text:
    Elizabeth Gibbons, Resp’t, v. The Village of Phœnix, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Negligence—Contributory.
    In an action for injuries caused by a fall on a defective sidewalk plaintiff testified that she knew the walk was poor, but did not see the hole, as she was looking at her child's dress in front of her. There was a broken plank at the spot which would go down when stepped on. No point as to contributory negligence was made at the trial, nor any motion for nonsuit made. Held, that the verdict in favor of plaintiff could not be disturbed on the ground of contributory negligence.
    2. Same—Evidence.
    Evidence of plaintiff’s physician to the effect that a miscarriage subsequently suffered by her might be traced to the injury she received in such fall, is admissible.

      Appeal from a judgment entered in Oswego county on the 28th October, 1890, upon a verdict in favor of the plaintiff for $300 -at the Oswego October circuit; appeal also from an order denying a motion on the minutes for a new trial.
    The action is based on negligence and is brought to recover the damages sustained by plaintiff in falling upon a sidewalk in the village of Phcenix on the 24th June, 1890.

      Avery & Merry, for app’lt; O. M. Reilly, for resp’t.
   Merwin, J.

—Mo question is made about the negligence of the defendant. Tery clearly that was a question for the jury. It is not so clear as to the absence of negligence on the part of the plaintiff. In the forenoon' of a pleasant day, the plaintiff, with two small children, one about three years old and the other two, was passing along the sidewalk in question when, as she says, her foot went down in a hole and she fell on her knees and a piece of board flew up and struck her in the side. She had one of the children by the right hand and the other was just ahead.. She says: “I knew the sidewalk was poor, but I didn’t see the hole before I fell; I was looking right down at my child’s dress in front of me; he had passed over the hole in which I fell; he only just stepped over and I went right along behind him and like to went right into the hole; down I fell upon my knees. * * * I was walking very slow when the accident occurred; I was not giving any attention to the sidewalk; I was walking along just the same as I would at any other time.” From other evidence it appeared that there was at that point a broken plank, which when stepped on would go down, and that it may have been so placed that no hole was apparent until the plank was actually stepped on. If that was so, it would materially affect the question of contributory negligence.

At the trial no point was made as to contributory negligence, nor was any motion for nonsuit made. The case upon its merits-was fully and fairly presented to the jury by the court in a charge that was not excepted to.

In Palmer v. Dearing, 93 N. Y., 10, it is said: “ While previous knowledge by a party injured of a dangerous situation, or impending danger, from which a person of ordinary intelligence and. prudence might reasonably apprehend injury, generally imposes upom him the duty of exercising greater care and caution in approaching it, vet the degree of care which should be required of such a person has uniformly been held in this state to be a question of fact to be determined by the jury.”

In view of this rule, and the failure to raise any question on the subject at the trial, we think that the verdict should not be interfered with on the ground of contributory negligence.

It is further claimed by the appellant that the evidence in the case is not sufficient to warant the jury in finding that the miscarriage complained of was caused by the fall. The evidence on this subject was conflicting. Its weight upon either side of the disputed question was for the jury, and no sufficient ground is apparent for us to interfere. The physician who attended the plaintiff after the injury was allowed to state, in reference to the cause of the miscarriage, that it might be traced to the injury she received in falling on the sidewalk. This was proper. Turner v. City of Newburgh, 109 N. Y., 301; 15 N. Y. State Rep., 93. The physician, in giving this opinion, based it generally upon the evidence of the plaintiff as to the manner in which she fell. It is now suggested that this was not correct, but that his opinion should have been taken upon a definite hypothetical case. This ground of objection was not taken. Had it been taken, it might have been obviated. It is not now available. No other grounds of reversal are presented.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    Edwin R. Holden et al., Resp’ts, v. John O’Donohue, Impl’d, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Former adjudication—When not a bab.
    _ In order to render a former judgment between the same parties conclusive as evidence, though not pleaded in bar, it must affirmatively appear that the precise question was raised and determined, and this the defendant must show.
    3. Same.
    In an action upon a note given by_ a firm, one of the defendants claimed that he was not a partner, and that in a former action upon a similar note between the same parties he was successful. The record was not produced, but a stipulation was made upon a motion to change venue, to the effect that on the former trial evidence was given to show that defendant was a partner of the firm, and had held himself out as such. Held, that this proof was not sufficient to show that the issues were the same, and that the judgment was not conclusive on the question of partnership.
    Appeal from a judgment entered in Onondaga county on the 24th June, 1889, upon the decision of the court, upon a trial before the court without a jury, at the Onondaga circuit, March, 1888.

      Sullivan & Morris, for app’lt; Goodelle & Nottingham, for resp’ts.
   Merwin, J.

-This action is upon fiv.e notes, made by the firm of “P. Burke & Co.,” of Rochester, one dated August 6,. 1881, for $779.52, and the others dated August 25, 1881, each for $1,297.62, payable at different dates, the latest being in six months. None of the defendants except the appellant defended. His defense was, that he was not a member of the firm of P. Burke & Co.

The court ordered judgment against all the defendants for the amount of the notes. In the decision the court finds that at the time the notes were given the appellant held himself out to the world and to the plaintiffs as a member of the firm; that the notes were given for iron sold and delivered to the defendants by the pilaintrffs at different times prior to the giving of the same, and that in purchasing the iron the appellant represented and held himself out to plaintiffs as being a member of the firm, and the plaintiffs so believed, and that the appellant himself drew and signed the firm name to the notes.

There is evidence in the case sufficient to sustain these findings. The appellant, however, claims that, in an action brought by the plaintiffs against the defendants in the municipal court of Rochester upon a similar note, judgment was rendered in favor of this appellant and against the plaintiffs, and that that judgment is conclusive upon the question. The judgment is not set up in the answer and the plaintiff, therefore, claims that at most it is but prima facie evidence. The weight of authority is, however, to the effect that, in a case like the present, the judgment, if directly upon the point in issue, would be conclusive as evidence, though not pleaded in bar. Miller v. White, 50 N. Y., 144; Krekeler v. Ritter, 62 id., 374; Burlingame v. Manderville, 7 N. Y. State Rep., 858; 1 Greenl. Ev., § 531. In order to give it such effect, it must appear affirmatively that the precise question was raised and determined, and this the defendant must show. Zoeller v. Riley, 100 N. Y., 107; Russell v. Place, 94 U. S., 606; Aiken v. Peck, 22 Vt., 260; Woodworth v. Seymour, 22 Hun, 245. The matter must not be left to uncertainty or to conjecture.

In the present case, the record itself was not offered. The date ■of the judgment does not appear. The evidence about it is in a stipulation given by the plaintiffs upon the denial of a motion to •change the venue. From that stipulation it appears “ that upon a note given by P. Burke & Co. for the sum of about $350, said plaintiffs brought an action in the municipal court of the city of Rochester, which said action was tried in said court; that on said trial evidence was given on the part of the plaintiffs tending to show:

First. That said defendant was in fact a partner of said firm of P. Burke & Co.
Second. That he had held himself out prior to the giving of the note to said plaintiffs as being a member of said firm; that in said action judgment was rendered on a verdict of a jury against said plaintiffs and in favor of said defendant for costs; said note for $350 was given at same time as last four notes mentioned in the complaint herein."

It nowhere appears what the issues were in that action. We ■cannot, therefore, judicially say that the question whether the appellant was a member of the firm, or held himself out as such to plaintiffs, was necessarily determined. The matter is left in uncertainty. The appellant has failed to show one of the elements necessary for him to show in order to make his defense avail.able.

But it may be suggested that upon the trial it was assumed that the same question was tried in the Rochester court. It does not appear that there was any such assumption so far as the plaintiffs were concerned. When the stipulation was offered in evidence it was intimated by the court that the judgment would not be considered conclusive. This was not excepted to. The case was adjourned for several days, apparently to give both parties opportunity to present further evidence. Upon the adjourned day there was no further discussion, or ruling, or evidence, as to the judgment.

Further evidence was given on the defense showing that the appellant was in fact not a member of the firm. At the close of the case there was no finding, or request to find, as to the judgment

We find nothing in the case to prevent the plaintiffs raising the question that the proof as to the judgment is not sufficient torn ake it conclusive.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


text:
    Alice Paddock, Resp't, v. The City of Syracuse, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Municipal corporations—Negligence—Notice op claim.
    A notice of claim for injuries under § 250 of the charter of the city of Syracuse as amended in 1888 should contain a statement of what produced the injury or damage, a specification of the defect or improper condition complained of, so that the city can ascertain whether the allegations are true. A statement that the cause of injury was the" negligence of the the city, or was a defective and dangerous sidewalk, is insufficient.
    Appeal from a judgment of the Onondaga county court entered on the 29th November, 1890, upon a verdict of $500 in favor of the plaintiff, in an action to recover damages for personal injuries occasioned by the fall of the plaintiff upon a sidewalk upon James street in the city of Syracuse on the 28th January, 1890.

      Charles E. Ide, for app’lt; MacGregor & Wandell, for resp’t.
   Merwin, J.

—The main question in this case is whether the plaintiff before the commencement of this action complied with § 250 of the charter of the city of Syracuse as amended by chapter 449 of the Laws of 1888. That section as amended is as follows :

“ § 250. The city of Syracuse shall not be liable in a civil action for any injury or damage resulting from any defect or improper condition in or upon any street or sidewalk, unless written notice, specifying the time, place, and cause of such injury, or damage, shall be served on the mayor or city clerk within six months after the injury or damage was received, nor unless an action shall be commenced within one year after the service of such notice. No action to recover or enforce any such claim against the city shall be brought until the expiration of forty days after the claim shall have been presented in the manner and form above provided.”

On or prior to the 10th March, 1890, the plaintiff served upon the proper officers a written notice stating “ that on the 28th day of January, 1890,1 sustained severe personal injuries by which my right arm was broken in three places, and I was otherwise injured, and endured great pain and suffering, and was incapacitated from the performance of manual labor and am still suffering therefrom, which injuries resulted from a defective and dangerous sidewalk situated upon the south side of James street, between Warren and Lock streets, just west of the canal bridge. That said defective and dangerous sidewalk and said injuries were caused by the negligence of the city of Syracuse, its agents, officers, servants and employes; that I intend to commence an action against the said city of Syracuse to recover the sum of $1,000 damages for the said injuries.”

The claim of the appellant is that the cause of the injury or damage is not sufficiently stated. The statute requires not only that the time and place must be stated, but also the cause. The notice states that the “injuries resulted from a defective and dangerous sidewalk,” and were “ caused by the negligence of the city.” It does not state how the injury occurred or that plaintiff fell on the sidewalk.

The case of Noonan v. City of Lawrence, 130 Mass., 161, is quite similar to the present. There the requirement of the statute was that notice should in a certain way be given “ of the time, place and cause of the said injury or damage.” The notice in fact given, after stating that the plaintiff fell upon a certain sidewalk at a certain time, stated “ that the cause of her fall and ■consequent injury was the defective and dangerous condition of the way, which the city negligently permitted to be out of repair, though bound by law to keep it in repair.” This was held to be insufficient, the court saying: “ To state that the injury was caused by the defective and dangerous condition of the way, which the city negligently permitted to be out of repair,” is not notice of the cause of the injury; it is simply stating the general ground upon which a city in every case is liable for injuries sustained upon the highway; but it states no cause for this particular injury. It is equally consistent with an excavation in the way, an obstruction upon the way, an original malconstruction of the way, a worn, uneven and irregular condition of the surface of the earth, an accumulation of snow or ice, or both, or any of the many varieties of defect which may exist in a way. The notice must, to be sufficient, be so reasonably specific as to time, place and cause as to be of substantial assistance to the proper authorities in investigating the question of their liability.” The same principle was applied in Miles v. Lynn, 130 Mass., 398, it being said that “the statute is intended to secure to the city or town to which the notice is given such information as to the exact locality, and as to the nature of the alleged defect, that it will be able to judge for itself whether any cause of action really exists, and to repair the defect, if a real one, before further injury results from it.”

In Spellman v. Chicopee, 131 Mass., 443, a notice, which stated as the cause that the walk was out of repair and was coated with ice and was slippery, was held to be sufficient, it being, however, said that it was not sufficient to assign as the cause that the way was defective, or in a dangerous condition, or out of repair. In Cronin v. Boston, 135 Mass., 110, the cause alleged in the notice was that the sidewalk was “rough, hobbly and slippery." It appeared in the case that the defect consisted of an accumulation of ice on the sidewalk. The notice was held to be insufficient

We have examined the cases cited by the counsel for the plaintiff, but find none that pass upon the sufficiency of a notice like the present one, so far as the specification of the cause of injury is concerned.

By § 250, above referred to, before the amendment in 1888, it was provided that the notice should specify “ the time and place where the same was received.’’ The section as amended required the cause to be also specified, and provided that no action should be commenced until forty days after the service of such a notice. Assuming the time and place to have been properly stated, the-city was entitled to farther information. The cause of the injury or damage must be specified. To say that the cause of the injury was the negligence of the city, or was a defective and dangerous sidewalk, only stated a conclusion.

The statute undoubtedly called for a statement of what produced the injury or damage, a specification of the defect or improper condition complained of, so that the city officials, within the time given them before a suit should be commenced, could ascertain whether the' allegations were true and whether they should settle or defend. The case before us shows no difficulty in the way of plaintiff describing the alleged defect.

The city was entitled to the benefit of the statute, and a substantial compliance by plaintiff with its provisions was a condition precedent to the right of plaintiff to bring the action.

We think the principle laid down in the Massachusetts cases is-a reasonable one and should be followed. We, therefore, hold that the notice was insufficient. It follows that the judgment must be reversed.

Judgment and order reversed upon the exceptions and new trial ordered, costs to abide the event Martin, J., concurs.


text:
    William W. Gilmore, Pl’ff, v. Edward E. Ham, Def’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Appeal—Refusals to find.
    An appeal cannot be taken directly from the decision of the court or the-refusals to find. The exceptions in such case are reviewable only on appeal from the final judgment.
    3. Partnership—Contribution.
    Where a partnership is dissolved, the liquidating partner retaining assets-more than sufficient to pay the debts, and subsequently the retiring partner is compelled to pay a judgment recovered against the firm, he may maintain an action for contribution against the liquidating partner, although an action for an accounting is barred by the statute.
    Appeal by the defendant from a judgment entered in Onondaga county on January 2, 1891, upon the decision of the Onondaga special term, November, 1890, in favor of the plaintiff for $951.53, with interest from June 17, 1890, with costs.
    Appeal by the plaintiff, as stated in his notice of appeal, “ from that part of the decision of the court at special term, wherein and whereby said court refuses to allow a judgment in favor of the plaintiff and against the defendant for the sum of $6,969.61, besides the costs,” the appeal being stated to be based “ upon the exceptions to such decision.”

      Hunt & Everson, for def’t; T. K. Fuller, for pl’ff.
   Merwin, J.

—In the complaint in this case it is alleged that on March 9, 1864, the plaintiff and defendant formed an equal co-partnership in the clothing business under the firm name of Ham & Gilmore, and did business as such for several years thereafter; that on 19th December, 1866, the firm borrowed of Sarah E. Ham the sum of $675, giving therefor the firm note payable one day after date, with use; that in June, 1869, the plaintiff “ left said firm and left the state of Hew York to reside elsewhere, and also left in the hands of the defendant, as his partner, the entire assets belonging to said firm of Ham & Gilmore; ” that on or about July 5, 1869, the defendant published in the Syracuse Daily Standard a notice of dissolution signed by him, stating that the firm had been dis- . solved, and that “ all the assets were in the hands of the undersigned, and he will settle all accounts with the firm and debts against it; ” that defendant failed and neglected “ to pay said partnership note of $675, or any part thereof or interest thereon, as by said notice of dissolution he had agreed to pay; ” that on 12th May, 1886, Sarah E. Ham brought an action in the supreme •court against the plaintiff and defendant, as such copartners, upon the said note, and on December 17, 1886, recovered judgment thereon against this plaintiff and defendant for $1,619.58, which, upon appeal to the general term, was reduced to $1,572.77 ; that the defendant, who is the husband of said Sarah, did not defend the action; that on 17th June, 1890, this plaintiff paid the whole •of said judgment, then amounting to $1,903.05; that there has never been an accounting between the plaintiff and defendant of their partnership affairs, and the same has never been adjusted between them, and that the defendant, though requested, has neglected and refused to account.

The allegations thus far stated are not denied by the answer. It is also alleged in the complaint, but denied in the answer, that this defendant wrongfully conspired with his wife to enable her to obtain her judgment against the firm; that the assets of the firm left in the hands of the defendant in 1869 were in value $7,000 and upwards, and the firm did not owe, aside from the note, an amount exceeding $1,000, and that upon a just accounting the defendant would be indebted to plaintiff in at least the sum of $3,000 and interest over and above the half of the judgment. As relief the plaintiff demands an accounting, and that defendant pay him such sum as may be found due him, and also half of said judgment. The answer, besides the denials above referred to, sets up the six and ten year statutes of limitation.

In addition to the admissions in the pleadings, it was found by the court that the assets of the firm which passed into the hands of defendant in June, 1869, amounted to $7,000, and that the debts, aside from the note of Mrs. Ham and “ certain family indebtedness which .has never been paid,” did not exceed $1,000; that it did not appear in proof what that other family indebtedness amounted to, or whether it was now a valid claim; that if an accounting had been had in June, 1869, there would have been due the plaintiff $2,500, and this amount the defendant has since-then had belonging to plaintiff.

The appeal of the plaintiff is not from the judgment, but, as the notice states, from a part of the decision of the special term, and is based upon the exceptions to such decision.” The only exceptions in fact taken by the plaintiff were to the refusal of the court to find certain requests. Hpon an appeal from the judgment these would be reviewable. Code, §§ 1353, 994. There is no provision for appealing in such a case directly from the decision, or from the refusal to find. The appeal must be taken from the final judgment, Code, § 1346, and the notice of appeal must so state. Code, § 1300. If the judgment is not appealed from, it stands as correct. It follows that the attempted' appeal of the plaintiff is ineffectual for any purpose, and must be dismissed.

. The only question then before us for review is upon the appeal of the defendant. The plaintiff was allowed to recover one-half of the amount of the judgment against the firm. The claim of the defendant is that plaintiff could recover only after an accounting, and that an action for that purpose is barred by the statute of limitations.

The general rule undoubtedly is, that if one partner pays a debt against the firm he cannot, as long as the partnership accounts are unsettled, sue his copartner at law for contribution. 3?or until an accounting was taken it could not be ascertained whether the plaintiff had or had not paid more than his proportion. Gridley v. Dole, 4 N. Y., 492. If, however, the cause of action is distinct from the partnership accounts and does not in- • volve their consideration, the action may be maintained. Ferguson v. Baker, 116 N. Y., 257 ; 26 N. Y. State Rep., 626.

In Gray v. Green, 125 N. Y., 203; 34 N. Y. State Rep., 732, the plaintiff and defendant were partners, and the firm was dissolved by mutual consent, and the plaintiff was, by the agreement of dissolution, made the liquidating partner. More than ten years thereafter he brought an action against the defendant for an accounting, alleging in the complaint that the defendant, upon the dissolution, retained possession of firm assets exceeding in amount his partnership interest, and that such excess was due and payable to plaintiff. It was held that the action was barred by the statute ; that the claim against defendant was an asset, and it was the duty of plaintiff, as the authorized agent of the partnership, to collect it, and that, therefore, the cause of action accrued immediately upon the dissolution. A distinction was taken between such a case and one where the action was brought against the liquidator. In the latter case it seems to have been conceded that an action would not lie until after the lapse of a reasonable time for the liquidating partner to perform the duties of his trust.

Iii Riddle v. Whitehill, 135 U. S., 621, it was held that, where-partnership affairs are being wound up, in due course, without antagonism between the parties, or cause for judicial interference, assets are being realized and debts extinguished, and no settlement has been made between the partners, the statute of limitations has not begun to run; that when the right of action accrues between partners after a dissolution of the partnership, so as to set the statute of limitations in motion, depends upon the circumstances of each case and cannot be held as matter of law to arise at the date of dissolution, or to be carried back by relation to that date.

In Hammond v. Hammond, 20 Ga., 556, it was held that the statute of limitations does not commence to run in favor of one partner against another, even after a dissolution of the partnership, as long as there are debts from the partnership to be paid, or debts due to it to be collected, nor as long as either of these things is so is a partner barred as against' his copartner by the principles of stale demand.

In the present' case, all the assets of the concern were left with the defendant and he apparently undertook to pay the debts; close up the business. He has not yet completed this undertaking. Having the assets, it was his duty to apply them to the payment of the debts. He held them in trust for that purpose and they were in amount sufficient. This trust was apparently never repudiated until the commencement of the action by Mrs. Ham in 1886. Upon this basis it may be said with some force that the statute is not available to defendant as a defense, so far at least as the claim of plaintiff upon the judgment is concerned.

The rule is well settled that if a partnership has been dissolved and the partnership accounts adjusted and one partner is after-wards obliged to pay an outstanding claim not provided for, he may maintain an action in assumpsit against his copartner for the proportion of it which the latter ought to pay by reason of his joint liability. Parsons on Part. (2d ed.), 296, and note. If by reason of the lapse of time and the force of the statute of limitations the dealings between the parties as they stood in 1869 are to be deemed closed, the fact remains that an outstanding debt was not provided for and that too by the fault of the defendant. Upon this debt there has been obtained in this court a judgment against the plaintiff and the defendant. It is so alleged in the complaint and not denied in the answer. So that defendant is not in a position to deny the debt or the judgment. It is suggested on his behalf that he was not served with process in that suit. It is not so found nor was there any request to so find. This judgment having been paid by the plaintiff, it should be deemed a single isolated transaction not involving so far as the defendant is concerned an examination of the partnership accounts. For he by his position as to those prevents it He has no ground for complaint. Under the circumstances of this case the judgment should be affirmed.

Appeal of plaintiff dismissed and judgment aijirmed, without costs of appeal to either party.

Hardest, P. J., and Mártir, J., concur.


author: Merwin, J. Hardie, P. J.

text:
    The First National Bank of Lowville, App’lt, v. George D. Moffatt, Impl’d, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Bills and notes—Pbotest.
    In the absence of proof of laches, an unconditional promise on the part of an endorser of negotiable paper to pay, an acknowledgment of the debt or a part payment by him, is presumptive evidence that he had been properly notified, and is sufficient to carry the case to the jury.
    Appeal from a judgment entered in Lewis county December 10, 1890, upon a nonsuit granted at the Lewis circuit upon a trial before the court and a jury.
    Action upon two notes made by M. M. Noble to the order of and endorsed by the defendant Moffatt, payable two months from date at the bank of the plaintiff, one for $700, dated September-18, 1886, and the other for $500, dated October 8, 1886.
    The endorser Moffatt alone defended, denying presentment and notice, and alleging that the estate of William McCulloch and not the plaintiff was the owner in fact of the note. The nonsuit was granted upon the ground that the evidence was not sufficient to charge-the defendant Moffatt as endorser.

      C. S. Mereness, for app’lt; Merrell, Ryel & Merrett, for resp’t.
   Merwin, J.

—The only important question in this case for us to consider is whether the evidence was sufficient to require the-submission to the jury of the question whether the proper notice-was given to the respondent of the presentment and non-payment, of the notes. The demand and refusal were, as the court held,, sufficiently proved. The teller of the bank testified as to each note that, when it became due and was not paid, it was handed to Mr. McCulloch, who was the cashier of the bank and was a notary, and was accustomed' to attend as such to the protesting of notes and the mailing of the proper notices.' Upon th,e back of each note there is in the handwriting of McCulloch.the word “protested” and the date and the initial “M.” No other certificate of protest appears nor any other entry of the notary. Mr. McCulloch died, in November, 1887.

Prior to May, 1887, Noble, the maker of the notes, made a general assignment, in which Moffatt was preferred on account of the endorsement of these notes. On the 26th May, 1887, Moffatt made out, verified and presented to the assignee his claim under this preference, the amount claimed being the amount of these notes, including interest and protest fees. There is also evidence showing that in September or October, 1888, Moffatt said to the party who then had the notes for collection that he wanted the notes paid, but wished to wait until after Noble’s estate was closed up; that whatever came from that estate would be applied on the notes, and he would provide for the balance if there was any deficiency ; also that in July, 1889, he said, in reference to the notes, that the notes v^ould be paid ; that he would pay them. About this time Moffatt received from the assignee of Noble, upon the closing up of the estate, a dividend of $97.08, and this he paid upon the notes. There was also negotiation between him and the-party acting for the bank as to how the balance should be secured, but nothing was effected.

In Tebbetts v. Dowd, 23 Wend., 379, it was held that where the holder of negotiable paper has been guilty of laches, and that fact appears on the trial in an action against an endorser or drawer, the holder cannot recover on a subsequent promise without showing that the promise was made with full knowledge of the laches ; but where the fact of laches does not appear, a promise by an endorser or drawer after maturity to pay the note or bill is presumptive proof of demand and notice. The theory is said to be that presumptively a man will not promise to pay without knowing that-he is liable. The evidence is received for the purpose of showing that there has been no laches. In Meyer v. Hibsher, 47 N. Y., 273, it is said in regard to such a promise that, had there been no proof at all of the manner of presentment and demand, this promise of the appellant would be presumptive evidence of a legally formal demand and notice. To the same effect is Lewis v. Brehme, 33 Md., 433 ; Jones v. O'Brien, 26 Eng. L. & Eq., 283; Edwards on Notes and Bills, 652; Daniel on Neg. Instr., § 1156. In Hyde v. Stone, 20 How., U. S., 175, it is said that proof of a direct or conditional promise to pay after a bill becomes due, of a partial payment, or of an offer of a composition, or of an acknowledgment of his liability to pay the bill, has been held to be competent evidence to go to a jury of a regular notice of the dishonor of a bill, and to warrant a jury in presuming that-a regular notice-had been given; citing many cases. In Parsons on Bills and Notes, vol. 2, p. 497, the rule is said to be that an admission by the defendant of his liability, as by part payment, or by a promise-to pay, supersedes the necessity of proving a protest or notice.

In the present case there was no proof of laches. The plaintiff had alleged, and was seeking to prove, protest and notice to the-endorser. Evidence was given tending to show an unconditional promise to pay, an acknowledgment of the debt, a part payment. The point was as to the effect or force to be given to this evidence. Very clearly, under the authorities above referred to, it was presumptive evidence that the endorser had been properly notified, and was sufficient to carry the case to the jury.

The defendant seeks to sustain the nonsuit on the ground that the notes after they became due were transferred by the bank to Mr. McCulloch and afterward retransferred by the executor of his estate to the plaintiff and that plaintiff had no right to take such retransfer. Upon the facts before us, it cannot be said, as-matter of law, that such transfers were made. If they were, it would at least be very doubtful whether it would be a defense available to the defendant. The Rider Life Raft Co. v. Roach, 97 N. Y., 378; Atlantic State Bank v. Savery, 82 id., 292. There was no plea of ultra vires.

Martie, J., concurs.

Hardie, P. J.

—I concur in the foregoing opinion. There are cases in which a recovery may be had against an endorser, though no notice was given of the demand and refusal. Clift v. Rodger, 25 Hun, 41. Whether this is such an one can be determined upon a new trial.

I agree to a reversal.

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


text:
    Irving Snell, Resp’t, v. Robert R. Thorp, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Conversion—Title.
    One W. cut a quantity of last blocks upon lands of C., a portion of which were delivered at the railroad station. Thereafter plaintiff entered into a written agreement with C., by which 0. was to bring the remainder and load all on the cars, for which service plaintiff was to pay fifty dollars down and seventy dollars when the goods were loaded. The fifty dollars was paid. Defendant levied an attachment on the blocks which were at the station. Held, that the agreement was not executory, and that plaintiff had sufficient title and possession to maintain an action of trespass for such taking.
    Appeal from a judgment of the county court of Oneida county, entered J une 15, 1888. The case was tried before the court and a jury, and at the close of the evidence the court directed a verdict for plaintiff for six cents damages. An appeal is also taken from an order denying a motion on the minutes for a new trial.
    A former appeal appears in 16 N. Y. State Rep., 84.

      A. L. Hayes and Walter Ballou, for app’lt; De Angelis & Doolittle, for resp’t.
   Merwin, J.

—Upon the undisputed evidence the plaintiff was entitled to recover nominal damages, provided he had such title or possession as enabled him to maintain the action. The levy under defendant’s attachment, and which was the occasion of the alleged trespass, was October 15, 1884, and ceased on November 7, 1884.

In the winter previous, Joseph YTilliams, under some arrangement with Byron Cool that the evidence does not disclose, cut upon the lands of Cool about 5.566 last blocks. Of these about 1,500 were, during the same winter, delivered at the Alder Creek station of the Black Eiver Eailroad by the defendant and one Joyce. The rest remained in the woods of Cool. On the 22d of September, 1884, the plaintiff met Cool at the station above named, and, as Cool and plaintiff both in substance testify, the former upon the examination of defendant, plaintiff, after, some negotiation, offered Cool $120 for the blocks, and Cool accepted the offer and agreed to bring the remainder to the cars, and to load them all on the cars whenever plaintiff requested it. At the close of the negotiation a memorandum was made and signed by Cool, by which he “ agrees to deliver and load on the cars at Alder Creelc station thirty-five hundred last blocks, which are now in the woods on his land, and also what blocks are now at the railroad, being the same blocks cut by Joseph S. Williams last winter. For which service said Snell is to pay said Cool the sum of one hundred twenty dollars, as follows: fifty dollars down, and the balance when done.” The fifty dollars was paid down. The balance of the blocks were drawn by Cool to the station prior to the 15th of October. The levy was designed to be on the 1,500 blocks that had been previously drawn.

The claim of the defendant is that the agreement between Cool and plaintiff was executory and that no title or right of possession passed until payment. The balance was not paid Cool until after the levy. William's seems to have had some interest in the property which apparently the plaintiff had previously purchased. No point is made by the defendant about that. The writing signed by Cool seems to rebut the idea that the transfer of the title was conditioned upon the payment of the balance. The matter is treated, not as a purchase, but as a performance by Cool of work and service for the plaintiff. There is no evidence of a design to make the transfer of title conditional upon the payment. This would especially be the case as to the 1,500 blocks which at the time were in the custody of the railroad company. As to these, Cool had nothing to do except to load them on to the cars whenever required by plaintiff.

We think the undisputed evidence showed a sufficient title and possession, as to the 1,500 at least, to enable the plaintiff to maintain trespass.

It follows the judgment must be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


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    Fred Porter, Pl’ff, v. Nelson Gardner, Def't.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Gift—Delivery.
    Defendant’s intestate, who was an aunt of the plaintiff, leased her farm to the latter, reserving the right to pasture two colts thereon at a certain rate. She also put another colt on the farm to pasture, which she after-wards told him she would make him a present of, and subsequently told others that she had given it to him. Defendant after her death took said colt and sold the same. .In an action for conversion, the court ordered a nonsuit. Held, error; that the question of delivery of the colt to plaintiff should have been submitted to the jury.
    Motion by the plaintiff for a new trial upon case and exceptions directed to be heard in first instance at general term. Code, § 1,000.
    Action for the conversion of a colt of the value of ninety dollars. The defendant claims that the colt was a part of the-estate of Jane P. Markham, deceased, of whose will he is the executor. The main issue at the trial was whether Mrs. Markham before her death gave the plaintiff the colt At the close of the evidence the court ordered a nonsuit.

      B. A. Benedict, for pl’ff; Dorr C. Smith, for def’t.
   Merwin, J.

—On the 7th March, 1887, Mrs. Markham was the-owner of a farm of about ninety acres in the town of Homer. At that date she and the plaintiff, wffio was her nephew, entered into a written agreement by which she did “ demise and lease her farm with the appurtenances,” to the plaintiff for the term of one year from the 1st of March, 1887, she agreeing to leave on the farm all the farming tools, eight cows, a team, and some other property, and pay all taxes except the road tax. She reserved “ the right to pasture two colts by paying to the party of the second part one-third of the cost of the pasturing the same, and also reserves the front part of the house with front yard for her own use.” The plaintiff upon his part agreed to carry on the farm and do all the work in a good and workmanlike manner. It was also agreed that Mrs. Markham should have two-thirds of all the produce of the farm and the plaintiff one-third, and if he did not fulfil the agreement on his part Mrs. Markham had the right to re-enter and have full possession. The plaintiff moved on to the farm with his family and occupied half of the house. At this time Mrs. Markham had on the farm five colts. Of these, two were quite young and soon after died. Of the remaining three, two were those named in the agreement and the third was the one in controversy and coming two years old that spring. Jennie Porter, the wife of plaintiff, testified that in June, 1887, she heard a conversation at the breakfast table between the plaintiff and Mrs. Markham in which Mrs. Markham said to plaintiff: “He had been good to her and she wanted to make him a present and she would give the bay colt to him, as she had nothing to mate it, and she would never try to raise any more, she would make him a present of it. Fred said in substance to her that he did not want to take anything from her unless she had a mind to let him have it She said she was willing that he should have it or she wouldn’t give it to him. She said she would keep it for him until it was three years old, ready to break and drive for use; that he might keep it right there.

“ Q. What did she say about his assisting in breaking her colts, if anything. A. She said she would like to have him take care of her colts and break them. Fred took charge of this bay colt after that.”

This witness also testified that the colts were then in the pasture upon the farm and so remained until the death of Mrs. Markham the following October, except as they got out or were occasionally taken out by the plaintiff; that this colt remained upon the place in the same way, in the same manner, as the other stock of Mrs. Markham, until the time it was sold by the defendant in October; that the plaintiff treated the three all alike; that he had no other place to keep the colt but on the farm. The plaintiff himself testified that when the defendant came there after the death of Mrs. Markham he told him the colt was his; that Mrs. Markham had given it to him ; and the defendant replied, he did not dispute it at all, but the question was whether he, the plaintiff, could hold it or not; that after the conversation at the breakfast table the colts were treated in very nearly the same manner as they had been before; that they remained in the pasture except occasions when they got out, and he had to tie.up the bay one, the one in question, in the barn.

Another witness, a nephew of the deceased, testified that upon an occasion in July, when the colts had broken out and the plaintiff had got them home, Mrs. Markham was taken out to the road to see them, and said: I want to see these two older colts broke and harnessed together; the little red one I have given to Fred; ” that she owed him for work and had given him the little red colt meaning the bay one; that plaintiff was there near by though not present at the conversation. Another witness testified that upod*another occasion in July Mrs. Markham said she had given the bay colt to Fred Porter, and in last of August or first part of September she told another party substantially the same, and that the colt was the plaintiff’s whether she lived or died.

There seems to be no question about the intention of Mrs. Markham, but the defendant claims there was no delivery sufficient to make a valid gift

In some cases it has been held that a delivery might be inferred from declarations that a gift had been made. In Grangiac v. Arden, 10 Johns., 293, 296, it is said that declarations referring to and recognizing a gift as having been made afford reasonable ground for a jury to infer that all the formality necessary to make it a valid gift had been complied with. The principle of this case seems to have been recognized in Young v. Young, 80 N.Y., 435.

In Trow v. Shannon, 78 N. Y., 446, a finding of delivery was sustained though there was no direct evidence of it There were" admissions by the donor that she had given the bonds there in question and that they belonged to the donee, and weight was given to these admissions as some evidence from which the jury might infer that the gift had been completed by an absolute delivery. In Harris v. Hopkins, 43 Mich., 272, it was held that ■evidence that a decedent had stated positively that she had given -certain specified furniture to her sons, and had previously declared an intent to give it, and that one of the sons remained in her house until her death, warrants a finding of a complete gift in presentí.

So it has been held that a delivery is not necessary when the intended donee is already in possession, but that in such a case the gift, if completed and unambiguous, may be effected by a simple oral declaration. Prov. Institution for Savings v. Taft, 14 R. I., 502; Wing v. Merchant, 57 Me., 383 ; Tenbrook v. Brown, 17 Ind., 410; 8 Am. & Eng. Encyc. of Law, 1319, and cases •cited. Substantially the same was held in Taber v. Willets, 44 Hun, 348; 8 N. Y. State Rep., 825. In Stevens v. Stevens, 2 Hun, 470, a gift causa mortis of a note was held to be effectual where there was no delivery in fact, it being said by the court the small note was in his (the donee’s) possession, that is, it was in the bureau in his house and presumptively accessible to him.” In Whiting v. Barrett, 7 Lans., 109, it is said by Mullin, P. J. : “ It would seem to me that when the owner of property makes •a verbal gift of it to another, such other acquires a perfect title if he gets possession of it before revocation of the gift by the donor, although it was not present when the gift was made, or it was not even in esse at the time. The consent that the donee shall take the property as owner must be presumed, unless revoked, until possession is obtained.”

Under the lease the plaintiff, as between him and Mrs. Markham, was in possession of the farm. The colt, being on the farm, was in his actual custody and control. He had the charge and care of it Upon the evidence it might be found that she had given it tc^him absolutely. If the declaration in June was only of an intention, the subsequent declarations were of such a character that it might be found that she had made the gift absolute. It might also be found that she had parted with all dominion or control over it or right to possession which she might, have had. If she did so, that would make it a completed gift The fact that.it remained on the farm was not necessarily inconsistent, Armitage v. Mace, 96 N. Y., 542, nor was the fact of no apparent change in the control Tenbrook v. Brown, supra. The situation, relation and circumstances of the parties and of the subject of the gift may be taken into consideration in determining the intent to give and the fact as to delivery. Cooper v. Burr, 45 Barb., 33. In that case it is said that a total exclusion of. the power or means of resuming possession by the donor is ; .not necessary. In Penfield v. Thayer, 2 E. D. Smith, 305, it was held that it was not necessary to take at the time manual possession. If the article given is at the time in the custody of the donee, the declarations of the donor to the effect that the donee is absolute owner, and characterizing the possession of the donee as absolute, will authorize the inference of complete delivery by the donor. An acceptance may be implied when the gift otherwise complete is beneficial to the donee. Beaver v. Beaver, 117 N. Y., 429 ; 27 N. Y. State Rep., 405. In Hunt v. Hunt, 119 Mass., 474, a bond was lent by the owner to the defendant, the owner taking therefor a receipt. There was evidence that afterward the owner while sick in bed made verbally a gift of it to defendant without any other delivery of the bond and promised to return the receipt when he should be able to get it; that he afterward told another party that he had provided for the defendant and his children by giving a bond to the defendant. It was held that the question of delivery was a matter of fact for the jury.

In the present case we are of the opinion that the question of delivery was for the jury to decide, and that, therefore, the motion for a new trial should be granted.

Motion for new trial granted, costs to abide event

Hardin, P. J., and Martin, J., concur.


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    Mary Flood, Adm’rx, Resp’t, v. The Western Union Telegraph Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Negligence—Telegraph Companies.
    Plaintiff’s intestate, who was employed by defendant, while replacing a peg in the outer .hole of one of the cross-arms of a telegraph pole, fell by reason of the breaking of the arm at the inner hole, and was injured so that he died. The arm where it broke was cross-grained and brittle. Held, that whether defendant, in the exercise of reasonable care, ought to have discovered and remedied the defect, and whether the intestate placed more of his weight on it than he should, were questions for the jury.
    Appeal from a judgment entered in Onondaga county on the 18th October, 1890, upon a verdict at the Onondaga circuit in favor of the plaintiff for $3,000; also from an order denying a motion on the minutes for a new trial.
    Jenny, Marshall & Ruger, for app’lt; Benedict & Thompson and Frank H. Hiscock, for resp’t.
   Merwin, J.

—The important question on this appeal is, whether the evidence is of such a character as to make a case to go to the jury. The plaintiff’s intestate on the 8th April, 1889, while in the discharge of his duties as lineman in the employ of defendant, fell from one of its telegraph poles at Baldwinsville, N. Y., and received injuries which caused his death in March, 1890. This pole was about twenty-two feet high, and attached to it near the top were three cross-arms eighteen to twenty inches apart, the top arm being about four feet long and the others about six feet. In the two lower arms, upon each side of the pole, two holes were bored which were one and one-half inches in diameter. The hole nearest to the pole was eight to ten inches from it, and the other about two feet nine inches. In these holes were' placed wooden pins, upon which were placed the glass insulators to which the wires were attached. The outer pin upon one side of the pole on the middle arm was broken and Flood was directed by his foreman to go up the pole and put in a new one. He proceeded to do so, and while he was in the act of attempting to remove the broken pin, the arm broke at the hole nearest the pole and he fell. This arm, according to some of the evidence, was two and three-quarters inches wide across the top, so that’ on each side of the hole there was a width of five-eighths of an inch. The pole and arm had been there from six to ten years, and there is evidence tending to show that the arm, where it broke, was “cross grained and brittle,” “ dozy.” The jury had a right to say that it broke by reason of its defective condition. And whether defendant, in the exercise of reasonable care, ought to have discovered and remedied the defect, was also a question for the jury.

But the defendant says it owed no duty to its employes in regard to this arm beyond seeing that it was sufficient to support the wires; that it was placed there only for that purpose, and that Flood, in supporting himself upon it, as he did to a certain extent, did what he had no right to do. It is quite apparent that in some cases of repairs to the arms it would be almost absolutely necessary to place some weight on the arm, and it was shown that it had long been customary to use the arm to some extent for that purpose, and this too to the knowledge of the agent of the company in charge and without objection and apparently without any rule against it. Under these circumstances it became a question of fact whether Flood placed more of his weight upon the arm than he had a right to, and whether the company performed its whole duty to its employes in regard to a proper inspection of the arm.

But the defendant says that Flood was in a position to Know as much about the condition of the arm as the company did. He was not there for the purpose of inspection. Aside from visible defects, he had a right to suppose that the company had done its duty. If Flood observed a defect, it was his duty to remedy it- or report it to the company. So it was in the case of Bushby v. N. Y., L. E. & W. R. R. Co., 107 N. Y., 374, 378; 12 N. Y. State Rep., 9, where the trouble was a defective stake to a freight lumber car. Still the plaintiff, a brakeman on the train, was allowed', to recover for an injury occasioned by the breaking of the stake. Here, it should not be said (as matter of law that Flood should, have observed and guarded against the defects in the arm.

We think a case was made for disposition by the jury, and that the questions of negligence of the defendant and; contributory negligence of Flood were properly submitted.

Judgment and order affirmed, with costs.

Martin, J:, concurs.


author: Hardin, P. J.

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    Hattie E. Van Allen, Resp’t, v. James H. Glass et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Costs—Offer of judgment.
    Where an offer of judgment is accepted after notice of trial has been: served, but within the time allowed by the statute, the plaintiff is only entitled to costs before notice of trial.
    Appeal from an order of the Broome special term, denying a. motion made by the appellants to strike out certain items from plaintiff’s bill of costs and to retax plaintiff’s costs as claimed by the appellants.
    The action was commenced in May, 1890, by a personal service upon both defendants in Oneida county. The defendants, answered' separately, and the date of the issue is July 30, 1890 \ the venue of the action was laid in Schuyler county. The action was upon an undertaking executed by the defendants in November, 1883. On the 8th day of November, 1890, the defendants’), attorneys, pursuant to § 738 of the Code of Civil Procedure, served by mail an offer of judgment. On the 22d day of November, 1890 (which fell on Saturday), the defendants’ attorneys served on plaintiff’s attorneys a notice of trial for the Schuyler circuit commencing on the 8th day of December, 1890, by mail, at the city of Utica, which was received by the plaintiff’s attorney on the morning of November 24th. On November 26.th defendants’ attorneys filed with the clerk of Schuyler county a note of issue for the then approaching circuit. The plaintiff’s attorney served a notice of trial for the same term by mail, on the 22d of. November, by depositing the same in the post-office at Watkins-on the evening of the 22d, which notice, by usual course of mail, would reach the defendants’ attorneys probably the 24th or 25th. of November. On the 26th of November the plaintiff’s attorney and his client had an interview and she determined to accept the offer made by the defendants, and thereupon the plaintiff's attorney gave notice of his acceptance, by mail, on the 26th day of November. The notice was served within the time fixed by statute, the offer having been served by mail giving the plaintiff twenty days, which did not expire until November 28th; on the 11th of December judgment was entered by the clerk and plaintiff’s bill of costs was taxed at $37.28, and included among the items, viz.:
    Costs by statute, before notice................... $15 00
    Costs by statute, one additional defendant............ 2 00
    Costs by statute, after notice and before trial.......... 15 00
    A notice for retaxation for the 22d of December was served by the plaintiff’s attorney, on which day the attorneys for the respective parties appeared before the clerk and the costs were re-adjustea at the same amount, to wit: $37.28. The counsel for the defendants asked to have the taxation held open until he could communicate with the defendants’ attorney.
    On the 22d of December counsel for defendants appeared before the clerk and objected separately to each item of the plaintiff’s bill of costs, and the objections were overruled and the costs were retaxed at the sum of $37.20. Counsel .for the defendants claimed “ that the plaintiff’s acceptance of the offer related back to the time the offer was served,” and, also, claimed that the clerk “ should tax costs accruing after the service of their offer in their favor, and they claimed to be allowed the fifteen dollars after notice and before trial, besides subsequent disbursements.” Defendants’ attorneys noticed the motion at the Broome special term, which was denied, the court holding that the plaintiff was entitled to the item of fifteen dollars after notice and before trial.

      Dunmore & Sholes, for app’lts; John J. Van Allen, for resp’t.
   Hardin, P. J.

—Section 738 of the Code of Civil Procedure provides for an offer “to allow judgment to be taken "for a sum therein specified, with costs; ” it also provides, viz.: “ If the plaintiff within ten days thereafter serves upon defendants’ attorney a written notice that he accepts the offer, he may file the summons, complaint and offer with proof of acceptance, and thereupon the clerk must enter judgment accordingly.” As the offer of judgment was served by mail the plaintiff had twenty days from the time of service in which to determine upon the acceptance or non-acceptance, and to serve upon defendants’ attorney, “ written notice that he accepts the offer.” Pomeroy v. Hulin and Bebee, 7 How., 161. He was then authorized to file the summons, complaint and offer, with proof of acceptance; and it is further provided in that section that “ thereupon the clerk must enter judgment accordingly.”

In Walker v. Johnson, 8 How., 241, it was said, viz.: “This right of the plaintiff is inconsistent with the co-existing right in the defendant to take any steps in the action adverse to the plaintiff, contrary to the offer. The offer amounts to a written stipulation on the part of the defendant, waiving all right to proceed in the action for the. term, of ten days, or until plaintiff makes his election to reject the offer.” In that case it was said: “ The defendant’s order to dismiss the plaintiff’s complaint, obtained by him within ten days after his offer, was, therefore, irregular and must be set aside.” The case of Hawley v. Davis, 5 Hun, 642, does not reach the question made here. In that case the defendant served upon the plaintiff’s attorney an offer of judgment on the 9th of June, and on the 15th of June plaintiff took an inquest and entered judgment for the amount claimed, with costs, and it was held in that case “ That as the ten days within which the Code required the plaintiff to accept or reject the offer had not elapsed when the action was tried, the plaintiff was entitled to the fee allowed for the trial of an issue of fact.” In that case the offer never became efficient by an acceptance, nor by the expiration of the time within which it might have been accepted.

In Herman v. Lyons, 10 Hun, 111, an offer of judgment was served on the 7th of February, and on the 9th of February the cause was regularly called in its order on the calendar and an inquest taken therein,. and the costs accruing subsequent to the offer taxed in plaintiff’s favor, and it was held “that, as ten days had not elapsed from the service of the offer of judgment to the time of trial, the plaintiff was entitled to disregard the offer and to tax the costs thereafter accruing.” In the course of the opinion it was said: “ The plaintiff could treat the offer as a nullity, which he did do, and proceed with his action.” In the case in hand the plaintiff did not treat the offer as a nullity, .and, during the time allowed by statute for the acceptance of the offer, made her election to accept, and did accept, and with the offer, with the acceptance and proof thereof and other proper papers, applied to the clerk, who entered judgment in accordance with the offer.

The question here presented was considered in Douglass v. Macdurmid, 2 How., N. S., 289, and it was there said that where “ the defendant serves an offer of judgment for a- specific sum, with interest and costs, and after the offer is made both parties serve notice of trial, after which time the plaintiff accepts the offer, he is only entitled to costs before notice of trial; fifteen dollars.”

In the course of the opinion in that case it was said: “ The notice of trial served by the defendant does not aid the plaintiff, because the offer prevented the defendant from moving the case for ten days after it was served, Walker v. Johnson, 8 How. Pr., 240, and the notice served by the defendant became nugatory on the acceptance of the offer.” The rule stated in that case is satisfactory.

Order of the special term reversed, with ten dollars costs and disbursements, and the motion granted so far as it asks to strike out the item of fifteen dollars after notice, and in other respects denied:, without costs to either party.

Martin and Merwin, JJ„ concur.


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    Frederick L. Lovelace, Resp’t, v. S. Gregor Doran et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Corporations—Pleading.
    A complaint which alleges that defendants were and are directors of a business corporation organized under the act of 1875; that the corporation, with their consent, made its note to plaintiff, which remains unpaid, and that at the time of giving such note and ever since the corporation was indebted in an amount exceeding its capital, states facts sufficient to constitute a cause of action.
    Appeal from an order and an interlocutory judgment overruling defendants’ demurrer to a complaint and allowing defendants to answer.

      Shepard, Osborne & Prentiss, for app’lts; Frederick L. Lovelace, in person, for resp’t.
   Hardin, P. J.

—Plaintiff’s complaint alleges that the defendants were directors of the Doran & Wright Company, Limited, organized under chap. 611 of the Laws of 1875, and that the capital stock of the company was $100,000 on the 26th of April, 1890 ; that on that day the company, with the consent of the defendants, made their promissory notes which are separately set out in the complaint; and the complaint avers that the notes are not paid and remain valid obligations; and the complaint further avers, “ that at the time of the making and delivery of said note, the said Doran & Wright Company, Limited, was, and ever since said time has continued to be, and now is, indebted to various persons in and to the sum of about $250,000; that the said amount of said company’s indebtedness at said times exceeded, and now exceeds, the amount of said company’s capital stock by and to the amount of about $150,000; that said indebtedness, and the excess thereof above the amount of the said capital stock, was created by and with the consent of the defendants herein.”

Appellants demurred to the complaint upon the single ground “ that the complaint, on the face thereof, does not, state facts sufficient to constitute a cause of action.”

The appellants were directors in the corporation organized under chap. 611 of the Laws of 1875. Section 22 of that chapter is as follows: “If the indebtedness of any such corporation shall at any time exceed the amount of its capital stock, the directors of such corporation creating such indebtedness shall be personally and individually liable for such excess to the creditors of such corporation.”

We think it is to be assumed, from the facts stated in the complaint, that the plaintiff was a creditor to whom the company had contracted the excess,” or, in-other words, that the plaintiff holds an indebtedness which was contracted by the company at a time when the company was indebted in a sum that exceeded the amount of its capital stock, and that the defendants, trustees, as well as the corporation, assented to the creation of such indebtedness held and represented by the plaintiff, and therefore they became “ personally and individually liable for such excess ” to the plaintiff, a creditor holding a portion of the indebtedness thus created. We are therefore of the opinion that the facts stated in the complaint were sufficient to constitute a cause of action, and that the case falls within the doctrine laid down in Patterson v. Robinson, 37 Hun, 341; S. C., 36 id., 622, and S. C., 116 N. Y., 193; 26 N. Y. State Rep., 685.

We think the special term was right in interpreting the decision of the third department as it appears in 37 Hun, 341, and that we should follow that case; we do so and sustain the action of the special term.

Judgment affirmed, with costs, with leave to defendants to withdraw their demurrer and answer, upon payment of the costs of the demurrer and of this appeal.

Martin and Merwin, JJ, concur.


author: Hardin, P. J. Martin, J. Merwin, J.

text:
    Edward Lashaway, Resp’t, v. George W. Tucker, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Execution—Exemption.
    The word “flour” includes meal, and hence meal for family use is exempt from levy and sale under execution.
    (Merwin, J., dissents.)
    Verdict in the Jefferson circuit. Action to recover for the conversion of certain personal property claimed to have been exempt from execution. The defendant justified under an execution issued on a judgment recovered in a justice’s court in favor of the defendant here against the plaintiff here for $8.18 damages. In the case in hand the jury rendered a verdict for $51.78, and the circuit judge denied a motion for a new trial made upon the minutes.

      Hannibal Smith, for app’lt; J. Lansing, for resp’t.
   Hardin, P. J.

—In the course of the trial the court held that the word “ flour ” did not cover meal and refused to submit a question in that regard to the jury. Proper exceptions were taken to the rulings and to the refusal. I am inclined to the opinion that an error was committed. (2.) I think the amount of the verdict is dubious. I favor a reversal of the order and judgment.

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

Martin, J.

—I think flour includes meal, and under the statute meal for family use is exempt; hence I concur.

Merwin, J.

—In view of other provisions of the R. S., part 1, chap. 17, tit. 2, art. 1,1 think flour and meal are different articles; and the word “flour” in the exemption law was not designed to include meal; so on this I think the circuit right, but the verdict is larger than the evidence warrants, so I assent to reversal.


text:
    Smith Briggs, Resp’t, v. Robert R. Gardner, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Evidence—Cross-examination.
    In an action in which the statute of limitations was set up as a defense, the defendant was called as a witness for the plaintiff, and, on cross-examination, was asked if he made the last payment endorsed on the note in suit. Objections thereto were sustained, on the ground that they did not relate to matters inquired into on the direct, but to subjects of defense. EM, no error; that the order of proof rested in the discretion of the court, and that such discretion was not abused.
    2. Bar—Pendency of former action.
    The pendency of an action on a note brought by an attorney with whom the same was left for collection is a bar to a subsequent action on the same note, although the former action was unauthorized and contrary to plaintiff’s instructions.
    Appeal from a judgment of the county court of Tompkins county, affirming a judgment of the justice’s court. Action to recover upon a promissory note. Defense, the statute of limitations and the pendency of a former action between the same parties involving the same subject matter.

      George R. Burchell and Wm. J. Montanye, for app’lt; David M. Dean, for resp’t.
   Hardin, P. J.

—Plaintiff, to maintain the action, called as a witness the defendant, and after asking him several questions in respect to some of the payments, the counsel for the defendant propounded to him the following question: “ Did you ever make the last payment endorsed on this note? ” This was objected to by the plaintiff as incompetent and improper; subject of defense in action; not being a subject inquired into in the direct examination. The objections were sustained, and the appellant now insists that an error was committed; and the counsel for the defendant propounded another question: “ Q. Did you make any further payment to any party after 1881, to apply on this note in question ? ” To this question the same objections were taken, and the objections were sustained. Thereafter the witness stated that he made a payment of $6.67, February 17, 1875; the next was five dollars, and the next ten dollars; thereupon the following question was put to him:

“ Q. Do you swear positively that you have not paid anything to apply on this note in question since you paid the fifteen dollars in 1881 ? ”

This question was objected to the same as before, and the justice sustained the objections. At the time these questions were propounded the case was with the plaintiff. After the plaintiff rested no effort was made on the part of the defendant’s counsel to propound the questions already mentioned; presumably the justice would have allowed answers to have been given to them, Apparently he excluded the answers at the time the questions w- :e propounded upon the idea that it was no part of the plaintiffs case, and, on the contrary, the evidence sought tended to support the defense which had been set up in the answer of the statute of limitations. We are not prepared to say that the justice erred in the exercise of his discretion, and we are of the opinion that we ought not to reverse the judgment because of the rulings made by the justice. Neil v. Thorn, 88 N. Y., 275.

In Bedell v. Powell, 13 Barb., 183, it was held that “ the order in which proof shall be received on a trial is in the discretion of the judge, and his decision cannot be reviewed on error or appeal.”

(2) The pendency of a former suit brought in the name of the plaintiff in the supreme court against the defendant upon the same note, prior to the commencement of the suit in the justice’s court, was established. The summons and complaint and answer in that action were produced; there was no proof given of any discontinuance of that action. The defense of the pendency of a former suit was sufficiently stated in defendant’s answer. It seems the action was commenced by C. D. Watkins, an attorney, for the plaintiff, and the complaint was upon the same cause of action mentioned in the complaint in this case. The complaint in the supreme court was verified by the attorney. The plaintiff admits that he left the note with Watkins, the attorney, “for him to write to Gardner to see if he would pay it, or what he would do, but not to sue it.” He testifies that he gave Watkins “express direction not to commence the action,” and that he was not informed of the action until the trial of the case in hand.

In Hamilton v. Wright, 37 N. Y., 502, it was held, “Where an attorney appears for a party the general rule is, that a retainer will be presumed; and the adverse party, having no notice to the contrary. may act upon such presumption; ” and in Brown v. Nichols, 42 N. Y., 26, it was held that where an attorney appears without authority the judgment obtained “cannot be attacked for want of jurisdiction in any collateral proceeding, and is binding upon such defendant.” And in the celebrated case of Denton v. Noyes, 6 Johns., 297, it was held that where an attorney “without authority from the defendant confessed a judgment which was entered up,” the judgment was regular.

In Vilas v. P. & M. R. R. Co., 123 N. Y., 440; 34 N. Y. State Rep., 67, the doctrine of Denton v. Noyes was approved.

In the case in hand it appears that no judgment had been entered in the action in the supreme court; however, applying the principle derived from the cases to which reference has been made, it would seem that the act of the attorney in commencing an action, he having received the note for collection from the plaintiff, and the plaintiff being presumed to have authorized the action, should bind the plaintiff until the former action was discontinued. If the former action had been determined adversely to the plaintiff, although he had not given authority to bring .the action, though he had no notice of the action, he would have been liable for the costs of the action. Hamilton v. Wright, 37 N. Y., 502. Under such circumstances we think the former action should be held a bar to the present action; as there had been an appearance in the former action it could be discontinued only by an order entered with the clerk and the payment, or tender, of costs of the action. Averill v. Patterson, 10 N. Y., 500. At the close of the evidence in the case it appears the defendant “ moved for a non-suit on the ground that there is another action pending and undetermined in the supreme court, laid or located in Tioga county, 1ST. Y., and said action was commenced and pending and undetermined before the said action was, and is now pending and undetermined.” This motion for a nonsuit was denied and the defendant duly excepted. The denial of that motion was erroneous. Blake v. Burns, 26 Abb. N. C. and note, 218. For the error thus committed by the justice, his judgment and the judgment of the county court of Tompkins county should be reversed, with costs.

Judgment of the county court and of the justice’s court reversed, with costs.

Martin, J., "concurs; Merwin, J., concurs in result


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    Jane E. Chester et al., Resp’ts, v. Lucy Broderick et al., Ex’rs, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    Undertaking—Liability oe sureties on appeal.
    The sureties upon an undertaking on appeal from a judgment of foreclosure are not discharged from liability by the giving of a second undertaking on appeal to the court of appeals, but upon affirmance by that court they are liable for any deficiency remaining after application of the amount paid under the second undertaking.
    Appeal from an order made at the Broome special term, confirming the report of a referee upon a claim made against the appellants; and also an appeal from the judgment entered in pursuance of the report and order in Schuyler county, on the 4th day of December, 1890.

      Robert T. Turner, for app’lts; Baxter, Gibson & Gaylord, for resp’ts.
   Hardin, P. J.

—Appellants’ testator executed an undertaking on appeal to the general term from a judgment of foreclosure and sale rendered in an action wherein Sarah Decker was plaintiff and Hattie Decker and others were defendants. The undertaking was executed by the deceased and one Sackett, as sureties, and it was given to stay proceedings on such an appeal, and was conditioned to pay any deficiency that might arise upon the foreclosure sale in case the decree was affirmed by the general term or the appeal dismissed. The judgment was affirmed by the general term and thereupon the defendant, Hattie Decker, appealed to the court of appeals, and upon such appeal an undertaking was given in the sum of $9,000, with Turner and Gillette as sureties. The judgment was affirmed by the court of appeals and the premises subsequently sold on the judgment of foreclosure and sale, and there remained a large deficiency. The sureties upon the undertaking given on the appeal to the court of appeals paid the full amount of their obligation, and after that payment was applied there remained a deficiency of $2,586.90 unpaid upon the original judgment of foreclosure. To recover that sum a claim was made against the estate of Broderick upon the undertaking which he had executed. The claim was rejected by his executors and a referee was appointed who reported in favor of the claimant against the estate of Broderick, and the report so made by the referee was confirmed by the special term. The position taken by the appellants is “that the giving of the said undertaking on the perfection of the appeal to the court of appeals discharged the prior sureties from further liability because it amounted to a novation and a substitution of the new undertaking in place of the old.” We are of the opinion that the undertaking given by the appellants’ testator remained valid, notwithstanding the undertaking given thereafter to perfect the appeal in the court of appeals. It may be conceded that the undertaking given in the court of appeals constituted the prior or primary obligation for the payment of the deficiency arising upon the sale of the mortgaged premises. However, that is not important in this case, as the obligation has been fully met and the moneys mentioned in the undertaking given in the court of appeals have been paid over to the plaintiff in that action and applied in liquidation of the deficiency, and the estate represented by the appellants in this case would only be declared liable for the remaining deficiency.

The reasoning of the court in Smith v. Falconer, 11 Hun, 483 ; S. C., aff’d 79 N. Y., 633, seems to be adverse to the contention of the appellants. In that case it was said “ the engagement was absolute to pay any judgment which the plaintiffs might recover in the action, and was wholly independent of any statutory right to which the defendant, his principal, might resort for a stay of proceedings, which was the chief object of the undertaking given on the appeal The plaintiffs are not responsible for the subsequent proceedings of the principal; they were obliged to submit, and the delay to which they were subjected was caused by the bond which the defendant gave. * * * If the defendant desired to prevent the accumulation of costs and interest, it was his duty, when the judgment was obtained, which ensued upon the reference, to have-tendered the amount of it, and thus prevented any further liability. He did not do so, but permitted the appeal and the further undertaking and delay without any act to protect himself.”

The .case of Mackellar v. Farrell, 29 N. Y. State Rep., 350, is adverse to the contention of the appellants. It was there said that “ the perfection of the appeal to the court of appeals by the appellant, by giving a new undertaking and procuring a stay thereon, did not amount to a novation and did not discharge such sureties.” The authorities cited in the opinion delivered in the case seem tp sustain the conclusion reached by the cdurt.

In Babbitt v. Finn, 101 U. S., 7, a decision was made which is adverse to the appellants. In the course of the opinion in that case Judge Clifford says: “Where the bond is given in a subordinate court to prosecute an appeal to effect in a superior court, the sureties become liable if the judgment is affirmed in the superior court; nor are they discharged in case the judgment of the superior court is removed into a higher court for re-examination, and a new bond is given to prosecute the second appeal, if the judgment is affirmed in the court of last resort Nothing will discharge the sureties given to prosecute the appeal from the court of original jurisdiction but the reversal of the judgment in some court having jurisdiction to correct the alleged error.” Numerous cases are cited to sustain the position.

In Smith v. Crouse, 24 Barb., 437, the court, in dealing with a similar question, observed: “No breach of the condition of the undertaking occurred till the judgment of this court was rendered, and the execution thereon was returned unsatisfied. When the breach occurred, then the liability of the defendant became commensurate therewith; and he cannot claim to have it limited to a part, which cannot be measured or judicially ascertained, even though under another state of facts that might have been the extent of his liability.”

It is argued by the learned counsel for the appellant that the effect upon the estate, caused by reason of the appeal to the court of appeals, was to permit the mortgaged property to diminish in value pending the appeal. We think the answer to that suggestion lies in the fact that that risk was assumed by the appellants when they executed the undertaking. If they had desired to avoid any diminution or delay, they could have paid up the judgment secured by the undertaking, and been subrogated to the rights of the judgment creditor; however, they were passive, and acquiesced in the delay occasioned by use of the ordinary means of reviewing the primary judgment We think the condition of the appellants’ undertaking required them to abide the action of the ultimate court, as was said by Judge Allen in Robinson v. Plimpton, 25 N. Y., 485 : “ The condition is, in substance, for the ultimate affirmance of the judgment appealed from. Upon the most literal and strict reading of the undertaking, the defendants became liable upon the filing of the remittitur from this court, and the entry of the proper judgment in the supreme court. The first judgment of that court became as if it had never been pronounced ; and the judgment entered in pursuance of the decision of this court was one in affirmance of the judgment first appealed from. That the remedy of the plaintiff was suspended, or, rather, .that the defendants’ liability was in suspense pending the appeal to this court, does not affect the question. * * * They consented to become liable upon a contingency which has happened, and for the result of an action of which they had no control and to which they were not parties, and are bound, not because they were parties to either appeal, but by the terms of their undertaking.”

We think Gardner v. Barney, 24 How., 467, supports the position of the respondent. See Seacord v. Morgan, 4 Abb., N. S., 251; Humerton v. Hay, 65 N. Y., 380.

We are of the opinion that the second undertaking on the perfection of the appeal to the court of appeals did not discharge the appellants’ testator from the obligation a'ssumed by him when he .executed the undertaking.

We are of the opinion that the report of the referee is right, and that the order confirming the same was properly made. Judgment and order affirmed, with costs.

Martin and Merwin, JJ., concur.


text:
    Almira N. Strever, Resp’t, v. Oren R. Earl, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 7, 1891.)

    1. Mortgage—Assignment.
    An assignment of an interest in a mortgage is valid though not acknowledged.
    2. Same—Merger.
    Defendant, who was the owner of a mortgage, assigned a portion thereof to plaintiff’s testator for a valuable consideration, the assignment stating that testator and defendant were to hold said mortgage in the proportions named. Thereafter defendant took a conveyance of the mortgaged premises. Held, that in the absence of consent thereto by plaintiff or her testator there was no merger, and that plaintiff had a valid lien to the extent of the interest assigned, which she was entitled to foreclose as against defendant.
    Appeal from a judgment entered in Oswego county June 25, 189.0, upon a decision made by a special term held in that county directing a foreclosure of a mortgage and sale of the mortgaged premises described in the complaint. On the 27th day of December, 1875, Lydia Weser, of. the town of Sandy Creek, executed and delivered to the defendant her mortgage under seal covering the land described in the complaint to secure the payment of $400 one year from date, which mortgage was recorded on the 30th of December, 1875, in book 107 of mortgages, at page 491. On the same day of the execution of the mortgage, the defendant executed and delivered to Dr. Soloman J. Douglass an assignment of an interest in the mortgage to the extent of $140. The assignment contained the following language: “ For value received I hereby sell, assign, transfer and set over unto S. J. Douglass, his heirs and assigns, one hundred and forty dollars in and unto a certáin mortgage I have this day taken of Mrs. Lydia Weser, in the sum of four hundred dollars, payable one year from date, and dated the 27th day of December, 1875. Said S. J. Douglass is to have and to hold that amount in said mortgage with me, in proportion to his amount of one hundred and forty dollars, and Oren R. Earl two hundred and sixty dollars, and the said mortgage is to be the property of both in proportion to the amount as above specified and the amounts furnished for the support and maintenance of the said Mrs. Lydia Weser and the expenses of insurance of the property and foreclosing the said mortgage.
    “(Signed) Oren R. Earl.
    “Dated Sandy Creek, December 27, 1875.”
    The assignment was not acknowledged. Douglass died on the 28th of August, 1876, leaving the plaintiff, bis widow, him surviving, and leaving a last will and testament which was duly admitted to probate on the 19th of December, 1876, by the surrogate's court of Oswego county, “by which will he gave to his wife, said plaintiff, all his property absolutely, and also made her sole executrix of said will” On the 2d day of November, 1877, Lydia Weser, by a warranty deed duly executed and delivered, expressing a consideration of $457.96, conveyed to the defendant in fee with a warranty of quiet possession of the land described in and covered by the mortgage; the defendant immediately took possession of the land and has since held the same under the title thus conveyed to him. The court found that “ The assignment set out in the second finding of fact was made upon a full and valuable consideration, as between the defendant and Solomon J. Douglass therein mentioned, and transferred to and vested in the latter an interest and share in the said mortgage and in the debt, the payment of which was thereby secured to the amount of $140 and interest thereon, from the date thereof, which interest and share, by the will of the said Solomon J. Douglass, was transferred to and become the property of the said plaintiff.” The court also found that no part of the $140 or the interest thereon had been paid, and that the same “ yet remains and is the property of the plaintiff and the same amounts at the date thereof to the sum of $266.63,” and for that sum the court ordered a judgment of foreclosure and sale. Defendant made certain requests to find, some of which were found and some of which were refused and exceptions taken to the refusals.

      A. Wart and Levi H. Brown, for app’lt; Udelle Bartlett, for resp’t.
   Hardin, P. J.

—The assignment of the mortgage interest to plaintiff’s testator by the defendant was valid though not acknowledged.

In Heilbrun v. Hammond, 13 Hun, 479, in speaking of the assignment of a mortgage, the court said: “ The assignment, so far as it operated to transfer the title of the bond and mortgage, was effectual without an acknowledgment. ”

(2) By force of the assignment executed by the defendant to plaintiff’s testator, the testator became an independent owner of that portion of the mortgage necessary to secure the sum of $140; and the assignment expressly declares, viz.: “ The said mortgage is to be the property of both in proportion to the amount as above specified, etc.” At the time the mortgage was taken it appears by the evidence that Dr. Douglass held an account against the mortgagor or her husband for some forty dollars, and that he advanced some twenty dollars in money and executed a promissory note for eighty dollars to the defendant, and thereupon received the assignment in question. Subsequently the assignor’s estate paid the promissory note. Apparently the defendant received full consideration for the $140 mentioned in the assignment, and to the extent of $140 defendant ceased to be owner of the mortgage either in law or in equity; that the same passed to the testator, and from him to the plaintiff; and no payment of such sum was made to the testator in his lifetime nor has the same or any part thereof been paid to the plaintiff in her individual- or representative capacity. She, by virtue of the terms of the will of her husband, became the owner of that interest in the mortgage, and as such owner of the interest in the mortgage and the lien created by the same to secure the payment of that sum, she, prima facie, was entitled to enforce the mortgage against the premises covered thereby.

• After such assignment the defendant was not the sole mortgagee in equity, and the mortgagor, having notice of such assignment having been made, could not properly pay the whole amount of the said mortgage to the defendant. His release given to her after her knowledge of the execution of the assignment would not operate as between her and him to discharge the mortgage or extinguish the interest acquired by the plaintiff’s testator in virtue of the assignment of the mortgage and the lien created thereby. When the defendant took a deed of the premises he had no right to discharge the lien held by the plaintiff upon the premises; and any agreement entered into by him with the mortgrgor that, in consideration of her conveyance of the premises, the mortgage should be discharged, could not operate to extinguish or satisfy the lien outstanding in favor of the plaintiff.

Appellant calls our attention to Davis v. Spencer, 24 N. Y., 386. We are of the opinion that the case does not sustain the contention of the appellant In that case it was found upon evidence “that the parties did agree that the mutual debts should be applied in cancelment and discharge of each other so far as they equalled each other in amount and to the amount of the smallest,, and that without any further action by them ; that is, that the agreement was executed, not executory." The case in hand differs-from that one in the circumstance that there is no evidence that the plaintiff ever consented that her lien in the premises should be extinguished by a deed of the premises to the defendant. We think there was no merger on the occasion of the defendant’staking a deed of the premises from the mortgagor. At that time he was aware that there was outstanding alien in favor of'the plaintiff which she held in virtue of the mortgage and his assignment to his testator; and she never consented that her lien or “ the charge should sink into the general legal ownership of the land and become extinguished.” Clift v. White, 2 Kern., 525.

Appellant calls our attention to De Lisle v. Herbs, 24 Hun, 486. We find nothing in that case which supports the contention of the appellant. It is said in the course of the opinion, viz.: “Ordinarily, when the legal and equitable title unite in the same person, the equitable is merged into the legal estate. This result will not follow where it is against the express or implied purpose or intention of the person owning the two titles. So, where it is for the interest of such person to prevent the union of the two estates, the law will imply an intention to keep alive the equitable estate." Nor do we think that Lynch v. Pfeiffer, 110 N. Y., 33; 16 N. Y. State Rep., 718, aids the appellant. Although that case, perhaps, is an authority for saying that so far as the defendant’s mortgage interest remained in the premises it was swallowed up by the, deed which he received from the mortgagor. Not so, however, as to the interest in the premises held by the plaintiff in virtue of the mortgage and the assignment thereof.

We think, upon the evidence, the court was warranted in finding “ That plaintiff at no time assented to or intended to assent to any merger of her interest in the said mortgage by the conveyance of the land described therein to the defendant, or to release any security afforded thereby for the payment of her interest or share in the debt secured by the mortgage.” The evidence fails to show that the plaintiff gave any consent prior to the defendant’s taking the deed that it should have the effect now claimed for it, and it also fails to show that she or her agent ever consented that it should have such effect; although it appears in evidence that the defendant, in one of the conversations he held with Newton, a brother-in-law of the plaintiff, who was seeking to collect the sum due to the plaintiff upon the mortgage, stated that he, the defendant, had taken a deed of the premises in payment of the mortgage. The evidence fails to establish that Newton ever assented that it should have such effect; even if it were conceded that he had authority to make such assent Under such circumstances it is obvious that the defendant’s act could not defeat the plaintiff’s mortgage lien.

In Brown v. Blydenburgh, 7 N. Y., 141, it was held, viz. : Where the holder of a bond and mortgage assigns it to a third person as a security for a loan, and subsequently receives from the mortgagor a conveyance of the mortgaged premises, and at the time executes to him a discharge of the bond and mortgage, the land so conveyed continues subject to the mortgage in the hands of the assignee.” In the course of the opinion it was said: “ It was clearly a fraud on the part of Atwell to give this certificate of satisfaction; because he had previously assigned the mortgage to Calder and Jcnew that he had no authority to discharge it.” It may be conceded that so far as the defendant had the beneficial ownership of aportion of the mortgage at the time he received a deed of the premises there was a merger, and that the deed operated as a satisfaction of the interest in the mortgage remaining in the defendant and an extinguishment of the lien pro tanto of his ownership in the mortgage. Still the deed was inefficient to discharge the interest in the real estate held by the plaintiff, and her lien or interest in the premises was not extinguished or merged by the conveyance so given to the defendant. Miller v. Lindsey, 19 Hun, 209, which follows Purdy v. Huntington, 42 N. Y., 334.

No merger would have taken place if the defendant, at the time he took the deed, had made an agreement to pay off the mortgage interest held by the plaintiff. In Skeel v. Spraker, 8 Paige, 182, it was held, viz.: “ Where a mortgagee has assigned his mortgage as a security for a debt due by him to a third person, his taking back a conveyance of the mortgaged premises and agreeing to pay the debt to the assignee does not operate as a merger of the mortgage, either in law or in equity.”

Appellant calls our attention to Asche v. Asche, 113 N. Y., 232; 22 N. Y. State Rep., 799, and upon examination we find nothing, in the case which sustains the position of the defendant In the course of the opinion in that case it was said: “Merger is accomplished in law when two or more estates in the same property unite in the same person, and when such estates comprise the whole legal and equitable interest in such property the person holding them becomes the absolute owner. * * * But this cannot take place where there is an intermediate estate.” Nor do we think the circumstance that after the defendant obtained the deed he took possession of the premises and continued to hold, possession thereof and that the plaintiff acquired knowledge of that fact, and for some time thereafter omitted to assert her lien by foreclosure proceedings, impairs oi defeats the plaintiff’s lien. The plaintiff had made efforts to collect the debt and continued to make efforts, and according to the testimony of some of the witnesses the defendant repeatedly promised to pay off and discharge the indebtedness held by the plaintiff and secured by the mortgage and assignment of a portion thereof /to her testator. We think no acquiescence, or assent or ratification was shown by the evidence which should estop or prevent the plaintiff from enforcing her lien upon the premises.

Our attention is called to Harrower v. Heath, 19 Barb., 331. In that case an agreement was assented to by the plaintiff “not only before the arrangement between them for that purpose was consummated, but was in various ways recognized and ratified by ■him afterwards.” That case is clearly distinguishable from the one before us.

The views already expressed sufficiently dispose of the exceptions taken to the findings as made and to the refusals to find. We are of the opinion that the plaintiff had a valid lien upon the premises at the time of the commencement of her action to the extent of the mortgage debt owned by her and assigned by the defendant to her, and that as between the plaintiff and the defendant, who was the sole owner of the fee, she was entitled to foreclose the mortgage for the purpose of enforcing payment of the debt and interest Such was the effect of the judgment given at special term.

Judgment affirmed, with costa

Martin and Merwin, JJ., concur.