text:
    HART Z. NORTON and ELDRIDGE D. NORTON, Respondents, v. CHRISTOPHER B. KEOGH, Appellant.

      Evidence — the rule excluding oral evidence, tending to vary the terms of a written agreement, does not apply to one who is a stranger to it.

    This action was brought to recover the amount due to the plaintiffs for labor and materials furnished by them, as plumbers, in erecting eighteen houses upon property belonging to the defendant. The plaintiffs commenced to work under a written agreement made between them and one Birdsall, who was to perform the work. Birdsall having died, after about one-third of the work was done, the defendant took charge of it and directed the plaintiffs to proceed with its performance.
    The defendant, in his answer, stated that he assumed Birdsall’s obligations and rights under the agreement, but that the quantity, style, finish, workmanship, quality and all other matters pertaining to the plumbing and gas-fitting were embodied in written specifications and plans which were submitted to and examined by the plaintiffs and formed the basis of the agreement with Birdsall.
    Upon the trial the defendant undertook to show the contents of these written specifications by the cross-examination of the plaintiffs, but was not permitted to do so upon the ground that as the specifications were not referred to in the written agreement, such evidence was inadmissible.

      Held, that the referee erred in so ruling.
    That as the defendant was a stranger to the agreement, the rule excluding oral evidence to add to, enlarge or restrict a written instrument did not apply.
    Appeal from a judgment in favor of the plaintiffs entered upon the report of a referee.

      W. T. Birdsall, for the appellant.

      A. M. da G. Card, for the respondents.
   Daniels, J.:

The judgment was recovered for the amount of the plaintiffs’ bill for labor and materials as plumbers, in eighteen houses erected upon the property of the defendant. They were not employed to do the plumbing by him or any person acting under his authority, but commenced the work under a written agreement made between them and Anson B. Birdsall, having it in charge, or being the person who was to perform it. He died after about one-third of the work had been done, and the defendant then took charge of it and directed the plaintiffs to proceed with its performance, which they afterwards did. By his answer it was stated that he assumed Birdsall’s obligations and rights under the agreement and became entitled to its benefits. But it was further stated in this part of the answer that the quantity, style, finish, workmanship, quality and all other matters pertaining to the plumbing and gas fitting, were embodied in written specifications and plans submitted to and examined by the plaintiffs and forming the basis of their agreement with Birdsall. And upon the trial of the action the defendent proposed, by the cross-examination of the plaintiffs, to prove these specifications. They were not referred to in the agreement itself, and when the proof was offered it was objected to by the plaintiffs “ for the reason that the paper speaks for itself and is embodied in a written instrument, and any conversation that took place prior to that time would not now be admissible. It is illegal and improper.” This Objection was sustained by the referee and an exception was taken to the ruling by the defendant. And questions which were put to the witness following this exception, designed to prove that there were specifications, were excluded by the referee. The witness did, however, state that he never saw the papers shown him that he knew of, but that was not sufficient to correct the errors in the preceding ruling if they were improperly made.

And that they were improperly made results from the authorities defining the rule, under which the referee excluded the evidence, for the defendant was not stated in the agreement to be a party to it; neither did it in any manner refer to him, but he was a stranger to the agreement, assuming its performance after the death of Birdsall, upon the understanding mentioned by him that it proceeded upon and followed the acceptance of the specifications. And if that were the fact he was entitled to show it by the evidence proposed to be given on the trial, for the rule excluding parol evidence to add to, enlarge or restrict a written instrument does not apply to a person who is a stranger to the agreement. (Overseers, etc., v. Overseers, 10 Johns., 229; McMaster v. President, etc., 55 N. Y., 223; Brown v. Thurber, 77 id., 613.)

It sustains the agreement, when reduced to writing and subscribed by the party, against the effect of such evidence when offered by him, or in favor of others standing in privity with him. But such was not the relation of the defendant to this agreement, for this term “ privity ” has been defined in law to include only mutual or successive relationships to the same rights of property. (1 Green. on Ev. [7th ed.], § 189.) And it was so considered and understood in the ease of Campbell v. Hall (16 N. Y., 575).

"What the defendant was entitled, under his answer, to prove was that he had adopted and assumed Birdsall’s agreement, so far as it had been made upon the basis of the written specifications proposed to be proved. And if he had made such proof, then the plaintiffs would be entitled to recover in the action only as their work was done in conformity to the specifications; and where they had failed in that respect, they might very well be liable, in damages, for their omission or defective work to the defendant.

The subsequent proceedings, upon the trial, were not such as to obviate the effect of the rulings made as to this proof by the referee; and because of these rulings, and others made concerning evidence received by him not free from difficulty, the judgment should be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., and Brady, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


source: Caselaw Access Project

author: Daniels, J.:

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. NICHOLAS HAUGHTON and JOHN J. MORRIS v. WILLIAM S. ANDREWS and JOHN VON GLAHN.

      Commissioners of excise in the city of New York — may he appointed hy the mayor without confirmation hy the hoard of aldermen— 1884, chap. 43.
    Under the authority confered upon the mayor of the city of New York by chapter 43 of 1884, which directs that “all appointments to office in the city of New York, now made hy the mayor and confirmed by the hoard of aider-men, shall hereafter he made hy the mayor without such confirmation,” the mayor is authorized to appoint commissioners of excise, and no confirmation of such appointment hy the hoard of aldermen is now required.
    Case submitted for tbe decision of tbe court upon an agreed statement of facts.

      A. J. Dittenhoefer and Elliott Sandford, for tbe plaintiffs.

      Charles W. Dayton, for tbe defendants.
   Daniels, J.:

Tbe relators, with another person, were appointed by the mayor and aldermen of the city of New York as commissioners of excise for a term of three years from the 1st of May, 1883, and until other commissioners should be appointed in their places. On the 1st of May, 1886, the mayor of the city of New- York appointed William S. Andrews a commissioner of excise for the city in place of Nicholas Houghton, and Charles H. Woodman in place of William P. Mitchell, and John Yon Glahn in place of John J. Morris. The relators deny the power of the Mayor himself to make these appointments. They were made by him under the authority of chapter 43 of the Laws of 1884, entitled “An act to center responsibility in the municipal government of the city of New York.” This act took effect on the 1st day of January, 1885, and, by its first section, it was directed that “all appointments to office in the city of New York, now made by the mayor and confirmed by the board of aldermen, shall hereafter be made by the mayor without such confirmation.”

That appointments to the offices of excise commissioners were, previous to the enactment of this law, made in the city of New York, lias not been denied by the plaintiffs. Neither can it be denied that such appointments were made by the mayor and confirmed by the board of aldermen; and that would seem to bring the offices strictly within the act, even though the counsel may be right in the position taken that they are officers appointed to execute State authority.

The law providing for this manner of appointment was enacted by chapter 175 of the Laws of 1870. This act, by its second section, provided for the appointment of commissioners in each of the cities of the State, except the cities of New York and Brooklyn, by the mayor of such city himself, but in the cities of New York and Brooklyn it was required that “ the mayor should nominate three good and responsible citizens to the board of aldermen of such cities, respectively, who should confirm or reject such nominations. In case of the rejection of such nominees, or any of them, the mayor (it was directed) shall nominate other persons as aforesaid, and shall continue so to nominate until the nominations shall be confirmed.” This enactment, was in the same form carried into and repeated in section 2 of chapter 145 of the Laws of 1879 ; and it was again, in the same language, re-enacted by section 109 of chapter 410 of the Laws of 1882, known as the consolidation act.”

Under each of these laws the commissioners of excise in the city of New York were required to be nominated by the mayor, and confirmed by the aldermen, to make their appointments legal or complete to these offices. The object of the first of these laws, as that was considered in Board of Excise v. Garlinghouse (45 N. Y., 249), was to make the commissioners of excise, when so appointed, boards of the city in which their appointments should be made. This was declared to be the effect of the enactment contained in the law of 1870, for there it was said that the principal purpose of the act seems to have been to change the excise boards from county boards to town, village and city boards so, that each locality would be assured of that personal knowledge, supervision and vigilence, deemed to be indispensable to the proper discharge of the important duties committed to their charge, in determining the proper persons to whom licenses should be granted, as well as the circumstances justifying the exercise of that power.” (Id., 251.)

But whether these laws had the effect of changing commissioners of excise, appointed in the cities, to city officers or not, it is unnecessary further to discuss or determine. For, under the statutes preceding the law of 1884, whatever may have been their official standing, they were required to be nominated by the mayor and confirmed by the board of aldermen, when the appointment should be made in the city of New York. And it was to change the tenure of office or .mode of appointment in this respect that the act of 1884 was'passed. And it was so enacted as to include all appointments to offices in the city of New York madfe by the mayor and confirmed by the aldermen. The appointments of commissioners of excise were such appointments to office, as in this statute in this manner has been mentioned. And. as it was made to include all such appointments as might previously be made by the mayor and confirmed by the board of aldermen, it necessarily included the offices of commissioners of excise. The mayor, accordingly, without the confirmation of the board of aldermen, was empowered by this act of 18S4 to.make the appointments for excise commissioner, which he did. And it follows that judgment should be directed for the defendants, without costs, upon the case submitted by the parties for the consideration and decision of the court.

Davis, P. J., and Bjradt, J., concurred.

Judgment ordered for the defendants, without costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK v. THE UNIVERSAL LIFE INSURANCE COMPANY. (SARAH F. BIRNBAUM, Appellant.)

      Receiver of insolvent insurance company — duty of, as to payment of unpreferred claims — no deduction for payments made before his appointment can be made.

    In proceedings instituted against the Universal Life Insurance Company, in Virginia, in 1878, the'appellants, who were residents of Virginia, having procured judgments against the company upon policies issued to them, received, on December 21,1880, a portion of the amounts due thereon under a decree of a Virginia court distributing the proceeds of securities which had been deposited in that State for the benefit of policyholders.. On December 17, 1881, the company was adjudged by tbe. courts of the State of New York to be insolvent, and a receiver was appointed, to wtom the policies owned by the appellants were presented, a dividend being claimed upon the balance remaining unpaid in the same proportion as should be paid on other demands against the company.

      Held, that it was error for the court to charge against and reduce the dividend payable upon such claim by the amount which had been paid upon these policies under the proceedings in the State of Virginia

      Hunt v. jKnickerbocker Life Insurance Company (101 N. Y., 636), distinguished.
    Under the statutes of this State, the receiver of an insolvent corporation is bound to apply the assets or their proceeds remaining in his hands, after the payment of debts entitled to a preference under the laws of the United States, and judgments, so far as they are liens upon the real estate of the corporation, equally among all its other creditors, as their demands existed at the time of his appointment.
    No authority has been given to a receiver, or to the courts regulating his proceedings, by which one class of creditors shall be wholly or partially excluded from their proportionate part of the assets of the company, by reason of previous payments made upon their debts before the appointment of the receiver.
    Appeal from an order overruling an exception to the report of a referee, and affirming his report.

      Raphael J. Moses, Jr., for the appellant.

      Charles J. Everett, for the receiver, respondent.
   Daniels, J.:

In this action a receiver was appointed on the 17th of December, 1881, of the property and effects of the defendant as an insolvent insurance corporation.

The appellants were insured by policies issued by the company in various amounts. They were residents of the State of Yirginia, and after similar proceedings had been previously instituted against the company in the State of Yirginia, they proceeded, as they were authorized to do by its laws, to appropriate, toward the payment of their policies, securities which had been deposited in that State for that purpose, and their proceedings resulted in the distribution of the fund under the control of the authorities of the State of Yirginia, between these parties on the 21st of December, 1880, about one year previous to the appointment of this receiver. An adjustment of the affairs of the company was made in such a manner as to result in the discontinuance of the proceedings taken previous to that time for a dissolution of the corporation and the settlement of its affairs, and the action in which the receiver was appointed was a distinct and independent proceeding from that, having been commenced after the company had again become insolvent. These policies were presented for allowance to the receiver, and a dividend claimed upon them in the same proportion as should be payable on other demands against the company. But the referee disallowed the claim-so far as to deduct from this proportion the amount which had been paid upon these policies under the proceedings in the State of Virginia, and the court affirmed his report so far as it in that manner qualified or reduced the claims of the applicants.

This ruling seems to liavé proceeded upon the decision made in the case of Hunt v. The Knickerbocker Life Insurance Company (101 N. Y., 636), where it was held by the General Term, and affirmed by the Court of Appeals, that the amount in that case obtained by the policyholder under similar proceedings in the State of Virginia, should be deducted from his proportionate amount of the other assets of the corporation. But in that case the proceedings in the State of Virginia, through which the money was l’ealized, were commenced and terminated, after the appointment of the receiver, and resulted in appropriating to the payment of the holder of the policy a part of the assets owned by the company at the time of his appointment, while here the securities, out of which the payments were made upon the Virginia policies, were no part of the assets of the company at the time of its second insolvency or when the receiver was appointed by the court. Before either of these events arose these securities had been disposed of, and the moneys had been applied upon the Virginia policies, and they remained as legal demands against the company for the residue of their amounts at the time the proceedings were instituted in which the receiver was appointed. At that time, consequently, the policies were legal and existing claims against the company for the amounts to which they had in this manner been reduced.

By section 1793 of the Code of Civil Procedure it has been declared that the final judgment for the dissolution of a corporation “must provide for a just and fair distribution of the property of the corporation, and of the proceeds thereof, among its fair and honest creditors, in the order and in the proportions prescribed by law, in ease of the voluntary dissolution of a corporation ”

When the judgment was obtained in this action the applicants were fair and honest creditors of the corporation for the amounts unpaid upon their respective policies, and by the statute to which reference has been made in this section of the Code, declaring the order in which the debts shall be paid, the receiver has been directed, after the payment of debts entitled to preference under the laws of the United States, and judgments against the corporation to the extent which they shall be liens upon its real estate, to pay “all other creditors of such corporation in proportion to their respective demands,” etc. (3 R. S. [7th ed.], 2401, § 79, sub. 3.) And by this direction it became the duty of the receiver to apply the assets or their proceeds remaining in his hands, after the payment of debts entitled to a preference under the laws of the United States, and judgments, so far as they were liens upon the real estate of the corporation, equally among all its other creditors as their demands existed at the time of his appointment.

The provisions of the statute are such as to place the assets of the company in the charge of the receiver for distribution in the manner specified by its directions, and no authority has been given to him, or to the courts regulating his proceedings,' by which one class of creditors shall be wholly or partially excluded from their proportionate parts of the assets of the company by reason of previous payments made upon their debts before the appointment of the receiver. Under these provisions, if the company had issued its obligations for a sum of money upon which, in the course of its business, it had made payments, and thereby reduced the amount of the indebtedness, the holder would surely be entitled to have the balance remaining'all owed as his debt against the company and to receive his proportionate part of the proceeds of the assets upon the balance. That would be the debt or demand existing against the company, both at the time of its insolvency, and at the time of the appointment of the receiver. But still it would be no more so than was the amounts of these respective policies after deducting what had been received upon them under the proceedings in the State of Virginia. After the amounts had been received the policies still remained demands against the company for the residue, and they were in that condition when the receiver was appointed and the assets of the company passed into his hands. And it follows, that in the distribution of such assets, there should be paid on the policies the same proportionate amounts as are payable upon all other simple contract debts existing against the corporation at the time of the receiver’s appointment. The object of the statute was to place creditors of the same class upon the like footing, entitled to have the assets or their proceeds applicable to their debts, distributed equally among them in proportion to their respective demands. Thése applicants were entitled to the application of this rule to ascertain the amounts they were respectively entitled to upon their policies, without deducting from these amounts what had been received in the proceedings against the company previous to its final insolvency and the appointment of the receiver of its property.

What the receiver obtained was the property of the company, subject to its debts as they were when he was appointed* and not as they were by transposing preceding dealings down to or subsequent' to the time of his appointment. As these policies were legal demands against the company for their balances remaining unpaid and unadjusted when the receiver was appointed, such balances were the demands against the company, and it was upon such demands that the law has provided payments shall be made in proportion to their respective amounts.

The order, therefore, from which the appeal has been taken should be reversed, and an order entered sustaining the exceptions taken to the referee’s report, and directing the allowance of the policies for the balances, for which they were valid claims against the company at the time the receiver was appointed, but, as the controversy presents a point not heretofore determined, it should be without costs.

Davis, P. J., and Brady, J., concurred.

Order reversed, without costs.


author: Barrett, J.:

text:
    In the Matter of the NEW YORK DISTRICT RAILWAY COMPANY, for the Appointment of Three Commissioners to Determine Whether its Railroad Ought to be Allowed to be Built, etc.

      When an underground railroad, is a street railroad within section 18 of article 3 of the Oonstitution — chapter 582 of 1880 is unconstitutional as violating this section.

    The petitioner, a corporation duly organized and incorporated under chapter 140 of 1850, to construct, maintain and operate a railroad for public use between certain points in the city of New York, having adopted plans which rendered it necessary to build said route underground, and to run the same by a tunnel underneath the streets, roads and public places of the city, and having made diligent efforts t.o obtain the consent of the owners of one-half in value of the properly bounded on the line of the streets, roads and public places through which it was proposed to construct such railroad, and being unable to obtain the consent of such property owners, applied to the General Term” of the Supreme Court to appoint three commissioners who should determine, after a hearing of all parties interested, whether such railroad ought to be allowed to be built underneath said streets, roads and public places, as provided in section 1 of chapter 582 of 1880.

      Held, that the underground railway, which the petitioner proposed to construct, was “a street railroad,” within the meaning of those words as used in section 18 of article 3 of the Constitution of the State, of New York, forbidding the passage of any law authorizing the construction and operation of a street railroad, except upon the condition that the consent of the owners of one-half in value of the property bounded on, and of the local authorities having the control of that port.ion of the street or highway upon which it is proposed to construct and operate it be first obtained, and providing that in case the consent of the property owners cannot be obtained then the determination of the commissioners, to be appointed as therein provided, shall be taken in lieu thereof.
    That so much of the first section of chapter 582 of 18S0, as provided that “the determination by said commissioners, confirmed by the court, may be taken in lieu of the consent of said authorities and property owners,” is unconstitutional and void.
    That the court could not sever the effect which the act gives to its confirmation of the commissioners decision, holding the confirmation effective as a substitute for the consent of the property owners and ineffective as a substitute for the consent of the city authorities.
    That the application for their appointment should, therefore, be denied, as legal machinery should not be set in motion to bring about a result forbidden by the organic law.

      Motion, on the part of the corporation above named, for the appointment of three commissioners to determine whether it should be allowed to build its railroad.
    The petition of the New York District Railway Company alleged that the petitioner was a corporation duly organized and incorporated under, pursuant to and in conformity with an act of the legislature of the State of New York, passed April 2, 1850, entitled “ An act to authorize the formation of railroad corporations and to regulate the same,” and'all the several acts of said legislature supplementary thereto and amendatory thereof; that it was so organized and incorporated to construct, maintain and operate a railroad for public use in the conveyance of persons and property, between certain points in the city of New York, to wit: Beginning on Broadway; * * * that according to the route and plans adopted by such petitioner for the building of its said railroad, it is necessary to build said road under ground, and to run the same by tunnel underneath the streets, roads and public places above named, and that said petitioner intends so to build the same, and at all times to keep the same in such condition as to make the surface of the ground above said road, and in, the neighborhood thereof, firm and safe for buildings and other erections thereon, and, in case surface excavations are made, that as soon as can be done, the surface shall be restored to its former condition, except so far as may be actually required for ventilation of the tunnel beneath the same or for access thereto; that under the provisions of the act of the legislature of the State of New York, passed .Tune 25, 1880, entitled “An act to provide for excavating and tunneling and bridging for transportation purposes within villages and cities of this State,” it is necessary that said petitioner, before building its said railroad, shall obtain the consent of the owners of one-half in value of the property bounded on the line and of the proper authorities having control of the streets, roads and public places aforesaid; or, in case such consent of the owners of property bounded on the line cannot be obtained, the General Term of this honorable court may, upon application, appoint three commissioners who shall determine, after a hearing of all parties interested, whether said petitioner’s said railroad ought to be allowed to be built underneath said streets, roads and public places, or any of them, and in what manner the same may be so built with the least damage to the surface and to the use of the surface by the public; and the determination by said commissioners,, confirmed by this honorable court, may be taken in lieu of-the consent of said authorities and property owners; that said petitioner has made diligent efforts to obtain such consent of owners as aforesaid, but has been unable to obtain, and has failed to obtain, such consent, and that such consent cannot be obtained because of the refusal of the owners of more than one-half in value of the property hounded on the main line of said petitioner’s said railroad" to consent thereto, as appears by the several affidavits * * * all hereto annexed and made part of this petition.
    Wherefore, said petitioner prayed that this court will appoint three commissioners to determine, after a hearing of all parties interested, whether said petitioner’s railroad ought to be allowed to be built underneath the streets, roads and public places aforesaid, or any of them, and in what manner the same may be so built with the least damage to the surface and to the use of the surface by the public; and further and after like hearing, and after duly considering and making allowance for all advantages to accrue to the city of New York from the complete readjustment and improved arrangement of all sewerage, water and other conduits, pipes and conductors, laid or to be laid underneath the streets, roads and public places aforesaid, and of. the means of access thereto, to report their conclusions as to what security, if any, should be given, and what compensation, if any, should be made to said city of New York by said petitioner, if allowed to build its said railroad, and as to when and in what manner such compensation, if any, .should be paid, and that said petitioner may have such other or further relief, or both, in the premises as may be just.

      Grosvenor P. Lowery and Charles Francis Stone, for the motion.

      Robert Sewell and Charles P. Daly, for the New York Arcade Railway Company.

      Thomas P. Wickes, for the city of New York.

      Horace Russell and Jabish Holmes, Jr., for Henry Hilton and other opposing property owners.

      Henry D. Sedgwielc, for the New York Underground Railway Company.

      O. Vandenbttrgh, for the Broadway Underground Connecting Railway Company, opposed.
   Barrett, J.:

The main question presented by this application is whether an underground railroad, such as that which the petitioner contemplates constructing under what is commonly called the tunneling act of 1880 (chap. 582), is a street railroad within the meaning of article 3, section 18 of the Constitution. If it is, then the petitioner concedes that that part of section 1 of the act of 1880, which substitutes the favorable determination of commissioners, when confirmed by the General Term, for the consent of both the local authorities and property owners, is unconstitutional; that is, unless the provision can be severed and the substitute confined to the consent of the property owners. If unconstitutional, the application, being within the exception suggested in the Thirty-fourth Street Case (102 N. Y., 343), should be denied, for certainly legal machinery should not be set in motion to bring about a result forbidden by the organic law.

The question has been very ably and exhaustively treated by the learned counsel for the petitioner, and I confess that his argument has induced me to subject my first impression to rigid analysis. After full consideration, however, I am satisfied that a broader view should be taken of the amendment of 1874 than is thus contended for, and that it was never intended to limit the wholesome provisions of article 3, section 18, to surface and elevated railroads. Underground railroads in cities are quite as gigantic enterprises, and involve as valuable franchises and as important public and private interests as any surface or elevated railroad. The mischiefs aimed at by the amendment apply with equal, and in some respects with greater force to underground railroads. The local authorities have a greater interest in the sewerage, water and gas systems beneath the surface than in anything upon the surface likely to be affected by a railroad. The property owners upon the line have also a deep interest in the protection of their vaults, the security of their buildings, the safety of the street surface and in the methods to be adopted for ventilating the tunnels. The latter question is especially important in a case where, as authorized by this act (sec. 1), surface openings are adopted and the ordinary street use is correspondingly limited. And why is not an underground railroad a street railroad within both the letter and the spirit of the Constitution ? The petitioner says because it is not within the popular conception of the term, nor within the conception of the term drawn from legislative or official action. But the popular conception of a street railroad, and the intention with which the amendment was framed and voted for, are entirely different things. The same rules of construction which are applicable to statutes govern in constitutional interpretation. The intent is to prevail over the literal meaning of words. The general purpose of the constitutional amendment, the evils which existed and the remedy which was sought, are all to be considered. (People ex rel. Jackson v. Potter, 47 N. Y., 375.) Now, it would be not only a narrow construction, but a very loose, uncertain and varying one, which would limit the phrase street railroad,” as embodied in this amendment, to what the petitioner terms “ the image responsive to the phrase,” which each voter must have had in his mind. The intention could not have been thus to impair the usefulness of the measure, nor to limit its beneficent operation by a literal definition of the term “street railroad.” It was, rather, within any fair view of the entire subject, to embrace every kind of street railroad, surface, elevated or underground, in the existence or non-existence of which the local authorities and the property owners might have an interest. It contemplated not only such structures and systems as had been or were then in existence, but such, also, as the future of science and enterprise might call into existence, however novel and however foreign to the present conception of the voter.

Looked at accurately and free from the confusion of popular phraseology, an underground railroad is not beneath the street. It is beneath the surface of the street, but it is upon the street. Any depression from the surface would be equally within the reasoning that a railroad which does not rest upon the surface is not a street railroad. Whether the cut be of six inches or of six feet, whether open or closed, whether tunneled bv the entire or partial retention of the surface as a vaulted ceiling, would only raise a question of degree.

It is true that in the illustration of an open cut there would be a loss to the people of the ordinary surface use, but the illustration serves when we are, in substance, asked to interpolate in the amendment, after the term street railroad, the words “resting on the surface of the street.” There is therefore nothing, in my judgment, in the argument from popular conception, which militates against the view that all structures making use of, or resting anywhere upon the street, from the surface downward, are within the constitutional provision.

But little light is thrown upon the question by the historical reference to which our attention has been called. If the solution depended upon the phraseology of past legislation, we should say that the references, which the industry of counsel has placed before us, about balance each other. But the present question is not eon eluded by phrases in legislative acts and official reports, any more than it is by popular images responsive to the term “ street railroad.” It is, indeed, of very little consequence whether the legislature, in speaking of street railroads, uses the words 11 in the street” or the words “upon the street.” We find the words “ in,” “ through,” “ along ” and “ upon ” running almost equivalently through past legislation.

It is also natural to find existing structures classified in particular language. But it by no means follows that it was intended to limit the operation of the amendment to structures covered by such classi fication. What is more important than these legislative definitions, as bearing upon the present question, is the course of legislative action with regard to the consent of the local authorities and the property owners. It was to fix these vital rights, sometimes conceded and sometimes denied, to place them beyond the power of legislative infringement that the people acted. It may safely be asserted that these were the “images” which the voters had in their minds, rather than any particular motive power or style-of railroad structure, or system of transportation. It was the great principle of restricting corporate aggression and expanding popular rights that was voted for and adopted. Limitation of the subjects upon which such great and wholesome principles were to operate would have been wholly inconsistent, under all the circumstances, with the declaration of the principles themselves.

The doctrine of legislative exposition is also invoked by the petitioner. . This is a doctrine peculiarly applicable to cases of doubt (which we do not find here), and one which should certainly not be expanded to the extent of practically clothing the legislature with judicial functions. Where the legislation is almost contemporaneous with the Constitutional provision, it is, of course, entitled to greater weight than an act passed, as was that under consideration five years later. Indeed, the only act which comes within the contemporaneous principle is the rapid transit act of 1875, and there underground roads, as well as elevated and surface roads, are treated as within the constitutional amendment in question. It is fair to assume that the legislature, when thus considering the great rapid transit scheme, with the amendment just adopted before it, required the same conditions to be performed by all railroads, whether above, upon or beneath the surface, because, in its judgment, the Constitution required all such railroads to be treated alike.

Having thus concluded that the act of 1880, in the particulars discussed, is unconstitutional, I do not think that the petitioner’s case is within the principle that when part of an act is constitutional and-part unconstitutional, that part which is valid should be upheld, provided it is separable from that which is invalid. This principle would enable the petitioner to proceed under the act up to the point where an application for the appointment of commissioners is essential. It may obtain the consent of the local authorities and of the requisite number of property owners. These provisions are valid and separable from what follows. But when an application for the appointment of commissioners becomes necessary, the petitioner must take the provision on that head as it is. The court cannot sever the effect which the act gives to the confirmation of the commissioners’ judgment. We cannot say that there shall be a constitutional effect when the act declares that there shall be an unconstitutional one. This question is not affected by the peti-' tioner’s present disclaimer. The act does not substitute the confirmation of the commissioners’ judgment for the consent, either of the local authorities or of the property owners, but for that of both. The court cannot be asked to produce this result merely because the petitioner protests .that it will not insist upon the unconstitutional half, especially as the petitioner by no means concedes the unconstitutionality of this half, but, on the contrary, in contending that its railroad is not a street railroad at all, within the amendment, necessarily assumes the position that the legislature was not constitutionally bound to require either the consent of the local authorities or of the property owners, or any judicial substitute for the latter. In other words, that as to underground railroads in cities, the people are as completely at the mercy of the legislature (except as to special legislation) as they were before the constitutional amendment was adopted. ' •

For these reasons I am of opinion that the application for the appointment of commissioners should be denied.

Beady, J., concurred.

Motion for the appointment of commissioners denied.


author: Brady, J.:

text:
    HUGH N. CAMP, as Temporary Administrator of the Estate of OWEN GEOGHEGAN, Deceased, Appellant, v. JEREMIAH A. HALLANAN, Respondent.

      Statute of limitations — when a judgment oftlte New York Marine Oourt is deemed to he a judgment of a court of record, although the court was not a court of record at ffie time of its entry.

    On December 6, 1868, a judgmeot was recovered against the defendant in tbis action in the Marine Court of the city of New York. At that time that court was not, except in a limited sense and for certain purposes, a court of record, but it was, by chapter 629 of 1872, made a court of record to and for all intents and purposes.

      Held, that the judgment was that of a court of record, which would not be presumed to have been paid until after the expiration of twenty years from the time of its recovery.
    Appeal from an order, made at a Special Term, denying a motion for a temporary injunction.

      2J. J. Waterbury, Jr., for the appellant.

      Henry F. lippold, for the respondent.
   Brady, J.:

The object of this action was-to prevent the enforcement of a judgment, existing unsatisfied against the defendant, upon the ground that it liad lost all vitality under the statute of limitations. It was recovered in the Marine Court of this city, which, at the time (December 6, 1868), was not a court of record, except in a limited sense and for certain purposes ; but in 1872, by chapter 629 of the Laws of that year, it was made a court of record, to and for all intents and purposes, and its jurisdiction enlarged.

It is conceded that when the judgment was perfected, under the Code then prevailing, the period limited for the commencement of an action upon it was twenty years (Code of Pro., § 90; Conger v. Vandewater, 1 Abb. [N. S.], 126; Delavan v. Florence, 9 Abb., 277, note); but it is supposed by the appellant that the Code of Civil Procedure, adopted in 1876, by section 382 supplanted section 90 of the old Code and shortened the period of twenty to six years.

The Marine Court, as we, have seen, had at that time been declared to be a court of record to and for all intents and purposes, and section 382, ¡.subdivision 7, must therefore be considered with reference to any and all provisions in the Code bearing upon that subject. The provision of section 382, so far as it applies to this case, is that an action must be commenced within six years “ upon a judgment or decree rendered in a court not a court of record.” But this must be taken in conjunction with section 2 of the same Code as suggested and in which the Marine Court is enumerated as one of the courts of record of the State. And thus the period of limitation within which the judgments of that court lived, for the purposes of an action was continued and preserved by express terms, the same as before its passage.

There can be no doubt of the right of the legislature thus to declare the law. (Acker v. Acker, 81 N. Y., 143.) This question, it should be observed, is not effected in any way, therefore, by the omission in the statute of 1872 (supra) of language showing an intention to give it a retroactive effect, or of express words constituting the Marine Court a court of record as to judgments then existing, inasmuch as the Code of 1876 was passed when the court was not only a court of record but recognized as such therein, and the legislature had the right to change or continue the statute of limitations, relating to it if necessary or expedient. Such a procedure affects the remedy but does not impair the obligation of contracts. (Acker v. Acker, supra.)

This question has been passed upon by the General Term of the Marine Court, and a similar conclusion expressed by Mo Adam, J., We are not’advised of the views entertained by the learned justice presiding in the court below, but we assume that he arrived at the same result from the same mode of reasoning.

We think the order appealed from should be affirmed, with ten dollars costs and disbursements.

Davis, P. J., and Daniels, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Bkady, J.:

text:
    PHINNEY AYRES and SAMUEL E. AYRES, Appellants, v. SARAH J. DOYING, Respondent.

      Diversion of a promissory note from the me to which it was to have been applied — when that fact may be set up by the maker as a defense to an action brought by a transferee of the note, receiving the same as collateral to a pre-existing indebtedness.

    In this action brought upou a promissory uote givea by the defendant to one John D. Taylor, and transferred to the plaintiffs before maturity, the defendant set up, as a separate defense, that Taylor being indebted to one Shaw in the sum of $150 for services rendered, in obtaining the contract for the doing of the work which furnished the consideration of the note, applied to the defendant before the last payment was due for notes amounting to $250; that the defendant had agreed to satisfy and pay the claim of Shaw out of the proceeds of the last payment, and she refured to give the notes; that then Taylor promised that if two notes,,one for $100 and the other for $150 were given, he would deliver the $150 note to Shaw in payment; that thereupon the $150 note was made and delivered ; that Taylor diverted this $150 note from the purpose for which it was made; that no consideration or value was given for the note by the plaintiffs, who received the same as collateral and in consideration of an antecedent indebtedness of Taylor to them.

      Held, that the facts so set up established a defense, and that a demurrer interposed thereto by the plaintiffs was properly overruled.
    Appeal from a judgment overruling a demurrer interposed to the second defense set up in the defendant’s answer.

      James B. Lockwood, for the appellants.

      John G. Shaw, for the respondent.
   Bkady, J.:

This action was predicated of a promissory note given by the defendant to one John D. Taylor and transferred before maturity, for a valuable consideration.

It is alleged in the complaint that the defendant gave the note to John D. Taylor in payment for work and labor performed and materials furnished by him to her, and which allegation is admitted.

The defendant, however, for a separate defense, set up that Taylor was indebted to John C. Shaw in the sum of $150 for services rendered in obtaining for him the contract for the work done, and which sum was to be paid out of the last payment for the work performed and materials furnished and supplied by Taylor at the request of and upon the houses belonging to the defendant; and that thereafter, and before the last payment became due, which was to be made to Taylor under the contract, he applied to the defendant for notes aggregating the sum of $250; that the defendant refused to give him the notes, as she had agreed, in consideration Of his promise, to satisfy and pay the claim of Shaw out of the proceeds of the last payment, and that thereupon Taylor promised that, if the notes were made out and divided in amounts, that is, one for $150, he would deliver it to Shaw in payment, and that thereupon and upon his express agreement that the note of $150 would be delivered to Shaw in payment of his claim against Taylor, the defendant made and delivered the note for that amount mentioned in the complaint; that Taylor unlawfully and wrongfully failed to deliver that note to Shaw, but diverted the same from the purpose for which it was made and delivered, and finally, the defendant, upon information and belief, charged that .no consideration or value was given for the note by the plaintiffs, who received .the same as collateral and in consideration of an antecedent indebtedness of Taylor to them.

The learned justice in the court below held the defense set up a good one and in this view we concur. In the case of the Grocers' Bank v. Penfield (69 N. Y., 502) it was held after a full examination of the authorities, it is true, that where a promissory note was made for the accommodation of the payee, but without restriction as to its use, an indorsee taking it as collateral security for the antecedent debt of the indorser, without other consideration, but in good faith and before dishonor, occupied the position of a holder for value. But, at the same time, the court declared it to be undoubtedly the rule, that where the note was diverted from the purpose for which it was entrusted to the payee and some other equity existed in favor of the maker, it was necessary that the holder should have parted with value on the faith of the note in order to cut off the equity. (See Pool v. Watson, 50 Supr. Ct., 53 ; Continental National Bank v. Townsend, 87 N. Y., 8, 10.)

The rule, applicable to the defense set up herein by the defendant, is well stated in Tinsdale v. Murray (9 Daly, 449), in which it is said that it was always competent for the maker to fix the condition upon which the note shall be transferred, and to prohibit its transfer unless that condition be complied with; and further, that one who takes a note, the use of which is restricted, as collateral security for an antecedent debt, cannot recover upon it.

The learned counsel for the plaintiffs thinks that whatever happened between Shaw and Taylor is res inter alios aota and did not concern the defendant, and that there was no obligation on her part to pay Shaw anything; and the case of Wheeler v. Allen (59 How., 118) is cited as demonstrating the instability of the defense which has just been considered. But in that case, although it was held that if an indorser had no interest in the way in which the proceeds of a note were to be used, it was no defense to him that he was told the note was to be discounted at a bank, though it was in fact the intention of the maker, whom lie accommodated, to use the note to pay an antecedent debt, and though the note be so used. It was nevertheless said that there was nothing in the case to show a misappropriation of the note.

Assuming the doctrines of that case to be perfectly well settled, it has no application to the facts developed. If the defendant chose, as she has done, to protect a creditor of her contractor, and he assented to the arrangement by which such protection was accomplished, the agreement between them is controlling, and any departure from it must be governed by the rules of law which may be invoked under the circumstances. She had a perfect right to say: I will give you a note for a hundred and fifty dollars, but it is upon the express understanding that it shall be delivered to one of your creditors, whose claim grew out of the contract between you and me.” Of course, he might have declined to accept a note under the circnmstances, and to have prosecuted his claim, if he had one, against her. But having submitted to the condition imposed, it is binding upon him and upon his creditor, who accepted a note thus restricted and diverted only as collateral to and in settlement of an antecedent debt.

For these reasons the judgment should be affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


text:
    MARY MACKAY GREENWOOD, Plaintiff, v. EDMUND F. HOLBROOK and FREDERICK W. FOOTE, Executors of WILLIAM W. WRIGHT, Deceased, and Others, Defendants.

      Construction of an agreement — when the words “legal representatives ” means executors and, administrator's, and, not next of Tan.

    John Greenwood died in May, 1865, having by his will devised substantially all his estate to his widow during her life, with remainder to his four children on her death; opposition was made to the probate of the will, which was abandoned upon the widow’s entering into an agreement by which she was to pay, duringherlife, one-eighth of the net income to each of the four children, and in case of the death of either of said children during her life, she was to pay the one-eighth part of said income, so “ agreed to be paid to the child so dying, to his or Tier legal representatives,” so long as the said covenants and agreements should be observed and performed.
    One of the daughters died childless in 1880. leaving a will by which she gave all her estate to her husband, stating therein that she intended to include all interests acquired and to be acquired by her from the estate of her father. The husband died in 1884, leaving a will, of which the defendants, Holbrook and Foote, were appointed executors.

      Held, that the words “legal representatives” meant executors and administrators, and not next of kin, and that the one eighth of the income, to which the daughter so dying was entitled, should be paid to the executors of the husband, and not to the brothers and sisters, or their issue, of the daughter so dying.

      Appeal from a judgment, entered upon the trial of this action at a Special Term.
    The action was to obtain a construction of certain portions of an agreement made between the plaintiff, the widow of one Isaac John Greenwood, and his children.

      Stephen P. Nash, for Holbrook and Foote, defendants, appellants.

      C. A. Rand, for Isaac J. Greenwood, defendant, respondent.
   Brady, J.:

It appears from the record in this case that John Greenwood died May 14, 1865, leaving a widow, the plaintiff, and four children. By his will he substantially devised all his estate to his widow during life or widowhood, his children, under the will, taking the estate given them subject to this life estate. Opposition to the probate of the will having been made, an agreement was entered into, by which it was to be abandoned upon the widow’s paying one-half of the net income to the children during her life, that is, one-eighth to each of the four children. Eliza Jane Wright, one of the children, died childless on the 18th of April, 1880, leaving a will by which she devised and bequeathed to her husband all her estate. The will contained the following clause : “ And I intend to include in this devise and bequest all interests acquired, and to be acquired by me from the estate of my late father.” Her husband died in 1884, leaving a will by which the defendants, Holbrook and Foote, were made executors, and who claimed that their testator, under the will of his wife, and the agreement already mentioned, acquired the right to one-eighth of the income of the estate for the rest of the life or widowhood of the plaintiff. The learned court below sustained this claim. The appellants, however, insist that after the death of Mrs. Wright the interest acquired by the agreement went to her next of kin. The clause of the agreement upon which the controversy herein arises is as follows : “ And it is hereby further agreed that in case of the death of either of the said four children, during the .widowhood of the said party of the first part, she will pay the one-eighth part of said income hereby agreed to be paid to the child so dying, to his or her legal representatives, so long as the said covenants and agreements shall be observed, performed and fulfilled as above mentioned.”

The learned justice in the court below thought that the.phrase legal representatives contained in the clause means executors or administrators, that being the ordinary signification of the term where reference was made to personal estate only, and he said that a careful consideration of the circumstances under which the agreement was made had led him to the conclusion that the words in question were meant to have the ordinary meaning.

The agreement, as conceded by the learned counsel for the appellant, was equivalent to an assignment to each of the children of one-eighth of the life estate which could have been disposed of by the owner and would, of course, pass under her will. It was, as he correctly observes, a vested interest pour autre vie ; but while the respondent contends that the clause embracing the words “ his or her legal representatives ” was inserted for more abundant caution to confirm this view, he insists, on behalf of his client, that the effect of it was to limit the interest granted by providing what should become of it if either of the children should die before their mother, in which case she.agreed to pay the income, not to the executor or administrator, which would have been the proper phrase to use if it had been intended to confirm and carry out the view just suggested, but to “his or her legal representatives,” that is, to his or her brothers and sisters, or their issue and next of kin. And the learned counsel proceeds in his brief to cite a number of cases in which the. words “legal representatives” were held to mean next of kin. Assuming that what these words mean must be determined by the mode and connection in which they are used, the mode and connection in which they are used in this case makes it apparent that the interest being an absolute undertaking to pay a certain sum, thus creating an absolute right to receive and transfer it, authorized and legalized the disposition of it by will to any person or persons whom the testator thought proper to name; and this- absolute right cannot be interfered with by any interpretation hostile to that view. Where the object and design of an agreement, as understood by both parties, is to change the ordinary signification of a phrase, there should be something in the instrument itself, if there exists no proof which could be given aliunde, to show such object and design. From the will of Mrs. Wright, however, it conclusively appears that she regarded the agreement as one conferring upon her an absolute right to receive one-eighth of the income, and the right of disposition in any manner that she thought proper, regarding it as part of her father’s estate, to which, though she was not entitled by the express clauses of the will, she acquired title by compromise and was thus enjoying and disposing of her own property.

For these reasons, without any extended examination of the cases bearing upon the subject .which may be regarded as somewhat numerous and might lead to confusion, it is thought that the learned judge in the court below was right, and that the judgment should be affirmed.

Daniels and Churchill, JJ., concurred.

Judgment affirmed.


author: Brady,; J.:

text:
    NICHOLAS KILROY, Appellant, v. WILMER S. WOOD, Individually and with Others, Trustees Under Will of SILAS WOOD, Deceased, Respondents.

      Action to reach the surplus income of a trust fund — the habits and ability of the cestui que trust are to be considered in determining the amount to be allowed to him for his maintenance — the plaintiff must prove that there is a surplus.

    Where a judgment creditor seeks to compel so much of the income of a ■ cestui que trust, as exceeds what is necessary for his suitable support and maintenance, to he applied to the payment of his debt, the court in determining what is a proper amount to be allowed for the expenditures of the cestui que trust, will consider the manner in which he has been brought up, the habits acquired by him, and his ability to take care of his property.
    To entitle the plaintiff to succeed in such an action he must prove that there is a surplus of income, and where he fails so to do his complaint will be dismissed.
    Appeal from a judgment at a Special Term, dismissing tbe complaint upon the merits.

      P. (& D. Mitchell, for the appellant.

      F. B. Candler and M. L. Erlanger, for the respondents.
   Brady,; J.:

This action was commenced for the purpose of reaching certain alleged accumulations of income, constituting a surplus over and above the amount which should be allowed to the beneficiary, "Wilmer S. Wood, for his necessaiy expenditures. He was the beneficiary under a clause in the will of his father, which provided for the appropriation of a part of the income of his estate, without the power of anticipation of any surplus of income until he should attain full age, when the trustees were authorized to advance such accumulations or to keep them invested or give them to him from time to time, as they thought best.

The evidence establishes that the beneficiary is in receipt of a handsome income, which the learned justice in the court below thought was not more than sufficient to support him in the manner in which he had been accustomed to live, and was not beyond what his father intended to provide for him.

It has been held, in a series of cases, that a judgment creditor is entitled to the appropriation of the income beyond what is necessary for the suitable support and maintenance of the cestui que trust and those dependent upon him. (Code Civil Pro., §§ 1871 to 1879; Williams v. Thorn, 70 N. Y., 270; Graff v. Bonnett, 31 id., 9; Craig v. Hone, 2 Edw. Ch., 376 and 554; Tolles v. Wood, 99 N. Y., 616; Sillick v. Mason, 2 Barb. Ch., 79.) And in determining what is a proper amount to be allowed for his expenditures, it seems to be regarded as proper to consider the manner in which he has been brought up, the habits acquired by him, and his ability to take care of his property. It was said in the case of Sillick v. Mason (supra): It certainly was the misfortune of the defendant that he was brought up in idleness, under the idea that he was to inherit a large estate, and that it was unnecessary that he should acquire any business habits, so as to fit him to acquire property or to enable him to take care of it if given to him by others.” And in the same case the chancellor, after determining the amount which should be allowed the beneficiary, skid: “And they should not, upon a fair construction of the statute on this subject, be permitted to indulge in extravagant expenditures whilst the defendants’ creditors remained unpaid.”

The same observation applies in this case. But the difficulty in disturbing the judgment arises from the fact that there is not sufficient evidence to show, indeed it may be said that there is no evidence on the part of the plaintiff tending to show, what would be a proper amount to allow the beneficiary for his support. He is, as claimed in the defendants’ points, a gentleman of high social standing, whose associations are chiefly with men of leisure, and is connected with a number of clubs, with the usages and customs of which he seems to be in harmony both in practice and expenditure, and it is insisted on his behalf that his income is not more than sufficient to maintain his position according to his education, habits and associations. And this may be so, yet it would seem that evidence might have been adduced which would establish his ab'lity to live upon a smaller sum than the whole income, and thus relieve himself from the burden of a debt which seems to have been justly contracted. But the evidence is wholly insufficient on this subject on behalf ot the plaintiff. ' *

In the case of Sillick v. Mason (supra), a reference was made to a master to ascertain and report what would be a reasonable amount of the income for the support of the defendant and his family.

It was the duty of the -plaintiff to show, in order to succeed, that there was a surplus of income, and which, as already suggested, he has failed to do.

An examination has been made of the exceptions presented upon the record, and it has been found that none of them is sufficient to chahge the result which must be declared, the inherent difficulcy in the plaintiff’s case being, as already suggested, the failure to show, by proper and sufficient evidence, that there was a surplus of income.

For these reasons the judgment must be affirmed.

Davis, P. J\, concurred.

Judgment affirmed.


text:
    JOHN I. TILTON, Appellant, v. SUSAN M. VAIL and Others, Respondents.

      Action for pm'tition — a tenant by the curtesy, of an undivided, sha/re, may maintain it— Code of Civil Procedure, sec. 1582.
    , In January, 1871, one Vail died seized of certain real estate, leaving him surviving his widow, a son and two daughters. In December, 1881, one of the daughters intermarried with the plaintiff. On June 80, 1884, she gave ■birth to a male child, who lived only for a day, and on July eighth she died intestate, leaving her mother, sister, brother and the plaintiff her surviving.

      Held, that the real estate was held by the plaintiff and the widow and surviving children of Vail as tenants in common, and that the plaintiff was entitled to maintain an action for the partition of the property under the provisions of section 1533 of the Code of Civil Procedure.
    Appeal from an order denying a motion for a reference to take proof of title.

      William O. Beecher, for the appellant.

      Alexander' Thain, for the respondents.
   Brady, J.:

This action was brought for the partition of real estate situate in this city. Joshua R. Vail died seized of the premises in January, 1871, leaving him surviving his widow, Susan M. Vail, his som John R. Vail, and his daughters, Adelina M. Vail and Lilla B. Vail. Lilia, on the loth of December, 1881, intermarried with the plaintiff. On the 30th of June, 1884, she gave birth to a male child, who lived only for a day, and she died, upon the eighth of Jnly following, intestate, leaving her mother, sister, brother and the plaintiff surviving.

The complaint avers that the plaintiff and defendant are tenants in common in possession, which is admitted, and it is also admitted that the former is entitled to an estate in the premises as tenant by the curtesy in the undivided one-third part which his wife, Lilia B. Tilton, took, subject to the dower right of the defendant, Susan M. Vail, and incumbrances, if any. But the defendants by answer, although admitting the facts which have been stated, still, upon information and belief, claim that the plaintiff has no such interest in the premises as entitles him to maintain the action. And this view was sustained by the learned justice to whom application was made for an order of reference to take proof of title, and who denied it upon the ground that the plaintiff could not maintain the action, and which is stated without elaboration by the learned justice

Prior to the enactment of the Code of Procedure it was declared in a series of cases that a tenant by the curtesy could maintain an action for partition. (Riker v. Darke, 4 Edw. Ch., 668; Sears v. Hyer, 1 Paige, 483, 486; Freeman on Cotenancy and Partition, § 456; 5 Wait’s Prac., 30.) The Code, by section- 1532, provides that: “ Where two or more persons hold and are in possession of real property, as joint tenants or as tenants in common, in which either of them has an estate of inheritance or for life or for years, any one or more of them may maintain an action for the partition of the property, according to the respective rights of the persons interested therein.” And the proposition is at once suggested that if the plaintiff is a t-enant in common in possession, he is within the purview of this statute.

Tenants in common are such as hold by several and distinct titles, but by unity of possession, and, therefore, one may hold his part in fee simple and the other in tail or for life. There is no necessity for unity of interest. (Chase’s Blackstone, 368.) Or, to express it differently, tenants in common are such as have a unity of possession, but a distinct and several title to their shares. (Williams on Real Property, 136.) To the same effect see McCall on Real Property. (P. 133, § 21).

The plaintiff,8in consequence of his life estate, being a tenant in common, and in possession in common with others, of the premises of which partition is sought under the section just referred to, seems to have an undoubted right to maintain the action. There are other sections of the Code which may be said to bear upon this subject, but it is not necessary to consider them, inasmuch as it might lead to confusion. The section referred to is broad and comprehensive, and seems to be unanswerable.

For these reasons the order appealed from must be reversed, with ten dollars costs and disbursements to abide the event.

Davis, P. -J., and Daniels, J., concurred in the result.

Order reversed, with ten dollars costs and disbursements to abide event.


text:
    WILLIAM H. M. SANGER, Respondent, v. JAMES M. SEYMOUR and Others, Appellants.

      Inspection of hooks and papers — an order compelling their production will not he granted unless it is needed to enable the pa/rty to present his own case.

    This action, brought to recover the amount found to be due to the plaintiff from the defendants on a settlement of the accounts of the parties, was defended upon the ground that the settlement was obtained by fraud, duress and coercion, and the defendants asked that it be set aside.
    Upon an appeal from an order granting an application made by the plaintiff for a discovery and inspection of certain books and papers, the defendants claimed that the only question to be tried was whether the defendants gave up certain securities and signed the agreement through fear, duress and fraud practiced on the part of the plaintiff.

      Held, that as an examination of the pleading, taken in connection with the declaration of the defendants’ counsel, made in open court upon the submission of the appeal herein, showed that the plaintiff’s claim was proved prima facie, and that as it was not necessary for the presentation of his case in the first instance that the plaintiff should be permitted to make any examination, the order should be reversed.
    Appeal from an order directing an inspection of the defendants’ books of accoimts.

      Joseph H. Choate, for the appellants.

      B. F. Watson, for the respondent.
   Brady, J.:

The- parties to this action, having had a variety of transactions involving loans and purchases and sales of stock, finally and on the 26th of March, 1885, as alleged by the plaintiff, settled their accounts, and by mutual agreement in writing; the defendants yielding certain securities to the plaintiff and conceding that they were indebted to the plaintiff in the sum of $7,500. The facts are very much involved and are somewhat striking in character. For the purposes of this appeal, however, it is not necessary to refer to them in detail.

The defense is that the settlement, at the time mentioned, which resulted in an agreement creating the indebtedness already stated, was obtained by fraud, duress and coercion, and the defendants asked that it be set aside.

The plaintiff applied for a discovery and inspection of certain books and papers, which was granted, and hence this appeal. The defendants take the broad ground in opposition that the sole issue here is whether the plaintiff’s case is a blackmailing scheme or not, and that the question to be tried, therefore, is whether the defendants gave up the securities and signed the agreement mentioned through fear, duress and fraud practiced on the part of the plaintiff.

It is not necessary, therefore, in order to establish the plaintiff’s case, that there should be any inspection of the books and papers. This concession on the part of the defendants settles all controversy about it, inasmuch as it is thus admitted that if it be not established that the agreement was obtained by fear, duress and fraud, judgment for the plaintiff must follow. The only object, under such circumstances, which can be contemplated by the plaintiff in seeking a discovery, is to prepare to meet the defense stated, and which may or may not be proved absolutely or apparently. From the facts and circumstances spread upon the record it would appear to be impossible for the defendants to maintain their defense, without going into proof of the transactions which characterized the dealings with the plaintiff, and involving, to a certain extent at least, the books used by the defendants in conducting their business, and which, if such a necessity should exist, would expose them to the examination of the plaintiff as well.

It is not usual to direct a discovery and inspection of books and papers in anticipation of a defense and with a view to prepare to meet it. The rule,, as generally stated, is that the objects to be inspected must relate to the maintenance of the position taken by the applicant and not that of the opposite party. (Andrews v. Townshend, 14 Weekly Dig., 243.) And again, that a discovery will not be granted unless the court is satisfied that the discovery is pertinent and material to the claim or defense of the party seeking the remedy. (2 Wait’s Pr., 531, and cases cited.) And, consequently, where the plaintiff moved for an inspection of the defendants’ books, to show payment or non-payment of a debt, it was held that the defense of paynaent is a fact to be shown by the defendant, and not by the party applying for the inspection. (Cutter v. Poole, 54 How., 311.)

The result of an examination of the pleadings, taken in connection with the declarations made in open court upon the submission of the appeal herein, is that the plaintiff’s claim is proved prima facie, and that the defendants have the affirmative of the issue of fraud. In other words, they admit that the agreement alleged was made in March, 1885, as already indicated, and that they are liable under it unless they can show that it was obtained by fear, duress, coercion and fraud, and for which they assail it. It is not necessary, therefore, for the plaintiff’s presentation of his case in the first instance, to make any examination of the books and papers in the defendant’s possession, inasmuch as the claim is admitted and can only be destroyed by the affirmative defense set up. If that fail, he is entitled to judgment. And it seems to be quite evident that if the defendants should establish the defense by proof of the acts charged, and the books and papers were not necessarily involved in it, they could be obtained by a subpoena dttces tecum. And when that can be accomplished, it is not usual, and will not, except in extreme cases, be so ordered, to require the party to make the discovery and inspection sought.

For these reasons, the order appealed from should be reversea.

Davis, P. J., and Daniels, J., concurred.

Order reversed.


text:
    JULIUS FORSTMAN, Plaintiff, v. RUTH A. SCHULTING, Executor, etc., Defendant.

      Practice — enforcement of a direction in an order requiring costs or money to be paid to any person — the remedy is by execution and not by attachment — Oode of Oiml Procedure, sec. 779.
    The defendant’s attorney having refused to pay over money received by him as the costs of opposing a motion for a new trial, after he had been duly served with a copy of an order of an appellate court, deciding that the costs should not have been allowed to him, and ordering him to pay the money to the plaintiff or his attorney, a motion was made that an attachment issue against him, to punish him for his failure to comply -with the order.

      Held, that the plaintiff had mistaken his remedy; that he should have proceeded, under section 779 of the Oode of Civil Procedure, which provides that, if any sum of money, directed by an order to be paid, is not paid within the time fixed for that purnose by the order; or, if no time is so fixed, within ten days after the service of a copy of the order, an. execution against the personal property only of the party required to pay over the money may be-issued by any party or person to whom the money-is made payable by the order.
    Motion for an attachment, to issii'e against the defendant’s attorney, because of his refusal to pay over to the plaintiff or his attorney certain costs received by him, as required by an order of the court.

      William Watson, for the plaintiff.

      O. Bainbridge Smith, for the defendant.
   Daniels, J.:

The application's made on behalf of the plaintiff to' punish the defendant’s attorney for refusing to pay over money received by him as the costs of opposing a motion for a new trial, which, it was held, by a modification of the order on appeal, should not have been allowed and the attorney has been ordered to pay over to the plaintiff, or his attorney, the amount of costs so received by him, which was ascertained and declared in the order. He has failed to make such payment after the service of a copy of the order upon him, the original, certified by the clerk, being at the same time exhibited, and for that failure it is insisted, on behalf of the plaintiff, that he may be punished for a contempt.

' That the order was right directing the restitution of the money so received, follows from section 1323 of the Code of Civil Procedure, for that has prescribed where an order is modified upon appeal, the appellate court or General Term of the same court, as the case may be, may make or compel restitution of property, or of a right lost by means of the erroneous order, and the plaintiff was so deprived of the amount directed to be paid by the order in consequence of an erroneous determination as to the amount of costs which the defendant’s attorney was entitled to receive upon the denial of the motion for the new trial. But while the plaintiff is entitled to this restitution, it has not been provided that the attorney or party failing to make it shall be punished for such failure, by way of proceedings for a contempt. It has been provided, on the contrary, by section 16 of the Code, that-a party shall not be arrested or imprisoned for disobedience to a judgment or order requiring the payment of money diie upon a contract, express or implied, except where it is otherwise specially prescribed by law. There is no special provision of law subjecting a party or an attorney to arrest or imprisonment for the non-payment of money under these circumstances, and, as the obligation to pay is one that is derived by implication of law, it is upon a contract, and this provision forbids the imprisonment of the party in default. Where money has been received under an. erroneous decision, as this was, and that decision has been reversed, the party receiving it is equitably bound to refund it, and* the law will imply a promise on his part to pay it over, as it will ordinarily, in cases where one person receives money belonging to,, or for the use of another. The remedy for the case has been provided by section 779 of the Code, which declares, where costs of a motion, or any other sum of money, directed by an order to be paid, are not paid within the time fixed for that purpose by the order, or, if no time is so fixed, within ten days after the service of a copy of the order, an execution against the personal property only of the party required to pay over, may be issued by any party or person to whom the costs or sum of money is made payable by the order. This section plainly includes the application now before the court, and has prescribed the remedy which must be followed for the recovery of the money, and that is by issuing an execution against the personal property of the party required to make the payment.

The motion which has now been made must, therefore, be denied but, as the case, has been presented is new, it should be without costs.

Brady, J., concurred.

Motion denied, without costs.


author: Davis, P. J,;

text:
    BERNARD REILLY, late Sheriff, Respondent, v. RUFUS DODGE and Others, Appellants.

      Bond of a deputy sheriff for the faithful discharge of his duties — the sureties thereon are bound only for acts done after Us delivery — the presumption of its delivery upon the day of its date is destroyed by proof of the time of its actual delivery.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The appellant Dodge was a deputy sheriff under the respondent. He had given a‘bond for the faithful discharge of his duties to the sheriff, but one of the sureties in the bond refused to be longer liable upon it and a new bond was required by the sheriff. The bond in suit was subsequently given. It was signed and acknowledgd by Dodge and the defendant Sauer on the 30th day of January, 1878, and by the defendant Dobelman on the 5th day of February, 1878, at which latter date it was delivered to the sheriff. The date of the bond., as found by the referee, was altered from January 30, 1878, to December 1, 1877, before its signature and delivery.
    In December, 1877, an execution was placed in Dodge’s hands, as deputy sheriff, for collection. He made a levy, by virtue of such execution, on certain property supposed to belong to the defendant in the execution, and sold the same on the 7th of January, 1878. The sheriff was afterwards sued for this levy and sale by a third party, who claimed to be the owner of the property, and a recovery was had in the suit against the sheriff, who having paid the same brought this suit on the bond against Dodge and his sureties.
    The court at General Term said: “ The only question is whether the bond covers the liability. The well established rule is that such a bond speaks only from its delivery. The delivery is presumptively at its date, but when the time of actual delivery is shown the date becomes unimportant.

      “ In this case the signing of the bond by Dodge and Sauer took place on the 30th of January, 1878, and by Dobelman, the other surety, on the fifth of February afterwards. The liability for the acts of Dodge under the levy' occurred by the sale several weeks before the delivery of the bond in suit. It was not the intention of the sureties to become liable for past transactions, and the language of the bond does not subject them to any such liability. The rules of law controlling the case are settled in Draper v. Snow (20 N. Y., 331); Weller v. Ilersee (10 Hun, 431); Bissell v. Saxton (66 N. Y., 55; Thomson v. McGregor (81 id., 593). The case is not to be confounded with those in which a bond or undertaking has been given to indemnify the sheriff for proceeding with a levy pre. viously made, in which ease the surrounding circumstances show the intention to indemnify against a liability previously incurred.”

      Louis M. Doscher, for the appellants.

      P. Mitchell, for the respondent.
   Opinion by

Davis, P. J,;

Brady, J., concurred.

J udgment reversed, new trial ordered, costs to abide event.


author: Macomber, J.:

text:
    ELIZABETH D. VAIL, Respondent, v. WILLIAM M. REYNOLDS, Appellant

      Error in the charge of the court as to the measpre of damages — an exception thereto will not he sustained, when the charge was based upon a fact the existence of which was assumed by the court and both pan'ties upon the trial.

    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jnry, and also from an order denying the defendant’s motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for fraud and deceit alleged to have been practiced upon the plaintiff by the defendants, William M. Reynolds and Robert M. Reynolds, in the sale to her of a quantity of the stock of the Cisco Consolidated Gold Mining Company. The jury rendered a verdict against the defendant William M. Reynolds, the appellant, but not against the defendant Robert M. Reynolds.

      The court, at General Term, after reviewing the evidence and holding that it was sufficient to sustain the verdict, and after overruling certain exceptions to the charge, said : “ The most serious objection, however, to the regularity of the trial is the alleged error of the judge in stating to the jury the measure of damages. In this case, the action being for the deceit on the sale of property, the measure of damages is the difference between the value of the stock, as represented and as determined by the value of the mines of the company, and the actual value of the stock, as it really is, and as it is influenced by the actual condition of the mines. The learned judge, however, instructed the jury that the plaintiff was entitled to recover, if they found that the deceit had been established, the amount of money which she had paid out for the stock in question, namely, a balance of eighteen thousand dollars, to which they had the power to add interest.
    “ The exception to this portion of the charge is as follows: ‘I also except to your instruction that if the plaintiff is entitled to recover, she is entitled to recover damages, the amount paid by her on the purchase of the stock, whether that purchase be intended to include or exclude interest; in either case I except.’ For this error we should feel constrained to grant a new trial, except for the fact that the learned trial judge had a right to proceed, as he actually did, upon the hypothesis that the stock held by the plaintiff was worthless. For if, throughout, the trial was conducted on that assumption, in the absence of any special request to charge a different rule, we do not think it is such an error as would require the resubmission of the case to another jury. The testimony of John Cummings is that the stock had no value in 1880, so far as he knew, in a public way. He says there were private sales made on personal assurances, but there was no general value in the market at all so far as he knew. The witness, Franklin Allen, says that the prices were variable and various. “ What was the actual value oí the stock? I do not think it was worth anything.’ At the close of the plaintiff’s case the counsel for the appellant said, evidently addressing the counsel for the plaintiff: ‘What 'do you claim?’ The counsel for the plaintiff responded: ‘We claim twenty thousand five hundred dollars principal, with interest on eighteen thousand five hundred dollars from April 4, 1880; on three thousand dollars from April 22, 1880; on one thousand dollars from January 12, 1882, and on five hundred dollars from April 10, 1882, from which should be deducted the interest on two thousand five hundred dollars from August 4, 1880.’ No dissent was made to this proposition of the counsel for the plaintiff, and it was based upon the testimony already quoted. No request was made to the court to charge the jury a different rule, and therefore, as it seems to us, the trial judge had a right to assume and to act upon that assumption, that the stock held by the plaintiff and which she brought into court and offered to give to the defendant, was worthless, and that no allowance should be made therefor. Doubtless if his attention had been called to the question, by way of a request to charge, the true rule, which is elementary, would have been stated to the jury, but we think that it is not permissible for a party to avail himself of an exception taken in this manner, when the circumstances under which the charge was made exhibit a case where on all sides, both of the court and respective counsel, a fact was necessarily assumed to exist of such serious import as to justify the charge, though technically with the attention of the court called distinctly to the subject-matter, the charge would be so erroneous as to require the reversal of the judgment. We are referred, among other cases that are familiar to the profession, to a decision made by this court in January, 1883, in the case of Masterton v. Boyce, a manuscript opinion in which has been furnished us In that case the true rule of damages was stated by the court to the jury, but the troitble was that the jury did not follow the instructions of the court, and rendered a verdict for the plaintiff for the full sum which had been paid out for the stock. To the favor, and not for legal error, this court granted a new trial. It was shown in that case that the stock was simply diminished in value by reason of the fact that the amount of big vein coal was not so much as it had been reported to be, and that for that reason the value of the mine was materially reduced. And it was further shown that the stock was actually of considerable value. The court said: ‘ It is evident, from the manner in which the case was submitted to the jury, that the shares were not considered worthless by the learned judge presiding at the trial, for substantially the only view in which the subject of damages was presented was that which authorized the jury to return the difference between the value of the stock and what it would have been if the property had conformed to the representations made concerning it. That they could render a verdict for the entire purchase-price, still leaving the plaintiff the owner of the stock, did not appear to receive the sanction of the court. Certainly, under the evidence, the jury was not justified in adopting that view. It was directly in conflict with the effect of the proof which had been taken.’
    There is a wide difference, therefore, between the facts of the two cases, and the one cannot be said, in any legal sense, to be á guide for the decision in the other.
    “It follows, from these considerations, that the judgment should be affirmed, with costs.”

      Luther R. Marsh, for the appellant.

      W. W. Goodrich, for the respondent.
   Opinion by

Macomber, J.:

Brady and Daniels, JJ., concurred.

Judgment affirmed, with costs.


author: Haight, J.

text:
    The Union Cemetery Association and others, Respondents, v. The City of Buffalo and others, Appellants.
   Motion to dismiss appeal denied, without costs. — The judgment, in so far as it restrains the city of Buffalo or the treasurer thereof from paying the orders heretofore issued by the city or the officers thereof, in favor of David W. McConnell, in payment for work wrongfully and falsely certified by the engineer of the city to have been performed by McConnell upon the contract, and in so far as it restrains said McConnell from selling ana disposing of any of said orders, is affirmed; in other respects the judgment is reversed, without costs to either party. Order to be settled by

Haight, J.


text:
    John M. French, Jr. Appellant, v. Daniel W. Powers, Respondent, Impleaded, etc.
   Judgment affirmed, with costs.


author: Barker, J.

text:
    John M. Burkhardt, Respondent, v. James Babcock, Appellant.
   Judgment modified by deducting $119.23, as of tne date of the decree, and as so modified affirmed, with costs. Opinion by

Barker, J.


text:
    Mary J. Gilligan, Respondent, v. George Feuschter and another, Appellants.
   Declined to be considered for the reason that the case does not appear to have been settled by the trial judge.


text:
    Micajah W. Jackson, Plaintiff, v. The City of Rochester, Defendant.
   Motion for a new trial denied and judgment ordered for the plaintiff on the verdict, on the authority of Hooker v. The City of Rochester (37 Hun, 181).


author: Lewis, J.,

text:
    George Gorham, Executor, etc., Respondent, v. Millard T. Fillmore, Appellant.
   Judgment affirmed, on opinion of

Lewis, J.,

at circuit.


text:
    George N. Collins and others, Respondents, v. George H. Harris, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Barker, J.


text:
    Thomas Moore, Respondent, v. Henry A. Taylor and others, Appellants. Same v. Same. Thomas Moore, Claimant, v. The Rochester and Ontario Belt Railway Company and others.
   Order affirmed, with ten dollars costs and disbursements, on opinion of referee.


author: Smith, P. J.;

text:
    Edward T. Stevens, as Administrator, etc., Respondent, v. John S. Seibold. Appellant.
   Judgment reversed and new trial ordered, costs to abide event. Opinion by

Smith, P. J.;

Haight, J., not sitting.


text:
    In the Matter of the Petition of Jacob Beehler and others to Drain Swamp Lands in the Town of Hamburg.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Haight, J.


text:
    Elizabeth A. S. Rockwell, Respondent, v. J. J. P. Reed, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


author: Smith, P. J.

text:
    Hannah E. Alvey, Respondent, v. Orange W. McKinney, Appellant.
   Judgment reversed on a question of fact and a new trial ordered before another referee, costs to abide event, unless the plaintiff stipulates within twenty days to reduce the judgment to $300 damages, in which case the judgment so reduced is affirmed, without costs of this appeal to either party. Opinion by

Smith, P. J.


text:
    The Buffalo and Grand Island Ferry Company, Appellant, v. Lewis F. Allen, Respondent.
   Judgment affirmed, with costs. Opinion by

Barker, J.


author: Bradley, J.

text:
    Charles Fincke and others, as Executors, etc., Respondents, v. The City of Buffalo, Appellants.
   Order affirmed, with costs of this appeal. Opinion by

Bradley, J.


text:
    Hiram V Eldridge, Respondent, v. George D. Smith, Appellant.
   Judgment affirmed. Opinion by

Smith, P. J.;

Haight J., not sitting.


text:
    David Butler, Respondent, v. Hugh M. Montgomery, Appellant.
   Judgment affirmed;

Haight. J., not sitting.


author: Childs, J,.

text:
    Garret Milk and others, Respondents, v. Benjamin Wait, Appellant.
   Judgment affirmed, with costs, on opinion of

Childs, J,.

at Special Term, with leave to the defendant to withdraw demurrer and answer within twenty days on payment of the costs of the demurrer and of this appeal.


text:
    James S. Casten, Respondent, v. George V. Decker, Appellant.
   Judgment of the County Court affirmed. Opinion by

Bradley, J.


text:
    David J. Cridler and another, Respondents, v. Henry Colegrovc, Appellant.
   Judgment and order reversed and a new trial ordered, costs to abide event. Opinion by

Smith, P. J.


text:
    Richard L. Whiting, Respondent, v. Peter Hood and another, Appellants.
   Judgment reversed and new trial ordered before another referee, costs to abide event. Opinion by

Haight, J.


text:
    The People of the State of New York ex rel. Maggie Cartmill and others v. The City of Rochester.
   The return to the writ of certiorar> sent back to the Police Justice to be corrected, by inserting a copy of the ordinance for the violation of which the relators were convicted.


text:
    John Underwood, as Receiver, etc., Appellant, v. Horace T. Cook. Public Administrator, etc., Respondent.
   Judgment affirmed, with costs. Opinion by

Haight, J.


author: Bradley, J.;

text:
    Charles Mather, Plaintiff, v. B. Perley Freelove and another, Defendants.
   Motion for new trial denied, and judgment ordered for the plaintiff on the verdict. Opinion by

Bradley, J.;

Smith, P. J., not present.


author: Barker, J.;

text:
    The Village of Olean, Plaintiff, v. John King and others, Defendants.
   Motion for new trial denied, and judgment ordered for the plaintiff on the verdict. Opinion by

Barker, J.;

Smith, P. J., not sitting.


author: Bradley. J.

text:
    Ann Manktelow, Appellant, v. Hannah Lilly Respondent.
   Order reversed, and motion to set aside inquisition granted; ten dollars costs and disbursements to abide event. Opinion by

Bradley. J.


text:
    Yette Thalheimer, Appellant, v. Ferdinand Hays and others, Respondents. Salie Frankel, Appellant, v. Same, Respondent.
   Order in each case affirmed, with ten dollars costs and disbursements in one case.


text:
    Mary Foster, Appellant, v. The City of Buffalo, Respondent.
   Judgment affirmed, with costs, upon the opinion of

Lewis,'J.,

at Special Term.

Barker, J., not sitting.


text:
    Edward A. Nealon, Respondent, v. The Grand Trunk Railway Company of Canada, Appellant.
   Order reversed and new trial granted, costs to abide event. Opinion by

Smith, P. J.;

Haight, J., not sitting.


text:
    In the Matter of the Judicial Settlement of the Accounts of John D. Collamer, as Executor, etc.
   Decree modified as stated in the opinion, and as so modified affirmed, with costs of the appeal to the respondent, to be paid out oi the principal of the estate. Opinion by

Smith, P. J.


text:
    Morrison W. Evans, Respondent, v. Clara S. Burton and Another, Appellants, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. Opinion by

Bradley, J.


text:
    James H. McMaster, Respondent, v. Alvin A. Smith, Appellant.
   Order affirmed, with costs. Opinion by

Haight, J.


author: Smith, F. J.

text:
    Le Roy Rundell and others, Appellants, v. George H. Downing and others, Respondents.
   Decree reversed and trial of questions of fact specified in the opinion ordered tried by a jury in the Circuit Court of Cayuga County. Costs of this appeal to the appellants, to be paid out of the estate in case they finally succeed in defeating probate of the will. Opinion by

Smith, F. J.


text:
    The People of the State of New York, Respondent, v. Charles Kibler, Appellant.
   Judgment and conviction affirmed on the authority of The People, etc., v. Shaffer, and The People, etc., v. Mahoney, decided at last June term.


text:
    Adelbert C. Merritt, Appellant, v. Oliver C. Merritt and another, Respondents.
   Judgment affirmed, with costs. Opinion by

Haight, J.


author: Barker. J.

text:
    Omar Smith, Respondent, v. John B. Clark, as Trustee, etc., of School District No. 3, Town of Starkey, Appellant.
   Judgment ana order affirmed. Opinion by

Barker. J.


text:
    John B. Howell, Appellant, v. Anna H. Manwaring, as Executrix, etc., and others, Respondents.
   Judgment afiirmed, with costs. Opinion by

Barker, J.


text:
    George H. Phelps, Appellant, v. Lewis Emery, Jr., and others, Respondents.
   Judgment affirmed. Opinion by

Smith, P. J.;

Haight, J., not sitting.


text:
    George H. Ball, Appellant, v. The Evening Post Publishing Company, Respondent.
   Order affirmed, without costs. Opinion by

Bradley, J.;

Haight, J., not sitting.


text:
    In the Matter of the Petition of the New York, Lackawanna and Western Railway Company, Appellant, for Appointment of Commissioners to Appraise Certain Lands of Lorenzo Schmidt, Respondent.
   Order affirmed, with costs.


text:
    James Rackham, Appellant, v. Woodworth N. Perry, Respondent.
   Order modified by striking therefrom all after and including the words “annulled,” to and including the words “enforcingthe same,” and as so modified affirmed, with leave to Rackham to renew his application to be substituted as plaintiff; ten dollars costs of the appeal to the respondent. Opinion by

Barker, J.;

Haight, J., not sitting.


text:
    Michael Roche, Appellant, v. Kate Roche, Respondent.
   Order reversed, with ten dollars costs and disbursements, and the motion to appoint a receiver granted of that portion of the real estate which wasj at the date of the motion, rented, but not to include that portion occupied by the plaintiff and defendant as residents. The case is remitted to the Special Term to appoint a proper person receiver and fix the amount of security to he given. Order to be settled by Haight, J.; opinion by

Haight, J.


text:
    John Breck, Respondent, v. Charles Berrick, Appellant.
   Order affirmed, without costs to either party.


text:
    Edward J. Kelsey, Respondent, v. James Sargent, Appellant.
   Interlocutory judgment affirmed, and motion for new trial denied, with costs. Opinion by

Haight, J.


text:
    John McDougal and another, Appellant, v. Mary Nast, Respondent, Impleaded, etc
   Judgment afiirmed, with costs Opinion by

Barker, J.;

Bradley, J., not sitting.


text:
    Amariah Hammond, Respondent, v. Lester B. Faulkner, Appellant.
   Order reversed, with ten dollars costs and disbursements, and the order of the county judge vacated.

Childs, J., not sitting.


text:
    Frank Lindner, Appellant, v. Richard P. McBride and others, Respondents.
   Order afiirmed, with ten dollars costs and disbursements.