text:
    Thomas Donohue, Respondent, v. Isaac A. Singer, Appellant.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.


source: Caselaw Access Project

author: Barnard, P.J.

license: Public Domain

text:
    James S. Packard, Respondent, v. Albert Pulitzer, Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Barnard, P.J.


author: Barnard, P. J.,

text:
    William C. Dornin and others, Respondents, v. Charles P. H. Ripley and others, Appellants.
   Judgment affirmed, with costs.

Opinions by

Barnard, P. J.,

and Pratt, J.


author: Dykman, J.

text:
    The People of the State of New York ex rel. Bernard Earl v. Joseph Steinert, Justice, etc.
   Judgment reversed, without costs.

Opinion by

Dykman, J.


author: Barnard, P. J.

text:
    Matter of Last Will of Eva J. Banks.
   Decree of surrogate affirmed, with costs.

Opinion by

Barnard, P. J.


author: Pratt, J.

text:
    Arthur S. Houchin, Respondent, v. Edward P. Vacher, Appellant.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event.

Opinion by

Pratt, J.


text:
    Henry J. Bookman, Appellant, v. Louis R. Stegman, Sheriff, Respondent.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Pratt, J.


author: Barnard, P. J. ;

text:
    John H. Norwood, Respondent, v. Ray Manufacturing Company, Appellant.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J. ;

Pratt, J., not sitting.


text:
    Samuel Lockard, Respondent, v. Louis R. Stegman, Sheriff, etc , Appellant.
   Judgment and order denying new trial reversed and new trial granted, costs to abide event.

Opinion by

Barnard, P. J.


text:
    Mary McGrath, Administratrix, Appellant, v. The Brooklyn City Railroad Company, Respondent.
   Exceptions overruled, and judgment for defendants on order made at circuit.

Opinion by

Pratt, J.


text:
    Margaret Lawless, as Administratrix, Appellant, v. Staten Island Rapid Transit Company, Respondent.
   Judgment affirmed, with costs.

Opinion by

Dykman, J.


text:
    Edward Pratt and another, Respondents, v. Edward Mosetter, Appellant.
   Judgment affirmed, with costs; order denying motion to release commissioners affirmed.

Opinion by

Barnard, P. J.


text:
    George B. Colyer, Respondent, v. Charles S. Colyer Administrator, Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Dykman, J.


author: Pratt, J.;

text:
    Charles Welde, Respondent, v. Sarah H. Henderson, Appellant
   Order affirmed, with costs and disbursements.

Opinion by

Pratt, J.;

Dykman, J., not sitting.


text:
    The People of the State of New York ex rel. The New York and West Shore Railroad Company, Appellant, v. John P. Toohey and others, Assessors, Respondents.
   Order granting writ affirmed, with costs.

Opinion by

Dykman, J.


author: Pratt, J,;

text:
    Town of Westchester, Respondent, v. James Henderson, Jr., Appellant.
   Order affirmed, with costs and disbursements.

Opinion by

Pratt, J,;

Dykman J., not sitting.


text:
    William A. Cross, Respondent, v. Lynde Belknap, Appellant.
   Judgment reversed and new trial granted, costs to abide event.

Opinion by

Pratt, J.


text:
    Mary Boe, Appellant, v. John Berry, Respondent.
   Judgment affirmed, with costs.

Opinion by

Barnard, P. J.,

Dykman, J., not sitting.


text:
    Franklin Bassford, Respondent, v. Herman Oelrichs, Appellant.
   Judgment and order denying new trial affirmed, with costs.

Opinion by

Pratt, J.


text:
    Harriet S. Rumsey and others, Appellants, v. New York and New England Railroad Company, Respondents.
   Judgment affirmed, with costs.

Opinion by

Pratt, J.;

Barnard, P. J., not sitting.


text:
    The Davidson Steam Pump Company, Respondent, v. Village of Catskill, Appellant.
   Order refusing to change place of trial affirmed, with costs and disbursements.

Opinion by

Dykman, J.


text:
    Anna W. Brown v. Austin Corbin, Receiver, etc.
   —Judgment and order denying new trial affirmed, with costs.

Opinion by

Pratt, J.


text:
    In the Matter of the Application of the Staten Island Railroad Company to Acquire Title to Land.
   Order confirming award affirmed, with ten dollars costs and disbursements.

Opinion by

Dykman, J.


text:
    Frank J. Kimball and others v. Nancy A. Hall.
   Order affirmed, with costs and disbursements.


author: Learned, P. J.;

text:
    Lewis Brownell and others, Appellants, v. National Bank of Gloversville and others, Respondents.
   Order reversed and motion denied, no costs.

Opinion by

Learned, P. J.;

Landon, J., not acting.


author: Landon, J.

text:
    Ellen E. Lyon and another, Administrators, etc., Respondents, v. The Port Henry Iron Ore Company of Lake Champlain. Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Landon, J.


author: Landon, J,

text:
    The People of the State of New York ex rel. Isaac M. Haswell v. The Board of Supervisors of Albany County.
   Writ of certiorari quashed, with fifty dollars costs and disbursements.

Opinion by

Landon, J,


text:
    Mary Cullen, as Administratrix, etc., Appellant, v. President, etc., of The Delaware and Hudson Canal Company, Respondent.
   Judgment reversed, new trial granted, costs to abide the event.

Opinion by

Learned, P. J.;

Bocires, J., not sitting.


author: Bockes, J.

text:
    Charles N. Williams, Respondent, v. Levi J. Needham, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Bockes, J.


author: Learned, P. J.

text:
    Isaias Scherer, Respondent, v. Benajah Tyrrell and others, Appellants.
   Order reversed, with ten dollars costs and printing disbursements, and motion to amend complaint denied, with ten dollars costs.

Opinion by

Learned, P. J.


author: Learned P. J.;

text:
    Charles H. Eddy and others, Respondents, v. Alvin Davis, Appellant.
   Judgment reversed, new trial granted, costs to abide event.

Opinion by

Learned P. J.;

Bockes, J., dissents.


text:
    George B. Rossman, Respondent, v. The Knickerbocker Ice Company, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Learned, P. J.


text:
    John Staats, Respondent, v. Thomas Garrett, Appellant.
   Judgment reversed, new trial granted; referee discharge costs to abide event.

Opinion by

Landon, J.


author: Bockes, J.;

text:
    David H. Flack and others, Appellants, v. Village of Green Island, Respondent.
   Judgment affirmed, with costs.

Opinion by

Bockes, J.;

Landon, J., dissents in opinion.


text:
    John Flynn and others, as Commissioners, etc., Respondents, v. Albert J. Hurd, as Commissioner, etc., Appellant.
   Judgment affirmed, with costs.

Opinion by

Landon, J.


text:
    John Flynn and others, as Commissioners, etc., Respondents, v. Thomas F. Cornell, as Commissioner, etc., Appellant.
   Judgment affirmed, with costs.

Opinion by

Landon, J.


text:
    Matthew Nial, Appellant, v. William H. Flandrau, Jr., Respondent.
   Judgment reversed, new trial'granted, costs to abide event.

Opinion by

Learned, P. J.


text:
    Joseph Wilson, Respondent, v. George W. Dibble, Appellant.
   Judgment of County Court and of justice reversed, with costs.

Opinion by

Bockes, J.


author: Parker, J.

text:
    The Wiles Laundering Company (Limited), Respondent, v. Herman Hahlo and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Parker, J.


text:
    John M. Helck, Administrator, etc., Appellant, v. Henry Reinheimer and others, Respondents.
   As to the two defendants who defend, complaint dismissed, with costs to trial and judgment. As to the other defendants the usual decree of foreclosure, with costs as in case of default. No costs of appeal to any party. No decision as to the merits under the trust deed. Judgment to be settled by Learned, P. J.

Opinion by

Learned, P. J.


text:
    Lewis N. Ireland, Respondent, v. Cornelia T. Davenport, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Bockes, J.


text:
    Abel A. Crosby and others, Respondents, v. The President, etc., of The Delaware and Hudson Canal Company, Appellant.
   Judgment and order reversed, new trial granted, costs to abide the event.

Opinion by

Learned, P. J.;

Landon, J , dissents in opinion.


text:
    The People of the State of New York ex rel. The Mayor, etc., of the City of New York, v. Dennis McCarthy and others, Respondents.
   Writ of certiwaH quashed, with fifty dollars costs and disbursements against relators.

Opinion by

Learned, P. J.


text:
    The People of the State of New York ex rel. Philip Hoffman, Respondent, v. Peter S. Osterhoudt and others, Appellants.
   Order reversed, with’ fifty dollars costs and disbursements.

Opinion by

Bockes, J.


text:
    Alice Connery, as Administratrix, etc., Appellant, v. Michael Slavin, Respondent.
   New trial granted, costs to abide the event.

Opinion by

Bockes, J.;

Landon, J., dissents in opinion.


author: Landon, J.;

text:
    George King, Appellant, v. Edward J. Chapin and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Landon, J.;

Learned, P. J., dissents in opinion.


text:
    George A. Streeter and another, Appellants, v. The Village of Johnstown, Respondent.
   Judgment affirmed, with costs, on opinion of Special Term.

Landon, J., not actipg.


text:
    Thomas Cornell, Respondent, v. William Hayden, Appellant.
   Judgment affirmed, with costs.-

Opinion by

Landon, J.;

Bockes, J., concurs m opinion of Special Term, supplemented by opinion of Landon J.; Learned, P. J., dissents.


author: Learned. P. J.

text:
    Philip Huston, Respondent, v. Edward J. Gilbert, Appellant.
   If plaintiff will stipulate witnin twenty days of the service of this order to reduce the damages to $3,500, then the judgment so modified affirmed, without costs of this appeal, if not, then on the defendant paying the costs of the trial and of his appeal in twenty days thereafter, a new trial is granted ; if defendant does not pay such costs, then judgment and order affirmed, with costs and order to he settled by Learned, P. J.

Opinion by

Learned. P. J.


text:
    Patrick Stubbs, Plaintiff, v. The Hudson River Ore and Iron Company, Defendant.
   —Motion for new trial denied and judgment ordered for defendant, with costs.

Opinion by

Landon, J.


text:
    Gideon S. Wheaton, Respondent, v. The President, etc., of The Delaware and Hudson Canal Company, Appellant.
   Motion for new trial denied and judgment for plaintiff on verdict, with costs.

Opinion by

Bockes, J.


author: Peckham, J.

text:
    John M. D. McIntyre and others, Appellants, v. The McIntyre Coal Company, Respondent.
   Judgment affirmed, with costs, on opinion of

Peckham, J.


text:
    Matthew D. Breen, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.
   Motion for new trial denied and judgment rendered for plaintiff on verdict, with costs.

Opinion by

Learned, P. J.


text:
    Abigail H. Bennet, Plaintiff, v. Elihu G. Akin and others, Defendants.
   Motion for reargument or modification denied, with ten dollars costs.

Opinion by

Learned, P. J.


text:
    Thomas Hoag, Respondent, v. Thomas Weston, Appellant.
   Judgment affirmed.


author: Learned, P, J.

text:
    John W. Velie, Respondent, v. The Newark City Fire Insurance Company, Appellant, Imleaded, etc.
   Judgment‘affirmed, with costs, on payment of costs below and of appeal in ten days defendants may withdraw demurrer and answer over.

Opinion by

Learned, P, J.


text:
    Isaac Le Roy, Appellant, v. Patrick McCormick, Respondent.
   Motion to strike cause from calendar and for judgment denied, without costs.


text:
    Thomas H. McGrath, Plaintiff, v. Robert Humphrey, Defendant.
   Motion to strike cause from calendar and for judgment granted, with ten dollars costs of motion, unless appellant serve printed papers within thirty days and pay the ten dollars costs of motion.


text:
    Horatio M. Doty v. Lemon Thompson.
   Motion for leave to appeal to the Court of Appeals granted.


text:
    Henry C. Adams, Appellant, v. Algernon Sullivan, Public Administrator, and others, Respondents
   Motion granted as per order entered.

Opinion by

Bockes, J.


text:
    Jerome A. Peck, Appellant, v. John F. Peck, Administrator, etc., Respondent.
   Motion granted by default. (See order entered.)


author: Parker, J.;

text:
    James E. Holcomb, Appellant, v. George Rice and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements for printing.

Opinion by

Parker, J.;

Landon, J., not sitting.


text:
    Samuel Taylor, Appellant, v. William Lane, Respondent.
   Order affirmed, with ten dollars costs and disbursements for printing.

Parker,. J., not sitting.


text:
    Samuel Taylor, Appellant, v. William Lane, Respondent.
   Order affirmed, with ten dollars costs and disbursements for printing.

Parker, J., not sitting.


text:
    Samuel Taylor, Appellant, v. John Mitchell, Respondent.
   Order affirmed, with ten dollars-costs and disbursements for printing.

Parker,. J., not sitting.


text:
    Sally Rising v. Lucy Copeland.
   Motion granted as per order entered.


text:
    Mutual Life Insurance Company v. John G. Sturges and others.
   Motion granted as per order entered.


text:
    Elisha Rose v. Jane Thompson.
   Order affirmed, with ten dollars costs and disbursements for printing.

Opinion by

Landon, J.


text:
    Daniel H. Vial v. Ellen M. Banker and others.
   Order modified, by striking out costs of the appeal to the special guardian.


text:
    Tom S. Wotkyns, Respondent, v. Bradford C. Vaughn, Appellant.
   Order reversed, with ten dollars costs and disbursements for printing, and motion granted, with ten dollars costs.

Opinion by

Bockes, J.


text:
    In the Matter of the Application of Kate Stoneman for Admission as Attorney and Counsel.
   Application denied.

Opinion by

Landon, J.

The Code being thereafter amended the application was renewed and granted.


author: Landon, J.:

text:
    James E. Ostrander, Respondent, v. John Weber, Appellant, and others, Respondents.
   Interlocutory judgment affirmed, with costs.

Opinion by

Landon, J.:

Parker, J., not sitting.


text:
    Artemas Sahler, Respondent, v. Edwin Lawson and others, Appellants.
   Judgment affirmed, with costs.


text:
    Peter R. Leonard, Respondent, v. Stephen Martin, Appellant.
   Order affirmed, with ten dollars-costs and disbursements for printing.

Opinion by

Parker, J.;

Landon, J., not sitting.


text:
    In Matter of Benjamin Akin, Deceased.
   Motion denied.

Opinion by

Landon, J.


text:
    Daniel Vrooman and others v. John M. Close and others.
   Motion denied.


author: Bockes, J

text:
    The People of the State of New York, Respondent, v. Oscar F. Beckwith, Appellant.
   Conviction and judgment affirmed.

Opinion by

Bockes, J


text:
    Louis E. Blair, Appellant, v. Mary A. Oliver, Respondent.
   Judgment affirmed.


text:
    John Flynn and others, Commissioners, v. Albert J. Hurd, Commissoner. John Flynn v. Thomas F. Cornell, Commissioner.
   Motion for liberty to appeal to the Court of Appeals granted in each case.


text:
    Tom S. Wotkyns, Respondent, v. Bradford C. Vaughn, Appellant.
   Judgment affirmed, with costs.


text:
    Frederick J. Hope, Respondent, v. The Troy and Lansingburgh Railroad Company, Appellant.
   Judgment reversed, new trial granted, costs to abide the event, by consent of respondent’s attorney. Peckham. J.. not sitting.


text:
    Catharine Taylor, Appellant, v. The City of Cohoes, Respondent.
   Judgment ordered for plaintiff on verdict, with costs.


text:
    Andrew F. Brown, Respondent, v. Robert F. Sniggs, Appellant.
   Judgment affirmed by default.


author: Daniels, J.

text:
    Lewis B. Crane, Respondent, v. Thomas Evans and another, Appellants.
   Judgment affirmed, with costs.

Opinion by

Daniels, J.


author: Brady, J.

text:
    Annie Fesselmayer, Respondent, v. The Third Avenue Railway Company, Appellant.
   Judgment affirmed.

Opinion by

Brady, J.


text:
    Ruth A. Hoopes, Respondent, v. Austin Corbin and others, Appellants.
   Judgment affirmed, with leave to defendant to answer on payment of costs.

Opinion by

Brady, J.


text:
    David Levy and another, Respondents, v. Robert Solomon, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


text:
    The New York, Lake Erie and Western Railway Company v. George W. Carhart and another.
   Judgment modified as directed and affirmed as modified, without costs.

Opinion by

Daniels, J.


author: Brady, J

text:
    Henry Fulmer, Respondent, v. William P. Abendroth, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.

Opinion by

Brady, J


text:
    In the Matter of4 Edward J. King.
   Order affirmed, without costs.

Opinion by

Brady, J.


text:
    The People of the State of New York ex rel. Henry Colton, Appellant, v. Charles B. Ransom and another, Respondents.
   Judgment affirmed.

Opinion by

Daniels, J.


text:
    Peter H. Walsh and others, Respondents, v. Seager Brothers (Limited), Appellants.
   Order affirmed, without costs.

Opinion by

Brady, J.


text:
    In the Matter of Benjamin Knower, as Executor, etc.
   Decree modified as directed in opinion.

Opinion by

Brady, J.


text:
    The Corn Exchange Bank, Respondent v. Alphonzo W. Blye, as Receiver, etc., Appellant.
   Judgment affirmed.

Opinion by

Brady, J.


text:
    In the Matter of Bradish Johnson
   Order modified as directed in opinion, without costs to either party.

Opinion by

Brady, J.


text:
    Hong Kong Banking Company, Appellant, v. William B. Cooper, Jr., and another, Respondents.
   Judgment affirmed, with costs.

Opinion by’

Brady,.J.


text:
    Campbell Printing Press and Manufacturing Company, Respondent, v. Stillman R. Walker, Appellant.
   Judgment affirmed.

Opinion by

Brady, J.


text:
    Horace B. Claflin and others, Respondents, v. William B. Boorum, Appellant.
   Judgment affirmed.

Opinion by

Brady, J.


text:
    John H. Bonn, Respondent, v. Ernest Steiger, Appellant.
   Judgment affirmed, with costs.

Opinion by

Daniels, J.


text:
    Frederick Bill, Respondent, v. James D. Fish, Appellant.
   Judgment affirmed, with costs.

Opinion by

Daniels, J.


author: Daniels, J

text:
    The Easton National Bank, Appellant, v. James E. Hulshizer and others, Respondents.
   Judgment affirmed, with costs.

Opinion by

Daniels, J


text:
    Simon Bache and another, Appellants, v. Theodore E. Tomlinson, Jr., Respondent.
   Judgment affirmed, without costs.

Opinion by

Daniels, J.


text:
    Christian T. Christensen v. Gardner R. Colby.
   Motion for reargument denied.

Opinion by

Brady, J.


text:
    Kate Hogan, Administratrix, etc., Appellant, v. David Henderson and others, Respondents.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Daniels, J.


text:
    In the Matter of Charles Denison.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Brady, J.


text:
    Charles S. Turner, Respondent, v. The Midland Railway Company of New Jersey, Appellant.
   Judgment affirmed, with costs.

Opinion by

Brady, J.


text:
    George L. Rose and others, Appellants, v. Frank E. Dietsch, Respondent.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Daniels, J.


text:
    Walter Weston and another, Respondents, v. James R. Watts, Appellant.
   Order reversed, with costs to abide event.

Opinion by

Brady, J.


text:
    Alfred M. Beadleston, Appellant, v. Mary E. Beadleston, Respondent.
   Order modified as directed in opinion, and affirmed as modified, without costs.

Opinion by

Brady, J.


author: Per Curiam.

text:
    Susan Barton, Appellant, v. Horace W. Barton, Respondent.
   Order affirmed, without costs.

Opinion

Per Curiam.


text:
    Michael J. Collins, Appellant, v. Thomas Manning, Respondent.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Daniels, J.


text:
    Same v. Same.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Daniels, J.


text:
    Thomas Jones and others, Respondents, v. Alfred M. Sparks, Appellant.
   Judgment affirmed.

Opinion by

Brady, J.


text:
    Henry M. Isaacson, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment affirmed.


text:
    James Dunne, Respondent, v. Agassiz Consolidated Mining Company, Appellant.
   Judgment affirmed, with costs.


text:
    The Mayor, etc., of the City of New York, Respondent, v. Jonas Sonneborn, Appellant.
   Judgment affirmed, with costs.


text:
    Amy Henderson, Appellant, v. Kate M. Rockwell, Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    William B. Putney, as Assignee, etc., Respondent, v. Alexander G. Tyng, Appellant.
   Order-affirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    William B. Putney, as Assignee, etc., Respondent, v. Alexander G. Tyng, Appellant.
   Order affirmed, without costs.

Opinion

Per Curiam.


author: Daniels. J.

text:
    James P. Saverios, Respondent, v. David Levy, Appellant.
   Order reversed and motion denied, upon execution by defendants of the undertaking mentioned in opinion, and if that be not order affirmed, costs to abide event,

Opinion by

Daniels. J.


text:
    Adam Cambeis, as Administrator, etc., Appellant, v. Richard H. McDonald, Respondent.
   Order striking out portions of complaint reversed, with ten dollars costs and disbursements, and motion denied, with costs.

Opinion, by

Daniels, J.


text:
    Same v. Same.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Daniels, J.


text:
    The Easton National Bank, Respondent, v. James E Hulshizer, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    Charlotte B. Wilbour, Plaintiff, v. Trow’s Printing and Bookbinding Company, Defendant
   Judgment ordered for plaintifi, without costs.

Opinion by

Daniels, J.


text:
    In the Matter of Cecelia L. Booth.
   Motion. denied, with costs. (See Mem.)


text:
    In the Matter of John Swenarton.
   Motion denied.


text:
    Sarah A. Mason v. Adelaide E. Mason.
   Motion denied.


text:
    Isabella T. Myers, Appellant, v. Bank of Portsmouth, Respondent.
   Motion denied, with costs.

Opinion by

Daniels, J.


text:
    John L. Myers v. Charles M. Raymond.
   Motion denied.


text:
    Henry Bergh, Appellant, v. The Mayor, etc., of the City of New York, Respondent, and Matthew Baird, Appellant.
   Orders affirmed, without costs.

Opinion by

Daniels, J.


text:
    George V. Sims, Respondent, v. William E. D. Vyse, Appellant.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion by

Brady, J.


author: Davis, P. J.

text:
    Thomas H. Wilson, Respondent, v. The Kings County Elevated Railway Company, Appellant.
   Judgment affirmed.

Opinion by

Davis, P. J.


text:
    People of the State of New York, Respondent, v. William G. Zimmerman, Appellant.
   Judgment reversed, new trial ordered.

Opinion by

Davis, P. J.


text:
    Estelle D. Bowers, Respondent, v. Frederick C. Durant and others, Appellants.
   Order affirmed, with ton dollars cosis and disbursements.

Opinion by

Daniels, J.


author: Churchill, J.

text:
    Emigrant Industrial Savings Bank, Plaintiff, v. Mary Lynch and others, Defendants.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Churchill, J.


text:
    John Griffiths and others, Plaintiffs, v. Helene De Berg and others, Defendants.
   Judgment affirmed.


author: McComber, J.

text:
    The People of the State of New York ex rel. John T. Cuming v. Joseph Koch and others, Dock Commissioners, etc., Respondents.
   Proceedings affirmed.

Opinion by

McComber, J.


text:
    In the Matter of Roxana Bacon.
   Order affirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


author: Barret, J.

text:
    Henry Morrison, Plaintiff, v. Richard R. Watson, Defendant.
   Order affirmed, with ten dollars costs and disbursements, on opinion of

Barret, J.


author: Per Cariam.

text:
    Oliver L. Jones, Appellant, v. Lillian L. Jones and others, Respondents.
   Order affirmed, •with ten dollars costs and disbursements.

Opinion

Per Cariam.


text:
    Anastasia Britt, Administratrix, etc., Respondent, v. Francis Alexander and others, Appellants.
   Order affirmed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    Leon Rabuteau v. Marie Rabuteau.
   So much of

the order as directs the receiver to discontinue the payment of alimony reversed, -with ten dollars costs and disbursements, and the remainder of the order so modified as to require the continuance of the payment of alimony and the preservation of the surplus only (if any) for the benefit of creditors.


text:
    Charles H. Dwinelle, Respondent, v. William S. Webb, as President, etc., Appellant.
   Order modified by striking out the word “ or ” as it appears ou line distinguished by the folio figures 131 of the case, and as modified affirmed, with costs to either party to abide event.


text:
    Minnie Bayer, as Guardian, etc., Plaintiff, v. James L. Phillips, Defendant.
   Judgment ordered for plaintiff, without costs.

Opinion

Per Curiam.


text:
    William G. Jones, Appellant, v. Ward N. Wakefield, Respondent.
   Order reversed, with ten dollars costs and disbursements, and with leave to defendant to renew application on additional proofs.

Opinion

Per Curiam.


author: Per CuHam.

text:
    Emily M. English, Plaintiff, v. George B. Ripley, Trustee, etc., Defendant.
   Judgment 1 ordered for defendant with twenty-five dollars costs.

Opinion

Per CuHam.


text:
    Unexcelled Fireworks Company, Respondent, v. Joseph H. Collins, Appellant.
   Judgment affirmed.


text:
    The People of the State of New York ex rel. Ralph Archbold, Appellant, v. The Health Department, etc., Respondent.
   Order affirmed, with costs.

Opinion

Per Curiam.


text:
    Alfred Nelson, as Executor, etc., Respondent, v. Sutherland Tenney, as Assignee, etc., Appellant, Impleaded, etc.
   Judgment affirmed.


author: Beach, J.

text:
    Anthony Reichardt, Appellant, v. The Department of Public Works, etc., Respondents.
   Judgment affirmed, on opinion of

Beach, J.


text:
    The American Tool Company, Appellant, v. George J. Smith, Respondent.
   Judgment reversed, new trial ordered, costs to abide event.

Opinion

Per Curiam.


author: Daniels and Brady, JJ.

text:
    The People of the State of New York, Respondent, v. Charles V. Buddensieck, Appellant.
   Judgment affirmed.

Opinion by

Daniels and Brady, JJ.


text:
    William F. Parks, Appellant, v. Margaureit A. Murray and Joseph Murray, Respondents.
   Order reversed, with ten dollars costs and disbursements.

Opinion

Per Curiam.


text:
    Lizzie Franck, Plaintiff, v. Katharine Schmitt, Defendant.
   Judgment ordered for plaintiff as directed in opinion.

Opinion

Per Curiam.


text:
    Julius Fortsman v. Ruth A. Schulting.
   (See Mem.)


text:
    George W. Reid, Appellant, v. New York, Lake Erie and Western Railroad Company, Respondent.
   Motion for reargument denied, with ten dollars costs.


author: Haight, J.:

text:
    HUGH TIGHE, Respondent, v. JAMES MORRISON, Appellant.

      Statute of frauds — a promise to answer for the debt of another is not Within the statute, when the promisor derives a benefit from the act of the promisee.

    This a'ction was brought to recover the amount which the plaintiff had been compelled to pay upon a bond signed by himself and one McLaughlin, as sureties, upon the issuing of letters of administration to the defendant and two other persons. On the final settlement of their accounts it was adjudged that there was due from one of the administrators (not the defendant) a certain sum of money which he was directed to pay over. He having failed so to do, and the other surety being insolvent, the plaintiff was compelled to pay the amount sought to be recovered in this action.
    It appeared that the plaintiff signed the bond at the request of the defendant, who said that by signing it he would do him a great favor as it would enable him to get money out of the estate, and that he (the defendant) would guar* anty that the plaintiff should never lose one cent by signing it.

      Held, that as the defendant's promise Was made in consideration of benefits to be derived by him from the act of the plaintiff, the promise did not fall within the statute of frauds and that the plaintiff was entitled to recover.
    Appeal from a judgment in favor of tlie plaintiff, entered upon a verdict of the jury at the Livingston Circuit, and from an order denying a motion for a new trial made upon the minutes of the court.

      8. Hubbard, for the appellant.

      E. A. Hash, for the respondent.
   Haight, J.:

This action was brought to recover the amount which plaintiff had been compelled to pay as surety upon an administrator’s bond.

In June, 1875, Ann McKittrick, Michael Dowdall and the ¡defendant James Morrison were appointed administratrix and .administrators of the goods, chattels and credits of Hugh McKitt-rick, deceased, upon condition that they execute and file with the ¡surrogate of Livingston county a bond, with two sureties, in the •penal sum of $3,000. This bond was subsequently executed and •filed, signed by the plaintiff and one William McLaughlin, as ¡sureties. On the final settlements of the accounts of the administrators before the surrogate, it was by that court adjudged and .decreed that there was due and owing from Michael Dowdall, as ¡administrator, the sum of $1,582.35, which sum he was ordered to ■.pay over within twenty days from the service upon him of a copy ,of the decree. Execution was subsequently issued thereon to the ¡sheriff, which was returned unsatisfied. Action was then brought upon the bond against this plaintiff as surety; the other surety 'being insolvent this plaintiff was compelled to pay the sum of :$1,200, which sum was paid to compromise and settle the aforesaid ¡action. Upon the trial of this action evidence was given on behalf .of the plaintiff and other witnesses, to the effect that the defendant Morrison called upon the plaintiff and stated that he had been ■chosen administrator of Hugh McKittrick and wanted the plaintiff ito sign his bond. That the plaintiff told him he did not understand much about such papers; that he then told the plaintiff that ¡he had an interest in the estate for cattle, oats and butter which the .estate owed him, and that it would do him a great favor if the plaintiff would sign his bond ; and he said “ I will guaranty before ■your .boys that you never shall lose one cent if yon will sign my .paper, and you will do me a great favor as I will get money out of the estate.” The plaintiff thereupon consented to sign the bond ; .got in the buggy, went to the village with him, and executed the ¡same. It .is ¡true this evidence was controverted by the defendant, .but the question was submitted to the jury under proper instructions, and the jury, by their verdict, has found that this testimony was true. The question is thus presented as to whether or not the agreement of .the defendant was within the statute of frauds.

The statute provides that every special promise to answer for the debt, default or miscarriage of another person, shall be void unless such agreement, or some note or memorandum thereof, be in writing and subscribed by the party to be charged therewith. The devastavit which the plaintiff was required to make good was committed by Dowdall. If, therefore, the promise of the defendant was simply a promise to guaranty, as against Dowdall, it would come within the statute and the plaintiff could not maintain the action. But it is claimed that the promise wks made to induce the plaintiff to sign the bond as surety for the defendant, and that by so doing the defendant was to reap a benefit to himself. He could be appointed administrator of the estate; could receive the commissions that were allowed for his services, and also make good his claims against the estate.

In the case of Leonard v. Vredenburgh (8 Johns., 29-39) Chief Justice Kent says, that when the promise to pay the debt of another arises out of some new and original consideration of benefit or harm moving between the newly contracting parties ” the case is not within the statute.

In the case of Farley v. Cleveland (4 Cow., 432) the rule, as stated by Chief Justice Savage, was that vHiere a promise to pay the debt of a third person arises out of some new consideration of benefit to the promisor or harm to the promisee, moving to the promisor either from the promisee or the original debtor, such promise is not within the statute of frauds. And to the same effect is the ease of Nelson v. Boynton (3 Metc., 396-400). These cases were all reviewed and approved by Chief Justice Comstock in the case of Mallory v. Gillett (21 N. Y., 412-419).

In the case of Prime v. Koehler (77 N. Y., 91) it was held that where the purpose of a promise to pay the debt of a third person is to secure a benefit to the promisor, to relieve his property from a lien, or securing or confirming his possession, the promise is original and not collateral and so is not within the statute of frauds.

The same rule was reaffirmed in the case of Smart v. Smart (97 N. Y., 559), and in the case of Ackley v. Parmenter (98 id., 425), in which case it was said that to take the case out of the statute there must be a consideration moving to the promisor either from the creditor or the debtor, and beneficial to him, thus imparting to the promise the character of an original undertaking. (See, also, White v. Rintoul, 17 Jones & Spencer, 421.) It consequently appears to us that the rule is well settled that where the promise is made in consideration of benefits to be derived by the promisor by the act of the promissee, the promise is not void under the statute.

In the case under consideration the promise was made by the defendant to induce him to sign the bond. There were certain benefits to be derived by the act of the plaintiff in so signing. By that act the plaintiff became obligated to pay and make good any default of the administrators; he has now been compelled to pay, and it appears to us that he may properly require the defendant to make good his guaranty.

We do not understand that any demand was necessary before bringing the action. The defendant in his answer alleged that $100 of the money appropriated by Dowdall was appropriated with the knowledge and consent of the plaintiff, who indorsed Dowdall’s note for that amount, payable to the administrators of the estate for the purpose of having the same placed with the assets as a substitute for the money. Upon the trial the defendant offered to prove this allegation, and the same was excluded under objection by the plaintiff. The amount of the devastavit, as we have seen, Was $1,582.35. The plaintiff succeeded in compromising the shit brought for this amount for $1,200; $382.35 less than the amount that Dowdall was in default, as shown by the decree of the surrogate. The amount thus saved by the compromise was more than the $100 alleged to have been misappropriated with the knowledge and consent of the plaintiff. We think we may assume that the $100 was included in the settlement before the surrogate, and embraced in the final compromise made by the plaintiff.

The judgment and order should be affirmed.

Smith, JP. J., Barker and Bradley, JJ., concurred.

■So óí’dé'red.


text:
    BENJAMIN F. TABOR, Respondent, v. WILLIAM M. HOFFMAN, Appellant.

      Secrets of trade — when a person who has procured knowledge of them surreptitiously will he enjoined from availing himself of such knowledge.

    This action was brought to restrain the defendant from manufacturing and selling pumps made from patterns copied from certain patterns designed by the plaintiff. It appeared that in 1861 the plaintiff had invented and taken out letters patent for a rotary pump, and had manufactured and sold such pumps until the patent expired; that about eight years since he invented several improvements upon the old pump, and thereafter continued to manufacture pumps with these improvements and abandoned the manufacturing of the old pumps; that these improved patterns were kept by him as a secret of his trade or business, and not thrown upon the market or given to the public. Held, that the manufacture and sale of the improved pumps was not a publication of the plans, specifications and patterns from which the pumps were manufactured.
    That the defendant had no right to procure copies thereof, surreptitiously without the knowledge of the plaintiff, by employing one of his pattern-makers to make them, and that he should be enjoined from using the patterns so acquired.
    Appeal from a judgment in favor of the plaintiff, entered upon the decision of the Erie Special Term.

      Bnmdage do Ohipman, for the appellant.

      Strong do Brendel, for the respondent.
   Haight, J.:

This action was brought to restrain the defendant from manufacturing and selling pumps made from patterns copied and designed from the patterns designed by the plaintiff, and for damages. The trial court found as facts that the plaintiff is the inventor and owner of what is known as Tabor’s rotary pump, and that he manufactures the same for sale; that he had spent a good deal of time, study, thought, labor and money to make and perfect patterns from which to manufacture the pump; that the patterns were never thrown upon the market or given to the public prior to the commencement of this action; that one Francis Walz, a pattern-maker, surreptitiously made a set of patterns from measurements taken from the plaintiff’s patterns while the same were in his possession for repairs; that such measurements were taken and duplicates made without the consent or knowledge of the plaintiff; that they were made for the defendant who paid "Walz therefor; that before the commencement of this action the defendant had commenced to manufacture pumps from such patterns so obtained, aud that he knew that "Walz had made the patterns from measurements taken from the plaintiff’s patterns without the knowledge or consent of the plaintiff.

It isv contended in the first place that this action will not lie for the reason that the plaintiff has an adequate remedy at law against "Walz for trespass, and numerous authorities are cited to establish this proposition. If it was a trespass merely there would be force in the appellant’s position, but if, as is claimed by the respondent, these patterns were the invention and creation of the plaintiff, embodying his time, skill, study and labor, and were kept by him as a secret of his trade or business, then we apprehend there would be no question but that the procuring of copies of them surreptitiously, without the plaintiff’s knowledge or consent, for the purpose of giving them to the public or to others to manufacture similar machines therefrom, would result in irreparable injury and be the proper subject for the consideration of a Court of Equity.

The real question in the case is as to whether or net the plaintiff still has an exclusive property in the invention embodied in the patterns. It appears from the evidence that the plaintiff first invented what is known as Tabor’s rotary pump in the year 1861, and that he then obtained a patent upon it; that he continued to manufacture the pump so patented for a number of years until the patent expired; that about eight years ago he invented several improvements upon the old pump and then continued to manufacture the pump with these improvements and abandoned the manufacture of the old patented pump; that the patterns so surreptitiously procured by the defendant were copies of the patterns of the new improved pump.

The principle is well settled that an author or inventor has an exclusive property in his own composition or invention until its publication to the world. (Hammer v. Barnes, 26 How., 174; Kiernan v. The M. Q. T. Co., 50 id., 194; Potter v. McPherson, 21 Hun, 559 ; Palmer v. De Witt, 47 N. Y., 532; Peabody v. Norfolk, 98 Mass., 452; 2 Story’s Eq. Jur., § 952.) This the appellant concedes and it, therefore, becomes necessary to determine whether the plaintiff’s invention has been delivered to the world. So far as the patented pump is concerned, the plaintiff has doubtless no further exclusive property in the invention. The plans and specifications from which the machine was constructed were placed on file in the patent office, where they became the property of the public, and all persons desiring may have copies thereof. The time within which the plaintiff was secured the sole right to manufacture and sell by the terms of the patent, having expired, any person is at liberty to now engage in the manufacture and sale of such machines. But as to the improved machine, the subsequent inventions, a different question is presented. These improvements have never been patented and, consequently, the plaintiff is unable to claim any protection through the patent laws. He has invented and constructed patterns from which he has manufactured the improved pump. The pump so manufactured has been sold, and in that way given to the public; but the patterns from which it was manufactured have never been sold, but have always been kept subject to his own control and management. The sale of the machine does not amount to a publication of the patterns, plans and specifications from which the machine was constructed. It is possible that an individual may be able to procure plans and specifications and construct patterns from the machine that has been sold, and yet there are doubtless instances in which machinery is so complicated that it would be extremely difficult, if not impossible, so to do. In such a case the sale of the machine and its publication to the world would not enable others to manufacture and sell the same machine for the reason that the plans, specifications, patterns and devices by which the same was manufactured still remained a secret, locked up in the inventor’s manufactory. Suppose, for instance, that the successful operation of the machine required it to be constructed of a composition or combination of metals, which was the device and invention of the manufacturer; could it be said that the sale of the machine, to be devoted to the uses for which it was constructed, carried with it the right to the secret formula by which the inventor had compounded the material out of which it was constructed, or the manner in which the material had been treated and prepared for use ? We think not. Take a more common illustration, one with which the courts are familiar, having been the subject of frequent adjudications, that is, the compounding of medicines for specific diseases, where the inventor maintains the secret of the compounding as a part of his trade or business. The courts have uniformly restrained all persons in his employ who necessarily become possessed of the formula in the manufacture of the article, from subsequently engaging in its manufacture, or from imparting it to others, thus in effect holding that the sale of the compounded article to the world was not a publication of the formula or device used in its manufacture.

It consequently appears to us that the manufacture and sale of the pumps in question was not a publication of the plans, specifications and patterns from which the pump was manufactured. That so far as the improved pump was concerned, the plaintiff had the right to keep the plans, specifications and patterns from the public, and thus secure to himself the benefit of the business in which he was engaged; that the defendant had no right to procure copies surreptitiously, without the knowledge of the plaintiff, by employing one of his pattern-makers or repairers to so make them, and that the court has power to restrain the use of the pattern so acquired.

The judgment should, therefore, be affirmed with costs.

Smith, P. J., Barker and Bradley, JJ., concurred.

Judgmeut affirmed, with costs.


author: Haight , .:

text:
    SARAH V. DENISE, Appellant, v. DANIEL S. DENISE, as Administrator, etc., of DENISE DENISE, Deceased, Respondent.

      Practice — motions for new trials to be made in actions and not in special proceedings— Code of Civil Procedure, sec. 1002 — appeals in special proceedings are regulated by sections 1356 and 1357 of said Code and not by section 1346 — evidence — what testimony does not relate to a personal transaction with a deceased person — what payments relieve a claim from the bar of the statute of limitations.

    The provisions of section 1002 of the Code of Civil Procedure, relating to motions for a new trial, refer to motions in actions and have no application to special proceedings, such as references of disputed claims against the estate of deceased persons.
    Appeals from orders and judgments, entered in such proceedings, are regulated by sections 1356 and 1357 of the Code of Civil Procedure, and not by section 1346 thereof.

      Toung v. Cuddy (23 Hun, 249) criticised and doubted.
    On August 23, 1866, the appellant and one Denise entered into an agreement whereby, in consideration of their intermarriage, it was mutually agreed that each should hold, control and dispose of the real and personal property which he or she, respectively, had at the time of the marriage, or might thereafter acquire, the same as if the marriage had not taken place, except that in case she should survive him she should receive $1,000 from his estate. After the marriage the parties entered into a further verbal agreement by. which Denise agreed to pay to the appellant $300 a year in consideration that she should provide at her furnished house in which they were to reside everything necessary for a living for them both during life. Pursuant to this agreement Denise lived’with the appellant and was supported by her until April 11, 1879, except for a period of nineteen months. In each year he paid her some money and furnished some of the provisions, amounting in the aggregate to eighty dollars a year.
    Upon the hearing before a referee, in proceedings to enforce payment of the amount claimed to be due from the estate of Denise, the appellant was allowed, against the objection and exception of the respondent, to answer the question: “From the date of your marriage to 16th of November, 1874, who provided the necessaries for the house and the support of the family ? ” by saying, “ we both did it; he got some things and I got the rest.”

      Held, no error, as the question did not necessarily call for any personal transaction or communication with the deceased so as to render it inadmissible under section 829 of the Code of Civil Procedure.
    That the annual payments relieved the claim from the operation of the statute of limitations.

      Gilbert v. Comstock (93 N. Y., 484) followed.

      Appeal from an order of the Monroe Special Term, denying the plaintiff’s motion for a confirmation of a referee’s report and granting the defendant’s motion for a new trial.

      J. (& Q. Van Voorhis, for the appellant.

      Horace L. Bennett, for the respondent.
   Haight , .:

The appellant presented a claim against the estate of Denise Denise, deceased, which was rejected by the defendant as administrator, and duly referred under the statute. The referee found, as facts, that on the 23d day of August, 1866, Denise Denise was a widower of the age of sixty-seven years; that he then entered into an agreement with the plaintiff whereby, in consideration of their intermarriage, it was mutually agreed that each should hold, control and dispose of the real and personal property which he or she respectively had at the time of the marriage or might thereafter acquire, the same as if the marriage had not taken place, except that in ease she survived him she was to receive $1,000 from the estate; that on that day the parties intermarried, and that at about the date of the marriage the parties entered into a further verbal agreement by which Mr. Denise agreed to pay Mrs. Denise $300 a year in consideration that she provide at her furnished house in Spencerport, in which they were to reside, everything necessary for a living for them both during life ; that pursuant to that agreement he went to live with her in her house at Spencerport, and was supported by her until the lltli day of April, 1879, except for the period of about nineteen months ; that each year he paid her some money and furnished some of the provisions, amounting in the aggregate to eighty dollars a year and no more; and, as a conclusion of law, found that she was entitled to recover of the defendant, as administrator, the sum of $2,400. Motion was made on the part of the plaintiff for a con firmation of the report, and at the same time a motion was noticed on the part of the defendant for a new trial. The Special Term granted the motion for a neiv trial upon the ground, as appears by its memorandum, that the referee erred in the admission of evidence. From such order the plaintiff now appeals to this court.

She contends, in the first place, that under section 1002 of the Code the Special Tenn liad no power to review the report of a referee upon an allegation of error in a finding of fact or ruling upon the law; that under section 1316 of the Code an appeal could now be taken from the judgment.

The reference of disputed claims against the estate of a deceased person under the statute is a special proceeding. (Roe v. Boyle, 81 N. Y., 305.) The motions for new trial provided for by section 1002 evidently have reference to motions in actions and have no application to special proceedings.

Section 1316 provides that “ an appeal may be .taken to the General Term of the Supreme Court or of a Superior City Court, from a final judgment rendered in the same court, as follows: “ First, where a judgment was rendered upon a trial by a referee or by the court without a jury, the appeal may be taken upon questions of law or upon the facts, or upon both.”

We are aware that the Second Department, in the case of Young v. Cuddy (23 Hun, 249), has held that an appeal may be taken from the judgment under this section, but the correctness of this conclusion may be questioned in view of the fact that subdivision 20 of section 3313 of the Code provides: “ The word £ action ’ refers to a civil action; the word ‘judgment’ to a judgment in such an action; the term ‘ special proceeding ’ to a civil special proceeding,” etc. Under this provision we are required to construe the term ‘final judgment’ appearing in section 1316 as meaning a final judgment in an action, and, consequently, it could not have reference to a judgment in a special proceeding. Appeals from special proceedings are provided for by sections 1356 and 1357 of the Code.

Upon the trial the plaintiff was sworn as a witness in her own behalf and was asked the following question. “ From the date of your marriage to 16th of November, 1871, who provided the necessaries for the house and the support of the family ? ” The question was objected to as incompetent under section 829 of the Code. The objection was overruled and exception taken and the witness answered: “We both did it; he got some things and I got the rest.” It was because of this ruling that the Special Term granted the motion for a new trial. There was no motion made to strike out the answer. The chief question in controversy was whether or not the deceased had agreed to pay the plaintiff $300 per year, to support the family. Her right to recover depended upon the establishing of this agreement. It was also necessary for her to show performance on her part. But the question did not necessarily call for any personal transaction or communication with the deceased. It already appeared that Mr. Brown had furnished the provisions and supported the family for the space of about nineteen months, an d if the answer had been that Mr. Brown had furnished the provisions, the question certainly would not have been objectionable under the section of the Code referred to, or had she testified that she went to the store' and purchased all of the necessaries for the house it would not have been a personal transaction with the deceased, but a separate independent act which she would have the right to testify to. (Lewis v. Merritt, 98 N. Y., 206.)

The answer includes the acts of both herself and the deceased, but does not necessarily indicate that they acted together, or that the transactions were personal, except in so far as it may be an admission on her part that the deceased furnished to her some of the provisions, and this the defendant could not take advantage oi on an appeal, even though it was, under the provisions of the Code, incompetent, for the reason that the answer was in his interest and he suffered no prejudice therefrom. We are consequently inclined to doubt the correctness of the conclusion reached by the Special Term, and are of the opinion that a new trial ought not to have been granted upon this ground. An examination of the case upon the merits discloses ample evidence to sustain the finding of the referee. The fact that the agreement was made to pay her $300 per year, was conceded by the deceased down to within a few days of the time that they separated. There does not appear to be any substantial dispute as to the amount that he paid per year ; so that upon the merits no reasons appear for interfering with the report of the referee.

It is contended, on the part of the respondent, that the plaintiff’s claim, or some portion thereof, was barred by the statute of limitations, but upon the authority of Gilbert v. Comstock (93 N. Y., 484), we must hold that the annual payments relieve the claim from the operation of the statute.

The order of the Special Term should be reversed, and motion to confirm the referee’s report and for judgment granted; that the plaintiff recover the referee’s fees and disbursements paid by her, together with the costs of this appeal, and that the same be paid out of the estate of the deceased.

Barker and Bradley, JJ., concurred; Smith, P.J., not sitting

•Order of the Special Term reversed, and motion to confirm referee’s report and for judgment granted; the plaintiff'to recover referee’s fees and disbursements, together with the costs of this appeal to be paid out of the estate.


text:
    THE FIRST NATIONAL BANK OF RICHBURG, Respondent, v. CHARLES DOW and ANSON D. BROWN. HORACE H. FRENCH, Appellant.

      Deed — token a right to oil, minerals, etc., in land reserved to the grantor is liable to sale under execution — to what interests only chapter 372 of 1883 relates.

    One Dow, the owner in fee of certain land, sold and conveyed the same to one Jackson, “ excepting and reserving all the oil, gas and other minerals in and beneath tl^e surface of the said premises, with the exclusive right to dig, mine, bore and operate for the same on said premises, and with the right of way over said premises, ingress thereto and egress therefrom, as the same may be necessary or convenient for such operations, for a period of twelve years from August 2, 1882, and with the right during said period to use so much of said premises as may be convenient or necessary to erect and place thereon tanks, engines, boilers, derricks, buildings and machinery and other structures for the purpose of such operations, and at any time to remove therefrom all such tanks, structures and machinery; and, also, reserving the right to take water off said premises, or to use the same as may be required for such operations, during said period.”

      Reid, that the interest reserved to Dow in the deed was an interest in real estate, a chattel real, which was subject to the lien of judgments recovered against him, and to sale under executions issued thereon.
    Section 1 of chapter 372 of 1883, providing that “all oil wells and all fixtures connected therewith, situate on lands leased for oil purposes; and oil interests and rights held under and by virtue of any lease or contract, or-other right or license to operate for or produce petroleum oil, shall be deemed personal property for all purposes except taxation, but nothing herein contained shall affect the laws now in force relating to taxation,” has no reference to an estate such as that reserved to Dow.

      Appeal from an order of the Allegany Special Term, denying a motion to vacate an in junction restraining the defendant French from operating or producing oil upon certain premises in Allegany county.

      William H. Henderson, for appellant French.

      Charles H. Brown, for the respondent.
   Haight, J.:

On the 20th day of October, 1883, the plaintiff recovered a judgment against the defendant Dow, which was duly filed and docketed in the office of the clerk of Allegany county. Execution thereon was issued and delivered to the sheriff of that county, who on the 31st day of August, 1885, advertised and sold to the plaintiff all the right, title and interest of the defendant Dow in a parcel of real estate situate in that county. Prior to the rendition of the judgment, Dow was the owner of the land in fee, and on the 2d day of August, 18S2, entered into a contract with one Cornelia Howard to sell and convey to her all his right, title and interest in the land, except as hereinafter stated, and subsequently and on the 3d day of January, 1884, in pursuance of- the contract, he executed and delivered to Thomas Jackson, her assignee, a deed of the same. The contract and deed contained the following reservation: “ Excepting and reserving all the oil, gas and other minerals in and beneath the surface of the said premises, with the exclusive right to dig, mine, bore and operate for the same on said premises, and with the right of way over said premises, ingress thereto and egress therefrom, as the same may be necessary or convenient for such operations for a period of twelve years, from August 2, 1882, and with the right during said period to use so much of said premises as may be convenient or necessary, to erect and place thereon tanks, engines, boilers, derricks, buildings and machinery and other structures for the purpose of such operations, and at any time to remove therefrom all such tanks, structures and machinery, and also reserving the right to take water off said premises or to use the same as may be required for such operations during said period.” Subsequently, and on the 11th day of April, 1885, the defendant Dow executed and delivered to the defendant French a deed of all of the right, title and interest reserved by him in such premises.

The question thus presented is, whether or not the reservation in the deed from Dow to Jackson was an interest in real estate to which the lien of the plaintiff’s judgment would attach? Upon the argument it was stated, on the part of the appellant, that it would be were it not for the act of May 10, 1883.

The act is as follows: All oil wells and all fixtures connected therewith, situate on lands leased for oil purposes and oil interests, and rights held under and by. virtue of any lease or contract or other right or license to operate for or produce petroleum oil, shall be deemed personal property for all purposes except taxation, but nothing herein contained shall affect the laws now in force relating to taxation.”

It is contended, on the part of the appellant, that the only interest that Dow reserved in the land, was a license to enter and put down oil wells and operate for and take the oil therefrom during the term of twelve years, and that it was consequently within the provision of the statute quoted. A careful reading of the reservation will disclose the fact that this claim is not well founded, for he not only-reserves the oil, gas and other minerals, but he reserves the exclusive right to dig, mine and bore for the same, with the right of way over the premises, ingress and egress to and from, with the right to use so much of the premises as may be convenient or necessary in his operation. Not only the oil, but every other mineral, iron, coal, lead or whatever other mineral that exists beneatli the surface was reserved. He was the owner in fee; he conveyed the fee, reserving therefrom this interest for a term of years, which, under the statute, is denominated a chattel real. The statute to which we have referred pertains to lands leased for oil purposes and oil interests, held under and by virtue of a lease or contract, or right or license to operate for oil. It has no reference to an estate carved out of the fee. Such an estate frequently exists.

In the case of Ryckman v. Gillis (57 N. Y., 68, 73) Lott, Ch. C., says: That in the ownership of mineral lands, “ the surface and the subjacent mines may be and often are owned by different parties and by separate titles, the division being by a horizontal line; there is a distinct freehold in each of them.”

In the case of Marvin v. Brewster Iron Mining Company (55 N. Y., 538, 548) Folger, J., in delivering the opinion of the court says: “A reserve of minerals and mining rights is construed as an actual grant thereof. It differs not whether the right to mine is by an exception from the deed of the surface or by a grant of the mine by the owner of the whole estate therein, reserving to himself the surface. A reservation of minerals and mining rights from a grant of the estate, followed by a grant to another of all that which was first reserved, vests in the second grantee an estate as broad as if the entire estate had been first granted to him with a reservation of the surface.” (See, also, Appeal of Stoughton et al., 88 Pa. St., 198, 201 ; Duke v. Hague, 107 id., 57, 65; Broman v. Young, 35 Hun, 173, 181.)

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Smith, P. J., and Bradley, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Haight, J. :

text:
    ROXANNA B. BROWN, as Executrix, etc., of MARCUS J. ELY and Others, Respondents, v. GEORGE H. HOUCK, Appellant, Impleaded with GEORGE W. PROVOST.

      Action to recovex' money, loaned by a tax collector from taxes collected by him — when it cannot be recovered from one receiving it in good faith and for a valuable consideration.

    The plaintiff having been, compelled, as one of the sureties upon the bond of a town tax collector, to pay to the county treasurer the sum of $1,428 which had been received but not paid over by the collector, brought this action against the defendant, alleging that he borrowed of the tax collector $1,211.92 of the tax moneys collected by him for taxes, knowing that the moneys so borrowed were tax moneys.
    Upon the trial the defendant offered, but was not allowed, to prove that the tax collector was a member of the firm of John Provost & Son; that after the defendant had borrowed the money he sold beef to the said firm for some five months; that it was agreed that the money in his hands should go to pay for any balance that might be due him for meat furnished, and that upon the settlement of the accounts the firm was indebted to him for more than $800; that he did not know that the money borrowed was part of the tax moneys.

      Held, that the court erred in excluding the evidence; that if the defendant could have shown that he did not know the funds borrowed by him were tax moneys, and that he, in good faith, sold and delivered to Provost meat of the value of $800, with the understanding and agreement that it should be deducted from the loan, it would, to that extent, establish a defense.
    Appeal from a judgment in favor of the plaintiffs, entered upon a verdict rendered at the IVIonroe Circuit.

      Raines Brothers, for the appellant.

      J. A. Stull, for the respondents.
   Haight, J. :

In the spring of 1876, George W. Provost was elected collector of taxes for the town of Kush. He qualified and entered upon the discharge of his office, giving the usual official bond as town collector, signed by the plaintiffs as sureties. In December of that year the annual tax roll of the town, with warrant attached, was issued to him commanding him to collect the sum of $11,165.05 and pay the same over to the county treasurer. Of the sum collected by him as such collector he paid over to the treasurer all except the sum of $2,065, as to which sum he made default. Thereafter the plaintiffs, as sureties upon his bond, were required to and did pay to the treasurer of the county the sum of $1,423, which sum, with certain personal property of Provost’s which they had caused to be sold and converted into money, made up the deficit. This action was brought to recover of the defendants the amount so paid- by the plaintiffs. It was claimed, on the part of the plaintiffs, that the defendant Houck borrowed of George W. Provost $1,211.92 of the moneys collected by him as town collector, and that Houck knew at the time he so borrowed the money that it was tax moneys. It was claimed, on behalf of the defendant Houck, that, he did not know that the moneys borrowed were tax moneys; that he had subsequently sold to Provost a large quantity of beef, and had made some payments in cash by which the money loaned was fully repaid and settled. The evidence upon the questions of the loans being made from the tax, and of Houck’s knowledge that it was tax money, was conflicting. It was of that character that made it a question for the jury to dispose of. The jury would have been justified in finding that at least a portion of the money loaned by Provost to Houck was tax money, and that Houck knew it at the time of making the loan, So that there, was no error in refusing the defendants’ motion for a nonsuit.

The court in its charge first submitted to the jury the question as to whether or not the loans made were in fact made from the tax money, and then said : “ If you come to the conclusion that this was tax money the plaintiffs are entitled to recover. It makes no difference on this branch of the case whether Houck knew it was tax money. If he borrowed the tax money it was his misfortune. The only question for you up to this time is whether this was tax money, and how much of it Houck had ?” To this the defendant excepted, and requested the court to charge that if Houck, not knowing that any of these moneys were tax moneys, received the moneys and parted with the full and fair consideration for them, they cannot be recovered back. This request .was declined and .exception was taken. Upon the trial the defendant offered to show that the firm of John Provost & Son, of which the defendant George W. Provost was a member, became indebted to the defendant Houck for the price of beef sold to them between the first ,of May and the middle of October, 1877, for a balance of over $800; that upon a settlement of accounts it was agreed to apply ¡the meat balance upon the loans made by Houck. And, again, that an agreement was made at the time, that the money that Houck had in his hands should go to pay for any balance that might be due him for meat furnished by him during that summer. These offers were ■objected to; the objection was sustained and the evidence excluded. The question is thus presented as to whether or not this action can be maintained if the defendant Houck has sold and delivered beef ¡to the defendant Provost in payment of the money loaned, without knowledge that it was tax money. The plaintiffs, as sureties, having been required to make good the loss to the treasury of the money misappropriated, undoubtedly became subrogated to all >the rights and remedies of the rightful owner, and as such may pursue the money in the hands of all persons in- which it may be found who have received it with knowledge that it was tax money, and .the fact that a person had received such money in payment for property sold would be no defense, if at the time he had notice, actual or constructive, of the character of the money; but a bona fide seller for a valuable consideration, without notice, express or implied, is entitled to full protection. And if a trustee loans a trust fund in breach of the trust, and the borrower has notice of the trust and the breach, he becomes a quasi trustee, and he cannot separate the loan from the trust so as to relieve himself from liability to the cestui que trust. If, however, the borrower has no notice of the trust and of the breach — if he subsequently and before knowledge repays the same by the sale of property for full value, he should be protected even though he would not be permitted to apply the sum upon an antecedent debt. (1 Perry on Trusts, § 218; 2 id., §§ 828 to 832, inclusive; Tiffany & Bullard on the Law of Trusts, 197 ; Thorndike v. Hunt, 3 De Gex & Jones’ Ch., 563; Stephens v. The Board of Education of the City of Brooklyn, 79 N. Y., 183 ; The Grand Trunk Railway Co. v. Edwards, 56 Barb., 408 ; Segelken v. Meyer, 94 N. Y., 473 ; Boyce v. Brockway, 31 id., 490; The Fifth National Bank v. The Village of Hyde Park, 101 Ill., 595 ; Wetmore v. Porter, 92 N. Y., 76.)

If, therefore, the defendant Houck had no knowledge that the funds borrowed by him were trust funds, and could have shown that in good faith he sold and delivered to the defendant Provost meat of the value of $800, with the understanding and agreement that it should be deducted from the amount loaned, it would to that extent establish a defense, and we are of the opinion that the exclusion of the evidence was erroneous.

Judgment should be reversed and a new trial ordered, with costs to abide the event.

Smith, P. J., Barker and Bradley, J. J., concurred.

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


text:
    EDWARD J. KELSEY, Respondent, v. THE PFAUDLER PROCESS FERMENTATION COMPANY, Appellant.

      Application to examine boohs of a corporation — when a refusal by the company to allozo such examination does not subject the company to the penally imposed by section 35 of chapter 40 of 1848.
    This action was brought to recover the penalty imposed by section 35 of chapter 40 of 1848, for a refusal to exhibit to a stockholder the stock-book or ledger kept by a corporation. It appeared from the testimony of the plaintiff that on the 37th day of September, 1881, he, in company with his attorney, called at the defendant’s office and asked to see the president; that the president, who was in an adjoining room, came m and the attorney asked him if they could see the stock-book and record-hook of the company. lie replied that Mr. Puffer had the key to the safe where they were locked up, and that he was out of town and that no one else knew the combination and could open the safe, and that Mr. Puffer would be back early Monday morning and that if they would come m then they could see the books. On Monday morning the3r did go in, found Mr. Puffer and saw the books.

      Held, that the court erred in denying a motion for a nonsuit made upon the ground that no cause of action had been proved; that no refusal to exhibit the hooks or to allow the same to be inspected was shown.
    Appeal íwm a judgment in favor of the plaintiff, entered upon a verdict rendered at the Monroe Circuit.

      John Van Voorhis, for the appellant.

      Theodore Bacon, for the respondent.
   Haight, J.:

This action was brought to recover the penalty given by the. statute for refusing to exhibit to a stockholder the stock-book or ledger kept by the company. The plaintiff was sworn as a witness in his own behalf upon the trial, and testified that on the 27th day of September, 1881, be, in company with John Barhite, bis attorney, called at the defendant’s office and asked to see Mr. Sargeant, the president; that Mr. Sargeant was in an adjoining room and came in, and Mr. Barhite asked hiin if they could see the stock-book and record-book of the company. Mr. Sargeant said that Mr. Puffer had the key to the safe where they were locked up and that he was out of town, and that no one else knew the combination, and could open the safe, and lie thinks that Mr. Sargent told him that Puffer would be back early Monday morning, and if they would come in Monday morning they could see the books. On Monday morning they did go in, found Mr. Puffer, and the books were exhibited to them. Other evidence was given tending to show that this took place Saturday afternoon; that Mr. Puffer was the clerk having charge of the books, and that at that time he was in the city of New York. At the conclusion of the plaintiff’s evidence the defendant’s counsel asked for a nonsuit upon the ground that no cause of action had been proved. The motion was denied and exception taken. The statute under which this action was brought provides as follows: “It shall be the duty of the trustees of every such corporation or company to cause a book to be kept by the treasurer or clerk thereof, containing the names of all persons, alphabetically arranged, who are or shall within six years have been stockholders of such company, showing their places of residence, the number of shares of stock held by them respectively, and the time when they respectively became the owners of such shares, and the amount of stock actually paid in; which book shall, during the usual business hours of the day, on every day except Sunday and the fourth day of July, be open for the inspection of stockholders and creditors of the company and their personal representatives, at the office or principal place of business of such company in the county where its business operations shall be located; and any and every such stockholder, creditor or representative shall have the right to make extracts from such book; and no transfer of stock shall be valid for any purpose whatever, except to render the person to whom it shall be transferred liable for the debts of the company, according to the provisions of this act, until it shall have been entered therein as required by this section, by an entry showing to and from whom it was transferred ; such book shall be presumptive evidence of the facts therein stated in favor of the plaintiff in any suit or proceedings against such company or against one or more stockholders. Every officer or agent of any such company, who shall neglect to make any proper entry in such book or shall refuse or neglect to exhibit the same or allow the same to be inspected and extracts taken therefrom as provided by this section, shall be guilty of a misdemeanor, and the company shall forfeit and pay to the party injured a penalty of fifty dollars for every such neglect or refusal, and all the damages resulting therefrom.” (Laws of 1848, chap. 40, § 25.)

The court, in submitting the case to the jury, assumed that there was a refusal to exhibit the books called for and only submitted the question as to whether a demand had been made and whether or not the plaintiff acquiesced in the request to wait until Monday, and if the jury found that the demand was made and the plaintiff did not consent to wait until Monday to see the books, that then he had the right to recover. If this construction of the statute is to be adhered to it would follow that the officer having charge of the books would be required to attend at the office on every day of the year except Sundays and the fourth day of July, including every public holiday, for the purpose of exhibiting the books in case they were called for. He could not lock the books up in the place provided for them to even attend the funeral of a member of his own family without incurring the risk of a conviction for a misdemeanor and subject his company to the liability for a penalty. It does not appear to us that any such strict construction should be given to the statute, but, on the contrary, that we should consider the object and purpose for which it was enacted and give effect to its spirit. It was evidently enacted for the purpose of affording protection to the stockholders and creditors of the company; its object was to give a liberal opportunity at all reasonable times to examine the books and to punish the person in charge who should willfully and intentionally deprive them of such examination. It appears that the company had provided a safe in which the books were kept. This was but a reasonable and proper precaution as a guard against burglars and fire. Mr. Puffer was the clerk who kept the books and had charge of them. He had the key and combination of the safe. If he was necessarily called away ■ temporarily for a short time it does not appear to us that it would be unreasonable to request the plaintiff to wait until the morning of the next business day to see the books. To hold that the officer left in charge of the office under such circumstances should become liable to a conviction for a misdemeanor and the company to a penalty of fifty dollars, appears to us to be unreasonable and unjust. No evidence was given tending to show that the books were not locked up in the safe, or that Mr. Sargeant had the key and combination so that he could produce the books. Had such evidence been given a different question would have been presented. As the evidence stands it appears to us that a nonsuit would have been proper.

Again, Mr. Barhite was sworn as a witness on behalf of the plaintiff and gave evidence as to the conversation that took place between him and Mr. Sargeant at the time he visited the office in company with the plaintiff and asked to see the books. After the plaintiff had rested, Mr. Markham was sworn as a witness on behalf of the defendant and testified that he was present in the office on the 27th day of September, 188é, at the time that plaintiff and Mr. Barhite called. He was then asked the question: What did Mr. Barhite state ? ” This was objected to by the plaintiff and the objection was sustained and exception taken. We are of the opinion that this ruling was erroneous. The plaintiff was permitted to prove the conversation that took place by Mr. Barhite himself, at the time of making the demand, and yet the defendant, by this ruling, was prohibited from giving evidence as to the conversation.

We are of the opinion that for the reasons before stated the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Smith, P. J., concurred; Bradley, J., concurred in result.

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


author: Smith, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. HENRY SCHAEFFER, Appellant.

      Sale of adulterated milk —1884, chap. 202, and 1885, chaps. 183 and 458 — to constitute the offense neither knowledge nor intent need he shown.

    Upon the trial of the defendant for selling impure, unwholesome and adulterated milk contrary to the provisions of chapter 202 of 1884, and chapters 183 and 458 of 1885, the prosecution gave evidence tending to show that in November, 1885, a clerk in the defendant’s grocery store, in Buffalo, sold to one Vandenburg, a local inspector employed by the dairy commissioners, a pint of milk which was shown by chemical analysis to be diluted with water to the extent oí about ninety per cent. A motion, made by the defendant’s counsel for a dismissal of the charge on the ground, among others, that there was no proof of any guilty knowledge or intent, having been denied, the defendant gave evidence tending to show that he sold the milk just as it came from the producers and that he had not adulterated or diluted it in any way, and that he had no knowledge that it was in any way diluted or adulterated. The derendant’s counsel then renewed his motion to dismiss, and upon its denial asked, but was not allowed, to go to the jury upon the question of the defendant’s guilty knowledge or intent.

      Held, that no error was committed in the rulings made by the court below.

      The Peoples. Qipperly (Ct. of App. [3 Eastern Rep.], 558; reversing S. 0., 37 Hun, 319) followed.
    Appeal frorii a judgment of tlie Court of Sessions of Erie county, affirming a judgment of the Police Court of the city of Buffalo.

      Traoy C. Becker, for the appellant.

      Edward IF. Hatch, district attorney, and Wadsworth <& Loveridge, for the respondent.
   Smith, P. J.:

The defendant was convicted of the offense of selling impure, unwholesome and adulterated milk, contrary to the provisions of chapter 202 of the Laws of 1884, and chapters 183 and 458 of the Laws of 1885. The first section of the act of 1884 makes the sale of any unclean, impure, unhealthy, adulterated or unwholesome milk a misdemeanor, punishable as therein described. The thirteenth section provides that in all prosecutions under the act for a violation of the provision above stated, if the milk be shown to contain more than eighty-eight per centum of water or fluids, or less than twelve per centum of milk solids, which shall contain not less than three per centum of fat, it shall be declared adulterated. Like provisions are contained in chapter 183 of the Laws of 1885. (Secs. 1 and 16.) The doing of anything prohibited being done, and the not doing of anything directed to be done by said acts, are declared to be presumptive evidence of a wilful intent to violate the act (Laws of 1884, chap. 202, § 14; Laws of 1885, chap. 183, § 17); and by the later act above cited, are declared to be evidence of such intent, the word “presumptive” being omitted. (Laws of 1885, chap. 458, § 4.)

The prosecution, in this case, gave evidence tending to show that in November, 1885, a clerk in the defendant’s grocery store, in Buffalo, sold to one Vandenbergh, a local inspector employed by the dairy commissioner, a pint of milk which was shown by chemical analysis to be diluted with water to the extent of about ninety per cent. The defendant’s counsel moved that the charge be dismissed on the ground, among others, that there was no proof of any guilty knowledge or intent. The motion was denied, and the defendant then gave evidence tending to show that he sold the milk just as it came from the producers; that he had not adulterated or diluted it in any way, and that he had no knowledge that it was in any way diluted or adulterated. He then renewed his motion for a discharge, which was denied, and he asked to go to the jury upon the question of his guilty knowledge or intent, which also was denied.

The only questions argued on this appeal are whether those rulings were erroneous. It would seem that the case of The People v. Cipperly, decided by the Court of Appeals (3 Eastern Rep., 558; reversing S. C., 37 Hun, 319], is an adjudication of those questions adverse to the appellant. The report of that case in the Supreme Court states that the objection was taken by the defendant at the trial, that no criminal intent was shown, and exceptions were taken to the exclusion of evidence by which it was proposed to show that the defendant had no criminal intent. (37 iíun, 320.) It is true the only question discussed in the opinions delivered in the Supreme Court and ir. the Court of Appeals is that of the constitutionality of the provision in the thirteenth section of the act of 1881, above referred to. But the discussion of the Court of Appeals affirming the conviction could not have been reached without holding that the rulings of the trial court in the particulars above pointed out were correct.

But if the questions are to be regarded as now open, we think they must be ruled against the appellant. The offense aimed at by the statutes under consideration is the sale of adulterated milk. The offense is established by proof of a sale of milk, which is shown to be adulterated when tested by the standard set up by the act. That the seller had knowledge of the adulteration need not be shown. The first section, which defines the offense of which the defendant is convicted, is silent as to the intent, while other sections, defining other offenses, make the intent a necessary ingredient. (Secs. 7, 8, chap. 183 of 1885.) A like question is considered by us in the case of The People v. Mahaney, decided at the present term, and the reasons there assigned for our decision of the question in that case are applicable to this.

The judgment should be affirmed.

Haight and Bradley, J. J., concurred; Barker, J., not sitting.

Judgment affirmed and proceedings remitted to the Court of Sessions of Erie county to proceed thereon.


author: Smith, P. J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. DANIEL MAHANEY, Appellant.

      Sale of adulterated butter — what must be shown to authorize a conviction under chapter 246 of 1882 — what to rebut the presumption created by second section — sale of adulterated as well as of spurious butter prohibited.

    To justify the conviction of a person accused of violating section 1 of chapter 246 of 1882, by selling a substance that is not butter, upon the representation that it is butter, it is not necessary to prove that the seller intended to deceive, or that he knew that the article sold was not butter. The seller subjects himself to the penalty imposed by the statute bv making the representation, not knowing it to be true.
    The second section of the act provides that the sale by any person of such oleomargarine, butlerine, suine or other substance not butter, representing the same to be butter, shall be deemed presumptive evidence of the guilt of such person.

      Held, that the presumption created by this section was not met by showing the absence of knowledge and intent to deceive, but only by controverting the testimony on the part of the prosecution tending to show the sale or the false representation. <
    The evidence produced upon the trial of this action showed that the defendant sold at his grocery store, in Buffalo, an article which he represented to be butter, and which, on being analyzed, was found to contain about seventy-five per cent of butter, and twenty-five per cent, or thereabouts, of foreign fat, or fatty substances, other than butter. The foreign matter was not shown to be oleomargarine, suine or butterine.

      Held, that the evidence showed the defendant to have been guilty of a violation of the act, which prohibited the sale of not only the various kinds of manufactured butters specified in tbe act, but of any substance not butter, and, therefore, of any butter adulterated with foreign substances, without regard to the degree of the adulteration.
    Appeal from a judgment of the Court of Sessions of Erie county, entered upon a verdict convicting the defendant of the offense of selling a substance not butter, representing the same to be butter, contrary to the provisions of chapter 246 of the Laws of 1882 ; also, from an order denying defendant’s motion in arrest of judgment, and an order denying his motion for a new trial.

      Tracy G. Becker, for the appellant.

      George T. Quinby, assistant district attorney, for the respondent.
   Smith, P. J. :

The first section of the statute under which the defendant was indicted, provides that any person who shall sell, either at wholesale or retail, any oleomargarine, butterine, suine or other substance not butter, and represent the same to be butter,- shall be-deemed to be guilty of a misdemeanor, and upon conviction shall be subject to the penalties therein prescribed. The second section provides that the sale by any person of such oleomargarine, butterine, suine or other substance not butter, representing the same to be butter, shall be deemed presumptive evidence of the guilt of such person.

The evidence shows that the defendant sold at his grocery store, in Buffalo, an article which he represented to be butter, and which on being analyzed was found, according to the testimony of the witness who analyzed it, to contain about seventy-five per cent of butter and twenty-five per cent, or thereabouts, of foreign fat or fatty substances other than butter. The article sold was not shown to be oleomargarine, suine or butterine. There was no evidence that the defendant knew that the article sold contained any substance which was not butter.

Two questions are presented on this appeal. The first is, whether the conviction can be maintained in the absence of proof that the defendant knowingly and intentionally misrepresented the ai'ticle sold to be butter. The offense is described in the first section of the act, and as there described it consists in the sale of an article that is not butter, the seller representing it to be butter. To meet the requirements of that section it is enough to prove the sale and the false representation. Whether or not the seller knows his representations to be false, or intends to deceive, is immaterial. lie subjects himself to the penalties of the statute by making the representation, not knowing it to be true. The like construction was put upon a similar statute in Massachusetts. (Commonwealth v. Farren, 9 Allen, 489.) And the decision was subsequently approved. (Com. v. Nichols, 10 Allen, 199; Com. v. Waite, 11 id., 264; see, also, People v. Nobles, 1 N. Y. Cr. Rep., 459; Regina v. Woodrow, 15 Mees. & Wels., 403; Com. v. Boynton, 2 Allen, 160; Barnes v. State, 19 Conn., 398.)

But it is contended, by the defendant’s counsel, that the second section of the act makes the proof of sale and false representation only presumptive evidence of guilt; that such presumption may be repelled, and in fact was repelled, by proof that the defendant did not know that the butter sold by him was adulterated. We are not prepared to assent to that position. The object of the second section, as we read it, is to dispense with the necessity of proving guilty knowledge or intent. This it does by providing that proof of sale and false representation shall be presumptive evidence of guilt. The presumption is not to be met by showing the absence of knowledge and intent to deceive, which, as we have seen in considering the first section, is wholly immaterial, but it maybe met by controverting the testimony on the part of the prosecution tending to show the sale or the false representation.

The other question is, whether the case is within the statute, the sale being, not of spurious butter, such as oleomargarine, butteriue or suine, but of genuine butter, the product of the dairy, which had been adulterated by the addition of some foreign substance. The question is answered by the plain language of the act. It condemns the sale, not only of the various kinds of manufactured spurious butter above mentioned, but also of any other substance not butter, the seller representing it to be butter. Here twenty-five per cent, or thereabouts, of the article sold being of a substance which was not butter, the case is as clearly within the statute as if the adulteration had been to the extent of seventy-five per cent. The difference is only in degree. If adulterations of that sort were permitted the purpose of the act would be defeated. That the legislature had the constitutional power to pass the act referred 'to is not questioned by the appellant’s counsel. With its policy we have nothing to do.

We think the judgment and order should be affirmed.

Haight and Bradley, JJ., concur; Barker, J., not sitting.

Judgment and orders affirmed, and proceedings remitted to the Court of Sessions of Erie county to proceed thereon.