text:
    In the Matter of the Probate of the Will of Jane G. Campbell, Deceased.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Will — Construction—At whose instance.
    Section 3634 of the Code confers no authority upon the surrogate to construe and adjudicate upon the terms of a will, upon the motion of a person who has no interest in the matter.
    U. Same — Jurisdiction—Consent.
    In such case, consent will not confer jurisdiction.
    St. Rep., Yol. LXYIIL 97

      3. "Appeal — Case.
    Attaching records together and calling the bundle a case, does not make itone.
    Appeal from a decree made on the probate of a will, construing and adjudicating upon its provisions.

      M. J. Sunderlin, for appt; A. P. Rose, for resp’ts.
   Merwin, J.

— On the 19th. January, 1891, Jane G. Campbell died, leaving as her sole heirs and next of kin Henrietta L. Butler and Elizabeth G. Foster, and leaving a last will and testament bearing date June 27, 1889. In and by this will provision was made for the payment of debts and a number of legacies, and then came the following items : “ Item: 1 give and bequeath to my niece, Henrietta L Butler, the sum of fifteen thousand dollars in trust nevertheless, said sum to be invested by her as she may think best, and the proceeds • thereof to be used for the support of a clergyman who shall hold divine services in the Lawrence Memorial chapel, at Oayuta lake, as often as may be convenient, and for such other purposes in keeping up the church services as she may think advisable; and at the death of the said Henrietta L. Butler the said sum of fifteen thousand dollars shall be paid to-the trustees of the parochial fund of 'the Protestant Episcopal church in the diocese of western New York, to be held by them, and the income therefrom us(ed for paying a clergyman who shall hold divine services in the Lawrence Memorial chapel, at Oayuta lake, as often as convenient, and to keep, up and in good repair the said Lawrence chapel and cemetery at Oayuta lake. Item: All the rest and residue of my property, both real and personal, of every description, I give, devise, and bequeath to my niece, Henrietta L. Butler, and constitute her my residuary legatee ; and should any legacy or devise herein lapse, or be held by any competent court to be invalid, then the part of my estate included" therein shall go to my said niece, Henrietta L. Butler, the residuary legatee and devisee of all of my property.” On the ‘23d"January, 1891, George H. Butler and Henrietta L. Butler, the executors named in the will, filed with the surrogate.of Schuyler county-their petition in the ordinary form for the proof of f-he will. A citation' was issued returnable February 24, 1891, which was served on Mrs. Foster February 15th, On the return day the executors and petitioners appeared in person, and Mrs. Foster in person and by counsel, and asked for time to answer. This was apparently granted,5 and the matter adjourned to March 12, 1891. On the 5th March, 1891, Mrs. Foster by her attorney filed an unverified answer, in which she stated that she appeared and contested the probate of the will, on four grounds: First, that the decedent was not a resident of Schuyler county, and the surrogate’s court of that county had no. jurisdiction; second, that the will was not properly executed; third, “ she alleges and charges that the clause or provision in said will giving to Henrietta L. Butler the sum of fifteen thousand thousand dollars in trust, and the subsequent direction for the disposition thereof, are illegal and void; ” fourth, that the will was procured by undue influence, and was void. Upon the adjourned day the petitioners appeared, and Mrs. Foster appeared by counsel, and the formal depositions of the subscribing witnesses were taken. There appears to have been no contest over the probate. Upon the same day, the decree admitting the will to probate was entered. In this, after that part by which the will is admitted to probate, there is a clause, purporting to be made on motion of the counsel of Mrs. Foster, by which “ it is further adjudged that the provisions in said will giving to Henrietta L. Butler the sum of fifteen thousand dollars in trust, and the subsequent direction for the disposition thereof, is legal and valid.”

It is claimed by the appellate that the surrogate had no right to make any adjudication affecting her rights as residuary legatee; that there was no issue under the provisions of section 2624 of the Code that authorized the surrogate to construe the will. That section is as follows:

Mrs. Foster, upon whose motion the adjudication in question was made, had no interest under the will. If the trust for any reason was invalid, she was not affected, for it is expressly provided that if any legacy is invalid, it shall go to the residuary legatee. Uor did Mrs. Foster have any interest, so far as it appears, in sustaining the trust A case is therefore presented where the court, upon motion of a party having no interest in the matter, assumes to construe and adjudicate upon the terms of the will. We are of the opinion that section 2624, above cited, confers no authority for this, and that no issue within the meaning of that section was before the surrogate. Jones v. Hamersley, 4 Dem. Sur. 427. _

_ But it is said that the appellant consented that the surrogate might construe the will. Consent would not confer jurisdiction. In re Walker, 136 N. Y. 29 ; 48 St. Rep. 893. There was certainly in the present case no express consent, and it should-not, I think, be inferred. The allegation of Mrs. Foster as to the trust was put forward as one of the grounds for contesting the probate, and when" the contest was in substance abandoned, and the will admitted to probate, it might well have been inferred bv the residuary legatee that all action or attempted action on the- part of Mrs. Foster would be ended, and that the surrogate would not be called on in her behalf to make any order about it. The proceeding was not treated as a trial of a question of fact under section 2545 of the Code. Ho decision was filed containing a separate statement of the facts found and the conclusions of law. If the case was not a trial under section 2545, it would not seem necessary for the appellant to file exceptions to the provisions of the decree in order to take advantage of its invalidity. If the subject- of the construction of the will was not properly before the surrogate, that defect was not waived by the appellant by presenting requests on the settlement of a so-called case after the appeal was taken. It is not clear that there, was any authority for presenting requests, or for making a case, or that any was in fact made. Attaching records together, and-calling the bundle a case, does not make it one.

Upon the points on either side of the question as to the validity of the trust is discussed, but on each side one or more facts are assumed to exist that are quite material to the views of either counsel, and that do not appear in the record before us. We have no right to go outside of the record for the facts, and it is quite apparent that the question in controversy cannot be properly determined as the record here stands.

The decree so far as appealed from should, we think, be reversed, on the ground that the question as to the validity of the trust was not properly before the surrogate, and he had no authority to act upon it.

Decree of surrogate’s court so far as appealed from reversed, on the ground that the question as to the validity of the trust was not properly before the surrogate. Costs of appeal to the appellant, payable from the estate.

All concur.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    Simon D. Paddock, App’lt, v. John Barnett et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Pleading — Amendment.
    Ordinarily, unless the proposed pleading is clearly had or frivolous, its sufficiency will not be determined on. a motion for leave to serve it, but the other party will be left to his remedy by demurrer or on trial.
    Appeal from an order allowing the defendants to amend their answer.

      Homer Wezton, for app’lt; Frank H, Hiscock, for resp’ts.
   Merwin, J.

— This action was commenced in ’ justice’s court.

The defendant’s were assessors of the town, of Schuyler, in the county of Onondaga, and in the years 1884 and 1885, as the plaintiff in his complaint alleged, they assessed him for personal property in that town, when, in fact, to the defendant’s knowledge, he was not a resident or inhabitant of that town, but resided in the city of Syracuse, and by reason of such assessments he was compelled to pay the taxes for those years, based on such assessments; and he claimed to recover damages for the wrongful act of defendants. The defendants put in a general denial, and also set up the statute of limitations. The defendants succeeded in the justice’s court, and the plaintiff appealed to the county court for a new trial. Thereafter, the defendants made a motion in the county court for leave to amend their answer by setting up, as an additional and separate defense, an adjudication by the board of supervisors of Onondaga county of the matter in controversy, upon a petition by plaintiff to have the taxes refunded, which adjudication is alleged to have been made after hearing the plaintiff, upon the one side, and the defendants, apon the other, upon the question of the residence of the plaintiff and the legality of the tax, and after considering all the facts and allegations. It is alleged that the board decided that the taxes in controversy — one or both of them — were legal, and denied the plaintiff’s petition to have them' refunded. In granting the motion for leave to amend, the order appealed from was made. It gives the defendants the right to set up, as an additional defense, the facts and allegations contained in the affidavit of the defendant Nicholson, which is set out in the order.

The plaintiff claims that the defendants were guilty of loches in makin their motion. We find, however, no good reason for disturbing the discretionary decision of the county court on that subject. That matter was undoubtedly in view when the terms upon which the amendment was granted were fixed. Thé power of the county court to grant the amendment is well settled. Code, § 3071. Simpson v. R., W. & O. R. R. Co., 48 Hun, 113; 15 St. Rep. 539 ; Cramer v. Lovejoy, 41 Hun, 582; 5 St. Rep. 190. In the order of the county court there isa clause by which it is, in terms, held and decided that the defense sought to be set up states a bar to the plaintiff's right to recover.. By the statute under which the board acted (section 5 of chapter 855 of the Laws of 1869, as amended by chapter 326 of the Laws of 1885), it was authorized to “ refund to any person the amount collected from him of any tax, illegally or improperly assessed or levied.” This would seem to give the board the right to determine whether the tax was illegal (In re New York Catholic Protectory, 77 N. Y. 342, 345 ; In re Buffalo Mut. Gaslight Co., 144 N. Y. 228, 232 ; 63 St. Rep. 98, and, to that end, determine the question of residence. The act of 1869, as amended by chapter 695 of 1871, was under consideration in the case in 77 N. Y., and the power there construed was substantially the same as that conferred on the board of supervisors b_y the amendment in 1885. If the board had jurisdiction, and the matter was determined by it after a full hearing, there is authority for the proposition that the determination is conclusive upon the claimant and on succeeding boards. Osterhoudt v. Rigney, 98 N. Y. 222, 234; People v. Supervisors, 3 How. Prac. (N. S.) 241. Whether or not the determination innures to the benefit of the assessors is a question in more doubt. The assessors were certainly interested parties. They were heard in the matter; they represented, in a certain wajf, the public, which was the party in interest, against the plaintiff; and they, to a certain degree, acted for the public in making the assessment. There is at least color for the proposition that the action of the board, assuming there was a full and free consideration on the merits, should innure to the benefit of the assessors. Ashton v. City of Rochester, 133 N. Y. 187, 193; People v. Hall, 80 id. 117; Jay v. De Groot, 2 Hun, 205; Lyman v, Faris, 53 Iowa, 498. This question, however, need not, and should not, be determined here. Ordinarily, unless the proposed pleading is clearly bad or frivolous, its sufficiency should not be determined on a motion for leave to serve it, but the other party should be left to his remedy by demurrer, or on trial. Mitchell v. Allen, 25 Hun, 543; Campbell v. Campbell, 23 Abb. N. C. 187; 23 St. Rep. 352;, Ramsey Prac. 287. This rule should, we think be applied here.

There is another'objection to the adjudication, in the order, and that is. that it is too- broad,, as- it. assumes to decide that the proposed; defense is-a- bar to the entire cause of action of the plaintiff.. The plaintiff’s, cause of action relates to. the tax and assessment for the year 1884 as well as that of 1885. The proposed defense, as outlined in the affidavit of Nicholson, refers to the tax and assessment for the years 1885 and 1886, and not those of 1884. So that the defense proposed and: allowed to be put in would- seem to be only a partial one. The order of the county court, chould be' modified by striking out the clause which decided that the proposed defense states- a bar to the plaintiffs right of recovery, and, as so modified, should be affirmed.

Order modified by striking out the clause that decides that the proposed defense is a bar to the plaintiffs right, to recover, and, as so modified,, affirmed,, without costs to either party.

All concur.


text:
    John C. Trolan, Appl’t, v. Leroy S. Rogers, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Estoppel — Ancestor’s Warranty.
    The heirs of a grantor a- e not estopped from asserting claim to lands co iveyed by him with warranty of title, where they do not hold under the ancestor, hut by an independent title, accruing before the deed.
    3. Warranty — Collateral.
    ’ The ancient doctrine of collateral warranty does not exist in our law.
    3. Same.
    Sections 1843 et seq of the Code were not designed to affect the interests , of remaindermen, nor to continue in such case the doctrine of collateral warranty.

      Henry Purcell, for app’lt; Rogers & Atwell, for resp’t.
   Merwin, J.

— The property in question was owned by William Gill, at the time of his death, on the 2d January, 1857. He left, a widow, Hannah Gill, and two children, Julius Gill and Julia Wiggins, the wife of Sullivan G. Wiggins. By his will, as construed by this court, his widow had a life estate in the whole property. At her death the two children had each, the use during life of the one-half in severalty, and at the death of either the half that the party dying was entitled, to the use. of passed absolutely to his or her children. It-was said that the-fee vested in the grandchildren at the testator’s death. On the 23d May, 1857, the widow and Julius Gill executed to Julia .Wiggins a quitclaim deed of the property in question with other propérty. On April 8,1875, Julia Wiggins, with her husband, executed to the defendant a warranty deed of the premises’in-question for the consideration of $800; and defendant went into possession. The form of the covenant in the deed is as> follows :

“And the sajd.- Julia-.Wiggins and .SoJJivan., G. Wiggins do hereby covenant and agree to and with the said party, of the.second part, his.heirs and assigns, that the. premises thus.conveyed in,.the quiet and peaceable possession of-the said party of the second part, his heirs and assigns,-they will forever, warrant .and defend against any person whomsoever lawfully claiming-the same, or, any part thereof.” *

Hannah Gill died Octob.er 25, 1875.. Julia Wiggins died intestate on the.,21st May-,- 188.1, leaving four children, one of whom, Ada E., became the wife, of the plaintiff on the 20th May, 1875-, and died February 21, 1884, intestate', and’.leaving two children, the issue, of. the marriage. Julia-Gill is still living. The plaintiff claims, as tenant by the curtsey, to, be entitled to the use during his life of the share given to his- wife by the will of her grandfather, and of which she. was., entitled to the possession, on,the death of her mother. Upon the motion for a. nonsuit several grounds were stated, but, in view of our former decision, the eighth ground is the only one now relied on by. the respondent to sustain the nonsuit.. That is as follows:

“(8) That it appears that the heirs of-Julia Gill have inherited from her real estate in excess of the value of the land in question, and to that extent they are bound by her warranty deed to the defendant, and are estopped from committing a breach of their own covenant to the extent of the property inherited by them of the deceased, Julia Wiggins.”

It was shown that Julia Wiggins, at her death, left real estate that descended to her heirs to the value of about $2,500. The value now of the land deeded to defendant was shown to be about $3,000. The claim of the defendant is that the heirs at law of Mrs. Wiggins, including the plaintiff and his wife, are bound by the covenant of warranty in the deed to defendant, and are estopped from claiming title. Undoubtedly the heirs are. bound by the covenant to the extent that they are liable under the statute (Code, § 1843, et seq.),bj,. reason .of. property descending to them from the decedent. If Mrs. Wiggins,, after the conveyance to defendant, had acquired,the fee, her heirs, seeking to claim it under her, would be estopped, Tefft v. Munson, 57 N. Y. "97. But here a different question is presented, The heirs of Mrs. Wiggins do not take this property by descent from her, or. claim under her, but by independent title that vested at the death of their grandfather. As to this property, there was no privity between Mrs. Wiggins and her heirs. “The term- ‘privity’ denotes, mutual- or successive relationship to the same rights of property.” 1 Greenl, Ev. § 189. The doctrine of estoppel, as applicable to the different classes of privities, “applies to them under, one and the same principle, namely, that a party, claiming through another is estopped<by that which estopped that other respecting, the subject matter.” Stacy v. Thrasher, 6 How. 59. In 1 Freem. Judgm. § 162, it is said that:

“Except to the extent which one person had succeeded to an estate or interest formerly had by. another, there .can be no privity between them, no mqttev w.hat were or are their, relations, to each other, or to the same piece of property. * * * Kinship, whether by affinity or consanguinity, does not create privity, except when it results in the descent of an estate from one to another.”

When an heir represents the ancestor, and continues his estate, an estoppel may arise. Bigelow, Estop. (2d ed.) 337. That is not the case here, as the heirs do not hold under the ancestor, but by an independent title, accruing before the deed. We are referred to no case in this state where an heir in such a situation was estoppel from claiming the land. In Tefft v. Munson, supra, and Mygatt v. Coe, 142 N. Y. 78; 58 St. Rep. 408, the question here involved did not arise. Nor does Thompson v. Simpson, 128 N. Y. 270; 40 St. Rep. 164, help the defendant. There the heirs at law of a tenant by the curtesy, who had given a warranty deed purporting to convey the fee, were held to be precluded from asserting their title, because, with full knowledge of the facts, they had received the proceeds of the sale. In Van Rensselaer v. Kearney, 11 How. 297, the life tenant, after the deed, and before his death, became the owner of the fee. So his heirs were held to be barred. In Carbrey v. Willis, 7 Allen, 364, 368, the rule laid down was that a convejmnce with full covenants of warranty would es-top the grantor, and those claiming under a title subsequently derived from him, from claiming any interest in the premises. The defendant in effect seeks to apply here the accident doctrine of collateral warranty. That was where the heir’s title was not derived from the warranting ancestor, and yet it barred the heir from claiming the land by any collateral title, upon the presumption that he might thereafter have assets by descent from or through the ancestor, and it imposed upon him the obligation of giving the warrantee other lands in case of eviction, provided he had assets. 4 Kent, Comm. 469 ; 2 Greenl. Cruise, 738. This kind of warranty was deemed a grievous one. Rawle, Oov. (4th ed.) 382,. and does not exist in our law. Section 141, 4 Rev. St. (8th ed.). 2452, is as follows:

“Sec. 141. Lineal and collateral warranties, with all their incidents, are abolished; but the heirs and devisees of every person who have made any covenant or agreement, shall be answerable upon such covenant or agreement to the extent of the lands descended or devise'd to them, in the cases, and in the manner, prescribed by law.”

Of this, and the provision of the statute that no covenant shall be implied in any conveyance'of real estate, it is said in 4 Kent, Comm. 470:

“These provisions leave the indemnity of the purchaser for failure of title, in cases free from fraud, t,o rest upon the express covenants in the deed, and they have wisely reduced the law on this head to certainty and precision, and dismissed all the learning of warranties which abounds in the old books, and was distinguished for its abstruseness and subtle distinctions.”

The remedy referred to in section 141 was regulated by other provisions of the statute, which have been in substance incorporated in the Code of Civil Procedure (section 1843 et seq.) Section 143, 4 Rev. St. (8th ed.) 2452, is as follows:

“Sec. 143. No greaier estate or interest shall be construed to pass by any grant or conveyance, hereafter executed than the grantor himself possessed at the delivery of the deed, or could then lawfully convey, except that every grant shall be conclusive as against the grantor" and his heirs claiming from him by descent.”

The last clause of this section the defendant claims the benefit of, but it does not seem to apply here, as the plaintiff and the children of Mrs. Wiggins do not claim the property by descent from Mrs. Wiggins, defendant’s grantor. The effect to be given, to this section is considered in the Thompson Case, page 285, 128 N. Y., and 40 St. Rep. 164, and it is quite evident that the interests of remaindermen were designed to be affected, .nor was it designed to continue in such a case the doctrine of collateral warranty. In the Thompson Case, the claimants were in a position of heirs to an ancestor who had given a warranty deed. Still it does not seem to have been suggested that an estoppel could be based on the warranty in such a case, the heirs taking from an independent source. It is claimed on the part of the defendant that the case of Carson v. Cemetery Co., 104 Pa. St. 575, is in this point. There it was held that a warranty by a tenant by the curtesy is a bar to the heir taking by descent from his warranting ancestor assets of equal value to the land warranted. There seems to be in Pennsylvania no statute like the one in this state, and above referred to. In Indiana there is a statute similar to ours, and it was there held, in Hartman v. Lee, 30 Ind. 281, that a warranty deed by a tenant by the curtesy did not bind the heirs, and that the remedy of the grantee was for damages for breach of the covenant.

We are of the opinion that the plaintiff is not, by reason of the warranty deed to defendant, estopped from asserting his rights. It is hardly claimed that the defendant is in a position in this action to get the benefit of the statutory provisions making heirs and devisees liable for the debts of the decedent. Code, § 1843, et seq.; Selover v. Coe, 63 N. Y. 438. Such action must be against all the heirs (section 1846), and certain conditions must exist (section 1848), which are not shown here; and the amount recoverable depends on the amount of the assets and other claims are to be taken into account. It follows that the nonsuit was improperly granted.

Judgment and order reversed, and new trial ordered ; costs to abide the event. All concur.


author: Merwin,

text:
    John Wells, Resp’t, v. Rial Tolman, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Basements — Bight op wat.
    The conveyance oí land as to which the grantor had reserved a right of way over other land, carries to the grantee such right of way, though it i» not mentioned In his deed.
    3. Same — Location.
    Though the language of the reservation is somewhat indefinite, a practical location of the right of way will bind the parties.

      3. Same — Repairs.
    ■The owner of the dominant tenement; h^STthe.-right: to enter upon the roadway for the purpose, of making .and .to mahe, .spell repairs. as,, in view of .'the-nature of the roadway and the surrounding circumstances, are necessary for the reasonable, and convenient use thereof, and" to keep th.e same in good condition for the convenient and practical use of the same, doing no unnecesssaiy,injury,-to the,-servient ownpr:s,s.urraunding lands, or whatever may be growing thereon.

      4i Same.
    The use of the dominant owner must b.e cpnsis.ten.ti .with .the easement.
    5: Same — Time op use.
    _ A right of way over land when, “it.is not sown, with- grain,, and at all times when there‘is sleighing,’’ gives the right to cross it at all times when the lot-is not in. good-faith so sown-with grain that the use of the roadway will .cause, substantial, damage., to .the grantee.-
    3. Same-JUxte.ht ok-use.
    The reservation,of a Mght-of.way. over part of-the farm to a wood lot gives the grantor, the, right ,to use, the way for hauling-stone and other products .of the wood lot.
    7. Same — Costs.
    The allowance to plaintiff of-the costs, of an action to, establish the existence and determine the extent of a right of way is within the discretion of the court# where the action is -made necessary by defendant’s denial of such right.
    Appeal from a judgment, entered in favor of-plaintiff,

      Wilson, Kellogg & Wells, for app’lt; Edward H. Burdick, for resp’t.
   Merwin,

J. — This action was brought to establish the existence ,and determine the extent and character, of a private road, across defendant’s premises,, leading from one portion,of plaintiff’s farm to another portion, entirely disconnected; T.he premises of both parties were on the 1st of. April, 1.869,.owned by and1 in possession of Daniel-H. Huntington, and consisted of a farm of something over 100 acres, including a.wood lot of about twenty acre. On,the date named, Huntington,conveyed to William.L._and Mathew- B. Skellinger,the.premises now owned by defendant,.being thirty-five acres,., in eluding the north half, of. the wood lot. This thirty-five acres was- so situated as.to-cut off, the south-half of the-wood1 lot from the remaining portion of the farm. In this deed, was the. following- clause.: “ Reserving the right; of - way over the east lot to and from the wood. lot-, at all times when-said lot is not sown with grain, and at all times when there is sleighing.” Huntington, on the same day, conveyed the balance of tbe farm-, including the-south half of'the wood lot, to the plaintiff,. In- the deed to plaintiff, the whole farm and wood lot were described, and then there was, excepted therefrom “that portion thereof this day deeded” tq the Skellingers. 'The south,half of the wood,lot so conveyed to the plaintiff, was entirely surrounded by the land of others, so tho-t- plaintiff could have no access to it except by passing over property- that did not-belong tq,him, The “ east;lot” referred, to in the-reservation in "the deed to the Skellingers, was at that time a definite portion of the cleared land conveyed by the deed, and was separated: from the balance of the cleared. zhind by a fence, and wag the lot directly between the plaintiff’s cleared land and his.-half-of the wood lot. Prior to these conveyances, Huntington .had. for some, ti,me maintained a private road wholly upon his,own premises, extending from the south half of the wood, lot across the east lot to a portion of the land so conveyed to plaintiff, where.it connected through.a barway with a lane on plaintiff's portion of the premises running to a public highway. This road had, been used: by Huntington, for some years prior to the deeds, for the purpose of drawing wood and stone, from the wood, lot, The south half of the wood lot was covered with timber, and there was. also; upon it a stone quarry that had been opened in 1846, and to which the road ran; and this quarry the plaintiff had operated, and had taken out and drawn stone therefrom. The road ran from the wood lot in the most direct practicable route to the barway near the head of the lane, It has continued, to exist ever since the conveyances from Huntington, in the same location, connecting the same points, clearly defined and easy to be followed, and has been used by plaintiff whenever he had occasion to drive or pass back and forth between the lane and wood lot, without let or hindrance, until in May or June, 1892, when the defendant, having sown a portion of the east lot to grain, built a fence across it that intersected the road, but left no gate or barway in the fence where it crossed the road. The defendant neglected and refused to take down the fence or remove the obstruction after nqtice and request from the plaintiff so to do, and refused to recognize the right of the plaintiff to the roadway as used by him and his grantors for over forty years. This road was located, and open and visible, at the time of the conveyances by Hunttngton; and the kame way, with the identical track, has been used by the plaintiff ever since. It is, as it runs, about forty-seven rods, long, and about eight feet wide. The foregoing facts are. substantially as found by the court upon sufficient evidence.

Very clearly, the court did not err in holding that the plaintiff was entitled to the benefit of the reservation in the deed to the Skellingers, although it was not expressly maintained in the deed to him. Washb. Easem. (4th ed.) 40. That was clearly the intention of the parties, and both deeds are to be construed together. Hills v. Miller, 3 Paige, 254. Although the language of the reservation was somewhat indefinite, there was a practical location that binds the parties. Onthank v. Railroad Co., 71 N. Y. 194, 198. The surrounding circumstances and the use before and after the deeds leave no doubt on the subject.

The court held that the plaintiff as the owner of the dominant tenement, has the right to enter upon the roadway for the purpose of making and to make such repairs as, in view of the nature of the roadway and the surrounding circumstances, are necessary for the reasonable and convenient use thereof, and to-keep the same in good condition, for the convenient and practicable use of the same, doing no unnecessary injury to the defendant’s surrounding lands or whatever may be growing thereon. There is no doubt about the general rule as to the right of repair. Herman, v. Bobr erts, 119 N. Y. 42; 28 St. Rep. 843; Washb. Easem. 293. We see no good reason why the general role should not be applied to this case, substantially as it has been done by the trial court. The road was intended to" be permanent. Yery evidently, it needed repairs from time to time. The defendant claims that, whenever he desired to sow to grain any portion of the east lot that included 'any part of the road, he had a right to plow up the road.' This-had not been done until defendant did it, in 1892, and á reasonable construction of the reservation would not allow it. If the design was to have a definite route and a permanent road that could be safely used at any time allowed under the grant, it would be inconsistent with suclr design to give the defendant the right, at any time he chose, to materially injure its usefulness. The use of the owner must be consistent with the easement. Herman v. Roberts, 119 N. Y. 43; 28 St. Rep. 843.

The defendant claims that the court improperly construed the reservation. Several findings of law on the subject are excepted to, the most important of which, and the only one that need, be particularly discussed, is the sixth, which is as follows:

“ That the true construction and meaning of the words of said reservation are that the plaintiff has the right to pass and repass upon said roadway between the wood lot over the east lot to the barway at the head of said lane, with teams and to transport wood, stone, and the products obtained from said wood lot, at all times when the intervening land is not in good faith so sown with grain that the use thereof for a roadway would result in substantial injury to the owner of the fee, and at all times when there is sleighing, whether or not said east lot is sown with grain.”

It apparently was contended by the defendant at the trial that, whenever he sowed to grain any part of the east lot that included any part of the road, he could entirely close the road until the crop was off. The plaintiff claimed that bv by reason of his long user of the roads at all times without let or hindrance, although on some occasions the land was sown to grain, he had a right to pass over the route, ' although the lot was sown with grain, A construction was sought of the reservation, on the one hand, that would put it in the power of the owner of the lot at his will, by the use for grain of an insignificant part of the lot, to block the use of the entire road; and evidence was given tending to show that the sowing in 1892 was not in good faith, but for the purpose of stopping the drawing of stone by plaintiff from his quarry on the wood lot. On the other hand, a construction was sought that might, in effect, do away with the evident design of the reservation to give protection to the. owner when the lot was used in a particular way. ' At the time of the deed, the east lot was a definite inclosure, The road was entirely on it, and there was no fence that crossed it. The defendant, in 1892, divided the lot with a fence that crossed the road, and used for grain the portion next the wood lot. It is not to be supposed that the parties intended that the owner of the lot,, by the use of only a portion, and ulterior purposes, could get the benefit of the reservation wlien in'no substantial need of it for the protection of his grain. The easement ran with the land, and was perpetual, and its future usefnlnecs must be supposed to have been in contemplation of the parties. Having this situation in view, and the practical use that had without objection been given to the road up to 1892, we fail to find any good reason for the defendant to complain of the construction given by the court to the reservation. Provision was made that any fence across the roadway erected by defendant to protect his crops should have a convenient gate or barway at the crossing, and that plaintiff should close such gate or bars promptly after using the same.

It is further claimed by the defendant that costs should not have been given against him. They were given upon the ground that the action of the defendant made litigation necessary in order to protect the rights of the jalaintiff. Upon the trial, as appears from the record, the defendant claimed that the plaintiff had no right of way at all. It also appeared that defendant claimed that the plaintiff had no right to draw stone over the road. He claimed the right to plow it up whenever he sowed with grain. The costs were in the discretion of the court. The character of the litigation was within the particular observation of the trial court. We find no sufficient ground for saying that the discretion of the court on the subject was improperly exercised.

Judgment affirmed, with costs.

All concur.


text:
    Jennie N. Perry, App’lt, v. John S. Kent et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Execution against person — Vacation—Liability of sureties.
    Where the granting of a motion to set aside an execution against the person issued on a judgment of the supreme court involves a matter within the discretion of the court to determine, the sureties upon the bond given by defendant to procure his release from imprisonment under the execution are not liable .for an escape, where the sheriff discharges him pursuant to the order.
    Appeal from a judgment, dismissing the complaint on the merits.

      Howard C. Wiggins, for app’lt; Jones & Townsend, for resp’ts.
   Merwin, J.

— On the 17th March, 1894, the plaintiff recovered in the supreme court a judgment against John P. Hughes for the sum of $1,141.79 damages' and costs in an action brought by her •against Hughes for breach of promise of marriage. The judgment was on that day entered and docketed in Oneida county. On the 17th April, 1894, an execution was duly issued on the judgment to the sheriff of Oneida county, against the property of Hughes, and this was on the 18th June, 1894, duly returned wholly unsatisfied. On the 29th J une, 1894, an execution against the person of Hughes was in due form issued to the sheriff, and upon this Hughes was arrested on the 10th July, 1894, and committed to the common jail of Oneida county, and there detained until July 14, 1894. Upon that day the said John P. Hughes, together with John S. Kent'and John Gr. Hughes, as sureties, executed and delivered to the sheriff-a bond in the penal sum of $2,500, payable to the sheriff or to the plaintiff in the action, conditioned “ that if the above bounden John P. Hughes,'so in custody of the above named sheriff as aforesaid, shall remain a true and faithf ul prisoner, and shall not at any time or in any manner escape or go without the "liberties established for the jail of the county of Oneida, at Rome, N. Y, until discharged by the due course of law, then this-obligation to be. void ; otherwise to remain in full force and virtue.” Upon the execution and delivery of this bond, the said John P. Hughes was admitted by the sheriff to the liberties of the jail at-the city of Rome, the sureties in the bond having duly justified. Afterwards, . and on the lltli August, 1894, at a special term of the supreme court held in and for the county of Oneida, and after due notice to the plaintiff’s attorney in the action, a m.otion was-made in the action by the defendant John P. Hughes for an order vacating and setting aside the execution against the person, under section 572 of the Code of Civil Procedure, and after reading and filing affidavits, and hearing counsel on both sides, an order was made in and by which, after a recital that it was conceded that no order of arrest was ever granted in the action, and that plaintiff' objected to the jurisdiction of the court to grant the application, and objected that the court did not have jurisdiction to vacate the execution, or set the same aside, it was ordered “ that the executian against the person of the said defendant, John P. Hughes, now in the hands of the sheriff of Oneida county, and upon which he was arrested, and is now confined to the limits of the Rome jail, be vacated and set aside, upon the ground that'the said execution against the person of the defendant was not issued within ten days after the return of the execution against the property, as-provided by section 572 of the Code of Civil Procedure, and that the -sheriff discharge "the -said defendant from1 further-imprisonment under said execution.” This order was on the 13th August, 1894, duly entered in the Oneida county clerk’s office, and a copy duly served on the plaintiff’s attorneys in the action. On the same day a-copy, dulycerti-fied'bythe 'clerk, was «served onftbe sheriff,.and he on the same day, in pursuance thereof, discharged the said -P. Hughes. Afterward, and on - the same day,--after Hughes-went from the jail limits, the present action was commenced against the sureties "on the" bond. It is claimed that there was an escape, and that the defendants, "as sureties, are liable for-the amount of the judgment. From'the order'of the special term above referred to the plaintiff in the action took an appeál to'the- general term, where-the order was reversed in November, 1894 (33 N. Y. Supp. 1133), the cases of Sweet v. Norris, 12 Civ. Proc. R. 175 ; 45 Hun. 595 ; id. 110 N. Y. 668; and Renner v. Jewett, 54 St. Rep. 774’— being followed.

'The defendants'in the present action are claimed to be liable by reason of the act of the sheriff in discharging the defendant in the-execution in pursuance of the order of the special term. The claim, of"plaintiff is that the special term had no jurisdiction to make the order, and 'that it was therefore void, and no defense to"this action. It is not claimed that if the order was simply erroneous it would not be a protection to the sheriff and the sureties. Wilckens v. Willett, 40 N. Y. 524. The question, therefore, is, did the special term have jurisdiction to act?

In the motion made by the defendant in the execution, the special term was called upon, and it was its duty, to construe the provisions of section 572. In People v. Sturtevant, 9 N. Y. 267, it is said that the duty to decide is the test of jurisdiction. In that case, on the subject, generally of jurisdiction, it is said, quoting from Rhode Island v. State of Massachusetts, 12 Pet. 718:

“ Jurisdiction is the power to hear and determine the subject-matter in controversy between parties to a suit; to adjudicate, or exercise any judicial power over them. The question is whether, on the case before a court, their action is judicial or extrajudicial, — -with or without the authority of law to render a judgment or decree upon the rights of the litigants parties. If the law confers the power to render a judgment or decree, then the court had jurisdiction. What shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action, by hearing and determining it.”

In Hunt v. Hunt, 72 N. Y. 217, it is said:

“Jurisdiction of the subject-matter of an action is a power to adjudge concerning the general question involved therein, and is not dependent upon the state of facts which may appear in a particular case, or the ultimate existence of a good cause of action in the plaintiff therein.”

In Pinckney v. Hagerman, 4 Lans. 374, 377, it is said, of an order setting aside a body execution:

• “ That the court had power over its own process, to vacate it and set it aside, at any stage of the proceedings under it, cannot be questioned. And it is of no consequence to the question under consideration on what evidence or grounds the court proceeded in setting aside the execution, and discharging the prisoner under it On whatever ground it was made, the sheriff was bound to obey the order, and is therefor justified in obeying it.”

In the same case, in the court of appeals (53 N. Y. 31, 34), it is said:

“The court had jurisdiction of the action, and complete power and control over the proceedings and process in it; and hence it might set aside this execution, as one of the proceedings and as a process in the action.”

It cannot well be said that there was here an entire absence of judicial authority to act. People ex rel. Cauffman v. Van Buren, 136 N. Y. 252; 49 St. Rep. 378. Here was an action in the supreme court, and a controversy between the parties over the process issued for the enforcement of the judgment The construction of section 572 of the Code was in dispute, and judicial utterances on the subject were not in entire harmony. The precise question was whether section 572 applied to the case, there never having been an order of arrest granted in the action; and, very clearly, that was a matter for the court to decide. It was called upon to act in regard to a matter of procedure in the action, and it had full jurisdiction to determine questions of that kind. We are of the opinion that the special term had jurisdiction, and that the order made was not void. It follows that the judgment appealed from should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Putnam, J.

text:
    George E. Beardsley, App’lt, v. Willis G. Pope, Resp’t.

      (Supreme Court, General Term,, Third Department,

      Filed July 6, 1895.)

    Justice’s court — Judgment—Time oe entry.
    An attorney, under his authority to appear for the defendant, may stipulate, upon the final submission of the cause, that the justice may decide it and enter judgment after the time prescribed by section 3015 of the Code.
    Appeal from an order, setting aside an. execution and docket of the judgment.

      H. E. Barnard, for app’lt; A. W. Boynton, for resp’t.
   Putnam, J.

—There is no substantial conflict as to the facts. The action was commenced before a justice of the peace of Clinton county by the issuance of a summons returnable May 26, 1894. At that time Mr. Boynton appeared for the defendant, as her attorney, and made the usual oath as to his authority. Issue was joined by a written complaint and answer, and the cause adjourned to June 2d, at which time the trial was had; the defendant being sworn as a witness in his own behalf. An adjournment was then taken to July 2, 1894, when the parties appeared by their attorneys and summed up and submitted the case. At this time the attorneys of the respective parties, on the minutes of the justice, entered into the following written stipulation:

“ Thirty days additional time is hereby given to the justice to decide this case in, and to render judgment herein. “Plattsburgh, N. Y., July 2nd, 1894.
“ H. E. Barnard, Attorney for Plaintiff.
“ A. W. Boynton, Attorney for Defendant.”

The justice on the 4th day of August, 1894, rendered judgment in favor of the plaintiff for $25.12, damages and costs. This judgment was afterwards docketed in the Clinton county clerk’s office, a,nd-a transcript thereof filed, and the judgment docketed in Essex county, and an execution issued thereon in the latter county. The county judge of Essex county, on motion of defendant, after-wards set aside the docket of the judgment, and the execution thereon, upon the ground that the attorney for the defendant had no authority to enter into the stipulation granting the justice additional time in which to render his judgment, and hence that the judgment in fact entered thirty-two days after the submission of the cause was absolutely void. On the motion before the county judge, both the defendant and his attorney, Mr. Boynton, in their affidavits, state that the latter entered into the stipulation without the knowledge of or authority from the defendant.

Under the provisions of the Code of Civil Procedure, a party may prosecute or defend an action in a justices court by attorney. Section 2886. The authority of the attorney may be shown by his oral testimony on the trial. Section 2890. Syracuse Moulding Co. v. Squires, 39 St. Rep. 824. Hence, in the case under consideration, Mr. Boynton’s authority to appear as attorney for the defendant was properly proven by his own oath. He was, therefore, the attorney of the defendant in the action, with the usual powers of an attorney, and must be deemed to have had power to manage and control the conduct of the suit. See Village of Suspension Bridge v. Bedford, 10 St. Rep. 850. As such attorney, he could answer for the defendant, as he did. He could consent to the adjournment to July 2d for the purpose of summing up the case, and, in our opinion, he could also stipulate to give the justice additional time in which to render his decision. The stipulation in question was executed on the final submission of the case to the justice. Until after such submission, the authority of Mr. Boynton to appear for the defendant, and to act for him in the action, continued. He was, it is true, the agent of the defendant; but, as attorney, he was an agent with full power to control the conduct of the suit, and, as such, had power to enter into the stipulation in question on the final submission of the case. This case is not like that of Flynn v. Hancock, 46 Hun, 368, where an oral stipulation was entered into by the attorneys of the parties out of the office of the justice; not in the presence of each other, and after the final submission of the cause. The stipulation in this case was made by the attorneys on the trial, on the final submission of the cause, on the minutes of the justice, and when Mr. Boynton was acting as attorney for the defendant, and had a right to under his employment as attorney. The affidavits made by Mr. Boynton and the defendant that the stipulation in question was made by the former without the knowledge of or authority from the latter cannot be deemed as intended to contradict the oral testimony of Mr. Boynton, made at the time of the joinder of issue, as to his authority to appear for the defendant as attorney in the action, and must be understood to mean that Mr. Boynton had no special authority from the defendant to give the justice additional time in which to render his decision, and as expressing the opinion of Mr. Boynton and his client that the general power of the former as attorney did not confer on him authority to enter into the stipulation. We think, however, that as attorney in the action before the justice, until after the final submission of the case, Mr. Boynton had ample power to act for his client. He could do whatever his client could have done, if present, in the conduct of the case. He could answer for him, adjourn the trial from time to time, enter into stipulations, and consent to extend or adjourn the time in which the justice should render his decision. Section 2886 of the Civil Code, which provides that a party to an action before a justice of the peace may appear and prosecute or defend by attorney, we think, confers upon a duly authorized attorney in a justice’s court full power and authority to represent his client during the trial and until after the final submission of the cause. His authority, undoubtedly, terminates at that time; but until then we see no reason to doubt that his client is bound by his acts, admissions, and stipulations made in the conduct of the cause.

Although the statute provides that a justice of the peace must render.judgment and enter it on his docket book within four days after the- submission of a cause to him .(Civ. Code, § 8015), it is held that this provision of the statute may be waived. Barnes v. Badger, 41 Barb. 98 ; Keating v. Serrell, 5 Daly, 278 ; In re New York El. Ry. Co., 7 Hun, 289-241. A party may waive a constitutional provision made for his benefit. Embury v. Conner, 3 N. Y. 511; Fiero v. Reynolds, 20 Barb. 275. We think the' parties in this case, by their attorneys, duly extended the time in which the justice should render his decision, thus waiving the statutory requirement that the judgment should be entered'within four days after the submission of the case, and hence that the judgment rendered is valid.

It follows that the order appealed from should be reversed, with $10 costs and disbursements, and the motion denied, with costs.

All concur.


author: Fursman, J.

text:
    Susan Baker, App'lt, v. William Moore, as Executor, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Appeal — Referee's decision.
    Where the referee gives no basis for his decision, and it is impossible to-discover on which ground set forth in the motion to confirm.the decision' made, or whether on all of them, the judgment, entered thereon, cannot be reviewed.
    3. Same — Remand of cause to referee.
    The general term of the supreme court will, where the referee makes no findings of fact or conplusions of law,,remand the cause to.the ¡referee,,to-have the grounds of his decision stated, if the case involves important questions, and a refusal ito review may work an injustice to appellant.
    Appeal from a judgment, entered in favor of defendant.

      J. M. Whitman, for app’lt; King & Ashley, for resp’t.
   Fursman, J.

— In June, 1890, a claim against the estate of Abel Scripture, deceased, was presented by the plaintiff to the executor of his last will, and by him rejected. Thereafter, in due course, the matter was1 referred by the surrogate. The plaintiff presented her evidence in full before the referee, and at the close thereof a motion was made on behalf of the executor to “dismiss the claim and nonsuit the plaintiff on tho merits’’ on five several grounds. Thereupon the referee granted the motion, and made and filed his. decision as follows (after the usual formal statements):

“I do order, decide, and direct that the said motion be granted, and that the plaintiff’s complaint or claim * * * be dismissed on the merits, and that the defendant have judgment dismissing the same with costs, and I order judgment accordingly.”

Afterwards, on motion, this decision was confirmed at special term. Ho other report or decision was made. This decision is not a compliance with section 1022 of the Gode of Civil Procedure. There is no fact found, nor any conclusion of law stated, nor are any grounds of the decision set forth, as required by this section. A considerable amount of evidence was given which, upon such a motion, must be taken to be true.' The referee gives no basis for his decision, and it is impossible to discover on which ground set forth in the motion the decision was made, or whether on all o£ them. It has been repeatedly held by the court of appeals that in such case the judgment cannot be reviewed. In Wood v. Lary, 124 N. Y. 83; 85 St. Rep. 53, this was distinctly decided, and at page 87, 124 N. Y., the court say :

“But in every case triable before a court without a jury or heard by a referee, if any evidence be presented, a decision stating separately the facts found and the conclusions of law must be made. If it be not done, the judgment cannot be reviewed.”

It is true that the decision was prior to the amendment to section 1022, allowing a- decision “stating concisely the grounds” upon which it is made to be substituted for separate findings of fact and conclusions of law, but it is clear that the same rule must apply in either case. The latter portion of the section is only made to apply to cases where there are no separate findings, and entirely omits any reference to decisions which do not state the grounds on which they are based. In this case there was an unmistakable decision, and no grounds thereof are stated. The case, therefore, falls within the rule aboved stated. McNaughton v. Osgood, 114 N. Y. 574; 24 St. Rep. 531; Gilman v. Prentice, 132 N. Y. 488, 491; 44 St. Rep. 611. The same rule prevails in the supreme court. Nobis v. Pollock, 53 Hun, 441; 26 St. Rep. 155; People v. Ranson, 2 St. Rep. 78; Drury v. Wigg, 19 Wkly. Dig. 417. An examination of this case discloses some important questions, however, which we think ought to be reviewed. It is possible that to refuse such review for the reason above given might work an injustice to the plaintiff. A motion might have been made at special term to send the case back to the referee to have the grounds of his decision stated, as required by section 1022, but this court undoubtedly has the same power, and, we think, ought to exercise it in the present case. This course was pursued in Nobis v. Pollock, aboved cited, and may properly be followed here. Without expressing an opinion upon the other questions raised'on this appeal, this case is ‘therefore sent back to the referee, to have his decision amended in accordance with this opinion.

All concur.


text:
    Jessie H. Bender, Resp’t, v. Harry H. Bender, as Administrator, etc., App’lt

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Bill of particulars — When hot granted.
    The mere ignorance of an administrator as to whether his intestate owed a debt, evidenced by a written admission by the deceased, does not entitle him to a bill of particulars of the circumstances out of which the indebtedness arose.

      2. Same.
    In the absence of proof that there is an answer to the complaint, a bill of particulars is never compelled.
    Appeal from an order, denying a motion for a bill of particulars.
    The instrument sued on is as follows:
    Whereas, I undersigned, Franklin W. Bender, am indebted to W. Howard Bender in the sum of one thousand dollars from March 1, 1881: Now, for securing the amount so due him, together with interest thereon, I, the said Franklin W. Bender, do hereby sell, assign, transfer, and convey unto the said W. Howard Bender sufficient of the moneys or property which I may be entitled to receive out of my father’s estate at his death to pay the aforesaid amount, together with interest thereon; and I do hereby authorize and empower the executor or executors of my said father’s estate, if any there should be appointed, to pay the said amount, with interest, to said W. Howard Bender, his heirs or assigns, and charge the same as against my portion in said estate; and, in the event of my father dying without a will, then I hereby authorize and empower the administrator or administratrix of his estate to pay said amount, and to charge the same against my portion of my father’s estate.
    In witness whereof, I have hereunto set my hand and seal, this (19th) nineteenth day of March, eighteen hundred and eighty-one.
    Franklin W. Bender. (L. S.)

      Scherer & Downs (Robert G. Scherer, of counsel), for app’lt; Hun & Johnston (Marcus T. Hun, of counsel), for resp’t
   Fursman, J.

— This action is brought upon a sealed instrument, a copy of which is fully set out in the complaint. The instrument is signed by. the defendant’s intestate. In it he acknowledges an indebtedness of $1,000 to the plaintiff’s assignor, and assigns to him sufficient of the moneys or property to which he may be entitled out of his father’s estate at his death to pay that sum, with interest, and directs the executors or administrators (as the case may be) to pay the same, and charge such payment against this portion of such estate. The complaint avers the death of the father leaving a last will, and that the portion of his estate bequeathed to the maker of the instrument is more than sufficient to pay the claim represented thereby. The maker of this instrument is dead, and the defendant is his administrator. Before answering, the defendant moved for a bill of particulars, which was denied, and this appeal is from the order denying such motion. The motion was made upon the complaint, and upon an affidavit of the defendant, which sets forth that he intends to defend the action, but is wholly ignorant of the particulars of the claim alleged in the complaint, and has no means of acquiring knowledge thereof sufficient to enable him to answer. There is nothing whatever stated in this affidavit tending to show that the defendant supposes there is any defense to the cause of action set forth in the complaint. The paper upon which the action-is brought is fully set forth in the complaint. It in terms confesses an indebtedness, and is under seal.

The mere ignorance of an administrator as to whether his intestate owed a-debt evidenced by a written admission of the deceased does not entitle him. to a bill of particulars of the circumstances out of which the indebtedness arose. Ray v. Manhattan Trust Co., 53 St. Rep. 566; Husson v. Oppenheimer, 45 St. Rep. 618; opinion of Pratt, J. ; Mertaga v. Bennett, 39 St. Rep. 367. There is no pretense in these papers that there is any defense to the cause of action set out in the complaint. This motion is evidently an attempt on the part of the defendant to ascertain whether, by means of a bill of particulars, some defense may not be discovered of which at this time the defendant has neither knowledge nor information. This is not the office of a bill of particulars. The effect of a bill of particulars is either to enlarge or limit the scope of a complaint or counterclaim and, in the absence of proof that there is a defense to the one or an answer to the other, a bill of particulars is never compelled. Moreover, the defendant’s intestate was estopped by his seal to deny consideration of the instrument sued upon, and his personal representive is likewise estopped. Talbert v. Storum, 50 St. Rep. 267.

The order should be affirmed, with $10 costs and printing disbursements.

Putnam. J., concurs; Herrick, J., not acting.


author: Mayham, P. J.

text:
    John Clancy, App,lt, v. Troy and Lansingburgh Railroad Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)
    Negligence — Oontrlbutoby.
    Where the plaintiff, by his own act, contributes to the injury of which he complains, and undertakes to determine, at his own peril, whether or not he can cross the defendant’s track in safety, the ri-k of that determination is his own, for which the defendant cannot be held responsible.
    Appeal from a judgment entered on a nonsuit.

      John T. Norton, (James B. Egan, of counsel), for app’lt; Thomas S. Fagan, for resp't.
   Mayham, P. J.

— This action was prosecuted by the plaintiff (appellant) against the defendant for alleged negligence of the defendant in the management of one of its motor cars, by which it collided with the plaintiff’s wagon, resulting in an injury to the wagon and to the person of the plaintiff. The case discloses that the plaintiff was driving a truck wagon loaded with beer casks, and drawn by a team of heavy horses, and that in crossing the track of the defendant’s railroad the motor car on said track collided with the hind wheels of the plaintiff’s wagon, breaking the axle of the same, by reason of which the plaintiff was precipitated upon the pavement and the wheel of his wagon passed over his foot, inflicting injury upon the plaintiff’s person. On the trial it appeared that the injury occurred at the intersection of Eiver and Congress streets, in the city, of Troy. The plaintiff was driving his wagon along Congress street, on which there are two tracks of the Electric Railroad, which cross the tracks of. the defendant’s railroad at the intersection of Congress and River streets. At about 5:3Q o’clock, on January 27, 1892, as plaintiff was driving from Congress street bridge,, going east, which the evidence shows was a down grade, when within about fifteen feet of the River street crossing he discovered one of defendant’s motor cars approaching such crossing, at a distance of from fifty to seventy-five feet from the same. The case discloses, by the plantiff’s testimony, that he, was driving on the Congress street track, and that a motor was appi'oaphing in the rear. Instead of turning from such track, he ■ endeavored to avoid collision with the Congress street car by hurry- • ing his team a,cross the defendant’s track, hoping to do so in time to avoid a collision with the defendant’s motor car. In this he misjudged, and thé car collided with the wagon, as above stated. It appears from the evidence that the plaintiff made no effort to stop his team and wagon before reaching the defendant’s track, nor is there any evidence that the conductor of defendant’s motor car made any effort to stop it before the collision.

Upon these facts, about which there seems to be no conflict, the . defendant, at the conclusion of the plaintiff’s testimony, moved.for a nonsuit, on the ground that the evidence did not disclose or tend to prove that the plaintiff was free from contributory negligence. This motion was granted by the trial judge, to which the plaintiff duly excepted. The plantiff also asked the trial judge to submit, as a question of fact, to the jury, the question whether or not the plaintiff was guilty of contributory negligence. The judge refused to submit that question, to which plaintiff also excepted. It is not easy to fix the exact boundary between the question of contributory negligence as a question of law and that of contributory negligence as a question of laet, so as to determine whether or not it is the duty of the trial judge to submit it to the jury. But it seems quite clear in this case that the plaintiff, by his own act, contributed to the injury of which lie complains, and that he undertook to determine, at his own peril whether or not he could cross defendant's track in safety, and that the risk of that determination was his own, for which the defendant cannot be held responsible. The law is well settled that where the defendant is negligent, if the plaintiff, by his own negligent act, contributes to the injury of which he complains, he cannot have recourse for damages for that injury to the defendant.

I am therefore of opinion that the nonsuit was right.

Judgment affirmed, with costs.

All concur.


author: McAdam, J.

text:
    De Witt, Pl’ff, v. Gunn, Def’t.

      (New York Superior Court, Special Term,

      Filed May, 1895.)

    Contempt — ¡Fine—Supplementary proceedings
    Under section 3385 of the Code, a person, adjudged guilty of contempt, in not appearing and submitting to an examination in supplementary proceedings, can be fined only the costs of the proceedings. '

      Motion to punish defendant for a contempt.

      Martin & Smith, for the application.
   McAdam, J.

— -The application is to punish the defendant for contempt in not appearing and submitting to an examination pursuant to an adjournmerlt had in supplementary proceedings. The proposed order fines the defendant the entire amount of the judgment ($512.50), and directs liis imprisonment till the payment of the fine. Section 2285 of the" Code provides "that, “where the misconduct proved consists of an omission to perform an act or duty which it is yet in the power of the defendant to perform," he shall be imprisoned only until he has performed it,” and the fine is limited to the actual injury. Fenlon v. Dempsey, 26 St. Rep. 248; id., 50 Hun, 131; 19 St. Rep. 231. Counsel will therefore amend the order by fining the defendant $30, the costs of the supplementary proceedings, and directing his imprisonment until he pays said fine and submits to the required examination.


author: Daly, C. J.

text:
    Nicoll, Pl’ff, v. Palmer et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed May, 1895.)

    1. Removal of cause — -District court to common fleas.
    An application for the removal of a cause from the district court to the common pleas may be made by one of several defendants, where he alone was served with the summons and appeared.
    2. Same — Undertaking.
    An order for such removal will not be set aside because of an erroneous recital in the undertaking filed by the defendant upon such removal, but such undertaking will be amended.
    ■ Motion for an order, remanding the cause to the district court, from which it had been removed on the application of one of the defendants.

      William C. Timm, for pl’ff; Murphey & Metcalf for def’t Eddy Palmer.
   Daly, C. J.

— Motion by plaintiff for an order remanding this cause,back to the district court, from which it was removed on the application of one of the defendants (Eddy Palmer) under section 3216 of the Code. That section provides that the defendant in an action where the damage claimed exceeds $100, after issue is joined, and before an adjournment has been granted upon his application, may apply to the justice of the court in which the action is brought for an order removing the action into the court of common pleas, and that such order must be granted upon the defendants filing with the clerk an undertaking to pay the amount of any judgment that may be recovered against him in the latter court. In this case Eddy Palmer was the only defendant served with the summons, and the only one who appeared before the justice and made application for removal to this court. Such application was granted upon his filing an undertaking reciting appearance of defendants, the joining of issue by them, and application by them for removal. It is now contended by the plaintiff that the cause was improperly removed — First, because the application for removal was not made by both defendants ; second, if properly made by one defendant, the undertaking is irregular in not reciting that fact. There seems to be no difficulty in holding that in a case like the present the application for removal may be made by the sole defendant who was served with the summons, and who appeared in the action. The plaintiff cannot complain that the defendant whom he did not serve or bring into court did not join in the application. As between the plaintiff and the defendant served, the latter was the sole defendant before the court at the return of the summons. If his codefendant was jointly liable with him, the joint liability is not affected by the removal. If we were to hold otherwise, a defendant, without fault on his part, might be deprived of the right of removal because his codeiendant could not be found in the jurisdiction, or service upon him was intentionally omitted. But, while the justice had power to remove this cause upon the application of the defendant who was served and who appeared, the undertaking for removal should have recited the facts as they existed. Tins undertaking incorrectly states that the defendants appeared and joined issue and applied for the removal, and such recital may affect the liability of the surety upon the undertaking. We have the power, however, to remand the undertaking to the justice for the purpose of amendment (Levy v. Scheringer, 19 Civ. Proc. R. 346; 13 Supp. 560), and an order therefor will be made. Upon the execution of the amended undertaking, it must be returned to this court, and the court will proceed in the action.

Motion granted for this purpose only, and otherwise denied, without costs to either party.


author:
Putnam, J.
      Mayham, P. J.

text:
    William Francisco, App’lt, v. Troy and Lansingburgh Railroad Company, Resp't.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    1. Ne&li&ence — Contributory.
    It is not negligence per se for a passenger, when directed so to do, to stand on the platform of a motor car, holding with both hands to the iron roc} behind him, though the car is in rapid motion, at a place where he knew there were sudden curves.
    3. Same — Question for jury.
    Under such circumstances, the question of excessive speed and of the carrier’s negligence is for the jury, where the car is going at such a high rate of speed, which is not decreased at the curve, as to throw the passengers, both those sitting down and those standing up, on their knees.
    Appeal from a judgment dismissing the complaint.

      Isaiah Fellows, Jr., for app’lt; Thomas S. Fagan, for resp’t.
   Putnam, J.

— This is an appeal by the plaintiff from a judgment of nonsuit. Evidence was given upon the trial from which the jury, if allowed to pass upon the questions involved in the case, could have found the following facts: Plaintiff, about 8 o’clock on the evening of January 81,1892, at Waterford, boarded defendant’s car, running between that place and Cohoes. He was smoking at the time, and was directed to go upon the front platform by the conductor. He did so, and, at the time of the accident below mentioned, was standing on said platform, with both hands behind him, Holding on to an iron railing in front of the window. There were several curves between Waterford and Cohoes, one of which, known as “ Bush Curtis Corner,” was described as a sharp curve, turning from one street to another. The evidence showed that the night was dark. As the car of defendant in which plaintiff was riding approached the Bush Curtis corner, it was going at a high rate of speed, and did not slow up. As the car rounded the corner, going rapidly, it gave a jerk, throwing plaintiff off, onto the ground, and injuring him. For this injury the action was brought.

The trial court, after the plaintiff had rested, granted a non-suit, for the alleged reason that he had failed to show negligence on the part of the defendant, and the absence of contributory negligence on the part of himself. On the first trial of the case, it was submitted to the jury, and plaintiff had a verdict. Evidence was offered by defendant, and a different state of facts appeared from what was shown on the trial now being reviewed by us. On the first trial, defendant proved that plaintiff, at the time of the accident, was standing on the step on the forward end of the car, on the right hand side; that he.had both feet on the step. We thought that it was contributory negligence for a passenger, while a car was in rapid motion, at a place where he knew there were sudden curves, to stand on the steps of a car, especially as there was room for him on the inside. But on this trial we have found a different state of facts. The plaintiff’s witnesses only have been sworn, and it now appears that plaintiff, at the time of the accident, was standing on the platform, instead of the step. He had been directed to that place by defendant’s conductor. At, the time of the accident, he stood on the said platform, as directed,, with his two hands firmly grasping an iron railing behind him. Under the facts appearing on the present trial, that the act of plaintiff in standing on the platform was not negligence per se is well settled. Nolan v. Railroad Co., 87 N. Y. 63 ; Meesel v. Railroad Co., 8 Allen, 234; Railroad Co. v. Walling, 97 Pa. St. 55.

It was a question of fact for the jury, under all the circumstances, whether or not the plaintiff was free from contributory negligence. Nolan v. Railroad Co., supra; Hart v. Railroad Bridge Co., 80 N. Y. 622; Chisholm v. State, 141 id. 246; 56 St. Rep. 811; Massoth v. Canal Co., 64 N. Y. 524-529. There are circumstances appearing from the testimony, referred to in the brief of the learned counsel for the respondent, from which the jury miglp; have found contributory negligence on the part of plaintiff. But the facts so commented upon should have been submitted to and discussed before the jury. We are unable to determine, as matter of law, from the testimony produced by plaintiff, that he was guilty of contributory negligence. It was a case where the. inferences from the facts should, have been passed upon by a jury. It remains, therefore, to consider whether there was testimony in the case indicating negligence on the part of the defendant that ■should have been submitted to the jury!

It was satisfactorily shown that the car was going at a high .rate of speed, and that such speed was not decreased while turning the Bush Curtis corner. At the turn the car gave a sudden jerk, and threw the plaintiE to the ground. The witness Spodden testified that the lurch of the car threw him. on his knees. Wolf said it threw him against the door, his head striking it, Martin testified that, when the car went around the corner, tliere was a sudden jerk, and it threw' him over on his knees, against the people on the other side. Dunwoodie testified that he was sitting down, and that the lurch of the car at the time in question did not throw him very far, but it threw him upon his kness, so that his knees struck against the side of the car. Lewis said: “I fell forward,

.and,"'when I fell forward, I hung still tighter," and come back to where I was,” etc. We think the evidence of these witnesses we have referred to, and also the other evidence in the case, indicated that the defendant’s car went around a sharp curve, without at all slowing up, and at a high and dangerous rate of speed, and hence that there was evidence tending to show negligence on the part of the defendant which the tidal court should have submitted to the jury. Werle v. Railroad Co., 98 N. Y 650.

Coleman v. Second Av. R. R. Co., 114 N. Y. 609 ; 24 St. Rep. 566, cited by the learned counsel for respondent, is not a parallel case. In that action the plaintiE recovered a judgment. The accident to Coleman was caused by his leaving a seat on the car of the defendant, having platforms on each "side of the seats, and going onto one of said platforms, and, while there, coming in contact with a column of the elevated road near which the defendant’s tracks ran. On the trial, defendant requested the court to charge the jury that if they believed “ that the plaintiE left his seat unnecessarily and voluntarily, and while the car was in motion, without requesting the driver or conductor to stop the same, and went upon the side of the car, and swung himself outside of the line of the step of the car, and, while so doing, came in contact with the column of the elevated railway, the defendant was entitled to a verdict.” The court declined to so charge, and for that error the judgment was reversed. It was properly held that if, without reasonable cause, the plaintiE left his seat, where he was safe, and went onto a platform on the side of the car, and came in contact with a permanent structure near defendant’s road, he could not recover. In that case he voluntarily, and without sufficient cause,- took upon himself the risk of the accident. It will be seen that in the case referred to the facts were not at all like those in the one under consideration.

On the whole, we think the case presented questions of fact which should have been submitted to the jury, and hence that the judgment must be reversed, and a new trial granted; costs to Múde the event.

Herrick, J., concurs.

Mayham, P. J.

(dissenting). — On the former appeal we held that there was not sufficient "evidence of the defendant’s negligence to authorize the submission of the case to the jury. I do not see that the evidence on that branch of the case has been changed on this trial, and cannot, therefore, concur in ordering a new trial. Proof of defendant’s negligence in this class of cases is always a necessary prerequisite to a recovery.


text:
    James H. Doolittle, Resp’t, v. Melinda Gambee, Appl’t.

      (Supreme. Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Witness —Reopening- cboss-examination.
    The right to resume the cross-examination, after the witness has been once fully cross-examined and dismissed, is a matter within the discretion of the court.
    2. Same — Impeachment.
    A witness cannot be impeached by asking him disparaging questions as to his relation with the party for whom he testified.
    Appeal from a judgment entered on the report of a referee.

      Edgar N. Wilson, for app’lt; M. E. Driscoll, for resp’t ,
   Merwin,

J. — The main issue at the trial was whether the sale was to the defendant, or to her husband, Martin Gambee. Upon this subject the appellant claims that the finding of the referee is against the weight of the evidence. In this view, we have examined the evidence, and are of the opinion that the finding of the referee on the question of the sale and delivery should not be disturbed.

Our attention is called to a number of exceptions to rulings upon questions of evidence. The defendant owned an hotel. She and her husband lived in it. She looked after the kitchen and the cooking, and he looked after the outside work, the bar and billiard room, and the license was in- his name. He had previously bought goods of the plaintiff, or of a firm of which the plaintiff was a member, that had not been fully paid for. The defendant offered to show that in the years 1892 and 1898 other parties had sold and shipped to the husband liquors and cigars, and looked to him for p iv. This, being objected to, was properly excluded. The transactions of the husband with other parties did not affect the plaintiff.

The defendant offered to prove by one Goodman that the plaintiff, without his consent or authority, shipped to his (Goodman’s) wife liquors which were ordered by him. The time was not stated, and Goodman lived in a different place. This offer was excluded. We see no good reason for admitting the evidence. The issue here was whether the defendant ordered the goods.

One Wilson' was the main witness of the plaintiff in regard to five of the six sales of goods in controversy. The defendant claims that she was unduly restricted, by the rulings of the referee, in her efforts to discredit the testimony of Wilson. The plaintiff, in making out his case called Wilson as a witness, and he was then cross-examined at length, and his cross examination was apparently completed. After the plaintiff rested'his case, and after the defendant introduced most of her evidence on the main issue, the defendant applied for and obtained leave to amend the answer by setting up full payment of plaintiff’s claim. Then, apparently at an. adjourned day, the defendant called Wilson as a witness, and examined'him on the subject of payments made to him as the agent of the plaintiff, and showed by him that a number had been made that were not credited in full,'or at all, bythe plaintiff in the complaint. After examining Wilson as to the payments, no otlier witness being called by the defendant on the subject, the counsel, for the defendant, for tlie purpose of discrediting the testimony given by Wilson on the former hearing offered to show by him that while lie was acting for the plaintiff he made statements to one Goodman that contradicted his evidence while upon the stand in regard to Mr. Gambee and the account in this action. This was objected to as improper, irrelevant, immaterial, and heaisay, and as reopening the case, and also that the witness is now called by the defendant, and she cannot cross-examine her own witness as to statements made by him to somebody else for the purpose of discrediting him. The objections were sustained, the court saying that specific questions might be put, and then ruled upon. The. following questions were then asked:

l'Q. Did you say to Mr. Goodman, in a conversation that you. had with him in reference to this account of Mr. Gambee’s that, you did not know what you were going todo with Mart (meaning Martin Gambee) ? That yon only got barely enough to pay your livery, and a little over ?’’ “Q. Did you say to him, upon au occasion, and in reference to this account, before the commencement of this action, and subsequent to the time of the conversation concerning which the last question was put, that Martin was doing better — that he had paid the account down pretty well ?”

These were objected to as improper, and objection sustained,, and exception taken.

The defendant, by calling Wilson as to the payments, made him. her own witness, as to the new matter. People v. Oyer and Terminer County Court of N. Y, 83 N. Y. 459. Whether this pre-" eluded her from discrediting him as to his former evidence, is not. entirely clear. People v. Moore, 15 Wend. 419; Mather v. Parsons, 32 Hun, 338, 343; Sawrey v. Murrell, 2 Hayw. (N. C) 397; Barker v. Bell, 46 Ala. 216, cited in Starkie. Ev. (10th ed.) 244. Assuming it did not, then the examination as to the statements of the witness is to be deemed cross-examination, and it was.an effort to. recross-examine after the witness had been once fully cross-examined and dismissed, and upon another day. Ordinarily the extent of such cross-examination is discretionary. Van Cort v. Van Cort, 4 Edw. Ch. 621; Sheldon v. Wood, 2 Bosw. 269; Knight v. Cunnington, 6 Hun, 100. The statements in the question put, if made by Wilson, were not necessarily inconsistent with his testimony that the orders were given by the defendant. Concededly, all the payments we'ré made by the husband, and he was-the manager of the concern. Under the circumstances presented, we are of the opinion that no error was committed.

A number of disparaging questions were put to the witness as to his relations, with the plaintiff in regard to the misappropriation of moneys collected by him as agent, and these were properly excluded, within the rule laid down in President, etc., v. Loomis, 32 N. Y. 127. A witness was asked whether Wilson ever stated to him that he had straightened up or fixed up with the plaintiff, and had given him a bond for the money he had collected, or was to collect. This was not important, and was properly excluded. The defendant sought to prove by one Babcock certain specific acts of Wilson, that, as defendant claimed, affected his credibility. The case of Conley v. Meeker, 85 N. Y. 618, sustains the ruling of the referee excluding the evidence. The defendant sought to prove the general character of Wilson, but, as objection to it by the plaintiff seems to have been waived before the witness left the stand, the defendant was not prejudiced by the ruling of the referee on the subject. We find no good reason for disturbing the judgment, and it should be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    David Johnson, Resp’t, v. Orange E. Kathan, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    „ Damages — Conversion.
    In action for conversion of trees, substantial damages for their cutting and removal cannot be recovered on evidence as to their value at a place other than where they were cut, unless the cost of removal is shown.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      J. S. L'Amoreaux, for app’lt, James W. Verbeck, for resp’t.
   Fursman, J.

— This action was brought to recover damages for an alleged trespass of the defendant in entering upon the plaintiff’s lands and cutting and carrying away and converting to his own use a quantity of trees growing thereon. The plaintiff claims treble damages, and the jury having rendered a verdict for $260 actual damages, judgment was entered thereon for $780, besides costs. On the coming in of the verdict a motion was made to set it aside, on the grounds, among others, that the damages awarded were excessive, and that the evidence did not authorize the verdict rendered. This motion was denied, and an exception duly taken. There is no proof in the case authorizing a recovery for injuries to the land and the learned trial judge correctly field that the recovery if any, must be for the value of the property at the place where it was taken. Dwight v. Elmira C. & N. Railroad Co., 132 N. Y. 199 ; 43 St. Rep. 723. The trees were cut down and taken from premises belonging to and in possession of the plaintiff, situate on a mountain in the town of Day. Their removal from that place constituted the conversion, and their value at that place at that time of the conversion is the meas ure of damages. There is no proof whatever of the value of the property at the place. The trees were cut and carried away from a lot on Wait Mountain. There is evidence of the value of the logs on skids at the roadside at the foot of the mountain, but there is no evidence of the cost of removing them from the place where they were convertéd to the roadside. Bach witness who testified upon the subject refused to give an opinion as to their value at the place of conversion, and gave as a reason that he didn’t know the cost of removal to the skids, or to the mill where they were to be manufactured into lumber. It is thus made apparent that the value of the property on the lot is its valuó on the skids by the roadside, or at tho mill, less the cost of getting it there, of which there is no proof. It is true, and the learned judge correctly charged, that the plaintiff was entitled to recover at least six cents damages, because the property is presumed to have some value, but the verdict was substantial, and there is no evidence to justify it. The action was tried and submitted to the jury upon the theory that the plaintiff was entitled to recover the value of the property taken away, and the right of recovery for injury to the land occasioned by the trespass was abandoned. • The measure of damages, therefore, was the value of the property taken at the time and place of the conversion. As to this there is no evidence, and the jury were permitted to guess what the value might be at such time and place, from evidence of the value at another time and place. This we think was error. Kennedy v. Strong, 1Johns. 128; Dillenback v. Jerome, 7 Cow. 294; Field, Dam. §§ 781-795. Objections which seem to have some force are made also to evidence received, notwithstanding defendant’s objections- and exceptions; but it is not nécessary now to consider them.

The judgment should be reversed, and a néw ‘trial graníéd, with costs to abide the event.

All concur.


text:
    Frances E. Muller, Resp’t, v. Willard C. Wilcox, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 6, 1895.)

    Fraud — Proof.
    The evidence, in this case, was held sufficient to sustain a finding that the defendant obtained possession of plaintiff’s goods by fraud.
    Appeal from a judgment in'favor of plaintiff.

      R Corbin, for app’lt; John S. Pindar, for resp’t.
   Fursman, J.

— In Séptember, 1890, the plaintiff’s husband owed a debt of $60 to the defendant. The defendant thereupon wrote-her, proposing to take her goods, and store them for her, and asked her,to give'him an order for them, so that “other creditors could not touch them.” She agreed to this by letter in these terms: “I hereby authorize you to take, remove, and keep” the goods, “same-being in payment of your account made for supplies while living in your village.” This was August 20, 1890. September 1st the plaintiff wrote, “I give you order to bold said goods in your possession, belonging to me until such time as I can take care of them.” It is clear that up to this time the plaintiff had no thought of pledging her goods for payment of her husband’s debt, nor to do anything more than protect her right in them against her husband’s creditors. She owed no debt, either to the plaintiff, or any one. On the same day she wrote to the defendant that she appreciated his kindness, and expressed her belief that he would “ do right” by her. There was evidently a very friendly relation between these parties, and no one carefully reading the evidence can fail to see that this woman confided fully in the honesty and friendship of the defendant. She seemed to believe that her goods might be taken to satisfy her husband’s debts, and, fostering this belief, the defendant on the 2d of September, 1890, wrote her: “I inclose a writing, which please sign, and return to me. When I have this, I can hold the goods together in face of due progress of law any party may attempt. * * "x" Of course, this writing takes the goods absolute; but it is not my. wish to hold them. I hope and trust the time will come when all these goods will be wanted and used as heretofore.” The defendant knew that the plaintiff was not responsible for her husband’s debt to him, nor for any other debt of his. It was a scheme to collect from her her husband’s debt by representing to her that her property would be safer from her husband’s creditors in his hands than in hers, and, relying upon his representations and friendship, she placed them there. Afterwards the defendant sold them “in such a way that he could get them together again” if plaintiff would pay her husband’s debt to him with interest, and his charges for storing the goods. The referee finds the value of the goods sold to pay a debt of $60, which the plaintiff did not owe, to $331.33. The evidence in the case is practically without contradiction, and justifies the conclusion of the referee that the defendant obtained possession of the goods by fraud. The question in the case is wholly one of fact, and, the referee having found for the plaintiff upon sufficient evidence, the judgment should not be disturbed.

Judgment affirmed, with costs.

All concur.