text:
    Mary E. Witty, App’lt, v. Thomas C. Acton and Alphonso S. Sherwood, Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

    Summary proceedings—Redemption.
    A tenant removed for non-p'ayment of taxes and assessments is not entitled to redeem by a tender thereof. Section 2256 of the Code does not ap- ' ply to such a case.
    Appeal from a final judgment dismissing the complaint entered on an interlocutory judgment.
    For opinion at special term see 29 E. Y. State Rep., 653.

      J. Sabine Smith, for app’lt; George Bliss, for resp’ts.
   Brady, J.

The question presented by this appeal is, whether a lessee removed from the demise as a tenant holding over without the permission of the landlord after a default in the payment of the rent due pursuant to the agreement under which the demised premises are held and a demand thereof, and who also holds over under like circumstances after a default in the payment for sixty days from the time the same shall be payable of any taxes or assessments which the tenant has agreed to pay, can avail himself of the provisions of § 2256 of the Code, which allows the tenant at any time within one year after the execution of the warrant, when the unexpired term of the lease exceeds five years, to pay or tender the landlord all rent in arrear at the time of the payment or tender, with interest, and th^ costs and charges incurred by the landlord, and thus restore to himself the possession of the premises and the advantage of his lease.

The learned justice in the court below has considered this subject fully and has expressed his views in an elaborate opinion which embraces and satisfactorily disposes of the whole controversy in that regard; and although additional views might be indulged it is deemed unnecessary to employ them, but to leave the affirmance of the judgment upon the opinion which he has delivered.

The judgment should be affirmed, with costs.

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


source: Caselaw Access Project

author: Barrett, J.

license: Public Domain

text:
    Walter H. Hooker and Louisa A. Ensign, Resp’ts, v. Henry D. Sandford and Howard C. Pearsall, App’lts.

      (Supreme Court, General Term, First Department,

      Filed December 29, 1890.)

      1. Venue—Convenience oe witnesses.

      A plaintiff should not be compelled to go to a distant county to prove his cause of action because defendant has interposed a counterclaim which will require witnesses who reside there.
    2. Same—Affidavit.
    In such a case an affidavit which does not specify that defendant expects to prove by the witnesses named the material facts set up in the counterclaim is insufficient.
    Appeal from an order of the special term, denying defendant’s motion to change the place of trial.
    The following is the opinion at special term :
    Ingraham, J.—I have serious doubts about the good faith of the counterclaim set up in the answer, and I do not think that plaintiff should be compelled to go to Warren county to prove his cause of action because defendant has interposed a counterclaim which will require witnesses who reside there. Under all the circumstances I will deny the motion on plaintiff stipulating that the witnesses named in the affidavit may be examined before a referee in Warren county; the testimony so taken to be read on the trial.

      George C. Coffin, for app’lts; Campbell & Murphy, for resp’ts.
   Barrett, J.

The order appealed from might well be sustained upon the ground specified by the learned judge at special term. A careful perusal of the pleadings and affidavits has raised in my mind the same doubt as to the good faith of the defendants’ counterclaim which led to the denial of their motion. But there is an additional consideration which leads to the affirmance of the order and that is the failure of the defendant Sandford to specify in his affidavit that he expects to prove by the witnesses named the material facts set up in the counterclaim. He tells us, it is true, what he does expect to prove by these witnesses, but the specifications do not cover the gravamen of the alleged counterclaim. Certain witnesses may have heard the parties talking over their contract, but the crucial question is what the contract was and there is not a suggestion that any one of these witnesses heard the plaintiff, Hooker, promise to pay the defendants one-half the expense of running the defendants’ peddling wagons. The same lack of precision is found with regard to the other witnesses. The affiant fails to state what the defendants expect to prove by these witnesses as to the total cost of running the defendants’ peddling wagons or as to the amount paid for printing and sign painting.

For aught that appears there will simply be a conflict upon the trial between the parties as to the contract with no reasonable expectation on the defendants’ part that the witnesses named will support their testimony.

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

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


author: Corlett, J.

text:
    Nicholas A. Alpaugh, Commissioner of Highways, Resp’t, v. Susan M. Bennett, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Highways—Obstructions.
    In proceedings to determine as to the existence of an encroachment on a highway it appeared that such highway had never been recorded, and that there were no surface indications tending to show that the alleged encroachment stood on any part of a road that had been used continuously for twenty years. The questions litigated were not how far or to what extent the highway had been travelled for twenty years, but were confined to the question where it was originally located and traveled. Reid, that the proceedings were based on an erroneous assumption that the statute gives no power to the commissioner or jury to make any determination beyond the actual occupancy or user.
    Appeal by defendant from a judgment of the county court of Wyoming county, affirming a judgment entered by a justice of the peace of the town of Castile.

      Abbott & Abbott, for app’lt; H. W. Smith,, for resp’t.
   Corlett, J.

Previous to 1821, the town of Castile in the county of Wyoming was a part of the town of Perry. There is an highway, never recorded, so far as appears, running nearly east and west in the town of Castile which existed before the formation of the town. There is no record that it ever was laid out.

In Jiffy, 1889, an application was made to summon twelve freeholders to determine whether an encroachrpent had been made upon the highway above referred to. Such proceedings were had that on the 9th day oí August of that year six of the freeholders, found an encroachment by one Hiram Owen, a former occupant. The justice of the peace, before whom the proceedings were had, thereupon rendered judgment in favor of the highway commissioner of the town of Castile against the defendant. From this judgment the defendant appealed to the Wyoming county court, where the judgment was affirmed, and the defendant appealed to-this court. Mo opinion was written by the learned county judge,, but in a letter to the appellant’s counsel he states, in substance,, that sickness had prevented him from examining the case.

On the 15th day of May, 1889, George F. Lucas made a survey of this highway, as follows:

“ Survey of an old road running east and west through lot 87,. Ogden tract, in the town of Castile, and past the farm-house of Prosper Justin. Beginning at two small butternut trees standing together near the centre of the county line road, and near the northeast corner of Prosper Justin’s land; thence north 55° 10’ west, two chains and fifty-five links to a stake bearing S. 3% W. magnetic, 37-J- links from a chestnut tree 21 inches diameter marked, with three hacks on south side and bearing M. 34 W. 62 links from the west corner of a notch chopped on the north side of a chestnut tree 36 inches in diameter, standing near the south bounds of the highway; thence west to the west line of lot 37 to intersect the centre of the highway running west from- near Prosper Justin’s house across lot 38, Ogden tract The above is centre line of the road three rods wide.
“ George F. Lucas, Surveyor.
“Surveyed, May 15, 1889.”

Afterwards, and on the 10th day of July, 1889, the commissioner of highways of the town of Castile made an order based on the above survey, the commencement of which was as follows:

“Whereas, a road has been used as a highway for more than twenty years in the town of Castile, county of Wyoming, M. Y., and, according to the best of my knowledge and belief, said highway was originally duly laid out, the record of which, if any ever existed, has been lost or destroyed, which said road was originally intended to be of the width of three rods.” It then proceeds to recite the survey, and directs the removal of the fence, which was the alleged obstruction, so that the highway might be of the breadth originally intended.

Several witnesses were examined on the trial before the justice. It appeared by the testimony on behalf of the plaintiff that the survey must have been based either on the judgment of the surveyor or information derived from others, or both. The survey seems to have been made without reference to the beaten track at the time of making it. One witness for the plaintiff testified that the fence sought to be removed was formerly about the middle of the old road. He does not testify as to the length of time or extent of travel north of the present fence. Another witness on the part of the plaintiff testified to. the effect that the beaten track had .always been south of the fence sought to be removed, and about where it is at the present time.

A number of witnesses testified on behalf of the defendant, all agreeing that no road had ever been traveled at the place where the fence stands, or north of it, and that in fact there had been occasional moving of the traveled portion further north, so that at the present time the road as used is 'north of where it formerly was.

All the xyitnesses on the part of the defendant testified to the effect that the present fence claimed as an obstruction was built where it now stands-about ten years ago by Hiram Owen, and that it was placed where the old fence stood. There was no evidence on either side tending to show that the road then was, or for many years had been traveled to the extent of the survey.

The contention on the part of the plaintiff was that the survey truly described the location of the old road, and that the fence sought to be removed stood nearly at its center. But there is no evidence on the part of the plaintiff showing how long the road was traveled at the place where the fence stands, or north of it.

The claim on the part of the defendant was that the road had never been traveled as far north as the location of the present fence; that in fact the beaten track 'was formerly further south than it now is; and that the fences on the south side had been gradually moved north. The defendant insists and the evidence produced by her on the trial tended to show that there never was an highway or road at the place occupied 'by her fence or north of it.

The controversy on the trial was mainly limited to the question where the highway formerly was, and whether it was truly described in the survey. There was no controversy as to the fence being owned by the defendant or questioning her occupancy -and possession of the land north of it.

The counsel for the defendant on the trial moved to dismiss the complaint under § 2956 of the Code of Civil Procedure, on the ground that the title to land was in question by the plaintiff’s own showing which was controverted by the defendant. " This was denied.

The plaintiff also claims that the survey is conclusive as to the location of the old road; while the defendant insists that this cannot be so, as the adoption of such a view might deprive the defendant of her land for highway purposes without compensation ; also that it would vest arbitrary power in both the surveyor and -commissioner, and that if the statute conferred any such power it would be unconstitutional.

Public highways are either laid out and recorded, or are made .such by twenty years or more actual travel. 2 R. S. (Banks 7th ed.), 1449, § 100.

Section 101 makes it the duty of commissioners of highways to cause roads to be opened to the width of two rods at least, which they should determine had been used as public highways for twenty years. Snyder v. Pluss, 28 N. Y., 465; Snyder v. Trumpbour, 38 id., 355.

In Talmage v. Huntting, 29 N. Y., 447, it was held that where a jury was empannelled to determine the question of an encroachment it had no power to pass upon the width or boundary of an highway according to previous use or dedication.

In Doughty et al. v. Brill, 36 Barb., 488; affirmed 1 Abb. Ct. of Appeals Dec., 524; 3 Keyes, 612, is was held that proceedings cannot be had to remove an encroachment upon an highway where it had not been laid out.

Where lands are taken for highway purposes, the owner must be paid damages. Cook on Highways, 222 to 234,5th ed.q Chapman et al. v. Grates, 54 N. Y., 182.

Chapter 245 of the Session Laws of 1878, amending 2 R. S. (Banks 7th ed.), 1254, § 103, provides: “In every case where a. highway shall have been laid out or ascertained, described and entered of record in the town clerk’s office, and all roads which have been or shall have been used as public highways for twenty years or more, and the same have been or shall be obstructed in any manner or-encroached upon by fences or otherwise.” It then states that in such cases the commissioner shall have power to cause the obstructions to be removed. The mode of proceeding is fully described in the sections which follow.

In Borries v. Horton, 16 Hun, 189, it was held, in substance, that in proceedings by the commissioner to remove obstructions, want of jurisdiction might always be shown to defeat the proceedings.

In Cook v. Covil, 18 Hun, 288, it was held that the power of the commissioner was to ascertain the extent of the user.

In People v. Judges of Cortland County, 24 Wend., 491, it was adjudged that the power of the commissioners was to ascertain the user of the road as it had existed for twenty years, but that they had no authority to create or enlarge. It was further held in that ease that the commissioners exceeded their authority, but that the injured party had no remedy by appeal. It is otherwise now. Secs. 3044, 3045 and 3046 of the Code of Civil Procedure. To the same effect is Matter of City of Yonkers, 117 N. Y., 564; 28 N. Y. State Rep., 676.

It was further held in that case that the commissioners acted ministerially.

In Talmage v. Huntting, above cited, it was decided that the power of the commissioners was limited to ascertaining the boundaries as actually used for twenty years.

In Flack v. Village of Green Island, 33 N. Y. State Rep., 339, the questions of dedication, intent, and the user necessary to establish a highway were determined.

The only power conferred upon the justice’s court and jury is to determine whether an alleged encroachment exists. Sec. 107' of the R. S. above referred to.

The verdict of the jury in the present case follows the statute. The only fact found was that of an encroachment.

Applying the principles above referred to to the facts in the case at bar, it is obvious that all the proceedings, including the trial and verdict, were based upon an erroneous assumption. The survey was made upon the theory that the person making it had full power to determine where the highway was and had been without reference to where it was traveled. The order of the commissioner was based on the same assumption.

The questions litigated upon the trial were not how far or to what extent the alleged highway had been traveled for twenty years, but where it was originally located and traveled.

At the time of the trial there were no surface indications showing or tending to show that the alleged encroachment stood upon any part of a road which had been travelled continuously for twenty years. The plaintiff seems to have believed that the surveyor and commissioner could determine where the road was originally and that all the evidence to controvert the survey or determination of the highway commissioner was immaterial, no matter ho'w far or to what extent it might affect the seeming rights of the owner and occupant.

It is a familiar rule that a statute in derogation of the right of property or which takes away the estate of a citizen must be strictly construed. Washington Cemetery v. P. P. & C. I. P. P. Co., 68 N. Y., 591; McManus v. Gavin, 77 id., 36.

The statute above referred to, which extends the right to remove obstructions or encroachments upon highways which have been used for twenty years, cannot be construed to extend beyond actual user or to confer any power upon the commissioner to make any determination or adjudication beyond such actual occupancy. The amendment cannot have been so intended. Having reference to the cases and statutes affecting the rights of property, it is too clear for argument that the legislature never intended to confer authority upon the commissioner to consider or determine any question except the extent of actual user. The existence of the highway must be based upon the extent of user. The jury has no question to determine except to find whether there has been an encroachment or obstruction upon the road so used.

, To hold to the extent of the plaintiff’s contention in the present case would involve the conferring of power upon the highway commissioner to take lands for highway purposes owned by a citizen without compensation if he saw fit to do so.

It is needless to say that if the legislature had passed an act allowing the taking of lands for highway purposes without compensation it would have been unconstitutional and void. But no such question is involved. The statute was simply intended to allow obstructions and encroachments to be removed upon conceded highways either laid out and recorded or made such by user. The amendment was not made for the purpose of depriving a citizen of his land for highway purposes without compensation.

It follows that the judgment of the county court and justice’s • court must be reversed, with costs.

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


text:
    Roxanna H. Lawrence, individually and as Ex’rx, and George Sherman, as Ex’r, Resp’ts, v. Walter S. Church, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Compromise—Considebation—Pleading.
    The complaint herein alleged the pendency of an action upon notes given by defendant to plaintiffs’ testator; that an agreement was entered into by which defendant was to pay all debts allowed or legally established against the estate, together with a certain sum to Mrs. Lawrence, and was to have the benefit of certain notes and mortgages belonging to the estate, or the proceeds thereof after payment of the expenses of collection and settlement of the estate, the action to be thereupon discontinued; that defendant.failed to pay certain sums set forth, which he was obligated by the agreement to pay, and demanded judgment for such sums. On demurrer, Held, that the complaint stated a cause of action; that the agreement was based on a good consideration, mutual promises.
    Appeal from an order and interlocutory judgment overruling demurrer on the first ground therein stated.

      Richardson & Robbins, for app’lt; J. H. & C. W. Stevens, for resp’ts.
   Corlett, J.

J.—Judson W. Sherman died at Angelica, in the county of Allegany on the 12th day of November, 1881, leaving a last will and testament, by which he appointed the plaintiffs executrix and executor. The will was duly admitted to probate.

The defendant, Walter S. Church, became indebted to the deceased in his lifetime on promissory notes in a large amount and at the time of the death of the testator there was unpaid upon the notes more than $11,000. The executrix and executor of the will brought an action against Church to recover the amount so remaining unpaid. While the action was pending, the following agreement was executed:

“ Stipulated, that Walter S. Church will pay all the debts allowed or legally established against the estate of the deceased, including the mortgage and liens on the real estate of said deceased at the time of the death of said deceased.

2. That said Walter S. Church, defendant as aforesaid, will pay to Eoxanna Lawrence aforesaid, the sum of $3,000, in such manner as will be acceptable to her.

3. That said Walter S. Church shall have the benefit of the Thomas J. Chew, Jr., notes and mortgages now belonging to the estate, or the proceeds thereof, if any, after paying the expenses and commissions such as are legal and proper in collecting said mortgage and settling and administering upon the estate. The said Eoxanna Lawrence to have the use during her natural life of the house and lot where she lives, according to the will; she to release to George and William Sherman her life estate in the vacant lot, and said George and William to have the said house and lot subject to the life estate of said Eoxanna. When this is all done this action to be discontinued and the notes surrendered. W. S. Church.

Eoxanna H. Lawrence,

Administratrix of J. W. Sherman Estate.”

The defendant failed to perform the conditions of the agreement, and this action was brought to recover the sum of §3,660 with interest, on account of moneys which should have been paid by the defendant under the contract. The complaint alleges the pendency of the action to recover the amount unpaid upon the notes; also, the making of the contract. The complaint then sets out the various sums which by the agreement the defendant was under obligations to pay, which he had not paid, a request of payment and refusal, and judgment is demanded accordingly.

The defendant demurred to the complaint upon various grounds, the first of which was : “ That the complaint does not state facts sufficient to constitute a cause of action.” The second and third, that causes of actions were improperly united, and the fourth, that there was a misjoinder of parties plaintiff in this, tó wit: “ That the plaintiff, Boxanna H. Lawrence, as executrix, and Greorge Sherman, as executor of the last will and testament of Judson W. Sherman, deceased, have no. interest in the alleged cause of action for three thousand dollars in favor of the plaintiff, Boxanna H. Lawrence, individually; also, in this, to wit: That the plaintiff, Boxanna H. Lawrence, individually, has no interest in the alleged cause of action for six hundred and sixty dollars in favor of the plaintiffs, Boxanna H. Lawrence and Greorge Sherman, as executrix and executor of the last will and testament of Judson W. Sherman, deceased.”

The demurrer was overruled as to the first, second and third grounds, and sustained as to the fourth, with costs to the defendant, with leave to the plaintiffs to amend. An opinion was written by the justice at special term which appears in the case.

The defendant appealed from that portion of the order and interlocutory judgment which overruled the demurrer on the first ground, so that the only question before the court is whether the complaint states a cause of action. That it does so is very clear. The agreement shows mutual promises; a good consideration.

The following cases illustrate the rule: Carstens v. Schmalholz, 29 N. Y. State Rep., 493-494; Davis v. Spencer, 24 N. Y., 386-390; Morehouse v. Bank, 98 id., 503; Wahl v. Barnum, 117 id., 95, 96; 26 N. Y. State Rep., 457; McCreery v. Day, 23 id., 777; Kirtz v. Peck, 113 N. Y., 222; 22 N. Y. State Rep., 733; Deen v. Milne, 113 N. Y, 303; 22 N. Y. State Rep., 620.

The order and judgment appealed from must be affirmed.

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


text:
    Mary Leach, Resp’t, v. The Buffalo, Rochester & Pittsburg R. R. Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Appeal—Questions revtewable.
    Where it does not appear that the motion for a new trial was based on the ground that ,the verdict was against the weight of evidence, or that the evidence was not sufficient to entitle the plaintiff to recover, the right of recovery on ' the evidence is not before the appellate court for review.

      Appeal by the defendant from a judgment entered upon a verdict, and from an order denying a motion for a new trial upon the minutes of the court.

      Henry G. Danforth, for app’lt; M. E. & E. M. Bartlett, for resp’t.
   Corlett, J.

On the 17th day of October, 1889, the plaintiff purchased an excursion ticket from the defendant for a passage on its road from Silver Springs to Eochester and return. The plaintiff entered the car to return a few minutes before it started. A number of men of the excursion party went into the rear end of the same car. There were ten or twelve of them and they engaged in loud talking and appeared to be intoxicated. Some of them stood up, and at times walked up and down the aisle, quarreling among themselves. Blows were struck, and finally two of them, Madison and Austin, in a struggle between them, crowded into the plaintiff’s seat and against her and inflicted upon her, as she 'claims, serious injuries. This occurred about the time the train reached Le Eoy in Genesee county. The fighting commenced about an hour after the train left Eochester. The train consisted of eleven coaches, occupied by about 548 passengers. There were four brakemen on the train.

It appeared that the turbulence in the car would partially cease when the conductor was passing through it. There was also evidence tending to show that his attention was called to the misbehavior of these apparently intoxicated men.

The plaintiff brought an action to recover damages for her alleged injuries. The cause was tried at the Wyoming circuit in April, 1890, and the plaintiff obtained a verdict for $1,000. A motion was made by the defendant on the minutes for a new trial, which.was denied; judgment was entered upon the verdict, and the defendant appealed to this court from the judgment and order. At the close of the plaintiff’s evidence the defendant asked the court to non-suit the plaintiff, which was denied and the defendant excepted.

The trial justice fully charged the jury, presenting every aspect of the case. He stated to them, in substance, that it devolved upon the defendant to protect its passengers to a reasonable extent from injury by the misconduct of other passengers; that those in charge of the train owed a duty to the persons traveling upon it to protect them from unreasonable annoyance or violence of other passengers after notice; that riotous passengers could be expelled from the train, unless after proper notice they demeaned themselves so as not to injuriously interfere with the rights of other travelers.

The trial justice in the charge detailed to the jury the evidence bearing upon the negligence of the conductor and those entrusted by the defendant with the charge and management of the train in protecting the rights of the plaintiff as a passenger after notice, and commented fully upon all the evidence bearing upon the question of the defendant’s liability. The rule of damages was also fully stated, including what the jury could take into consideration and account upon that question. In short, the trial justice submitted to the jury every question which bore upon the right of the plaintiff to recover, including the amount of recovery in case of a verdict in her favor. No exceptions were taken to the charge by the learned counsel for the defendant

The jury found a verdict in the plaintiff’s favor for $1,000. The defendant made a motion for a new trial on the minutes. But the case fails to show that any claim was made on the motion that the verdict was against the weight of evidence, or that the plaintiff was not entitled to recover. The order shows that the motion was made, in part, upon the ground that the verdict was excessive. But it nowhere appears that the motion was based on the ground that the evidence was not sufficient to entitle the plaintiff to recover.

Under such circumstances, the right of recovery upon the evidence is not before this court. Gray v. N. Y. Floating Elevator Co., 13 N. Y. Wk. Dig., 140; McDermott v. Conley, 33 N. Y. State Rep., 560-561.

But the question has been considered, and no error is discovered in that regard.

There is nothing in the case to show that the verdict was excessive.

It follows that the judgment and order must be affirmed.

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


text:
    Joseph Bauer, Pl’ff, v. The City of Rochester, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Municipal corporations—Negligence—Obstructions in street.
    Plaintiff was injured by his horse colliding with a pile of stones placed partly across a street and left unguarded and unlighted. The stones had been placed there by a contractor with the city for use in his work, and had been diminished as the work progressed. The work was under the supervision of a person employed by the city. Reld, that it was the duty of the city to see that its streets were kept in a safe condition for travel, and to use reasonable diligence to accomplish that result, even though the obstruction was placed there by the contractor; that it was not relieved of that duty by the fact that the stones were not piled on the portion of the street being improved, as they were placed convenient thereto; and that plaintiff should not have been nonsuited either on the ground that his only remedy was against the contractor or because of want of proof of negligence by the city, but the case should have been submitted to the jury.
    Motion by plaintiff for a new trial upon case and exceptions, ordered to be heard in the first instance in this court.

      John A. Barhite, for pl’ff; Harry J. Sullivan, for def’t.
   Corlett, J.

Pearl street, in the city of Rochester, runs east and west and South Goodman street north and south.

On the 1st day of May, 1888, the following resolution was adopted by the common conncil of the city of Rochester.

“ That the city surveyor ascertain and report to this council the expense of constructing a gravel roadway with Medina stone curbs and Oliver’s Portland cement sidewalks on a portion of -South Goodman street.” The surveyor submitted a report that the expense would be $4,725. Such proceedings were afterwards had that on the 15th day of May, 1888, the council, by resolution, directed:

“ The construction of a gravel roadway on South Goodman .street, from the south line of the crosswalk on the south side of Monroe avenue to the north line of the crosswalk on the. north side of Pearl street, with Medina stone curb lines on each side, fifteen (15) feet from and parallel to the medial line of South Goodman street aforesaid within the terminal limits named, with additional Medina stone gutters three (3) feet pavements, the construction of new and the cleaning, repairing and extension of existing surface sewers where required; also, the construction of Oliver’s Portland cement sidewalks five (5) feet wide on each side, within the terminal limits aforesaid, except where flag sidewalks of approved quality and of the specified width, and on proper grades and alignments now exist, but where the sidewalks are of approved quality but are not of the required grades and alignments they may, in the discretion of the city surveyor, be taken ■up and relaid on the grades and alignments that he -may establish ; ■also, the construction of the required crosswalks.”

The council let the contract to make the improvements to Marvin & Hartung, for the sum estimated by the surveyor. The improvements were commenced and completed.

Peter Cullen, a witness for the plaintiff, testified in substance that he was employed by the city of Rochester to take charge of the above improvements. He testified that the street was filled in more than dug out; that in places the road-bed was excavated, and the materials excavated put in lower places ; that six or seven hundred loads of dirt were drawn to fill up the street; that there was a pile of stone placed for construction purposes at the corner of South Goodman and Pearl streets ; that it did not occupy very much of the road and would not necessarily discommode travel; that it'was paving stone drawn for use in the improvements; that the pile of stone must have been there some time before the accident occurred; that it was being used and decreased from day to day as the work progressed.

The evidence also showed that the improvements were paid for by the city. The above pile of paving stone, on the night in question extended about half way across the street. It was about two feet in width. From that point a plank extended from the pile of stones to a barrel on the opposite side of the street.

On that evening, a little before eight o’clock, the plaintiff left his home on Seventh avenue, in the northeastern part of the city, and went near South Goodman street and bought a horse, which he hitched tó his wagon in the place of the other. He drove the wagon and led the other horse until he reached the pile of stones, which caused the horse to stumble and fall, throwing the plaintiff out and inflicting severe injuries. ' The night was very dark, and there were no lamps at the time near enough to show this obstruction., It appeared that the plaintiff did not travel on Goodman street when he went to get the horse.

The plaintiff brought this action against the city to recover damages. Issue was joined, and in June, 1890, the cause was tried. At the close of the plaintiff’s case the defendant moved for .a non-suit upon the ground that the negligence, if any, was that of the contractor, and not of the city ; and that the city was not liable for the acts of the contractor; also, upon the ground that no negligence had been proved against the city. The motion was .granted and the exceptions ordered to be heard here in the first instance. No opinion was written by the trial justice. The sole ■question before this court is whether the plaintiff was properly non-suited.

In Pettengill v. City of Yonkers, 116 N. Y., 558; 27 N. Y. State Rep., 531, it was held to be the duty of a municipal corporation to keep its streets in a safe condition for public travel, and it was bound to exercise reasonable diligence to accomplish that end, and that this is equally true whether the obstruction rendering travel unsafe is caused by a third person or the corporation. It was further held that where improvements were being made on the streets, the city should so guard them as to protect travelers, and that it was not absolved from liability from the fact that the obstruction was caused by a contractor with the city, even though by his contract he was bound to properly guard it or place warning lights. It was further held that a person using the ■street is not required tó be vigilant in discovering obstructions; that he may walk or drive by day or night, relying upon the assumption that the corporation has performed its duty.

To the same effect are all the cases. Turner v. City of Newburgh, 109 N. Y., 301; 15 N. Y. State Rep., 93; Nelson v. Village of Canisteo, 100 N. Y., 89; Russell v. Village of Canastota, 98 id., 496; Nims v. Mayor, etc., of Troy, 59 id., 500.

In Brusso v. City of Buffalo, 90 N. Y., 679, it was held that the ■city was liable, although the improvements were being made by a contractor under the direction of a department of the city government.

In Dressell v. City of Kingston, 32 Hun, 533-535, it was held that where the injury is inflicted by the negligent acts of workmen over which the city had no control, it will not ordinarily be liable; but where the work is properly performed and the materials placed where they should be for construction purposes in a street or highway, the city is liable. Storrs v. City of Utica, 17 N. Y., 104.

The distinction is illustrated in Herrington v. Village of Lansingburgh, 110 N. Y., 145; 17 N. Y. State Rep., 92. There the injury was caused by a blast fired by the contractors. The court held that the city was not liable for the culpable negligent act of the contractor in blasting; that before firing the contractors should have given notice, but that this duty did not devolve upon the city.

In the case at bar it is not alleged or claimed that the contractors were guilty of negligence in placing the pile of stone where it was. In the performance of their contract with the city, so far as appears, it was proper for the contractors to pile the stone where they did. The case was not disposed of on the trial upon the ground that the pile was improperly there. So far as appears it was just where it should be. The difficulty was, there was no light or guards to notify or prevent injury to a traveler who came into contact with the pile.

It is obvious that the defendant’s contention that the plaintiff cannot recover because the stones were not piled upon the portion of the street being improved, cannot be sustained. The stones were placed proximate at a convenient place near the portion of the street improved. That fact did not relieve the city from the performance of its duty, nor was it claimed on the trial that the stones were not properly placed for convenient use in making the improvements.

It is urged by the learned counsel for the defendant that the stone had not been there a sufficient length of time to-charge the city with notice. But the work was under the direction of a servant of the city, and the evidence tends to show that the stone had been there a long time, being diminished by use as the work pro-grossed. It being the duty of the city to exercise vigilance in the care of its streets, when it let the contract for these repairs it must be assumed that it had knowledge of the manner in which they should be made, and the materials which would be used, and that some of them might be placed in the street. The person who had charge of the supervision for the city made no complaint, so far as appears, because of an improper placing of any of the n/aterials and. he had full knowledge of where they were. Under these circumstances, there was sufficient evidence to charge the city with knowledge of the obstruction. It was its duty to have such safeguards and lights as would protect travelers from accident and injury.

It does not appear whether the non-suit was granted because the only remedy was against the contractors, or because of want, of proof of negligence on the part of the city. But the plaintiff should not have been non-suited upon either ground. The evidence required a submission of the case to the jury.

A new trial must be granted, with costs to abide the event.

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


author: Dwight, P. J.

text:
    Herman C. Baskin and Estella A. Baskin, Ex’rs, App’lts, v. Washington D. Hays, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Will—Legatees—Division among.
    Where personal property is willed to several legatees to be.equally" divided among them, there is no need of a partition or judicial distribution thereof in order that the title of the legatees shall vest.
    2. Execution—Leviable interests.
    Plaintiffs’ testatrix, by her will, gave her farm and personal property to, her four children to be equally divided among them. Four years thereafter a horse was foaled, his dam being a mare belonging to the estate, ‘and the same was kept as a stallion and his earnings received and used by said legatees in common, the same as the other proceeds of the farm. This horse was taken by defendant under an execution issued upon a. judgment recovered against the four children in an action brought by them. In an action to replevin said horse, Held, that the execution debtors were the owners of the horse and that it was properly taken by defendant on the execution.

      Appeal from a judgment entered on the report of a referpe.

      Jno. Gillette, for app’lts; M. A. Leary, for resp’t.
   Dwight, P. J.

The findings of fact of the referee are well supported by the evidence and they in turn support the conclusions of law and the judgment from which this appeal is taken.

The action was replevin for a horse taken by the defendant on execution against Herman, Estella, Winifred and Mabel Baskin. These four were children of Eliza Baskin, who died - in 1879, leaving a will by which, after providing for the payment of debts and an expenditure of $700 for monuments and improvements in the family burial grounds she gave to them her farm to be divided equally between them, acre for acre, and all her personal property, consisting mainly of farm stock and implements, to be divided equally between them share and share alike.

No steps were taken towards administration of the estate until nearly four years after the death of the testatrix, when letters testamentary were issued to the plaintiffs, who were two of the devisees and legatees; but, immediately upon the death of their mother, the four devisees and legatees entered into possession of the farm and personal property and held, used and controlled the same as their joint property and for their joint use and benefit. They have paid off all the debts of the estate amounting to $1,800 or $2,000, except about $300 partly from the sale of personal property of the estate, partly from proceeds of the farm and partly from the earnings of two of their number. A mortgage on the farm has been paid in part by the sale of a portion of the land and the interest on the amount unpaid has been met from the proceeds of the farm.

The horse in question was foaled nearly four years after the death of the testatrix, his dam being a mare which belonged to the estate and which was held and used by the legatees in common as above stated; he was kept as a stallion and his earnings were received and employed as other proceeds of the farm in the payment of debts.

What suggestion of necessity or convenience led to the taking •out of letters testamentary in 1883 does not appear, but the next step towards administration of the estate seems to have been taken in 1886, when an inventory was filed of certain personal property then in possession of the legatees and in which the horse in question was included; and, so far as appears, the next official act of the executors was the bringing of this action. There is ho evidence that, at any time after the issuance of letters testamentary, there was any change in the custody, control or use of the personal property.

The execution under which the defendant levied on the horse was issued on a judgment recovered by one Campbell as defendant in an action brought by the four devisees and legatees against him in a justice’s court. Neither their alleged cause of action nor the counterclaim upon which the defendant Campbell obtained bis judgment, is disclosed by this record; but the judgment was docketed in the office of the county clerk, and the execution was-issued thereon under which the horse was taken by the defendant, in this action, acting as a deputy sheriff. Thereupon the plaintiffs, two of the execution debtors, brought this action, as executors of their mother’s estate, claiming that the horse belonged to-them as such.

Upon findings of fact, substantially summarized above, and which are fully supported by the evidence, the referee held that, "the execution debtors were the owners of the horse, and that it was properly taken by the defendant on execution against them; and in this conclusion we think the referee was clearly right

There was no need of a partition or judicial distribution of the personal property any more than of the real estate in order that the title of the legatees should vest therein. It was competent for them to hold the property in common so long as they agreed to-do so, subject only to the payment of debts of the estate and the satisfaction of the provision of the will relating to monuments and the fencing of the burial grounds. No creditor or other person interested has been heard to object that these provisions of the-will are not satisfied; and the evidence tends to show that there is-ample property for the purpose without resorting to the particular horse upon which the defendant levied the execution in his-, hands.

The finding of the referee that by virtue of such execution and levy the defendant acquired a right to the possession of the horse in question and a special property therein to the amount of the judgment, with interest and sheriff’s fees, seems to be well justified and to afford ground for the judgment appealed from.

That judgment should be affirmed.

Macomber and Corlett, JJ., concur.


text:
    Clark Woodworth, Resp’t, v. Thomas C. Hodgson and Frank I. Hawley, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    Chattel mortgage—Evidence.
    Where the question at issue is whether an instrument is a chattel mortgage or a hill of sale, evidence as to what occurred at the time of making it is admissible as part of the res gestee.

    Appeal by defendants from a judgment of the Monroe county court entered upon the verdict of a jury, and from an order denying a motion for a new trial.

      William B. Hale, for app’lts; John M. Dunning, for resp’t
   Corlett, J.

William A. Woodworth in November, 1887, was-engaged in the grocery business on the comer of Kent and Platt streets in the city of Rochester. He had previously resided with his father, Clark Woodworth, in the town of Gates, which adjoins Rochester. The plaintiff, to enable his son to commence business, executed two promissory notes, one for $500, and the other for $100, upon which $600 was obtained for the son. After that the plaintiff signed two letters of credit to grocers in the city of Rochester, by which the son was enabled to purchase goods to the amount of $300, the payment of which was guaranteed by the plaintiff.

Before the month of July, 1888, the son discovered that he was falling behind in business. On the 23rd of the same month an instrument in writing, purporting on its face to be an absolute bill of sale, was executed by the son to the plaintiff. The plaintiff claimed that under this instrument he obtained title and took immediate possession of his son’s stock of goods.

The sheriff of the county of Monroe immediately levied upon them by virtue of an execution issued upon a judgment against the son. On the 31st day of July of the same year, the plaintiff brought an action in the municipal court of the city of Rochester against the sheriff, to recover the value of the goods levied upon. The plaintiff in that court obtained judgment for $465.19. An appeal for a new trial was taken to the Monroe county court, which was had and resulted in a j udgment of $584 for the plaintiff, which was based upon the direction of a verdict in favor of the plaintiff by. the county judge. The defendants appealed to this court, where the judgment was reversed, 56 Hun, 236; 31 N. Y. State Rep., 66; 9 N. Y. Supp., 750, and a new trial granted upon the ground that the case upon the evidence presented questions of fact which should have been submitted to the jury.

An instrument in the form of a bill of sale may be a chattel mortgage if intended to secure a debt. Smith v. Beattie, 31 N. Y., 542.

A chattel mortgage is void as against creditors unless accompanied by an immediate delivery and followed by an actual and continued possession, unless the mortgage or a copy thereof is false. R. S. (Banks’ 7th ed.), vol. 3, p. 2249, § 1.

Section 5, the same volume and edition, page 2328, provides that every sale of goods and chattels, unless followed by an actual and continued change of possession, shall be presumed to be fraudulent and void; and shall be conclusive evidence of fraud unless good faith is shown. Under the section last cited, a question of fact is presented. Blaut v. Gabler et al., 77 N. Y., 461.

The distinction between a chattel mortgage and an absolute sale is, that in the case of the mortgage the instrument is absolutely void as against creditors without an immediate and continued change of possession unless it is filed; while in the case of a sale without like possession, the transaction is presumed to be fraudulent and void.

A new trial was had in the county court in May, 1890, which resulted in a verdict for the plaintiff for $554.57. A motion for a new trial was made and denied; judgment was entered on the verdict, and the defendants appealed to this court from the judgment and order.

On the last trial in the county court, the appellants moved for a nonsuit at the close of the plaintiff’s evidence upon the following grounds:

First. That there was no possession given under the alleged bill of sale, and that such being the case, it is a presumption of fraud which vitiates the transaction unless that presumption is refuted by direct .and positive evidence, which has not been produced in this case. Second. On the ground that the alleged bill of sale is a chattel mortgage, and the fact that there was no possession taken under it makes it absolutely void as against the defendants who represent creditors. Third. On the ground that there was no consideration for the alleged.bill of sale. Fourth. On the ground that the alleged bill of sale was virtually an assignment or transfer of all the property'and effects of William A. Wood-worth to his father, one of his creditors, and is consequently void by statute, both as not being properly executed, and as involving more than the statutory amount of preferences.

Motion denied. Exception. •

The same motion was repeated at the close of all the evidence, which was also denied.

The case in all its aspects was fully and fairly submitted to the jury. Ho exceptions were taken by the learned counsel for the appellants to the charge which require special notice.

Only one exception was taken to a request to charge, which was as follows: “I also ask the court to charge that the words, ‘ actual and continued change of possession,’ mean an open public change of possession, which is to continue and to be. manifested continually by outward and visible signs such as rendered it evident that the possession of the judgment debtor had ceased.

“ By the court: I so charge, adding, however, that this open and continued and visible possession is a term which is of course modified by the changing circumstances of every case.' The possession must be so open, so visible as the circumstances of the case and the nature of the property require. Exception.”

Hothing requiring consideration is presented by this exception.

The decision of this court on the former appeal was adopted and followed by the county court.

Surrounding and eotemporaneous facts will be considered in construing written instruments. Griffiths v. Hardenbergh, 41 N. Y., 464.

Conversations are also admissible bearing upon the same subject. Palmer v. First National Bank of Cortland, 4 Wk. Dig., 268; Tilson v. Terwilliger, 56 N. Y., 273; Simis v. Hodge, 50 Hun, 410; 21 N. Y. State Rep., 955; Howe v. Brundage, 1 S. C. ‘R. (T. & C.), 429.

It was not error to admit in evidence what occurred at the time of the making of the bill of sale. It was a part of the res gestee. Ho claim is made on the part of the defendant that the plaintiff’s debt was not an honest one. The court on one occasion, and the jury on the other, found in favor of the bona fides of the transaction.

There is no force in the objection that the transaction was void as, against the policy of the general assignment act. Royer Wheel Co. v. Fielding et al., 101 N. Y., 504.

The various exceptions earnestly urged by the • learned counsel for the appellants have been carefully examined, but no errors are discovered

The judgment and'order must be affirmed.

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


author: Macomber, J. Corlett, J. (dissenting.)

text:
    Francis B. Brewer, Resp’t, v. James E. Ford, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Conversion—Conditional sale.
    Where goods are sold, to he paid for in instalments by notes, the title to remain in the vendor until paid for, and while some of the notes are outstanding the vendee makes an assignment for creditors and the assignee refuses to deliver the goods on demand, the vendor may maintain an action for the value of the goods without surrendering the notes.
    (Following Brewer v. Ford, 36 N. Y. State Rep., 888.)
    3. Sale—Conditional.
    Plaintiff sold to defendant’s assignor certain merchandise, machinery, “ and all patterns pertaining to the lock business. * * * Said machinery shall be the property of said Brewer until paid for.” Held, that the intention of the parties, as gathered from the terms of the contract, was that title to the whole of the property transferred should be retained, and that, therefore, the word “machinery” included the patterns.
    3. Same—Passing of title.
    In the absence of an agreement that title to certain classes of the property should become absolute when a given amount of the purchase money had been paid, a certificate showing that the payments made had been applied first to the merchandise, second to the patterns, and the surplus on the residue of the indebtedness is meaningless, and lias no bearing on the question whether the patterns had been paid for and title thereto passed to the vendee.
    (Corlett, J., dissents.)
    Appeal from a judgment entered on a verdict at the Erie circuit in February, 1890, for $3,515 damages besides costs, and also from an order denying the defendant’s motion for a new trial.

      Frank C. Ferguson, for app’lt; William C. Fitch, for resp’t.
   Macomber, J.

This action is trover to recover of the defendant, who is the assignee for the benefit of creditors of a firm known as the Clark Manufacturing Company, the value of certain property which came into his hands as such assignee. The plaintiff ana the defendant’s assignors entered into an agreement January 29, 1880, by which a' given quantity of personal property, consisting of machinery, patterns and merchandise, was transferred from the former to the_ latter, to be paid for in instalments represented in amount by promissory notes ranging in times of payment between April 1, 1881, and April 1, 1889. When this action was begun, April 17, 1887, three of such notes of $1,000 each remained unpaid, but only one of them was due at that time. By the terms of the contract between the original parties it was agreed that “ said machinery shall be the property of the said Brewer in care, custody and charge of said Mix Brothers, until paid for.”

Upon the first trial objection was made by the defendant that no recovery could be had except upon a surrender of such outstanding notes. The justice presiding made a ruling to that effect, and afforded the plaintiff an opportunity to surrender the notes, which was declined by counsel, who had the notes in court, and who claimed the right to collect upon the notes any sum over and above the amount of the verdict which the jury might render in this action. A verdict for the defendant was accordingly directed; on appeal to this court, the judgment entered thereon and an order denying a motion for a new trial were reversed and a new trial granted. 26 N. Y. State Rep., 888, and 7 N. Y. Sup., 244.

The prevailing opinion placed the decision upon the ground that the action might be maintained without tendering the unpaid notes, because, as was there decided, the seller was confined in his remedy neither to a repossession of the property nor to the notes, but could avail himself of both.

The dissenting opinion was, in substance, that by holding on to the commercial paper the plaintiff assumed an attitude in this forum so inconsistent with the claim made in the complaint that the court could not properly permit him to proceed; for otherwise the rescission of the original contract, which the beginning of this action necessarily made, would not be a real but a sham rescission, and an action might still be maintained upon each of the outstanding notes; and that the active duty rested upon the plaintiff to restore before recovering a verdict in this action the unpaid paper still held by him. But, as stated above, a majority of the court decided otherwise, and held that the plaintiff had his cumulative remedy of recovering the property or its value on the ground that no sale of it had been made, and prosecuting the outstanding notes to judgment, or proving them for payment or dividends against the defendant as assignee of the estate of The Clark Manufacturing Company, upon the ground that the property had been sold to the defendant’s assignors and that a debt existed therefor. The case was treated as though the plaintiff held a chattel mortgage as collateral security for the unpaid purchase money.

The new trial has been conducted in accordance with the prevailing opinion of this court on the former appeal. The same persistent purpose to affirm and dissaffirm the original contract prevails throughout the case. The counsel for the plaintiff in the course of the trial said: “ Now, if the court please, I have here the three notes in question; I offer to place them in the possession of the court, or with such person or person’s as the court may direct for the purpose and with authority to endorse upon these notes whatever recovery may be obtained in this action; and if the recovery is equal to the amount of the notes, then that the notes may be surrendered to such person or persons as the court may direct; if the recovery is less than the amount of the notes, then the amount of such recovery to be endorsed upon the notes as so much payment.”

It was this attitude of counsel which induced the, direction of the verdict at the first trial, which decision on appeal a minority of the court held to be correct. But the court held otherwise. Except for the authority of that decision adherence to precedent, as well as legal principle, would, in my judgment, lead to a different result. But that judgment was given in this case on facts in nowise materially different from those now before us. It stands, therefore, res judicata. It is binding and conclusive on this and all courts of concurrent power. The present case is identical with the former appeal in the parties, in the cause of action and in the thing sued for. It was manifestly tried in accordance with the decision of this court previously rendered. We are not, consequently, at liberty to revise the former adjudication, though the present majority of the court are committed against it.

There remain, therefore, to be considered by us only such subsidiary questions, if any, arising on the second trial as were not in the former case.

It is contended by the appellant that, even though there may be a recovery for certain articles, there can be none for the patterns, for the reason, as is stated, that they are not “ machinery,” and consequently the clause of the agreement retaining title in the vendor does not apply to them. By the terms of the contract the plaintiff agreed to sell to the defendant’s assignors “a certain amount of machinery and all patterns pertaining to the lock business. * * * Said machinery shall be the property of said Brewer * * * until paid for. * * * And the Clark Manufacturing Company agree to make the above described purchase upon the conditions therein set forth and recited.”

It is now argued that the word “machinery ” does not include the patterns, which were valued at $3,400 of the original purchase. An attentive perusal, however, of the contract leads quite irresistibly to the conclusion that if the sale was conditioned in any part, and the title retained by the seller to any of the property until paid for, such condition and retention of title related to the whole of the property transferred. This obvious intention of the parties would overcome the restricted meaning given by the appellant to the word “ machinery,” and bring the patterns within its scope, even though, except in a metaphorical sense, the patterns may not be machinery. But they clearly are a part of the machinery. The word was here used in its most comprehensive sense, and included all the devices, tools and implements used in the manufacturing business for which they were bought. Buchanan v. Exchange Fire Ins. Co., 61 N. Y., 33.

It is, also, claimed by the appellant, that a written certificate signed by the plaintiff on the 21st day of October, 1887, six months after this action was begun, to the effect that the payments which had been made by the purchasers had been applied, first on the merchandise, and secondly on the patterns, the surplus to apply on the residue of the indebtedness, shows that the patterns have been paid for, and that, consequently, title to them passed absolutely to the Clark Manufacturing Company. But such certificate, in the absence of some agreement that title to certain clases of the property should become absolute when a given amount of the purchase money had been paid, which is nowhere shown, is meaningless and has no bearing upon the question.

The case is not materially different from the record of the former appeal. It follows, therefore, in of such decisión, that the judgment and order appealed from, should be affirmed.

Dwight, P. J., concurs.

Corlett, J. (dissenting.)

In 1880 the Clark Manufacturing Company was doing business in making builders’ hardware in city of Buffalo. On the 29th day of January, of that year, tfce following agreement was made between the plaintiff and the company:

“ Office of Westfield Lock Works, Westfield, N. Y., January 29, 1880.
“Memorandum of agreement made the day above written, between F. B. Brewer, of Westfield, N. Y, and the Clark Manufacturing Company, of Buffalo, N. Y. F. B. Brewer agrees to sell to the Clark Manufacturing Company a . certain amount of machinery and all patterns pertaining to lock business now owned by him in the lock factory at Westfield. A list of said machinery has been made and the prices fixed, and the amount will be about $7,000, more or less, the transfer to be made on or about the first day of April, when any changes which Mix Brothers may deem necessary or expedient in choice or character of the machinery, or the price of machinery or merchandise, shall be finally established. . Said machinery shall be the property of said Brewer, in care and custody of said Mix Brothers until paid for. The said Brewer agrees to accept inpayment for said purchase, as conditioned above, $500 on the 1st day of April, prox., $500 with interest on whole amount unpaid on the 1st day of April, 1881, and $1,000 and interest on whole amount unpaid on the 1st day of April thereafter until all is paid. Notes to be given for the several amounts. And the said Clark Manufacturing Company agree to make the above described purchase upon the conditions therein set forth and recited. For the faithful performance of the above written agreement, the parties bind themselves, each to the other in the sum of $5,000, as witness their hand and seals, day and date above written.
“ Francis B. Brewer. [l. s.]
“ The Clark Manfg. Co. [l. s.]”

On the 21st day of October, 1887, the plaintiff made the following memorandum:

October 21, 1887.
“ I hereby certify the payments which have been made to me by the Clark Manufacturing Company, in pursuance of contract and notes given to me, have been applied, first on merchandise, second on patterns, and third, all surplus to apply on balance of their indebtedness. F. B. Brewer.”

Negotiable notes were executed and delivered in pursuance of the contract. All the notes were paid, including interest on the three last of $1,000 each, to April 1, 1887. On the 17th day of that month the firm made a general assignment for the benefit of creditors to the defendant. The plaintiff on the 5th day of May of that year made the following demand in writing:

To James E. Ford Esq.:
Dear Sir—You will please take notice that I, the undersigned, am the owner and entitled to the immediate possession of the machinery and personal property hereinafter described, now in your possession and under your control, and of the value set opposite each item respectively, to wit: ”

Then comes a' statement of the property, consisting mostly of machinery, and also the following :

“Patterns.................................... $3,400 00”

The whole value of the items stated in the demand is $3,539. The demand closes with the following:

“And you will further take notice that I do hereby require and demand the possession or delivery of said machinery and personal property to me from you. . #
“ Dated this 5th day of May, 1887.
“Francis B. Brewer, Claimant.”

The defendant did not deliver the property, and on the 12th day of May, 1887, the plaintiff brought trover, alleging the conversion of the above articles of property and demanding judgment for $5,000. Issue was joined; the cause was first tried at the Erie circuit in October, 1887, when the court directed a verdict for the defendant. On appeal a new trial was granted. 2.6 M. Y. State Bep., 888. .The cause was again tried in February, 1890, and resulted in a verdict of $3,515 for the plaintiff. A motion for a new trial was made and denied; judgment was entered on the verdict and the defendant appealed to this court from the j udgment and order.

It appeared on the trial that the prices finally fixed amounted in the aggregate to nine thousand dollars instead of seven as first estimated; that six thousand dollars of principal, also interest on the whole amount secured, were the sum paid in all by the firm. The agreed price of the machinery and tools when purchased was $3,585, and the patterns, $3,400, and of the merchandise, $2,015. All the payments had been made before the making of the certicate, a copy of whieh appears above. The evidence also tended to show that the three unpaid notes before they fell due were sold by the plaintiff to the Westfield bank, endorsed by him; that he afterwards paid them, and had them in his possession at the last trial when they were all due. There was considerable evidence given on the subject of the value of the property on the trial. Some of the plaintiff’s evidence tended to show that the property alleged to be converted was equal if not greater in value than the verdict. While the evidence on the part of the defendant tended to show that the property was very much less in value ; and there was some evidence on the part of the plaintiff to the same effect.

The trial justice charged the jury, in substance, that if they found for the plaintiff their verdict would be the value of the property, with interest from the time of the conversion, but that it could not bo more than the amount unpaid on the notes, including interest. • The verdict was for the exact amount unpaid upon the notes. The evidence on "both sides tended to show that the property referred to in the agreement was delivered to the defendant’s assignors; that the patterns were frequently changed or replaced, and that the other property, except the machinery, had been to a considerable extent disposed of. All the evidence showed that the value of the machinery, outside the patterns, was very much less than the verdict.

The first question which naturally presents itself is, whether the plaintiff could so far disaffirm the conditional sale as to maintain trover for the property, and then recover the amount unpaid on the notes. The rule in reference to the election of remedies is very familiar. In the case at bar, the plaintiff could have enforced payment of the notes by action, and if he failed to collect, he could take the machinery, the title to which, by. the terms of the contract, "^as to remain in him until payment; or on default he could bring replevin or trover. Either action necessarily pro ceeds on the assumption that all the rights of the defendant under the contract are ended, and that by reason of default in payment, the plaintiff could retake his property, having never parted with the title. Trover involves a wrongful conversion. In other words, the action could not be maintained unless retention of the property by the defendant was wrongful. It needs no argument to prove that the retention of the property would not be wrongful so long as the plaintiff looked upon the executory contract as continuing and the right to recover the unpaid purchase money unimpaired.

The theory of a conversion and the continuance of the contract, so that the unpaid purchase money could be collected, is entirely inconsistent. The plaintiff had his election to pursue any of his remedies, but having elected one remedy, all others are irrevocably gone. Fowler v. Bowery Savings Bank, 113 N. Y., 450; 23 N. Y. State Rep., 130; Rodermund v. Clark, 46 N. Y., 354; Steinbach v. Relief Fire Ins. Co., 77 id., 498; Andrews v. Ætna Life Ins. Co., 92 id., 596; The Second Nat'l Bank of Oswego v. Burt, 93 id., 233; Bowen v. Mandeville, 95 id., 237; Moller et al. v. Tuska, 87 id., 166; Sweetser v. Smith, 20 N. Y. State Rep., 62; S. C., 22 Abb. N. C., 319.

In the case last cited, Powers v. Benedict, 88 N. Y., 610, is shown to decide no different doctrine, it being there merely held that a replevin suit where all the property was not taken would not prevent a pursuit of other property.

The learned counsel for the respondent in his brief correctly states his position in saying, “ This action is brought upon the conditional sale, and is by yirtue of the contract itself and in pursuance of its terms, and, therefore, an enforcement of said contract, and not a rescission thereof. The parts italicised are so in the brief.

The trial justice adopted this view and all his rulings were cased on the assumption that the plaintiff could maintain trover, and also recover in an action on contract the balance unpaid upon the notes. The amount paid by the defendant’s assignors on the conditional contract was in pursuance of its provisions, and no reason is seen why the defendant should be entitled to recover back the sums paid; but a different question arises as to the unperformed part of the contract. When the action was brought, there were outstanding negotiable notes not then due. The plaintiff elected to treat the conditional sale as ended, and the ■continued possession of the property in the assignors or their assignees as wrongful, which entitled the defendant to the return of the unpaid notes. The moment he took this position, it logically and necessarily followed that from the time of this election he treated the executory contract as at an end. He could not on the ■one hand enforce payment under the provisions of the contract, and on the other repudiate it and recover the property or its value in an action of tort.

On the former appeal the learned justice delivering the prevailing opinion states, among other things: “ The plaintiff has a right to take possession of the property as against the vendee for the purpose of preserving his security and enforcing his right to have the property devoted to the payment of his debt.”

It is obvious that the learned justice fell into the error of assuming that title had vested in the defendant’s assignors, and that the plaintiff held the property simply as security. The distinction between a conditional sale and chattel mortgage does not seem to have been noticed. In the present case, the defendant’s assignors obtained no title, but were merely bailees for the plaintiff. Comer v. Cunningham, 77 N. Y., 391-398; Austin v. Dye, 46 id., 500; Herring v. Hoppock, 15 id., 409; Ballard v. Burgett, 40 id., 314.

A demand of the property and the bringing of trover was decisive of the election of the plaintiff to treat the conditional contract as ended. Kinney v. Kiernan, 49 N. Y., 164.

All the cases agree that inconsistent remedies cannot be pursued. Dodge v. Fearey, 19 Hun, 277; Cobb v. Hatfield, 46 N. Y., 533; Gould v. Cayuga Nat'l Bank, 21 Hun, 293; aff’d 86 N. Y., 75; Riley v. Albany Savings Bank, 36 Hun, 513-522; Iselin v. Henhin, 16 Abb. N. C., 73-80; Bowker Fertilizer Co. v. Cox, 106 N. Y., 555; 10 N. Y. State Rep., 658; Avila v. Manhattan Chem. Co., 32 Hun, 1; Wile v. Brownstein, 35 id., 68.

The same doctrine applies to conditional sales. Heinbockle v. Zugbaum, 5 Mont., 344; S. C., 51 Am. Rep., 59; Campbell Printing Press Co. v. Walker, 43 Hun, 449, 451, 452; S. C., 6 N. Y. State Rep., 731.

The trial in this case proceeded on the assumption that this action was entirely consistent with a recovery upon the notes for any deficiency. The learned counsel for the respondent argues that, inasmuch as the court charged that there could be no recovery beyond the amount unpaid on the notes, with interest, and as the-verdict was exactly that sum, that even if the trial proceeded on a wrong theory the defendant was not injured. The ■difficulty with this reasoning is, that it assumed the plaintiff’s right to recover the value of the property in trover, and also the balance unpaid upon the notes on contract; also that it is impossible to know to what extent the wrong theory adopted on the trial affected the amount of the verdict. The jury had a right, and assumed that in one sense they were finding a verdict for the amount due the plaintiff. It is true that the value of the property would determine the amount of the verdict, but it is clear that the theory of the trial induced the jury to take into consideration the amount due upon the notes in estimating this value. There was no evidence showing that the value of the property was the precise amount due upon the notes.

If the jury had been instructed that the plaintiff’s election to bring trover would prevent an action on the notes, other considerations might have influenced them in determining the' question of value.

Machinery is defined by Webster as: “The working parts of a machine, engine or instrument, arranged and constructed so as to apply and regulate force: as the machinery of a watch. The means and appliances by which anything is kept in action.” Worcester’s definition is: “An artificial work which serves to apply or regulate moving power, or to produce motion; an engine; a piece of mechanism.”

The contract is: “ Said machinery shall be the property of said Brewer.” More'than seven years later the plaintiff construed this clause by stating that the amounts paid had been applied, first, on merchandise; second, on patterns; and third, all surplus to apply on balance of their indebtedness. No indebtedness appears expect for merchandise, patterns and machinery. The payments made were, therefore, naturally applied in the extinguishment of those portions of the debt arising from the sale óf property the title to which passed; but as to the machinery, the title to which, was retained in the plaintiff, no applications were made until the rest of the indebtedness was paid.

A pattern is a mere model which may be used to construct machinery and create working implements, and such are the above definitions. But it cannot be said with any force or plausibility that a model or pattern is a machine within any known definition of that term. The contract itself makes a distinction between patterns and machinery.

Where property is delivered under a contract of sale, no. construction should be adopted retaining title in the vendor without clear and unambiguous language. It is generally true that delivery in pursuance of a, contract of sale is presumed to vest title in the vendee, and if for any reason it is retained in the vendor, this is so by virtue of the terms of the contract. In addition to this, the demand itself speaks of machinery and other personal property, and in the bill of items the machinery is given in detail, while the patterns are lumped up by the use of that word, and valued at $3,400. Besides, models or patterns are frequently changed or modified, as was the case in this manufacturing establishment.

To retain title in the vendor of those originally delivered would breed uncertainty and confusion. The contract limited the retention of title in the vendor, to machinery, which in its nature is more permanent and traceable. Buchanan v. Exchange Fire Ins. Co., 61 N. Y., 26, is entirely consistent with the above views.

In that case a policy of fire insurance was issued upon a stock of materials for manufacturing paper, and on paper manufactured .and in process of manufacture, and on machinery contained in a paper mill at West Milton, Saratoga county. In the syllabus it is stated that the word machinery ” as used in the policy included not only the machines but the tools and implements used therewith for the manufacture of paper.

The case does not show what these tools or implements were, and the only reference made to the subject is at the close of the opinion, and is in the following language:

“ The loss upon machinery, as claimed by the plaintiff in his inventory, was $1,913.66. This was covered by insurance in this company for $500, and in two other companies, each for $500, making in all, $1,500; which was upward of $400 less than the loss. Even if a few of the items contained in the inventory were not actually machinery, the value of such items was not $400; and hence the plaintiff was clearly entitled to recover the full amount of his insurance.” .

It is obvious that the property was fairly included in the description ; besides the question was not passed upon, as the above quotation sufficiently shows.

The verdict in the present case was not only for the value of the machinery, but also of the patterns, and to that extent was excessive.

Without considering the other'questions in the case, it follows that the judgment and order should be reversed,- and a new trial granted.

Judgment and order appealed from affirmed. .


text:
    William F. Townley, Resp’t, v. The Fall Brook Coal Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Negligence—Railroads—Fires.
    Although railroad companies are required by law to burn or remove ties and inflammable material from the right of way, they must do so -at a time, in a place and with precautions which will reasonably protect adjoining lands and adjacent buildings from the-danger of communication of the fire.
    ‘2. Same—Evidence.
    While evidence is admissible, in an action against a railroad company for damages communicated from its burning piles of ties, that a tramp was in the vicinity at the time and made threats against the plaintiff, evidence of declarations made by him at a different time to the effect that he set the first fire, and proof of his conviction of arson in another state are inadmissible against either party.
    ;3. Same—Charge.
    Defendant’s employes made a long pile of old ties in a cut a short distance from plaintiff’s mill, which was run by water and was unoccupied at the time, the bank of the cut toward the mill being higher than the pile. The pile was fired about three in the afternoon. At seven a fire was discovered in the mill and extinguished. At eight in the morning another fire broke out which consumed the mill. In an action for damages, the court refused to charge that the jury could not find in plaintiff’s favor unless they find defendant’s men were guilty of negligence in leaving the tie piles or fires without watching at seven o’clock in the morning the mill was burned, Feld, no error, as the request necessarily assumed that- there "was no possibility of fire being communicated to the mill after seven o’clock, and that if it had been communicated before that hour it must have been discovered before eight, and that both these questions, "were properly submitted to the jury.
    Appeal from a judgment in favor of" the plaintiff, entered on the verdict of a jury at the Steuben circuit; and from an order of special term denying the defendant’s motion for a new trial on a. case and exceptions.

      G. L.. Smith, for app’lt; G. T. Spencer, for resp’t
   Dwight, P. J.

The action was for the alleged negligent burning of the plaintiff’s saw mill with its contents, located on the west side, and within six rods of the track of the defendant’s road, in the town of Hornby. On the 21st of October, 1886, the defendant’s track foreman and hands made eight or ten piles of old, worn out ties, of hemlock and oak, along the east side of the track in front of the mill and extending both north and south of it, a distance, in all, of about 350 feet, and set them on fire. The firing was concluded at from three 1x3 four o’clock in the afternoon and the track hands went away before six. At about seven o’clock that evening a fire was discovered in the mill on the other side of the railroad by a person who gave the alarm, and it was extin-" guished by a son of the plaintiff, living near by, and a man in his employ. At about eight o’clock- the next morning the mill was again discovered to be on fire, but too late to save it, and it was consumed with its contents. The mill was run by water. It was not operated nor occupied in any way on either of the days mentioned and no fire was shown to be nearer to it than the piles of burning ties. So far the facts are undisputed, but there is a marked conflict of evidence in*respect to most of the other facts bearing upon the principal questions in the case, which are whether the mill was fired by sparks from the burning ties, and, if so, whether there was negligence on the part of the defendant in respect either.to lighting, guarding or controlling those fires. We have carefully examined the evidence which bears upon those questions and, although, as it appears in the record, it does not make a case, to our minds, by any means free from doubt, yet we think it does make a case which the court was in duty bound to submit to the jury, and upon which the verdict could not well have been disturbed on the motion for a new trial.

Whether or not the act of the defendant was within the statute, Laws of 1885, chap. 283, § 25, quoted by counsel for the defendant to show that the defendant was required by law to burn or remove these ties from its right of way, it was certainly within the unquestioned rule of the common law, which required that if they were to be burned, it must be done at a. time, in a place, and with precautions which should reasonably protect adjoining lands and adjacent buildings from the danger of communication of the fire. It seems not to have been a very eligible place for the burning of so large a quantity of dry material, viz., in front of a saw-mill not much more than six rods away, which, like other mills of its kind, was mostly open in front, while its floor was spread with inflammable materials, sawdust, chips and shavings; and the line of fire covered its front, and extended beyond it in both directions. If such a place must be chosen for the burning of these ties, it is manifest that the operation must be conducted with a degree of care and circumspection proportioned to the danger apparently involved. On the other hand the fact appeared that the fires were built in a cutting, and that the bank on the side toward the mill was higher than the tops of the piles. How far this fact relieved the situation of danger it was for the jury to say; and so in respect to all the facts which entered into the question of the degree of care or of negligence exercised by the defendant’s servants in the. matter of burning these ties.

Apparently the question most in dispute was whether in fact theo fire which consumed the mill was communicated from the burning ties. This was a fact which, independent of the negligence of the defendant, the plaintiff was bound to establish by a fair preponderance of the evidence. It involved, among other things, the question of the force and direction of the wind; the character and progress of the fires, and their condition at times relative to the discovery of the fires in the mill. The conflict, of evidence upon these questions was very, marked, but in respect to this, as to the questions already considered, we think the evidence made a case which required to be submitted to the jury. It was as bearing upon this question, and tending to show that the fire was of incendiary origin, that evidence was offered by the defendant the rejection of which gave rise to several of the exceptions taken by the defendant on the trial. Evidence was received to show that in the summer before the fire a tramp-had appeared in the neighborhood who made threats of vengeance against “ the Townleys ” for refusing him a breakfast; and that he was seen later, and finally as late as the Sunday before the fire, in the same vicinity.

Counsel for the defendant then offered to prove that the next summer after the fire the same tramp reappeared in the neighborhood and had another interview with the witness, Mrs. Karick, who testified to the threats, and who discovered and gave the alarm of the first fire in the mill; that in this interview the tramp declared that he set the first fire in the mill, with details of the manner in which it was done, corresponding with some of the circumstances which other evidence tended to show accompanied that act; and that after he set the fire he observed her actions before and at the time she discovered the fire and gave the alarm, which actions he described. The offer also embraced a proposition to show that the witness, Mrs. Karick, saw and identified the same tramp in jail in an adjoining county in the state of Pennsylvania, where he was held under a charge of arson, and to produce the record of his conviction in that state of the crime mentioned. The exceptions to the exclusion of this evidence seem not to have been well taken. The story supposed to be told by the tramp, though presenting a curious correspondence with some details of fact which the jury might find to be established in the case, was yet only the declaration of a third person, which was inadmissible as against either party to the action, and the offer to show that he had been convicted of the crime of arson elsewhere was wholly irrelevant. Undoubtedly evidence that the tramp was at the mill on the evening before it was destroyed, and that he set the fire which was extinguished that evening, would have been relevant, as was the evidence already received that he was in the neighborhood shortly before and made threats against the owner of the mill; but the evidence offered to show those facts was inadmissible.

The exception to the refusal of the court to charge “ that the jury cannot find in favor of the plaintiff unless they find the defendant’s men were guilty of negligence in leaving the tie piles or fire without watching at seven o’clock in the morning the mill was burned,” was not well taken. The request necessarily assumes that there was no possibility of fire being communicated to the mill after seven o’clock, and that if it had been communicated before that hour, it must have been discovered before, eight o’clock. The court properly submitted both of those questions to the jury.

The foregoing are the only exceptions argued in the elaborate brief of counsel for the defendant, and are the only ones which seem to require attention.

The judgment and order appealed from should be affirmed.

Macomber and Corlett, JJ., concur.


text:
    George G. Manning et al., Resp’ts, v. Louis P. Beck et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 23, 1891.)

    1. Assignment fob cbeditobs—Fbaud.
    An insolvent debtor gave a bill of sale of four-fifths of his estate to his son, who satisfied a claim which he held against his father, assumed payment of back rent of the store and of notes which he had endorsed, and gave notes for the balance of the value of the goods, which notes were given to accommodation endorsers for the father, who agreed to take up the former notes. The following day the debtor made an assignment for creditors. It also appeared that the scheme had been maturing for some time; that both father and sen were parties to it, and that the assignee profited by it as a preferred creditor. Held, that the facts showed an intent to defraud creditors, and that the bill of sale and assignment should be set aside.
    2. Same—Pbefebences.
    Where excessive preferences have been created innocently they may be sustained 1o the extent authorized by the statute, but where they are the result of a fraudulent intention to evade the law no such rule can be invoked.
    Appeal by defendants from judgment setting aside a bill of sale and general assignment made by defendant, Louis P. Beck, to the otlier defendants as fraudulent and void. The following is the opinion of the special term:
    Adams, J.—The above actions were tried together, and, as they are dependent upon the same facts as well as the same principles of law, they may be disposed of in like manner.

      The evidence clearly establishes, and it is virtually conceded, that on the 4th day of January, 1889, the defendant, Louis P. Beck, who was then engaged in business as a boot and shoe dealer in the city of Rochester, executed and delivered to the defendant, Weinberg, a general assignment for the benefit of his creditors, by which he ‘transferred and assigned all of the estate he then possessed, amounting in value to the sum of about $3,000. This assignment contained no preference; but, on the day prior to its execution, the assignor transferred to his son, the defendant, W. H. Beck, by a bill of sale, the greater portion of his estate, consisting of his stock of goods, fixtures,.etc., which amounted in value to the sum of about $11,977.32. The consideration for the transfer of this property was made up as follows, viz.: By the surrender of notes amounting in value to the sum of $4,754.85, which William H. held against his father; the assumption of the back rent upon the store formerly occupied by his .father, which was due the defendant, Weinberg, and which amounted to $743.64; the assumption of the payment of these notes endorsed by the son for the accommodation of his father, held by various-parties to whom his father was indebted, and amounting in the aggregate to $855.10; the payment of the sum of $118.23 in cash, and the execution and delivery to his father of twelve promissory notes, amounting in all to $5,505.50. These last mentioned notes were made by William H. Beck to-the order of his father, Louis P. Beck, and with two exceptions were made for the precise amounts, and so as to mature at the same time as certain outstanding notes which had been endorsed by various parties for the accommodation of Louis P. Beck. They were subsequently and prior to the execution of the assignment delivered to the several endorsers from whom receipts were taken by which they respectively agreed to take up .and surrender, at maturity, the notes of corresponding amounts upon which they were liable. The design obviously being that the endorsers should pay at maturity the notes upon which they were severally liable, and look to William BL Beck for reimbursement out of the property transferred to him by his father. The two notes not included in this arrangement were for $600 and $1,000 respectively, and were transferred to Elizabeth Rehm and Caroline Beck, the wife of Louis P. Beck, and they at the same time surrendering other notes which they held against him for like amounts.
    Thus it will be seen that the entire estate of the defendant, Louis P. Beck, with the exception of about $3,000, or one-fifth part thereof, was disposed of by this bill of sale for the express purpose of paying certain of his creditors to the exclusion of others. In other words, by a cunningly devised scheme he sought to accomplish by indirection that which he was prohibited from doing by the statute.
    There are many facts and circumstances developed by the evidence in the case other than those already adverted to, which tend very strongly to showthat this scheme was one that had been maturing for some time; -that both father and son were parties to it, and that if the defendant, Weinberg, was not an active participant therein, he certainly profited by it as a preferred creditor, and for that reason, if for no other, could hardly be expected to make any very strenuous efforts to thwart it.
    That' a transfer of property made under such circumstances, and with such an intent, was in fraud of the general assignment and consequently void, is a proposition concerning which there is scarcely room for two opinions, and for which there is abundant authority. Spellman et al. v. Friedman et al., FI M. Y. State Rep., 392, and cases there cited. It is true that the plaintiffs might have called upon the assignee to bring an action to set aside such a transfer, and in case of his refusal or failure to do so they might have instituted one themselves, for that purpose, but they were not limited to this remedy. The execution of the bill of sale was but one act in the scheme by which the debtor hoped to be able to surrender his entire estate into the hands of certain of his creditors, for their benefit, to the exclusion of the remaining creditors ; the execution of the general assignment was another, which, standing by itself, would probably excite no criticism, but which, considered in the light of the former, and other contemporaneous acts, is seen to be an important factor in the attempted fraud, as well as in the result sought to be accomplished. It follows therefore that if these acts were contemporaneous, and are but parts of a great scheme by means of which the plaintiffs are to be defrauded of their rights, this action may be maintained, and the bill of sale as well as the assignment may be declared fraudulent and void as against them. This was the view taken by the general term on the appeal from the order granting the injunction herein, see opinion Macomber, J., 26 M. Y. State Rep., 483, and the additional evidence brought out upon the trial seems to strengthen rather than weaken the ground upon which that decision rests.
    It is insisted by the defendants’ counsel that even if the bill of sale is to be regarded as part of the assignment by means of which creditors are preferred in excess of the amount authorized by the act of 1887, it is nevertheless to be deemed valid to the extent contemplated by the statute. This would undoubtedly be the case if the excessive preferences had been created innocently, but when they are the result of a fraudulent intention to evade the law and to accomplish that which the law prohibited, no such rule can be invoked. The entire transaction is tainted by the fraud in which it was conceived, and is consequently absolutely void.
    The plaintiffs are entitled to the relief sought, with costs. "

      H. H. Woodward, for app’Its, Louis P. Beck and H. Israel Weinberg; H. B. Halloch, for app’lt, W. H. Beck; Edward F. Wellington, for resp’ts.
   Judgment appealed from affirmed, with costs, on the opinion of the special term and on that of this court reported in 54 Hun, 102; 26 N. Y. State Rep., 483.

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