text:
    William Seward Webb, Resp’t, v. William H. Morrison et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Equity— Contract—Reformation.

      A. contract which, by reason of mistake on one side and fraud on the other, fails to express the inter" ion of the parties, may be reformed. So held where a written contract for the sale of land, signed by both parties, includes only part of the land which the purchaser supposed he was buying, of which fact he was ignorant, but of which the vendor had knowledge.

      Appeal from a judgment in favor of plaintiff.
    The action relates to lots six "and seven, of township thirty-eight, of Totten & Crossfield’s purchase, in the town of Long Lake, Hamilton county, N. Y. Negotiations were had between Webb and Morrison with reference to the purchase at Smith’s Lake, upon which the lands were located, on the 15th and 16th of June, 1891, and Webb claims such negotiations related to the whole of Morrison’s interest in "the whole of the two lots, and that they resulted in an agreement to purchase such interest for the sum of $15,000; while Morrison claims he had no interest in the two lots beyond the fifty acres subsequently contracted and conveyed, that the negotiations extended to no lands beyond such fifty acres, and that no agreement was made at that time for any purchase. Thereafter, and on June 24, 1891, in the city of New York, a formal written contract was made, but it covered only the fifty acres, and not the whole of the two lots, 416 acres. July 1, 1891, a deed was given of the fifty acres only, and the $15,000 purchase money was paid. Afterwards the defendants, Morrison and Richardson made claim to the balance of the two lots, not described in the deed of July 1, 1891. Both parties took, or attempted to take, possession of the property in dispute, and this action was commenced.
    C. D. Adams and R. H. Smith, for app’lts; E. Countryman and C. E. Synder, for resp’t.
   PER CURIAM.

—From the appeal book it would seem that the defendants sought to prepare a bill of exceptions upon which to obtain a review of the decision made at special term. However, it appears that considerable portions of the evidence given at the trial are inserted in the appeal book, Findings of fact were made which are very full and elaborate, and upon looking into the evidence found in the appeal book it is quite apparent that the evidence, though conflicting, fully sustains the finclings of fact made by the trial judge. He delivered an opinion which extensively considers all the essential questions of law which arose during the progress of the trial, and which form the basis for the conclusion which he reached, and the opinion is satisfactory upon the essential questions of law involved in the case, and renders it unnecessary that a further discussion should be had of the facts or of the law involved in the case. Southard v. Curley, 134, N. Y. 148; 45 St. Rep. 778; Allison Bros. Co. v. Allison, 63 St. Rep. 1.

Judgment affirmed, with costs.

The opinion of Mr. Justice WILLIAMS at special term Is as follows:

At the time of the negotiations at Smith’s Lake, June 15 and 16, 1891, Webb had purchased and made provision for obtaining title to all the lands surrounding the lake, excepting these two lots six and seven; and he was desirous of purchasing and securing title to these two lots, so that he might have the exclusive control oE the lake and all the lands surrounding it. He supposed Morrison was the owner of these lands, or had such an interest therein, as that a purchase of all his interest in the two lots would enable him (Webb) to obtain a title thereto and the whole thereof. Morrison understood what Webb desired, and what he supposed as to his (Morrison’s) interest in the lands; and I must find that the negotiations at Smith’s Lake were understood to extend to Morrison’s whole interest in the whole of the two lots, and that both of them understood the purchase was to be of such interest for the sum of $15,000. I do not deem it necessary to refer in detail to the evidence given on this trial bearing upon these questions of fact, or to make any arrangement with reference thereto. The evidence is voluminous. I listened carefully to the whole of it, and have considered it all, and I entertain no doubt as to the conclusions I have here stated.

There was concgdedly a writing dralvn up by and signed by the parties at the close of the negotiations, which expressed the understanding arrived at, but was not a very formal paper; and a more formal contract, to be prepared and executed in Mew York City, was in the contemplation of the parties when they left Smith’s Lake on that occasion. Whether that writing made at Smith’s Lake was understood to be a full, complete agreement or not may not be so very material There was talk about a so-called clubliaving an interest in the property, and it may well be that Morrison desired to consult with the members of that club, and have-their consent, before making a more formal contract. There is no claim made however, that such club, or its members, had any interest in the property in question in this action. Their interest appears to have extended to no part of the two lots beyond the fifty acres. Whether the writing made at Smith’s Lake be regarded as a perfect contract or only a memorandum of what the contract to be executed should be, I have no doubt it expressed, and the parties understood, that the $15,000 consideration was to be paid for nothing less than all the interest Morrison had in the whole of the two lots six and seven, of 416 acres. It is said now that Morrison had no interest whatever at that time in the two lots beyond the fifty acres,' and that the interest which he after-wards claimed in the balance of the two lots, and a part of which he transferred to Richardson, was obtained by him after the contract of June 24, 1891, was made. This claim leads me to consider the question of Morrison’s interest in the lands in question, the balance of the lots beyond the fifty acres, and the time when such interest was acquired by him. During the year 1881, and prior thereto, the Edwardses were in occupancy of these two lots. It does not appear whether they had any real title thereto. Ycry likely they had not, but they occupied the same. In 1881 the two lots were sold for taxes, and. bid in for the state; but after such sale notices to redeem- were served upon such occupants, as required by statute. Tire Edwards remained in the occupancy of the lots until about the year 1885, and in the meantime a deed of the lots under the laws of 1881 was given to the state. In 1885,Morrison and others paid tb e Edw ards $2,000, took a bill of sale of such property as they had upon the lots, and the Edwards surrendered possession and occupany of the lots to Morrison and others, who thereafter, by themselves or their agent, continued to occupy the same. After this change in the occupation, and in 1885, the lots were again sold for taxes, and bid in for the state; and after this sale notices to redeem were served upon the occupants of the lots, as required by statute. Morrison continued his occupancy of the lots until 1890, and in the meantime a deed was given the state of the lots under the sale of 1885. In 1890, Morrison made efforts to secure title to the two lots. A petition was made by him, having date May 31, 1890, addressed to the forestry commission, wherein he stated that he was the owner of the buildings and appurtenances near the shore of Smith’s Lake, upon lots 6 and 7, which buildings, etc., had been in use as an hotel and residence by him and others since 1875 ; that the lots had been sold for taxes in 1881 and 1885, and purchased by the state on such sales, with 2,160 acres of other lands in township 38 ; that all of the lands were so purchased in a single lot or bunch, although lots 6 and 7 did not lie contiguous to the other lands; that all the lands had been deeded to the state in a bunch, and notices to redeem had been served upon the occupants, pursuant to statute, December 29, 1889, and time to redeem would expire about June 23, 1890 ; and herein he submitted two proposals. The first was that he and all persons upon whom notices to redeem had been served waive their right to redeem all the lands sold in the bunch, except lots 6 and 7, and the comptroller, with the recommendation of the forestry commission and the advice of the attorney general, sell and convey to him lots 6 and 7 for such reasonable price as might be agreed on, and thereupon he should reconvey to the state all of lots 6 and 7', excepting the fity acres. The second proposal was to exchange some other lands for lots 6 and 7. The forestry commission, under date of June 18, 1890, recommended the acceptance of the first proposition, to sell lots 6 and 7 to Morrison upon his reconveying to the state all but the fifty acres, and paying $250 ; Morrison having, June 5, 1890, procured a deed from the Edwardses of all their interest in the lots. So far as the papers show, nothing further was done under this proceeding during the year 1890 ; but on the next day after the forestry commission had made their recommendation, and June 19, 1890, Morrison entered into an agreement in writing with Mrs. Marsh, who claimed the other lands sold with lots 6 and 7 in one bunch, that she should redeem all the lands from the sale of 1885, she to furnish two-thirds and Morrison one-third of the amount required for such redemption; and that she should make all proper efforts to have the sale of 1881, and the deeds thereunder, set aside and canceled by the comptroller before the next sale of said lands, to be made during that year 1880 ; and that, in ease of her inability to procure such action by .the comptroller, she should redeem all the lands from the sale of 1881, she to furnish two-thirds and he one-third of the amount required for such redemption; that she should then purchase all the lands at the sale in 1890, and assign the certificate to him, so far as lots 6 and 7 were concerned, upon his paying her the amount necessarily bid therefor. There were other provisions in the agreement, which need not be stated here. Mrs. Marsh did accordingly redeem all the lands from the sale of 1885, and made an application to the comptroller for the cancellation of the sale of 1881, and the deed thereunder. The comptroller, however, refused to hear and determine the matter until after the sale of 1890, promising, however, to hear and determine it after such sale should have taken place, and that he would bid in all the lands for the state at that sale, and, if the application should finally be granted, he would assign to her the certificate of sale of such lands under the sale of 1890 upon payment of the amounts necessarily bid therefor upon that sale. The sale took place December 23, 1890, and all the lands were bid in for, and a certificate issued to, the state. This brings the transaction down to Jan nary, 1891. Morrison was cognizant of all the proceedings by Mrs. Marsh under the contract with him. The "comptroller did not render his decision upon Mrs. Marsh’s application until in August, 1891. January 6, 1891, Morrison, again resuming his efforts to secure title under his application to the forestry commission of May, 1890, procured the advice of the attorney general that the land be sold, as recommended, by the forestry commission ; and then, on the 12th of January, 1891, executed to the state a waiver of his rights to redeem from the sale of 1881, paid the state $250, took from the state a deed of the whole of lots 6 and 7 and gave back to the state a deed of all of said lots excepting the fifty acres. Nothing further was done about perfecting title to the whole lots until after the negotiations between these parties, Webb and Morrison, the making of the contract of June 24, 1891, and the giving of the deed in July, 1891. Thereafter, and on August 14, 1891, the comptroller granted the application, regarding it as an application to redeem from the sale of 1881; and August 14, 1891, upon receipt of amount necessary to redeem, assigned the certificate of the 1890 sale to Mrs. Marsh. She called upon Morrison for his one-third of the amount necessarily paid under their contract; and Morrison, August 25, 1891, paid her his one-third of such amount, being the sum of $796.44, and she assigned the certificate to him so far as lots 6 and 7 were concerned, and executed to him a quit-claim of said lots. The interest of Mrs. Marsh in the other lands had been sold to Webb, and he received Mrs. Marsh’s interest therein. Morrison refused to surrender to Webb his interest in lots 6 and 7 beyond the fifty acres.

I have examined the suggestions of counsel with reference to this question of Morrison’s interest in lots 6 and 7 beyond the 50 acres in June and July, 1891, with considerable care and interest and some curiosity. Morrison occupied a somewhat peculiar position. He claims he had no interest in the disputed property in June or July, 1891, under the Mrs. Marsh contract, and yet he is here in this action with no other claim of right or title or interest in the property except such as has grown entirely ont of that contract, and he has asked Webb to pay him $10,000 for this same interest It is somewhat difficult to comprehend precisely what his rights -and interests were under the Mrs. Marsh contract in June and July, 1891, and yet more difficult to understand, if he had none then, how he has any now upon which to base his defense to this action. Let me see if I can draw any satisfactory conclusion from the evidence as to this question of interest. If the lands sold in 1881 had been unoccupied at the expiration of the two years from the sale, the time allowed for redemption, then the right to redeem would have been gone at the end of the two years, end the title of the state would have been absolute. The lands, however, were occupied at the expiration of the two years, —a part of them, lots 6 and 7,—and therefore the time to redeem could not be limited except by the service of a notice upon the occupant under the statute. No such notice was ever served, and therefore in 1890 the right to redeem from the sale of 1881 still existed. It was necessary, however, to apply for such right to the comptroller, and to establish the fact of occupancy at the time fixed by the statute. This was done by Mrs. Marsh. She had redeemed from the,sale of 1885. She could not bid under the sale of 1890 until redemption under both sales, 1881 and 1885. The comptroller was busy, and did not want to pass upon ¡ the application until after the sale of 1890 had taken place. Therefore he made the agreement that, inasmuch as only the state could bid on the property so long as the sale of 1881 remained unredeemed if the right to redeem should finally be established, Mrs. Marsh shall have the same standing as though the application had been passed upon promptly before the sale of 1890. Now, this was an agreement binding upon the state, and that would have been enforced if not caaried out, I apprehend. It was existing in January, 1891, when the state, through the same comptroller, dealt with Morrison as to these two lots 6 and 7 and the fifty acres. The comptroller had not yet examined and passed upon Mrs. Marsh’s application. All the title the state had to deal with Morrison upon as to these lots and the 50 acres was the title under the sale of 1881, supplemented by rights acquired under the sale of 1890; and that title was liable to fail by the success of the application of Mi's. Marsh, which would enable her to redeem from the sale of 1881, and then to have all the rights of the state under the sale of 1890. As to this whole application, the state was dealing with Mrs. Marsh, and not with Morrison. The state could not avoid the claim of Mrs. Marsh by alleging any waiver of Morrison. The possession of Morrison’s grantor of lots 6 and 7—a part of the whole bunch of land" sold together in 1891—inured not only to the benefit of Morrison, but of Mrs. Marsh also.. Until the notice was served on the occupant, not only such occupant, but any other person, might redeem from the sale. Mrs. Marsh, therefore, had the right to' redeem all this land, including the lots 6 and 7, without Morrison’s consent; and his waiver could not and did mot affect her right to do so. This right she exercised, and having redeemed, and the state having as it agreed to do, transferred to her the certificate under the sale of 1890, all title of the state under the sales of 1881 and 1890 was gone, and the transactions between Morrison and the state in January, 1891, were mere nullities, so far as the conferring of title to any part of lots 6 and 7 was concerned. Such at least was the condition of things in the absence of any rights Morrison might have under the Mrs. Marsh contract. Unless Morrison, and, if you please,Webb also, insisted upon their rights under the Mrs. Marsh contract, all their rights were gone in any part of lots 6 and 7. Morrison could and did insist upon his rights, paid his one-third of the moneys expended, and therefrom secured the certificate under the sale of 1890, so far as these lots were concerned. By Morrison’s acts in insisting on his rights and paying his money and taking the certificate, Mrs. Marsh was deprive of all her interest in these lots. The right to have this relief under bis contract Morrison had in June and July, 1891, if he had it in August 1891, when he assumed to exercise it. It may be claimed he at no time had this right after his deed in January, T891; that in equity it belonged to the state. Well, it was a right he had at law, and could hold and exercise until the state asserted its equitable right, and then the question would have to be determined. The same comptroller did all this business, both with Mrs. Marsh and Morrison, and knew all about it, except perhaps the contents of the Mrs. Marsh contract. Whether he knew about that does not appear. That will be a proper subject of inquiry in case the state attempts to assert any equitable title to the property in dispute thereunder. Fo claim has ever yet been made by the state to any interest in these lots 6 and 7 against the certificate under the sale of 1890, transferred by it to Mrs. Marsh, and by her to Morrison, Possibly none ever will be made; and until the claim is asserted and established Morrison or Webb will have and exercise such rights and interests in lots 6 and 8, beyond the 50 acres, as a holder of the certificate under the sale of 1890 is entitled to under the law. I see no reason why the court should, in this-action, attempt to settle any claim the state may have to these lots especially for the purpose of defeating any right Webb may otherwise have, so long as Morrison assumes the position he does,—that he has a great and valuable interest as against the state, which he is here seeking to withhold from Webb. He (Morrison) claims an interest. Webb claims the agreement was it should be transferred to him. If otherwise entitled-to succeed here, it seems to me the interest should go to Webb, and let him settle the question later whether the interest is valuable, or in other words, whether, as against the-state, it is of any value. I must therefore hold that Morrison had an interest in lots 6 and 7, beyond the 50 acres, at the time of the negotiations at Smith Lake in -June, 1891, at the-time of the malting of the contract of June 24, 1891, and at the time of the giving of the deed in July, 1891. The contract and deed did not cover any interest in the lots 6 and 7, of any kind, beyond the 50 acres. Webb evidently desired it to be included, and supposed it was so. Morrison know it was not included. He must have understood Webb supposed it was so included. There had been no talk of change since they left Smith’s lake. The omission was one against the interest of Webb and in favor of the interest of Morrison. The contract was drawn in Mew York City by Webb’s lawyer. Webb was himself very busy with other matters. His attention was a good deal taken up, when considering the-contract at all, by talks with Morrison and some members of the so-called club about matters other than the form of contract, and especially its form as to the property described. Morrison was with Sprague when the contract was drawn, furnished the description of the 50 acres, and talked with him about the terms of the contract. The lawyer did not understand about the title, the tax sales, the Mrs. Marsh contract, or the title sought under the tax sale of 1890, with which questions Morrison was perfectly familiar. The memorandum made at Smith’s Lake was present, and I assume, stated in some general language that the $15,-000 was to be paid for all of Morrison’s interest in lots 6 and 7. The agreement describing only the thirty acres, and leaving out any language appropriate to cover the interest here in controversy, was submitted to Morrison and Webb, and both signed it. Morrison knew of the omission. I cannot believe Webb understood it. He testifies he did not; and concededly he knew all about the Mrs. Marsh contract, and that title to other lands he was interested in, as well as lots 6 and 7, was excepted to be procured and perfected under the sale of 1890 and the Mrs. Marsh contract, and had not yet been so perfected. He certainly knew the 50 acres was not all he was to have; that he was to have all the interest of Morrison in the two lots,—416 acres. I cannot believe he knew or understood the omission had been made of all interest beyond the 50 acres. I can only, conclude Morrison assured the lawyer and Webb the agreement was all right according to their previous arrangement, and that Webb signed it in that belief.

It is said in 2 Pom. Eq. Jur. § 870; “ Reformation is appropriate when an agreement has been made, or a transaction has been entered into or determined upon, as intended by all the parties interested, but in reducing such agreement or transaction to writing, either through the mistake common to both parties, or through the mistake of the plaintiff, accompanied by the fraudulent knowledge and procurement of the defendant, the written instrument fails to express the real agreement or transaction. In such a case the instrument may be corrected so that it shall truly represent the agreement or transaction actually made or determined upon according to the real purpose and intention of the parties.” In Beardsley v. Duntley, 69 N. Y. 577, this remedy was applied in a case where a vendee was induced by the fraud of a vendor to accept a conveyance and pay the consideration therefor, which conveyed less land than was orally agreed to be conveyed. It was held the vendee was not bound to know what lands the description covered, and that specific performance might be had, though no improvements had been made on the lands omitted from the deed; and as to the fraud the court said: “A deduction of fraud may be made, not only from deceptive assertions and false representations directly made, but from facts, incidents, and circumstances which may be trivial in themselves, but decisive evidence _of a frudulent design. The conduct of, a party which tends to conceal or suppress material facts is frequently as effective in deceiving another as actual false representations.”

This was clearly not a case of mutual mistake, but of mistake on the part of the plaintiff and fraud on the part of the defendant Morrison. The evidence is more or less conflicting as to what occurred at the time the agreement was prepared and signed. From all the evidence I conclude the fact was as I have here stated. The deed followed in form of agreement. Webb’s personal attention was not called to their form, and he seems only to have realized the form of both when Morrison, a little later, refused to surrender, the certificate under sale of 1890, and demanded $10,-000 more for the balance of lots 6 and 7. Webb had in the meantime taken possession of the lands in dispute and had made extensive improvements thereon, expending large^sums of money. It was not until some time later that Morrison and Richardson attempted to or did go upon the lands and occupy some portion thereof. Richardson clearly does not occupy the position of a bona fide purchaser, so as to give him any further protection against Webb’s claim than Morrison has. Upon the whole case it seems to me Webb is entitled to the relief asked for in-the complaint, that the contract of June 24, 1891, be reformed so as to cover and include all the interest of Morrison in the whole of lots 6 and 7, and as reformed, be specifically performed. Judgment will be ordered according. The particular form of the decision will be settled by me. Plaintiff’s counsel will prepare formal decision, and submit it to defendant’s counsel for approval as to form and to me for signature. Notice of settlement'to be given if counsel do not agree as to form. Plaintiff should have costs; and if certificate of 1890 is to be transferred to Webb he should pay Morrison the amount paid by him to Mrs. Marsh, with interest. Such requests to find as have already been submitted to the court will be formally passed upon at the time of and before signing the decision.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William C. Doig, App’lt, v. Alonzo A. Haverly et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1 Mortgage—Bona fide mortgagee.
    A person who takes a mortgage to secure a precedent debt, is not a bona fide mortgagee within the meaning of the statute.
    2. Same.
    The evidence, in this case, was held not to be sufficient to show that the chattel mortgage to secure an existing debt was given in consideration of extending time of payment of the debt, so as to render the mortgagee a bona fide mortgagee within chapter 279 of 1833.
    Appeal from a judgment dismissing the complaint.
    Neish & More, for app’lt; A. G. Patterson, for resp’ts.
   PER CURIAM.

—At the close of the evidénce given in the case the parties expressly waived a jury, and submitted the questions of fact and of law to the court. Thereafter findings were made, and a conclusion of law stated. We are of the opinion that the evidence warranted the finding of fact made by the trial judge. The questions of law are clearly and fully discussed in an opinion delivered by the trial judge, which meets with our approval, and we therefore affirm the judgment upon the opinion of the trial judge.

Judgment affirmed, with costs, on the opinion of PARKER, J.?. delivered at the circuit.

The opinion of Mr. Justice PARKER at special term is as follows :

The defendants Haverly and Wilcox, on the 30th of November, 1891, took a chattel'mortgage from one Thomas Milward to secure-an indebtedness that had for some time existed from him to them.' Milward was then living in the town of Tompkins, Delaware-county, and such mortgage was filed in the town of Walton. No-sufficient copy was ever filed in the town of Tompkins. Milward subsequently removed to the town of Walton, and a copy of such mortgage was refiled in that town December 1, 1892, and another copy was refiled in such town November 25, 1893. On the 2d day of June,, 1893, the plaintiff, without actual knowledge of the defendants’ mortgage, took from said Milward a chattel mortgage on the same property, to secure the payment of a note which he then held against Milward for the sum of $122.82. Such mortgage was filed on that day in the town of Walton, where Milward then resided, but it was never refiled. On the 18th of July, 1894, the defendants took the property described in such mortgages, and sold it for the satisfaction of their said debt, and the plaintiff brings-this action to recover the value of the property sold.

The question is, who has the better right to the mortgaged property ? If the plaintiff was a mortgagee in good faith, the defendants’ mortgage was utterly void as against him, because it had never been properly filed. Laws 1833, c. 279, § 1. And the fact that plaintiff’s mortgage was not refiled within the year, and that on July 18, 1894, when defendants took the property, neither mortgage was properly on file, does not alter the case. Though defendants were creditors of the mortgagor at that time, they were not such creditors as could avail themselves of plaintiff’s omission to refile his mortgage. They were not armed with any legal process which authorized them to seize the property. Button v. Rathbone, 126 N. Y. 187 ; 36 St. Rep. 945. But, the defendants’ mortgage being prior in point of time, it gave them the prior right to the property, unless their omission to file it rendered it void as against plaintiff; .and it did not become void under the statute unless plaintiff occupied the position of a subsequent mortgagee in-good faith. It appears from his complaint that on or about May 17, 1893, he sold feed to Milward of the value of $122.82, and took his note for that amount, dated on that day, and payable in ninety days. On June 2, 1893, he took the mortgage in question, from which it also appears that the indebtedness was incurred as above stated, and that the mortgage was given to secure it. It seems clear, therefore, that the mortgage was given to secure a precedent debt, and for such reason he was not a bona fide mortgagee within the meaning of the statute. Jones v. Graham, 77 N. Y. 628 ; Button v. Rathbone, 126 N. Y. 187 ; 36 St. Rep. 945. The plaintiff, however, seeks to avoid the operation of this rule by testfying that at the time the mortgage was taken Milward said that he could not pay the note when it was due, and that he would like further time on the note, and he would give the security on the condition that the note was to be renewed, and thereupon the mortgage was taken. There is no extension of time provided for in the mortgage, nor does the evidence disclose that any valid agreement to extend for a definite period was ever concluded. Possibly Mil-ward expected that the note would be renewed, but plaintiff does not testify that he agreed to do so, nor does the evidence show that he was under any contract to do so. Had he sued the note when it became due, no fact is disclosed that would have prevented his recovering judgment thereon, though probably he could not, in that event, have held the mortgaged property. Moreover, if there was a contract to extend for a definite period, on condition that the mortgage be given, we would hardly expect the mortgage to have been so drawn that the mortgagor would be in default on the very day the note became due. It does not appear that the plaintiff parted with any value, or gave up any right on the faith of the mortgage, and hence he is not a mortgagee in good faith. Cary v. White, 52 N. Y. 138. I conclude, therefore, that the defendants were entitled to the property in question as against the plaintiff, and that this action cannot be maintained.


author: PRATT, J

text:
    John Szuchy, by Guardian, etc., Resp’t, v. Hillside Coal & Iron Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’ry 11, 1896.)

    Animals—Vicious—Pboof.
    The evidence, in an action for injuries inflicted by a vicious mule, was held sufficient to sustain a verdict in favor of plaintiff.
    Appeal from a judgment entered on a verdict in favor of • plaintiff, and from an order denying a motion for a new trial.
    Stetson, Tracy, Jennings & Russell, for app’lt; Catlin & Nekarda, for resp’t.
   PRATT, J

—The verdict of the jury was to the effec that the mule was vicious, and was known to be so by the company. The only question we need consider is whether the evidence justified the verdict; The plaintiff’s evidence, if credited by the jury, went to establish both propositions. The motion of nonsuit was, therefore, properly denied. The defendant call several witnesses, who ahowed no hesitation in contradicting the plaintiff. They went so far and so fast that it uvas quite obvious that the jury' distrusted their truthfulness. Some matters to which they testified were highly improbable. For instance, where the superintendent stated that the witnesses coming on together from Pennsylvania to attend the trial did not discuss the facts of the case. Yet one witness on cross-examination admitted that during the journey he ' did talk over the facts with the superintendent. The same witness, when asked if the witnesses, while on the train, all agreed that the mule was one of the best, answered, “If we did, I would not tell you.” The circuit judge felt called upon to instruct the jury that they were at liberty to disregard the testimony of any witness who willfully testified, to what was not true, and that the weight of evidence does not always depend on the number of the witnesses. The circuit judge was satisfied with the verdict. He saw the witnesses. Without having that advantage, we can discover ample grounds why he should not interfere with the verdict It may be noted that the person nearest plaintiff when injured was not produced, nor any person that had ever led the mule, nor any explanation suggested for such neglect. As defendant’s witnesses were all employees of defendant, Hickinbottom v. Railroad Co., 47 Hun, 639, is in point.

Judgment affirmed, with costs.

All concur.


text:
    David B. Cook, Resp’t, v. Lizzie M. Chase, Personally as Administratrix, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    1. Pleading—Complaint—Creditors’ bill.
    Where the complaint, in an action to set aside a transfer of property by a decedent, alleged that said decedent died insolvent; that, before his death, he transferred most of his property to defendant, with intent to defraud his creditors; that, by his last will, defendant was appointed his executrix; that she qualified and is now acting; that she claims the property so transferred to her as her own; that decedent left no other property with which to pay his debts, and asked that such transfer be adjudged, fraudulent and void, and that the property be applied in payment of ail creditors of the decedent, the averments of the complaint are sufficient to bring the case within chapter 487 of 1889.
    2. Same—Joinder op causes op action.
    In such case, both the assignee and the representative of the assignor should be before the court, and the objection that there is an improper joinder of actions and that the defendant as executrix is not properly in court, are not «well taken.
    Appeal from a judgment entered on an order overruling a demurrer to the complaint.
    E. D. Cumming, for app’lt; More & Scott, for resp’t.
   PER CURIAM.

—Judgment affirmed, with costs, on the opinion of PARKER, J., with leave to amend upon payment of costs of the demurrer and of the appeal.

The opinion of Mr. Justice PARKER at special term is as follows:

By chapter 487 of the Laws of 1889 it is substantially provided that a creditor of a deceased insolvent debtor may, fur the benefit of himself and other creditors interested in the estate of deceased, maintain an action to set aside any transfer or conveyance made by said deceased debtor in fraud of his creditors, and that it shall not be necessary for the creditor so suing to have previously obtained a judgment upon his claim or demand. And prior to that act, when the executor or administrator of such a deceased debtor was a party to the fraud, a creditor might maintain such an action without having first obtained a judgment, upon his claim. Harvey v. McDonnell, 113 N. Y. 526; 23 St. Rep. 501. The complaint avers, in substance, that plaintiff has a debt against the estate of Horace B. Stetson, deceased, of about $800; that Stetson died insolvent; that before his death he fraudulently transferred most of his property to the defendant Lizzie W. Chase, with intent to defraud his creditors; that by his will Lizzie W. Chase was appointed his executrix; that she has qualified and is now acting as such, and that she claims the property so transferred to her as'her own, and refuses to treat it as assets of the estate; that deceased left no other property with which to-pay his debts; and that he left not only the .plaintiff, but numerous other creditors, who are thereby defrauded out of their debts. He asks that such transfer be adjudged fraudulent and void, and that the property be applied to the payment of all creditors of deceased, in due course of administration. Those averments evidently bring the case within the statute and authority above cited, and the objection, therefore, that the complaint does not state facts sufficient to constitute a cause of action is not well taken. Such a plaintiff does not have to be a judgment creditor.

Such a defendant is made a party, not only personally, as a fraudulent assignee, but also in her capacity as an executrix; and it is objected that in the latter character this court has no jurisdiction over her. In her character as executrix, she represents the estate of the fraudulent assignor, and for that reason is a proper party to this action. She is not proceeded against as an executrix, not properly administering the estate, and judgment is not asked against her in that character and on such ground. There are not two causes of action set forth in the complaint. The claim is a single one,—that deceased fraudulently transferred to her all his property ; and that, therefore, both parties to that fraudulent transfer (so far as can be, viz. she as assignee, and she as executrix representing such assignor) are brought into court, in an action to set that transfer aside, and dispose of the property so transferred. Evidently, both the assignee and the representative of the assignor should be before the court; and the objection, therefore, that there is an improper joinder of actions. and that she as executrix is not properly in court, are not well taken. The averment in the complaint does not show that Olney L. Stiles, has any interest in the property so fraudulent transferred, or that he claims any interest, and therefore it does not appear that lie is a necessary party to this action.

None of the grounds of the demurrer seem to be well taken, and it must therefore be overruled, with costs to the plaintiff. An order may be entered to that effect, with leave, however, to the defendant, to answer within twenty days after service of a copy of such order upon her attorney.


author: CLEMENT, J.

text:
    The People ex rel. Charles E. Morrell, Pl’ff, v. Lewis J. Worth, as Police Commissioner, etc., Def’t. (Six other cases.)

      (Supreme Court, Kings Special Term,

      Filed January 13, 1896.)

    1 Municipal cobpokation—Policeman—Appointment.
    Chapter 353 of 1893 does not give the police board power to employ policemen by contract for a year, and such a contract of employment by the hoard, appointed under the act of 1893. is not binding on the commissioner appointed under chapter 675 of 1895.
    Same.
    When the duration of an office is not fixed by law, the appointees hold during the pleasure of the authority making the appointments.
    3. Mandamus—When granted.
    It is only where there is a clear legal right and no adequate legal means for its enforcement, that a writ of mandamus is granted.
    4. Same—Presumption.
    The police commissioner is entitled to the benefit of the presumption that an officer does his duty and acts for the best interests of the public.
    Application for a writ of mandamus to compel the police commissioner of the town of Flatlands, to reinstate relator in the position of policeman, from which he had been removed by defendant.
    F. K. Castner and Wm. H. Sloan, for pl’ff ; Elliott, Jones, Breckenridge & Dater, for def’t.
   CLEMENT, J.

—The relator, in his alternative writ of mandamus, sets forth that the defendant, on or about July 1, 1895, without any authority of law, and in violation of a contract theretofore made on or about April 29, 1895, between the board of police commissioners of the town of Flatlands and the said Charles E. Morrell (whereby they employed him as a roundsman upon the police force of the town of Flatlands for the term of one year from January 1, 1895, at the yearly salary of $840 per year, payable in equal monthly payments during said term), and without any cause, summarily, arbitrarily, and wrongfully removed the said Morrell from the office of roundsman upon the police force of said town. It is also set forth that there were funds in the hands of defendant which were applicable to the payment of the salary of the said Morrell as the same accrued under said contract, and that the defendant has refused to reinstate the relator. The defendant was required to reinstate the relator, and pay him his accrued salary under said contract, or show cause why the command of the writ should not be obeyed. The defendant has demurred to the writ, and the question I have to decide is whether or not the facts set up entitle the relator to relief by mandamus.

At first, I propose to consider the pleadings in a technical way. It is difficult to tell, on the face of the writ, whether the relator claims that he is an employe or an officer. It is first claimed that the police commissioners employed Morrell under a contract for one year from January 1, 1895, at a yearly salary. Afterwards it is claimed that Morrell was removed from an office. If Morrell was employed under a contract, and did not hold an office, then it is clear that he is not entitled to a mandamus, under the authority of a case recently decided by the general term of this department,—In re People v. Harmon (not yet officially reported) 36 N. Y. Supp. 331. Justice Brown there said :

“The appellant contends that his employment was under a . valid contract, which continues until all the work under said act is completed. We agree with the special term that, if that claim is sound, the appellant has an adequate remedy at law, and is not entitled to a writ of mandamus. It is only where there is. a clear legal right, and no adequate legal means for' its enforcement, that a writ of mandamus is granted."

See, also, People v. Comptroller of the State, 20 Wend. 595, 599.

If Morrell intended to claim that he held an office, and was removed without cause, he cannot be reinstated by mandamus on the facts set up m the writ, because it is not clear that he was ever appointed to an office, and a fair inference from all the facts set forth is that the relator was simply employed under a contract for one year, by the police commissioner. He asks to be paid the money due him by the contract. It is not therefore necessary to consider whether or not mandamus is the proper remedy to reinstate an officer.

Having considered the pleadings technically, I now will review the main points argued before me, irrespective of any narrow construction of such pleadings. By chapter 353 of the Laws of 1893, the town board of Flatlands was authorized to appoint three citizens who should constitute the board of police commissioners of the town. By section 3 of said act, the said board had the power to “employ" such persons as they should deem necessary as po-. licemen for said town, who should have the same powers and perform the same duties as constables of -towns and policemen of the city of Brooklyn; and, by section 4 of said act, it was provided’ that the commissioners should prescribe the compensation to be paid to the policemen, except that the “ salary ” of the cap.tain of police should not exceed the sum of $1,500 per year, and that of each other policeman the sum of $1,000 per year. In 1895, chapter 353 of the Laws of 1893 was amended, and such amendment "became a law on May 14, 1895 (Laws 1895, c. 675). By the amended law, it was provided that the supervisor should, immediately after the passage of the act, appoint a citizen of said town as police commissioner; and by section 12 of the act it was directed that, immediately after the appointment and qualification of the new commissioner, the terms of office of the board appointed under the act of 1893 should cease. The new commissioner had also the same power as to employing policemen and as to fixing their compensation as is provided in the prior act. It seems to me very clear, after carefully reading the act of 1893 and the amendment of 1895, that the board of police commissioners had no power to employ the relator by contract for one year. If they employed the relator for one year, they did so at their own risk, and subject to the right of the legislature to repeal or amend the act from which they derived their authority. In. other words, the contracts of employment made by the board are not binding on its successor. If the words “ to employ,” in the act of 1893, meant to designate or appoint, as would appear by the act consolidating Flatlands with the city (see section 6, c. 450, Laws 1894), then I am of opinion that'the contracts of employment are void. It was held, as far back as the year 1839 (People v. Comptroller of the State, 20 Wend. 595), and in a number of cases since, that, when the duration of an office is not fixed by law, the appointees hold during the pleasure of the authority making the appointments. When the defendant became the police commissioner of the town, he succeeded to the powers of the board appointed under the act of 1893, and had the same righto as if he had originally been appointed under that act. He could discharge the old force, whether employed or appointed, and could employ or appoint an entire new force. It is not for me to say that an injustice has been done to the men designated under1 the act of 1893,- as I know nothing of the facts. It is presumed that an officer does his duty and acts for the best interests of the public, and the defendant is entitled to the benefit of that presumption.

Judgment for defendant. The question of costs will be determined on the settlement of the final order.


author: PRATT, J.

text:
    In the Matter of an Application by Michael T. Daly, as Comsioner, etc.

      (Supreme Court, General Term, Second Department,

      Filed December 27, 1895.)

    Condemnation proceedings—Allowances.
    Under section 24, chapter 189 of 1893, in proceedings to acquire real estate and sanitary protection for the sources of water supply of New York City, the commissioners have no authority to fix any allowance, but the power is vested in the court.

      Appeal from an order, granting an allowance to the attorneys of record.
    Francis M. Scott, for app’lt; A. J. Miller, for resp’t.
   PRATT, J.

—This is an appeal from an order made at special term involving the allowance made attorneys of record in this proceeding. The statute authorizing and regulating the proceeding provides that “ such allowances for counsel fees as may be made by order of the court shall be paid,” etc. It is plain that the commissioners had no authority to fix any allowance, but the power was vested in the court. It was, therefore, a matter of discretion, to he fixed in view of all the circumstances. The sum allowed did not exceed the limit prescribed by section 3253 of the Code of Civil Procedure, and was not an abuse of the discretion vested in the judge presiding at special term. The case involved much labor and responsibility, and required great care and much time in its management. In addition, new duties were imposed upon the attorneys, subsequent to the hearing before the court upon the first presentation of the commissioners’ report. The proceeding involved the taking of 113 parcels of land, and the awards exceeded $150,000, and the time required was over two years. During all this time the case called for constant attention. Under all the facts and circumstances, we cannot say the amount allowed was unreasonable.

Order affirmed, with costs and disbursements.


text:
    William Cooper, as Administrator, etc., Resp’t, v. Mertopolitan Life Insurance Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’ry 4, 1896.)

    , 1. Insurance—Lite—Beneficiary.
    Where, in an action on a life insurance policy, it appears that the first policy issued named plaintiff's wife as beneficiary, and the policy was delivered to her and the premiums paid by her and plaintiff, and afterwards his wife died and the agent of the company told him that a new policy should be issued, which was done, and the beneficiary therein specified was “Estate,” the word “Estate" refers to the estate of the beneficiary named in the original policy.
    2. Trial—Objection.
    The objection that the loss was not proved upon blanks provided by the company, if it is to he insisted upon, should he made when the proofs of loks were first Submitted to the company, and cannot be raised on the trial of the action.
    Appeal from a judgment in favor of plaintiff.
    William Riley, for app’lt ; Sproull, Harmer & Sproull, for resp’t.
   PRATT, J.

—At the close of the plaintiff’s case the defendant moved to-dismiss, and specified as the grounds thereof (1) that' the beneficiary was the estate of the person whose life was insured ; (2) that no contract existed between the parties; (3) that the loss was not proved upon blanks furnished by the defendant; (4) that he had not proved facts constituting cause of action.

The first policy issued named as beneficiary Mrs. Cooper, wife of the plaintiff. The company delivered the policy to Mrs. Cooper, and thereafter the company collected the premiums from Mrs. Cooper and her husband. Thereafter Mrs. Cooper, the beneficiary, died, and the agent of the company called upon the plaintiff, and said a new policy should be issued, which was done, and the beneficiary therein specified was “Estate.” The agent of the company told plaintiff the policy was all right; and, if plaintiff gave the matter any thought, he doubtless supposed, and, we think, properly, that the “ estate” referred to was that of the deceased beneficiary, Mrs. Cooper. Mrs. Cooper paid the premiums until the death of the person whose life was insured. Proofs of loss were made, which the company accepted as satisfactory, and said they would pay the claim if letters of administration were produced upon the estate of the person whose life was insured. This was declined, and. plaintiff brought this suit. We think that, upon these facts, the circuit judge properly held that the “estate" referred to in the new policy was the estate of the beneficiary named'in the original policy. That being so, the company had no concern with the estate of the person whose life was insured, and the first two grounds upon which the defendant moved to dismiss are answered.

The objection that the loss' was not proved upon blanks provided by the company is frivolous. If that requirement was to be insisted on, the time to do that was when the proofs of loss were first submitted to the company. To allow them to accept the proofs then supplied, and to raise the objection on the trial, would not be in furtherance of justice. The only other ground on which the company moved to dismiss was that the plaintiff had not proved facts sufficient to constitute a cause of action. Mo other defect in proof was pointed out. Had any other been suggested, very likely it would have been supplied. Mo exception was taken to the action of the court in directing the verdict for the plaintiff.

Judgment affirmed, with costs.

All concur.


author: BARTLETT, J.

text:
    Robert Clegg, Resp’t, v. Metropolitan Street Railway Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb'ry 4, 1896.)

    1. Evidence—Documentary—Diagrams.
    In an action for injuries sustained in .a collision with defendant’s car, a diagram of the place where the accident occurred, purporting to show the position of the car and of plaintiff and his companions just before the-collision, is admissible in connection with plaintiff’s testimony that such diagram correctly indicates the position of the parties and of the car.
    3. Same—Opinions—Medical testimony.
    In such action, a physician who attended the plaintiff may testify as t»' whether his nervous system is impaired, whether such impairment results ■ from the injury, and as to the probability of his recovery.
    8, Damages—Excessive.
    A verdict for $250, in an action for personal injury, was held, in this case, not to be excessive.
    Appeal from, a judgment, entered on a verdict for plaintiff,, and from an order denying a motion for a new trial.
    John T. Little, Jr., for app’lt; Henry A. Monfort, for resp’t.
   BARTLETT, J.

—This is a negligence suit, in which the plaintiff recovered a verdict of $1,250 for damages sustained by him in being thrown down by one of the cars of the defendant while crossing Fifty-ninth street, in the city of Hew York. In the brief submitted in behalf of the appellant, it is not contended that there was not evidence enough to go to the jury upon the question of' the defendant’s negligence; but this court is asked to reverse the judgment solely on account of the exceptions taken in the course of the trial, and because the verdict was excessive. I will examine the exceptions in the order in which they are presented in the appellant’s brief.

The first exception relates to the admission of a diagram or map, which the plaintiff testified was a perfect diagram of the surroundings of the place where theaccident occurred, except that it was not drawn to a scale. It showed not only the location of the streets, sidewalks, and rails, but also indicated the position of the car and of the plaintiff just before the accident, and also of certain workmen, who were in the company of the plaintiff, The1 defendant objected to the reception of this paper, on the ground that it showed something more than the geographical features of the place of the accident. Ho doubt it did, but it was, nevertheless, admissible when considered in connection with the testimony of the plaintiff given at the time it was received by the court; for the fair purport of what he said, in response to questions by counsel for the defendant at that time, was that his own position and that of the car and the workmen were correctly indicated upon the map. The situation was thus no different from what it would have been if the witness had taken a diagram of the street and railroad track alone, and had marked thereon, in the presence of the court, the position of the car, the workmen, and himself just prior to the collision. This is often done upon -a trial, and the propriety of allowing a witness thus to aid his oral evidence has, so far as I know, never been questioned.

The next exception relates to'a question which was asked Dr. Henry McDonald, who attended plaintiff after the injury, on the day it occurred, and treated him for about five weeks. In the course of the examination of this witness by plaintiff’s counsel, the court, addressing Dr. McDonald, said:

“He wants to know whether he is suffering now, or whether his nerves are back to the normal, or whether they are impaired now.”

The witness answered:

“The fact of his injury and his laceration or any blow which, was struck upon him I do not think would have any particular effect upon his nervous system.”

Dr. McDonald was about to proceed further with his answer, and was interrupted by an objection, and his examination was then continued by his own counsel, as follows:

“Q. Go right back to the court’s question. As you see him to day, are his nerves at the normal, or are they impaired? (Objected to. Objection overruled. Defendant excepts.) A His nerves are impaired.”

The exception to this testimony is sought to be sustained on the ground that it was expert evidence, and that the question did not contain in itself a statement of the assumed facts upon which it was based. But the rule thus invoked, which finds its clearest application, perhaps, in People v. McElvaine, 121 N. Y. 255; 30 St. Rep. 977, did not apply to Dr. McDonald, who was a witness having an actual knowledge of the phj'sical condition of the patient concerning whom he testified, and whose statements, therefore, were not founded on any hypothesies at all. He had known the plaintiff before the accident, and was entirely competent to state the comparative condition of his nervous system subsequent to the accident.

Still further on, the same witness was examined as follows:

“Q. What is your opinion in relation to his present state of nerves? Did it result from that injury or not? (Objected to as incompetent, immaterial, and irrelevant. Objection overruled. Defendant excepts.) A. I should think that his condition resulted from it, yes. Q. Is he likely to recover? (Same objection, ruling, and exception.) A. I should think so. I couldn’t say in how long a time. Q. How old is he? A. I don’t know. Q. You think he is likely to recover? The court: He says he is likely to recover. A. I have noticed an improvement in him recently. I think he has improved all the time; yes. Gradually improved. Q. To the best of your judgment, how long will it be before he is restored? A. I couldn’t answer that. Q. Would it be years or months? (Objected to, as immaterial and irrelevant. Objection overruled. Defendant excepts.) A. I couldn’t answer that.”

It is insisted, on behalf of the appellant, that the questions which the court allowed to be answered against the objection of the defendant, in the course of this examination, violated the rule laid down in the case of Strohm v. Railroad Co., 96 N. Y. 305, and that the answers were objectionable as involving mere speculation. I doubt whether there is any recent case in our law reports which has been the subject of more misapprehension than the Strohm Case; but since the scope and meaning of the rule there laid down have been explained and made clear by the court o£ appeals itself, in the more recent decisions to which I shall refer, there ought no longer to be any liability to serious error on the subject. The evidence that was condemned in the Strohm Case as speculative and hypothetical related to the possible development in the plaintiff of diseases which were nonexistent at the time of the trial. The medical witness was allowed to testify that a patient sustaining such injuries, and presenting such premonitory signs, might develop traumatic insanity or meningitis or progressive dementia or epilepsy with its results. If the jury based their verdict to any extent upon testimony of this sort, they would obviously enter into a region of speculation, where there was nothing to guide them but a vague possibility. The condemnation of such proof is a very different thing from saying that evidence cannot properly be received as to the probable effects of a present condition. That the court of appeals did not intend’to hold that evidence of the latter character was admissible in a negligence suit is clear from the cases of Griswold v. N. Y. C. & H. R. Railroad Co., 115 N. Y. 61; 23 St. Rep. 729; McClain v. Brooklyn City Railroad Co., 116 N. Y. 459; 27 St. Rep. 549; and Alberti v. N. Y. L. E. & W. Railroad Co., 118 N. Y. 77; 27 St. Rep. 865. In the Griswold Case, Judge Finch declared that the questions there objected to were not inadmissible, because they sought the probabilities of a recovery; and he pointed out the obvious difference between an opinion as to the permanence of a disease or injury already existing and one as to the merely possible outbreak of new diseases or sufferings having their cause in the original injury. In the McClain Case Judge Bradley speaking for the Second division of the court of appeals, declared that the judgment of medical experts as to the probable consequences of an injury comes within the rule of reasonable" certainty, and therefore of admissibility in this class of actions, and said that the Strohm Case was not in conflict with the earlies ones holding that evidence of the probable results of an injury was competent. In the Alberti Case, in which the prevailing opinion was written by Judge Haight, it was held proper to receive the testimony of a physician as to the length of time that the injured plaintiff would live, where the witness based his answer upon tjie history of similar cases. The authorities fully sustain the rulings of the court in the case at bar. It should be observed, however, that, even if those rulings had been erroneous, they could have done very little, if any, harm to the appellant, in view of the fact that the physician who had treated the plaintiff expressed a pretty distinct "opinion that he would recover from the injury.

The only other point is the claim that the damages were excessive. The verdict certainly was liberal, but in view of the fact that the plaintiff required medical attendance for a period of five weeks, I do not think that this court would be justified in interfering with it.

The judgment and order appealed from should be affirmed, ■with costs. All concur.


text:
    Rudolph De Wardener, Resp’t, v. Metropolitan Street Railway Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 4, 1896.)

    1. Damages—Excessive.
    Where the jury in assessing damages in an action for personal injuries, is induced, either by sympathy for the plaintiff or a desire to punish the defendant, to add anything to the amount of their verdict, it is, to this extent, excessive.
    2. Same.
    In such case, it is not only the power, hut the duty, of the court to set aside a verdict, where the sum awarded by the jury has been enlarged beyond the measure of compensation as the result of sympathy and prejudice.
    3. Same.
    A verdict for $25,000, for permahent injury to the left arm, was held, in this case, to be excessive.
    Appeal from a judgment on a verdict for plaintiff, and from an order denying a motion for a new trial.
    Thomas S. Moore, or app’lt; George Zabriskie, for resp’t.
   BARTLETT, J.

—The only question which this court is called upon tó decide on the present appeal is whether or not the damages awarded the plaintiff by the jury were excessive. The judgment was not assailed on any other ground in the oral argument, nor is any other reason for reversal suggested in the brief of the counsel for the appellant. I think the amount of the verdict plainly exceeds any sum which could fairly be regarded as compensation for the injuries which the plaintiff sustained. His left arm was badly injured, and its usefulness to a great extent permanently impaired. A difficult surgical operation became necessary, and the plaintiff, in the course of his illness, was compelled to undergo much suffering. For all this he was entitled to be compensated, and the fact that the jury has given even very liberal compensation in such a case does not warrant the court in setting aside the verdict. For his expenditures on account of surgical and medical treatment, amounting to $3,497.85, the plaintiff was also entitled to be repaid. According to the plaintiff’s testimony, he was able to walk 10 or 12 miles of a morning prior to the accident, but since he was hurt a walk of 2 or 3 miles made him very tired. Before the accident he was a great reader, but at the time of the trial he could not read three pages, because lie got tired, and did not know what he was reading. He was very good natured formerly, but now he had become very irritable, and matters irritated him very much. While these matters were entirely proper for the jury to take into consideration in assessing the damages, it is to be noted that there is, no evidence whatever as to the probable duration of the nervous and mental coniditions thus described by the plaintiff, assuming that they were the result of the injury caused by the negligence of the defendant The amount of the verdict indicates that the jury acted on the assumption that such conditions were permanent, or would be permanent, although there was no proof of that fact. No loss of earnings was shown, and the only permanent ■ injury established by the proof was that to the arm already mentioned. Upon these circumstances, it seems to me impossible to resist the conclusion that the jury, in assessing the damages at §25,000, must have been actuated, to a very considerable degree, either by sympathy for the plaintiff or a desire to punish the defendant. If they were in-' duced, by either feeling, to add anything to the amount of their verdict, it would be, to that extent, excessive. It is not only the power,' but the duty, of this court to set aside a verdict, in an action to recover damages for personal injuries, where that sum awarded by the jury has been enlarged beyond the measnre of compensation as the result of sympathy and prejudice. Houghkirk v. Canal Co., 92 N. Y. 219.

After a very careful consideration of all evidence in this case relating to the injuries sustained by the plaintiff, I am satisfied that a verdict which awarded him $15,000 in addition to the expenses which he incurred for surgical and medical treameiit would have gone to the verge permissible liberality in the assessment of damages in such an action as this.

I think the judgment should be reversed, and a new trial granted, unless the plaintiff stipulates to reduce the verdict to §18,497.85.

All concur.


author: GAYNOR, J.

text:
    Emma Closs, Pl’ff, v. Julia E. Eldert et al., Def’ts.

      (Supreme Court, Queens Special Term,

      Filed February 20, 1896.)

    1. Down®—Devise in lieu op.
    To put a widow to her election between her dower and the provision in a will, the taking of dower must be inconsistent with such provision.
    2. Same.
    A devise of testator’s estate “equally” to his widow, son and daughter, “share.and share alike,” is a devise to the widow in lieu of dower.
    A. N. Weller, for pl’ff; John Fennel, for def’ts.
   GAYNOR, J.

—After making specific devises of real estate to his widow, son, and daughter, respectively, the testator, by the seventh clause of his will, gives and devises all the rest, residue, and-Remainder of his estate, both real and personal, “equally” to his said widow, son, and daughter, “share and share alike. Did this put the widow to her election in respect of the residuary real estate ? It seems to me that it did. The widow does not depend upon her husband for dower. It is not his to give,.but is hers by law. It follows that, unless it appear from a husband’s will that he did not intend that his widow should take both dower and the provision which he therein makes for her, she is not required to elect which she shall take. 1 Rop. Husb. & Wife, 582; Bull v. Church, 5 Hill, 206. To put her to such election, the taking of dower .must be inconsistent with the provisions of the will. The test is whether the setting off of one-third of the real estate by metes and bounds to the widow for her dower would make the carrying out of the devise of the will impossible. 1 Rop. Husb. & Wife, 576 ; In re Zahrt, 94 N. Y. 609. The devise here is of all of the residue to the widow and two children, share and share alike. It would be impossible to thus partition it equally among them if one-thir'd has first to be set off by metes and bounds to the widow. Any division of it except into thirds would disturb and disappoint the will. I see no conflict between my conclusion and the decision in Konvalinka v. Schlegel, 104 N. Y. 125 ; 5 St. Rep. 562. There was a peremptory power of sale of the land in the will construed in that case, with a direction to divide the proceeds among the widow and children, share and share alike. This meant & sale subject to the widow’s right of dower. That case did not present the practical impossibility of an equal partition of the lands by metes and bounds if one-third had first to be set off for the widow. Sfor does the case of Lewis v. Smith, 9 N. Y. 502, control this case. There the devise by the husband was of his entire estate to his widow for life, and it was held that there was no conflict between her taking as doweress and also under the will, it being carefully pointed out that there was “no person who takes an interest under the will during her lifetime with which the ■claim of dower will conflict.” In the Zahrt Case, supra, there was the same devise to the widow, but upon the conditions that she should keep the estate in repair, pay the taxes, assessments, and water rates, and keep the buildings insured. The court distinguished that case from Lewis v. Smith, because of the said conditions imposed by the will, and held that the widow was put to her ■election. I do not just now see how the requirements of the will concerning waste, and the payment of taxes, water rates, and ordinary assessments, made a difference, for they would have existed the very same if the will had not mentioned them. The law has always imposed them upon the widow, the same as upon other life tenants. 2 Reeve, Eng. Law (Finl. Ed.) pp. 173, 436 ; Code Civ. Proc. § 1651; Thomas v. Evans, 105 N. Y. 612 ; 8 St. Rep. 647. ■ If the inconsistency be based wholly upon the requirement for insurance, it shows that a much smaller inconsistency than that presented by the present case may require the widow to elect. Let judgment of partition and sale be entered accordingly.


author: VAN BRUNT, P. J.

text:
    Charles T. Wills, Resp’t, v. Charles B. Webster et al., App’lts.

      (Supreme Court, Appellate Divisan, First Department,

      Filed Feb. 7, 1896.)

    1. Building contract—Interference by owner.
    Owners cannot, by reason of a provision in a building contract that the work is to be done at the convenience of the owners, refuse to permit the contractor to do certain work on the building until after the time for the completion thereof, and then claim, in an action for the contract price, that the contractor failed to complete the building within the time agreed.
    2. Same—Liquidated damages.
    Where such contract fixes a certain sum as liquidated damages for each day’s delay in completing the work within the time agreed, and it appears that the owners prevented the contractor from completing the work within such time, though the owners are not responsible for the whole delay, they cannot recover for any portion thereof.
    3. Same.
    In such case, where the contractor allows the contract day to go by, at the request of the owners, he can only be made responsible for neglect and cannot be held under the contract. •
    4. Same.
    Where the contractor is absolved from the obligation of comoieting the building on the day fixed by the express action of the owners, such obligation cannot be renewed except by express contract.
    ' Appeal from a judgment in favor of plaintiff, entered upon the report of a referee.
    B. F. Einstein, for app’lts; A. C. Thomas, for resp’t.
   VAN BRUNT, P. J.

—This action was brought to recover a balance due upon a building contract The defendants, by their answer, denied that anything was due, and set up, by way of defense and. counterclaim, a provision in the contract between the plaintiff and the defendants, whereby the plaintiff agreed that, in case his work on the store mentioned"in the agreement should nob be completed on September 20,1893, lie would pay to the defendants, or they might, at their option, retain the sum of $250 for each and everyday that his work was uncompleted, until the same was finished, and in which it was further stipulated that said $250 should be liquidated damages, and not a penalty. The defendants'further alleged that the plaintiff did not complete the work to be done by him under said contract on September 20,189&, nor until October 16, 1893, and that the defendants have suffered damage, bv reason of the failure to complete said work until October 16, Í893, in the sum of $6,000. The plaintiff replied to the counterclaim, admitting that the work was not completed on the 20th of September, and alleging that he was delayed in the completion of the work, and was prevented from completing the same within the time limited, by the acts, omissions, and delays of the defendants, and their agents, servants, and other contractors and mechanics employed by them; and that the defendants gave to said persons the possession of portions of said building necessary to be used by plaintiff to complete his work, and requested the plaintiff not to interfere with them, and not to complete hi,s work under the contract until the said work of said workmen and mechanics was completed. Upon consent of the parties, the action was referred, and the referee found in favor of the plaintiff, upon the ground that the defendants interfered with the plaintiff, and delayed the completion of his work beyond the time contracted for. A judgment having been entered upon such report, from such judgment this appeal is taken.

In the consideration of this appeal, it will not be necessary to examine in detail the voluminous evidence which was offered before the referee upon the trial of this case. It is claimed upon the part of the appellants that the referee erred in finding that the defendants interfered with the plaintiff, and prevented the completion of his contract, by refusing to permit the plaintiff to transfer certain iron shutters from the easterly wall of the old building to the easterly wall of the new building, and to connect the two buildings by doors, for the reason that the provision of the contract was that this work was to be done at the convenience of-the owners. But this convenience of the owners, if they are to hold the contract- or to the time limit of the contract, must refer to some suitable time within the term of the contract. They cannot wait until after the time for the completion of the work has expired, as they did in the case at bar, and then claim that the contractor is not excused from his default in completing his work in time. In the case at bar, the contractor wanted to remove the shutters within the time limited by the contract, and he was requested to leave them there until a considerable time after the contract should have been completed. This delay, clearly, was through no fault of his ; and, when it was agreed to, it extended the time for the performance of the contract.

The appellants further claim that the referee erred in finding that the defendants’ architects, with the knowledge and consent of the defendants, prevented the completion of the plaintiff’s contract on September 20, 1893, by procuring him not to lay the wooden flooring on the first floor, and to omit to put in the iron store front, until ten days after September 20, 1893. The evidence is conclusive upon this point that large quantities of materials were lying upon this floor, belonging to the other contractors, and that the plaintiff demanded the possession of that floor in time to have completed the work, but that he was requested to leave the material there, and not to complete the contract until requested by the owners. And this evidence also shows that, after the plaintiff got possession, this work was completed within a short period of time.

It is further urged that the referee erred in finding that the defendants prevented the plaintiff from completing his contract on September 20th, by demanding and receiving, for the convenience of other contractors, the exclusive use of the elevator shafts. But, if the referee did err in this respect, it does not in any manner affect the two other points upon which the referee based his decision. By the uncontradicted acts of the defendants—by their requests, established beyond peradventure—the plaintiff refrained from doing those things which were necessary'to complete his contract within the time limit. This being the case, how is it possible to hold him for a fixed sum, as liquidated damages for noneompliance? But it may be said, and was urged upon the argument, that although this may be the condition of affairs, yet still these requests and acts of the defendants were not responsible for the whole of the delay, and that, therefore, there should be some apportionment of the delay. But in their contract these defendants were careful explicitly, and with precision, to define the rights of the parties. They provided that the §250 a day was not to be a penalty, but liquidated damages. There was to be no question about it. If the plaintiE delayed he was to pay §250 a day as long as the delay continued. This was to be liquidated damages, and not a penalty. The plaintiE being under this strict obligation, how can he be held to it when, by the very request of the defendants, he refrained from so completing his contractas to bring hivn-self within the limit fixed by such contract ? If the specified day has passed, and has passed because of the acts of the defendants, who is to determine for how much of the delay the plaintiff must pay §250 a day—this precise, fixed, liquidated damage ? It is manifest that, when the plaintiff allowed the contract day to go by, at the request of the defendants, he can only be made responsible for neglect, and cannot be held under the contract. The plaintiff being absolved from the obligation of completing the building on the 20th September by the express action of the defendants, such obligation could not be renewed, except by express contract. The plaintiff could not know when he -would be held to be in default, under such circumstances; and where, by the terms of the contract, liquidated damages are to be sustained after a given day, the plaintiff is entitled to know with precision when he is laborihg under such an obligation, and not to be required to leave it to the judgment of a jury as to what is a reasonable time. It is impossible, under the contract, to apportion liquidated damages. Either the liability for the liquidated damage exists, or it does not. It ■cannot half exist, and half be waived. In the case at bar, there was a definite contract, which was abrogated by the acts of both parties; and it requires equally concerted agtiou to breathe life into it again—of evidence of which the case is entirely barren.

The judgment should be affirmed, with costs.

All concur.


author: WILLIAMS, J.

text:
    Francis J. Gasquet et al., as Trustees, etc., App’lts, v. Louis M. Pollock et al., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    Wills—Accumül.vhon.
    Where the income from the share of an estate is bequeathed to an insane person for life, and on her death the said share is to go to her children, her committee is entitled to the whole income from such share.
    Appeal from a judgment in favor of defendants.
    The action was brought for an accounting by plaintiffs, as trustees under the will of Evelyn G. Marshall. The testatrix had three daughters, one of whom was of unsound mind. By her will the testatrix divided her estate into three equal parts. She gave to the daughters of sound mind each an undivided one-third of her estate, and she gave the remaining one-third of her ' -estate to the plaintiffs, in trust for the benefit of the daughter of unsound mind, by the following language: “ The remaining one -of said three shares I give and bequeath to my executors, in trust, nevertheless, to be invested and kept invested, and to collect and receive the income therefrom, and apply the sum to the use of my daughter Maria during her natural life, and upon her death to assign, transfer, and set over the said-share to her children, if any,” etc. A committee has been appointed of this daughter of.unsound mind, and is a party defendant in this action. The income upon this trust fund has accumulated in the hands of the trustees, beyond the immediate necessities of this daughter, to the amount of $100,000 and upwards. The decree herein ordered such accumulated income to be paid over to such committee. From this provision in the decree this appeal is taken, the trustees claiming that they are entitled to retain all accumulation of income from this fund in their hands until the death of this daughter.
    Welcome S. Jarvis, for app’lts: J. Frederic Kernochan, for resp’ts.
   WILLIAMS, J.

—It will be observed that by the will only the one-third share of the estate itself was given after the death of this daughter, to her children, etc. The income therefrom was directed absolutely to be applied to the use of the daughter. There was no discretion given the trustees to apply to her use a part only of the income, nor as much as her needs required, nor as much as, in the judgment of the trustees she needed. The whole income was given to the daughter, and she is entitled to have it all. The fair construction of the language used in the will is that the income shall be paid over, as it accrues, to the daughter. The words “ applied to the use of ” are equivalent to the words “ paid over to.” See Leggett v. Perkins, 2 N. Y. 297 ; Moore v. Hegeman, 72 id. 376. If the daughter was of sound mind, she would be entitled to have the income applied to her use by having it paid over to her as it accrues. Being of unsound mind, she is represented by her committee, who is entitled to have the accumulated income paid over to him.

The decree was, therefere, correct in the respect complained of, and should be affirmed, with costs to respondents to be paid out of the fund. We think, under the circumstances, no costs should be allowed against the appellants.

All concur.


author: RUMSEY, J.

text:
    John Rogers, App’lt, v. Edward C. O’Brien et al., as Dock Commissioners, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    1. Municipal corporations—Taxpayer’s action.
    The taxpayer’s act is not intended to restrain an attempt by municipal officers to perform their duty in good faith in an effort to protect the property in a municipal corporation.

      2. Same.
    Where public officials, in behalf of the city,' are in good faith insisting' upon a right of property against a person, though they may he wrong in their claim as to what the law is, the statute does not authorize another taxpayer to interfere to restrain them.
    3. Same.
    Mor can the one against whom the right is asserted interfere in his right as a taxpayer.
    4. Same.
    Under chapter 30,1 of 1892, a taxpayer claiming possession of land appurtenant to public wharfage, under authority from the dock commissioners, cannot maintain an action to enjoin such commissioners from interfering with his possession, where the commissioners claim that he occupies such property under an agreement to pay rent, and refuses to perform such contract.
    Appeal from an order, vacating an inj'uncting enjoining defendants from requiring plaintiff to pay rent assessed for the use o£ property appurtenant to a wharf privilege.
    Charles Blandy, for app’lts ; Theodore Connoly, for resp’ts.
   RUMSEY, J.

—The plaintiff alleges that he is a resident and taxpayer of the city of New York, and has been assessed, within a year before the commencement of this action, for upwards of $1,000; and that the defendants are commissioners of. docks of the city. He states that on the 1st of May, 1894, the commissioners of docks made written lease to one William A. Wells of certain wharf property situated on the North river, between West 132d and West 133d streets; that, before the making of the lease, the defendants represented that a certain strip of land,, fifty feet wide, and running the length of the bulkhead,'and parallel to it, was a part of the appurtenances demised by tip-lease; and that, in pursuance of that representation, the lessee entered into possession of the strip of land, and continued to occupy it, without being disturbed, until the month of September, 1895;: but that in the month of October, 1895, the defendants commenced negotiations with the plaintiff to compel him to pay for the use and occupancy of the strip of land, claiming that it did not pass by the lease. These negotiations were followed by a resolution passed by defendants on the 17th of October, 1895, that the plaintiff should pay for the use of that strip the sum of $1,000-■ per annum during the pleasure of the defendants. The plaintiff alleges that he resisted the efforts of the defendants to require him to pay this sum, claiming that the land passed under the lease, and that, if it did not pass under the lease, it was not property over which the defendants, as commissioners of docks, had any jurisdiction ; but that afterwards the defendants sent a notice to the plaintiff that, unless he at once made quarterly payment at the rate of $1,000 a year for the use of the premises, steps would be taken to remove bis property, which bad been stored upon the land, and to impose a fine upon him for violation of the regulations of the department. The plaintiff further alleges that he requested the board to reconsider their action, which they refused to do, and he alleges generally that their acts are illegal, and that, if they be not restrained from removing the plaintiff from the strip of land, he will suffer irreparable damage. There is no allegation in the complaint that the proposed acts of the defendants as commissioners will cause any waste or injury to the property of the «corporation of the city of Hew York. Upon this complaint, and upon the affidavits served with it, a temporary injunction was granted, as demanded in the complaint, coupled with an order to show cause why such injunction should not. be continued to the final judgment. "Upon the hearing of the order to show cause, the defendants produced, among other things, a copy of the lease made between themselves and Wells, by which it appeared that on the 1st day of May, 1894, the defendants leased to Wells the wharfage which might arise or become due for the use and occupation, in the manner prescribed by law, of certain public wharf property, being the same more particularly described in the com plaint. Wells covenanted in the lease that he would not at any time, in any manner, directly or indirectly, assign or sublet the wharfage therein demised, or any part thereof, to any person, without the consent of the defendants. The defendants denied that they made the representations mentioned in the complaint to the effect that the 50-foot strip of land passed as appurtenant to the lease, or that the lessee, took possession of it under the lease. In their papers, they alleged that the plaintiff took possession of the 50-foot strip of land; that the defendants insisted that he should pay $1,000 a year for the use of it, which he agreed to do; and that thereupon an agreement was made, by virtue of which the defendant leased to him, during the pleasure of the board of docks, the said 50-foot strip of land, at an annual rent of $1,000. This agreement is sworn to by Mr. Einstein, oue of the commissioners, and by Mr. Edward S. Atwood, the superintendent of docks. It is not denied by Rogers. The only statement made by him with regard to it is contained in his communication to the boaad of docks to the effect that he never intended tó acquiesce in it; that the agreement as made by him was tentative only. It is not denied by the defendants that they propose to remove the .plaintiff from this 50-foot strip of land unless he pays the rent which he agreed to pay. Upon this fact, among others which were made to appeal’, the injunction was vacated upon the return of the order to show causé, and from the order vacating the injunction the plaintiff appeals.

1 It is not necessary upon this appeal to consider the question whether the plaintiff, in his individual right, may maintain an action to prevent the defendants from doing the act which they . threatened to do. He makes no claim here that the action is brought upon any such theory. The only right which is set up in the complaint is the alleged right of Wells, based upon the lease, to take possession of this 50-foot strip as appurtenant to what was leased to him, and the fact that he did take possession of it under the lease. It appeared from the papers that, whatever Wells may have acquired under that lease, he could.not sublet it or assign it to anybody else, and for that reason the plaintiff has no right here under this lease, as against these defendants. Neither is it necessary upon this appeal to decide the extent of the dominion of the defendants over the land in dispute. Any conclusion' which should be reached in this action upon that question would be of no force as against Wells, who is not a party to the action, and it would not operate as an adjudication as to his rights. The only question that is to be decided here is whether, upon the allegations of the complaint and the facts stated in the papers, the plaintiff, as a taxpayer, can maintain this action under the provisions of chapter 301 of the Laws of 1892. That statute provides that all officers acting for any municipal corporation in this state may be prosecuted, and an action may be maintained against them, to prevent any illegal official act on the part of said officers, or to prevent waste or actual injury to any property, funds, or estate of such municipal corporation by certain persons more particularly described in the act. Laws 1892, c. 301. The plaintiff brings himself witldn the description of the persons who may maintain such actions, but there is no allegation, nor can it be inferred from the statements in the papers, that the acts of the defendants will in any way involve any waste or injury to the property or funds of the city; and therefore the only question left to be examined is whether the action whieh it is alleged the commissioners are about to take is illegal, within the meaning of this statute.

The substance of the allegation is that the defendants, as commissioners of docks, claim that they have a title to this fifty-foot strip of land, and propose to assert it, and it is from this action that plaintiff wishes to restrain them. He makes no charge that they intend no fraud against the city, or that they are guilty of any bad faith in their official action, so far as the city is concerned. He stands solely on his claim that they have no title to this strip, and therefore it is illegal on their part to assert it, or that by the lease Wells acquired aright to the possession of the strip of land. If this strip is wharf property, within the meaning of the statute, then, clearly, the defendants, composing the department of docks, have exclusive charge and control of it (Consolidation Act, § 711); and they also have the exclusive power to make regulations with regard to it (Id. § 717). In view of the allegation that the understanding between Wells and the defendants was that this fifty-foot strip of land passed by the lease to Wells, and that he took possession of it under his lease, it is difficult to see how the plaintiff can allege here that the property is not in the control of the defendants, under the provisions of the statute just cited. But passing that point, and conceding that there may be some doubt upon that subject, the fact remains that the defendants insist that this property is within their control, and that they propose to do with it that which they undoubtedly have the right to do if they are right in their contention. If they have the charge of this property, it is undoubtedly their duty to keep off intruders, and to take possession of the land. The performance of that duty constitutes no fraud or bad faith towards the city. If it can be said to be Illegál, it is only illegal in the sense that the act of any owner of property is illegal if he is msitaken as to his rights. From the standpoint of the plaintiff, the illegality here simply consists in the fact that defendants claim, as against the plaintiff, a right based upon a title which they have not in fact The alleged illegality exists simply with relation to the plaintiff, and because, as against him, they have no right or title which they can assert. Giving to the contention of the plaintiff the broadest possible meaning, it extends no further than that.

To. this contention there are two answers. In the first place, the taxpayers’ act was not intended to restrain an attempt by municipal officers to perform their duty in good faith in an effort to protect the property of a municipal corporation. To enable the taxpayer to interfere and prevent the action on their part, the courts require something more,—some fraud or bad faith, or some such action as is beyond the power or authority of the officer, and which will waste the property of the corporation or impose improper burdens upon the body of the taxpayers. As is said by the court of appeals, the courts will not become arbitrators between tax payers and their municipal officers in every instance of disagreeing opinions or conflicting judgments, and have decided that, jurisdiction in the officials existing, the courts can interfere in actions of this kind only where some fraud or collusion or bad faith is alleged and proved. Zeigler v. Chapin, 126 N. Y. 342; 37 St. Rep. 490. To hold otherwise would he to enable a taxpayer of the city to interfere in every case where a dispute arises between the city board and any other individual, in which the hoard proposes to assert a legal right, and it would make no difference whether the person against whom the right was asserted was made a party to the action or not. Such a construction of the law would draw into a court of equity every possible dispute which might arise between any municipal authority and any other person. Such á construction cannot be permitted. If, im behalf of the city, public officials are in good faith insisting upon a right of property against a person, although they may be wrong in their claim as to what the law is, this statute does not authorize another taxpayer to interfere to restrain them. If another taxpayer cannot interfere, certainly the one against whom the right is asserted cannot interfere in his right as a taxpayer. He must, to protect his private right, pusue the same remedy that any other citizen must pursue to protect his private right against any other than a public officer.

In this particular case, however, the plaintiff has, by the established facts, put himself out of court. His own allegation is that he took possession of this property under the titlue which the lessee acquired by the lease from the defendant. The facts establish that he remains in possession during the pleasure of the defendants, by an agreement with them. In either aspect of the case, he cannot be heard as a taxpayer here to say that the defendants, with whom he has entered into a contract, may not proceed to assert their rights of property as against him. There is no aspect of this case in which it would have been proper to grant this injunction, and the order vacating it must therefore be affirmed, with §10 costs and disbursements. All concur.