author: Barker, J.:

text:
    In the Matter of the Petition of CYRUS SWAN and Others, to Drain certain Low and Wet Lands in Niagara County.

      General drainage acts —1869, chap. 888; 1881, chap. 608 — land damages need not , be paid prior to the levying of the assessment.

    To authorizethe commissioners, appointed in proceedings instituted under the general drainage acts (1869, chap. 888, and 1881, chap’. 60S), tó levy and collect the assessment authorized by those acts, it is not necessary that the damages awarded to the owners of land over which the ditch is to be constructed should have been actually paid to them prior to the levying of the assessment.

      Appeal by Earl Pierce from an order of the Niagara County Court, approving of the second assessment made by the commissioners appointed to drain certain lands, on the 2éth day of January, 1883. .
    These proceedings were instituted under the general drainage acts, chapter 888, Laws of 1869, and chapter 608, Laws of 1881.

      John T. de S. Cady Murray, for the appellant.

      Ellsworth & Potter, for the respondent.
   Barker, J.:

The appellant resists the tax assessed on his lands to pay a deficiency arising from the cost of the construction of the ditch, and for the payment of damages awarded to landowners over whose lands the ditch is located.

A single objection is interposed by the appellant, and this is a legal' one, and it is this, that at the time of the assessment the commissioners had not acquired title to some of the lands over which the ditch is located and constructed. The original proceedings were instituted in the year 1870, and the work completed in 1872, and the ditch has been in use ever since. The lands drained are located in the towns of Cambria and Wilson, Niagara county, and the ditch crosses the several premises of seventy-five separate and distinct owners. The area of lands declared to be benefited and as laid down on the map, made and filed by the commissioners in pursuance of section 6 of the act, is 10,000 acres. The first assessment was made in 1872, and the one now under review was made in 1883, as authorized by the amendment to the general act authorizing a reassessment to meet deficiencies. (Chap. 608, Laws 1881.) Of the whole number of landowners whose premises are intersected by the drain, twelve have never made any written conveyance granting to the commissioners the right to construct; and maintain the same; nor have they been paid for the damages sustained by the construction of the ditch. After the first assessment, and before this ,one was made, the commissioners, by appropriate proceedings conducted in conformity with the act, caused the damages of the twelve persons mentioned to be determined and awarded. The appellant is not one of this class of landowners. The premises which he now owns, and upon which the assessment is now levied, of which he complains, he purchased since the ditch was constructed, his grantor having conveyed the right to construct the drain, and also paid the first assessment as laid on these lands. It is unnecessary to make any further statement of the proceedings taken by and before the commissioners, for the purpose of considering the question now presented.

That it was necessary for the commissioners by release, purchase or by proceedings to condemn the samé, to acquire the right to construct the ditch over the lands of the several owners, before they could lawfully construct the same, cannot be doubted, and is admitted by the respondent. . In our consideration it was not the intention of the legislature nor has it been made a condition precedent to the right to levy an assessment, that the fight of easement should be acquired before an assessment could be lawfully laid and the tax collected to secure the funds necessary to pay the cost of construction and the land damages. It is true that the legislative intent on this subject is not very clearly expressed in any terms of the act, but after a careful consideration of alldts provisions, and considering the aim and purpose of the act and the mode and manner in which it- is to be accomplished, We are of the opinion that its fair and reasonable interpretation supports the conclusions which we have reached.

If the views which we entertain are mistaken and the contrary was the intention of the legislature, then the appellant is entitled to a reversal of the order for the reason that the commissioners have failed to observe the restrictions placed on their powers. The question is an important one and should be carefully considered, as it involves the rights of property and the proper construction of a general law applicable to all parts of the State, in which the public are interested and under which proceedings are being constantly prosecuted..

The drainage of the swamp lands when made under the provisions of the general act is a State work, and when completed the proprietorship in the structures, easements and title to land acquired, is in the State. The right of property is nowhere else vested. It does not belong to any local municipality, such as the county, towns, cities or villages, within whose territorial limits the drains and structures may be located, nor has any individual, or class of individual members of the general public, any estate or right therein. . The State has authorized the drainage for the purpose of preserving and promoting the public health, and for no other object, and the commissioners are in a'sense State officers, at least they are not officers of any of the subordinate political divisions into which the State is divided. {In the Matter of Ryers, 72 N. Y., 5.)

The order and method of procedure are clearly indicated and lined out in t lie statute. The commissioners having been duly appointed their first duty is to view the lands, and by proper investigation of the subject determine whether it is necessary for the purpose of draining the lands to construct ditches, and also whether it is necessary for the purpose of preserving the public health to drain the premises described in the petition. If the commissioners are of the opinion that the work should be done, then their next-duty is to ascertain and determine the cost of construction, including land damages and other incidental expenses, by making a statement in writing of the several sums necessary for such purposes, which statement must be verified by their oaths and filed in the proper office. Of the aggregate sum thus fixed upon they may ,assess a part on the village, town or county, in which the lands drained are situated, and the balance is to be assessed among the owners of such of the lands as are included in the map-, or adjoining thereto as they shall deem benefited thereby, and the sums so assessed are deemed liens on such lands until paid. By the eleventh section, if such statement is not appealed from the commissioners, within thirty days thereafter, must proceed to levy and collect the tax, first giving the notice required by the other paragraphs of the act. If such assessment remains unpaid for the period of thirty days after demand made, then the commissioners are empowered to advertise and sell the lands upon which the unpaid tax is assessed.

It is manifest from these and other provisions of the act that the legislature intended that the commissioners should make a full and just compensation to all landowners whose lands are .taken fpr the construction of the drain or otherwise injured thereby. In the ninth section it is declared in positive terms that the land damages shall be paid to the owner before the commencement of any work thereon, and by the eleventh section it is provided, in case any person shall have been awarded land damages, the same shall be deducted from any assessment made on his property and the balance only collected. A close examination of the provisions of the act fail to disclose an intention that the commissioners shall procure the necessary title before assessing and collecting the money necessary to meet the cost of constructing the drains.

The provision that an assessment may be off-set against an award of land damages clearly indicate that the distribution and assessment to and among the persons benefited might in the course of due procedure precede payment of the damages awarded, and as payment of such damages must precede the acquisition of the necessary title, it fairly discloses the legislative intent to be as we have determiDed. As the act requires that the extent and character of the works and the cost of their construction must be determined in the first instance, and as the act contains provisions for ascertaining the compensation which should justly be made to the landowners before their lands are condemned for public use, we are of the opinion that the legislature possessed the power to direct the assessment and collection of a tax necessary to construct the work prior to acquiring the title or right of use from individual owners.

There is no provision in the Constitution restraining the legislature from levying and collecting a tax for the purpose of meeting and defraying the expense of a public improvement for the use of the State, to be made on private property prior to the acquisition of the right to take such property for the public use, provided provision is made for making compensation to the owner prior to the seizure and use of his property. The legislature may, as the appellant contends it did in the drainage act, make it a condition to the laying of a tax, that the necessary title be acquired to the lands on which the improvements are to be made. In many instances 'taxes are laid and collected for the purpose of creating a fund with which to meet the future expenses of government and to protect and construct contemplated public improvements. I am not aware of any constitutional provision or judicial determination which requires that the title to the private property necessary to be acquired in executing such public work shall be secured before the collection of the tax. The power of the legislature to make special assessments for local improvements is derived from'the taxing power and is not •distinguishable in principle from the general right of taxation. In illustration, suppose the legislature should determine to enlarge the Erie canal in a locality, specifying in detail the work to be done, and describing the private property necessary to be used, and at the same time making provision in a constitutional manner for ascertaining the damages of the landowner, and also declaring that the cost of the work, as well as the land damages, shall be assessed on the property in some village or town, would, it be unconstitutional or unlawful to require the levy and collection of the estimated expenses, before the State acquired the title to the lands to be used ? I have no hesitation in answering the question in the. negative. The question before us is, in every aspect, as to legal propositions like the one supposed. (The People ex rel. Griffin v. The Mayor of Brooklyn, 4 N. Y., 419.)

These views are not in conflict with the legal proposition laid down in many cases, that taxes cannot be legitimately levied and collected for the purpose of carrying on a public improvement which is to be cdnstructed on the lands of another, without awarding to such owner a just compensation for the injury sustained thereby. ¡Such acts would be unlawful and amount to a trespass. (People ex rel. Williams v. Haines, 49 N. Y., 587; Olmsted v. Dennis, 77 id., 378; Matter of Cheeseborough, 78 id., 232.) None of these cases hold that where the plan and nature of the improvement have been first determined by the proper authorities, and the constitutional method adopted for making^ compensation to the owners 'of private property which may be taken, that taxes, cannot be lawfully levied for the purpose of securing the necessary funds with which, to do the work and to pay the land damages, prior to doing the work or acquiring title to such private property as may be needed for the purpose contemplated. The legislature may not, as has been frequently adjudicated, levy taxes on private property for unlawful purposes. In People v. Haines (supra), the court in considering a special act (chapter 774, Laws of 1867) for draining certain low lands, held that power was not vested in the commissioners appointed under the act to assess the cost of the work upon property benefited, without having first acquired the right to do so from the owners whose lands were used for that purpose. The commissioners in that case made no effort to acquire such right, and constructed the ditches on the supposition that the landowners were not entitled to any compensation. For these reasons it was decided that the tax was void.

In Olmsted v. Dennis (supra) the general drainage act-was under consideration, but the question now up was not involved in the judgment. The issue there was whether the commissioners who had borrowed some money from the plaintiff to-aid in carrying on the work were personally liable to him, because they had neglected to discharge their official duties. One of the charges made against them was that they had not paid for or acquired the title to the lands on which the drain was constructed. In reply to this accusation, Earl, Justice, said: They could not levy and collect any assessment for the expense of' the drain until they had acquired a sufficient title to such lands. The persons to be benefited could be assessed only for drains lawfully constructed, and ■ which could be perpetually maintained.” (Citing 49 N. Y., 587, supra) This was followed by a remark that as the drains were constructed with the consent of the owners, although the commissioners had not acquired the title, they were not trespassers, as they did not refuse to pay for the lands or acquire title thereto. We’do not understand that the court intended in this case to say more than to affirm the positions which it had'before taken on the subject, and which were stated in the previous case of The People v. Haines. In the Matter of Cheeseborough (supra) a sewer had been constructed over the lands of a party, and the same was intended for permanent use in draining adjacent land, and for the purpose of preserving the public health in the locality where it was constructed. The owner had not granted the easement necessary for maintaining the sewer, nor consented to its construction, and-the act under which the improvement was made did not make any provision for awarding compensation to the owner. It was held that the officials charged with the construction of the sewer were guilty of a trespass in entering upon the lands of the owner without his consent, and that “ the officials in the construction of the sewer committed a trespass, for the expense of which no valid ' assessment could be laid,” and the same was set aside for that reason.

The general principles of law laid down in The People v. Haines and Olmsted v. Dennis are no broader or different than those .asserted'in the last case, and they are all in harmony with the views which we entertain and have sought to express. In the case at bar all the owners who did not consent in writing, sufficient in form to secure the right to construct the drains, have had a full compensation awarded them, determined in a constitutional manner, for the damages they have sustained, and on payment of the same a sufficient title will be secured for the privilege of maintaining the drains. They all consented to the construction of the work, as is inferable from the history of the case set forth in the record, and the-prepayment of damages as provided in the act was for their benefit, which they could waive, and therefore the commissioners have not been trespassers in any respect upon the lands of private owners. (Olmsted v. Dennis, supra.)

There is no pretense that the commissioners have denied the right of any landowner to full compensation for his damages. On the contrary, the history of the case shows that they have acted in full recognition of their duty to make such compensation before entering upon the lands of individuals without their approbation and consent. The appellant’s grantor, by an instrument in writing made and executed under her hand and seal acknowledging a consideration, did grant and convey to the commissioners the privilege of constructing ditches and drains over the lands, in pursuance of the provisions of the general law, but the same was not acknowledged or executed in the presence of a subscribing witness and was never placed on record.

As the drains were constructed before the appellant made his purchase, he had notice of their existence even if he was ignorant that the written consent had been given by his grantor. As the owner of the land over which a portion of the ditch is constructed, and upon which a part of the tax is laid, he is in no better position to-resist the collection of the tax than any other one of the persons appearing in the list upon whom the tax is assessed. An equitable title has been acquired as against him, and a conveyance from him can be enforced at any time by proper proceedings, if a further one is necessary to secure a legal title. It is unnecessary for us to consider whether the instrument should be acknowledged or executed in the presence of a subscribing witness, before a legal right would ■be acquired, for it is sufficient as an executory contract, acknowledging the payment of a consideration agreed upon, and as the appellant purchased with the knowledge that the easement was being used,, the commissioners can at any time exact from the appellant and his grantor a full performance of the agreement. (Wiseman v. Lucksinger, 84 N. Y., 41.)

As no question is made as to the regularity of the proceedings in other respects, the order should be affirmed, with ten dollars costS’ and disbursements.

Haight and Bradley, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of the Application of the NEW YORK, WEST SHORE AND BUFFALO RAILWAY COMPANY, Respondent, to Acquire Title to Certain Real Estate of HERMAN COSACK and Others, Appellants.

      Taking of land by a railroad — a tenant cannot be allowed damages for expenses to be incurred in removing his personal property from the land.

    In appraising the damages to be awarded to the owner of a leasehold estate in premises which are to be taken for railroad purposes, the compensation must be limited to the market value of the interest of the lessee in the land taken, and all consequential damages arising from the interruption of his business, his inability to perform contracts entered into, the loss of profits and good will, and the expenses of removing his personal property from the premises must be excluded.

    Upon a hearing before commissioners appointed to appraise the damages to be awarded to the owners of premises, which were to be taken by a railroad company, the appellants, who were the owners of an unexpired leasehold estate therein, offered to prove that they were lithographers and that the expense of removing their personal property, consisting of lithograph stones, presses and other machinery would amount to $2,687.70.

      Held, that the evidence was properly excluded.
    Appeal from an order made at a Special Term ■ confirming the award and report of commissioners, appointed to appraise the appellants’ damages on condemning’ certain land for railroad purposes.
    The appellants were lessees of the property taken. The unexpired term, at the time of the appraisal, was two years and eight months; the whole term being for five years. The entire premises were tallen ; the owner of the fee had conveyed his interest to the railroad company, and the appellants were awarded the gross sum of $6,500 as the market value of their leasehold estate. The lessees were lithographers and used the premises for the purpose of carrying on that business. They offered to prove the expense of removing the personal property on the premises, consisting of 238 loads of lithographic stone used in connection with their business, sixteen presses, weighing about fifteen tons each, and other machinery, in all making about 413 wagon loads; and that it would cost in the aggregate to remove the same $2,687.70, of which the item of carriage hire alone would be $674. This offer was objected to,, on the ground that the expense of removing personal property from the premises sought to be acquired was contingent and consequential damage, and was not a proper item of damage to be considered by the commissioners. The objection was sustaiued and an exception was taken. This presents the only question argued on the appeal.

      Daniel H. McMillcm, for the appellants.

      Ansley Wilcox, for the respondent.

       See Matter of N. Y. C. and H. R. R. R. Co., ante, page 306.

   Barker, J.:

The commissioners in their award allowed the owners of the leasehold estate the full market value of the same as their damages, in lieu of their interest in the premises taken for the public use under the right of eminent domain. They properly rejected al( damages arising from the incidental expense of removing the articles of personal property on the premises and in use, and intended to be used, in connection with the business carried on by the appellants.

Under the statute authorizing these proceedings (chap. 140 of 1850) the compensation to be awarded is limited to the market value of the inter.est or estate in the land condemned, and all consequential dam-i ages arising oht of the interruption of business, inability to perform contracts, loss' of profits and good will, are excluded as not being within the legislative intent in determining the measure of damages. The expense of removing personal property from the premises is of the same character and are not to be estimated in assessing damages. The public right is exercised on the land itself. In the opinion of the legislature full payment, at the market value of the property taken, answers the constitutional provision requiring a just compensation to be paid to the owner of property taken for the public use.' The courts have uniformly concurred in such construction and uphold the validity of statutes limiting damages to the market value of the estate seized. The limitation placed on the jurisdiction of the commissioners under the general railroad law on the subject of damages is unmistakable, as a reference to its terms clearly indicate. A railroad company is authorized to purchase and acquire title to all lands necessary for .its purpose in running and operating its road and transacting its business; and if it is unable to make and conclude a contract, with the owner of such land for; the purchase of the same, for any cause, it may institute proceedings in the manner prescribed by the act “ for the purpose of acquiring such title,” and the commissioners, when appointed, are to ascertain and determine the compensation which ought justly to be made by the company to the party or parties owning or interested in the real estate appraised by them.” (Secs. 13,14,16 of chap. 140 of 1850.) The rule of damages thus laid down is so plain and distinct that there is no room for interpretation; the legislative restraint is so obvious and so completely expressed that no court can doubt over the question. The circumstances of this case do not present the question of compensation for the expense of removing the personal effects from the premises in any different light than it would be if the appellants were the owners of the fee instead of being tenants for a term of years. The company seeks to acquire a complete title to an entire parcel of land. It should not in fairness be compelled to pay more for the land than its market value, because the owner of the fee has carved out of it a leasehold estate. The lessees are entitled to receive as their damages the value of their term and the balance belongs to the remainder-man. The rule laid down by the legislature should be faithfully adhered to by the courts as affording a full and complete protection to the landowner and to the corporation. The rule of the statute has been uniformly applied by the courts since its adoption, although tjie question as now presented has not been passed upon in a case where the facts are precisely like those now before us. In the following cases the rule and the purpose of the statute are considered and passed upon. (Henderson v. N. Y. C. R. R. Co., 78 N. Y., 433 , Matter of the Utica, etc., R. R. Co., 56 Barb., 456; Black River and M. R. R. Co. v. Barnard, 9 Hun, 104; Matter of Prospect Park and C. I. R. R. Co., 13 id., 345; Matter of Comr’s Central Park, 54 How., 313; Matter of New Reservoir, 1 Sheld., 408.)

Statutes relating to the opening of streets and awarding damages to property owners bare received a similar construction, the courts in sucb cases confining the compensation to the market value of the property as the true measure of damages. (Matter of William and Anthony Streets, 19 Wend., 678; Matter of Furman Street, 17 Wend., 649.) In other States and in cases where the right of eminent domain has been exercised in the interest of the public, the rule of compensation adopted excludes all allowances for consequential damages and limits the award to the market value of the property. (Pierce on Railroads, 210-216 ; Mills on Eminent Domain, § 181-194.) In Edmands v. Boston (108 Mass., 537) and Cobb v. Boston (109 Mass., 444), and-also in Central Pacific Railroad v. Pearson (35 Cal., 263), the precise question was passed upon and the claim for compensation for the expense of removing personal property from the premises was rejected as incompetent.

The order appealed from is affirmed, and as the question is novel in its application, without costs.

Present —Barker, P. J., Haight and Bradlet, JJ.

Appraisal and report and order confirming the same affirmed, with ten dollars costs and disbursements.


author: Barker, JT.:

text:
    JANE HOLMES, Respondent, v. AUSTIN P. BUSH, Appellant.

      JÁen of a judgment — effect of opening the judgment and allowing it to sta/nd as a security for what ma/y be thereafter recovered — ■ Gode of Givil Procedure, see. 1356.
    On September 8, 1879, upon the application of one Holmes, against whom a judgment had been docketed on August ninth of that year, his default was set aside and he was allowed to defend the action, the judgment to stand as security for any judgment the plaintiff might thereafter obtain in the action. Before the trial Holmes died, and the plaintiff, his executrix, was substituted in his place, and thereafter a judgment was rendered against her, from which she appealed and procured an order providing that the docket of each of the said judgments be marked suspended upon appeal. After the docket of the second judgment thé plaintiff contracted to sell certain lands inherited from Holmes to the defendant in the present action; and after the appeal and the making of the order suspending the lien of the judgments, she tendered a deed thereof to the defendant pursuant to the contract, and upon his refusal to accept it on account of the said liens she brought this action to recover damages for his said refusal.

      Held, that the effect of the order setting aside the default and directing that the judgment already recovered should stand as security for any judgment the plaintiff might thereafter recover was to create a lien upon the land, which, justified the defendant in refusing to accept the deed. •
    That the said lien was not affected by the order made under section 1356 of the Code of Civil Procedure marking the judgments as suspended on appeal.

      Qucere, as to how the said lien should be enforced, whether by a sale of the land under process to be issued by the court or by a suit in equity. (Per Barker, J.)
    Appeal from a judgment in the plaintiffs favor, rendered on the decision of the trial judge at the Tates Circuit, a jury being waived.
    The recovery was for $526.60 damages. The action was brought to recover the unpaid purchase-money for lands sold by the plaintiff to the defendant. The contract between the parties was made on the 12th day of May, 1882, the entire purchase-price .being $2,000, and the recovery was for a balance thereof remaining unpaid. It was a condition of the contract that the payment for which the judgment was recovered should be made on the lpt day of July, 1882, upon the delivery by the plaintiff to the defendant of a good and sufficient warranty deed of conveyance of the premises. Before the commencement df this action the plaintiff tendered to the defendant a deed, in form, in compliance with the contract.
    One of the questions presented on the argument is whether the premises were, at the time the deed was tendered and the action was commenced, subject to a valid lien. The facts connected with that question are sufficiently stated in the opinion of the court.

      Wood c& Morris, for the appellant.

      Charles 8. Baker, for the respondent.
   Barker, JT.:

As to the undivided one-third part of the premises the plaintiff derived title from the heirs-at-law of Farley Holmes, deceased. On the 9th day of August, 1879, Balph T. "Wood recovered a judgment in the Tates County Court for the sum of $665 damages and ninety-four dollars costs, and the same was duly docketed and became a lien on the real estate of Holmes. Afterwards, and on the eighth day of September of the same year, Holmes made application to set aside the judgment, excusing his default in not appearing upon the trial of the issues before the referee, and an order was granted setting aside the default and allowing the defendant the privilege of defending the action upon the merits, and providing that the judgment stand as security for any judgment the plaintiff might obtain in the. action, and appointing another referee to try the issues. Before the trial took place the defendant died and Jane Holmes, this plaintiff, was appointed the executrix and was substituted as defendant in the action, and thereafter the issues were tried resulting in a j udgment in favor of the plaintiff for the sum of $753 damages and $230.44 costs, which was entered and docketed in the Tates county clerk’s office on the 13th day of March, 1882. From this judgment the defendants therein took an appeal to the General Term of this court, and on the 4th day of October, 1882, procured an order in terms providing that the docket of each of the judgments be mar,ked suspended upon appeal. The deed to the defen dant was tendered after the order was made, and thereafter this action was commenced upon the 22d day of October, 1882. At the time the deed was tendered the defendant knew of the existence of these judgments, and neither of them have been paid.

If the premises were subject to a lien as security for the payment of the debt which Farley Holmes owed Ralph T. Wood, for which a judgment was procured against his personal representatives, then this plaintiff had no right of action and the defendant was justified in refusing to accept the deed and declining to pay the balance of the purchase-money. (Burwell v. Jackson, 9 N. Y., 536; Delavan v. Duncan, 49 id., 485.)

The judgment recovered against the personal representatives of Farley Holmes never became a lien upon the real estate of which he died seized. At common law a judgment against either an executor or administrator could not in any way bind the heir or devisee, or effect the real estate derived from the testator or intestate, and the provision of the statute is to the same effect, and section 1823 of the Cade provides that the real property which belonged to a testator is not bound or 'in any way effected by a judgment against his executor or administrator, and is not liable tO' be sold by virtue of any execution issued upon such a judgment, unless the judgment is expressly made by its terms a lien upon such specific real property or expressly directs the sale thereof. The Revised Statutes on the same subject was to the same effect. (Baker v. Kingsland, 10 Paige, 366; Colson v. Brainard, 1 Redf., 324; Moers v. White, 6 Johns. Ch., 360:)

The question presented is therefore no way affected by the order of the court in which the judgments were recovered, marking the same secured on appeal, for the reason that section 1256 providing for the suspension of the lien, applies only to such judgments as are a lien upon real estate. The effect of the order opening the default was to vacate the judgment, and providing that the debt of the plaintiff in that action, the amount of which was in issue, should remain a lien upon the debtor’s real estate, upon which the judgment became a lien at the time of its docket. The defendant therein had applied to the court for a favor, and in granting it the court had the power to impose' the condition that the debt should be secured by a lien upon his property, and he having a'ccepted the favor and the issues being tried upon the merits, the lien in equity continues until the debt is discharged.

In Mott v. The Union Bank (38 N. Y., 18) an order was granted opening a judgment taken by default, and also containing a provision that the same stand “ as security of the alleged indebtedness of the defendant to the plaintiff,” and in commenting upon the character and effect of the judgment, after the order of modification, the court said : “ In substance and in form the judgment is one which neither acknowledges or establishes any indebtedness of Mott to the bank, but is a judgment given as security for the payment of any sum thaf the bank should establish that Mott was liable to pay, and given in order to vacate the judgment in all respects except merely as such security. It was to perform the same precise office as a judgment confessed without action for the same purpose and no other,” That the judgment could not be enforced and was not a final determination of the rights of the parties, but was permitted only to stand as a lien or security. (S. C., 8 Bosw., 591; Wilson v. White, 7 Cow., 477; 3 Wait’s Prac., 669.)

The hen thus secured is not merged in the final judgment, for that would deprive the party of all the benefits intended to be secured by the order of the court. At this time we do not need to consider how the lien may be enforced, whether the land may be ' sold by a process to be issued on application to the court in the nature of an execution, or whether a suit in equity is necessary, founded upon all the proceedings had in the action, and bringing before the court all the parties interested in the premises claiming under the deceased. If the views, which we have expressed, are correct, then it is unnecessary to consider any other question discussed on the hearing. '

Judgment reversed, new trial granted, with costs to abide the event.

Haight, Bradley and Corlett, JJ., concurred.

Judgment reversed and new trial granted, with costs to abide the .event.


text:
    GEORGE E. FISHER, Appellant, v. GOODRICH H. BUSH, Respondent.
    *■

      Agreement not to sell stoele — nor to vote by pi'ocey — when void as against public policy— such an agreement must be based on a real and special consideration.

    The complaint alleged that the plaintiff, the defendant and eight other persons, signed the following written sealed instrument: “ For value received from and paid to each other, we, the undersigned, stockholders of the GeneseeYalley Canal Railroad Company, mutually agreed with the other and to all, that we will not sell, assign, set over, pledge or give power of attorney to vote, 'or agree to sell, assign, transfer, set over, pledge or give power of attorney to vote, in any way, shape or manner, the stock which we respectively and individually own, hold or possess in said company without the concurrent consent of all signers to this instrument. * * * This agreement is made for mutual protection and to prevent the sale of the company’s franchise by a majority of the members of the present board of directors who are, and who represent, a minority of the shares of the capital stock of this company.”

      Held, that the agreement was void because:

      First. It was in restraint of trade and against public policy.

      .Second. Because the clause providing that none of the signers should vote by proxy was a pernicious and unlawful provision.

      Third. Because it was not founded upon an adequate and sufficient consideration. Agreements of this character must be supported by a real and special consideration.

      H'a/oemeyer v. Havemeyer (45 Supr. Ct. R., 464; affirmed, 86 N. Y., 618), distinguished.
    Appeal from a judgment sustaining the defendant’s demurrer to the first alleged cause of action set out in the complaint.'
    The plaintiff and defendant, with eight others, made and signed an agreement in writing, under their hands and seals, of which the following is a copy: Eor value received from and paid to each other, we, the undersigned stockholders of the Genesee Yalley Canal Railroad Company, mutually agree with the other, and to all, that we will not sell, assign, set over, pledge .or give power of attorney to vote, or agree to sell, assign, transfer, set over, pledge or give power of attorney to vote in any way, shape or manner, the stock which we respectively and individually own, hold or possess in said company, without the concurrent consent of all signers to this instrument. And either of the parties who shall be'guilty of a breach of this agreement, shall be liable to each of the other parties hereto for tlie full value of the stock held by each respectively, which full value shall be deemed the liquidated damages and not as a penalty.
    This agreement is made for mutual protection and to prevent the sale of the company’s franchise by a majority of the members of the present board of directors,, who are, and who represent, a minority of the shares of the capital stock of this company.
    The complaint alleges that the defendant, without consent of the plaintiff and without the concurrent consent of all the other signers to the agreement, did sell and assign his stock to one J esse Seligman. The complaint further alleges, that the value of the plaintiff’s stock at the time of such sale was upwards, of $80,000, and that his damages in consequence of such sale amounts to the sum of $80,000^ and upwards. That among the other damages sustained by the plaintiff by reason of the breach of the agreement and the sale of the defendant’s stock, the management of the franchise and property of the company, which, until that time, had been controlled by the-plaintiff and his said associates, and but for said breach would have remained under their control, was wholly lost to them, and thereby and thereafter the management of said franchise and property passed to the control of that party in’the directorship of said company, who, until said breach represented only a minority of its stock-

      F. L. (& J. E. Durand, for the appellant.

      WilUam H. Shepard, for the respondent.
   Barker, J.:

The learned judge at Special Term, in sustaining the demurrer placed his decision on the legal proposition that the agreement was void in law, and said in his opinion, that, the agreement was void on the face of it. The right of alienation is an incident of the property represented by the stock, and any restraint placed thereon by a contract which has no other consideration to uphold it than the mutual promise of the parties is contrary to public policy, and cannot be recognized by the court.”

We concur in the result and the legal proposition stated as applicable to the case. This agreement is of the class of contracts held to be void because they are in restraint of trade and against public policy. It contains an absolute and separate promise on the part of each of the covenanters that he will not, at any time or place, sell his share of stock, unless assented to by all the other partners to the agreement. If this agreement was valid when executed, the restraint placed by each owner upon the right of sale must be in force now, and will remain so for an indefinite period, if one or more of the parties thereto refuse to join in its abrogation. By its terms it is brought within the rule which condemns as illegal all contracts in restraint of trade generally. The purpose of the' parties in making the same, as stated on the face of the agreement, is not such and so limited as to time and place as not to be condemned as against public policy. Each shareholder remained the sole owner of his shares, and neither acquired any interest in the shares owned by his associates, and if any advantage was derived by withdrawing the shares from the market, it was not to be enjoyed in common by all the parties to the agreement. In no sense whatever did they become tenants in common or interested as co-partners in the shares represented in the agreement. The covenant is executory in its character, and is a mere naked promise, on the part of such of the several owngrs that he will not sell the same, nor appoint an agent to represent him in selecting a board of directors. Nor is the agreement in the nature of a condition attached to any actual sale or transaction connected with the stock owned by the defendant, or other shares which he has sold to either of his associates. The owner of property may withdraw it from the market as long as he deems i.t for his interest to do so, and if these parties and their associates were the promoters of this corporation, or owned these shares in common, or as co-partners, then doubtless they could have entered into a valid agreement, regulating a sale of the same and requiring the owners to hold them from market for a reasonable and definite period of time, and thus forbidding a sale by either of his interest to one, against whom his associates might have a reasonable objection. (Moffatt v. Farquhar, 7 Ch. Div., 591, reported in 23 Moak s Eng. R., 731.) A .stipulation of that character would not be illegal as against public policy, as it would be simply a provision, assented to by all,. 4 that the new comer into the business transaction should be with the approval of the other joint owners. The right of transfer is a right of property, and if another has the arbitrary power to forbid a transfer of property by the owñer that amounts to annihilation of property. A man may have embarked too much in becoming a member of a corporation, and in case of an emergency he may be required to sell his shares fairly in the market, and if other owners of the same class of shares have the power of vetoing the transfer because they conjecture there is some collateral object to be gained by forbidding the sale, the value of the property is diminished and its market value is gone ; and for that reason, where no such circumstances, as we have mentioned, exist, then an agreement of the character of the one before us is held illegal and void from the wisest consideration of public policy. It is well known, and so much so that no court can close its eyes to .the fact, that shares in stock are dealt in by the trading and mercantile community on a large scale, and passed from hand to hand the same as money at their accepted market value, and a voluntary agreement disconnected from any actual transaction in the same class of property has the effect, as every one must know, of restraining the operations of trade and commerce, and deprives the owner of the means of paying his debts or securing credit with merchants and bankers.

The clause that neither will vote by proxy in the choice of a board of directors is pernicious, and is well calculated to concentrate in the hands of a few shareholders the power of selecting the executive and managing officers of the corporation, and deprives the owner of shares of one of the attributes of ownership, that is, of selecting agents and attorneys to counsel and aid him in the prudent and intelligent management of his property. If so disposed either one of these covenanters could suppress the voice of every one of his co-covenanters, and give to shareholders not represented in this contract the complete control of the corporate franchise. This term of the contract is so connected and interlaced with the one not to sell, that we are inclined to think the entire contract must fall, if only this one promise is void and inoperative. The arrangement between these parties is not to act in concert in the choice of a board of -management, nor is unity of action in that respect secured by the stipulations of the agreement, for the reason that when the shareholders come together to choose the managers and agents of the corporation each one is free to exercise his own judgment, unrestrained by any term of the agreement, so that an observance of the defendant’s covenants in every respect would not have prevented a sale of the company’s franchise by the then board of directors, which was one of the objects sought to be accomplished by the agreement as stated therein; and if he had remained the owner it would not have prevented, as far as we can see, the damages which the plaintiff alleges he has sustained by reason of the transfer of the management of the franchise and property of the company to another combination of parties represented in the board of directors as alleged in the complaint. Nor is it manifest to the common mind how an agreement between two or more owners of the same kind of property that neither will, for an indefinite period, sell the same in the market without the consent of both or all will operate for the mutual advantage and protection of such owners. On the contrary, the pernicious influ- ■ ence of such agreement is obvious, and is one of the methods by which in former times monopolies were sought to be obtained in certain classes of business. Under this agreement either party to the combination is afforded an opportunity to plan and carry out schemes of speculation in the shares of stock not represented in the contract, giving each member an advantage over the general public who are ignorant of the circumstance that a portion of the shares in the corporation are tb be kept from the market so long as such parties may dictate that policy. There is in this arrangement no provision that none of the associates shall not deal in other shares; and .if he does, that all shall share in the profits derived therefrom. (Havemeyer v. (Havemeyer, 43 N. Y. Sup. Ct. R., 506 ; affirmed in 86 N. Y., 618.)

But if we could hold the aim and purpose of the agreement to be proper and legal no sufficient consideration is averred in the complaint to support the defendant’s promise. Mutual promises alone do not constitute a good and sufficient consideration in contracts of this character, and being under seal does not change the rule. It is essential to the validity of such agreements that there should be a special consideration paid to the promiser by the promisee. (2 Pars, ’on Oont., 746, 753, note s, on page 748; Ross v. Sadgbeer, 21 Wend., 166.)

In Collins v. Locke (4 App. Cases, 674), a privy council adjudication made in 1879, and reported in 33 Moak, 448, it was held that agreements in restraint of trade will not be upheld unless they are made upon a real and a Iona fide consideration, and in Morris Run Coal Co. v. Barclay Coal Co. (68 Pa., 173), the rule was laid down that the consideration m ust be actual and adequate and not colorable. The defendant, therefore, cannot be held on his covenant for the reason that it is nudum pactum. The appellant’s counsel cites and relies on Havemeyer v. Havemeyer (45 N. Y. Supr. Ct. R., 464; affirmed in the Ct. of App., 86 N. Y., 618) as an authority in support of his position. The question of the necessity of an actual consideration to support such agreements was not up and considered in that case. Upon the general question as to the validity of such contracts, and when they will be confirmed as valid and obligatory, we are unable to discover that any rule of law was affirmed that is applicable to this case, or hostile to our position condemning the agreement before us as void, for the reason that the same is an unreasonable restraint upon the property rights of the defendant. Prom the report of that case (as found in 43 N. Y., Supr. Ct.. R., 506), it would seem that the parties had “ combined ” their shares so that all of them would be interested in the shares mentioned in the agreement.

Judgment affirmed, with costs, and leave given to the plaintiff to amend his complaint within twenty days on payment of costs, and if costs are not paid and complaint amended judgment absolute for the defendant.

Haight, Bradley and Oorlett, JJ., concurred.

Judgment affirmed, with costs of the demurrer on this appeal, with leave to the plaintiff to amend complaint within twenty days on payment of the costs.


text:
    HARVEY BURGETT, Respondent, v. ALANSON FANCHER, Appellant.

      What property is exempt, as pa/y of a soldier — Oode of Owil Procedure, sec. 1393.
    The defendant having- received from the proper department at Washington for a pension'due to him a draft on the assistant treasurer at New York for $896.80, indorsed the same and delivered it to a firm of hankers, who gave him $496.80 in cash and a deposit slip, crediting him with $400 more. ’The balance left with the bankers was subject to the defendant’s check', and there was no agreement for the payment of interest thereon.

      Meld, that the said balance was exempt from levy or seizure in any legal pro. ceedings, “ as the pay and bounty of a non-commissioned officer, musician or private in the military or naval service of the United States,” under the provisions of seetion.1393 of the Code of Civil Procedure.
    Appeal from an order, made by the county judge of Steuben county, ordering and requiring the appellant to pay over to the receiver of bis property, appointed in proceedings supplemental to execution in tbis action, the sum of $168.16 on deposit in the appellant’s name,- with Lattimer & Winton, private bankers, whose place of business is in the village of Addison, New York, or in default thereof to be adjudged guilty of contempt, and that a precept of commitment issue. The certificate of deposit, pientioned in the following opinion, was in the following form:

      “ Deposited by Alanson Fanoher in the Addison Bank :
    Addison, Mary 31, 1884.
    Bills. Dollars. Cents.
    Gold.....................................
    t Silver....................................
    Checks (enter single) ........................ $496 80
    96 80
    $400 00
    LATTIMER and WINTON.”

      J. W. Dmmm/, for the appellant.

      D. M. Darrin, for the respondent.
   Barker, J.:

As we are of the opinion that the order should be reversed upon the merits of the case, it is unnecessary to consider the question of irregularity in procedure, made by the appellant. The material facts are not in dispute. The legal proposition presented is one of general interest and merits careful consideration.

In proceedings supplemental to execution, instituted in this action, a receiver was duly appointed of all the appellant’s property not exempt from seizure for the payment of his debts. At the time the proceedings were initiated the appellant had on deposit with a firm of private bankers, doing business near his residence, the sum of $400. By the order appealed from he was required to pay over $168.16 of this sum to such receiver, in payment of the judgment in this action, and the costs awarded against him in this matter.

The appellant places his refusal to obey the order, upon the-sole ground that the sum in bank was pension money, and that the same is exempt from all legal proceedings intended to enforce payment of his debts, by virtue of section 1393 of the Code of Civil Procedure. By that section it is enacted, that “the pay and bounty of a non-commissioned officer, musician or private-in the military or naval service of the United States * * * are also exempt from levy and sale by virtue of an execution and from seizure for non-payment of taxes, or in any other legal proceeding.” The circumstances connected with the receipt and deposit of this money are: The appellant received by mail from the proper department at Washington a draft on the assistant treasurer of the United States, at the city of New York, an order for $896.80 as pension money allowed him as a private soldier. ' This order he indorsed and delivered to the bankers for collection ; they thereupon advanced to him in cash items $496.80 and delivered to him the certificate already described. The draft was forwarded and paid, and the transaction remained unchanged as between the appellant and the bankers, until after these proceedings-were instituted by the respondent, with a view of securing a payment of their judgment out of the balance so remaining in the hands of the bankers. The appellant was not engaged in business, had no previous account in this or any other bank, and his place of residence was some 200 miles from the city of New York where the draft was made payable. With the money received when the draft was indorsed and delivered to the bank, he paid some debts, and loaned to friends $130 thereof, and had on hand in" cash when the first order was served fifteen dollars. The money in the bank was not left as a special deposit, nor did the hank agree to pay interest thereon ; at the time the officers of the bank informed him that he could draw the whole or any part of the money at any time, and if he did not personally visit the bank for that purpose he could draw the same on his own check.

We are unable to discover any fact or circumstance in this transaction from which it can be held that the exemption which the statute has created in favor of the appellant, exempting this money, has been removed,-or by which it can be reasonably concluded that he intended to convert the money which he received on the draft into a mere loan to the bankers. The currency in which a pension may be paid by the government seldom passes into the hands of the' pensioner, as it would be, in most instances, inconvenient for the recipient to attend at the place of payment and receive the money at the hands of the officer authorized to pay such drafts. The purpose of the government in sending instruments of this character to pensioners is, to enable them to realize on the draft, at or near their homes without any cost or delay, and to secure this end the remittance is made in the form of commercial paper, which can be readily used as the equivalent of cash. It would be manifestly unjust to hold that cash items in the hands of the payee of such a draft, received from his indorsee, were not, within the sense and meaning of the statute, money paid him by the treasurer on whom it was drawn. The money undrawn in the hands of the bankers is the-pay and bounty of a soldier, and is entitled to the protection of the statute which the appellant invokes as against the demands of his-creditors. He has made no attempt to use the money in question in business, nor sought to loan or invest it in any form or manner. The memorandum delivered to him by the hank is not in a commercial sense a certificate of deposit, nor was it intended to be, for the appellant was authorized to draw against the deposit without the return of the certificate. It is nothing more than a teller’s-ticket, issued in the hurry of business, and does not purport to show the real transaction between the parties. It would be difficult to formulate a general proposition by which to determine when the pay and bounty of a soldier has lost the protection of the statute ; each'case must be adjudicated upon its own state of facts.

In this case we are of the opinion that the appellant was justified in refusing to obey the order, directing him to pay over the sum mentioned out of the money on deposit with the bankers. In principle this case is like the case of Wildrick v. De Vinney (decided by this court in January, 1884, and briefly reported in 18 N. Y. Weekly Dig., 355). The decisions in the courts of the other States, based upon the United States statutes on the same subject (sec. 4747), •to which we are referred by the respondent, are not in point and do not aid in giving a construction to our own statute, as the same is broader in its terms than the federal law and was not intended to be as limited in its operation in protecting pension money in the hands of the pensioner. That statute is limited to protecting and •exempting pension money from levy and seizure while it remains in the pension office or in the hands of government officials, and in the course of transmission to the pensioner entitled thereto. After the money is paid over the United States law ceases to be operative, and the right of exemption after that, if any exists, must be found in the laws of the State where the soldier resides.

The ca.se’Of Youmans v. Boomhower (3 T. & C. Sc. R., 21) cited by the respondent, does not favor his position as the facts are widely different, and no rule of law is there laid down in conflict with those we entertain. In that case it appeared that the pensioner had either made a gift of the money to his wife, or loaned it to her, and the same in fact had been invested in real estate of which she took the title. • The favor of the statute is personal to the pensioner, ■ and if he once relinquishes his privileges then of course it cannot be restored by any effort on his part. This is a beneficent statute and should be liberally construed-by the courts, with a view of giving a full effect to the intention of the legislature.

The order should be reversed, with ten dollars costs and disbursements.

Haight, Bradley and Corlett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements.


author: Barker, J. :

text:
    BYRON ALFORD and ALLEN R. CURTIS, Respondents, v. EUGENE M. COBB and THOMAS ARGUE, Appellants.

      Sale of leasehold property without covenants of title — when subject to existing liens.

    June 26, 1880, one Hotailing filed a mechanic’s lien against the defendants, who were the lessees of a tract of oil land, for materials furnished and services rendered in drilling oil wells and constructing apparatus for operating the same. Thereafter, in an action brought by him to foreclose this lien, a judgment of foreclosure and sale was entered in December, 1881, which also awarded a personal judgment against the defendants for any deficiency that might arise on the sale. October 27, 1880, after the filing of the notice of lien, and before judgment thereon, the defendants by an instrument in writing, containing no covenants, assigned all their right, title and interest in the lease to Garrett & Prentiss, who took possession of the property and thereafter, and in August, 1881, sold all their interest therein to the plaintiffs.
    At the time of this purchase the plaintiffs had no knowledge of the existence of Hotailing’s lien, and were informed by their grantors that there were no liens upon the premises. Having been compelled, by threats that the property would be sold under the foreclosure decree, to pay the amount of Hotailing’s judgment, they brought this action to recover the amount thereof from the defendants.
    Upon the trial the court refused to charge, as requested by the defendants’ counsel, that if the jury should find that the defendants sold the property to Garrett & Prentiss, subject to the lien, and that the latter assumed and agreed to pay it, then the plaintiffs could not recover.

      Held, that the court erred in refusing- so to charge. ,

      Semble, That all that the plaintiffs acquired under the assignment was the right to the equity of redemption.
    Appeal from a judgment, entered upon a verdict in the plaintiffs’ favor, and from an order denying a motion for a new trial, made on a case containing exceptions.

      George U. Phelps, for the appellants.

      David II. Bolles, for the respondents.
   Barker, J. :

The plaintiffs recovered their judgment upon an original, promise made by the defendants to one Hotailing, agreeing to pay him for his work and labor done and performed as a mechanic on their leasehold premises. This obligation on the part of -the defendants has never been in form assigned or transferred by Hotailing to the plaintiffs nor have the defendants, in any form or manner, promised to pay the plaintiffs the debt thus contracted, but on the contrary, deny all obligation to them and insist that under the circumstances of the case, as they appear by. the record, the debt has been fully paid and satisfied. The plaintiffs base their claim of title to the debt upon the doctrine of subrogation or equitable assignment, arising out of the facts of the case. The defendants were lessees of a tract of oil land for the term of twelve years, upon certain conditions and reservations, not set forth in the abstract of the instrument printed in the case. The lessees made entry under the lease and caused considerable improvements to be made on the premises by drilling oil wells and constructing the necessary erections and apparatus for operating the same. The yield of oil was so much, and the improvements made were of such a character, that the defendants’ rights and interests under the lease had a considerable market value. On the 26th day of June, 1880, Hotailing, the mechanic who constructed the apparatus for operating the oil wells, filed in the proper office notice of his lien. Thereafter he commenced an action in this court to foreclose the same, making the defendants and others parties defendants, and the usual decree of foreclosure and sale was entered in December, 1881, with a clause granting a personal judgment against the defendants for any deficiency.

It will be assumed for the purposes of this appeal that all the proceedings in filing notice of the lien and of its foreclosure, were in full compliance with the statute creating the lien, and if a sale had taken place under the decree, the purchaser would have acquired a perfect title to the lease. We purposely omit to consider any questions connected with the regularity of these proceedings. After notice of the lien was filed and before the foreclosure proceedings were instituted and on the 27th day of October, 1880, the defendants, by- an instrument in writing, sold and assigned all their right title and interest in the lease to Garrett & Prentiss, who immediately entered into possession of the property. Before the decree was entered, and on the 24th day of August, Garrett & Prentiss sold all their interest in and under the lease to these plaintiffs. After the judgment of foreclosure was perfected, Hotailing threatened to sell the leasehold property under the decree, and placed in the hands of the sheriff the necessary process and papers upon which to advertise and sell the property in the manner provided in the decree, and wlien he was about to do so these plaintiffs paid up the judgment for the purpose of preventing a sale and'sacrifice of their property. Then they made this claim upon the defendants, and this action was commenced to collect the entire amount of the debt due Hotailing. Neither of the assignments of the lease are set out in full in the case. The abstract printed simply states the fact, giving the names of the assignors and assignees with the dates of transfer.

The defendants claim, and give evidence in support of their contention, that at the time they sold and assigned the lease to Garrett & Prentiss the latter had notice of the existence of Hotailing’s debt, and of the hen which he had placed on the property, and that it was one of the terms of the sale that the lease was assigned subject to such lien, and the assignees agreed to pay the debt to Hotailing, and the amount of the same was at that time ascertained and in fact deducted from the purchase-price, and only the balance of the purchase-money was paid. On the contrary, the plaintiffs deny that Garrett & Prentiss had notice of the lien, or that they assumed or agreed to pay the same, and insist that they were wholly ignorant of the lien and gave some evidence to prove that such was the fact.

The defendant asked the court to charge the jury, if they should find that the defendants sold the property to Garrett & Prentiss subject to the lien, and they assumed and agreed to pay it, then the' plaintiffs cannot recover. This request was rejected and the defendants excepted. In this connection the court remarked that he intended to, and did, submit to the jury the following question: “ When Cobb & Argue transferred the lease to Garrett & Prentiss, was it agreed that Garrett & Prentiss should pay the Hotailing claim, and was the amount of it deducted from the purchase-price of the lease ? ” and directed them to answer the same either yes. or no as they found the fact. The record does not disclose that the jury passed upon the question either way. There was no direction given to the jury, if they should answer the question in the affirmative, then their verdict 'should be for the defendants. If it was error to refuse the instruction requested, nothing occurred, on the trial to cure the same. The lien created by statute is in the nature of a mortgage, and the lessors of the premises may be regarded, in considering the questions now before us as the mortgagors, and their creditor as the mortgagee. This is the most favorable view that can be taken of the transaction so far as the plaintiffs’ rights are involved. If the facts are as the defendants contend, a defense was made oat, and the judgment should be reversed. When lands are sold or conveyed which are incumbered by a mortgage lien, and the mortgagee takes the title subject to such mortgagee, the premises are the primary fund for the payment of the debt, and the grantor mortgagor may, if he is personally liable to pay the debt secured, compel a resort to the lauds in the first instance. If the contract of purchase contains the further provision that the purchaser shall pay the debt, then, as between the grantor and grantee, the latter becomes the principal debtor and the grantor his surety, and the lands are the primary fund, and the mortgagee may also maintain an action at law against the grantee, founded on his promise to pay the debt. (Johnson v. Zink, 51 N. Y., 333; Marsh v. Pike, 10 Paige, 595; Pomeroy’s Eq., §§ 1205, 1207; Lawrence v. Fox, 20 N. Y., 268 ; Russell v. Pistor, 7 id., 171.)

If the defendants’ assignees, Garrett & Prentiss, had paid úp the lien, then the debt would have been extinguished in law and in equity. They would have no equitable right to be subrogated and stand in the lienor’s position with a view of enforcing a payment of the debt, although they might as to the lien on the leasehold property, for the purpose of protecting tüeir interest therein, for as to the latter purpose they might be regarded as the equitable assignees, to which their assignors could make no reasonable objection.

We may now examine the plaintiffs’ position and see if they have, as assignees under Garrett & Prentiss, any other or different rights so that they may demand from the defendants, in law or equity, payment of the original debt. In disposing of this question we shall assume that it was established on the trial that the plaintiffs were ignorant of the' existence of the lien, and were informed by their assignors that no lien 'of this..nature existed. The defendants made no covenant in their assignment to Garrett & Prentiss relative to the title, or as to the nature and extent of their interest in the lease. It was a naked transfer of their interest in the lease, without any undertaking on their part, which would give to their assignees a right of action against them in case there was a failure of title. In legal effect" it was a sale and transfer of their equity of redemption, similar to a sale and conveyance by quit-claim deed of title to lands incumbered with liens. When one conveys by quitclaim deed no title not in esse passes. A release of a present interest in the real estate is all that the law infers was intended to-be conveyed by the grantor in such a conveyance. (Jackson v. Winslow, 9 Cow., 13.) If the depd contains a covenant of warranty as to the title, it would operate as an estoppel to avoid circuity of action. The plaintiffs are not the assignees of any promise made by the defendants upon which they can base an equitable claim that they should be regarded as the assignees. of the debt which they have paid. They secured by their purchase and transfer of the lease all the defendants undertook to sell and convey to their grantors, and nothing more. All the right which the plaintiffs-acquired was an equity of redemption. Having secured a title to the lease they could redeem it from the liens which stood against it, that is to say, pay up the judgments, and if it was necessary to keep the same on foot for the .purpose of protecting their interest in the lease they would be privileged to do so, and in equity be regarded as assignees of the lien but not of the debt secured thereby. A junior mortgagee or judgment creditor has a right to protect his lien or interest by paying a prior mortgage due and payable; and if' he does pay it he succeeds, by subrogation on settled principles of equity, to the rights and interests of such prior mortgagee in the lands as'a security for the amount so paid without any assign merit or act of transfer by or on the part of a prior mortgagee. (Ellsworth v. Lockwood, 42 N. Y., 96, and authorities there referred to see, also, Twombly v. Cassidy, 82 id., 155.)

If the defendants’ assignees had not promised to pay the debt secured by the lien, the leasehold estate would have been the primary fund for the payment of the debt, and as between themselves- and their assignees, and all who claim under them, the plaintiffs would have been liable to pay the deficiency only. This rule is applied in cases where the owner of the fee jn lands incumbered by liens sells the equity of redemption and conveys by quit-claim deed, although no reference is made in the deed or in the agreement for the sale of existing incumbrances. (Ellsworth v. Lockwood, supra.)

"We have applied these general propositions of law to the case in hand, as furnishing a just and equitable rule by which to adjust the rights of these litigants. .When this ease was before the court on a former occasion, by appeal from an order vacating the attachment issued in this action, the legal propositions which have now been considered were not presented to the court in the same form in which they now are, and the court then declined to pass upon the rights of the parties, if it should appear that these defendants sold the lease to Garrett & Prentiss, subject to the payment of the Hotailing debt. As applied to the proceeding then under consideration, the legal proposition then decided was correctly disposed of.

The judgment and' order should be reversed and a new trial granted, with costs to abide the event.

Bradley, J., concurred; Haight, J., not sitting.

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


text:
    MILES B. RIGGS, as Administrator, etc., of IRA RIGGS, Deceased, Plaintiff, v. THE AMERICAN HOME MISSIONARY SOCIETY, Defendant.

      Imam delusion — when it rendm's the acts of a person affected by it invalid — when executed contracts of a lunatic may be set aside — objections to evidence must be specific — Oode of Oivil Procedure, sea. 829.
    This action was brought by an administrator to recover from the defendant, a charitable corporation, money and securities given to it by his intestate, upon the ground that the latter was at the time of making the gift of unsound mind and suffering from delusions. Upon the trial the counsel for the defendant asked the court to charge " that a belief, based upon some evidence however slight, is not a delusion; that a delusion rests upon no evidence but a mere surmise. But it is only a belief of facts which no sane mind would believe, that would constitute an insane delusion.”

      Held, that the court properly refused so to charge.
    Delusions, which render void acts caused by them, must arise from a belief in facts which no sane person would believe.
    The defendant was incorporated by a special act (chap. 21 of 1871), and was authorized to take and hold real and personal property by purchase, gift, grant or bequest, and to grant and otherwise dispose of the same. It was incorporated for the purpose of assisting feeble congregations and of sending the gospel and the means of Christian education to the destitute within the United States. The defendant’s counsel requested the court to charge that if the defendant received and expended the money in good faith without any notice of the insanity of the deceased, and without notice of any facts tending to show his insanity, the plaintiff could not recover.

      Held, that the court properly refused so to charge.

      It seems, that if the defendant had been required by the terms of its charter to dispose of the identical money received as a gift, and had done so in good faith and without any notice of the decedent’s insanity, then the proposition as presented would have been sound and should have been charged.
    Upon the trial a son of the intestate entitled to share in his estate was called by the plaintiff. After he had stated his age, occupation and residence, the defendant’s counsel objected to the competency of the witness to testify under section 829 of the Code of Civil Procedure. The objection was overruled and the witness allowed to testify. Parts of his testimony related to personal transactions and communications with the deceased, and part did not.

      Held, that the defendant’s objection was too general to enable him to raise any question upon appeal.
    He should have renewed his objection when the objectionable testimony was given, or subsequently moved to have it stricken out.
    Motion for a new trial, on exceptions ordered to be beard in the first instance at the General Term, after a verdict rendered in favor of t'be plaintiff.

      H. V. Howland, for the plaintiff.

      Howard Pay son Wylds, for the defendant.
   Barker, J.:

In the same year in. which this transaction occurred, the deceased made a gift of money to the American Tract Society, imposing on the donee the obligation of paying to him during bis lifetime the annual interest on the principal sum donated. This plaintiff, in bis representative capacity, prosecuted an action in the courts of this State to recover from that society the money so donated, which suit was defended and the right of the defendant to annul the gift and recover back the money was seriously contested by the defendant therein. The history of that litigation and its final result is reported in 19 Hun, 481; 84 New York, 830; 29 Hun, 141; 95 New York, 503.

Many of the legal questions discussed on this argument were up and fully considered in that case, and we are relieved from the duty of giving them a re-examination, as we find the material facts in this similar to those in that case. After reading the evidence as set forth in this record with much, attention, we feel justified in holding and with great confidence, that on the question of the insanity of the deceased, the evidence tended to establish the existence of the same mental delusions and unsoundness of mind upon which the court based its judgment pronouncing the gift to the American Tract Society void. Therefore, without stating in this connection any portion of the evidence which portrays the singular life, habits and temper of Mr. Riggs, or the nature and character of the delusions of which he was the victim, and led him to believe that his wife and children entertained towards him hostile feelings and sought to make his life unhappy, and which induced him to regard them as unworthy of his affections and bounty, we hold that the trial court properly held that the defendant was not entitled to a nonsuit, and correctly refused to direct a verdict in its favor.

During the trial exceptions were taken by the defendant tb many of the rulings, which deserved and have received an examination. The unsoundness of mind on the part of the donor,- which made the gift invalid, did not arise from imbecility of mind nor could he be classed as a non eornpos mentis; nor did it arise from a general mental disturbance, so that he could not do any rational and valid act, but it arose from delusions of the mind, which mislead his actions and inspired his conduct towards his wife and children, so far as the disposition of his property was concerned ; and because of this mental derangement his natural mind did not accompany the act which was necessary to make good the gift. After the general charge to the jury was concluded the defendant asked the court to give the further instruction : that a belief based upon some evidence however slight is not a delusion'; that a delusion rests upon no evidence but a mere surmise; but it is only a belief of facts which no sane mind would believe; that would constitute an insane delusion. This, as an entire proposition, was, as we.think, properly rejected. , Delusions of the mind which render void the act caused by such delusions must be a belief of facts which no sane person would believe. Another definition is given in these words: Delusion is a belief in something impossible in the nature of. things or circumstances of the case. There may be a belief in the mind of the existence of a fact which no sane person would believe under the circumstances of the case, although there might be a shadow of evidence that the fact exists. But this is not the true test to be applied in determining the question whether the act involved is the result of a delusion or not. A singular circumstance may, in a par-" ticular instance, be some evidence of the fact believed, but when it is not. supported by some further evidence and is left to stand wholly uncorroborated, it would be the most irrational and improbable thing for a sane mind to believe that the fast existed. The legal proposition to be applied to cases of this character is a general, one, and is in substance as before stated, viz.: Is the belief of the mind which induces the act a mere delusion, which no sane mind would believe in, and if such be the condition of mind of the person whose conduct is in question, it is unequivocal evidence of insanity.

The court was also requested to instruct the jury that if the defendant received and expended the money in good faith, without any notice of the insanity of Irá Riggs, and without notice of any facts tending to show his" insanity, the plaintiff could not recover. In our consideration this proposition was properly rejected as unsound and unreasonable. The defendant was created a body corporate by special enactment (chap. 21, Laws of 1871), and was empowered to take and hold by purchase, gift, grant or bequest, real and personal property, and given the power of granting or otherwise disposing of the same, “ for the purpose of assisting feeble congregations, and of sending the .gospel and the means of Christian education to the destitute within the United States.” No limitations were placed on any of its powers, as to the amount and value of personal property it might take and hold, but a restraint was imposed on its capacity to take and hold real estate which was limited to a value, the income of which should not exceed $25,000 per annum. It possessed also the powers and was subject to the limitations applicable to all corporations, as provided in title 3, chapter 18, part 1 of the Revised Statutes.

The defendant’s proprietory right to all property which might be' rightfully conveyed or transferred to it was absolute, and the property was not held as a trust fund to be expended in a particular manner marked out and defined in the statute; nor was any person, or class of persons, capable of being ascertained, designated as beneficiaries. Its managers possess the unrestrained power to decide when and upon what conditions of things they will distribute the corporate property and income derived therefrom, and how long they will permit the principal to remain «undisturbed and invested for the purpose of accumulation. Gifts and bequests made to it are not placed under special trust, and all donations made to it are held and reserved for the general purposes of the act.

We therefore hold as a legal conclusion, that if all. the moneys received by the defendant from Mr. Riggs were in cash items, as part were in fact, and it also appeared that the entire fund so donated had been in fact distributed for the purposes mentioned in the act, yet the defendant is under a legal as well as an equitable obligation to refund the same out of any property which it now possesses, and as much so as if it had the identical fund in hand unexpended. This conclusion was reached and announced in the case of Riggs v. American Tract Society (84 N. Y., 330; 95 id., 503). If the defendant had been required by the terms of its charter to dispose of the identical money received as a gift and had done so in good faith, without any notice of the decedent’s insanity, the proposition as presented in the request would have been sound and should have been .charged. The plaintiff as the personal representative of the deceased, had nothing to do before commencing this action, but to notify the defendant that the gift was void by reason of the donors insanity and that he rescinded the gift. In this case nothing was required to be done to place the defendant in statu quo. The interest which Mr. Riggs received during his lifetime, from the defendant, was derived from the use of his own money and in a legal sense nothing was advanced to him by the defendant.

The deceased died intestate, and Calvin N. Riggs was one of his children and was entitled to share in the distribution of his father’s estate and was therefore interested in the event of the action. He was called as a witness in behalf of the plaintiff and after stating his age, occupation and residence, the defendant interposed an objection which is expressed in these words: The defendant objected to the competency of the witness to testify under section 829 of the Code of Civil Procedure. The objection was overruled and the defendant excepted. The witness was then subjected to a prolonged examination, and testified in much detail relative to the peculiarities of his father, his habits of life, his treatment of his wife and .children, and other circumstances tending to support the plaintiff’s contention that the deceased was of unsound mind at the time of the gift. Much and important parts of this evidence we regard as incompetent under section 829, as coming from ah interested witness and being chiefly in the nature of conversations and transactions between the witness and his father. (Holcomb v. Holcomb, 95 N. Y., 316.) In commenting on the section, the court then said: “ The words of exclusion are as comprehensive as language can express. Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews or actions between two persons, and include every method by which'one person can derive impressions or information from the^conduct, condition or language of another. The statute is a beneficial one, and ought not to be limited or narrowed by construction.” But the objection was not well taken at the time it was interposed. The witness was competent as to all matters of inquiry not enumerated in the section, During his examination he did testify as to some matters of which he could properly speak after the objection was interposed. The ohjection did not point out any particular subject matter as to which the witness was incompetent to speak or to which the defendant intended to have his objection apply. The objection as presented to the court for its ruling, was placed on the general ground of the witness’ entire incomp’etency. Whenever the witness was called upon hy the plaintiff to testify on a subject or as to matter coming within the prohibitions of the. section, then the defendant’s counsel should have renewed his objection if he desired to exclude the evidence, or the same having been received he should have moved at the proper time to have the objectionable part struck out. He did neither but permitted the evidence to be given without’ objection; Dnder such circumstances, it is now well settled that courts of review will regard all objections waived as to the competency of the witness to testify. (Levin v. Russell, 42 N. Y., 251; Tooley v. Bacon, 70 id., 37.)

Note — The balance of the cases decided at this term of the court will be found in (86 Hun) the next volume. — [Rep.

We have examined each one of the other exceptions, to which onr attention has been called, in the very elaborate and valuable brief, handed up by the learned counsel for the defendant, and find no error in the rulings made during the trial.

Motion for a new trial denied with costs, and judgment ordered for the plaintiff on the verdict.

Haight and Bradley, JJ., concurred.

Motion for a new trial denied, and judgment ordered for the plaintiff on the verdict.


author: Uardin, P. J.

text:
    Henrietta H. Wright, Respondent, v. Bank of the Metropolis, Appellant.
   Order denying defendant’s motion for a new trial affirmed, with costs and disbursements to plaintiff. Order granting plaintiff’s motion for a new trial reversed, and judgment on the verdict ordered for the plaintiff, with costs of the action.

Opinion by

Uardin, P. J.


author: Boardman, J.

text:
    The People of the State of New York, Respondent, v. Helen McCallan, Appellant.
   Judgment and conviction affirmed.

Opinion by

Boardman, J.


author: Follett, J.

text:
    The Town of Taylor, Respondent, v. Elisha Brown, Appellant.
   Judgment reversed and new trial ordered, costs to abide event.

Opinion by

Follett, J.


author: Board-man, J.

text:
    Thomas Murphy, Respondent, v. Joshua S. Loomis, Appellant.
   Judgment and order affirmed, with costs.

Opinion bjr

Board-man, J.


text:
    Loren W. Marsh, Appellant, v. Sylvester P. Pierce, Respondent.
   Judgment affirmed, with costs.

Opinion by

Follett, J.


text:
    John M. Duff, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
   Judgment of the County Court of Onondaga county reversed, aud that of the Justices’ Court affirmed, with costs.

Opinion by

Boardman, J.


author: Hardin, P. J.; Follett, J.

text:
    Chapman W. Avery, Respondent, v. James H. Blair, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Hardin, P. J.;

dissenting opinion by

Follett, J.


author: Board* man, J.

text:
    Augustus E. Maxwell, Appellant, v. Alexander Cruikshank, Respondent.
   Judgment of Jefferson County Court reversing justice’s judgment affirmed, with costs.

Opinion by

Board* man, J.


text:
    George Clark, Respondent, v. Richard Quinn, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Follett, J.


text:
    Michael McAvoy, Appellant, v. George Everson, Respondent.
   Judgment and order affirmed, with costs.

Opinion by

Boardman, J.


text:
    Dwight Smith, Appellant, v. Westel R. Tanner and others, Respondents.
   Judgmeiitaftirmed, with costs.

Opinion by

Follett, J.


text:
    Samuel Coy, Respondent, v. John J. Hart, Appellant.
   Judgment and order affirmed, with costs.

Opinión by

Boardman, J.


text:
    Joseph B. Love, Respondent, v. Robert Love, Appellant.
   Judgment of Schuyler County Court affirmed, with costs.

Opinion by

Follett, J.


author: Boardman, J.; Follett, J.

text:
    John W. Smith, Appellant, v. George Scott, Respondent.
   Judgmentaffirmed, with costs.

Memorandum by

Boardman, J.;

dissenting opinion by

Follett, J.


author: Fol-. lett, J.

text:
    Charles C. Blair and others, Respondents, v. Patrick Lynch, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Fol-. lett, J.


text:
    Edward P. Bates and others, Respondents, v. Ellen V. Kelsey, Appellant.
   Judgment 'affirmed, with costs.

Opinion by

Boardman, J.


text:
    Daniel C. Case, Appellant, v. Wealthy Dexter and another, Respondents.
   Judgment and order reversed, and new trial ordered, with costs abide the event.

Opinion by

Follett, J.


author: Bo irdmau, J.

text:
    Kitty M. Perkins, Respondent, v. George Hall and others, Appellants.
   Judgment affirmed, with costs.

Opinion by

Bo irdmau, J.


text:
    Mary Dietrick, Plaintiff, v. Firemen’s Fund Insurance Company, Defendant.
   Motion for a new trial denied and judgment ordered for the defendant on the verdict, with costs.

Opinion by

Follett, J.


author: Boardman, J.;

text:
    George W. Elkins, Respondent, v. James D. Kilborn, Appellant.
   Judgment and order affirmed, with costs.

Opinion by

Boardman, J.;

Follett, J., not sitting.


text:
    The People of the State of New York ex rel. Ebenezer Pennock, Appellant, v. Abraham Tuttle and others, Respondents.
   Certiorari dismissed and proceedings and decision of the referee affirmed, with fifty dollars costs and disbursements against the relator. (See Code of Civil Procedure, § 2143.)

Opinion by

Boardman, J.


text:
    Julius Johnson, as Executor, and others, Respondents, v. Harrison Wells, Appellant.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.;

Follett, J , not sitting.


author: Hardin, P. J.

text:
    Ella Betts, Appellant, v. Nathaniel M. White, Respondent, Impleaded, etc
   Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    Sarah Decker, Respondent, v. Hattie E. Decker and another, Appellants.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.


text:
    Bruce J. Kimball, Appellant, v. The Herald Company, Respondent.
   Judgmeut and order affirmed, with costs.

Opinion by

Follett, J.


text:
    Mary Lyon and others, Appellants, v. Charles W. Hersey and others, Respondents
   Judgment affirmed, with costs.

Opinion by

Boardman, J.


author: Hardin, J.

text:
    Mary A. Fuller, Respondent, v. Adam S. Gunn, Appellant.
   Order affirmed, with costs.

Opinion by

Hardin, J.


text:
    Hannah Barlow, Respondent, v. William J. Barlow, Appellant.
   Judgment affirmed, with costs.

Opinion by

Boardman, J.


text:
    Caroline C. Piper, Appellant, v John L. Hoard, Respondent.
   Judgment affirmed, with costs, on opinion of Vann, J., at Special Term.


text:
    Caroline C. Piper, Appellant, v. John L. Hoard, Respondent.
   Judgmentaffirmed, wiihcosts, with leave to defendant to answer upon payment of cost?s of demurrer and of this appeal.


author: Boardman J.

text:
    In the Matter of the Application of Robert B. Gardner, Administrator, etc., of Allen B. Gardner, Deceased, to sell real estate to pay debts.
   Decree of surrogate of Tompkins county affirmed, without costs to either party.

Opinion by

Boardman J.


author: Hardin, P. J.;

text:
    Jay Anthony, Respondent, v. Joseph Lerett and others, Appellants
   Judgment and order affirmed, with costs.

Opinion by

Hardin, P. J.;

Boardman, J., not sitting.


author: Folíete, J.;

text:
    Ira Seymour, Respondent, v Alexander McInstry, Jr., and others, Appellants.
   Judgment affirmed, with cos»ts.

Opinion by

Folíete, J.;

Boardman, J., not sitting.


author: Hardin P. J.

text:
    William A. Sweet, Appellant, v. Edmund Merry, as survivor, etc., Respondent.
   Judgment and order reversed, aud a new trial ordered, costs to abide the event.

Opinion by

Hardin P. J.


author: Boardman, J, j

text:
    Robert Youngs, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.
   Order denying new trial affirmed, with costs.

Opinion by

Boardman, J, j

Follett, J., not sitting.


text:
    William A. Tyler, Respondent, v. Timothy Guy, Appellant.
   Judgment reversed, and a new trial ordered before .another referee, costs to abide the event.

Opinion by

Follett, J.


text:
    David D. Lefler, Appellant, v. James S. Brown, Respondent.
   Judgment and order affirmed, with costs.


text:
    The Elmira Iron and Steel Rolling Mill Company, Appellant, v. Nathaniel C. Harris, Respondent, Impleaded, etc.
   Order affirmed,with costs.

Opinion by

Boardman, J.


text:
    Charles F. Bitter, Respondent, v. The Onondaga County Savings Bank, Appellant.
   Declined to consider the appeal; case imperfect; leave granted to resettle the case, without costs to either party.

Opinious by

Follett and Boardmau, J J., and Hardin, P. J. ‘


text:
    Catharine F. Holmes, Appellant, v. Henry B Ogden, Respondent.
   Judgment and order affirmed, with cost.

Opinion by

Hardin, P. J.


text:
    William W. Shaw, Appellant, v. Asa J. Stott, Respondent.
   Judgment affirmed, with costs.


text:
    Henry M. Case, Respondent, v. Isaac R. Pharris, Appellant.
   Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    Elmina Geer, Respondent, v. William H. Connor, Appellant, impleaded, etc.
   Judgment affirmed, withcosts.

Opinion by

Boardman, J.


text:
    Charles L. Wilder, Respondent, v. Joel Stewart, Appellant.
   Judgment affirmed, with costs.

Opinion by

Follett, J.


text:
    Charles Smith, Respondent, v. Harvey K. Doolittle, Appellant.
   Judgment of Jefferson County t ourt affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    James McDonald, Plaintiff, v. Egbert A. Smith and others, Defendants.
   Submission irregular as the appeal was dismissed at the October term.


author: Follett, J.;

text:
    Irving Snell, Appellant, v. Selim Newell and Samuel W. Brown, Respondents.
   Judgment of County Court of Herkimer county reversing the justice’s judgment affirmed, with costs.

Opinion by

Follett, J.;

Hardin, P. J., not voting.


text:
    James H. Williams, Survivor, etc., Respondent, v. Leonard W. Huyck, Appellant, Impleaded, etc.
   Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


author: Boardman, J.

text:
    Henry Davy and another, Respondents, v. George H. Paine, as Executor, etc., Appellant.
   Judgment affirmed, withcosts.

Opinion by

Boardman, J.


author: Follett, J.

text:
    Stephen R. Ryan, Appellant, v. Erastus K. Burnham, Respondent.
   Judgment of the County Court of Jefferson county reversed, and the judgment of the Justices’ Court affirmed, with costs.

Opinion by

Follett, J.


text:
    Rhode Ann Van Bramer, Respondent, v. Jacob Schaffer, Appellant.
   Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


author: Boardmau, J.

text:
    Wealthy Dexter, Appellant, v. Daniel C. Case, Respondent.
   Judgment of the County Court of Oswego county affirmed, with costs.

Opinion by

Boardmau, J.


text:
    Elias Walter and another, Appellants, v. William C. Gould, Respondent
   Judgment of the County Court of Jefferson county reversing the justice’s judgment reversed, and the judgment of the justice affirmed, with costs.

Opinion by

Boardmau, J.


text:
    Henry Nellis, Appellant, v. Walter P. Thayer, Respondent.
   J udgment affirmed, with costs.

Opinion by

Follett, J.


text:
    George L. Randall, Respondent, v. Laura A, Randall, Appellant.
   Judgment affirmed, with costs.

Opinion by

Hardin, P. J.


text:
    Daniel S. Gardner, Respondent, v. Edwin R. Mead, Appellant.
   Order affirmed, with ten dollars costs and disbursements.

Opinion by

Boardman, J.;

Follett, J , not sitting.


text:
    John J. Christie and others, Respondents, v. George G. Warren, Appellant.
   Judgment affirmed, withcosts.

Ooinionby

Hardin, P. J.


text:
    Josiah C. Mosher, Appellant, v. Elmore W. Ross, Respondent.
   Judgment of the Oswego County Court affirmed, with costs.

Opinion by

Boardman, J.


text:
    Isaac W. Bennett v. The Agricultural Insurance Company.
   Leave granted to appeal to the Court ol Appeals, on the ground that a question of law is involved which ought to be reviewed by that court.

Hardin, P. J.. not sitting.


text:
    The People of the State of New York v. David Angsbury.
   Motion to make the judgment of the Court of Appeals the judgment of this court granted, and order certified to Jefferson county.


text:
    Albert H. Ford, Respondent, v. George W. Head and another, Appellants.
   Motion granted to amend memorandum of decisions made at the October Term, so that it shall read, vi^5.: “Judgment, and order reversed anda new trial ordered, with costs to abide the event, unless plaintiff shall stipulate to reduce the verdict to $127.55, and interest thereon from the 25th day of May, 1&81, in which case the verdict and judgment and order, as so modified, are affirmed, without costs of this appeal to either party.


text:
    In the Matter of Proving the Last Will and Testament of Samuel Woolover, Deceased.
   Motion granted, with ten dollars costs, unless the appellant shall, within thirty days, perfect the case and appeal papers, and serve printed copies thereof, and pay ten dollars cost" of opposing motion. Cause ordered over the term without, prejudice.


text: The People of the State of New York v. The Merchants’ Bank.


text:
      In re Application of William H. Kimball, Receiver.
   Account allowed, and order certified to Jefferson county.


text:
    William W. Ross v. Edward N. Westcott and others.
   Motion to dismiss appeal granted. Per Guriam opinion filed with the clerk of Onondaga county.


text:
    In the Matter of the Final Accounting of Henry R. Sheldon, Assignee, etc.
   Motion granted, without costs, and appeal dismissed, without costs.


text:
    In the Matter of Michael L. McCarty, Counselor and Attorney of this court.
   Papers ordered filed in Onondaga county, and reference ordered to Judge Northrup to take proofs and report at the next term of this court. Reference to proceed on eight days’ notice by’eithor party.


text:
    In the Matter of the General Assignment of Louis Meinhold and another, Appellants, v. Austin P. Williams, Assignee, and others, Respondents.
   Order affirmed, with ten dollars costs and disbursements


text:
    James H. Woodford, Respondent, v. David H. Rassbach, Appellant.
   The orders granted prior to the order of the Special Term held at Oswego, June 28, 1884, entered August 7,3884, and appealed from, are affirmed The order granted at a Special Term held at Oswego, June 28, 1884, entered August 7, 1884, is reversed, with ten dollars costs and disbursements, and the motion denied on the merits, with ten dollars costs and referee’s fees, and it is adjudged that the judgment ¿recovered herein is settled and satisfied.


text:
    James H. Woodford, Respondent, v. Benjamin F. Chapman, Henry K. W. Bruce and Edwin R. White, Appellants.
   The orders granted prior to the order of the Special 'Perm held at Oswego, June 28,1884, entered August 7,1884, and appealed from, are affirmed. The order granted at Special Term lieid at Oswego, June 28, 1834, entered August 7,1884, is reversed, with ten dollars costs and aisluusoments, and the motion denied on the merits, with ten dollars costs and referee’s fees, and it is adjudged that this action is settled and discontinued.


text:
    Samuel Wells, Appellant, v. Leonard L. Fancher, Respondent.
   Order affirmed, with ten dollars costs and disbursements.