text:
    The Metropolitan Trust Company of the City of New York, App’lt, v. The New York, Lake Erie and Western R. R. Co., Impleaded, with others, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Railroads—Contract—By one railway to secure payment of INTEREST ON BONDS OF ANOTHER IS LAWFUL.
    This action was brought for the foreclosure of a mortgage made by the defendant, the T. Y. and 0. R. R. 0., to secure the payment of its bonds. The T. Y. and 0. R. R. Co. entered into a contract with the N. Y., L. E. and W. R, R. Co., whereby afier the recital of certain matters it was agreed, among other things, that the former named party, for the protection of the latter in rendering it assistance under the contract, would cause to be deposited in the custody of the latter, in such manner as should be satisfactory to it, a majority of the capital stock of the former, it being agreed that, so long as the management of the depositing company remained satisfactory, its representative should have the right to vote upon that stock. The N. Y., L. E. and W. R. R. Co., in consideration of the performance of this condition, agreed to make good any deficiencies in the net earnings of the T. Y. and C. R. R. Co. to meet the interest upon its then bonded indebtedness as the same might become due and payable, and for any and all advances so made by it, with interest thereon, as well as for any and all advances so made to the T. Y. and C. R. R. Co. by the N. Y., L. E. and W. R. R. Co. for other purposes, with interest thereon, it was agreed that the latter should have and was thereby granted a first lien upon the railroad franchises and property of the former company next after its bonded indebtedness aforesaid, and a first charge upon its surplus earnings next after the payment of the accruing interest upon its bonded indebtedness. Feld, that the agreement thus made was valid. Following Tonar wanda Valley and Cuba It. B. Co. v. The N. Y., L. E. and W. B. B. Co., 4 N. Y. State Rep., 744.

      S. Same—Mortgage ob railway property—Dobs rot coyer agbeembrt MADE TO SECURE PAYMERT OB INTEREST OR MORTGAGOR’S BORDS.
    The mortgage, for the foreclosure of which this action was brought, charged all property of the mortgagor that might relate to the operation of the railroad and be applied to its uses, and in case of default all of its income, earnings and profits and after-acquired property of like character. Held, that the promise furnished by an agreement such as that above quoted was not within that which the mortgage by its terms or purposes embraced or was intended to; that a mere valid promise or undertaking taken by the mortgagor to give it support financially by enabling it to escape default for the non-payment of interest was not such property as the mortgagee took by force of the indenture, although obtained by it for its financial relief and support, and though its performance would have the effect to enable it to operate its road.
    5. Same—Corstructior ob cortract.

      Held, that the advances to be made by the IT. Y., L. E. and W. R. R. Co , were not in discharge of any debt by it or any debt on account of which it had any property or fund in trust; that the provision as to the corporate control, of the T. Y. and O. R. R. Co. becoming vested in the former, was in the nature of security for the performance of the agreement.
    4. Same—Rights under.

      Held, that there existed no right of action in favor of the plaintiff as against the IT. Y.? L. E. and W. R. R. Co. resting in subrogation, or to charge it with the rel ition of principal debtor of the interest moneys of the bonds secured by the mortgage, and that the company did not stand in the situation of guarantor of the collection or payment of any of the moneys so secured.
    6. Same—When right oe aotior does rot irure ir bavor of third PARTY.

      Held, that under the agreement no right of action accrued which inured to the benefit of the bondholders of the T. Y, and Cl R. R. Co., or the plaintiff as representing them; that for the maintenance of an action on an agreement to pay by a third party it was not sufficient that the performance thereof would necessarily result in benefit to that party, but that such beneficial purpose must be within the terms of the promise.
    Appeal by the plaintiff from so much of the judgment entered upon report of the referee as dismisses the complaint as to the N. Y., L. E. and W. R. R. Oo.
    This action is for the foreclosure of a mortgage made by the defendant, the Tonawanda Valley and Cuba Railroad Company, September 1; 1881, to secure the payment of $500,000 of its bonds, which were soon after issued.
    The mortgage was made to James' D. Fish as trustee (in whose place the plaintiff was afterwards substituted as like trustee), by which the company granted and sold its railroad, right of way, lands, rails, tracks, bridges, buildings, structures, fixtures and appurtenances, whether then owned or possessed or thereafter to be acquired, all locomotives, engines, cars, shop, tools, machinery, and all franchises, rights, privileges and all other corporate property, real and personal, of the mortgagor, whether theretofore or thereafter acquired by it, and whenever default should be made in the payment of the principal or interest, all the tolls, incomes, earnings and profits of the company, and all the estate, right, title and interest, property, possession, claim and demand, in law and equity, -of such company with the appurtenances. Default was made in the payment of the interest, which became due on the bonds September 1, 1884.
    The .complaint alleges that on March 12, 1883, the T. V. and C. R. R. Co. (called the Tonawanda company) and the Ñ. Y., L. E. and W. R. R. Co. (called the Erie company) entered into an agreement “wherein, after reciting that the Tonawanda company had been ■ constructed by parties in sympathy with the Erie company, with a view of contributing to the business of said company, and of protecting it against hostile lines in process of construction, and after further reciting that the Tonawanda company may require assistance from the Erie company in the completion of its railroad, and in its successful establishment, operation and maintenance, it was, in consideration of the premises, agreed as follows:
    The Tonawanda company agrees,

      First. That it will at all times deliver to the said Erie company, for transportation, all the freight and passengers that it can lawfully control or influence, destined to points that can be reached by way of the railroad of the Erie company or its connections, and will use its influence to promote the interests and business of the Erie company, so far as it can with proper regard to its own interests.

      Second. That for the protection of the Erie company in rendering assistance to the Tonawanda company, under this contract, it will cause to be deposited with the Erie company a majority of the capital stock of the Tonawanda company, in such manner as shall be required, upon which, so long as the management of the Tonawanda company shall be satisfactory to it, the Erie company will give, or cause to be given to such representative of the Tonawanda company as shall be designated by it, the right to vote upon the stock so deposited.
    The Erie company agrees,

      First. That, so far as it can with proper regard for its interests, it will use its influence and exercise its control to promote the interests and the business of the Tonawanda Company.

      Second. That upon condition that the corporate control of the Tonawanda Company shall become and remain vested in the Erie Company, as above provided, the Erie Company will make good any deficiencies in the net earnings of the Tonawanda Company to meet the interest upon its present bonded indebtness, from time to time as the same may become due and payable, and for any and all advanees so made by it, with interest thereon, as well as for any and all advances so máde to said Tonawanda Company by the Erie Company for other purposes, with interest-thereon, the Erie Company shall have and is hereby granted a first lien upon the railroad franchises and property of - Tonawanda Company next after its bonded indebtedness aforesaid, and a first charge upon its surplus earnings, next after the payment of the accruing interest upon its said bonded indebtedness. This contract shall continue-during the corporate existence of the companies parties, hereto.”
    The comp_a_m; further alleged performance of suen agreement on the part of the Tonawanda Company, that the Erie Company failed to make good the deficiencies in the net earnings of the Tonawada Company to meet the interest on its bonded’ indebtedness, that in making such agreement “it was understood and intended between” the companies that the provision in the agreement “ that the Erie-Company will make good any deficiencies in the net earnings of the Tonawanda Company to meet the interest on its bonded indebtedness—should inure to the benefit and protection of the bondholders of the Tonawanda Company.” And that the “breaches thereof by said Erie Company passed and enured to the plaintiff as trustee.” And as. against the Erie Company the plaintiff demanded judgment that it be charged with deficiency. The referee-directed judgment for the foreclosure of the mortgage and sale of the mortgaged property, and determined that the complaint did not state facts sufficient to constitute a cause of action against the New York, Lake Erie and Western Railroad Company, and judgment was entered accordingly. The plaintiff appeals.

      Oliver P. Buel, for app’lt; E. C. Sprague, for resp’t.
   Bradley, J.

The questions presented are, first, whether the agreement of March 12, 1883, between the N. Y. L. E, and W. R. R. Co. and the T. V. and C. R. R. Co. was valid, and, if it was, second, whether the plaintiff in this action is entitled to relief against the former company for the benefit of the holders of the bonds of the latter company.

The first question, if treated as res nova, would require some consideration, but that was before the court in the-first department, in Tonawanda R. R. Co. v. N. Y. L, E. and, W. R. R. Co. (4 N. Y. State Rep., 744), and there decided in the affirmative; and, further, that if the agreement-was ultra vires,, the defendant was not in a condition to avail itself of that defense. For the purposes of this re-.view, we treat that decision as disposing of this question, and therefore do not consider it. And in that view the respondent may be treated as a lienor and a proper party defendant for that reason. But it is assumed here, and will be so treated for the purposes of this review, that the determination by the referee in favor of the defendant was only upon the issue presenting the question of its liability to the plaintiff. In respect to the inquiry whether a right of action upon the agreement enured to the plaintiff as the representative of the bondholders and for their benefit, it is contended by the counsel for the plaintiff:

First. That 'the undertaking of the N. Y. L. E. and W. R. R. Co. contained in it is embraced in the property covered by the mortgage, and as such the right to enforce it is vested in the plaintiff.

Second. That such company took possession of the Tonawanda road, and assumed the payment of the interest upon the bonds, and took the status of a grantee in fee assuming the payment of existing liens, and is therefore liable to the plaintiff as such trustee.

Third. That the agreement to pay the interest was made to the Tonawanda company for the benefit of its bondholders, and a right of action enured to them, or for their benefit, which is available to the plaintiff in this action as; their trustee.

While choses in action are property, the promise furnished by such agreement was not within that which the mortgage, by its terms or purpose, did or was intended to embrace.

The character of the mortgageu property is described in general terms, and included in it is all that which may relate to the operation of the railroad and applied to its uses, and on default, all of its income, earnings and profits are charged. The after acquired property referred to includes every acquisition by the mortgagor of property in character like that specified, or within the terms expressed in the mortgage, which are to be construed in view of the purposes contemplated to which its use is to be applied.

A mere valid promise or undertaking taken by the company to give it support financially by enabling it to escape default for the non-payment of interest evidently is not the property which the mortgagee took by force of this indenture, although it was obtained by the mortgagor for its financial relief and support, and its performance would have had the effect to enable it to operate its road. P. W. and B. R. R. Co. v. Woelpper 64 Penn. St., 366, goes no further than that.

If, however, the N. Y. L. E. and W. R. R. Co. may be treated as having in effect the relation like that of a grantee in fee under an agreement by which it assumed the payment of the interest of the bonds secured by the mortgage, or so much of it as the net income of the road was insufficient to meet, it may be seen that such company was chargeable to that extent for any deficiencies which may arise on the sale in foreclosure, because as between the Erie and Tonawanda companies the primary liability would be that of the former, and the latter would have the relation of surety. But that does not seem to be the situation of the parties to the agreement as presented by its terms.

The property of the Tonawanda company was not conveyed or transferred to the Erie company by lease or otherwise, nor. was the operation of the road taken from the Tonawanda company by the agreement. It was contemplated that the latter company would operate the road, and that both roads would, so far as their respective interests permitted, be operated for the benefit of each other, but to require the performance of the agreement on the part of the Tonawanda company the Erie company took the deposit of a majority of its stock with the right to control direction of the company represented by it in the event only; that the management was not satisfactory, which meant that this could be done in the event only that the Tonawanda company failed to perform the contract on its part.

This was a mere remedy provided for protection against its breach. This agreement was, by its terms, .to be effectual during the corporate existence of the companies, and was to operate on one no less than on the other of them.

The promise of the Erie company was to advance money in the event and for the purpose mentioned, and it was contemplated that it might make other advances to enable the Tonawanda company to provide for and operate its road. For all which advances the Erie company was to have a lien upon the property of the other company subsequent only to that of its bonded indebtedness. The agreement, therefore, does not treat these advances to make good the deficiency in the net earnings to meet the interest on such indebtedness as payment by the Erie company of its own debt, but as an advancement of money pursuant to a promise for which as security the property of the other company is charged with such lien. We have not overlooked the provision of the agreement expressing the condition which makes the performance of the promise of the Erie company to make good the deficiencies in the net earnings to meet the interest on the bonded indebtedness, dependent upon the fact that the corporate control of the Tonawanda company should become and remain vested in the Erie company as therein provided, which by construction and in legal effect was that the Erie company should retain the means given by the deposit with it of .a majority of such stock to require the performance by the Tonawanda company of the contract on its part. This was in the nature of security furnished by the one company to the other for such performance. The agreement was executory on both sides. The Erie company having such security for its performance agrees to make advances in certain events, and such advances go in protection of the property of the Tonawanda company against the foreclosure of the lien of its mortgage, and not to discharge any debt of the Erie company or any debt on account of which it had any property or fund in trust for such purpose. In this respect the case comes within the doctrine of Garnsey v. Rogers, 47 N. Y., 233; Pardee v. Treat, 82 id., 385 ; Root v. Wright, 84 id., 72.

The case cited of Woodruff v. Erie R’y Co. (93 N. Y., 609) does not support the contention of the plaintiff’s counsel in view of the facts here. There the Erie Bailway Company had taken conveyance or lease from Woodruff (the original lessee) of the entire estate of the Erie and Genesee Valley Bailroad Company and assumed the payment of the interest as it became due and the principal when it matured, of the bonded indebtedness of the original lessor company, which had made a similar grant or lease to Woodruff. The Erie Railway Company in that case had practically the relation of assignee of the E. and G. V. R. R. Co. to Woodruff, with its personal covenant added for its performance. Stewart v. Long Island R. R. Co., 102 N. Y , 601; 2 N. Y. S. R., 557.

There is, therefore, in the case at bar no right of action in the plaintiff as against the respondent company, resting in subrogation or to charge it with the relation of principal debtor to any extent, of the interest moneys of the bonds secured by the mortgage. Nor is the company in the situation of guarantor of the collection or payment of any of the moneys so secured. The remaining question is whether the holders of the bonds of the Tonawanda company are beneficiaries of the promise of the respondent company, in such sense as to enable the plaintiff to charge it by action in their behalf. We assume that the plaintiff so representthose beneficially interested, that it may in this action to foreclose the mortgage assert any right of action that has accrued to them in that respect against the N. Y., L. E. and W. R. R. Co. To support this proposition it must appear that the promise of such company was made to the Tonawanda company for the benefit of its bondholders. It is not sufficient that the performance of an undertaking to pay may necessarily result in benefit to the third party, but to support an action by him upon it such beneficial purpose must be within the terms of the promise. Merrill v. Green, 55 N. Y., 270; Simson v. Brown, 68 id., 355. And when the promise is made to pay the debt of the promissor to or for the benefit of a third person who is in privity with the promisee, such person may.maintain an action upon the promise. Such was the case of Lawrence v. Fox, 20 N. Y., 268, and Arnold v. Nichols, 64 id., 117.

In the case at bar, the promise was to make good any deficiencies in the net earnings of the promisee company to meet the interest on its bonded indebtedness. The bondholders were in privity with the promisee, and assuming that the promise may be treated as one, to pay the amount of such deficiencies to the parties entitled to the interest, the further question arises whether the promise comes within the principle requisite to support an action by the bondholders or their trustee. It has already been suggested that the Erie Company owed no debt to the Tonawanda company, and held no fund in trust for the payment of the money it had agreed to advance, but that the rights of the contracting parties rested in executory agreement merely, and the one company held the deposited stock of the other, and the rights it afforded under the agreement, as collateral security for its performance, with the additional security which a Men upon the property of the latter would furnish for advances made. It is difficult to see how this promise can be brought within the doctrine of Lawrence v Fox, as defined and Mmited by subsequent cases.

In that case, the promisee lent to the promisor a sum of money, the amount of which the latter promised to pay to the plaintiff. The action there had for its support the promise of the defendant to pay his own debt to the plaintiff. And such debt was created by the advance to him of the money, pursuant to the same agreement of which the promise formed a part. Here there there was no debt of the N. Y. L. E. & W. R. R. Co., created as such by the transfer of property to it, or otherwise. That company by its contract with the Tonawanda Company, executory in its character on both sides, undertook to perform certain stipulations, amongst which was that before mentioned. And this within the principle of the cases as declared by the courts of this state, must be deemed to have been for the benefit and protection of the Tonawanda Company. Such was the decision of the court in Garnsey v. Rogers, where by a provision in a mortgage the mortgagee assumed and agreed to pay a prior encumbrance on the mortgaged premises. It was held that the prior lienor, although he had the personal liability of the mortgagor, could not mainr tain an action upon the covenant of the mortgagee. The -court do not extend the doctrine of Lawrence v. Fox, but Emit to the relation like in character and legal effect between the parties, to that which the facts in that case produced. That- is substantially the proposition announced in the Garnsey case, and repeated in Pardee v. Treat, and Root v. Wright.

After a careful consideration of the argument of the learned counsel for the plaintiff, and all the cases to which our attention has been called, we think within the rules of the cases following Lawrence v. Fox, the stipulation referred to of the N. Y. L. E. & W. R. R. Co., in the agreement of March 12, 1883, must be deemed to have been for the benefit and protection of the Tonawanda Company; and no right of action was conferred by it upon the plaintiff. And that no allegation of the complaint gives support to this action upon such agreement as against the respondent company.

The judgment should he affirmed.

Smith, P. J., and Haight, J., concur.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Alvin Martin, Resp’t, v. James M. Hodges et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Reference—Report of referee—What not within rule SO of general rules of practice.
    It is provided by rule 30 of the general rules of practice, that “ in ref erences other than for the trial of the issues in an action, or for computing the amount due in foreclosure cases, * * * the report shall become absolute, and in all things confirmed unless exceptions thereto are filed and served within eight days after service of notice of the filing of' the same.” Feld, that this rule has no application to references made for the purpose of aiding the conscience of the court in questions pending before it.
    ‘2. Same—Report on reference to ascertain date of service of a PLEADING.

      Feld, that a reference to ascertain the date of service of a complaint in order to find whether the defendant had made a default in pleading which was ordered upon a motion to open a default taken by the plaintiff, was of this nature.
    3. Same—Motion—What constitutes a single motion.

      Feld, that a motion to open the default having been made, and the hearing thereof postponed until the coming in of the report of the referee, the hearing had subsequent to that event with the former, constituted but one motion, and the costs of but one motion could be imposed upon the party moving that the default be opened.
    4. Same—Practice in ordering such reference disapproved.

      F Id, that the practice of ordering such a reference was unusual, and should not be followed except in cases where the court was unable to determine the facts from the papers read before it.
    Appeal from an order of the Erie special term, confirming the report of a referee, and granting leave to answer upon the payment of thirty-two dollars costs.

      N. H. Hill, for app’lts; Wiltsie & Lewis, for resp’t.
   Haight, J.

The plaintiff entered judgment on default.. The defendant moved to have the default opened and for leave to answer. The moving affidavits were to the effect-that the complaint' was served on the tenth day of July, 1886, and that the defendants had twenty days thereafter in which to serve their answer, and that on such twentieth day the answer was duly served upon the plaintiff’s attorneys. The opposing affidavits were to the effect that the complaint was served on the ninth day of July, and that consequently the defendants were in default in not serving-their answer within twenty days thereafter.

Upon the hearing of the motion the special term made an order to refer the matter to E. R. Bootey, Esq., to take proof as to the time when the complaint was served and to report to the court. Thereupon the parties appeared before the referee so appointed, who took the evidence submitted by the respective parties and reported the same to the court, together with his opinion to the effect that the complaint was served on the ninth day of July, instead of the tenth of July, as claimed by the appellants. The court thereupon confirmed the referee’s report and made an order allowing the defendants to answer upon payment of $20.00 motion costs and $12.00 disbursements. From that order this appeal was taken. It is now contended that the court had no power to confirm the referee’s report for the reason that it had not been filed in the office of the clerk of the county eight days, in accordance with the requirements of rule 30.

That rule provides that “ In references, other than for the trial of the issues, in an action, or for computing the amount due in foreclosure cases, the testimony of the witnesses shall be signed by them, and the report of the referee shall be-filed with the testimony, and a note of the day of the filing shall be entered by the clerk in the proper book under the-title of the cause, or proceeding and the said report shall become absolute and stand, as in all things, confirmed unless-exceptions thereto are filed and served within eight days after service of notice of the filing of the same. If exceptions are filed and served within - such time, the same may be brought to a hearing at any special term thereafter, on the notice of any party interested therein.”

The matter referred in the case under consideration was pending before the special term and the reference ordered was merely to aid the court in determining the questions involved in the motion. The evidence was returned with the report of the referee. The report of the referee was in no wise binding upon the court, for it had the power to disregard it and draw its own conclusions from the evidence. (Marshall v. Meech, 51 N. Y., 140.)

The report, if filed with the clerk under the provisions of' the rule, would stand confirmed if no exceptions were filed after the expiration of eight days. But this would not determine the motion, for it would still be pending before the-special term, and the court as we have seen would not be bound by it. For this reason we conclude that the rule has no application to references made for the purpose of aiding the conscience of the court in determining questions pending before it.

Where a referee is to report the evidence together with his opinion thereon, it has reference to the case where an order of reference is made under some provision of the statute in which the questions referred are to be determined by the referee.

It is contended on the part of the appellants that unless exceptions were filed to the report, that they have no opportunity to review the same. That is not the case; an opportunity is given to review the same when the evidence and report are brought before the special term, and again by appeal from an order made by the special term thereon.

We have examined the evidence taken before the referee and are of the opinion that it sustains the report. It is true that the evidence is conflicting, but this court cannot reverse upon that ground.

The charging of the defendants $32.00 costs as a condition for answering for a mistake of a single day, doubtless honestly made, is somewhat of a hardship. It is not the usual practice to order a reference in such a case, and we think the practice should not be followed, except in extraordinary cases where the court is unable to determine the facts from the papers read upon the motion. In this case there was but one motion, and that was to vacate the judgment, open the default and permit the defendants to answer. On the first hearing this motion was not disposed of but was postponed until the coming in of the referee’s report. The hearing upon the return of the referee’s report was but a continuation of the same motion', and we are of the opinion that the court did not have power to allow two motion costs.

The order of the special term should be modified by deducting therefrom ten dollars costs, and the appellants should have ten days after the entry of this order in which to comply with the conditions of that order, and the order as so modified should be affirmed.

So ordered.

Smith, P. J., and Bradley, J., concur.


author: Smith, P. J.

text:
    Milo D. Smith, Resp’t, v. James Halligan, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June Term, 1887.)

    1. Contbact—What is a contbact and not a beceipt.
    In an action for breach of an alleged agreement, which was in writing, and as follows: *• November SO, 1882. M. D. Smith bought of James Halligan, Junior, two cars of potatoes at 54 cents for 62 pounds, to be loaded on track, at North Iowa or Iowa Center; paid cash $20.” (Signed.) “ James Halligan, Jr.” Held, that the writing was more than a receipt acknowledging the payment of money, that it was a receipt containing an agreement.
    2. Same—Evidence—When parol not admissible.
    It was error to admit evidence of conversations varying said agreement.
    3. Same—Construction of.
    There being no agreement in the writing as to who should furnish the cars, it was Halligan’s duty to furnish them as he could not perform his duty without them. That as no time was specified, the law implies that the delivery was to be within a reasonable time.
    Appeal from a special term order granting plaintiff’s motion for a new trial on a case containing exceptions.

      M. E. & E. M. Bartlett, for app’lt; J. Sam. Johnson, for resp’t.
   Smith, P. J.

The complaint alleged a breach by the defendant of his agreement, made about the 20th of November, 1882, whereby he sold to the plaintiff two car loads of potatoes of 500 bushels per car, at the price of fifty-four cents per bushel of sixty-two pounds, the same to be delivered to the plaintiff in cars at North Iowa or Iowa Center, within a reasonable time thereafter. At the trial the plaintiff put in evidence a writing signed by the defendant, of which the following is a copy: “November 20, 1882. M. D. Smith bought of James Halligan, Junior, two cars of potatoes, at 54 cents per 62 pounds, to be loaded on track at at North Iowa or Iowa Center; paid cash $20.’ (Signed.) “James Halligan, Jr.”

The defendant was permitted to testify against the objection and exception of the plaintiff, that in the conversation which preceded the signing of the writing, the plaintiff said that he would get the cars; also that no time was specified in the conversation when the potatoes were to be delivered. He also testified that he inquired several times of the station agents if plaintiff had cars there, and being told that he had not, he did not deliver the potatoes.

The trial judge set aside the verdict and granted the new trial at special term, on the ground that the admission of the testimony respecting the conversation was erroneous, and we think he was right in so doing.

The writing was more than a receipt acknowledging the payment of money; it was a receipt containing an agreement between the parties. By its terms the potatoes were to be loaded in cars on the track, and the obligation to load them necessarily rested upon the party signing the agreement. And as was said by the judge at special term, he not being able to perform his duty without the cars, it was his duty to furnish them, the agreement not specifying upon which of the parties the duty rested. And as no time was specified in the agreement within which the potatoes were to be delivered, the law implies that it was to be done in a reasonable time. The parol testimony in question tended to vary or contradict the written agreement in these particulars, and it was therefore improperly received.

The authorities cited by the judge at special term, in our opinion, sustain these positions.

The order should be affirmed.

Haight and Bradley, JJ., concur.


text:
    Selden Carpenter, App’lt, v. Edwin Andrews et al., Impleaded, etc., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    Judgment—Assignment—When not begabded as dischabge of.
    Where a judgment has been recovered in an action, the ownership of which has several times been transferred by assignment, it will not be regarded as functus officio, the evident intention of the parties to such transfers being to keep the judgment alive.
    Appeal from a judgment entered upon a decision of the Livingston equity term.

      A. J. Abbott, for app’lt; Henry H. Seymour, for resp’ts.
   Haight, J.

This action was brought by a judgment creditor in aid of an execution to remove a cloud upon real estate upon which an execution had been levied. On or about the nineteenth day of May, 1873, The Rochester Savings Bank recovered a judgment in the supreme court again’st James R. Bond and Laura A. Bond, for the sum of $1,976.40, and thereafter and on the twenty-eighth day of May, 1873, an execution was issued upon the judgment to the sheriff of Livingston county, who subsequently and on the third day of January, 1876, returned the execution satisfied in part. On the sixteenth day of February, 1875, The Rochester Savings Bank assigned the judgment to one Lucius C. Bingham, who subsequently assigned the same to Charlotta A. Hamilton, who subsequently and on the second day of January, 1880, assigned the same to- the plaintiff in this action.

On the twenty-sixth day of March, 1883, another execution was issued upon the judgment to the sheriff of Livingston county, commanding him to levy and collect the sum of $468.65, that being the sum remaining unpaid thereon, and the sheriff has levied upon the lands described in the complaint as the lands of Laura A. and James R. Bond.

On or about April 6, 1865, the defendant, Laura A. Bond, was seized and possessed in fee of the lands described in the complaint. On that day was executed and delivered to Hiram D. Mills, as president of the Genesee River Bank, a mortgage upon the lands mentioned, to secure the payment of the sum of $2,500. Subsequently an action to foreclose the same was brought by the Genesee River Rational Bank, the successor of the Genesee River Bank, resulting in a decree of foreclosure and sale, which was entered on the twenty-seventh day of July, 1868. The amount adjudged to be due and owing by the decree was the sum of $1,374.21, besides costs, $94.40.

>On or at, lut September 1, 1868, the Genesee River National Bank assigned and transferred the judgment and decree to one George W. Phelps, who subsequently and on or about March 20, 1869, assigned and transferred the same to one Lans'mg Andrews. Andrews died and his administrators caused the premises to be sold under the decree to one George M. Osgoodby, to whom was issued a referee’s deed, and the defendant, Mary E. Seymour, takes title through this deed and is in possession.

The court found as facts that at the time of the assignment of the judgment and decree by the Genesee River National Bank to George W. Phelps, and by George W. Phelps-to Lansing Andrews, it was not the intention of the parties to the assignments to satisfy, pay off, or discharge the judgment and decree, and that the judgment and decree was not paid, satisfied, or extinguished by Laura A. Bond or James-R. Bond, either after or before the assignment, and the judgment never at any time, either before or after the assignment, became functus officio, as alleged in the complaint, but at the time of each of the assignments was a valid living judgment and decree, kept alive by the acts and intentions of the parties and by their valid and legal assignments, thereof.

The court further found as facts, that the defendant, Mary E. Seymour, the present owner of the premises, and all the defendants in this action through whom the title of the premises passed by virtue of the judgment and decree, were-owners, holders and purchasers in good faith, without any notice whatever of the claim that the judgment and decree-had been paid before the assignment thereof. The appellant excepts to these findings, and these exceptions present the only questions which we are called upon to review upon this appeal.

It is claimed by the appellant that the judgment and decree was fully paid during the time that Phelps held the assignment of it, and before the assignment to Andrews. His testimony is to the effect that when the judgment and. decree was assigned to him by the Genesee River National Bank he paid, as consideration for the assignment, the amount of the judgment, $1,468.68.

It further appears from his testimony, that at some time-thereafter, but precisely when does not appear, he was delivered a check by James R. Bond for the sum of $10.50, that he was also given a promissory note for the amount of $400, which he endorsed and had discounted at the bank, and that, he subsequently took it up.

It further appears that he subsequently assigned the judgment and decree to Lansing Andrews, at the request of the Bonds, and it is alleged in the plaintiff’s complaint that Laura A. Bond and James R. Bond, one or both, had borrowed of Andrews the sum of $1,400, or thereabouts, and. the assignment to Andrews was made to secure that loan.

It further appears that a mortgage on property in Batavia was transferred by the Bonds to Phelps, to secure his liability upon the note, and that he subsequently obtained the money thereon.

The evidence is not very specific as to the time when the various transactions took place between the Bonds and Phelps; but it is quite evident that it was the intention of the parties to keep the judgment and decree alive. Had Andrews understood that the judgment and decree had been paid, it is not probable that he would have loaned the Bonds $1,400 upon an assignment of the judgment and decree as collateral. Phelps held the decree but a few months, and it is quite evident that he took an assignment of it and advanced the money to the bank at the request and for the accommodation of the Bonds, so as to prevent the sale of their lands under the decree. The loan of $1,400 from Andrews was about the amount of the judgment, and we think the inference may properly be drawn from the facts, that this money went to pay Phelps, or to replace other money that was used to pay him, and that the transaction was the same in fact as if Phelps had taken an assignment of the decree and paid therefor the amount of the judgment, and that Andrews subsequently had taken the same from Phelps, paying him therefor the same amount.

If we are correct in this view of the evidence, it follows that the findings of the court were proper, and that the judgment should be affirmed.

' Smith, P. J., and Bradley, J., concur.


author: Bradley, J.

text:
    Frederick Howard, as Receiver, etc., of Thomas Stoddart App’lt, v. Thomas Stoddart et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Fraud—Sale of property—When presumed fraudulent — What WILL REMOVE PRESUMPTION.
    One of these defendants is a judgment debtor and in proceedings supplementary to the execution founded upi n the judgment, the plaintiff was appointed receiver of the property of such defendant, and has brought this action to reach and have applied upon the judgment the alleged interest of that defendant in. the property of a firm of which it is charged that he is, as to his creditors a member. Held, that when a sale is not accompanied by an immediate delivery and followed by an actual and continued change of possession of the things sold, the presumption arises that it is fraudulent and void as against the creditors of the vendor, and is conclusive evi dence of fraud unless it shall be made to appear that it was made in good faith and without such intent,’ but it such good faith and no intent to de fraud creditors appears the validity of the sale as to them does not require for its support any explanation or excuse for want of such delivery and continued change of possession.
    3. Same—Delivery of property—What will constitute.

      Held, that while mere words are not sufficient to produce a delivery and change of possession, the manner in which it may be done is dependent somewhat on the character and situation of the property sold.

      3. Same—Question of fact.

      Reid, that fraud is a question of fact to he determined from the circumstances of the case.
    4. Same—What circumstances will not require the conclusion that IT IS FRAUDULENT.

      Reid, that where a transaction was in form a sale of a partner’s share in the business of the firm his mere employment by the firm as a clerk, and his continuance as such merely in the business of which the vendee had the actual control and personal management did not require the conclusion that there had not been a delivery and an actual and continued, change of possession.
    5. Same—Referee’s report—Appeal from — Review of questions of fact.

      Reid, that upon an appeal entered upon the report of a referee the question was one of the weight of evidence rather than the entire want of it, if it appeared that the case contained all the evidence upon the point, it was. the office of the court to ascertain whether the determination of the referee was so against the weight of it as to require a new trial, but that this could not he done when the case failed to show that it contained all the evidence in that respect, and any evidence appeared tending in some degree to support the conclusions of fact found by the referee. That then the presumption arose that the evidence on the trial was sufficient for that purpose.
    6. Same—Evidence—Relevancy and competency of. '

      Reid, that upon the question presented as to whether the transfers made by the partner of his interest as above mentioned were fraudulent, and whether he still remained, a partner in the concern though nominally a clerk, evidence as to what compensation he received while occupying that, position was relevant and competent.
    Appeal from judgment entered on report of referee dismissing the complaint on the merits. The defendant, Thomas Stoddart, is a judgment debtor of Oliver H. P. Champlin and Amelia T. Champlin, and in proceedings supplementary to the execution founded upon the judgment, the plaintiff was appointed receiver of the property of such defendant, and has brought this action to reach and have applied upon the judgment the alleged interest of that defendant in the property of the firm of Stoddart Brothers, of which it is charged he is, as to his creditors, a member. It appears that in 1877, the defendants Thomas and Charles Stoddart, as partners, entered into the business of druggists in the partnership name of Stoddart Brothers, and continued as such firm to carry on the business at No. 84 East Seneca street, Buffalo, until October 29, 1880, when Thomas made a written bill of sale to Charles, expressing the sale and transfer of all his interest in the property, business, and good-will of the firm for $5,500; $800 thereof in cash, $900' in one year, $1,900 in two years, and $1,900 in three years from its date; that the cash was paid, and the notes of Charles given by him for the deferred payments, and then Charles employed Thomas to act as his clerk in the store at a stipulated salary or rate of compensation. And thereupon above'the words “Stoddart Brothers” on the sign over the store door were placed the words “Charles Stoddart, successor to.” That the business was carried on in this manner until October 10, 1881, when Charles and his brother James entered into articles of copartnership in the business, by which the latter was to have one-fourth the profits and share a like proportion of the losses, and Charles to take and share three-foúrths the profit and losses. Then the original sign of Stoddart Brothers was restored.
    On August 25, 1883, James sold and transferred to his father, John Stoddart, his interest in the firm and its assets. The final judgment against Thomas Stoddart in the Champlin action was recovered in September, 1882, and this action was commenced in August, 1883, but James Stoddart was not then served and did not answer until September, 1885.

      James A. Allen, for app’lt; Norris Morey, for resp’ts.
   Bradley, J.

The question at the trial upon the evidence was whether or not the sale of December 29, 1880, by Thomas Stoddart of his interest in the partnership property of the firm of Stoddart Brothers, to the defendant, Charles Stoddart, was made in good faith and without any intent to defraud his creditors. When a sale is not accompanied by an immediate delivery and followed by an actual and continued change of possession of the things sold, the presumption arises that it is fraudulent and void as against the creditors of the vendor and is conclusive evidence of fraud unless it shall be made to appear that it was made in good faith and without such intent, 2 R. S, 136, § 5. But if such good faith and no intent to defraud creditors, etc.. appear, the validity of the sale as to them does not require for its support any explanation or excuse for want of such delivery and continued change of possession. Mitchell v. West, 55 N. Y., 107.

It is contended on the part of the plaintiff that as against the creditors of Thomas Stoddart no title passed from him by his bill of sale to his co-partner Charles Stoddart, and many circumstances are referred to in support of his contention that no delivery and continued change of possession accompanied and followed the transaction of sale, and that the sale was not made in good faith, prominent amongst which is the fact that the vendor continued in the store apparently having the charge and management of the business, and after the new firm of Stoddart Brothers was formed, composed of Charles and James, Thomas continued in like manner, drew checks and made acceptances in the name of the firm, and in fact did not cease his apparent relation to the business at any time after the sale; that the three notes amounting to $4,700, made by Charles on account of the purchase money of the sale were at once sent by Thomas to his father John Stoddart, who resided in Canada, and that two of those notes, then with interest amounting to nearly $3,000 were given by the father to his son James, who also resided in Canada, with which and about sixty dollars added the latter paid Charles for the one-fourth interest in the property and business and entered into partnership on that basis with him about ten months after the sale by Thomas to Charles. At this time James was a student in the Toronto University and gave no personal attention to the business in question. And after-wards, in September, 1883, he went to Scotland where he has since remained a medical student in the University of Edinburgh. Before he left Canada and in August, 1883, he sold his interest in the business and property of the firm composed of himself and Charles, to his father for $3,600. During all this time Charles and Thomas remained at the store in Buffalo giving attention to the business, and the latter continued his relation of clerk through the changes before mentioned in the title of the property represented by the bills of sale and articles of co-partnership.

He was advised of the combination of the lock of the safe and authorized to draw checks on the bank and make acceptances in the name of his principals. These circumstances and some others to which it is unnecessary to refer, and in view of the fact that the Champlain action was pending at the time of such sale by Thomas, were sufficient to permit the inference that the sale was not made in good faith, but for the purpose of placing his property beyond the reach of such creditor.

That sale embraced substantially all the property he had, and the notes representing the larger part of the purchase price were placed beyond the jurisdiction of the courts of this state by transfer to a near relative of the vendor. Without further explanation the motive for the sale would seem to be liable to unfavorable imputation as it may fairly be inferred that it was not made with a view to engage in any other business or employment.

This situation the defendant sought to meet by reference to the proceedings in the Champlin action, which was brought against both Thomas and Charles Stoddart to restrain them from making and selling a cosmetic known as “ Stoddart’s Peerless Liquid,” said to be composed of the same ingredients as “ Champlin’s Liquid Pearl.” And in that action the plaintiff alleged that the latter was their secret of trade, that it and their trade mark had been wrongfully appropriated and fraudulently imitated by those defendants, that the plaintiffs had sustained damages by such infringement and on account of sales already made by the defendants for the amount of which with other relief they prayed judgment. And involved in the subject of the litigation was the covenant of Thomas Stoddart, who had before been interested with Oliver H. P. Champlin in the manufac ture and sale of the “ Liquid Pearl,” that the latter should have the exclusive right to make and vend the cosmetic, and that he would not divulge the formula or recipe for making it.

This distinguished the alleged cause of action to some extent against Thomas from that against Charles. The plain-tiffs applied for a temporary injunction in that action which was denied as to Charles and granted as against Thomas Stoddart, and the injunction was served on the latter December 28, 1880. The sale the next day evidently was made by Thomas of his interest in the property and business of the firm to Charles, and the purchase was made by him by reason of such restraint and to enable the latter to proceed with the business to which the injunction related unembarrassed by it. And it appears that those defendants had then incurred considerable expense to introduce the cosmetic into the market and in seeking patronage for the trade. And that the defendant James Stoddart was afterwards invited by Charles to take an interest in the business, and the relation of partner in a firm composed of him and Charles to be known as Stoddart Brothers, so that the advertising done for the purposes of the trade while Thomas and Charles constituted a firm by the same name might be utilized and the good will of the business- so secured be made available. Whatever view may be taken of these facts in other respects the referee was justified in giving them some consideration in behalf of the defense as bearing upon the purposes and motives of the parties to the sale and transfer in question, and as qualifying so far as they might the reflection upon it of the circumstances of the relation subsequently taken by James to the business. It may be observed that the defendant Thomas was wholly restrained from taking any part in the manufacture or sale of the “ Peerless Liquid,” and he could not as clerk of his brother or brothers, without violation of the injunction, have anything to do with it,- and it does not appear that he did. The referee has found that the sale by Thomas to Charles Stoddart was accompanied by an immediate actual and continued change of possession of the property sold, and was made in good faith and for a valuable consideration, and without any intent to hinder, delay or defraud the creditors of the vendor. This finding is challenged by the plaintiff’s counsel, who insists that there is no evidence to support it in either respect, and therefore the exception presents a question of law. Code Civ. Pro., § 993. Sickles v. Flanagan, 79 N. Y., 224; Porter v. Smith, 35 Hun, 118.

While mere words are not sufficient to produce a delivery and change of possession, the manner which it may be done is dependent somewhat on the character and situation of the property sold. This property consisted of an undivided interest in a stock of goods, bills receivable, accounts (if any), the balance to the credit of the firm in banks, the right of occupancy as tenant of the store building where the goods were, and the good will of the business. There does not seem to have been any inventory taken of the stock. The possession was that of the firm which each member represented. The sale by one to the other and the retirement óf the former leaving the latter in the exclusive possession would be deemed a delivery and change of possession. This they sought to do by the sale evidenced by the bill of sale to that effect, and the surrender of the entire proprietorship to Charles. The latter caused the transfer of the bank balance of the firm to be made to his credit and drew his check for the cash payment of $800, and delivered his notes for the residue. These were taken in payment by Thomas, and he accepted employment as clerk from the purchaser at the agreed compensation of fifteen dollars per week and the clerk of the firm entered into the service of Charles at a stipulated rate of compensation. This is substantially all that occurred between the parties to produce a delivery of the property. But thereupon the purchaser proceeded to give appearance to the situation by having the sign over the front door so changed as to announce that he was the successor of Stoddart Brothers, the banks where they had done business were advised of the change, and information to some extent given to the houses and persons with whom the firm had dealt that Charles had become the sole proprietor. And this was in some instances announced by Thomas in the store. The contention of the plaintiff’s counsel that there was no delivery and no actual and continued change of possession is elaborately and ably discussed by him. And on that subject the question arises whether the fact that Thomas remained at the store in the assumed relation of clerk required the conclusion that there was no such delivery and continued change of possession.

All that is essential is that such delivery and possession be made and taken in good faith in such manner as the-nature and situation of the property may reasonably admit, of. Manton v. Moore, 7 D. & E., 67; Barr v. Reitz, 53 Penn. St., 256; McKibbin v. Martin, 64 id., 352. This may be accomplished by severing the goods from the control of the vendor and placing them under the control of thevendee by such acts as may produce that result. It may be this would not be done by putting a vendor in charge of the property as agent of the vendee to sell and dispose of it,, as that might be construed as practically the possession of the seller and as an attempted evasion of the statute and its. purpose. Cole v. Hill, 2 Hall, 625; Fitzgerald v. Gorham, 4 Cal., 289; S. C., 60 Am. Dec., 616. But his mere employment by the vendee as clerk in good faith to produce such, relation only, and his continuance as such merely in the business (which includes the care and sale of such property) of which the vendee has the actual control and personal management, does not require the conclusion that there had not been a delivery and an actual and continued change of possession. Ludlow v. Hurd, 19 John., 218; Jones v. O'Brien, 4 J. & S., 58. The evidence here permitted, although it did not require the conclusion, that the possession was fully surrendered to and taken by the partner Charles on the sale to him by Thomas Stoddart of his interest, and actually continued in him exclusively; and that thereafter the services of Thomas in the store and about the business were merely clerical and within the authority given him by Charles without taking with it any control or possession of the goods which had been the subject of the sale.

This, however, was a question of fact upon the evidence for the referee to determine, and cannot be treated as one of law. The numerous cases cited by the plaintiff’s counsel require the adoption of no other rule as applied to the evidence given upon the trial. The circumstances required the careful scrutiny of the referee, and it was for him to determine the fact whether the form given to the transactions of sale, the employment of the plaintiff as clerk, and to the other outward appearances, was not colorable, and adopted as a scheme to cover the real relation, which was secretly designed to be continued and exist then and ultimately for the benefit of the judgment debtor. And whether in view of all those circumstances, the sale represented by the paper executed purporting to make it was made in good faith without any intent to defraud the creditors of the vendor, was certainly a question as appears by the record before us, which might have led to a conclusion the reverse of that adopted by the referee.

The omission to produce evidence within the power of the defendants (if so), which might throw some light on the transactions between the principal parties, and the fact that the notes taken by Thomas for the larger part of the purchase price, were sent out of the commonwealth to his father, and the use subsequently made of some of them, like some other circumstances, were matters for the consideration of the referee on the questions before him. The reason to which the sale is attributed on the part of. the defense, was not applicable to the disposition made of the notes, which, so far as appears, seem to have been substantially all the property he had, and it does not appear in the case what was the consideration of such transfer of them. But the question of fraud is one of fact. Archer v. Hubbell, 4 Wend., 514. And in the view taken, the question is one of the weight of evidence rather than an entire want of evidence, and therefore is not a question of law raised by exceptions to the findings of fact. Code, § 993. It is, however, for this court to examine the evidence, with a view to ascertain whether the determination of a referee is so against the weight of it as to require a new trial when it appears that the case as made contains all the evidence essential to such inquiry. But the rule is quite well settled in this court, that this cannot be done when the case fails to show that it contains all the evidence in that respect, and any evidence appears tending in some degree to support the conclusions of fact found by the referee. Then the presumption arises that the evidence on the trial was sufficient for that purpose. Porter v. Smith, 35 Hun, 18; Spence v. Chambers, 39 id., 193.

We therefore neither consider the question of the weight of the evidence as presented by the case, or express any opinion upon it. The answer of the defendants, Thomas and Charles Stoddart, alleges that Thomas has received a salary as clerk at fifteen dollars per week, since the sale by him to Charles, and such is the compensation which the evidence tends to prove was agreed upon for such service. On the trial the plaintiff offered to prove that his services at the store between December 29, 1880, and the commencement of this action, if rendered by a person employed as clerk, would have been three times the value alleged in the answer. This was excluded and exception taken. The fact as such of the amount of his salary and the value of his services had no importance only as it may have had a bearing upon the mtent.of the parties to the transaction of the sale. This question is one of circumstances, to which resort may be had to ascertain whether the form given to the sale fairly represents its purpose. The offer was to prove that his services as clerk, for which his salary was fifteen dollars, were worth forty-five dollars per week. • If he was in fact a clerk, this was not material; but one question was whether that was his actual and only relation to Charles and to the business. It is said by the defendant’s counsel that while evidence tending to show that he received more than the value of his services may have had some material bearing, the fact that his salary was less than such value cannot. We think the admissibility of evidence to prove that the stipulated salary was more than the value of his services, does not necessarily render evidence that it was much less than their value, incompetent or irrelevant. While the former fact might tend to prove that he was realizing from the business something which his mere service did not warrant, the latter might have some bearing whether he had not some interest not involved in the mere contract for service which had induced him to bestow labor in value not covered by the stipulated rate of compensation. It certainly would have been competent to prove that he ássumed the apparent relation of clerk without any agreed or contemplated compensation from Charles for service. And whether he gave to the business his services wholly or partially, without compensation, the fact would seem to have relation to its bearing in degree rather than to its competency. The sale as against creditors may have been just as effectual in one case as in the other, and if made in good faith the question of the arrangement for service and of the amount of compensation are without importance; but the question involved is one of purpose of the parties to it. And the value of the excluded evidence was only in the inference derivable from it bearing upon such purpose. The fact sought to be proved was collateral, but it cannot be said that it might not furnish an inference having pertinence. And in a close case upon the facts, we cannot so measure the effect or weight of excluded competent evidence, having or which may have any relation to the questions involved, as to say that no prejudice did or could result from its exclusion. Nugent v. Jacobs, 103 N. Y., 125.

The rejection of this evidence in the view taken was error. And for that reason the judgment should be reversed and a new trial granted, costs to abide the event.

Smith, P. J., concurs; Haight, J., not voting.


text:
    The People, etc., ex rel., William R. Mason, Resp’ts, v. The Board of Supervisors of Wayne County, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    1. Mandamus—Writ of—Is a state writ—When brought on relation OF PRIVATE PERSON MUST SHOW THAT FACT—CODE ClV. PRO. S§ 1991, 1994
    The writ of mandamus is a state writ and should be issued in the name of the people of the state, but where it is awarded upon the application of a private person it must show that it was issued upon the relation of that person.
    2. Justice of the 'peace—Bill for services—Amendment when allowed.
    Where a bill for services was rendered by a justice of the peace to the board of supervisors of the county, to which objection was taken on account of informality, upon request that the bill might be corrected in the particulars to which objection was taken such amendment should be allowed.
    3 Same—Withdrawal of bill unnecessary—Laws 1845, chap. 180, section 28.
    For such purpose the withdrawal of the bill is not necessary. See Laws 1845, chap. 180, section 28.
    Appeal from an order of the Monroe special term granting a peremptory writ of mandamus.

      T. W. Collins, for appl’ts; John I~I. Camp, for resp’ts.
   Haight, J.

The writ of mandamus is a state writ and should be issued in the name of the people of the state, but where it is awarded upon the application of a private person it must show that it was issued upon the relation of that person. Code of Civ. Procedure, sections 1991, 1994.

The writ is informal in this regard. The relator, a justice of the peace, in November, 1886, presented a bill for alleged services as such justice in criminal proceedings, to the board of town auditors of the town of Lyons, in the county of Wayne, for audit and allowance.

The claim so presented was by the board of town auditors audited and allowed. An appeal was taken therefrom to the board of supervisors of Wayne county. At the next annual meeting of the board of supervisors the claim was referred to a special committee on appeals of the town of 'Lyons, before whom the parties appeared. Objections being raised to the effect that the bill was informal in not specifying the names and residence of the complainant in each case a,nd that it was not made out and verified in accordance with the provisions of the statute, the relator asked the privilege to withdraw the bill for correction and amendment. Thereupon the committee reported to the board of supervisors that they find the bill before them informal and defective, in that it is not in conformity with the requirements of the statute, and an application having been made on behalf of the justice for leave to withdraw his bill for correction and amendment so as to make it conform to the law, your committee desire to submit that question to the whole board, and request that they be released from further consideration of the bill until the determination of the question. That thereupon the board of supervisors passed the following resolution: “ Resolved, That the privilege of withdrawing and modifying the bills considered by the special committee on appeals for the town of Lyons be denied.” Thereupon the chairman of the special committee on appeals of the town of Lyons reported against the allowance of the bill, and thereafter the report of the committee was confirmed. Thereupon the relator, upon notice, moved the special term that a peremptory writ of mandamus issue to the board of supervisors commanding the board, to permit the relator “to amend and correct any informalities in his bill, and make the same conform to the statutory requirements; that he be permitted to amend said bill by stating therein the name and residence of the complainant in each case, the offense charged, the place where the offense was committed and his action as justice on said complaint, and the name of the constable to whom the warrant on such complaint was delivered, whether the person charged was or was not arrested, whether the examination was waived, or whether witnesses were sworn thereon. That upon said bill being so corrected and amended that you forthwith proceed to pass upon each separate item of the same and' to allow each and every of the legal charges therein contained.”

The court upon hearing the parties granted the motion and the writ in question was thereupon issued. Undoubtedly the bill as made out was not in compliance with the provisions of the statute and the board of supervisors very, properly refused to audit it in that form, but the fact that claim ants had presented informal bills to the board of supervisors for audit is not a reason for absolutely rejecting their claim and thus deprive them of that which may be honestly and fairly due them. In a disposition to be just the right in such cases to amend will readily be suggested. By permitting an amendment the relator could present his claim in the form and manner prescribed by the statute, and then the board of supervisors could examine and pass upon the various items embraced therein, doing justice to all parties.

It is contended, however, by the appellants that the claim was not absolutely rejected, so that it can be again presented to another board. Such, however, is not the reading of the report appearing in the supervisor’s minutes, a copy of which is made a part of the moving papers upon which the writ was allowed.

It is further contended that the board has no power to allow a claim to be withdrawn. Accounts when presented to the board of supervisors are required by the clerk to be numbered and a memorandum of the time of presenting, with the names of the persons in whose favor they shall be made out, and by whom they shall be presented, and shall be entered in the minutes of the board to which they shall be presented, and no such accounts after being presented shall be withdrawn from the custody of the board or its clerk for any purpose whatever except to be used as evidence upon a judicial trial or proceeding, and in such case it shall, after being so used, be forthwith returned to such custody. Section 28, chapter 180, Laws of 1845.

But no withdrawal of the account was necessary or was asked for in the notice of motion herein. All the relief that the relator wanted or was entitled to was the leave to amend. Such relief was just and proper, and should have been granted. The writ issued as we have seen is informal. It also directs that the relator be permitted to withdraw his bill. In this particular it exceeds the relief asked for in the notice of motion. It is also apparent that nothing can be gained by having a special meeting of the board at this time, the annual tax levy having been heretofore made.

The writ should be amended by inserting a proper title, and modified by striking out the clause “ Permitting the bill to be withdrawn,” and the clause “That the board shall thereafter within five days convene,” and insert in place thereof “ That the board at its next annual session,” and as so modified, affirmed with ten dollars costs and disbursements.

Smith, P. J., and Bradley, J., concur.


text:
    Yette Thalheimer, Resp’t, v. James Lamont, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June Term, 1887.)

    Trial Practice—Whether there is any evidence of a certain fact IS A QUESTION OF LAW.
    Where, on the trial of an action before a jury, the trial judge was asked to charge that there was no evidence of a certain fact involved in the question at issue, and he refused to do so, and left it to the jury “to say how that was,” Held, that it was a question of law whether there was any evidence of said fact; that it was error to leave it to the jury. '
    Appeal from a judgment of the Monroe county court, entered on a verdict and from an order denying a motion for .a new trial on the minutes.

      H. H. Woodward, for app’lt; C. C. Werner, for resp’t.
   Smith, P. J.

The plaintiff leased a farm, in Genessee county, to one Bushman, for the term of three years, from April 1, 1884, and the defendant guaranteed in writing that Bushman would pay the rent. Bushman took possession, of the farm and left it at the end of one year. The action is on the guaranty. The defense is that the defendant was-induced to sign the guaranty by false and fraudulent representations respecting the quality and condition of the farm, made by the plaintiff’s husband, Ignatz Thalheimer, who negotiated the lease, as her agent. There was conflicting evidence on that subject which was submitted to the jury. Among other instructions given to the jury, the court, charged, in substance, that in case the defendant was induced by such representations to make the guaranty, he would be bound, if he desired to avoid his liability upon it, to disaffirm his liability as soon as he discovered that the representations to him were fraudulent; and the question whether he had so disaffirmed within a reasonable time after he discovered that the representations were fraudulent, was left to the jury. The defendant’s counsel requested the court to charge that there was no evidence that the defendant discovered that the farm was not as represented until after Bushman left it. To that the court rephed: “The jury will say how that is.” To that remark, and also to the refusal to charge as requested, the defendant’s counsel excepted.

The question whether there was any evidence of the fact above stated was a question of law, and it' was error to-leave it to the jury.

We think it was also error to refuse to charge as requested. So far as we have discovered, the case is barren of evidence of the character referred to. The defendant lived in Eochester. He testified that when Thalheimer called on him and told him Bushman had not paid the rent,, he had not been on the farm since the lease was signed, and knew nothing of it or of the rent, and that he told Thalheimer that it was something he knew nothing about. On cross-examination, he testified that he paid no attention to the farm and knew nothing about it for more than a year after the conversation which resulted in his signing the guaranty. That testimony was not controverted.

The learned county judge, in his opinion denying the motion for a new trial, adverts to the fact that the defendant testified that Thalheimer told him, on the 17th of March, 1885, that Bushman had not paid the rent; that a. short time afterwards he called again, and defendant said if he didn’t hear from Bushman he would go and see him, and that subsequently, not having heard from him, he did go and see him and wanted to know why he hadn’t paid.. The time when this occurred is not stated. The county judge says it apparently was before Bushman left the place, but we find no evidence in the case from which it can be determined whether at the time Bushman was living on the farm, or in the village of Batavia, to which he removed when he left the farm. Nor does it appear that the defendant learned the falsity of the representations on that visit to Bushman, at whatever date it occurred. The county judge remarks, in his opinion, that the defendant-then naturally would learn what fault Bushman had to find with the place, but the conclusion that he did so is speculative merely, and the burden of proof on the point is with the plaintiff. As well might it be surmised that if the defendant had then learned the falsity of the representations, he would have spoken of it when Thalheimer called on him subsequently to pay the rent, but of that there is no proof.

For these reasons, without commenting on the other questions in the case, we think the judgment and order should be reversed and a new trial ordered in the Monroe-county court, costs to abide event.

Haight and Bradley; JJ., concur.


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    In the Matter of the Probate of the Last Will of Mandaine Marsh, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.

    1. Will—When proof of as a lost will cannot be made—Code Civ. Pro , § 264.
    Where it appeared that a will was duly executed anü'published, and the testatrix took it into her custody, and it did not appear that thereafter, prior to her death, it was seen by any other person. Held, that the.fact that no will was found after her death raised the presumption that it was destroyed by her animo revoeandi, and that it could not be proved as a lost or destroyed will unless shown to have been in existence at the death of the testatrix, or to have been fraudulently destroyed in her lifetime
    2. Same—Evidence—Declaration of testator—When competent.
    Where evidence of declaration of the testatrix that she made a will had been admitted under objection to prove a lost will. Held, that so far as the existence of a will shown to have been duly executed may depend upon the intent of the testator without the aid of any act, his declarations may be competent as some evidence of his intent, as of the time they are made, but that such evidence should be carefully scrutinized and cautiously weighed.
    Appeal from decree of the surrogate’s court of Chautauqua county, declaring, establishing and admitting to probate the last will of Mandaine Marsh, deceased.

      John B. Wicks, for app’lt; A. O. Wade, for resp’t.
   Bradley, J.

The testatrix made her will in the fall of 1873, by which she devised and bequeathed all her property to Ruth Marsh, her granddaughter, and died November 26, 1884, at her house in Jamestown, where she had for many years resided. After her death search was made for her will, and it was not found. This proceeding was instituted in the surrogate’s court upon the petition of Ruth, the legatee, to establish and prove the will pursuant to the statute. Code Civ. Pro., § 2621.

The will was duly executed and published, and the testatrix took it into her custody. And it does not appear that thereafter, prior to her death, it was seen by any other person. The fact that no will was found after her death raises the presumption that it was destroyed by her animo revocando, and it could not be proved as a lost or destroyed will unless shown to have -been in existence at the death of the testatrix, or to have been fraudulently destroyed in her lifetime. 2 R. S., 68, § 67; Code, § 1865; Betts v. Jackson 6 Wend., 173; Idley v. Bowen, 11 id., 236; Knapp v. Knapp, 10 N. Y., 276.

There is evidence tending to prove that the relations between her and her son Albert Marsh, who is the father of Ruth, had not been agreeable for some years dating back of- the execution of the will, and that he was not in the habit of visiting her, although they resided in the saíne town, and that his relations with his daughter Ruth were not pleasant, and they had not spoken together for two or three years prior to the death of the testatrix; that a close, friendly relation had existed between her and Ruth, who at the time of such death was seventeen years of age, and had been married about two years; and during that time the testatrix had been residing in her house alone; that the day before her death she was found insensible and remained so until she died, and communicated with no one during that time; that immediately after her death her son gathered up the papers and some other things about the house and carried them away, and for that purpose the evidence permits the conclusion that he diligently searched for her papers in the drawers, boxes and other places where she did or was likely to keep them. And there is evidence to the effect that he enquired and ascertained that his mother had made a will, and that he said if he found it he should destroy it, and if he did not find it should contest it.

He denies that he made this last statement. But the evidence authorized the conclusion of the trial court that he did express such purpose, and to consummate it made a search for the will, and if the evidence permitted the court to find that the testatrix did leave a will at the time of her death, the further inference was justified that it was taken by the son from the house and by him suppressed dr destroyed.

The son Albert filed objections to the proof of the will and alleged that the testatrix died intestate, and appeared as contestant in the proceedings, and took this appeal from the decree of the surrogate’s court. But it does not appear by the record before us that any findings of fact or conclusions of law were made by the surrogate, or that any exceptions were taken to any such findings either of fact or law, So that no question upon the merits seems to be presented here for consideration in the manner required to permit any review in that respect. Code Civ. Pro., § 2545; Angevine v. Jackson, 103 N. Y., 470; 3 N. Y. State Rep., 643. It is, therefore, unnecessary to further consider the evidence and its sufficiency in reference to the facts requisite to the establishment and probate of a will in such cases. But a question arises upon exceptions taken to the admission of evidence of the declarations of the testatrix made from time to time, and up to a short time prior to her death, to the effect that she had a will and by it had given her property to Ruth. This evidence was evidently given as bearing upon her intention as of the time they were made, and to repel the presumption that she had during her fife revoked the will (which it appeared she had made), and as tending to prove that it was in her possession up to the time of her death. The cases in this state and elsewhere are not entirely in harmony on this question. In Dan v. Brown (4 Cow., 483), which was a proceeding for the partition of land, evidence of this character was received without objection, but on review Woodworth, J., remarked that he did not lay any “stress upon the declarations of the testator. They were made long after the execution of the will and shortly before his death. They are not evidence unless they relate to the res gestae or to an act done.”

In Betts v. Jackson (6 Cow., 377), which was an action of ejectment involving the consideration of the same will, the declarations referred to of the testator were rejected, and the plaintiff non-suited, and although a new trial was granted on review, on the ground that the evidence was sufficient to go to the jury, Sutherland, J., said: “The declarations of the testator during his last sickness as to the existence of his will and the place where it would be found, were incompetent evidence and were properly rejected by the judge. This point was decided in Dan v. Brown (4 Cow., 490), in relation to this will.”

The case of Betts v. Jackson, after another trial, came up for review again (9 Cow., 208), in which the question now under consideration was not presented, but the case went off on the ground that no presumption of revocation by the testator of a will, which he had made, arose from the mere fact that it was not found after his death. The court of errors on review (6 Wend., 173), held to the contrary and reversed the court below. The Chanceller, however, in referring to the decision of the court (reported in 6 Cow. Rep.), that evidence of the declaration of the testator was; not admissible, remarked that there was sufficient doubt as to the correctness of the decision of the supreme court on that point to authorize them to direct a reargument of the question if it should again come there.

In Knapp v. Knapp (10 N. Y., 276), evidence of the declarations of the testator made a while before his death that he had made a will, and it was in his desk, was received without objection. The views of the court in the cases cited so far as they express any determination are against the admissibility of evidence of such declarations. But it may be observed that in the case where that decision was announced the determination of the question was not. necessary to the result given, as the view of the trial court, was in that respect approved in review, and a new trial was granted for the reason before mentioned. 6 Cow., 377. But in Waterman v. Whiteley (11 N. Y., 157), after-referring to the cases of Dan v. Brown, and Betts v. Jackson, Selden, J., in delivering the opinion adds : “I consider these cases as establishing the doctrine that upon a question of revocation no declarations of the testator are admissible except such as accompany the act by which the will is revoked, such declarations being received as a part of the res gestae, and for the purpose of showing the intent of the act.” That case has since been treated in this state-as declaring the correct and governing rule on this subject. Sisson v. Conger, 1 T. & C., 564; Cudney v. Cudney, 68 N. Y., 148; Eighmy v. People, 79 id., 546, 558; Marx v. McGlynn, 38 id., N. Y., 374; Sanford v. Ellithorp, 95 id., 54. The doctrine of the Waterman Case is that the declarations of the testator are not competent evidence in support of revocation of a will unless they accompany some act in that respect, but are competent as bearing upon his mental condition as of the time of making his will, when pertinent for that purpose. And such was the view of the court in Jackson v. Kniffen, 2 Johns., 31.

There is no question in this case aoout the sound and disposing condition of the mind of the testatrix at the time-she made the will, and no circumstances-appearing to give competency to her declarations for any purpose other than as tending to repel the presumption of revocation of her will. And the Waterman case is distinguished from this one in the fact only that such evidence there was sought to be used to prove the act of revocation, while in the case at bar, such declarations were given in evidence to prove no act by way of revocation or otherwise, but to show that she then had no intention to revoke her will. The question whether the distinction is substantial and may be observed in support of the ruling of the court below may be one of some doubt and difficulty. Our attention is called to cases decided in England and this country in support of the-admissibility of evidence of such character. In Whitney v. King (17 C. B., [N. S.], 756), it was held that declarations like those in question of a testator were competent and cogent evidence on the question of his intention in that respect, when his will was not found or produced after his death, and against the presumption of revocation arising from its non-production.

And in Sugden v. L’d St. Leonards (1 L. R. P. D., 154; S. C., 17 Moak, 453), it was held that the declarations of a testator, made both before and after the execution of his will, are in the event of its loss admissible as secondary evidence of its contents, and there the proposition is repeated, that the declarations of a testator are admitted “ to show the continuing of the will at the time they were made, and so rebut the presumption of the will having been destroyed animo revocandi.

In the Matter of Johnson’s Will (40 Conn., 587), it was held that the declarations of the testator to the effect that he was leaving a will, were admissible for the purpose of showing that he had not revoked his will, which was not found after his death.

In Foster’s Appeal (87 Penn. St., 67), evidence of like character was received and considered upon the question and to repel the presumption of revocation. And see to the same effect Steele v. Price (5 B. Monroe, 58).

The evidence of this character involves no act other than that of continued possession by the testator of his will. And it may be somewhat difficult to so apply the principles upon which the general rules of evidence are established to demonstrate the admissibility of the declarations in question, unless the custody of the will by him from the time of its execution may be treated as included within the res gestee, and such evidence admissible as characterizing the possession and competent on the question of intent, and not as bearing upon any act, testamentary or otherwise, of the testator. Keen v. Keen, L. R., 3 P. & D., 105; S. C., 7 Moak, 341; Collagan v. Burns, 57 Me., 479; Patterson v. Hickey, 32 Ga., 156; Schouler on Wills, § 403. In this fact is found the distinction between the evidence of declarations, like those in question, and of declarations to the effect that the testator had revoked his will, because in the latter the act creates and constitutes the res gestee, and intent is effectual to produce that result, while in the former intent is sufficient to preserve the will, and if valid render it effectual after his death. The proof of lost wills rests in secondary evidence. And we are inclined to think that, so far as the existence of a will shown to have been duly executed, may depend upon the intent of the testator without the aid of any act, his declarations may be competent as some evidence of his intent as of the time they are made, but that such evidence should be carefully scrutinized and cautiously weighed. Grant v. Grant, 1 Sandf. Chy., 237.

While this proposition does not, so far as we have been, able to discover, have the support of any adjudication in this state, we find no case where the contrary of it has necessarily been decided upon review. With some hesitation, the conclusion is reached that the evidence referred to was competent.

As appears by the record, the objection was not that the declarations as such of the- testatrix were necessarily incompetent, but that those which the evidence was offered to prove were too remote from the time of her death to render them competent. We think that was not a tenable ground for their exclusion, although it went to the effect of the evidence. There were some objections and exceptions to evidence of minor importance which are not entitled to consideration in view of the rule in such cases that the decree “shall not be reversed for an error in admitting or rejecting evidence, unless it appears to the appellate court that the exceptant was necessarily prejudiced thereby. Code Civ. Pro., section 2,545.

There seem to have been no errors in the rulings of the court below to the prejudice of the appellant.

The decree should be affirmed.

Smith, P. J., and Haight, J., concur.


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    William Granger v. The Village of Seneca Falls.

      (Supreme Court, General Term, Fifth Department,

      Filed June 25, 1887.)

    Municipal Corporations—Liability por damages by change oe grade: in sidewalk
    While a municipal corporation may not be liable for a defect in the-original plan upon which its sidewalks are laid, and while it may adopt a sidewalk already constructed or rebuilt upon a new plan, and thus secure to itself immunity, this must be done by formal corporate action, and where a change in the grade or slope has been made by the owner of adjoining premises in rebuilding which makes the sidewalk dangerous for travel, the omission on the part of the corporation after notice, to take any action in reference to the matter, is not a defense in an action brought against it to recover damages for injuries caused by the defect.
    Motion for a new trial by the plaintiff on exceptions taken upon the trial at the Seneca circuit, and ordered to be heard in the first instance at the general term.

      Rogers & Harmon, for pl’tff; Richard G. Miller, for deft.
   Haight, J.

This action was brought to recover damages for injuries which the plaintiff claims to have sustained in falling upon a sidewalk, on Ovid street, in the village of Seneca Falls, causing a fracture of the tibia about four inches above the ankle.

Upon the trial the plaintiff gave evidence tending to show that the sidewalk, at the place of the accident, had existed for upwards of twenty years, and was of a uniform grade, descending thirty-one inches in thirty-seven and one-half feet; that about two years before the accident the abutting owner, Sharp, erected a new block of buildings, and at that time changed the walk in order to have it come up to a better pitch with the entrance of his store, raising it twelve or fifteen inches at the south end; that there was another owner south of him, and they filled in at that point so as to give the walk a sudden pitch, so that after the walk was reconstructed in the middle section of twelve and one-half feet there was a descent of twenty inches, thus nearly doubling the pitch of the walk at that place.

Upon the conclusion of the plaintiff’s evidence the defendant moved for a non-suit upon the ground that the walk as laid was a discretionary matter of the board of trustees; that they were legislative officers, and that their action was judicial in fixing the grade. The court thereupon granted the motion, and to such ruling an exception was taken, which presents the only question which we are now called upon to consider.

The difficulty with the defendant’s position is that it does not appear that the village trustees had ever established or approved of the new grade of the walk as constructed by Sharp, and the abutting owner south of him. Had there been formal corporate action by the board of trustees of the village, thus establishing the grade, a different question would have been presented.

In the case of Urquhart v. The City of Ogdensburg (91 N. Y., 67), it was held that where a sidewalk had been reconstructed with a steeper grade than that originally adopted, in the absence of evidence showing by whom it was so reconstructed, it must be assumed to have been the work of the city and that the establishing of the grade was the exercise of judicial discretion, and that the discretion extended to the new grade established. But in the same case, again considered in 97 N. Y., 238, this doctrine was, to some extent, modified. It was then held that while the corporation may not be liable for any defect in the original plan, and while it may adopt á sidewalk already constructed or rebuild upon a new plan, and thus secure to itself immunity, this must be done by formal corporate action, and where a change in the grade or slope has been made by the owner of adjoining premises in rebuilding, making the sidewalk dangerous for travel, the omisssion on the part of the corporation, after notice, to take any action in reference to the matter, is not a defense in an action brought against it to recover damages for injuries caused by the defect.

As we have seen, the change in the sidewalk in this case was made by the owners of adjoining premises, and it does not appear that the village trustees have ever adopted or •approved of the grade as changed by the reconstructed walk.

It follows that the motion for non-suit was improperly granted. Garrett v. The City of Buffalo.

The motion for a new trial should be granted, with costs to abide event.

Smith, P. J., and Bradley, J., concur. .