text:
    ISAIAH S. MATTHEWS AND RODERICK T. PECK, Executors, Etc., of DANIEL R. STOW, Deceased, Respondents, v. PRESIDENT, ETC., OF THE DELAWARE AND HUDSON CANAL COMPANY AND JAMES P. GREEN, Appellants.

      Grant of land, reserving an easement to the grantor — the grantee'may me the land if he does not unnecessarily interfere with the enjoyment of the easement — When an eguitable action affecting land survives to the plaintiff’s executors — Might to recover damages in an equitable action, though the party is not entitled to the equitable relief sought — evidence as to damages.

    Tlie owner of a farm conveyed to a railroad company a portion thereof, upon which was a spring from which he had been accustomed to conduct water by wooden pipes to supply his farm, by a deed which contained a provision “excepting and reserving from the above-described premises the spring issuing from said land, with the privilege, as now held by the parties of the first part, in the use and occupation of said siu'ing, with access to and from said spring' to repair, relay with, logs or otherwise, without any damage whatever to said spring in consequence of the construction of said railroad.”

      Held, that the title to the land passed to the grantee subject to the easement, and that it w313 entitled to use and enjoy the land in all lawful ways not inconsistent with the right reserved to the grantor, and that it was entitled to lay its tracks over the spring on protecting its waters from injury, so as not unnecessarily to interfere with the enjoyment of the easement reserved by the grantor.
    What evidence is inadmissible, as to the damages sustained by the owner of the easement by reason of Ms being temporarily deprived of the water from the spring, considered.
    Where a plaintiff dies during the pendency of an action, brought by him to restrain an unlawful interference with an easement reserved by him in a conveyance to the defendant, and to recover the damages occasioned thereby, his personal representatives are entitled to revive and continue the action for the purpose of recovering such damages, though they take no interest in the real estate, and are not entitled to the injunction sought by the deceased.
    Damages are recoverable in an equitable action, though the plaintiff fails to establish his right to the equitable relief demanded.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.
    The referee found, among other things, that on or about the 4th day of March, 1865, one Stow and other persons owning a farm' conveyed a portion thereof to the Albany and Susquehanna Railroad Company, upon a portion of the land so conveyed was a spring from which the owners of the farm were accustomed to conduct water to supply the farm by means of wooden pipes. The deed contained the following clause : “ Excepting and reserving from the above described premises the spring issuing from said land with the privilege, as now held by the parties of the first part, in the use and occupancy of said spring, with access to and from said spring to repair, relay with logs or otherwise, without any damage whatever to said spring in consequence of the construction of such railroad.”
    In the year 1870, the said Daniel R. Stow acquired and was the owner and in the possession of all the right, title and interest in said farm and spring before mentioned which were not conveyed by said deed of March 4, 1865, to the Albany and Susquehanna Railroad Company, and he remained the sole owner, thereof until the time he died, which occurred November, 1873.
    After the conveyance of the said parcel of the said farm to the Albany and Susquehanna Railroad Company, the said company constructed its roadway on the westerly side thereof, with an embankment several feet higher than the level of said spring. The easterly side of said embankment at the nearest point was about twenty-eight feet west of said spring, and upon it said company laid its railroad track ; but such construction in no way interfered with or injured said spring.
    The defendant, The President, Managers and Company of the Delaware and Hudson Canal Company, is a corporation, and in the year 1870, and after the construction of the railroad of said Albany and Susquehanna Railroad Company, became the lessee thereof, together with the lands, tenements, rights and privileges belonging thereto, as alleged in the answer herein.
    Previous to the commencement of this action, the defendant commenced the construction .of a branch railroad known as the Lackawanna and Susquehanna Railroad, extending from some point in the State of Pennsylvania .northerly, and passing across the easterly side of said parcel of land conveyed by the deed of March 4, 1865, and intersecting the Albany and Susquehanna Railroad a few rods, north of the spring in question, and said defendant was engaged in the construction thereof when this action was commenced.
    To construct the same and lay the main and side tracks thereof, and also side tracks on the east side of the main track of the Albany and Susquehanna Railroad, rendered necessary 'by the construction of such branch railroad, it became necessary to extend the embankment which had been made across said parcel of land, further to the east, to near the east line thereof, and also to provide for laying one of the tracks of said branch railroad over said spring; and the defendant thereupon extended said embankment accordingly for the purposes aforesaid, to near the east line of the said parcel of land: and to provide for laying one of the tracks of the said branch road over the said spring, and also to preserve and protect the spring, the said defendant, on or about the 15th of August, 1871, commenced to make an excavation in and about the said spring for the purpose of surrounding the same with masonry to be carried up perpendicularly in the form of a well to the level of said embankment. In making such excavation, the pipe connecting with the said spring and conducting the water from it was removed, and the flow of the water from the spring into the said pipe and the pump logs was cut ofl", and the said Daniel R. Stow was thereby deprived of the use, benefit and enjoyment of the said water, and such deprivation thereof continued at the time this action was commenced.
    After making such excavation, the said defendant began the construction of a circular wall around said spring, with an interior diameter from side to side of about three feet, extending from the bottom of said excavation upward toward the grade of said railroad, which was about eight feet above the bottom of the spring ; said wall was laid in cement on the north, east, and south sides, but dry on the west side to admit the water through the wall into the well, into which there was also an opening, on the west side through a covered ditch or drain, to admit the water of the spring into the well.
    While said defendant was engaged in building the said wall around the said spring, and on the 12th day of September, 1871, at which time the wall had been carried to the height of about five feet, this action was commenced by the said Daniel R. Stow, and the injunction order issued therein was served upon the defendant Green, who was engaged in the prosecution of said work as an engineer and employee of the corporation defendant, and under its direction, and soon thereafter it was served upon the corporation defendant.
    By said injunction the defendants were commanded and enjoined, among other things, that they and each of them desist and refrain from, digging around, walling up, covering over, or in any manner interfering with the said spring.
    All the acts done at and about said spring before mentioned, from their commencement on or about August 15, 1871, to the commencement of this action, were done under the supervision and direction of the defendant Green, who during that time was an engineer of the corporation defendant, acting under and in pursuance of its direction and in pursuance of its plans and purpose to wall up the said spring m the manner before stated to the grade of the said road, place a cover over the same at the surface with a trap or lid in the center opening upward, to afford access to said spring for cleansing and other purposes, and draw the water therefrom by means of a pipe passing through the wall just above the bottom of the spring and connecting with said wooden pump-logs, and were done without the consent and against the will of said Daniel R. Stow, and were a damage and injury to said spring and to his rights.
    On the 24th day of August, 1871, said Daniel R. Stow caused a notice to be served upon the defendants, informing them of his rights in and to the said spring, and of the reservation of the same contained in the deed of March 4, 1865, and requiring them to put the spring in its former condition, and notifying them that he. would not permit them either to stone or fill around it in the manner prosposed by them, and thereafter said work was continued by them with full knowledge of his rights in respect to said spring.
    The said Daniel R. Stow died in November, 1873, leaving a last will and testament, which was afterward duly proved before the surrogate of Chenango county, and admitted to probate, and letters testamentary were thereupon granted and issued by said surrogate to the plaintiffs, who were named and appointed therein as the executors thereof, and they accepted such office, took the required oath, and have since acted as such.
    The executors were authorized to sell the testator’s real estate, but took no interest therein.
    The damages which had been sustained by the said Daniel R. Stow, at the time this action was commenced, by reason of the said acts of the defendants interfering with the said spring, which deprived him of the water flowing therefrom, from the time the same was cut off by them until he commenced this action, amounting to the sum of twenty-five dollars.
    He found as conclusion of law :
    “ First — The said Daniel R. Stow, at the time this, action was commenced, had a cause of action against the defendants for an injunction restraining their acts of interference with the spring in question, then being committed, and the further acts of interference therewith which it was their purpose to perform,
    “ Second — By the will of the said D.aniel R. Stow, no title to bis real estate vested in. the executors, the plaintiffs, whose right and authority in respect thereto was only a power to sell and convey the same, and they, as plaintiffs, therefore, are not entitled ■ to a judgment herein for an injunction. :

      “Third — The claim and cause of action stated in the complaint for damages sustained by the said Darnel E. Stow at the time he commenced the action, by reason of the defendants’ interference with said spring, survived to the plaintiffs as his executors, and they are entitled to recover under the complaint herein the damages which said Stow had there sustained by reason of the unlawful acts of the defendants, in interfering.with said spring and depriving him of the water flowing therefrom.”

      Henry Smith, for the appellants.
    The exception in the deed to the spring and the right, of access to it to lay logs, etc., must be construed as subordinate to the right of the company to use the land for which it was granted. If the company was engaged in fixing and guarding the spring so that its use of the land would not impair the usefulness of the. spring, it discharged its whole duty.. (BIossy. Greeley, 45 N. Y., 671; Atlcins v. Bordman, 2 Mete., 467; Washburn on Easements [2d ed.], 246; Johnson v. Kinnicutt, 2 Cush., 153; Barnes v. Burt, 38 Conn., 541; Austin v. Oox, 118 Mass., 60; French v. Garhart, 1 N. Y., 96; ibes v. Van Aukin, 34 Barb., 566.) This action was for an injunction. The damages claimed were merely incidental. The referee therefore erred in turning it into an action of trespass, and finding that the executors could recover twenty-five dollars and costs. (.Bradley v. Aldrich, 40 N. Y., 504; Van Beck v. Village of Bondout, 15 Abb., 49; affirmed, Ct. of App., 41 N. Y., 619; Barnes v, Quigley, 59 N. Y., 265.)

      Stephen G. Millard, for the respondents.
   Bockes, J. :

A new trial must be granted in this case, if for no other reason, because of the admission of improper evidence upon the subject of damages.

According to the decision of the referee the case resolved itself into an action at law for damages suffered by the plaintiffs’ testator, caused by an unlawful interference on the part of the defendants with the testator’s spring, and the cutting or removing by them of his water pipes leading therefrom to his premises, by reason of which he was deprived of the use of the water.

Let it be admitted that the defendants wrongfully interfered with the spring by digging in and around it, and also that they unlawfully cut and removed the water pipes leading from it, by reason of which the deceased was deprived of the use of the water for a time, then and in that case his damages would be such as he had sustained, because of being deprived of such use- — -in this case, during a part or all the timo from August 15, 1871, to the commencement of this action, September eleventh or twelfth of the same year, a period of twenty-seven or twenty-eight days, and, in addition thereto, such expenses as he should necessarily incur in restoring the spring and pipes to a condition of usefulness. Damages could not be allowed for injuries caused and suffered after the commencement of the action and the service of the injunction ; certainly not after the deceased had enjoined the defendants from restoring the .spring to its original condition; the deceased having the right, and having asserted it, to make the restoration himself, the defendants being willing and offering to do this for him.

It may be here remarked, that it seems, at least, doubtful whether the defendants had not in fact, prior to the commencement of the action, restored the spring and pipes to as good condition as they were in before they were interfered with. (See the testimony of Mr. Gibbons, Mr. Paget and Mr. Wurtz, ff., 97,. et seq.) It is quite plain from the evidence that if the defendants had not been enjoined from carrying out their purpose, in which they were actually engaged, the spring and its usefulness to the defendant would have been greatly improved. But there was no attempt to show the cost and expense of restoring the spring and pipes to their original condition. This element of damages, if it existed in fact, was entirely ignored on the trial. Therefore, the only damage for which a recovery was authorized under the proof in this case was such as was caused to the deceased by reason of the loss of the use of the water, and this for a few days only. To establish the amount of damages so sustained, the plaintiffs were allowed to prove the value of the spring to the farm of the deceased, before and after the defendants inter-ferance with it, as if such damages were permanent and the injury incapable of remedy. The witnesses estimated such damage at from $200 to $250, and one witness put it at a much larger sum. This evidence was admitted against objection, and the ruling was duly excepted to. Its admission was plainly erroneous. The value of the spring to the deceased’s farm formed no criterion for an estimate of damages resulting from a deprivation of the use of its waters for a few specific days. The action was not brought to recover the difference in value of the general use of the spring to the farm before and after the defendant’s interference with it. There was a short period of time during which the deceased was deprived of the use of the water. The question was, what amount of damages he had sustained by such deprivation, what sum would compensate him therefor. The spring might be worth a large sum to the farm to which it was an appurtenant, considered with reference to its enjoyment for all time, and yet the deceased might suffer little and perhaps no loss or damage at all from being deprived of its use for a few days on some particular occasion. There might be days when no damage would result from an inability to use the spring, because of no necessity or occasion for its use. The question was as to his convenience and necessities as regarded the use of the water during the days he was deprived of it. If he should have no occasion for its use for a time, he would suffer no damage from its disuse during that period, hence could recover at most but nominal damages for such deprivation. The evidence under consideration afforded no data from which the damages recoverable in this case could be estimated or computed; and this was the only proof submitted on the question of the amount of damages actually suffered by the deceased. The amount allowed is small, but there is no proper evidence to sustain a recovery even for this small sum. Without the objectionable proof the sum to be allowed was merely conjectural; and indeed with it, the case was no better; was worse in fact, because it must be assumed that such improper evidence had its influence as against even fair conjecture.

There was also error in the admission of evidence as to the condition in which the spring was permitted to remain after the commencement of the action down to the decedent’s death. If left unprotected the fault was with the deceased, who had asserted his right to control it, and had enjoined the defendant from in any manner interfering with it, and if a claim was intended to be made for anything done by the defendants after the commencement of the action, such claim ivas not within the issues made by the pleadings. If any relief could be claimed hi this suit for such action, on the part of the defendants, it should be obtained on motion for a violation of the injunction.

These conclusions lead, necessarily, to a reversal of the judgment.

But there is another ground of alleged error which should be considered. It is urged that the action, as brought by the deceased, was in equity for an injunction, and that the damages claimed were but an incident, dependent upon the establishment of a right to equitable relief, and that inasmuch as the plaintiffs’ failed to show such right in themselves they could not then convert the action into one at law for damages only.

The record shows that the action remained at the time of the trial the same as before the testator’s decease. The plaintiffs were substituted in the action by a simple order of revivor. The pleadings were not amended; there was no supplemental complaint put in. It is conceded that the action failed as to any claim the plaintiffs could make to equitable relief. Then did not the action abate on the death of the original plaintiff ? It is insisted, on their part, that the action survived;as to the damages, and that under the order of revivor, having _ been substituted as plaintiffs in the action, they may recover such damages as they might show the decedent to have sustained growing out of the wrongs charged against the defendants in the complaint. We are inclined to sustain the plaintiffs’ position. in this regard. The damages sought to be recovei’ed belonged to them as the personal representatives of the deceased, and it was evidently supposed that by finding that the deceased had, according to the complaint and the proof given, grounds of equitable relief, then, for this reason, if for no other, the recovery of damages by the plaintiff might be sustained. If the right of recovery by the plaintiff rested on this position, it would have a very doubtful support on the facts proved. It is true the referee finds that the deceased, at the time the action was commenced, had a cause of action against the defendants in equity for au injunction. Now, admitting that this finding was one within the province of the referee to make, we are satisfied that it was unsupported by the proof.

The reservation to Mr. Stow (the grantor in the deed) of the spring issuing from tlie land granted, with the right of entry to repair and relay the water pipes which should conduct the water therefrom, was the reservation of' an incorporial hereditament, a privilege reserved from the grant, and it must be construed like a grant of such right. Now a grant of such right would pass nothing as an incident save what was requisite to the fair enjoyment of the privilege granted. The deceased then had no other interest in the land save such as was requisite and necessary to the enjoyment of the privilege held by him. The title to the land passed to the grantee in the deed containing the reservation subject to the easement; and so the grantee had the right to use and enjoy the land in all lawful ways not inconsistent with the right reserved to the grantor. Therefore the railroad company had the right to lay its track over the spring, on protecting its waters from injury, to the end that the party entitled to the enjoyment of the easement should not be unnecessarily interrupted in his right. This being so were the defendants, when restrained, exercising any other than a lawful right ? Was their action unreasonable in view of their own and Mr. Stow’s rights ? The company could not be deprived by Mr. Stow of all right to the use of the land at and about the spring. It had a right to make it useful, doing no unnecessary injury to Mr. Stow’s rights, and not withholding from him an absolute use of the waters, save temporarily, while putting their property in condition fot lawful enjoyment. It seems, from the evidence, that the railroad company were proceeding with tolerable rapidity and energy, and with due regard to the rights of Mr. Stow as to the manner in -which it proposed to protect and preserve the spring for his absolute use. If some trifling and temporary inconvenience resulted to him from the company’s reasonable ciciion, ho could have no cause of complaint any more than the company would have cause of complaint against his reasonable action in keeping the spring in a condition of usefulness. Their rights were co-ordinate as well as mutual; so Mr. Stow could not arbitrarily restrain the company from a reasonable use of its land. Each party had rights which they might respectively exercise, and neither could justly complain of the other for doing that which was fair and reasonable in view of those rights. Under an application of this rule, the evidence failed to show that Mr. StoAV, at the time he commenced his action, had a right of relief by injunction. The case was tried and decided upon the mistaken theory that the privilege reserved to Mr. Stow was paramount to and not at ail subject to the reasonable use and the fair and lawful enjoyment of the land by the owner of. the fee. This was proceeding in error as to the rights of the respective parties. It was laid down in Atkins v. Bordman (2 Met., 457, 467), that if a person has an easement in land, the owner of the fee has still all the beneficial use of it which he can have consistently with the other’s enjoyment of that easement. This case is a very instructive one upon the question here under examination. (See also Bliss v. Greeley, 45 N. Y., 671, and the cases cited on page 674.) It may be said, perhaps, that in this view of the case there was no right of recovery shown for damages. The determination of this question is not necessary to the decision of this case on the appeal.

Let us now recur to the question whether damages can be recovered in ah equity action where the plaintifF fails to establish his right to the equitable relief demanded. The authorities are to the effect that such recovery may be had. (Marquat v. Marquat, 12 N. Y., 336; Phillips v. Gorham, 17 id., 270; Davis v. Morris, 36 id., 569; Barlow v. Scott, 24 id., 40; Hudson v. Caryl, 44 id., 553; Colman v. Dixon, 50 id., 272; Wheelock v. Lee, 74 N. Y., 495.) It is held, however, that in such case the parties may, on demand, have the question of damages tried by jury. (See above cases.) All that was decided in Bockes v. Lansing (74 N. Y., 437) was this : That a referee on the trial had no power to change the cause of action from one for equitable relief to one in ejectment. This would be to change the cause of action in its entiro scope and purpose. But in case the question of damages should be sent to a jury for trial, would not the case be still deemed an action in equity, according to the pleadings, for the purpose of ordering judgment and awarding costs as in an equity suit? (Queere.) Then,»however, according to the decision in Van Wyck v. Baker (11 Hun, 309), the successful party would be entitled to costs in cases in which a claim of title to real property should be raised on the pleading, or should be certified by the court to have come in question at the trial. These questions relating to final costs in the action are not here before the court for decision.

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

BoardmaN, J., concurred ; LearNed, P. J., taking no part.

Judgment reversed, new trial granted, costs to abide event, referee discharged.


source: Caselaw Access Project

author: Bockes, J.:

license: Public Domain

text:
    WILLIAM GOLDEN, Respondent, v. WILLIAM F. ROMER AND JACOB H. TREMPER, Appellants.

      Warehouseman — proof of a demand and Ms refusal to delvoer goods, easts v/pon Mm the burden of excusing the non-deliverry.

    Where, in an action to recover property delivered to a warehouseman, the plaintiff proves a refusal or omission on the part of the warehouseman to deliver the property after the same has been duly demanded, the burden of proof is shifted, and the defendant is bound to account for the property and excuse his omission to deliver the same.
    Appeal from a judgment of the County Court of Ulster county in favor of the plaintiff, entered upon the verdict of a jury and from an order denying a motion for a new trial made upon a case and exceptions. The action was originally commenced in a justices’ court.
    The complaint alleged: “That the defendants are co-partners in trade, and are also common carriers, carrying on and doing business under the firm name and style of Romer & Tremper ; that they carry on and do business at the city of Kingston, Ulster county, N. Y.; that said firm of Romer & Tremper (defendants) are the owners of a freighting line between New York city and the city of Poughkeepsie, and Newburgh and Albany, and the city of Kingston, and carry on such freighting line as aforesaid as common carriers.
    “ That as such common carriers the defendants received from one William A. Fanning, on or about the 1st day of August, 1872, two coils or packages of rope, being by said William A. Fanning, at the city of Poughkeepsie, shipped and consigned to the plaintiff, who then resided and was doing business at said city of Kingston (Rondout), in said county of Ulster. That said defendants received said ropes as the property of the said plaintiff, and did receive such under their promise and agreement, as common carriers, to carry the said rope safely to the said city of Kingston (Rondout), and deliver the same to the said plaintiff at (Rondout), said city of Kingston, in good condition and upon demand' of plaintiff; that on or about the time last-aforesaid, and several times since and before the commencement of this action, said plaintiff demanded said rope from the said defendants; that said defendants then refused and still refuse to deliver said rope to plaintiff; that said rope was of the value of thirty-five dollars, wherefore plaintiff asks and demands judgment against defendants for thirty-five dollars, with interest thereon from the 1st day of August, 1872, with costs.”
    Upon the trial a delivery of the rope at Poughkeepsie, a demand therefor at Rondout, and a failure of the defendants to deliver it or to account for their omission so to do was proved.

      G. R. Adams, for the appellants.

      Okas. A. Fowler, for the respondent.
   Bockes, J.:

The point urged by the appellants’ counsel, that no recovery could be had against the defendants as warehousemen under the complaint herein, is not well taken. The complaint is sufficiently comprehensive in its statements of fact to uphold a recovery against tbe defendants, either as common carriers or warehouse-men. It charges a delivery of the plaintiff’s property to the defendants as common carriers, and .its non-delivery. This wás sufficient to charge the latter as common carriers. In addition to this it charges a demand of the property by the plaintiff, and a refusal or neglect to deliver it on demand by the defendants. Therefore the complaint was sufficient to uphold a recovery against the latter as warehousemen. The defendants were both common carriers and warehousemen, and the plaintiff had the right to state in his complaint the facts attending the loss of his property, and to recover on such statement accordingly as he should establish a right of recovery on his proof. (Curtis v. Del., Lack. and W. R. R. Co., 74 N. Y., 116; Fairfax v. N. Y. C. and H. R. R. R. Co, 73 id., 167.)

The question then is, whether a case was made on the evidence against the defendants as simple bailees, as warehousemen. To make them responsible in this character it was necessary for the plaintiff to show that the jwoperty was lost to him through the defendants neglect. The latter were bound to ordinary diligence in caring for and protecting the projserty, and to that only. But an omission or refusal to. deliver the property on due demand was evidence of neglect of duty which, unexplained and inex-cused, would give the right of action. (Curtis v. Del., Lack. and W. R. R. Co., 74 N. Y., 124, and cases there cited; Fairfax v. N. Y. C. and H. R. R. R. Co., 73 id., 167.) A demand and refusal to deliver was shown in this case. Now the burden of proof shifted to the defendants. They were now bound, in order to discharge themselves from liability, to excuse their omission to deliver. As was held in Fairfax v. N. Y. C. and H. R. R. R. Co. (supra), having incurred the liability of warehouse-men, they were bound to account for the property in some way when demand was made, and if gone, to show that it had disappeared without their fault. (Penn. R. R. Co. v. Miller, 87 Penn., 395, 398.) This they might do by showing that it was destroyed or stolen from them under circumstances dischai’ging them from all negligence. But they were bound to excuse the non-delivery. They set up in their case, and sought to prove, that the property had been in fact delivered to the plaintiff. In this they failed, giving effect to the verdict of the jury. So, too, there was some evidence showing a possibility that it was stolen from the warehouse ; but there was no direct proof of such fact, and certainly there was no proof whatever that, if stolen, it was stolen without undue exposure and want of ordinary care on their part. The burden was on them, after their omission to deliver on demand, to show themselves free from fault in its preservation and protection. All that they could fairly demand under the proof in this case -was, that the question of due care on their part, as a question of fact, should bo submitted to the jury. This having been allowed to them, they have no ground of complaint.

The judgment and order appealed from must be affirmed, with costs.

Learned, P. J., and Boardman, J., concurred.

Judgment and order affirmed, with costs


author: Learned, P. J.:

text:
    ENOS R. EDMONDS, Respondent, v. BENJAMIN ABEEL, Appellant.
    Feri'y— rates of ferriage, hoto established — when the lessee of a ferry cannot dispute the rates established by his lease — What payments are not voluntary ones — Liability of an agent coileating illegal rates of ferriage from passengers.

    From 1818 to 1873, a ferry had been maintained across the Hudson river at the city of Hudson, the said city having- under its charter the power to establish and regulate ferries at that point. The customary rate of ferriage for a foot passeng-er, was six cents. In 1873 a law was passed, authorizing the ferriage to be increased to not more than ten cents. In 1875 this law was repealed. In 1872, the city of Hudson, under a power conferred by its charter, leased the ferry to one 'Powers, he agreeing not to charge or receive any greater rates of ferriage than those established by the city of Hudson and contained in a schedule annexed to the lease, in which the rate for a foot passenger was fixed at six cents.

      Held, that after the repeal of the act of 1873 by that of 1875, the lawful rate of ferriage was six cents.
    That Powers could not deny the authority of the city of Hudson to establish rates of ferriage, when the lease which he had accepted and under which, he claimed recognized its right so to do, and specified, fixed and determined the same.
    The plaintiff when crossing the ferry tendered to the defendant, who was collecting tolls on the boat for the lessee, on one occasion a ten cent piece, and on another a twenty-five cent piece, demanding in each instance, that all in excess of six cents should be returned to him, and protesting against more than that amount being retained for ferriage. In each instance the defendant retained ten cents out of the money given to him by the plaintiff.
    In an action by the plaintiff to recover the excess so retained, held, that the payments were not voluntary ones, and that the action could be maintained.
    That the defendant was liable to refund such excess, though he received it as the agent for the lessee and had paid the same over to him.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action in the County Court of Greene county, without a jury.
    The action was originally commenced in a justices’ court, where the plaintiff had a verdict. The 'defendant then appealed to the County Court of Greene county for a new trial.
    The action was brought to recover excessive and illegal charges for ferriage, demanded and received of the plaintiff while crossing the Hudson river on the ferry between Athens and Hudson. The plaintiff recovered a judgment in the justices’ court for twenty cents damages, besides costs, and on the re-trial in the County court again obtained a judgment for the same amount.
    The ferry was leased in 1872 by the city of Hudson to George H. Power. The city of Hudson has, by its charter, the right to éstablish, license and regulate the ferries and to do all acts and things which, in their judgment, shall be conducive to the public interests in the premises, and to lease the said privileges and rights of ferriage to any. person or persons for a term not exceeding ten years. The lease provides, among other things, that the lessee shall not, “ at any time during the term of said lease, charge or receive any greater rates of ferriage than those now established by the city of Hudson and the village of Athens, charged upon said ferry and contained in the schedule hereto annexed.” The schedule fixed the rate for foot passengers at six cents. The defendant is the agent of George H. Power and the collector of fares on this ferry, and has been since 1876. It was proved that the rate of fare upon this ferry for sixty years past was six cents. From 1873 to 1875 defendant collected ten cents fare under a law of the Legislature, which was repealed in 1875. Since 1875 the lessee has attempted to collect ten cents for fare, but his right to do so has been disputed and resisted.
    Between the 4th and 20th of June, 1877, the plaintiff made five passages upon this ferry and the defendant collectéd ten cents on each passage. ' Plaintiff handed defendant either a ten or twenty-five cent piece on each occasion and demanded all but six cents back, which defendant refused to give, but kept ten cents for ferriage. Plaintiff protested against paying more than six cents for fare.

      Newkirk & Qhace, for the appellant.
    The facts stated in the complaint do not constitute a cause of action, there being no mistake, duress or fraud alleged, the payment was in law a voluntary payment. (Flower v. Lance, 59 N. Y., 603; Fleetwood v. Gity of If. Y, 2 Sandf., 475; Forrest v. Mayor of FT. Y., 13 Abb., 350; Bailey v. Buell, etc., 50 N. Y., 662; Dolly. Farle, etc., 59 id., 638; 8. G., 65 Barb., 298; Union Bank v. Gity of FT. Y., 51 id., 159; Gibson v. Bingham, 5 Am., 289.)

      John Sanderson, for the respondent.
    A common carrier who demands and receives from a passenger while traveling upon his vehicle more than the lawful rate of fare is liable to an action for the recovery of the excess, and if a penalty is annexed for the recovery of the penalty also. (Fisher v. FT. Y. O. and H. B. B. B. Co., 46 N. Y., 644, 656, 657; Lewis v. N. Y. G. B. B. Go., 49 Barb., 330; 1 Redf. Law Rail. [4th cd.], 445, 446; Chit, on Con., 192 [m. p.]; Porter v. N. Y. O. B. B., 34 Barb., 353; 2* Bish. Cr. L., § 380; 1 Russ Cr. [Greenl. ed.], 143; 2 Archb. Cr. L., Pr. and P., 1369; Pomeroy’s Notes; Bexy. Burdette, 1 Ld. Raym., 149; Bex v. Boberts, 4 Mod., 101; Hearsey v. Pruyn, 7 Johns., 179; Grifen v. House, 18 id., 397; People v. Kingston and Middletown T. B. Go., 23 Wend., 220; Harmony y. Bingham, 2 Kern., 99; Moses v. Macfarland, 2 Burr, 1009.) The lease recites that these rates had been established by the city of Hudson, and this recital effectually binds the lessee and his privies. (5 Cow., 537, 540, 541; Lewis v. FT. Y. C. B. B. Go.,
      49 Barb., 330; Finnie v. Glasgow and S. W. R. R. Oo., 3 Macq. Scotch [A. C.], 75; Weet v. Trustees of Village of Brockport, cited in a note, 16 N. Y., 161, 163.) An agent is responsible to third parties for money which he has obtained from them through fraud, duress, extortion or undue advantage taken of a person's situation. (ITeavsey v. Pruyn, 7 Johns., 179; Grifen v. House, .18 id., 397; Ripley v. Gelston, 9 id., 201; Frye.v. Loclcwood, 4 Cow., 454; Parker v. Bristol and Exeter R. R. Oo.; 6 Exch. R., 702; Fearnley v. Morely, 5 B. & C., 25; Ashmolev. Wainright, 2 A. & E., 837; Snowden v. Davis, 1 Taunt., 359.)
   Learned, P. J.:

The payments were not voluntary. The plaintiff did not intend to pay more than six cents. When he handed a ten cent piece or a twenty-five cent piece to the defendant, it was in order that he might receive the change back ; and his intention was so expressed. That the defendant had informed him that ho should keep all but ten cents did not make the payment voluntary. If, for the purpose of paying six cents, the plaintiff had handed the defendant a dollar bill, and the defendant had informed him that if he did so he should keep the whole, that would not make a voluntary payment of the dollar. The plaintiff was bound to pay the ferriage. If, for the purpose of so doing, he handed to the defendant more than the proper amount, asking for the return of the change, there could be no voluntary payment except to the extent that ho expressed his desire to pay. (Hearsey v. Pruyn, 7 Johns., 179.) For, as is said by the plaintiff’s counsel, the taking of more than the legal rate of ferriage is in the nature of extortion, or like the taking of illegal fees by public officers, because the defendant was conducting a public franchise. The plaintiff had a right to cross, on paying the legal toll. To take more than that, against the plaintiff’s will, must make the party who takes the money liable to refund. The plaintiff did not. intend to pay more than six cents. If more was retained, the retention was against his will. He did not pay the ten, or the twenty-five cents ; he only handed such a piece of coin to the defendant, in order to pay six cents therefrom.

The defendant was liable, even though he was only the collector and the agent of Powers. (Griffin v. House, 18 Johns., 897; Ripley v. Gilston, 9 id., 201). Hearsey v. Pruyn (7 id., 179), was an action against a toll-gatherer of a bridge for taking excessive toll. The plaintiff, when he paid, called on a witness, in the presence of the defendant, to take notice that he was overcharged. The court held that this was enough to put the defendant on his guard, and they sustained the action against the toll-gatherer. In the present case the plaintiff did not pay voluntarily, and the defendant retained the money against the plaintiff’s will. The defendant cannot, therefore, escape liability, even though he has paid over the money to Powers which he unlawfully retained from the plaintiff.

The defendant, however, insists that ten cents is the legal rate of ferriage. It was proved that from 1818 down to 1873 the customary rate of ferriage had been six cents. By chapter 519, Laws of 1873, authority was given to increase the ferriage to not more than ten cents. From that time the ferriage was raised to ten cents. By chapter 92 of the Laws of 1875, the Law of 1873 was repealed. Thereupon the lawful ferriage would again be six cents, unless some authority should be shown to increase it. It would seem that, by sundry charters, to which it is not necessary to refer, the city of Hudson has had the power to establish and regulate ferries at this point. Whether such power is exclusive is a question which it is not necessary here to decide. The city has also the power to lease the ferry, under such charters, as it appears. In 1872 the city leased the ferry to Powers on an agreement, among other things contained in the lease, that he would not charge or receive any greater rate of ferriage “ than those now established by the city of Hudson and village of Athens, charged upon said ferry and contained in the schedule hereto annexed.” In that schedule the rate for a foot passenger is six cents ; and under that lease the defendant, as collector for Powers, took this ferriage.

.The defendant insists that the city of Hudson could not establish rates of toll by a contract. Whether it can or not, it is enough to say that the contract recognizes these rates as established, which must mean, as to Powers, lawfully established. It does not lie with Powers to deny that they had- been established, when bis lease acknowledges the fact. And the defendant claimed to act for Powers. Both, therefore, by the proof of the customary rate of ferriage for fifty years, and by the lease of Powers, it appears that the defendant had no right to collect more than six cents.

The judgment should be affirmed, with costs.

Present — LearNed, P. J., BoardmaN and Bocees, JJ.

Judgment affirmed, with costs.


author: Per Curiam:

text:
    ARANDA BARBER, Respondent, v. HESTER ANN GOULD, Executrix, etc., of WILLIAM GOULD, Deceased, Appellant.

      Malicious prosecution — the fact that the proceeding against the plaintiff terminated in his favor, is not conclusive evidence of his innocence.

    Although the plaintiff in an action for malicious prosecution is hound to prove that the proceedings instituted against him have heen terminated by the failure of the grand jury to indict or otherwise, yet this fact, when proved, is not conclusive evidence of his innocence, and the defendant may prove that the plaintiff was in fact guilty of the crime with which he was charged.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    The action was brought against one William Gould (since deceased), to recover damages for an alleged malicious prosecution and false imprisonment of the plaintiff. The jury brought in a verdict in favor of the plaintiff for forty-five dollars.
    After the entry of the judgment herein, and the perfection of this appeal therefrom, the defendant Gould died, and his widow, his executrix, was substituted in his place.

      JJ. G. Paris, for the appellant.

      John B. HasMn, for the respondent.
   Per Curiam:

The recovery in tbis case is small. The grounds to justify the defendant’s testator in causing the arrest of the plaintiff were certainly very slight. There seems to have been very little indeed which warranted him, at the time when he procured the warrant, in suspecting that the plaintiff was guilty of the crime.

But there is one part of the charge of the court which seems to us erroneous. The court charged that the failure of the grand jury to indict was conclusive evidence of the plaintiff’s innocence. Such failure, or some other termination of the prosecution is, it is true, a pre-requisite to the action. And, as stated in Carl v. Ayers, (53 N. Y., 14), the question, in an action for malicious prosecution, does not depend altogether on the guilt or innocence of the accused. It does not follow when an innocent man is prosecuted for crime that his accuser is guilty of malicious prosecution. The accuser may have good and sufficient reason . to believe that the accused is~guilty, and if so, he is justified iri’,' his action. But, on the other hand, the guilty man can have no\ ground of complaint when'Tie) is 'prosecuted, however slight the" evidence against him.” And, therefore, a conviction'of the crime would"'prevent the convict from asserting that he had been maliciously prosecuted.

The converse, however, does not follow. The prosecutor is not concluded by the failure of the grand jury to indict. Such failure is not conclusive evidence of the innocence of the accused. He might be indicted at some future time. And as the actual guilt of the accused would be an important element in considering the charge of malicious prosecution, it must be open to the defendant in such an action to show such actual guilt.

The judgment must be reversed, and as it appears that Gould has died since the trial it is unnecessary to order a new trial.

Present — Learned, P. J., Bocees and Boardman, JJ.

Judgment reversed.


author: Learned, P. J. :

text:
    CHARLES CHAPIN, Appellant, v. HINMAN SKEELS AND E. W. SKEELS, Respondents.

      Judgment in justices’ court — who entitled to costs on a partial affirmance of such judgment by the county court— Code, § 371.
    Upon a trial in a justices’ court, the plaintiff recovered a judgment of §25.48 damages and §7 costs, in all §32.48. Upon an appeal taken by the defendant under section 371 of the Code, the county court affirmed the judgment as to eighteen dollars damages and seven dollars costs, in all twenty-five dollars, and reversed it as to the residue.

      Held, that the plaintiff was entitled to the costs of the appeal.
    Appeal from an order of the Washington County Court, denying a motion made by the plaintiff for a retaxation of costs. The case originated in a justices' court in the town of Whitehall, and was tried before a justice of the peace, and a jury, on the 12th day of May, 1879, the plaintiff recovering a judgment of $25.48 damages and $7 costs, in all $32.48. The defendants appealed to the county court under section 371 of the Code, stating in their notice of appeal the particulars in which the judgment should have been more favorable to them in the court below, viz. : “ That it should have been iir their favor for costs ; and that it should have been in favor of plaintiff for twenty dollars or less.” The county court affirmed the judgment to the extent of eighteen dollars damages and seven dollars costs, in all twenty-five dollars, and reversed it as to the residue, viz. : $7.48, with ten dollars costs to appellants, besides disbursements. The apjjellants and respondent both duly presented their bills of costs to the clerk for taxation; and the clerk taxed defendant’s bill of costs. The plantiff then made a motion in the county court for an order directing the clerk to tax his bill of costs and to strike out the defendant’s bill of costs. The county judge made an order denying the motion, from which order this appeal is taken.

      Oharles G. Davis, for the appellant.

      Hill & Lillie, for the respondents.
   Learned, P. J. :

If the language of the decision in Bigsby v. Warden (62 N. Y., 27), is to be followed, the question is decided. “The costs of appeals from Justices Courts are regulated by section 371, except as the right to costs given by that section is qualified or varied incases in which offers of judgment are made pursuant to section 366, or other special enactmentThis sentence does not say, except as the right to costs is qualified by other special enactment. It says, except as the right to costs is qualified in cases in which offers of judgment are made. It is the offers of judgment which may be made pursuant to section 366, or other special enactment; that is, the words “other special enactment” are governed by the words “pursuant to.” They can be governed by nothing else.

Again, that decision states that section 371 applies to all cases of appeal from justices court, whether a new trial is to be had in the appellate court or not.

The question was fully discussed in Bixby v. Warden (46 How., 239), at the General Term, and the same result reached.

The policy of the provision seems to be that appeals shall be discouraged, unless the appellant can change the result in his favor, at least to the extent of ten dollars. We think that the construction given to the section by the Could of Appeals should be followed.

The order should be reversed, the adjustment in favor of defendant set aside and the clerk directed to adjust costs in favor of plaintiff.

The plaintiff should recover costs of appeal to county court, and ten dollars costs of appeal to this court, with printing disbursements.

Present — LearNed, P. J., Bocees and Boardman, JJ.

Ordered accordingly.


author: Boardman, J.: Learned, P. J.

text:
    ALONZO SPENCER, Appellant, v. HELEN A. WEAVER, Respondent.

      Reservation of a right of way over the grantors land — construction of.

    The plaintiff’s grantor owned a lot about fifty feet wide and one hundred and twenty feet deep, situated on the northerly side of a street; on the westerly portion of the lot was a house about twenty feet, six inches wide, and seventy feet deep; on the easterly portion thereof was another house about fifty-six feet deep, which covered all the rest of the front of the lot, except a space of about eight feet lying between the two houses; through which space alone access could be obtained to the rear of the westerly house. The westerly house and lot was conveyed to the plaintiff by a deed containing the following provision : “ “With the right to the use of the carriage or alley-way situate between the premises hereby conveyed, and the building east thereof, owned by the grantor, for ingress and egress upon the rear of said premises hereby conveyed.” Subsequently the remainder of the lot was conveyed to the defendant.
    In the winter season the rear of the defendant’s premises had been used for carriages and teams as convenience dictated; but in the summer in the rear of his house only a path some three or four feet wide, and lying wholly in his lot, was kept open.
    This action was brought to restrain the defendant from erecting a barn on the rear of his lot, within two feet nine inches of the east line of the plaintiff’s lot, but which left a space of over fourteen feet between its south-west corner and the north-east corner of the plaintiff’s house.

      Held, that the alley or easement reserved to the plaintiff did not extend from the street back to the rear of the defendant’s lot, but only so far back as was necessary to enable the plaintiff to get upon his premises directly in rear of his house, as it stood at the time it was conveyed to him.
    That the action could not be maintained. (Learned, P. J., dissenting.)
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.

      J. E. Dewey, for the appellant.

      Harvey DunJde, for the respondent.
   Boardman, J.:

This appeal involves the construction of the following language in a deed by which an easement of a right of way was given over lands of the grantor, to wit: “ With the right to the use of the carriage or alley-way situate between the premises hereby conveyed and the building east thereof owned by the grantor, for ingress and egress upon the rear of said premises hereby conveyed.”

Both parties have the same source of title. Their lots lie side by side, the street at the south end, the front of both lots being about fifty feet on the street. Plaintiff owns the west lot under a title which gives the right of way above described. There is and, at the time when the right of way was granted, was a house of nearly the full width of plaintiff’s lot (twenty feet six inches) thereon, rendering access by team or carriage on the east side of his house or the rear of his lot impossible except by means of the right of way granted. The defendant owns the east lot, subject to said right of way. Her house occupies nearly the whole front of her lot, except the eight-feet alley-way. Both lots extend back about 120 feet. Plaintiff’s house extends back from the street about seventy feet, and defendant’s about fifty-six feet. Between the two dwellings the alley-way is necessarily well defined; back of defendant’s dwelling it is not. In the winter season the rear of defendant’s premises had been used for carriages and teams as convenience dictated, no harm being done thereby. But in the summer no carriage-way was preserved in the rear of defendant’s house, the vacant space being cultivated for garden purposes, except a path three or four feet wide along the line between the two lots wholly upon the lot of defendant.

In 1878 the defendant began to erect a brick barn on the rear end of her lot, leaving a vacant space between that and plaintiff’s lot of two feet nine inches. A space of fourteen feet four inches is also left between the south-west corner of defendant’s barn and the north-east corner of plaintiff’s buildings, through which space ingress and egress could be had upon the rear of plaintiff’s premises by and through the alley-way between the two houses.

The plaintiff now claims the alley-way or easement owned by him extends from the street to the back end of defendant’s lot, of a sufficient width for use of teams and carriages,'and so as to enter upon the rear of plaintiff’s premises at any point. As a consequence of such claim, if well founded, the defendant is guilty of a wrong in obstructing such way by the barn on the rear end of her lot.

The defendant, on the contrary, insists the right of way owned by plainfcifF cannot by possibility be extended further than is necessary to enable plaintiff to reach and get upon his premises -directly in the rear of his house. In other words, it was the intention to give to plaintiff a way of necessity to reach the rear of his lot, and no other or greater rights on defendant’s lot than plaintiff’s necessities required at the time the easement was granted. The space between the barn and plaintiff’s house is abundant for that purpose.

The defendant’s position seems just and reasonable.’ The alleyway, the use of which is granted, is described as “ situated between ” plaintiff’s premises and defendant’s building. Literally and strictly, plaintiff has no rights north of defendant’s building by virtue of such description. But the intention and purposes of the parties creating the easement may, and in this case do, justify the recognition of a greater right than a liberal description would give. The object of the grant was to enable plaintiff to get from the road to and upon the rear of his lot back of his house as it then stood. Hence the words “for ingress and egress upon the rear of” plaintiff’s premises, by fair construction gives to plaintiff, in addition to the use of the alley-way, so much additional right of way over or use of defendant’s lot as shall enable plaintiff' to get upon the rear of his lot. This gives to the grantee the benefit of any doubt or ambiguity in the language used. He gets the alley-way described, and having reference to the obvious purposes of the easement, it is extended beyond the actual description to accomplish such purpose. (3 Kent’s Com., 419, 420; Atkins v. Bordman, 2 Metc., 457, 467-468.)

What the plaintiff was entitled to was a convenient and reasonable way so as to enjoy the lands granted. So long as he had that he could not complain. (2 "Wash, on Real Estate, 54.) Wasli-burno on Easement, page* 188, says : “ If the way is not bounded or limited it would be such as is reasonably necessary and convenient for the purposes for which it was granted.” Again, “when no dimensions are defined, but the purposes are expressed, the dimension will be held to be sufficient for the accomplishment of that object.” Again, page* 190, " what is a suitable and convenient way must depend upon circumstances.” (Atkins v. Bordman, supra.)

Applying these principles, abundantly sustained by the authorities cited, to the present case, and its disposition is easy and satisfactory. The purpose was to give plaintiff a right of way from the street to the rear of plaintiff’s house. The .right of way was not described or limited north of defendant’s house. Under such facts the law will hold that plaintiff has the right to the use of so niuch of defendant’s premises as will enable him to got on his lot. Plaintiff has no right to extend the burden of the easement beyond its 'natural and necessary use, purpose and importance.

It follows the defendant had a right to occupy with her barn the rear of her lot, so long as she left the plaintiff the means of ingress and egress upon the rear of his lot between the barn and plaintiff’s house.

We think the judgment is right and should be affirmed, with costs.

Learned, P. J.

(dissenting).

This is simply a question of construction, where language is not so definite as to make the claim of either side absurd.

The plaintiff stands in the place of the grantee, the defendant ■ in that of the, grantor. Construction should be favorable to the former.

Unless the alley extends back of the defendant’s house it would give no access to plaintiff’s premises. For the rear of plaintiff’s house is about fourteen feet further back than the defendant’s. Iiow far, then, does the alley go back ?

The plaintiff was to have the use of the alley “ for ingress and egress upon the rear of said premises.” He ought to be permitted to build his house deeper without the peril of losing the benefit of this alley. The lot was about 120 feet deep. The “ rear of the premises was the back end of the lot. Ingress and egress to the rear of the premises means ingress and egress to the end, not to the middle. Nothing is said in the deed about plaintiff’s house.

If the grant had been ingress and egress “ to the premises,” the defendant’s construction would have been reasonable. That might have meant any ingress or egress thereto, beyond the houses. But the language is, ingress and egress to the rear of the premises, not to the rear of the house. And that means that the plaintiff may go into and out of the most northerly part of the premises through this alley.

Perhaps nothing is established by actual user in this case. In winter the parties drove anywhere. In summer, however, they left an alley, not a carriage-way, the whole length of the lot.

Once more. Suppose there had been no house on plaintiff’s lot, and the defendant’s grantor had conveyed the plaintiff’s lot to him by a similar deed, with a similar grant of an alley-way “ between the premises conveyed and the building east thereof for ingress and egress upon the rear of the premises hereby conveyed,” could it be said that because the plaintiff might enter at the front of his lot, oñ Mohawk street, therefore he had no right to the alley ? Or could it be said that he had a right to go just far enough into the alley (say fourteen feet) to enable him to turn into his own lot ? That is what has been decided in this case. Would it not b'e plain, on the contrary, in that case that ingress and egress through an alley-way, upon the rear of the premises, would mean a right to enter, even the extreme rear, through that alley ?

Present — Learned, P. J., BoardmaN and Booses, JJ.

Judgment affirmed, with costs.


text:
    ALSTON W. HULBERT AND PETER McAUSLIN, Executors, etc., of MARY BRAINARD, Deceased Appellants, v. ADAM NICHOL, Respondent.

      Indorsement of interest on a note, by the holder — when not sufficient evidence of a part payment to take a case out of the statute of limitations— One maker is not affected by payments made by his eo-yoint maker.

    This action was brought upon a joint and several note for $200, dated November 28, 1854, payable one year from date to the order of one A. G. Brainard, and made by the defendant and one Thomas Nichol, who died in 1877. Brainard died in 1868, having previously transferred the note to his wife, the plaintiffs’ testatrix. Upon the back of the note were indorsements purporting to show the payment of the annual interest from the time of its execution to November 28, 1872, those prior to 1863 being in the handwriting of A. Gr. Brainard, and the subsequent ones being in the handwriting of his wife. The time when the indorsements were made was not shown, except that those made by the wife were on the note in 1871 or 1872; some evidence was given to show that the indorsements of the interest for 1869, 1870 and 1871 were all made at the same time.
    The defendant having pleaded the statute of limitations, held, that the indorse-ments were not of themselves sufficient proof of the payment of interest on the note to take the case out of the statute.
    That as such payments, if made at all, might, so far as the evidence showed, have been made by the other maker, they would not revive the defendant’s liability for the debt.
    Appeal from a judgment of the County Court of Delaware county reversing a judgment recovered by the plaintiffs in a justices’ court.
    The facts sufficiently appear in the following opinion of the county judge, which was approved and adopted by the General Term.
    Maynard, J.:
    Appeal from a judgment in an action upon two promissory notes; one made by Thomas Nichol and the defendant, to A. G. Brainard, November 28, 1854, for the payment of $200 and interest, one year from date ; the other made by the defendant alone, November 28, 1871, to C. S. Brainard and Mary Brainard, for the payment of $34.99, and due when given.
    A. G. Brainard died January, 1868, having previously transferred the former note to his wife, Mary Brainard, who is one of the payees of the latter note, and who died in March, 1876. The plaintiffs are the executors of her will.
    To the last named note defendant pleaded payment, and gave evidence tending to prove that he had paid it to C. S. Brainard, one of the payees. To the first named note he plead thé statute of limitations. The justice gave judgment for $200, being the limit of his jurisdiction, and being a sum much less in amount than that unpaid on the $200 note. The plaintiffs relied upon proof of payment, within six years before the commencement of this action, to take the $200 note out of the statute of limitations, and the only evidence of payment introduced by them was the indorsements upon the note of the annual interest, purporting to have been paid thereon from the time of its execution down to and including the year ending November 28, 1872.
    These indorsements wele shown to be in the handwriting of A. G. Brainard down to 1863, and in the handwriting of Mary Brainard from that time down to 1872. There was no evidence as to the time when the several indorsements were made, excepting that those in the handwriting of A. G. Brainard must have been made prior to 1868, and'those in the handwriting of Mary Brainard were shown to have been on the note four or five years before her death, which would have been in 1871 or 1872. There was some evidence to the effect that the indorsements of the interest for 1869, 1870 and 1871, were made all at the same time, and that of 1871 is of interest to November twenty-eighth of that year, which is the same date as that of the small note of $34.99, given by defendant to Mary and Charles Brainard.
    There was evidence that the defendant was at the house of Mary Brainard three or four times after the death of A. G. Brainard, but no proof of any actual payment by him of money to her, or of his business there, except that he testifies that he was there purchasing grain when the note of $34.99 was given, and that it was given for the purchase price of grain.
    There was also some evidence that the -defendant had frequently been at the house of A. G. Brainard in his life-time paying him money, and that he was there paying him money and buying grain within six months of his death.
    Thomas Nichol, the other maker of the note, died in 1877, and this action -was commenced November twenty-sixth of the same year.
    After a careful examination of the evidence- returned, I have been unable to discover sufficient proof of part payment of the $200 note within seven years and six months of the commencement of this action, to save it from the operation of the statute of limitations.
    The fact that the indorsements made prior to 1868 are in the handwriting of A. G. Brainard, and appear to have been made at different times, and the defendant has been shown to have been frequently at his house paying him money in his life-time, might, perhaps, be sufficient to uphold a finding that payment of the interest bad been made by tbe defendant to him at the time the several indorsements made by him bear date ; but with reference to the indorsements made from 1868 to 1872, inclusive, there is, I think, an utter failure of proof either that the indorsements were made at the time they, respectively bear date, or that any money was paid by the defendant to Mary Bramard at the time they were made, or at any other time, upon the note. On the contrary, there is evidence tending to prove that three of these indorsements were made at the same time. It is well settled that in order to make an indorsement any evidence of payment for the purpose of taking the case out of the statute, it must appear either that it was made with the privity of the debtor, or else. that it was made before the statute attached, and at a time when it was against the interest of the party making it. (1 Wait’s Law and Practice, 1003; 2 Phillips on Evidence [2d ed.], 175; 1 Cowen’s & Hill’s Notes, 154, 158, 317; Whitney v. Bigelow, 4 Pick., 110; Rose, Adm’r v. Bryant, 2 Camp., 321; Turner v. Crisp, 2 Strange, 827; Glynn v. Bank of England, 2 Vesey, Sr., 43; Knight v. Clements, 45 Ala., 89; Phillips v. Mahan, 52 Mo., 197; Roseboom v. Billington, 17 Johns., 182; Read v. Hurd, 7 Wend., 408.)
    The statute has declared that an action upon a contract, such as the note in question, must be commenced within six years after the cause of action has accrued ; and that in order to take a case out of the operation of the statute there must be shown to have been an acknowledgment of the debt, or promise to pay it, in writing, or some part payment of the principal or interest must have been paid within six years of the commencement of the action. (Code of Civil Procedure, §§ 382, 395.)
    Ahd when it appears upon the face of the instrument declared upon that the statute has run against it, the burden is upon the party claiming under it to show that the case is excepted from the statutory bar; and where the. exception contended for consists of a constructive acknowledgment of the debt arising from part payment, the partial payment must be clearly established, and not be.a matter of conjecture merely. (Burr v. Burr, 26 Penn. [2 Casey], 284; Barclay’s Appeal, 64 Penn. [14 Smith], 69; Knight v. Clements, 45 Ala., 89.) If the creditor relies upon a written acknowledgment to save bis demand from the statute, it must be made in clear and unequivocal language, and must be unconditional and made in terms which imply a willingness to pay the debt. (1 Wait’s Law and Practice, 992 et seq.; Bloodgood v. Bruen, 4 Seld., 362; Bell v. Morrison, 1 Pet. R., 351; Allen v. Webster, 15 Wend., 284.)
    The Court of Appeals in Harper v. Fairley (53 N. Y., 442) assert the reason of the rule, that part payment of a debt enlarges the time within which an action can be brought thereon, to be that such payment is an acknowledgment by the debtor of his liability for the whole debt, and from this acknowledgment a new promise to pay is implied, dating from the time of part payment; and such is the doctrine of all the cases upon the subject. This being so, the evidence to establish a part payment, from which an acknowledgment of the debt and a promise to pay it is to be implied, ought to be as clear, explicit and unequivocal as that required to support a written acknowledgment of express promise to pay — evidence which is just as consistent with the theory that no payment was made, as with the presumption of payment, should not be deemed sufficient.
    There is, I think, another fatal objection to the sufficiency of the proofs of payment made to Mary Brainard. The note was the joint and several note of the defendant and Thomas Nichol. The rule is now familiar that payment by one of two joint makers of a note will not revive it as to the other ; and there is no evidence that these payments, if made at all, were any of them made by the defendant; for aught that appears, they may have been made by Thomas Nichol, the other maker.
    Where.the plaintiff relies upon part payment to overcome the bar of the statute, he must prove that the payment was made by the party sought to be charged. The indorsements, even if evidence of payment, would be no evidence as to which of the joint makers made the payment. (Knight v. Clements, 45 Ala., 89.)
    As to the |34.99 note, the evidence of payment was so far conflicting that a finding by the court below that it had not been paid would not be disturbed upon this appeal. But it is impossible to determine how the justice found, as matter of fact, upon the question. The judgment is for $200 ; so that it is entirely a subject of speculation whether the small note entered into the recovery or not; and, as it does not appear that the judgment includes it, and as the judgment may have been based entirely upon the $200 note, I think the judgment should be wholly reversed,' with costs.”

      William Youmans, for the appellants.

      Davie & ArbucJcle, for the respondent.
   Per Curiam:

The judgment of the comity court should be affirmed jUpon the opinion of the county judge.

As is stated by Talcott, J., in Risley v. Wightman (13 Hun, 163), “the fact that the indorsements constituted admissions against the interest of the testatrix at the time they were made, rendered them admissible in evidence against the defendant without proof of the actual payments.” But the learned judge immediately adds : “ Whether the payments were actually made was a question for the jury.” The indorsements are evidence, but not sufficient, standing alone, to establish the fact of payment, by the' debtor defendant to the owner of the note, of the amount indorsed and at the time when it was indorsed. • Some evidence of these facts must be given before a case is made for submission to the jury. For the reasons so clearly stated by Judge MayNard, we think such a case was not made.

The judgment of the county court must be affirmed, with costs.

Present — LearNEd, P. J., Bockes and BoakdmaN, JJ.

Judgment of county court affirmed, with costs.


author: Boardman, J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES H. PIERCE, Respondents, v. OATMAN COVILL, EDGAR TROMBLY AND OLIVER TROMBLY, Appellants.

      Certiorari to reoiew summary proceedings for forcible entry and detainer — at what stage of the proceedings it may issue.

    A certiorari, to review summary proceeding's for a forcible entry and detainer, may be issued after the defendant has traversed the inquisition, and before the proceedings upon the said traverse have been completed.
    Appeal from an order made at Special Term, quashing a writ of certiorari.

    On the 11th day of March, 1878, proceedings were commenced under article 1, title 10, chapter 8, part 8 of -the Revised Statutes, before the county judge of Franklin county, by the plaintiff, James H. Pierce, against the defendants, for an alleged forcible entry and detainer, and upon the complaint of Pierce the county judge issued a precept for a jury, returnable at his office at Malone, N. Y., upon Saturday, the 16th day of March, 1878, at which time the parties appeared and such proceedings were had, that an inquisition was found on March sixteenth, by the jury which had been summoned, to the effect that the defendants had forcibly entered the premises described in the complaint, and had forcibly withheld the same from the plaintiff Pierce. This inquisition was the same day, March sixteenth, traversed by the defendants, and the county judge, upon the twentieth day of March, issued a precept for a jury to try such traverse, returnable March 27, 1878. On the 20th day of March the defendants obtained a writ of certiorari, commanding the county judge to certify all proceedings herein to the Supreme Court, -which writ was made returnable at a Special Term appointed to bo held at Schenectady April 16, 1878, and a return was dujy made to this writ by the county judge on the 9th day of April, 1878.
    Upon the sixteenth day of April, the return day named in the writ, an order was made, directing that the hearing, upon the return of the writ, should be had at the Special Term to be held at Canton, May seventh, but by consent of the parties the hearing was had at' a Special Term held at Plattsburgh, N. Y., upon the 17th day of April, 1878, and an order was then made dismissing the writ on the ground “ that the defendants, having traversed the inquisition, obtained the writ before the proceedings before said county judge upon said travérse had been completed.” From this order the defendants appealed to the General Term of the Supreme Court.

      W. P. Gantwell, for the appellants.

      Palmer, Weed & Smith, for the respondents.
   Boardman, J. :

Ordinary writs of certiorari do not issue until a final determination has been had in the inferior court or tribunal. (People ex rel. Dickinson v. Super’s Livingston, 43 Barb., 232, affirmed 34 N. Y., 516, and cases cited.) But this is not strictly true in cases of summary proceedings for forcible entry and detainer. Such proceedings may be removed into the Supreme Court by certiorari at any time after inquisition (2 R. S., 510, §§ 19, 20, 21, 22), but not before inquisition. (Haines v. Backus, 4 Wend., 213.) The proceedings on such removal are given in the sections above referred to. By section twenty-one, “the Supreme Court, shall proceed therein (after the return is made) and cause the defendant to traverse the inquisition, if no traverse has been had, and shall direct a trial.”

So it appears the traverse may be made before or after the granting of the writ. The object to be attained is the trial of the traverse in the Supreme Court. The practice indicated is sustained by authority. (5 Wait’s Pr., 313; People v. Hickox, 3 Hill, 446; Carter v. Newbold, 7 How., 166.) We conclude, therefore, that the learned judge erred in quashing the writ in this case as prematurely issued.

The respondents urge other defects in the proceedings for which the writ should be quashed. We do not consider these questions properly before us upon this appeal. They should first be heard and passed upon by the Special Term. If there be defects which are serious, they may, perhaps, be remedied by means of amendment or additional papers.

The order of the Special Term is reversed, with ten dollars costs and disbursements.

Learned, P. J., and Bockes, J., concurred.

Order quashing writ of certiorari reversed, with ten dollars costs and printing disbursements.


author: Boardman, J.:

text:
    In the Matter of the Estate of MARY ANN BEEBE, Deceased.

      Chapter 394 of 1870 — y/n,aonstitutional.

    Chapter 394 of 1870, providing, for the examination of persons alleged to have in their possession effects belonging to a deceased person, and authorizing the surrogate, if it shall appear to him that any effects of the deceased are withheld by such person, to issue his warrant commanding the officer, to whom it is directed, to search for and seize the said effects and deliver them to the executor or administrator of the deceased, unless the person holding the said effects shall give security, as is therein provided, is unconstitutional and void.
    Appeal from an order of the surrogate of St. Lawrence comity, adjudging the appellants Darius A. Moore and Emily Moore guilty of a contempt, and directing an attachment to issue for their refusal to be sworn and to testify at the instance of the administrator of Mary Ann Beebe, deceased, upon an inquiry instituted by him under chapter 394 of 1870.

      Leslie W. Russell, for the appellants, Darius A. and Emily Moore.
    Chapter 394 of 1870 is in conflict with the constitutions of the State of New York and of the United States, which provide that no person shall be deprived of property without due process of law. (Taylor v. Porter, 4 Hill, 145, et seq.; Wyne-hamer v. People, 13 N. Y., 394; Rockwell v. Nearing, 35 id., 302; 2 Kent’s Com., 13; 2 Story on Cons., § 1789; 2 Coke Ins., 45-50; 1 Bl. Com., 138; Scovil v. Post, 3 Edw.; 203.)

      John O. JCeeler, for the respondent, Albert Beebe, administrator.
   Boardman, J.:

The controversy arises over chapter 894, Laws of 1870. By that act an executor or administrator may apply to a surrogate to compel persons to submit to an examination touching effects which had belonged to the deceased, or were part of the assets of the estate as is claimed, provided prima facie evidence is furnished to the surrogate that the person to be examined has such effects or property in his possession. An affidavit must be made to satisfy the surrogate, who thereupon issues a subpoena to such persons as may be designated by the executor or administrator requiring them to be examined touching the estate of deceased.

The requisite proceedings were had under this law for the examination of Mr. and Mrs. Moore, who appeared and objected that the act of 1870 was in conflict with the constitution, and void. Such objection was overruled, and an exception taken. Mr. and Mrs. Moore then severally declined to appear and testify, and they were adjudged' to be in contempt, and an attachment was ordered issued against each in pursuance of the third section of said act. Mr. and Mrs. Moore now appeal from such orders adjudging them in contempt and for attachment. The facts are agreed upon. The parties desire the decision of this court as to the constitutionality of the act of 1870. No other questions are presented for our consideration.

The respondent insists, though the provisions of the fifth and sixth sections of the law should be held a violation of the constitution, the proceedings for the examination of the appellants is not subject to such criticism.

We think this position cannot be maintained in respect to this law. Selden, J., in Wynehamer v. People (13 N. Y., 441, 442), lays down the rule as follows : “The general rule on this subject is that where part of a law is in conflict with the constitution and that part is entirely separable from the residue, so that other portions of the law can be enforced without reference to it, then the unconstitutional part only will be condemned. But where the legislative provision is indivisible * * * the provision is wholly void.” Applying these principles to the act of 1870, the whole is void if the fifth and sixth sections are unconstitutional. The object of the statute is entire and single, and that is, by means of this preliminary examination to secure possession of property claimed to belong to the estate, or security for its value. Without the relief provided for in the last two sections the law would be inquisitorial in the most offensive form. The law was not passed for the purpose of the examination, but to get possession of the property claimed, if the examination proved favorable. Wo think then the law is wholly void or wholly valid.

After the completion of the examination the surrogate may issue his warrant for the seizure of the effects withheld, and the delivery of the same to the administrator or executor, unless security is given as provided in section sixth. Under this warrant the officer may search for and seize the effects, and, if necessary, break open any house in the clay-time. These are extreme provisions, which seem to be in conflict with the constitution. By such provision the administrator or executor may obtain possession of property claimed by him upon the decision of the surrogate, without any trial such as is recognized by the constitution and the ordinary forms of judicial proceedings heretofore existing. The possessor, and presumptively the owner of property, is deprived of his possession by this summary proceeding. He has no right to a jury. He has no right to call witnesses. By an arbitrary and ex parte process he may be compelled to become a plaintiff, if he seeks to recover his property of the administrator or executor, and to submit to all the disadvantages of such position. The situation of a defendant is stronger than that of a plaintiff. By this process the places are changed. And why is such change made ? What advantage is • given, or why was it necessary in all fairness ? The administrator or executor could bring his action for the possession or value of the property claimed. There is no reason why the possessor should be' deprived of his possession for the benefit of an administrator more than in any, or all other, cases where property is claimed by action. There is no reason why the common law rules,, applicable to the title and possession of property, should be overthrown for the benefit of an administrator, nor why an administrator should have a summary and arbitrary remedy to recover property, unknown to the laws heretofore and not applicable to other suitors. It certainly could not be tolerated that all claimants of property could get possession of it by the aid of such an examination and warrant of seizure. It cannot be that the Legislature could give to justices of the peace general jurisdiction to do this thing. And yet, if this law be valid, the same power may be given to a justice of the peace, or other officer, to seize and summarily dispose of any property in the possession.of another to anyone who claims it on such evidence as the justice may deem satisfactory. This would not be “ due process of law,” by which a person may be deprived of his property. (Rockwell v. Nearing, 35 N. Y., 302, 305, 306; Wynehamer v. People, 13 id., 394; Taylor v. Porter, 4 Hill, 140, 147; Westervelt v. Gregg, 12 N. Y., 212.)

For these reasons we think the orders should be reversed, with ten dollars costs and expenses of printing.

LearNed, P. J., and Bocees, J., concurred.

Order of surrogate reversed, with ton dollars costs and printing disbursements against respondent.


text:
    ANNA M. TURNER, Respondent, v. PHILIP H. DINNEGAR, Appellant.

      Malicious prosecution — proof of the guilt of the accused is conclusive evidence of probable cause — when a defendant may show the adwice given to him by his attorney.

    In an action for malicious prosecution, proof of the actual guilt of the accused is conclusive evidence of probable cause, and if such proof be made, no action can be sustained by the said accused, however plainly malice may be shown, or however improper may have been the motives of the person instituting the prosecution.
    Upon the trial of an action for malicious prosecution, the defendant oifered to prove that, before applying for the warrant, he stated all the facts within his knowledge, touching the charge subsequently made, to one Horton, who was an attorney and counselor-at-law, and also a justice of the peace, and sought to show the advice received from him. This evidence was rejected.

      Held, that the evidence was improperly rejected, and that the fact that Horton was the justice of the peace, to whom the application for the warrant was subsequently made, did not render its rejection proper.

      Appeal from a judgment of tbe County Court of Columbia county, entered upon tbe verdict of a jury in favor of tbe plaintiff, and from an order denying a motion for a new trial made upon the judge’s minutes.
    Tbe action was brought to recover damages for an alleged malicious prosecution and false imprisonment.

      JSTewhirla & Ohace, for tbe appellant.

      Charles L. Beale and Cornelius Esselstyn, for tbe respondent.
   Boardman, J. :

The plaintiff recovered in an action for false imprisonment and malicious prosecution. Upon tbe appeal' by tbe defendant from tbe judgment and from tbe order denying a new trial many exceptions are urged upon our consideration. It will be necessary to notice but one or two of them. Tbe charge contained tbe following: 11 The^fact that an offence was committed does not necessarily justify 'the' 'defendant.” This language of tbe charge was excepted to Ny’defendañtT Tbe court, by this and other language used in tbe charge, intended to have tbe jury understand that a person guilty of a crime might sustain an action for malicious prosecution or false imprisonment against one who should institute criminal proceedings against him therefor. We do not so understand the law. (Actual guilt is conclusive evidence of probable cause^ The action in such case cannot be sustained, however much malice may be shown or however improper may have been the motives for the prosecution. (Miller v. Milligan, 48 Barb., 30; Hall v. Suydam, 6 id., 83, 86; 1 Hilliard on Torts [3d ed.], 427, 428; Thompson v. Lumley, 1 Abb. [N. C.], 254, affirmed in Ct. of Ap., 64 N. Y., 631; Jennings v. Davidson, 13 Hun, 393; Fagnan v. Knox, 66 N. Y., 525, 528; 2 Greenl. Ev., §§ 453, 454.)

There are cases in which actions may be maintained for the misuse or abuse of legal process, but it is not pretended this is of that class.

"We think there was error also in refusing to allow the defendant to show the advice he received from Horton before the warrant was applied for. ■ It appears defendant stated all the facts within his knowledge touching the charge afterwards made against the plaintiff to Mr. Horton, who was an attorney and counselor as well as a justice of the peace. The advice given by Mr. Horton after such statement was competent evidence. The force and effect of the evidence, as well as the good faith of the defendant were considerations for the jury. (2 Greenl. Ev., § 459; Richardson v. Virtue, 2 Hun, 208; Laird v. Taylor, 66 Barb., 139.)

This evidence was first rejected upon the ground that defendant had not used due and reasonable diligence to ascertain the facts and circumstances before making his statement to Horton. This, however, seems to have been waived or disregarded, and the ground finally relied upon was that Horton was both an attorney and a justice of the peace, and that such fact was inconsistent with the claim that Horton was acting as counsel for defendant in the same case in which he acted as justice immediately thereafter. No case is cited to sustain this conclusion, nor is any reason given why advice so obtained may not fairly go before the jury upon the question of good faith and absence of malice.

In'the two respects above stated we conclude errors occurred' which must lead to a new trial. It will be therefore needless to consider the multitude of other exceptions embraced in the case. All or nearly all of them may be obviated upon the new trial.

The judgment and order appealed from must be reversed and a new trial granted, with costs to abide,the event.

LeahNed, P. J., an,d Bockes, J., concurred.

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


text:
    WILLIAM H. BONESTEEL, Respondent, v. GEORGE VAN ETTEN as Executor, etc., of JACOB P. BONESTEEL, Deceased, Appellant.

      Contrast that a person will pay by his will far services rendered to him — what is a breach thereof— when, the right of action is barred by the statute of limitations.

    From 1855 to 1859 the plaintiff resided with his father as one of his family, and rendered services to him in pursuance of an alleged verbal agreement by which his father was to pay him for the said services by a devise or bequest in his will in plaintiff’s favor. In 1859 the father discharged the plaintiff from his service, ordering him to leave the house, and saying to him: “ You have . got all you ever need to expect here ” The father died in 1878, and the iffain-tiff then presented his claim for the services so rendered.

      Held, that the act of the father in driving the plaintiff from his house in 1859, and refusing to allow him to render further services, was a breach of the contract, and gave to the plaintiff an immediate right to sue to recover the value of the services rendered, and that the action was, therefore, barred by the statute of limitation.

      Quackenbush v. JShle (5 Barb., 469), criticized and distinguished.
    Appeal from an order made at Special Term denying a motion, made by the defendant, to set aside the report of a referee on a reference of a claim against the estate of the defendant’s' testator, ordered in pursuance of the provision of the Revised Statutes, and from the judgment entered thereon.

      J. E. Van Elten, for the appellant.

      Bernard & Fiero, for the respondent.
   Boardman, J. :

Prior to 1859 a contract by parol is alleged to have been made between plaintiff and his father, the defendant’s testator, by virtue of which plaintiff was to be well paid for his services for his father by devise or bequest in his last will. In pursuance of such contract plaintiff rendered services to the value of over $400. After the rendering of the services, and in 1859, the defendant’s testator discharged the plaintiff from his service by the most unequivocal language, ordered him to leave the house (where plaintiff had before that lived as one of the family), and added to plaintiff, “You have got all you ever need to expect here.” The plaintiff thereupon left the premises add ceased to work for his father thereafter. The father died in October, 1878. Plaintiff after-wards presented his claim for services from 1855 to 1859 to the defendant as executor; the claim was rejected and referred under the statute to a referee, Avho reported in favor of the plaintiff .for $423.34. A motion ivas made to set aside such report and for a new trial, which ivas denied “ without prejudice to review at General Term.” The report was then confirmed, and judgment in favor of plaintiff entered thereon.

Two grounds for reversal are urged by the defendant for a new trial. • .

First. That the report of the referee is not sustained by the evidence, and Second. That the cause of action alleged is barred by the statute of limitations, nearly twenty years having expired since the breach of the alleged contract.

No doubt the plaintiff had a meritorious carise of action. He worked for his father, after he became of age, from 1855 to 1859. If that were all his case the statute of limitations would bar a recovery for such services. It is alleged, however, that such services, in connection with further services to be rendered, Avere to be paid for in and by the Avill of the father. There is some ■eA’idence pointing in that direction. It is exceedingly loose, vague and unsatisfactory, consisting of conversations had Avith testator more than twenty years before this trial. We are not prepared to concede that the learned referee has given to such evidence a true construction, or that any contract to pay the plaintiff by provision in his father’s Avill Avas made and mutually agreed upon betAveen the father and son. There is nothing to indicate the son so understood it, or that the father regarded his language, if correctly stated, as other than simply au assurance that his children should have his property Avhen he died, that plaintiff, being his only son, Avould have the farm. Such expressions are so common in daily life in every family that it Avould seem unsafe to attach importance to them as evidence of a contract, especially after twenty years. Where is the requisite deliberation, negotiation, purpose, mutual understanding and acceptance ?

But, without putting our decision upon this ground alone, we will refer to the bar of the statute of limitations.

■ The contract between these parties, if any existed, was at an end in 1859. The defendant’s testator had terminated it with offensive language and driven the plaintiff from his house. There was a breach of the contract by the father. He would not allow ■plaintiff to earn the wages agreed upon. By such breach of the contract, by such refusal to perform, the father became liable to plaintiff for the value of the services already rendered. The plaintiff could have brought his action for his damages immediately.

If the contract could be treated as one for the purchase of real estate by services to be rendered, it would be treated as void under the statute of frauds, being by parol. In such case the plaintiff would have been at liberty to bring his action for the value of his services whenever the testator gave notice of his rescission of and refusal to perform the contract. (Day v. N. Y. C. R. R. Co., 51 N. Y., 590; Galvin v. Prentice, 45 id., 162; King v. Brown, 2 Hill, 485.) But so long as there was no breach of the contract by the testator no action would lie. (Campbell v. Campbell, 65 Barb., 639.)

We apprehend the rule is the same, even if this had been a contract to pay in money at testator’s death by a legacy in his will. There is notice that such payment will not be made ; there is a refusal to allow the contract to be completed ; there is then an impossibility to perform the contract by defendant’s fault. Upon what principal should plaintiff' be required to wait twenty years to get not what was provided for by the contract, but the value of his services rendered before the breach ? If the money is not due till the death of the testator, then no interest can be allowed. When an executory contract is repudiated the right of action is immediate. (Lee v. Decker, 6 Abb. [N. S.], 392, 394.) The party in fault becomes liable for all damages the other party may suffer. The action maybe brought at any time after breach. (Dillon v. Anderson, 43 N. Y., 231.)

The plaintiff' in this case has in effect brought his action for his damages caused by the refusal of testator to fulfill his agreement. The amount claimed is the value of the work and labor done by him for his father. Whatever his damages may have been, they accrued when bis father refused to allow him to go on and fulfill the contract. For them an action might then be brought. Hence the statute of limitations began to run from the breach, and plaintiff’s claim had long been barred.

The case of Quackenbush v. Ehle (5 Barb., 469) is relied upon by plaintiff. We think that case was not well considered. It is there said by the judge: “The report of a referee is like the verdict of a jury; it is conclusive where,” etc. The contrary is held in Robinson v. Raynor (28 N. Y., 494).

Again it is said ‘1 there is no evidence to sustain the defendant’s plea of the statute of limitations ; the plaintiff’s demand for compensation was not due until the death of his father.” Citing Patterson v. Patterson (13 Johns., 379.) All this case decides is this : An action cannot be maintained upon such contracts to recover compensation for services during the life-time of the father, there having been no breach by the father. It was an action by the son against the father as here, but the contract was being carried out by the son with the consent of his father when, the action for his services was brought. The court held payment not due. Nor does it appear that the statute of limitations had anything to do with the case of Quackenbush v. Ehle in any event. Plaintiff in that case was ejected from the premises in November, 1841; 'his father died in 1843. When the suit was begun by plaintiff does not appear, but it was tried in February, 1848, so it is not clear that even six years had elapsed after the breach of that contract.

While that case may have been, and we think was, properly decided, we do not yield our approval to the remarks of the learned judge to which we have called attention, and which were not essential to the disposition of the case then before the court.

We think the order of confirmation and judgment should ■ be set aside, the referee discharged, and a now trial granted, with costs to abide the event.

LbarNed, P. J., and Bocees, J., concurred.

Judgment and order reversed, referee discharged, new trial granted, costs to abide event.