer, from the east high bank in the rear of the Jefferson mills, leading to the west line of State street, by enlarging that portion of the sewer in Mill street and Platt street, to the west line of State street.” The objection taken is, that the commissioners have entered into a contract for doing that part of the work in Mill street and Platt street by the process of tunneling, instead of excavating from the surface downward, thereby increasing the cost of the improvement. It will be seen that the ordinance does not specify the particular mode in which this portion of the work shall be done. ¥e see no more difficulty in deepening a sewer by one mode than by the other. All that is necessary to be done is to sink the bottom of it, and to do this it cannot be necessary to remove the top. I therefore think that the commissioners had the power to choose the mode which, in their judgment, would .best subserve the public interest, and that with the- honest exercise of that judgment the court has no power to interfere. I have not found any thing in the charter which justifies the complaint of the owners of property assessed for the improvement, that the commissioners caused the sewer to be deepened by the process of tunneling. The right given to them by section 164, to designate the kind of improvement they prefer, and the obligation imposed on the commissioners to adopt and carry out that method of improvement, have not been infringed by the commissioners, for the petition for the sewer in question contains no expression of a preference for an open cut sewer, but it merely asks that it be twenty-five feet deep. Nor did the commissioners exceed their powers in making the second contract at an increased cost. They kept within the estimate. They were not required to advertise the letting anew. The provision of section 164 of the charter, requiring them to advertise for proposals, was complied with by causing the requisite notice to be published for the prescribed period. Having done that,.they were authorized to let the contract as they should deem for the best interest of tax-payers, upon the day named in the notice, or upon an adjourned day. Of this letting, the latter were not entitled to any other notice than that advertisement, and they had no right to interfere with the making of the contract. The notion that the power of the commissioners was spent by the first letting, and that no new letting could be made without notice to the owners, in my opinion, has no warrant in the charter. Nor is it supported by any finding of the referee. The duty was imposed by the charter on the commissioners, and no inference against their fidelity to such trust can be drawn from the fact that they assented to the cancellation of the first contract and entered into another whereby the cost of the work was increased. On the contrary, they acted upon a petition which set forth sufficient reasons for the change, and I am unable to discover any thing in their conduct which the law should condemn.

I think the part of the'judgment appealed from should be reversed, and that a new trial should not be granted.

Smith, J., concurred in the opinion of MerwiN, J.

Judgment affirmed, with costs.


author: MitlliN, P. J.:

text:
    NORMAN WESTFALL and another, Respondents, v. THE ERIE RAILWAY COMPANY, Appellant.

      Railroad company — fire caused by sparhs from engine — evidence.

    In an action brought to recover damages for loss occasioned by fire alleged to have been set by sparks from defendant’s engine, evidence to show the employment of more men by the defendant after the fire than before — the necessity of having some men walk the track being conceded — is properly allowed to go to the jury upon the question whether too few or incompetent men had not been previously employed. In such a case, proof of dropping coals and scattering sparks is not confined to the occasion when the injury was done, nor to defects in a single engine of the company.

      Dougan v. Transportation Oompamy (56 N. Y.,1) distinguished.

      Appeal from an order denying a new trial, and from a judgment entered at the Monroe county Circuit.
    The plaintiff was allowed to prove, under objection by the defendant, that on the track and in adjoining fields combustible material was thrown by defendant’s engines, and also certain other facts mentioned in the opinion of the court.

      George F. Danforth, for the appellant.

      J. A. Stull, for the respondents.
   MitlliN, P. J.:

The plaintiffs are the owners of a farm in Bright, Wayne county, over which the defendant’s railway runs, for about half a mile.

In March, 1871, an engine with a freight train attached passed over the road across the plaintiffs’ farm. Soon after it passed, a stack of hay of the plaintiffs standing some distance from the track was found to be on fire, and there were two or three other fires burning in the neighborhood of the stack. The hay, part of the fence, and the ground, to the extent of about three acres, were burned.

The action was brought to recover for the value of the-hay, the injury to the fences and to the land.

On the trial the plaintiff was permitted to prove, notwithstanding the objection of the defendant’s counsel to the competency of the evidence, that after the fire the number of trackmen was increased, and that other fires were discovered in the vicinity of those on plaintiffs’ land; that fires were more frequent then than they have been since ; that the trackman on that part of the track where the fire occurred was over eighty years of age, and that other fires occurred along the line of the road after the passage of the engines.

In the case of Sheldon v. The Hudson River Railroad Company (14 N. Y., 218) the plaintiff was unable to prove by any witness that he saw sparks pass from the defendant’s engine to the building that was burned and that they set it on fire. He was permitted to prove that engines of the company passing near that place on other occasions emitted' sparks and coals which fell further from the track than the building in question, after giving' evidence tending to exclude the probability that the fire was communicated by other means. The case cited establishes another proposition having some bearing on the case before us, which is, that the evidence given by the plaintiff to show that the engine of the defendant set the fire, raised an inference of some weight that there was something unsuitable and improper in the construction or management of the engine.

In Field v. New York Central Railroad Company (32 N. Y., 339) it was again held, that under circumstances like those existing in this case, it was competent to prove that the locomotives, in passing over said road, have, on former occasions, dropped coals at or near such place. It was also decided that where it is proved that engines in good order will not drop coals upon the track, the dropping of coals from the engines is, of itself, evidence of negligence sufficient to charge the defendants. In the case cited, proof was received, which Weight, J., who delivered the opinion of the court, held to be competent, that four or five of the engines of the defendant scattered coals and sparks along the track on several occasions, and this was permitted to go to the jury as evidence of negligence, and that such negligence caused the injury.

It follows, then, that proof of dropping coals and scattering sparks is not limited to the occasion when the injury is done, nor to defects in a single engine of the company. (See, also, Bedell v. Long Island Railroad Company, 44 N. Y., 367.) It was competent to prove that a larger number of trackmen was employed after the fire which injured plaintiffs’ property than was employed before. It is for the jury to say whether the employment of more men was not an admission that enough had not previously been employed to prevent and extinguish fires. Such evidence is not admissible in a case like that of Dougan v. Transportation Company (56 N. Y., 1). In that case it was held not to be negligence in the defendant to permit the gangway, through which plaintiff’s intestate slipped into the lake and was drowned, to be open. The defendant’s boat was constructed like other boats on the lake in reference to protection to passengers at the gangway, and no such accident previously occurred. There was, therefore, no negligence to admit, and it would have been grossly unjust to permit negligence to be inferred from the precaution taken by defendant to guard its passengers in the future from a like misfortune. Closing up the gangway was, undoubtedly, an admission that it was no longer safe to leave it as it had been left, but that knowledge had been acquired only when the accident occurred.

There is no similarity between that case and the one before us. In this case the necessity of having men walk the track had long been known. One man only had been employed ; fires along the track were frequent, and the employment of more men after the fire was a fact competent to go to the jury upon the question whether too few men had not been previously employed.

If keeping men to travel the track was proper precaution to protect those living along the road from injury by fire as well as the company’s own property, the persons employed should be physically capable of moving with some considerable speed so as to be on hand at the place a fire was set, in season to extinguish it or prevent it from spreading. It was for the jury to say whether a man of eighty years of age was a suitable one for that duty. The motion for a nonsuit was properly denied.

While there was no evidence by a witness that he saw the coals drop from the engine and set the fire, yet the circumstances were proved which justified the jury in finding that the fire was caused by the defendant’s engines and was caused by the negligence of this defendant, either in the construction or management of said engines, within the cases cited from the 14, 32 and 44 New York (supra;).

Upon the same authorities, thé exceptions to the charge of the judge, and to his refusal to charge as requested, were correct.

The judgment and order must be affirmed.

Present — MulliN, P. J., Smith and GtlbeRt, JJ.

Judgment and order affirmed.


author: MulliN, P. J.:

text:
    JEREMIAH N. ANDERSON, Respondent, v. FRANCIS S. HUNN and others, Appellants.

      Chattel mortgage — action to set aside, as fraudulent — may he maintained by subsequent mortgagee — eitlwr legal or equitable relief may be giren, as proofs on the trial may make proper.

    The plaintiff, the holder and owner of a chattel mortgage, given to secure a precedent debt, and junior to that of the defendants, commenced an action to set aside the defendants’ mortgage on the ground that it was fraudulent as to the creditors of the mortgagor. Held, that as a chattel mortgage gave to the mortgagee a specific lien on the property, the action could be maintained.
    Since the Code it is immaterial whether the plaintiff names his action legal or equitable, as the court will grant such relief, either legal or equitable, as the allegations in the complaint and the' proofs on the trial demand.
    Appeal from a judgment in favor of the plaintiff, entered at the Monroe county Special Term.

      jRowley <& Johnston, for the appellants.

      Angus McDonald, for the respondent.
   MulliN, P. J.:

This action was brought to set aside, as fraudulent as against the creditors of Herman S. Smith, a chattel mortgage, given by him to Theodore E. Smith, for the benefit of the firm of Hunn, Smith & Spencer, of which the said Theodore E. Smith was a member, for the sum of $6,000, to secure the payment of $5,000 upon certain household furniture in the house occupied by the said Herman S. Smith. This mortgage was dated on the 21st day of October, 1872, and was filed and recorded in the proper office, on the twenty-fifth of that month. The plaintiff, in his complaint, alleges that on the 25th of March, 1873, the said Herman S., being indebted to him in the sum of $600, for board, etc., before that time had of said plaintiff, to secure him the payment of such indebtedness, executed and delivered to him a chattel mortgage on the same property embraced in the preceding mortgage. A copy of this mortgage was duly filed and recorded on the twenty-seventh of March. It was further alleged that the mortgage to Theodore was given in pursuance of a combination between him and Herman to hinder, delay and defraud the creditors of the said Herman; that said' mortgage was given for much more than was due, and that said Herman, at the time it was given, was insolvent, as was well known to the said Theodore. It was also alleged that the mortgage given to Theodore had been altered without the consent of the said Herman, by making it payable to the firm of Hunn, Smith & Spencer, and that said firm was attempting to enforce said mortgage given to them for the full sum of $6,000, and if the property is taken and sold by them for said sum, nothing will be left to apply on plaintiff’s mortgage.

The plaintiff asks judgment setting aside said mortgage so as aforesaid given to said Theodore F. Smith, as fraudulent and void, for the appointment of a receiver and for an injunction.

The answer of the defendants, Hunn, Smith and Spencer, alleges that Herman S. Smith was indebted to them October 1, 1872, in the sum of $2,569 for property sold to him, which was payable in a few days, and not in a year; and to secure this to said firm, Smith executed and delivered to them a chattel mortgage for the sum of $6,000, conditioned to pay $5,000, and that it was taken for the larger sum because it was understood that Smith was to buy of them more furniture, and the excess over and above the amount actually due at the date of the mortgage, was to secure such future purchases. The defendants deny any intent to defraud the creditors of the said Smith, and they also deny that they are attempting to enforce said mortgage for any more than is actually due upon it. They deny all other allegations in the complaint.

The judge at Special Term finds-that Herman S. Smith executed and delivered to Theodore Smith, for the benefit of his firm, the mortgage mentioned in the complaint. The property covered by it was worth $4,000, and the said firm had sold and received the avails thereof. That Herman S. executed and delivered to the plaintiff the mortgage mentioned in the complaint to secure the sum of $600, and that sum is due and unpaid thereon.

He also finds that the said Smith was only indebted to the said firm of Hunn, Smith & Spencer, in the sum of $2,000; and that the mortgage was made to them with the intent to hinder, delay and defraud the creditors of the said Smith, he being at the time in embarrassed circumstances. That said Theodore S. Smith accepted said mortgage with full knowledge of the pecuniary condition of the said Herman, and of the fraudulent intent with which said mortgage was given.

He also finds that the mortgage given to the said firm was fraudulent and void as against the creditors of the said Smith, and he ordered the partners to account for the property taken by them upon their mortgage, and appointed a referee to state the account and appoint a receiver. He charged the defendants with the costs of the action.

The defendant appeals from the judgment.

The first point .'died upon by the defendant to reverse the judgment is, that neither the findings nor the evidence show any sufficient reason for bringing this action in equity.

The relief sought by the complaint and the relief granted are equitable, and if a court of equity has jurisdiction to grant the relief sought, no_reason can be assigned for-a resort to a court of law. In an action at law the plaintiff could only recover’ damages.If the property covered by the mortgage had been sold to innocent purchasers on the foreclosure by defendants of their mortgage, the property could not be followed, and an action at law could not be maintained until plaintiff.had foreclosed his mortgage and obtained title to the property or a judgment against the mortgagor for the debt.

Defendants’ mortgage was due on demand ; the plaintiff’s was not due until the expiration of the term of credit, which was one year from the 25th of March, 1873; before that'day arrived the defendant; might have sold the property and thus placed it beyond the plaintiff’s reach. To effectually prevent the plaintiff from interfering with the defendants in the disposition of the property, the usual danger clause, as it is called, was omitted; so that the plaintiff was essentially helpless until his mortgage debt became due. It is probable that if plaintiff could prove the defendants’ mortgage fraudulent, he might recover of them the value of the property taken by virtue of it. By so doing he would surrender his lien on the property and be compelled to rest upon the personal responsibility of the defendants, which might or might not be available when an execution should be issued against them.

The only relief that would be really beneficial to the plaintiff, was in equity, by adjudging defendants’ mortgage to be fraudulent and void. He had no adequate remedy at law.

The question then is this: Was the plaintiff, as the owner and holder of the chattel mortgage junior to that of defendants, upon proof that defendants’ mortgage was fraudulent as against the creditors of the mortgagor, entitled to a judgment that said fraudulent mortgage be set aside, and thus make the plaintiff’s mortgage the first lien on the property covered by it ?

A chattel mortgage gives to the mortgagee a specific lien on the property mortgaged, and is, in one respect, a higher security than a mortgage on land. When default is made in the payment of the debt secured by the chattel mortgage, the title to the property becomes absolute in the mortgagee ; the title of the mortgagee in a real estate mortgage only becomes absolute after conveyance upon sale on foreclosure.

A junior mortgagee of land is entitled, on proving a prior mortgage on the same premises fraudulent as against the creditors of the mortgagee, to a judgment setting aside such fraudulent mortgage, and no reason is perceived why the mortgagee in a chattel mortgage is not entitled to the same relief.

The case made at the trial, as found by the referee, entitled plaintiff to the relief granted.

In Thompson v. Van Vechten (27 N. Y., 568), the only claim the plaintiff had to the relief sought was a chattel mortgage, and no doubt was suggested as to his right to the relief, had not his mortgage been usurious and void as against the other creditors of the mortgagor made defendants in the action. (Falconer v. Freeman, 4 Sandf. Ch., 565; Frost v. Mott, 34 N. Y., 253.)

In Rexford v. Widger (2 N. Y., 131), the bill was filed by a mortgagee to' set aside judgments as usurious that were liens on the lands covered by the mortgage. The complaint was dismissed not because a mortgagee could not maintain it, but because he was not a borrower within the meaning of the statute against usury.

In Frost v. Mott (34 N. Y., 253), it was held that a creditor who had obtained a specific lien by seizure of personal property by attachment, could maintain an action for its illegal seizure, and surely one who has a lien by mortgage on personal property, may invoke the aid of a court of equity to perfect it by removing out of the way obstructions fraudulently interposed against it.

So also a partner has such a lien on the partnership property as entitles him to a judgment setting aside fraudulent sales or incum-brances made by his copartner. (Wade v. Rusher, 4 Bos., 537.)

I think the relief granted was such as the facts called for and justified.

The appellant’s third point is, that the plaintiff’s mortgage was not made upon such consideration as authorizes him to question a prior mortgage upon a good consideration.

The consideration of plaintiff’s mortgage was as valid as that of defendants’; each was given for a debt previously contracted.

I am not prepared to assent to the proposition that a creditor who has obtained a lien on the property of his debtor to secure a prior indebtedness, cannot protect his lien in equity against a prior fraudulent incumbrancer. It is urged 'quite earnestly that this action should have been brought on the law side of the court and . not in equity. Since the Code it is quite immaterial whether the plaintiff names his action equitable or legal. The court will grant him such relief, legal or equitable, as the allegations in the complaint and proofs on the trial demand. The relief sought and that granted, are equitable only. The judgment should be affirmed, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed, with costs.


text:
    ARMEDA McCARTY, Respondent, v. PHILENA MYERS, Appellant.

      Lands contracted to he sold — effect of devise of — Failure of pwehaser to perform,— notice ly devisee that prompt payment wilVbe required.

      A vendor of land may devise land, contracted to be sold, to another person, and the devisee will take the title charged with a trust for the benefit of the contract vendee. The contract will pass to the executors of the vendor, who will he entitled to enforce it and who will hold the money for the creditors of their testator or for the devisee.

      Ii the contract vendee shall fail to perform the contract, the devisee will become the absolute owner of the fee.
    In order to take advantage of forfeiture by the contract vendee, in not meeting promptly the payments under the contract, the devisee must notify him that prompt payment will be exacted.
    Appeal from a judgment in favor of the plaintiff, entered on the decision of the court, in an action of ejectment brought to recover the possession of land in Oswego county. The court directed judgment for the plaintiff for the possession of the premises, but without prejudice to the defendant’s right to bring an action for the specific performance of a contract of sale thereof, or to be relieved from the forfeiture thereof.

      8. AC Dada, for the appellant.

      E. 8. Pardee, for the respondent.
   MulliN, P. J.:

In July, 1860, Elisha Bundy was owner in fee of the land described in the complaint, and on the first day of that month entered into a contract in writing whereby he agreed to sell, and, upon payment of the purchase-money, to convey said land to the defendant by warranty deed in fee. The price to be paid was $2,307.42, and was payable as .follows: $207.42 and interest, December 1, 1860; $200 and interest, December 3,1861; $200 per year for nine years, together with -interest; $100, with interest, the tenth year. Defendant was authorized to take possession, and it was provided that in default of payment the vendor might re-enter.

The defendant went into possession of the said premises,- and still continues to occupy them.

On the 10th of October, 1873, Bundy died, leaving a last will, whereby he devised the land contracted to the defendant'to the plaintiff. The said will was duly admitted to probate.

The defendant made payments from time to time on said contract during the life of Bundy, but not at the time nor in the amounts called for by the contract; payments were made after Bundy’s death, but they were not made at the time nor in the amount specified in the contract.

In April, 1874, the executors settled with defendant’s husband, who was acting as her agent, and the amount unpaid was ascertained to be $2,140.

In February, 1874, plaintiff called on defendant’s husband and asked him whether he was going to give up the place; he said he wanted to keep it; he wanted one week to make up his mind what to do, and the week was given him; at the end of the week he asked for another week, and it was given him; as plaintiff saw nothing more of the husband, she brought this action of ejectment against said defendant to recover possession of said premises.

The defenses were: 1. A general denial. 2. That she was in possession under the contract above described, and had made large payments thereon, and expected to pay up in full as soon as the amount unpaid should be ascertained.

On the trial before the court without a jury, the ownership in fee by Bundy, the making of the contract between him and defendant for the sale of the said premises, the death of B., making and probate of his will, by- which the premises were devised to the plaintiff, and that the defendant had neglected to pay, were found, and judgment ordered for plaintiff for the possession of the premises.

A vendor of land who has contracted to sell it to another on payment of the. purchase-price, retains in himself the fee of the land as security for the purchase-money, and as trustee for the purchaser. (Moore v. Burrows, 34 Barb., 173.) He (the vendor) may sell the land, and the purchaser will take the title charged with a trust for the benefit of the vendee. The vendor may devise the land, and the devisee takes the fee and holds it in trust for the benefit of purchasers. (Smith v. Gage, 41 Barb., 60.) The contract will pass to the executors of the vendor, who become entitled to enforce it, and they will hold the money for the creditors of their testator, or for the devisee, as the other personal estate of the testator shall or shall not prove sufficient to pay the testator’s debts. (Moore v. Burrows, supra.)

If the purchaser shall fail to perform the contract on his part, and it is forfeited, the devisee will take the title discharged from the equitable rights of the purchaser, and become the absolute owner in fee.

When the vendor receives from the vendee payments upon the contract after the day on which, by its terms, they are payable, the forfeiture (if non-payment at the time designated for payment produces a forfeiture) is thereby waived; and if the-vendor desires that the future payments shall be promptly made, or if he desires payments due and unpaid to be paid, he must in the one case notify the purchaser that prompt payment thereafter will be exacted, and in the other, that the money due and unpaid must be paid by a day designated, and if the purchaser fails to pay as required, the vendor may forfeit the contract and maintain .ejectment for the possession of the land. (Cythe v. LaFontain, 51 Barb., 186.)

It is only in a court of equity that the purchaser can obtain the benefit of the waiver. At law he must show strict performance, in order to prevent a recovery by the vendor in ejectment.

Had the defendant in her answer offered to pay the balance due the plaintiff on the land, and demanded a specific performance, she would have been entitled to relief. The court below went to the extreme limit of his power in reserving the right of defendant to commence an action praying for such relief.

The judgment must be affirmed, with costs.

Present — MulliN, P. J., Smith and Gilbert, JJ.

Judgment affirmed, with costs.


text:
    In the Matter of the Application of the NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, to Acquire Lands of ABNER ARMSTRONG.

      Railroad compcmy — ‘proceedings to acquire title to land — Petition—should disclose intended use of land— chap. 237 of 1869.
    Where a railroad company takes proceedings to acquire the title to land, under the provisions of chapter 237 of the Laws of 1869, the petition should disclose the specific purpose to which it is intended to apply the land.
    In proceedings under the act of 1869 the procedure must conform to the act of 1850, hut the allegations of the petition must specify the purpose for which the land is to he taken.

      Appeal from an order made in proceedings taken under chapter 237 of the Laws of 1869. The- petition in this case contained, among other allegations, the following:
    “ That in addition to the land already owned by your petitioner and forming a part of said railroad, your petitioner requires for the purposes of its incorporation, for roadway, switches, turnouts, and for the purpose of running and operating its said railroad, and for the flow of water occasioned by railroad embankments or structures now in use or about to be constructed, and for the construction of the necessary additions to the roadway of your petitioner, and for the transaction of its business, the following described piece or parcel of land, to wit.” Here followed a description of the lands desired, including those owned by the appellant.

      H. V. Howland, for the appellant.

      Edward Harris, for the respondent.
   Mullin', P. J.:

The only question to be considered upon the appeal in this and the other cases which are to abide the decision in this, is, whether the petition presented by the railroad company, praying for the appointment of commissioners to appraise the damages of the owners of the land proposed to he taken for the use of the road, is in conformity to the statute regulating the manner of acquiring lands by railroad companies, so as to entitle the applicant to hare commissioners appointed and their report confirmed.

Section 14 of the general railroad act of 1850 authorized the acquisition of lands by railroad companies, and regulated the proceeding for that purpose. It prescribed the form of the petition to be presented to the court, and amongst other allegations required to-be inserted in "it, was “ that the land described in it was required for the purpose of constructing and operating the road.”

By the act of 1850, no authority is expressly given to the land owner to controvert any of the allegations contained in the petition. But the court was bound to allow it, or the law would have been unconstitutional. By an act passed in April, 1854, it was provided that on presenting the petition .of the company to the court, all the persons whose estates or interests are to be affected by tbe proceedings may show cause against granting the prayer of the petition, and may disprove any of the facts alleged in it. The burden of proof was thus taken from the shoulders of the company and laid upon those of the owners, and could only be justified by treating the allegations of the petition, when verified, as grima, facie proof of the matters alleged in it. When land is proposed to be taken for the use of a railroad to be constructed upon it, land owners and others interested know that it is liable to be appropriated to any use the company shall see fit to make of it, and the owner may' insist, and the commissioners may assume, in estimating damages, that they may be used for any purpose to which, from their situation and condition, they may be applied. In this way, and in this way only, can the rights of the owner be fairly protected.

By the act of 1869, it is provided, that if an incorporated railroad company that has constructed its road, shall require for the purposes of its. incorporation, or for the purpose' of running or operating its road, any real estate in addition to what it has already acquired, or shall require any further right to lands, or the use of lands for switches, turnouts, or for the flow of water, or for any other purpose necessary to the operation of such railroad, or the right tq take water, etc., may acquire such additional real estate, or any property or real estate, in the manner and by the proceedings by the act of 1850 prescribed. It will be seen that the act of 1869 confers on railroad companies powers as extensive as does the act of 1850, but it contains power also to obtain land for certain enumerated purposes, which would have been embraced in the general' powers conferred as well by the act of 1850 as by that of 1869.

It would seem to be a reasonable construction of the act of 1869, that the company seeking to acquire lands under it should disclose in the petition the purposes to which it-intended to apply the land. In no other way can the owner be enabled to dispute the necessity of the taking of his land, or give evidence as to the damages. If the company is not obliged to make such statement, it would be clothed with the power of determining the question of necessity without the possibility of the owner or of the courts to prevent it. When the obligation of the owner to disprove the allegation of the petitioner is confined to the one of the acquisition of land by a company for the use of its road when first constructed, we have given effect to the intention and mandate of the legislature, but we think it would be most unsafe, as well as unwise, to give the same construction to the act of 1869. . When land is to be taken in the manner and by the proceedings specified in the act of 1850, it does not mean that the petitions in both cases are to contain the same allegations, or the burden of proof rests on the same party because several of the allegations in the petition under the act of 1850 are wholly inapplicable to petitions under the act of 1869, and it would be very absurd to require them to be alike.

The petition under the act of 1869 must be adapted to the relief sought, and it should disclose the specific purpose or purposes for which the land is sought, whether the purpose is enumerated in the statute or covered by the general clauses of the statute. The general mode of procedure must conform to the act of 1850, but the 'allegations of the petition must be such as are necessary to show that the land is necessary for some legitimate purpose of the company.

I am of the opinion that the petition in this case is defective, and that the proceedings should be set aside, with leave to the petitioner to amend the petition on payment of ten dollars costs of the appeal.

Present — MulliN, P. J., Smith and GilbeRT, JJ.

Order reversed, with leave to respondent to amend on payment of ten dollars costs.


author: Mullin, P. J.:

text:
    LEMAN B. HOTCHKISS and others, Respondents, v. THE GERMANIA FIRE INSURANCE COMPANY OF NEW YORK, Appellant. SAME v. THE TRIUMPH INSURANCE COMPANY, Appellant. SAME v. THE REPUBLIC FIRE INSURANCE COMPANY, Appellant. SAME v. THE INTERNATIONAL INSURANCE COMPANY, Appellant. SAME v. THE EXCHANGE FIRE INSURANCE COMPANY OF NEW YORK, Appellant. SAME v. THE HOME INSURANCE COMPANY, Appellant.

      Action on policy of inswra/nce — evidence as to value of property — Witness, hostility of, towa/rd pao'ty — impeachment of — prior statement of witness — when admissible— General agent of insurance company — power of — waiver of condition.

    Where an action, brought upon a policy of insurance, is defended on the ground that the insured had set the building on fire, evidence as to what had been offered as rent for the property is properly received as tending to show the value thereof.
    Upon the trial evidence was given to show that one of defendants’ witnesses had, some seven years before the trial, said that if he ever got a chance he would give Warner (the person accused of setting fire to the building) hell. Held, that the evidence was properly received; that the law has fixed no time beyond which ill feeling on the part of a witness toward a party cannot be proved.
    To entitle a party to lay a foundation for the impeachment of a witness, it is not necessary to put to the witness the precise question.which it is intended to put to the witness by whom he is to be impeached.
    Statements made by a witness corroborating his evidence upon the trial, made soon after the transaction to which it relates, or when he was not under the influence of any motive to relate the transaction untruthfully, are competent when it is attempted to be shown that he had given a different relation of the occurrence, or that he testified under the influence of a motive calculated to induce him to testify falsely.
    During the examination of one of defendants’ witnesses, it appeared that a paper had been drawn and signed by him, which was in the possession of plaintiffs’ counsel. The paper having been produced and examined by the defendants’ counsel, he proposed to show it to the witness for further identification, and to enable him to explain the circumstances under which it was signed. Held, that the evidence was properly rejected; that as defendant did not put the paper in evidence he was not entitled to give any further evidence in regard to it.
    A genera] agent of an insurance company, authorized to fill blanks in policies issued by it, to issue and renew the same, to fix the premiums thereon, and receive and remit them to the company, has power to_ make a preliminary parol agreement for insurance, and to waive the payment of the premium, although the policy provides that the risk shall not commence until the actual payment thereof.
    One of the policies of insurance provided, that it should become void in case repairs- or additions were made without the consent of the company noted on the policy. After the issuing of the policy additions and alterations were made with the knowledge of the agent, he making no objection thereto. Held, that the condition in the policy had been waived.
    Appeal from judgments in favor of the plaintiffs, entered on the report of a referee.
    The cases were all tried together before the same referee, • the questions of fact being the same in each case. •
    The plaintiffs were the owners of property known as the Clifton Hotel and Air Cure, and the furniture therein. The defendants issued policies of insurance upon this property and furniture to an amount of $71,000. On the night of the 3d or morning of the 4th of January, 1872, the property insured was destroyed by fire, with the exception of a few unimportant articles of furniture. It had snowed during the evening of the third of January, and early in the morning of the fourth, between four and six o’clock, foot prints were discovered in the snow and immediately traced. It was found that they started at the house of Warner, one of the plaintiffs, ran in direct line to the premises where the fire occurred, and back from those premises to the house of Warner.
    The defendants, claiming that the fire was caused by Warner, refused to pay, and these actions were brought.

      Geo. F. Dcmforth, Jr., for the appellants.

      H. 0. Gheesbro and E. G. Lcupham, for the respondents.

       These cases were decided at the April term, 1875.

   Mullin, P. J.:

The plaintiffs were the owners of a building at Clifton, in the county of Ontario, known as the Clifton Hotel and Air Cure. They insured it and the furniture, etc., therein, in different insurance companies to the amount of $71,000. On the night of the 3d or morning of the 4th of January, 1872, the building was set on fire and wholly destroyed, together with its contents. Action was brought against the companies issuing said policies, to recover their respective shares of the loss, and- they severally-defended as follows: All the companies deny a part of the allegations in the complaint and admit the residue, and all set up, as a defense, that the building was set on fire by the plaintiffs, or by their procurement. The Home Insurance Company, The Republic Insurance Company, The Exchange Insurance Company, The Ger-mania Insurance Company and The International Insurance Company, set up as a defense, that, in violation of a condition of the policy, the pi-emises had been permitted to remain vacant and unoccupied. The Home, The Republic, The Ger-mania and The International defend on the ground that the policy had become void by reason of the violation of-the condition of the policy requiring all other insurance to be noted on the policy, and that although other insurance had been obtained, they had not been noted. The Exchange Insurance Company set up as a defense, that the policy had become void because the premiums had not been paid. The International Insurance Company set up as a defense, that, in violation of the condition of the policy, plaintiff had made alterations and repairs without the consent of the company.

On the trial the defendants’ counsel excepted to several rulings of the referee, admitting evidence on the part of the plaintiffs. Several of these exceptions do not seem to me to be of sufficient importance to require examination. I shall examine only a few of them. The referee permitted the plaintiffs to prove by Hotch-kiss, one of the plaintiffs, that one Nittle had offered $10,000 a year as rent for the property for a term of years. One of the defenses set up in the several answers, was, that plaintiffs had themselves set the building on fire, and to rebut this defense plaintiffs attempted to show that the building was worth more than the amount insured, and, as one evidence of the value, they proposed to show the amount of rent they had been offered for it. I think it was competent for that purpose, notwithstanding it might be incompetent for any other purpose in the case. If the property would command such a rent, the inference would be a very legitimate one, that it would not be for the interest of the owners to destroy it. The weight to be given to the evidence would depend upon whether the offer was mad.e in good faith by a person of pecuniary ability to pay it.

The plaintiffs were permitted to prove by a witness, that the building destroyed was better furnished than the Sanitorium (a building used as water cure at Clifton). Inquiry had been made as to the relative value of the building of these two establishments, and it was therefore competent to show that one was better furnished than the other, and therefore more valuable. This evidence, like that which has been considered above, could only apply to the question of motive of 'plaintiffs to destroy the property, and its influence on that question is so slight, that even if it was less competent than it is, its admission should not induce us to grant a new trial.

From the reference to a couple of eases in the Court of Appeals, I infer that the defendants’ counsel considers the evidence as given to prove the value of the Air Cure property. I do not so understand the object in giving .the evidence. As already suggested, the object would seem to have been to show that in one respect, only, it was more valuable, while it was shown to be much less in other respects. Indeed, the relative value of the furniture in the two establishments is not proved, except by showing that it was worth more. Such evidence could not prejudice the defendants, and was of no benefit to the plaintiffs.

The plaintiffs were permitted to prove, by the witness Martin S. Warner, that, some seven years before the trial, he heard Lewis, a witness sworn on behalf of defendants, say to Warner, one of the plaintiffs, that if he ever gót a chance he would give him hell. This threat was made because of a difficulty that had arisen between Lewis and Warner, in reference to an injury that the latter accused the former of doing to one of his (Warner’s) hogs; also, about Lewis’ cutting down a coon tree and running with other women. The counsel insists that the threat was too remote in point of time from the trial, to make the evidence competent. It certainly was competent to prove a state of feeling toward Warner on the part of the witness, and I am -not aware that the law has fixed, any time beyond which ill feeling on the part of a witness toward a party may not be proved. The plaintiffs were permitted to ask the witness, George Walker, whether Lewis, one of defendants’ witnesses, asked him (Walker) if he could swear that he was at home the night of the fire. The statements of Lewis were incompetent, except for the purpose of impeachment. It is not suggested how the inquiry offered to be proved, could tend to contradict him. It is not said that the question had been put to Lewis, and competent for that reason. But if it had, it was so entirely collateral, that the answer of Lewis, if he denied having asked the question, was conclusive upon the party. The evidence was. of no importance in the case.

Walker was asked whether Lewis said any thing to him about the fire, or about the insurance companies, and whether he said, keep still, there is money in this. I am unable to perceive any objections to the first branch of the question. It was doubtless asked with a view to contradict him, as his statements were inadmissible for any other purpose, and whether the evidence to be given in answer to the question was admissible for that purpose, could only be known when it was given. It is a mistake to suppose that to entitle a party to lay a foundation for an impeachment of a witness, it is absolutely necessary to put to the witness the precise question which it is intended to put to the witness by whom he is to be impeached. The form of the question is in the discretion of the court. (Sloan v. N. Y. Central, 45 N. Y., 125.) The first branch of the question was not answered. The second branch of the question was competent, as bearing on Lewis’ moral character, as is clearly shown by the answer. ' It would seem that Lewis attempted to induce the witness to suppress what he knew in regard to the fire, in order to get money for disclosing it. The evidence was.clearly competent. The exception to the admission of negotiations between the plaintiff Hotchkiss, and the insurance agent, Holmes, and what knowledge he had as to other insurance being effected, and -repairs, etc., made, are reserved until I come to the rulings of the referee upon these subjects.

The defendants’ counsel excepted to sundry rulings of the referee excluding evidence offered by him.

On the cross-examination of the witness Rockwell, defendants’ counsel asked him if he did not testify on a former occasion, that he had measured certain foot-prints in the snow, four or five times at the door. The object would seem to have been not to contradict the witness, but to show that he had testified to a state of facts on a former occasion, more favorable to the defendants’ view of the case than upon the trial. If this was the purpose with which the question was put, it was properly overruled. Statements made by a witness corroborating his evidence upon the trial, made soon after the transaction to which it relates, or when he was not under the influence of any motive to relate the transaction untruthfully, are competent, where it is shown that he had given a different relation of the occurrence, or that he testified under the influence of a motive calculated to induce him to testify falsely. (Robert v. Hackley, 23 Wend., 50.) In this case the object was not to support the witness, but to get his statement of a fact, made on a former occasion, in as evidence, different from what he testified to it on the trial. For such a purpose it was not competent.

The defendants’ counsel asked the witness Rockwell, how a track • of a human foot in the snow compared with the track made by Warner, one of the plaintiffs, whom defendants charge with burning the building. The plaintiffs’ counsel objected to the evidence, and the objection was sustained. The tracks could not be presented before the referee; the fact that they had existed was a very important one in the case. The- referee must get a description of the tracks from the witness who saw them, and a comparison between the tracks found in the snow and those made by Warner, could only be made by the witness who saw it. A description could be given by stating the length and breadth of the tracks, and the marks left- by the sole of the boot or shoe in the snow, and whether the toes of the wearer turned in or out. But all this might fall far short of enabling the jury to determine whether there was such a resemblance in the tracks as would enable them to say they were made by the same foot. The defendants had the right to have the opinion of the witness, if it can be called an opinion, after stating to the jury the measurement made, and peculiarities discovered by him in the tracks.

The same witness was asked by defendants’ counsel, how a pair of' rubber boots, found by him in a wagon in a hotel yard, compared with the track. The plaintiffs objected, and the referee overruled the question. This question was not answered. The question was then put, how they measured, and he answered,.he measured them and they compared precisely, only the stick he measured with was a little longer than the boot. It will be seen that the question objected to was not answered, but another, substantially the same, was put and answered. The question answered called for' a comparison of the tracks in measurement, and not for an opinion. The question was competent, but, although the ruling was erroneous, it did not prejudice the defendants to such a degree as to justify the. court in granting a new trial.

During the examination of Levi Lewis, by the defendants, it appeared that a writing had been drawn and was signed by the witness, and it was in the possession of plaintiffs’ counsel. The defendants’ counsel called for its production, and it was produced and examined by the defendants’ counsel, and he proposed to show it to the witness for further identification, and that the circumstances attending its execution might be explained by him. Plaintiffs’ counsel objected to the offer, and thecourt sustained the objection. The witness having admitted the execution of the paper, no further proof was required to entitle defendant to put it in evidence. He did not offer it in evidence, and I am unable to discover why he should be permitted to give further evidence in regard to it. The contents of the paper are not shown; we cannot say that it related to any material question in the case.

The Exchange Insurance Company sets up, as a defense to the action on its policy, that the policy was not issued, nor premiums paid, until after the destruction of the property, and the policy never became an operative, binding obligation. The referee finds that the policy was not issued, nor premiums paid, until after the fire, but he also finds that J ohn H. Holmes, before and at the time of issuing the policy, was agent of defendant, in the town of Phelps, in the county of Ontario, and, as such agent, had authority to fill blanks in policies signed by defendant or its officers, and to issue the same as occasion might require; to issue renewals of policies and to fix the premiums therefor; to receive and remit all premiums accruing to defendant upon policies issued by it. Holmes was agent for several other insurance companies, and, among them, for the Phoenix of Hartford, and be bad insured plaintiffs’ buildings, etc., in said company for $2,000, and the policy expired on the 1st January, 1872; another policy for $1,000 had become worthless. About the 15th December, 1871, Holmes informed the general agent of defendant of these facts, and the general agent authorized Holmes to insure the plaintiffs’ property in the Exchange Company, to an amount not exceeding $4,000. On the morning of the 1st January, 1872, Holmes called on Hotchkiss, one of the plaintiffs, and it was arranged between them that the Phoenix policy should be allowed to expire, and a policy in the Exchange for $3,000 should be issued to plaintiffs. Hotchkiss made a memorandum on the back of the Phoenix policy as follows: “ Expired and put in the Exchange of New York; ” and Holmes, on his return to his office, made a memorandum in writing, stating in substance the amount of the insurance, the property insured, the name of the insured, the company taking the risk, and the date when it commenced. Subsequently a policy was made out in pursuance of the arrangements and delivered to the plaintiffs after the fire. The premium was not paid till after the fire, and when it was remitted to defendant it was refused.

The referee further finds that the plaintiffs were able and ready and willing to pay said premium when demanded, and the delay in the payment of it was owing to the neglect of Holmes to fill up and deliver the policy and receive the money, which would have been paid at any time after the arrangement. The referee’s conclusion of law upon this branch of the case is, that, permitting the Phoenix policy to expire at the request of Holmes for the benefit of defendant, together with their promise to pay the premiums on the policy to be issued, was. a sufficient consideration for the agreement by the agent to deliver the perfected policy set out in the complaint. He also finds that Holmes, having authority to issue policies, had the right to make the preliminary agreement last mentioned. He also finds that the agent had authority to waive the payment of the premiums, notwithstanding the condition of the policy that the risk shall not commence'until the actual payment of the premium. He also finds that, as the answer admits the policy but denies its obligation, upon the sole ground of non-payment of the premium, the plaintiffs must recover if the agent has rightfully waived that condition, whether he had or had not power to bind defendant by a preliminary contract.

It seems to be also settled that a verbal contract of insurance is valid and may be enforced. (May on Ins., 13; The Commercial M. M. Ins. Co. v. The Union M. Ins. Co., 19 How. [U. S.], 318; Angell on Fire and Life Ins., § 833; Rhodes v. Railway Pass. Ins. Co., 5 Lans., 71.) Holmes was a general agent of the defendant, and, as such, had the power to make the contract to insure, authority to accept risks; to agree upon and settle the terms of insurance, and to carry them into effect by issuing and renewing policies on behalf of the company (and this was the precise power conferred by defendant on Holmes by a written power of attorney, dated 2d November, 1811). This is sufficient to constitute a general agent at the place where the business of the agent is transacted. (Post v. Ætna Ins. Co., 43 Barb., 351; Ellis v. Albany City Fire Ins. Co., 50 N. Y., 402.) The parol contract binds the company until the written policy is executed and delivered. (Kelly v. Commonwealth Ins. Co., 10 Bos., 82; Whitaker v. Farmer's Un. Ins. Co., 29 Barb., 312.) Holmes, being a general agent of defendant, had power to waive the payment of the premiums, or to postpone it until after the issuing and delivering of the policy. (Sheldon v. Atlantic Fire Ins. Co., 26 N. Y., 460; Wood v. Poughkeepsie M. Ins. Co., 32 id., 619; Boehen v. Williamsburgh Ins. Co., 35 id., 131; Ellis v. Albany City Fire Ins. Co., 50 id., 402.) And he did waive it, as is found by the referee. The appellants’ counsel insists that the referee should not have found that Holmes had the authority to enter into the parol agreement to insure, nor that such an agreement was actually made, or that there was a waiver of the payment of the premiums. So far as these questions are questions of law, the authorities cited authorize the finding, and so far as they are questions of fact, the evidence authorizes the finding. The only witnesses to the agreement between Hotchkiss and Holmes were these persons themselves, and they both testify to facts found by the referee. There being no conflicting evidence, the referee was bound to find in conformity to their evidence. (Newton v. Pope, 1 Cow., 109; Dolsen v. Arnold, 10 How., 528.) Upon this evidence there can be no doubt that it was left optional with Holmes to call upon Hotchkissior the premiums or he might pay it out of his own pocket, and apply it in payment of a debt due from him to II otchkiss. In any event, payment down of the premiums was not demanded, but it was payable whenever demanded. To this extent the agent had the power to waive the performance of the condition. It is said that Holmes was the agent of both parties, and, as he could not act for both, the agreement was void. Holmes was agent for plaintiff only for the purpose of seeing that policies were kept in life by the companies in which they were originally taken ; when applications were made to new companies I understand it was done with the knowledge and consent of Hotch-kiss. If this was not the general rule, it certainly was done when insurance in defendant’s company was applied for. (May on Insurance, 609, 610.)

By the sixth condition of defendant’s policy, it is declared that the person or persons, other than the assured, who have procured the insurance to be taken by the company, shall be deemed to be the agent of the assured, and not of the company, in any transaction relating to this insurance. No one but the assured applied to defendant’s agent to insure the property of plaintiff. The application to the agent was in legal effect an application to the company. If the contract could be said to have been made by the agent with himself, acting as the agent for both parties, it would be void. Holmes, finding that a policy for $1,000 was worthless, and another for $3,000 was about to expire, proposed to Hotchkiss to transfer the risk to defendant’s company, and it was assented to. There can be no pretense that Holmes was making a contract as agent for the plaintiff.

In the policies issued by the International, Phoenix and Home of New York, there is a condition that the policies should become void in case repairs or additions were made, unless consent therefor was noted on the policies. One of these policies was issued in April, 1811; the other in December of that year. Repairs and alterations on the property were made from the season of 1868 until the 15th June, 1871, and they were not noted on the policy issued in April. The referee finds that the defendants’ agent knew of the additions and alterations as they were made on the property, and of the insurance effected thereon, and made no'objection thereto. If this knowledge is in law or in fact a waiver of the condition, then plaintiffs are entitled to recover; otherwise not. The condition as to alterations, etc., can apply only to the policy issued in April, as there were no repairs after the fifteenth June.

The power of a general agent to waive conditions in a policy of insurance, has been very much enlarged by the courts within the past few years; and it would seem that the power of the agent in this respect, is about coextensive with that of the company itself, (May on Ins., 145.) This author at page 155, says: “A general agent, there being no limitation of his authority, may even by an oral agreement extend the scope of a policy already issued, so as to make it cover property not embraced in it when issued, the' policy being an open one; so he may waive a condition making the validity of the policy dependent on the prepayment of the premiums; so he may waive a breach of the condition requiring notice of other insurance, by delivering a renewal receipt signed by the president and secretary, and accepting the premiums after knowledge of the breach though the receipt by its terms is not to be effected unless countersigned by the agent, and he may give credit for the renewal premiums or take a note therefor and bind the company by parol though he holds such receipt and waive a requirement that the policy to be valid must be countersigned by him.” In Bliss on Insurance, 467, it is said, an agent with powers to effect insurance, has full power to waive conditions and to correct an error in the policy after its issue. (Acey v. Fernie, 1 M. & W., 151.) Holmes commenced issuing policies to plaintiffs soon after they acquired title to the property, and he continued to do so until the fire. During all this time the plaintiffs were altering and repairing the building, and he knew it. If there is any case in which the conditions of the policy requiring notice of other insurance and consent to repairs can be waived by an agent so as to bind the company, it was done in this case.

The referee finds that the defense that the building was set on fire by the plaintiffs, or by their procurement, was not proved. To establish the defense, the defendants gave evidence tending to prove that, in the morning after the fire, tracks of a man’s boots were discovered coming from Warner’s house-to a point near the building that was'-destroyed. They could not be traced any nearer the building, because the heat had melted the snow. The tracks commenced at or near Warner’s gate. Tbe feet making tbe tracks toed in', as it is termed, and had on a pair of India rubber boots.

Boots of tbe same description, as to form of sole, size and shape, were found at Warner’s very soon after tbe fire, and witness, who bad compared tbe boots found with the tracks, testified that they corresponded precisely. Tracks similar in all respects were discovered passing from Warner’s bouse to tbe Air Cure, nearly parallel to those that extended from tbe Cure to Warner’s. Evidence was also given' of tbe declarations of Warner, that be was guilty of setting tbe fire, and expected to be arrested for it, and of his having employed one Lewis to procure for him another pair of rubber boots, and to remove tbe outer sole from those he bad been accustomed to wear. It was claimed on tbe trial, and is alleged in the- appellants’ points, that tbe Cure was not a paying institution, and that it was insured for more than it was worth, and that tbe owners had a direct, pecuniary interest in having tbe building destroyed. Besides these more important facts, there were proved divers others tending to criminate Warner;, but, in tbe view we take of tbe finding of tbe referee, it is unnecessary to refer to them more particularly. On tbe part of tbe .plaintiffs, evidence was given tending to.prove that Warner, for some time before tbe fire, bad been out of health, having been partially paralyzed in tbe left side. From that attack be walked lame. On tbe night of the fire, he was at home with his family; retired soon after nine o’clock; be slept in a room adjoining that in which bis wife slept; she beard him get up in tbe night about twelve o’clock, and his daughter got up at tbe same time; bis wife lay awake about one-half an hour, and she beard no other noise during tbe night. Tbe plaintiffs also proved that, in tbe morning after tbe fire, tracks of a man’s feet were discovered extending from tbe Cure in an opposite direction to those going to Warner’s, and that they appeared to have been made by a person running or walking fast. Had the evidence of tbe plaintiff’s family been out of tbe case, and tbe referee bad found that Warner set tbe building on fire, the finding could not probably be disturbed. With their evidence in and credited, tbe finding that tbe allegation that Warner set tbe fire is not proved, must be received as conclusive, and tbe judgment affirmed.

The referee saw and heard the witnesses; he is a learned and able lawyer, without interest or bias, as competent as any man can be to hear and determine the questions presented on the trial. If, therefore, there is any case in which the finding of a referee should be held conclusive, this is one. Warner was indicted and tried for setting the fire, and was acquitted. The referee in this case holds the charge against him not proved. Is there, under the circumstances, any probability that a different result would be reached, were a new trial to be granted, unless new and' more satisfactory evidence should be discovered ? The expenses of the litigation must be enormous, and, unless the plaintiffs are rich, it would be equivalent to a denial of justice, to impose upon them the expenses of another trial, unless we can see that, by the rulings and findings of the referee, injustice has been done to the defendants, to prevent which a new trial' is necessary, and that if the evidence on the part of the defendants which was rejected had been received, and that which was received against their objections had been rejected, a different result might be reached.

I am satisfied that the same result would have been reached if the rulings on the trial had all been in favor of the defendants.

The judgment in this and the other cases must be affirmed.

Judgments affirmed.


author: Smith, J.

text:
    GEORGE COLGROVE, Respondent, v. CHARLES TALLMAN, Impleaded, etc., Appellant.

      Dissolution of parrtm&rship —'right of one partner to compel creditor to sue the other, who has assumed payment of firm debts. .
    This action was brought by the plaintiff as payee of a promissory note made by the defendant under the firm name of H. E. Barnes So Co. After the making of the note the firm was dissolved, the defendant Barnes assuming the payment of all the debts; after the dissolution of the firm, the defendant Tallman wrote to the plaintiff, informing him of such dissolution and the sale of his interest to Barnes, and that Barnes had assumed to pay the debts of the firm, and requested him to proceed to collect the said note immediately. Upon the trial, Tallman proved that Barnes was solvent at the time he requested the creditor to proceed and collect the note; that he was within the jurisdiction of the court, and that the creditor without any reasonable excuse neglected and refused to proceed until the principal debtor became insolvent and unable to pay. Reid, that the plaintiff, by failing to proceed against the defendant Barnes, as requested, had discharged the defendant Tallman.

      Pain v. Packard (13 Johns., 174) and Zing v. Baldwin (17 Johns., 384) followed.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee.

      D. Pratt, for appellant. Ormes cfe Stevens, for respondent.
   Opinion by

Smith, J.

Present — Mullin, P. J., Smith and Gilbert, JJ.

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


author: Smith, J7

text:
    OWEN LINDSAY, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Accomplice — when testimony of, admitted — evidence to corroborate — duty of court as

    The Court of Oyer and Terminer may, in its discretion, receive the testimony of an accomplice upon the trial of a person accused of murder. {People v. Whipple, 9 Cow., 713.)
    In order to corroborate the testimony of an accomplice, the prosecution is entitled to give proof both of the facts and circumstances attending the commission of the crime, and also of such as relate to the person of the prisoner and connect him with the accomplice and the 'commission of the offense. (Wharton Or. Law, § 787 ; Boscoe’s Or. Law, 122; 1 Phillips’ Ev. [5th Am. ed.], 715.)
    Where evidence is given and received tending to prove a material fact, it is not the province of the court to strike it out or exclude it from the jury, on the ground that it is not decisive, or that its weight has been impaired or essentially destroyed on cross-examination or otherwise.
    A judge may, when evidence is objected to, and received under objection and exception, or provisionally, yield to the objection and strike it out; in which case ■ the exception falls to the ground. {People v. Parrish, 4 Denio, 156.) But where the evidence is received unconditionally and without objection, the judge has no such power, and it would be error to strike it out as against the party offering the evidence and injured by its exclusion. {Sail v. Earnest, 36 Barb., 591; Stephens v. People, 4 Park., 396.)
    Weit of error to the Court of Oyer and Terminer of Onondaga county, to review the conviction of the plaintiff in error of the crime of murder.

      O. B. Sedgwie/c and Frank Hiscock, for plaintiff in error. Wm. G. Ruger and Wm. James, for defendants in error.
   Opinion by

Smith, J7

Present — Mullen, P. J., Smith and Oilbeet, JJ.

Judgment affirmed.