text:
    THOMAS G. POOLE, Respondent, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.

      Connecting lines,. of common ca/rvierrs — when the sale of a through ticket does not extend the liability of the seller beyond Us own line.

    The defendant, which ran trains from Oswego to Fulton station, entered into an agreement with one Hatch, who ran an omnibus from Fulton station to Fulton village, distant about a mile therefrom, by which the defendant’s agent, at Oswego, sold tickets to Fulton village, and Hatch sold tickets at the village to Oswego; the fare charged for the whole distance being the sum of the two separate fares, and each party accounted to the other for thé fares received for it. The tickets were on separate cards; one a railroad ticket from Oswego to Fulton, the other an omnibus ticket from the station to the village. The plaintiff having purchased tickets at Oswego for the village, and having been injured while going in the omnibus from the station to the village through the negligence of the driver, brought this action to recover the damages thereby sustained against the railroad company.

      Held, that it could not be maintained.
    Appeal from a judgment 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 the minutes of the justice before whom the action was tried.
    The defendant is a common carrier of passengers by a railroad extending from Oswego to Syracuse. Eleven miles from Oswego, on this railroad, is a station called Fulton. The village of Fulton is about one mile east of this station. November 21, 1882, one Hatch was, and for some time had been, engaged in running a line of omnibusses for passengers between the station and the village.
    The defendant charged thirty-two cents fare between Oswego and Fulton station. Hatch charged eight cents fare between the station and the village. By an arrangement between the defendant and Hatch, the defendant sold at Oswego, with its railroad tickets to Fulton, tickets over the omnibus’' line; and Hatch sold at Fulton village, with his omnibus tickets to the station, railroad tickets from 'the station to Oswego.

      The tickets were on separate cards, and of the following forms :
    “DEL., LACK & WESTERN R. R.”
    “Oswego & Syracuse Division.”
    “ OSWEGO TO FULTON.”
    “ Not Good Unless Stamped by Ticket Agent.”
    “ OMNIBUS LINE.”
    “Fulton Station to Fulton.”
    “W. F. HOLWILL.”
    For each omnibus ticket sold by the railroad it paid Hatch eight cents, and for each railroad ticket sold by Hatch he paid the railroad thirty-two cents, but they did not share in the profits or losses of the business.
    November 21, 1882, the plaintiff purchased of defendant, at Oswego, a railroad ticket to Fulton station, and an omnibus ticket from the station to Fulton village, paying forty cents for both tickets. The defendant safely carried the plaintiff to Fulton station, at which place he entered an omnibus to ride to the village. An accident happened, by which the plaintiff was thrown from the omnibus and injured. He brought this action, and, upon a trial before a jury, recovered a verdict for $350 damages. A motion for a nonsuit was denied, as was also a motion for a new trial, made on the minutes, on the grounds (1) that the verdict was contrary to law; (2) that the verdict was contrary to evidence; (3) upon the exceptions taken. A judgment was entered and the defendant appealed from the judgment and the order denying a new trial.
    Rhodes, Goon dé Higgvns, for the appellant.

      W. G. Orombie and JBL. G. Howe, for the respondent.
   Follett, J.:

For the purposes of this appeal, it will be assumed that the plaintiff was not guilty of contributory negligence, and that the injuries were caused solely by the drivers of the omnibus line. The separate tickets delivered to the plaintiff, whether regarded as contracts or tokens, are insufficient evidence to justify the conclusion as a matter of law, or of fact, that the defendant contracted to carry the plaintiff beyond Fulton station. (Milnor v. N. Y. and N. H. R. R. Co., 53 N. Y., 363.) In this case the defendant issued coupon tickets and checked the plaintiff’s baggage over a connecting road. The baggage was burned while in the custody of the connecting road, and it was held that the tickets and check were insufficient evidence to authorize the conclusion that defendant contracted to carry over the connecting road.

In Kessler v. New York Central and Hudson River Railroad Company (61 N. Y., 538), the plaintiff purchased a coupon ticket from the Baltimore and Ohio Railroad at Washington, for Buffalo, over the defendant’s road, and checked her baggage through, which was never delivered. The plaintiff failed to show that the baggage came into the possession of the defendants, and it was held that the tickets and checks were insufficient evidence to justify the conclusion that the connecting roads were liable as joint contractors.

In Isaacson v. New York Central and Hudson River Railroad Company (94 N. Y., 278), it was held that a check upon baggage through to New Orleans was evidence of a contract to safely deliver to a connecting road, but not evidence of a contract to deliver at New Orleans. The same principle is decided in Knight v. Portland Railroad Company (56 Me., 234); Myrick v. Michigan Central Railroad Company (107 U. S., 102); Gass v. New York, Providence and Boston Railroad Company (99 Mass., 220); Burroughs v. The Norwich and Worcester Railroad Company (100 id., 26; see, also, Wharton on Negligence, §§ 582, 583; 2 Rorer on Railroads, 975).

Each ticket is, as it purports to be, an independent contract or token, one by the railroad to carry from Oswego to Fulton station, and the other by the omnibus line, to carry from Fulton station to Fulton village. In Buxton v. North Eastern Railroad Company (Law Rep., 3 Q. B., 549), the defendant by a single ticket agreed to carry the plaintiff to a station on a connecting road. The plaintiff was injured on the train of the connecting road and the defendant was held liable. The same rule was held in regard to the carriage of goods in Bristol and Exeter Railway v. Collins (7 H. L. Cas., 194).

The rule in England differs from the rule generally laid down in the United States. (For a discussion of the English and American rule, see 3 Alb. Law J., 485; 2 Am. Law Rev., 426.) In this case the uncontradicted evidence is, that the two lines were not connected in business, except that each, as agent, sold tickets over the other. Under the evidence, the court erred in refusing to nonsuit, and again in denying the motion for a new trial on the minutes. .

The judgment and order are reversed and a new trial graphed, with costs to abide the event.

Hardin, P. J., and Boardman, J., concurred. •

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


source: Caselaw Access Project

author: Follett, J.:

license: Public Domain

text:
    JOSEPH BARTON, Appellant, v. PATRICK FORD, Respondent.

      Articles of apprenticeship — they must comply with the requirements of chu/p. 934 of 1871.
    To entitle a master to recover from a stranger the value of work and services performed for and rendered to Mm by one alleged to be an apprentice, a valid contract of apprenticeship must be established by the plaintifE.
    The mode provided by the Revised Statutes (3 R. S., 154) for the apprenticeship of minors, being inconsistent with the provisions contained in chapter 934 of 1871, the validity of articles of apprenticeship must be now determined by the latter act.
    Articles of apprenticeship which do not' contain the provision and covenant, specified in the second subdivision of section 2 of chapter 934 of 1871 — to the efEect that the apprentice shall not leave during the term, and may be compelled to return if he does — are, because of such omission, rendered invalid and of.no effect by the express provision of section six of the said act.
    Appeal from a judgment of the County Court of Onondaga county, affirming a judgment of a justice of the peace.
    September 13, 1880, Hugh McShane (a minor fourteen years of age), the father of the minor, and the plaintifE, executed under their hands and seals a contract, by which the minor was apprenticed to the plaintifE for four years “ to learn the trade, craft and business jof cigar making.” The mother of the minor on the same day consented to the contract of apprenticeship by a certificate indorsed thereon and executed under her hand and seal. The minor immediately entered into the service of the plaintiff, and continued therein until April, -1881, when he left without the consent of the plaintiff, and in June and July thereafter was employed by the defendant for about thirty days.
    This action was brought in a Justice’s Court to recover for the work and labor performed by the minor for the defendant. The plaintiff was nonsuited and appealed to the County Court, where the judgment was affirmed. From which judgment of affirmance he appealed to this court.

      Fuller <& Kellogg, for the appellant.

      Jenny, Brooks, Marshall dc Huger, for the respondent.
   Follett, J.:

To recover in this action against a person not a party to the contract of apprenticeship, the plaintiff must establish the existence ,of a valid contract of apprenticeship. (Gye v. Felton, 4 Taunt., 876; Peters v. Lord, 18 Conn., 337.) As against a wrong-doer, an apprenticeship de facto is sufficient to entitle a master to recover, but this is not an action for damages for enticing away a servant or employee.

The existence of a legal right in the plaintiff to the services of the minor, and to control his conduct, lies at the foundation of the action. The master must, so far as the fight of service is concerned, stand in the place of the parent. Chapter 934, Laws 1871, provides a scheme by which minors may be apprenticed with the assent of the parents (if living), or (if dead), with the assent of the guardian or guardians. Section 7 repeals all acts or parts of acts inconsistent with this chapter. The Revised Statutes provided for the apprenticeship of minors in certain cases with the assent of the parents (if living), or (if dead), with the assent of the guardian. (2 R. S., 154.) The mode provided by the Revised Statutes is inconsistent with chapter 934, Laws 1871. The validity of the articles of apprenticeship in this case’ must be determined by the act of 1871.

Section six of the act of 1871 provides: “ Any indentures made and executed wherein parts conflict with, or are not in accordance with the provisions of this act, shall be invalid and without any binding effect.” Section two of this act provides: “ Said agreement or indenture, in order to make the law (contract) valid, shall contain the following covenants and provisions.” Three provisions are then enumerated in the section. The first and third provisions of the section are contained in the contract of apprenticeship; but not the second, which renders the contract invalid by the express terms of the statute.

Having reached this conclusion, it is unnecessary to determine whether the assent of the mother, indorsed upon the contract executed by the father, is a sufficient compliance with the first section of the act,' which requires that the agreement shall be executed by the parents of the minor, if living.

The judgment of the County Court is affirmed, with costs.

Harden, P. J., and Boardman, J., concurred.

Judgment of the County Court of Onondaga county affirming the judgment of the Justices’ Court affirmed, with costs.


author: Follett, J. :

text:
    ALLEN BENEDICT, Appellant, v. RUTSON REA, Respondent.

      Cosureties — effect of an agrément by the creditor not to me one of the sureties — right of the otlwr to mail himself of it.

    This action was brought against one of two sureties, upon a joint and several undertaking given by a defendant in another action, upon an appeal from a judgment therein recovered against him by the present plaintiff. The surety against whom this action was brought set up as a defense, and proved on the trial, that after the affirmance of the former judgment the plaintiff had agreed, for a valuable' consideration, with the other surety not to sue him on the undertaking.

      Held, that the plaintiff was rightly limited in his recovery against the defendant in this action to one-half of the damages, which were recoverable upon the undertaking.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    December 27, 1877, it was adjudged that S. Miller Benedict was indebted to the plaintiff in this action in the sum of $18,015.46 damages and costs, which was declared a specific lien on certain real estate which was directed to be sold, as in cases of foreclosure, and that S. Miller Benedict pay the deficiency, if any. Benedict appealed to the General Term, and to stay proceedings on the judgment Leonard S. Standring and Rutson Rea executed under seal a joint and several undertaking conditioned as required by sections 1327, 1334 and 1352, Code Civil Procedure. S. Miller Benedict did not" join in the undertaking. The General Term reduced the judgment by $460.15, and as modified it was affirmed. The real estate was sold and a judgment for the deficiency ($8,358.96) docketed, on which an execution was issued and returned unsatisfied.
    This action is brought against Rea alone on the undertaking, to recover the deficiency; Rea alleges as a defense that before the sale the plaintiff and Standring entered into an oral agreement that Standring should purchase at the sale one hundred and ten acres of the land, at not more than seventy-five dollars per acre, convey it to the plaintiff, and in consideration 'therefor the plaintiff agreed not to sue Standring on the undertaking. It is further alleged and found by the refeyee that the agreement was afterwards carried out, and it is found as a conclusion of law that Standring was, by the agreement and its performance, discharged from all liability on the undertaking; and that the defendant Rea was only liable for $4,793.12 (one-half of the deficiency), for which sum and costs a judgment was entered for the plaintiff, and from which he appeals.

      Cornelius E. Stephens, for the appellant.

      Charles B. Adams, for the respondent.
   Follett, J. :

An agreement not to sue a sole debtor, made on a good consideration, is not a technical discharge, but should the creditor be permitted to recover, the debtor could recover the same amount in an action for a breach of the agreement, and to avoid circuity of action the agreement not to sue is given the effect of a legal discharge. (Cuyler v. Cuyler, 2 Johns., 186 ; Bank of Chenango v. Osgood, 4 Wend., 611; 1 Pars. Cont., 28; Leake’s Cont., 928.)

An agreement with one of two co-obligors, jointly and severally bound not to sue him, does not ^discharge the other obligor. (Bow ley v. Stoddard, 7 Johns., 207; Couch v. Mills, 21 Wend., 424; Fowell v. Forrest, 2 Wm. Saunders, 48, and notes; 1 Pars. Cont., 28; 2 Chit. Cont. [11th Am. ed.], 1357; 2 Chit. Pl. [16th Am. ed.], 363, 455.) But as between the parties to the agreement it has the same effect as though made with a sole obligor. (2 Chit. PI. [16th Am. ed.], 363.) Harrison v. Close (2 Johns., 448) is not an authority to the contrary. In that case one of two joint and several debtors paid less than one-half of the debt upon the creditor agreeing not to sue him. The creditor, in violation of his agreement, sued both debtors, and they pleaded an accord and satisfaction. It was held that the payment and agreement did not amount to an accord and satisfaction. This rule has often been affirmed. (Irvine v. Milbank, 15 Abb. [N. S.], 378; S. C., 56 N. Y., 635; Foakes v. Beer, 9 App. Cases, 605.)

The plaintiff having established a cause of action, the next and important question is, what amount is he entitled to recover, or, in other words, what is the measure of his damages ? The obligors, as between themselves, as between S. Miller Benedict and themselves, and as between the plaintiff in this action and themselves, are co-sureties. (Wood v. Fisk, 63 N. Y., 245, 250; Code Civil Pro., § 1334.) When one of two co-sureties is discharged by- • the creditor, the other co-surety is liable for but one-half of the debt. (Morgan v. Smith, 70 N. Y., 537.) Each co-surety is regarded as a principal debtor for his share of the debt, and as a surety for the remainder of the debt. For one-half of this debt Standring stood as principal, and Rea, as to all of the parties to the contract, stood as his surety. (Sheldon on Subrogation, § 169, and cases there cited.) The plaintiff being a party to the contract, was bound to regard the rights of these co-sureties. A surety may avail himself of any defense his principal may have. (Beehervaise v. Lewis, L. R., 7 C. P., 372; Sheldon on Subrogation, § 101.) The word defense, as here used in its technical sense, embraces only matters of resistance, and not including counter-claims, except under special circumstances. The agreement not to sue being a good defense to an action on the undertaking against Standring, it is available to Rea as a defense to the recovery of the half for which Standring stood as principal. Covenants not to sue are given the effect of a release to avoid circuity of action, which the law is said to abhor. There is no reason why the principle should not be applied to avoid the necessity of two additional actions, instead of ene, when all of the actions arise out of the same subject-matter and the damages to be recovered are precisely the same in the actions.

Permitting damages to be reduced to prevent a multiplicity of suits, or to avoid circuity of action, has long been a firmly settled principle of law, and when the damages recoverable by each party to the litigation arise out of the same subject-matter, and are necessarily of equal amounts, the fact becomes a good plea in bar. (Turner v. Davies, 2 Wm. Saunders, 150, notes; Mayne on Damages, 96.)

Under the doctrine of subrogation, if the whole claim should be recovered of Rea, he would be entitled to enforce the agreement, not to sue. When one of two- co-sureties acquires, after the contract of suretyship has been entered into, an agreement, or a cause of action for his own security, and his co-surety is compelled to pay the entire claim, the co-surety who pays is immediately subrogated to the rights of the co-surety holding the agreement or cause of action, and may enforce it in his own name. (Sheldon on Subrogation, § 95.) Persons seeking to enforce demands, as well as, persons resisting demands, may invoke the rule that circuity of action is to be avoided, and,'by force of the rule, maintain actions on contracts entered into between others, the avails of which should inure to the person suing.

The avails arising from the sale of the farm were the primary fund for the payment of the plaintiff’s debt, to which he was required to first resort and exhaust; and, in doing this, he was bound to exercise the utmost good faith towards the sureties, doing no act which would impair the rights of either. Whether the agreement entered into between the plaintiff and Standring, without the knowledge of Rea, in regard to the purchase of the farm, is a defense to the whole cause of action, need not be considered, as the defendant has not appealed.

The plaintiff insists that the evidénce is insufficient to justify the finding of the referee that the plaintiff agreed not to sue Standring, in consideration that he would purchase the farm and convey it to the plaintiff. The only witnesses upon this question are the plaintiff and Jonn T. Standring, who contradict each other. The subsequent transaction between the Standrings and the plaintiff in respect to fbe farm corroborate the evidence of Standring, and we think the finding should not be disturbed.

Judgment affirmed, with costs.

Hardin, P. J., and Boardman, J., concurred.

Judgment affirmed,' with costs.


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

text:
    DELIA E. PITTMAN, Respondent, v. HENRY JOHNSON, as Executor, etc., of LEMUEL PITTMAN, Deceased, Appellant.

      Oiftofthein£omeofaresidua/ry estate to one for Ufe — right of the legatee to the income from the death of the testatm’ — when such right is not affected ly a decree of the swrogate settling the eceem,toi’’s account.

    May 3, 1878, the defendant’s testator died leaving a -widow and children. He then owned three pieces of real estate in the city of Utica. ' By his will, after all his lawful dehts had been paid and discharged, he devised to his wife the use of one piece of real estate as a residence during her life, and for her support and that of an infant son; he also gave to her the net annual income and interest of all the rest, residue and remainder of his estate, real, personal and mixed, after paying therefrom the annual taxes, insurance and necessary repairs, for and during the term of her natural life, or as long as she remained ■ his widow, in lieu of dower, and of all or any other claim or claims upon his estate.
    The defendant having qualified as executor sold one piece of the real estate, March 22,1881, for $1,904, and the other March 30,1882, for $3,705. Between the date of the testator’s death and December 10, 1882, he had received from the income of the estate, over and above all charges and expenses, $045.36, of which he had paid to ’the widow only thirty-nine dollars. July, 1881, the defendant’s accounts were presented to and settled by the surrogate, in which he credited the principal of the estate with the said net rents.
    In this action, brought by the widow against the defendant, as executor and trustee, to compel him to pay over the income of the estate, she was allowed to recover the said rents so received by him prior to the surrogate’s decroe, as well as those thereafter received.

      Meld, no error. (Follett, J., dissenting.).
    Appeal from a judgment in favor of the plaintiff, entered in Oneida county upon the report of a referee, for $645.38.
    May 3, 1878, Lemuel Pittman, the testator, died, leaving a wife and six children surviving him. His last will and testament was admitted to probate July 10, .1878. The defendant was appointed executor and trustee under said will, and qualified as such. The testator, by his will, after his lawful debts were paid and discharged, devised to his widow, the plaintiff, the possession and the use of the premises known as No. 42 Lansing street, in the city of Utica, for and during the period of her natural life, and also, “ the net annual income and interest of all the rest, residue and remainder of my estate, real, personal and mixed, after paying therefrom the annual taxes, insurance and necessary repairs for and during the term of her natural life, or as long as she should remain my widow and unmarried, the same to be in lieu of dower and of all and any other claim or claims on my estate,” for her support and maintenance and that of an infant son, during minority.
    On the 23d day of May, 1881, the executor filed his petition in the Surrogate’s Court of Oneida county, asking for the final settlement of his accounts as executor, and on the return of the citation, on the 2d day of July, 1881, the executor appeared in the Surrogate’s Court and submitted his report and the accounts, by which it appeared he had received the sum of $3,751.39. He was credited with the amount. of expenses paid, commissions allowed, statutory exemptions, etc., in the sum of $3,748.97, leaving a balance of two dollars and forty-two cents in his hands as executor. The surrogate on that day entered an order declaring that: “ The proceedings of Henry Johnson, as executor and trustee of the estate of Lemuel Pittman, deceased, are in all respects just and proper, and that he has fully and faithfully executed his trust, as far as it appears from the sworn account on file up to date July 2, 1881.” The plaintiff appeared on the accounting with counsel, and claimed that she was entitled to the rents of the real estate.
    The deceased left two parcels of real estate besides the premises No. 42 Lansing street, and subsequent to July 10,1878, the defendant leased the real estate and collected the rents therefrom down to April 1, 1882. He sold one of the pieces March 22, 1881,' for $1,904, and the other March 30, 1882, for $3,705. The defendant paid all the debts, liabilities, funeral expenses and the expenses of settling the estate, including executor’s commissions, and after paying to the plaintiff the sum of $39, there remained in his hands, April 1, 1882, $2,048.92. He had received prior to December, 1882, by way of rents for the real estate, $1,923.67. He had paid ont on interest on mortgages on the real estate $583.75, for taxes $388.82, for insurance $77.94, and for necessary repairs $152.78. On the 10th of December, 1882, the defendant had received and had in his possession from the net annual interest and income from the estate, after the payment of the taxes, insurance and repairs, $720.38; his commissions on that sum were $36.02, leaving abalance of $645,36. The referee found that while that sum was in his hands the plaintiff demanded the same, and the defendant refused the payment thereof or any part thereof.

      G.\D. Prescott, for the appellant.

      Watson T. Dunmore, for the respondent.
   Hardin, P. J.:

Ve think that the referee’s finding that a demand was made on the 10th of December, 1882, of the defendant in behalf of the plaintiff, was warranted by the evidence given upon the hearing. Mr. Dunmore testified affirmatively that he made the demand personally of the defendant, and that the defendant refused to make any payment to the plaintiff for or on account of the trust estate. Johnson, as a witness, admitted that he held a conversation in December, 1882, with Mr. Dunmore, and that Mr. Dunmore claimed that the plaintiff was entitled to interest on all the money in my hands from the time I was appointed executor. He denies, liowever, that Mr. Dunmore made any demand for any money in any way, shape or manner. It was for the referee to determine upon the conflict between these witnesses whether or not the demand was established. We are not prepared to say that his findings are against the truth of the matter.

This action was brought to recover the income of the trust property, which came to the hands of the defendant. We think this court has jurisdiction of such an action, and that the jurisdiction of the surrogate in respect to such a legacy is not conclusive. Section 1819 of the Code of Civil Procedure, provides that a person entitled to a legacy may maintain an action against the executor who refuses to pay over after the expiration of one year from the granting of letters testamentary. It was held in Lewis v. Maloney (12 Hun, 207), viz.: The Supreme Court has concurrent jurisdiction with the sufrogate in enforcing the payment of legacies. Such jurisdiction has been maintained for a long period of time anterior to the adoption of the section to which we have referred. (Willard’s Equity Jurisprudence [Potter’s ed.], 88; Seymour v. Seymour, 4 Johns. Ch., 409; Spelman v. Terry, 74 N. Y., 448.) We think there is no force in that suggestion that the plaintiff could not recover because this property was not before the court.

The legacy given to the widow in lieu of dower does not abate as other legacies, and other residuary legatees are not necessary parties. (Scofield v. Adams, 12 Hun, 366.) Besides, there was not defect of parties alleged as a defense in the answer, and whatever objection the defendant might have had in that regard was waived. (Code of Civ. Pro., §§ 488-498 and 499.) We think the decree entered July 2, 1882, was not a bar to the plaintiff’s right of recovery of her legacy. Section 2742 of the Code of Civil Procedure declares upon the facts whether a surrogate’s decree should be conclusive. We think the account rendered by the defendant to the surrogate was his account as executor, and not an account as testamentary trustee. In July, 1881, the debts of the testator had not been paid, and had there been no demonstration there would have been a surplus after the debts were paid. It does not appear that the plaintiff’s right to the legacy, which she seeks to recover in this action, was or could have been litigated in the proceedings before the surrogate, and to settle the executor’s accounts. We, therefore, conclude that the surrogate’s decree was not a bar to the plaintiff’s right óf recovery in this action. (Fulton v. Whitney, 66 N. Y., 557; Marcellus v. Countryman, 65 Barb., 201.) We think it was competent -to show, by parol, what questions were included in the hearing before the surrogate. (Briggs v. Wells, 12 Barb., 567; Agan v. Hey, 30 Hun, 591.) We think the plaintiff was entitled to her rents and profits and income of the testator’s estate remaining after the payment of the funeral expenses, expenses of administration and the debts, though the precise sum was not ascertained until a period subsequent to the probate of the will. (Cooke v. Meeker, 36 N. Y., 15; Pierce v. Chamberlain, 41 How., 501.) Under this ruling the finding of the referee of the amount due to the plaintiff is sufficiently favorable to the defendant. We are of the opinion that the referee committed no error as to costs upon which the defendant can successfully complain. Where a trustee obtains funds belonging to the cestui que trust, he should be ready and willing to pay and apply the same according to the direction and the-intent of the, founder of the trust, without delay. (Eberhardt v. Schuster, 6 Abb. N. C., 141.) The defendant has prosecuted this appeal for the purpose of relieving himself of personal liability, and, as he has been unsuccessful, we are of the opinion that the costs of this appeal should be charged upon the appellant, personally. (Code of Civil Procedure, § 3246 • Butler v. B. & A. R. R. Co., 24 Hun, 99.)

Judgment affirmed, with costs against the appellant, personally.

Boaroman, J., concurred.

Follett, J.

(dissenting):

The Supreme and Surrogate’s Court have concurrent jurisdiction to compel the defendant to pay the plaintiff the amount to which she is entitled under the will, but the court which first acquires jurisdiction, has exclusivé jurisdiction. (Lewis v. Maloney, 12 Hun, 207.) As to all rents .received prior to the accounting before the Surrogate’s Court, that court acquired jurisdiction, before which court the parties litigated their claims, and are bound by its decree until reversed. The referee held that the plaintiff was entitled to recover the rents received prior to and embraced within the decree of the Surrogate’s Court, which was error.

Apart from the deeree of the Surrogate’s Court being a bar to the recovery of the rents received prior to its entry, the plaintiff at most, was only entitled to recover the income of the clear residue ($2,045.92), from the death of the testator, May 3,1878, to February 14,1883, the date of the commencement of the action. (Williamson v. Williamson, 6 Paige, 298; Williams on Executors [6 Am. ed.], 1488, 1492 and cases there cited.) The will provides : 1st. For the payment of debts, then specifically devises No. 42 Lansing street, and then gives the net annual income of the rest, residue and remainder of his estate to his widow. Kesidue means what is left after paying the debts, devises and legacies. (Phelps v. Robbins, 40 Conn., 250; 2 Williams on Exrs. [6-Am. ed.], 1563, 1564; 2 Abb. Law Diet., 422; Wliart. Law Diet. [6-ed.], 843.)

Under the decision of the referee the plaintiff recovers the income upon the residue from the death of the testator and upon the debts, or upon .the amount required to pay the debts and more. It was not shown that defendant received or could have received income, over and above expenses, equal to the legal rate of interest on the residue, yet the sum awarded exceeds the sum which the residue could have earned at six per cent from the death of the testator to the commencement of the action. The referee gave the plaintiff costs out of the estate, and refused the defendant costs.

The prevailing opinion on this appeal charges the defendant personally with the costs of this action. No objection has been raised to the defendants account, or to a single item in it. His administration of the trust has beeu wise and economical. No part of the estate has been used for the payment of counsel or doubtful expenses. He submitted the claims of the widow to the Surrogate’s Court, without ,the aid of counsel, making no contention and has strictly followed its decree. To charge a trustee with costs under such circumstances, because an appellate court takes a different view from a court of concurrent jurisdiction of a doubtful question of law, is imposing too severe responsibilities upon trustees. It is in effect saying that they must know at their peril how the appellate court will decide the mooted question.

This action not being for the recovery of the income upon the residue, and no demand having been made upon that theory, the judgment should be reversed, and the complaint dismissed, with costs against the plaintiff.

Judgment affirmed, with .costs of appeal against appellant personally.


author: Boakdman, J.:

text:
    RODNEY C. WEBBER, Appellant, v. THE HERKIMER AND MOHAWK STREET RAILROAD COMPANY, Respondent.

      Statute of limitation — when am, action will he treated as one to recover damages for personal injury resulting from negligence — Code of Oivil Procedure, sec. 383, sub. 5.

    This action was brought by the plaintiff to recover damages for an alleged breach of an agreement, whereby the defendant contracted to carry him safely from Herkimer to Mohawk. The plaintiff claimed that by reason of the unfitness of the car used and of the dangerous proximity of telegraph poles to the tracks he was struck and injured by one of tho said poles while in the car:

      Held, that the action was to “ recover damages for a personal injury, resulting from negligence,” and was governed by the three years’ limitation prescribed by subdivision 5 of section 383 of the Code of Civil Procedure.
    Appeal from a judgment in favor of the defendant, entered upon an order dismissing the complaint, made at the circuit, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      J. A. Steele, for the appellant.

      S. Earl, for the respondent.
   Boakdman, J.:

This action is brought to recover damages for an alleged breach of an agreement between the parties, whereby the defendant contracted to carry plaintiff safely from Herkimer to Mohawk. The gist of the action is the injury to the person of the plaintiff, by reason of the unfitness of the car used and the dangerous proximity of telegraph poles to defendant’s track, whereby, or by reason whereof, plaintiff was struck and injured by a telegraph pole while on the car. The cause of action accrued June 23,-1879, and the action was commenced in March, 1883, more than three years thereafter. The defense interposed as a bar to the action was the three years’ statute of limitations as prescribed by subdivision 5 of section 383 of Code. The defense -was sustained and the plaintiff appeals.

“An action to recover damages for a personal injury, resulting from negligence,” by the above section, must be brought within three years. This is an action to recover such damages, and they weré caused by negligence. It seems to us to be within the letter and the meaning of the Code. The duty of the carrier to a passenger under an express or implied- contract is made the foundation or basis of such actions. Without such contract the person complaining may have been a trespasser or wrongfully upon defendant’s car. Hence the contract is an • important element in the right to recover, but only as inducement and not as substance. The real ground of action is the tort or wrongful act of defendant, whereby the plaintiff is injured while rightfully there and in default of the duty owing by defendant to plaintiff and every passenger.

A breach of this contract to carry might have occurred, for which a limitation of the right of action is prescribed by section 382, such as a refusal to carry the whole distance or a refusal to carry within a reasonable time. Those are not personal injuries and would not be controlled by section 383. This must be deemed an action for negligence pure and simple.

The cases cited on either side do not expressly dispose of the question now presented for decision. But we think the case of Watson v. Forty-second Street and Grand Street Ferry Railroad Company (48 N. Y. Supr. Ct. R., 44; affirmed in 93 N. Y., 522), applies whether the form of action was, as in this case, for a breach of the contract or simply for the negligence in the discharge of a duty owing to the plaintiff, whereby he suffered personal injuries. In either case the injuries were personal and wholly due to the negligence of the defendant.

Subdivision 3 of section 382 gives six years within which to bring an action for “ a personal injury; except in a case where a different period is expressly prescribed in this chapter.” The very next section does prescribe such different period for that class of personal injuries resulting from negligence. There is, therefore, no conflict and each section is complete in itself.

It is not necessary to discuss the nature or extent of the liabilities of common carriers toward their passengers. It is enough to say that a liability arises out of their relations, of the carrier to the passenger, for any personal injury inflicted upon him through the carelessness or negligence of the carrier. The cause of action is the negligence; the amount to be recovered depends upon the extent of the personal injury. If a passenger’s baggage be lost or destroyed an action accrues under the contract with the company for loss-of property, which may be brought under section 382, within six years. There the contract is the very foundation of the right to recover. The injury or loss is the direct result of the breach of the contract. Here the contract is the incident, and negligence, not the contract, gives the cause of action.

We think the judgment and order are correct and should be affirmed, with costs.

Hardin, P. J., and Follett, J., concurred.

Judgment and order affirmed, with costs.


author: Boardman, J.: Follett, J.,

text:
    THOMAS LACY, Appellant, v. SOPHRONIA A. GETMAN, as Executrix, etc., of JOHN H. McMAHON, Deceased, Respondent.

      Contract for the rendition of personal services— effect upon the contract, of the death of the employer — when Ms estate is hound to fulfill it.

    The plaintiff was hired by the defendant’s testator to do ordinary farm work, for one year, at $200 a year. Near the middle of the year the employer died. The plaintiff continued to work on the farm, as provided in the contract, until the end of the year. In an action to recover the $200 due under the' contract, . the executor sought to have the recovery limited to the amount due at the time of the testator’s death, claiming that -the contract was thereby terminated.
    Upon the trial the plaintiff offered to show that he performed the contract after the death of the testator, under the direction of the defendant, the executor:

      Held, that the court erred in rejecting this evidence, as it tended to show that the defendant elected to enforce, or not to repudiate the contract.
    That the defendant, as executor of the employer, was bound by the contract, and could not repudiate it even if he had wished so to do, as the death which terminates a contract is the death of the party by whom alone the contract may he performed, that is, the servant. It is otherwise in those cases in which the death of either party renders performance impossible. (Hardin, P. J., and Boardman, J.)
    Appeal by the plaintiff from a judgment in his favor, entered upon a verdict as reduced by order of the court, aud from the order made by the court reducing the amount of the verdict.

      The testator, John IT. McMahon, hired the plaintiff, Thomas Lacy,' about February 25, 1882, to work for him as a hired servant on his farm for one year, beginning March 1, 1882, for the agreed price of $200. The plaintiff entered upon the service, which was of the usual nature of farm labor, taking care of horses and cows, and doing as directed from day to day, and so continued until July seventeenth of the same year, when his employer, the testator, died. The widow of John H. McMahon took a life estate in the farm under her husband’s will, and continued to live there some time after his death, leasing the farm to a stranger before the year for which plaintiff was hired expired. The plaintiff stayed there with the widow, doing work on the farm as before testator’s death. The plaintiff, after the expiration of his year, presented a bill for full service to the executor, who rejected it except for the time prior to her testator’s decease, and- plaintiff then brought this action.

      W. A. JVims, for the appellant.

      Elon R. Brown, for the respondent.
   Boardman, J.:

Plaintiff hired to defendant’s testator for one year at $200, to do ordinary farm work. Near the middle of the year the employer died. Plaintiff continued to work on the farm, as provided by the contract, until the end of the year. This action was brought to recover the $200 under the contract. The defense in effect is that the contract of hiring was terminated by the death of the employer, and that after that event the plaintiff’s services were rendered to the widow of the testator, by whose will she took a life estate in the farm. An offer of judgment was made for services until the date of the death of the employer. The evidence shows the hiring, the performance of the labor and services in accordance with the terms of the contract, and the refusal to pay for the services subsequent to the death of Mr. McMahon, the testator.

I am unable to agree with the learned justice who tried the case. The plaintiff seems to me to be clearly entitled to recover for his year’s services. Contracts ordinarily bind the executors and administrators of the contracting parties. That is the general riile in executory agreements. But in some few cases performance may be excused, as for instance, when performance was prevented by act of law (Jones v. Judd, 4 N. Y., 411), or where rendered impossible by act of God, and without fault of contracting parties, such as sickness or death of the party contracting to render services, or the death of either contracting parties where skilled personal services are contemplated, as in Spalding v. Rosa (71 N. Y., 40); People v. Globe Insurance Gompcmy (91 id., 179); Martin v. Hunt (1 Allen, 418)

But I find no case in which executors are excused from the performance of the contracts of their testator by reason of his death, where such contracts relate to ordinary hired labor as in this case. They may break the contract and discharge the laborer by paying him such damages as he may suffer. But when the coutract has been fully performed by the servant without objection by the executors, as in this case, the executors can and must perform on their part. It is not impossible for them to perform, and no reason is apparent why they should not perform as in any other case of an executory contract of their testator. Nor is it necessary that they should direct a continuance of the servant’s services after the death. It is sufficient if, without objection, the services are rendered and the contract performed.

The respondents claim that the death of either party to such a contract operates to end the contract and excuse its performance. This view is not, I think, sustained by the authorities. It must be the death of the party by whom alone the<contract can be performed. If the servant dies the further performance becomes impossible, and then his representatives may recover for the services performed, full performance being excused. Such are nearly all the cases cited to sustain this judgment. ( Wolfe v. Howes, 20 N. Y., 197; S. C., 24 Barb., 174; Fahy v. North, 19 id., 341; Clark v. Gilbert, 32 id., 576; reversed, 26 N. Y., 279 ; Spalding v. Rosa, 71 id., 40; Harrington v. Fall River Iron Works Co., 119 Mass. R., 82; Greene v. Linton, 7 Porter [Ala.], 133.) In each of these cases, and in others which might be cited, the performance of the contract was prevented by the sickness or death of the servant. No case is cited where the death of the employer worked a termination of such a contract. In People v. Globe Insurance Company (91 N. Y., 174), the case of the insolvency and dissolution of an insurance company, a contract between it and a general agent is dissolved by . the action of the State. It is impossible to perform thereafter. The case of Farrow v. Wilson (L. R., 4 C. P., 744), as cited by the learned judge at circuit, seems to have come within the principle cf skilled or personal services where the death of either party makes performance impossible, as would be the case of the employment of a valet or the indenture of an apprentice to learn a trade.

It is true the language of the text book indicates that the contract would end on the death of either party. (2 Add. on Cont., § 901; Wood on Master and Servant, §' 158.) But the authorities cited only go to the case of the death of the servant. But the latter author, at section 95 of the same work, says: “.Where the master dies and .the servant continues his period of service, and completes it, he may recover the entire sum agreed upon.” , Dewey, J., in Martin v. Hunt (1 Allen, 418), says: “ The death of a single promisor is, in general, no revocation of an agreement. If a purchaser orders goods and dies before the time of delivery his executors must receive and pay for the same, although the particular purpose of the- purchase was .defeated by the death of the purchaser.” Parsons, in his work on Contracts (vol. 1, p. 131), says : “ Where the contract with the deceased is. of an executory nature and the personal representative can fairly and sufficiently execute all that the deceased could have done, he may do so and enforce the contract.” JEEere the defendant had nothing to do but pay when the contract was fulfilled. It was entirely possible ; it was excused by no act of the plaintiff, performance by whom was full and complete, without objection or notice from the defendant.

Justice and right seem to me to sustain the verdict for $208, as originally ordered. Hence the reduction of said verdict to eighty dollars and sixty cents, and ordering judgment for that amount, was error. We are all of the opinion that the court erred in rejecting the offer of the plaintiff to show that he performed the contract after the death of the testator, under the direction of the defendant. This was not an offer to prove a new contract, but simply to show that defendant elected to perform, instead of repudiating it, for which reason a new trial should be had.

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

Hardin, P. J., concurred.

Follett, J.,

concurred in result; ground, that legal evidence of direction by defendant to continue work was rejected. (See Babcock v. Goodrich, opinion by Boardman and Follett, JJ., September, 1879.)

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


author: By the 'Court :

text:
    HANNAH BARLOW, Appellant, v. WILLIAM J. BARLOW, Respondent.

      Costs — when the defendant is not entitled to costs, although he succeeds upon some of the issues — Code of CM Procedure, sea. 3234 — costs cannot he taxed for an attachment which has been set aside.

    The complaint set forth two causes of action: the first upon a promise made by the defendant to pay an agreed price for work and labor performed and rendered by the plaintiff prior to March, 1868; the second upon an implied promise-to pay for work and labor performed and rendered by her after that time and prior to 1880. Upon the trial before a referee she recovered upon the first, but not upon the second cause of action. The court directed that the defendant’s costs be taxed and set off against the plaintiff's judgment. •.

      Meld, that this was error.
    That the defendant was not entitled to recover costs as the substantial cause of action was the same upon each issue, within the meaning of these terms as used in section 3234 of the Code of Civil Procedure, and because the defendant had not "recovered” upon any issue within the meaning of the said section.

      Cooper v. Jolly (30 Hun, 224) followed.
    Where the plaintiff-is entitled to recover the costs of the action, he cannot include , therein items for issuing and serving a writ of attachment which was subsequently set aside as having been improperly granted.
    Appeal by the plaintiff from an order, made at a Special Term, denying plaintiff’s motion for a retaxation and disallowance of costs to defendant, and granting defendant’s motion to set off his costs in the action against plaintiff’s recovery, and striking out part of plaintiff’s costs as taxed.

      D. Bearup, for the appellant.

      Wayland F. Ford, for the respondent.
   By the 'Court :

The plaintiff, .on a trial before a referee, recovered $748.46. The complaint specified, as one cause of action, an indebtedness to her from defendant for work and labor rendered by her prior to March, 1S6S, at $600, an agreed price. , Upon this cause of action the recovery was had.

Another canse of action is contained in the complaint for the value of work and labor from March, 1868 to 1880, rendered by plaintiff for defendant and at his request. The decision on the latter count was in favor of the defendant.

Now, although separately stated, “the substantial cause of action was the same upon each issue.” To use the language of section 3234 of Code, it was an action to recover for work and labor rendered by plaintiff to the defendant between 1860 and 1880, at the defendant’s request. As to a portion of the time (from 1860 to 1868), the value of the services had been fixed and agreed upon at $600. For the remaining time Ho value had been agreed upon and so a contract was implied to pay what the services were reasonably worth. There were two elements in such cause of action, to wit: 1st. The rendition for defendant of the services. 2d. The value of such services. The rendition of services is proved for the whole period; the value up to 1868 is proved by an express contract, after that by an implied contract. But the plaintiff fails to recover for the last period because she cannot show facts from which a contract can be implied. Her recovery for that is defeated. The defendant does not recover either in form or fact. It is analogous to Bull v. Ketchum (2 Denio, 188).

The cases of Stoddard v. Clarke (9 Abb. [N. S.], 310) and Watson v. Gardiner (50 N. Y., 671) do not apply since the provisions of 2 Revised Statutes (Eds. ed.), 641, section 26 had been repealed by the then Code (Code of Pro., § 303), and a new rule (§ 305) substituted. Since then there is a general judgment and recovery by plaintiff and no judgment or recovery for the defendant, the case is not brought within the language or spirit of section 3234.

But if it be adjudged that the complaint set forth two causes of action, upon one only of which the plaintiff recovers, yet the defendant is not entitled to costs because he has not recovered upon any issue'within the above section. Such seems to be the fair deduction from Cooper v. Jolly (30 Hun, 224), reversing the opinion upon which the learned judge relied at Special Te'rm. This makes it necessary to reverse that part of the order allowing defendant’s costs to be adjusted and the amount set off against plaintiff’s judgment. This leaves unconsidered and undisposed of the necessity and effect of the certificate required by section 3234. The' case last cited does not allude to it, nor perhaps was it necessary to do so.

That portion of the order striking out from plaintiff’s costs the items' of forty-two dollars and ninety-six cents and seventeen dollars, arising out of the issuing and service of an attachment which was afterwards set aside as improperly granted is correct, and should be affirmed. An attachment set aside ceases to be an attachment. It is as though no attachment had ever been issued. The reasoning and authority of the learned judge at Special Term upon that subject are conclusive.

The part of the order allowing defendant’s costs is reversed. The part of the order disallowing plaintiff’s costs on attachment is affirmed. No costs are allowed to either party on this appeal.

Present — Hardin, P. J., Boardman and Follictt, JJ.

That part of the order allowing defendant’s costs is reversed; that part of the order disallowing plaintiff’s costs on attachment is affirmed. No costs or disbursements are allowed to either party on appeals from the orders.


author: Boardman, J.:

text:
    LYDIA A. VERNUM, Appellant, v. ANDREW A. WHEELER, Respondent.

      Water-course — one changing it and discharging the water upon the land of a neighbor is liable for the damages — a person cannot concentrate the surface water upon his land at a point from which it is discharged underground upon adjoining land.

    A portion of tiie defendant’s farm, winch was north of and higher than the plaintiff’s farm, was low and swampy, and at times a pond formed thereon, which discharged its surplus waters to the west and not upon the plaintiff’s land, from which it was separated by a high ridge impenetrable to water. The defendant dug a ditch through this ridge which drained the marsh and pond and discharged the waters thereof upon his own land at a point where it was so gravelly that the water was immediately taken up and transmitted under ground to the plaintiff’s land, some thirty feet below, where it came to the surface and caused damage to the plaintiff. Evidence was given upon the trial tending to show that two natural streams of water flowed into the marsh and pond upon the defendant’s land.

      Held, that if the marsh or pond was partially fed by the said natural streams the defendant was liable for any damages that might be occasioned by his wrongful turning of the water .thereof upon the plaintiff’s land.
    That even if the pond and marsh consisted wholly of surface water the defendant had no right to collect it in a ditch and discharge it at such a place and in such a manner as that it would naturally and necessarily, although under the surface of the ground, flow upon the plaintiff’s land to his injury.
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed at the circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      John O. MoOartin, for the appellant.

      O’ Brien <& Emerson, for the respondent.
   Boardman, J.:

This action was brought to recover damages for the wrongful diversion and discharge of water by the defendant upon plaintiff’s land. A verdict was ordered for defendant.

The evidence tends to show the following facts : Defendant is owner of a farm north of and higher than plaintiff’s farm; There was a low and swampy part of defendant’s land, sometimes a pond into which two streams ran and where surface water also collected. This swamp naturally discharged its surplus water to the west, and not upon plaintiff’s land. It was separated from plaintiff’s land by bigh ground which was impenetrable to water. Through this high ground the defendant dug a deep and wide ditch to a point on his own land, some twenty-four rods south of the deepest part of the pond or marsh. Through this ditch the defendant discharged the whole of the waters of said pond and marsh upon his own land, where the same was so gravelly as immediately to take up such water and transmit it under ground down upon the plaintiff’s land some thirty rods below where it again came to the surface and caused plaintiff damage. . The amount of the discharge was least in the summer season and sometimes very great in the spring and wet seasons. Was defendant’s act unlawful? The jury has found that an increased quantity of water was thrown upon plaintiff’s premises by reason of this ditch made by defendant; and that plaintiff’s premises had.been damaged thereby in the sum of $375. But it was not permitted to pass upon the main question whether the defendant had unlawfully diverted waters from their ordinary .and natural course, or had discharged such waters in an unusual manner and with unaccustomed force and quantity upon plaintiff’s lands.

. We think there were other questions of fact that should have been submitted to the jury, and that the case was erroneously taken ■ from it and decided as a question of law. If there were streams running into this pond on defendant’s land, he had no right to change their course and pour their waters upon the plaintiff’s premises. Many of the witnesses speak of such streams. “ There were two running streams leading into and feeding it,” plaintiff’s pond. “ The water of this stream comes from springs on side hills east side of it,” etc. “ There are banks to this stream. Grass does not grow in the bottom of this stream when it dries np in July or August. Stream starts three miles from the pond. For nearly two miles it is a living stream ; never dries up ; a regular,creek ; quite a wide stream ; some places a rod wide; avérage three, four or five feet wide of running water, six or eight inches deep; two or three feet deep when snow-water was running off in the spring sometimes.” Here is evidence either showing the existence of streams emptying into defendant’s pond, or from which the jury would be warranted in finding that such streams did exist and their waters were turned on plaintiff. “A water-course is a stream of water usually flowing in a definite channel, having a bed and sides or banks, and usually discharging itself into some other stream or body of water. To constitute a water-course the size of the stream is not important. It may be very small, and the flow of water need not be constant; but it must be something more than the mere surface drainage over the entire face of the tract of land, occasipned by unusual freshets or other extraordinary causes.” (Luther v. Winnisimmett Co., 9 Cush., 171; Barkley v. Wilcox, 86 N. Y., 140.) It is a question for a jury, in any given case, whether a water-course - exists or not. (Washb. on Easm. [2d ed.], .439, *362, and cases there .cited.) If the waters of running streams were turned from their natural course by the defendant, it was an unlawful act, and. any person injured thereby could recover of him for all the damages caused by such act.

The learned counsel for the defendant impliedly admits this rule of law, and attempts to evade it by saying that only surface water was within the issue joined by the pleadings, tried and decided by the court. But in this they are in error, as we think. The complaint says, the water from two small brooks or streams, continuously flowing, contributed to the surface water creating the pond which was turned on plaintiff’s land. In the answer the defendant admits the existence of a water flow from two small streams for a short time, spring and fall,” into said pond. The character of such streams was a matter of proof on the trial, as we have already seen. It was fairly before the court and jury, and the court erred when it refused to submit to the jury whether the plaintiff was not entitled to recover on the facts proved, and instead thereof directed a verdict for the defendant. The exceptions to each decision are well taken.

If we are correct in what has already been said, a new trial must be had without reference to tlie other questions involved in the case. But they may and probably will arise, and our opinion may as well be now stated in aid of the court upon such new tidal. Assuming that the water in question was all surface roater, the defendant would have no right, by ditches and artificial channels, to take it from its natural courses and accustomed channels and throw it upon the plaintiff’s premises, to her injury. There is no conflict of authorities upon this point. (Washb. on Easm. [2d ed.], 432, 427— 431, 439 ; Kauffman v. Griesemer, 26 Penn. St., 407, 413 ; Miller v. Laubach, 47 id., 154 ; Foot v. Bronson, 4 Lans., 47; Noonan v. City of Albany, 79 N. Y., 470.) Even the case relied upon by the learned justice at the circuit (Barkley v. Wilcox, 86 N. Y., 140) announces the same rule. At page 147 the learned judge says the owner of land is the absolute owner of surface water thereon, and he may “ get rid of it in any way he can, provided only that he does not cast it, by drains or ditches, upon the land of his neighbor.” And again : The owner of wet and spongy land cannot, it is true, by drains or other artificial means, collect the surface water into channels and discharge it upon the land of his neighbor, to his injury. This is alike the rule of the civil and common law.” (16 Moak’s Eng. R., 299, note.)

The rule may be conceded and the defendant may insist that he dug this ditch and 'discharged this water upon his own premises, twenty rods or more from plaintiffs land,* where it sank ’ into the soil and by percolation through the soil reached the plaintiff’s promises. Conceding that to be true it does not relieve the defendant from the direct consequences of his own act. It is a legal maxim .that we must use our own property in such a manner as not to injure that of another. The case is no different in the cause or the damage, whether the water passes on the surface or through the gravel upon plaintiff’s lands. The evidence tends to establish'tlie identity of the water discharged by defendant through his ditch with that coming to the surface upon plaintiff’s lands. If it be controverted by evidence then it was for the jury, but the court in its decision assumed the water, was the same. The injury is the direct consequence of the water from defendant’s ditch. Though discharged at first upon his own lands it ran of necessit}7 immediately upon plaintiff’s land and it is immaterial whether on, or above or below the surface.

If the water which passed through this ditch injured the plaintiff’s property the defendant ought to be held responsible therefor upon the facts as they are now presented to us.

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

ÜARDIN, P. J., and Follett, J., concurred.

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


author: BoardmaN, J.:

text:
    LUELLA S. ROOT, Respondent, v. HARRIET E. WADHAMS, Appellant.

      Basement — right to draw water from a spring upon the land of another — when the title of a purchaser will not he affected by declarations oY admissions made by his grantor, while owning the land.

    Prior to i865 one Beebe, with tlie consent of one Bradbury, laid a pipe leading from a spring on Bradbury’s lot to a bouse on Beebe’s adjoining lot. Thereafter one Merchant, who owned a lot adjoining that of Beebe, with the consent of Beebe and Bradbury, continued the pipe laid on Beebe’s lot across the same to his own lot, where the water was used by the occupant thereof until May, 1888. In 1865 Merchant sold his lot to Bradbury, who, in 1870, sold it to Rowley, who, in 1888, sold it to the plaintiff. In February, 1882, the spring lot was sold to the defendant, who, in May, 1888, disconnected the pipe and stopped the flow of water to the plaintiff’s premises.

      Held, that he had no right to do so..
    Before the defendant purchased her lot, she was told by Rowley, the owners of the Beebe lot, and by her grantors, that no persons, other than her grantors, owned the spring or had any interest therein.

      Held, that as the plaintiff purchased without knowledge of the declaration so made by Rowley, her title was not affected thereby
    Appeal from a judgment in favor of the plaintiff, enjoining the defendant from disconnecting or removing a pipe through which water was conveyed from a spring upon the defendant’s land to the-plaintiff’s' land.

      George W- Kay, for the appellant.

      Albert F. Gladding, for the respondent.
   BoardmaN, J.:

In 1865, one Bradbury was the owner of the lots now owned by the parties to this action. Between those two lots was a third lot owned by Beebe. ■ Prior to 1865, Beebe, with the verbal consent of Bradbury, then owner of the spring lot, had laid a pipe and taken water from a spring on the lot now owned by the defendant to his (Beebe’s) lot and house, and has Since taken water through such pipe from the spring until the supply was stopped by the-defendant in May, 1883. Prior, also, to 1865, one Merchant, then the owner of plaintiff’s lot, and Bradbury’s grantor of the same, with the verbal consent of Beebe and Bradbury, continued the pipe-from the Beebe lot to the lot now owned by plaintiff, and from that time until Hay, 1883, water was carried from said spring across the Beebe lot and to the lot owned by plaintiff’s, through said pipe. The pipe from the spring to the Beebe lot belonged to the owner ■of that lot, and the pipe from the Beebe lot to plaintiff’s lot belonged to Bradbury, when he sold plaintiff’s lot to Rowley in 1870. Rowley conveyed to plaintiff in February, 1883. Bradbury continued to own the spring lot until his death, and it was sold to defendant by his executors in February, 1882. In May, 1883, the defendant disconnected the pipes and stopped the flow of water through the same to plaintiff’s premises. This action was brought to restrain any interference with such pipes, and for damages.

Had these two lots adjoined each other, the plaintiff would have acquired under her deed the right to the use of the water from the spring, as is claimed. The appellant does not deny this, and the authorities are abundant to support the assertion. Is the case ■changed, because a piece of land intervenes between the land conveyed and the land retained, through which intervening land the right to take the water is by parol license liable to be revoked by the owner? ¥e think not. Bradbury owned both the servient ■and the dominant estate. As against himself, he had the right .absolute to use the water on plaintiff’s lot, as it was used when he sold it to Rowley, who knew all the facts. He also had the right under the owner of the Beebe'lot to use the pipe and carry the water through that lot, so long as its owner did not object thereto or revoke his license. . When he conveyed, the right to the use of the water of the spring as then used passed as an appurtenant. Bradbury could not be heard to object, or be permitted to obstruct such use, nor could he or his grantees of the spring lot defend the action npw taken under the conceded right possessed by the owner of the intervening lot. The latter only could do that, and, until lie did it, the plaintiff was entitled to the accustomed use of the water. The following cases sustain this conclusion- with more or less directness : Leonard v. Leonard (84 Mass. [2 Allen], 543; S. C., 89 id. [7 id.], 277); Seymour v. Lewis (13 N. J. Eq., 439); Owen v. Field (102 Mass., 90); Greene v. New York Central, etc. (65 How., 154); Curtiss v. Ayrault (47 N. Y., 73); Hills v. Miller (3 Paige, 254; 2 Wash. on Real Prop. [2d ed.], 38). The cases of Cronkhite v. Cronkhite (94 N. Y., 323) and Wiseman v. Lucksinger (84 id., 31) simply sustain the power of the owner of the Beebe lot to revoke the license to carry the water through it.

The defendant was told when she bought her lot, by Rowley, the owners of the Beebe lot and her grantors, that no persons other than her grantors owned the spring or, any right therein. Is the plaintiff estopped by Rowley’s declaration, she having afterwards purchased of him without knowledge of the fact? The learned judge has decided that she was not, and we concur in his conclusion. The plaintiff was a purchaser in goocl faith for value and without notice of any defect in her title. She was an innocent purchaser. Por a considerable time after Rowley’s declaration to defendant he was permitted to use this water as before. He sold it while so using it to plaintiff. She took it as an appurtenant to the land bought. Her title cannot be defeated by a secret declaration of her grantor inconsistent with his deed. By defendant’s neglect Rowley was permitted to convey the property to an innocent buyer before' the defendant made known or interrupted the-use of the water. As between two innocent parties, that one shall suffer the loss to whose neglect it is attributable. (McNiel v. Tenth Nat. Bank, 46 N. Y., 325, 329; Herm. on Est., §§ 328 and 332.) The author says: ■“ But as the interest conferred by an estoppel of this description is, where real .estate is involved, essentially equitable, subsequent purchasers will not be bound without notice.”

We have examined the two exceptions to rulings upon the admission of testimony, and find no error to the prejudice of the defendant. In the latter case the evidence was hearsay and clearly inadmissible. In the former, if the evidence was obnoxious to section 829 of the Code, which is doubted, the essential fact was abundantly proved by other and competent evidence that Bradbury knew of the use of this water on his lot and assented thereto.

The judgment should be affirmed, with costs.-

HaRdiN, Jf. J., and Pollktt, J., concurred.

Judgment affirmed, with costs.


author: Haedin, P. J.: Boardman, J.:

text:
    In the Matter of the Judicial Settlement of the Accounts of GILBERT A. WOODS, as Executor, etc., of JOHN WOODS, Deceased.

      Will — construction of a residuary clause — when the tenant for life is entitled to receive and hold the principal of the estate.

    A testator, after mailing certain specific bequests, gave and bequeathed unto my beloved wife, Sarah Woods, all and singular my household furniture, if * *" and all and every necessary articles and chattels by me provided for housekeeping, to have and to hold the same unto my said wife Sarah Woods, her hen’s and assigns, forever. I also give, bequeath and devise, after the payment of all my just debts, all my real estate, of what nature or kind soever, together with all the rest and residue and remainder of my personal estate, of what nature or kind soever, unto my said wife Sarah Woods, to lie used and enjoyed by her during the term of her natural life.” From and after her death he gave and devised the same to his sons, tlleir heirs and assigns, forever, to be equally divided between them, share and share alike. The executors were directed to collect all debts, dues, obligations, claims and demands that might belong to the testator at the time of his death, and the proceeds and avails thereof “ to pay; over to the person or persons entitled to receive the same, according to the conditions and provisions in this my last will and testament contained.” An executor was appointed, but no trustee was mentioned.

      Held, that it was the intent of the testator that the residue of the personal estate remaining, after the payment of debts and legacies, should be converted into cash and paid over to the widow, and that the executors had no authority to retain and invest the same.
    Appeal by Gilbert A. Woods, as executor, fi-om a decree of the-surrogate of Oswego county, settling the accounts of said Gilbert A. Woods, as executor of John-Woods, deceased.
    John Woods died December 2, 1852, leaving a last will and testament, which was admitted to .probate by the surrogate'of Oswego county February 23,1853. Gilbert A. Woods and Isaac N. Meacham were appointed executors of the will, and letters testamentary were" issued to them when the will was proved. The executor Meacham died soon after his appointment, and Gilbert A. Woods filed his account with the'surrogate on January 29, 1881. On that day George W. Woods, as administrator of Sarah Woods, deceased, and as assignee and owner of the interest of Thaddeus "Waite Woods, deceased; Charles Wesley' Woods, Ohauncey C.Woods, James Woods, John Woods; Charlotte M. Woods, as-executrix of the will of William Woods, deceased, filed allegations in the Surrogate’s Court and appeared to contest the executor’s account. During the pendency of the bearing before the surrogate, John Woods died, and before the decree herein was made. Susan Woods and George W. Woods were appointed administrators of bis estate, and were substituted as contestants in bis place After a bearing before the surrogate, be made his decree April 10, 1882, wherein be found that, upon the settlement of the accounts of the executor, there remained in bis bands as such executor $7,386.01 belonging to the residuary legatees of the testator, their heirs and assigns, including the executor Gilbert A. Woods, and be ordered a distribution thereof, viz.: “To Charles Wesley Woods, $1,055.14; to Obauncey C. Woods, $1,055.14; to James Woods,$1,055.14; to CharlotteM. Woods, $1,055.14; as executrix of William Woods, $1,055.14; to George W. Woods, as owner of Thaddeus Waite Woods’share, $1,055.14; to George Woods and Susan Woods, as administrators of John Woods, $1,055.14; and authorized the executor to retain in bis band, as bis share, $1,055.14. Tlie surrogate found the total charges against the executor to amount to “$¿3,016.52,” and allowed the executor as having paid to the legatees $17,101.52, and ascertained an apparent balance of $5,915 as chargeable to the executor. He found as a fact that Sarah Woods died May 4, 1878, and that George Woods was appointed her administrator, and allowed interest on the $5,915 from May 24, 1878, being the time of the death of Sarah Woods, to January 1, 1880, at seven per cent, and from January 1, 1880, to April 10, 1882, at six per cent. And found as a conclu- • sion of law, viz.: “ That by virtue of the provisions of the will of the said deceased Sarah Woods, the widow was entitled to the annual interest on the balance in the executor’s bands during her natural life, and that it was the .duty of the executor to keep said-balance invested and to pay her the income thereof.” As a further conclusion of law be also found: “ That the residuary legatees were entitled to said balance in equal proportion, and it was the duty of the executor to so pay the same on the death of the said Sarah Woods, and the said executor bad no right to pay said Sarah Woods any sum in excess of said income without the consent of the said residuary legatees.” He found as a fact viz.: “ That on the 5th day of April, 1853, the executor paid Sarah Woods $10,333.32; also $1,400; ou the 15th day of September, 1857, $1,857.68; on the 27th day of June, 1855, $85.86, making a total of $13,376.86, with the consent of all the legatees in the will, which was distributed among the legatees and Sarah Woods as mutually agreed.” He also found “ that the executor is entitled to $42o.l6, claimed by him as commissions, which is allowed and credited.” He also found “ that the executor paid to Sarah Woods, at different dates between August 16, 1853, and October 1, 1864, the sum of $8,665, and that the payments, amounting to $8,665, were "made without the consent of any of the residuary legatees except the executor.”
    The principal question involved in the consideration of this appeal arose upon the eleventh and twelfth provisions of the testator’s will, which were as follows, viz.: “ Eleventh. I give and bequeath unto my beloved wife, Sarah Woods, all and singular my household furniture, silver plate, apparel, beds, bedding, table linen, crockery, glassware, cooking utensils and all and every necessary articles and chattels by me provided for housekeeping, to have and to hold the same unto my said wife Sarah Woods, her heirs and assigns forever. I also give, bequeath and devise after the payment ‘ of all my just debts, all my real estate of what nature or kind soever, together with all the rest and residue and remainder of my personal estate of what nature or kind soever unto niy said wife Sarah Woods, to be used and enjoyed by her during the term of her natural life. And from and immediately after her decease I give and devise the same to my said sons, William Woods, James Woods, Gilbert A. Woods, Oliauncey C. Woods, John Woods, Charles Wesley Woods, Tliaddeus Wait Woods, their heirs and assigns forever, to be equally divided between them, share and share alike. Twelfth. I do hereby order and declare that my will is that no advancement or sum of money or property by me heretofore pam or auvanced, or portion, legacy, gift, bequest or device to any or either of my said children in this my last will and testament before mentioned provided for or contained, shall be taken or construed to operate as an extinguishment or release of any or any part of any legal debt, due, obligation, claim or demand which may be due to me at the time of my decease, or which may thereafter fall or become due from all, any or either of my said sons or daughters, but that the full amount of any and all such debts, dues, obligations, claims and demands, and every of them are to be collected and realized for the benefit of my estate by my executors hereinafter nominated; and I hereby direct my said executors to collect all debts, dues, obligations, claims and demands that may be found belonging to me at the time of my' decease from any, every and all person and persons whomsoever, or so much thereof as may prove collectible, so soon as the same can be legally and conveniently done, and the proceeds and avails thereof to pay over and deliver to the person or persons entitled to receive the same according to the conditions and provisions in this my last will and testament contained.” And lastly, “I do hereby nominate and appoint my son Gilbert A. Woods, and my friend Newton Meacham, of Sandy Creek, Oswego county, N. Y., to be the executors of this my last will and testament, hereby revoking all former wills by me made.”
    The property of the deceased consisted of notes, bonds and mortgages of personal assets, together with about $700 worth of real estate.

      D. A. King and S. G. Huntington, for executor, appellant.

      C. O. Brown, for C. M. Woods and others, contestants, respondents.
   Haedin, P. J.:

So far as the payment and delivery of the assets to the widow embraced in the item of $17,101.52 found to have been paid to the legatees and received by them no question arises. The principal part of that payment seems to have been made by the executors delivering that sum of money, or assets taken in substitution for money by the widow with her assent, and she distributed to the seven sons $14,000 thereof, to wit, $2,000 to each of the seven sons, pursuant to an arrangement entered into shortly after the executors entered upon the discharge of their duties as such. When the seven sons received the $14,000 they respectively assented to the distribution thereof in the manner already stated. And they respectively entered into bonds by which they agreed to pay to their mother the widow, in semi-annual payments of interest, sums sufficient to yield her $500 a year. That arrangement seems to have been made under the advice of an attorney named John B. Watson, residing at Bioldand, then acting as the counsel for the parties interested in the estate. The distribution of the $14,000 and the incidents connected therewith, to some extent shed light upon the understanding of the legatees of the provisions of the will. By the terms of the will it was the duty of the executors, and they had the right to collect and turn into cash all the personal assets and securities of the estate and to pay therefrom the délpts and specific legacies. The more important question is in respect to the right and duty of the executors in regard to such funds as should remain in their hands after payment of the debts and specific legacies. From the provisions of the will it is apparent that the design of the testator was that his widow should during her life have the use of that part of the testator’s estate not specifically given or devised absolutely. We think it was the intention of the testator that the widow should have the use during her life of his real estate and whatever there remained of his personal estate after payment of the specific legacies named in the will, and the same was, viz.: To be used and enjoyed by her during the term of her natural life.” . The provisions of the will seem to cast upon the executors the imperative duty of collecting all debts and claims, and after turning the same into cash to deliver the same to the widow for her enjoyment during her natural life. The language of the will is quite, explicit in the twelfth provision thereof.. The testator says : “I hereby direct my said executors to collect all debts, dues, obligations, claims and demands which may be> found belonging to me at'the time of my decease from any and every and all person or persons whomsoever, or so much thereof as inay prove collectible, so soon as the same can be legally and conveniently done, and the proceeds and avails thereof to pay over and deliver to the person or persons entitled to receive the same according to the directions and provisions in this my last will and testament contained.”

In the eleventh provision he had already declared that the remainder of his personal estate was given unto hi-s wife, to be used and enjoyed by her during the term of her natural life.” Construing those two provisions together, we think it was quite obvious that it was the intention of the testator that the executors should deliver the rest, residue and remainder ” of his personal estate to the widow, to the end that she might have the use and enjoyment thereof during the term of her natural life. It therefore became the duty of the executors “to pay over and deliver to her the avails of the personal estate.” In reaching this conclusion we have also considered the phraseology of the will wherein the remainder of the estate, left at the close of the life of the wife, is given to the seven sons. The language is as follows, viz.: “And from and immediately after her decease I give and devise the same to my said sons William Woods, James Woods, Gilbert A. Woods, Chauncey O. Woods, John Woods, Challes Wesley Woods and Thaddeus Waite Woods, their heirs and assigns forever, to be equally divided between them, share and share alike.” By this provision it is obvious that they were not to take until the close of their mother’s life, nor was the property to be divided, “ share and share alike,” until the happening of her death. In the will no words are found creating a trust nor appointing a trustee; in no part of the will are the executors denominated trustees.

As before observed, we are of the opinion that it was the duty of the executors to gather in the personal effects and turn them into money, and pay over and deliver to the widow the same, to the end that she might enjoy and use the same during her natural life. The executors were not directed to invest the funds, and we think the direction to pay over and • deliver was imperative. (Flanagan v. Flanagan 8 Abb. N. C., 413 ; Smith v. Van Ostrand, 64 N. Y., 282; Billar v. Loundes, 2 Demarest, 591; In the Matter of Weppeler, Id., 626; Parsons v. Best, 1 Thompson & Cook, 211; Redf. on Surrogates [2d ed.], 426.) We think the case before us differs from Calkins v. Calkins (1 Redf., 337). In that case the language employed by the- testator was unlike that found in the will now before us. True, the wife Nancy was “ to have and to hold as long as, she shall live,” but the will contained no provision directing the executor to deliver and pay over to her, as found in the will now under consideration. This case is unlike those where the direction is to pay over the income to the person entitled to the life estate. In such cases it is obvious that the testator did not intend that there should pass into the hands of the life tenant anything more than the income of the estate. (Spear v. Tinkham, 2 Barb. Ch., 211; Covenhoven v. Shuler, 2 Paige Ch., 122.) In such cases the executor cannot discharge his duty by paying the fund over to the life tenant. (Livingston v. Murray, 68 N. Y., 485.) In such cases, before the executor is warranted in delivering the funds to the life tenant, he should exact security. (Livingston v. Murray, supra.)

In short, we find nothing in the provisions of the will before us indicative of an intent on the part of the testator that the executors should act as trustees during the life of the widow, holding the body of the estate in their hands as executors or trustees merely for the purpose of division to the remaindermen. We think, therefore, the construction given to the will by the learned surrogate was erroneous. Inasmuch as a further hearing must be had in the Surrogate’s Court, we deem it unnecessary to pass upon several minor questions discussed in the argument before us.

The decree of the surrogate of Oswego county must be reversed ■and a new hearing ordered in that court.

Boardman, J.:

With some hesitation I concur in brother Hardin’s opinion for the reasons given. I do so the more readily because the disposition ' of the matter made by the surrogate seems to me very unjust. The whole estate going into the executor’s hands was:

$23,008.52 in 1883 .............................. $23,008 52

It is conceded that $14,000 of these assets were paid by and through the widow to residuary legatees.... 14,000 00'

$9,008 52

The executor was also credited :

Schedule B.......................... $1,808 58

Schedule C.......................... 460 00

Schedule D......................... 509 38

Paid S. W. Woods, in Schedule E...... 478 00

Paid S. W. Woods, cows, Schedule E... 48 00

.Executors’ commissions............... 420 16

Sarah Woods, 17th finding............ 226 00

-:--- 3,950 12

Leaving an apparent balance of.............. $5,058 40

in the .executor’s hands to be accounted for. This may not be accurate, but it is near enough to illustrate what I have to say. Now the residuary legatees got, April, 1853, the above $14,000 on which they have paid but one year’s interest, and they have énjoyed such sums for a quarter of a century before they were entitled to it, by the conrtesy and consent of the executor and the widow. During all that time the widow was entitled to the interest on that sum as well as on the above balance of $5,058.40. The residuary legatees never paid it after the first year. The executor was never released from his obligation to pay it, especially if his payment of that sum to the widow, and through her to the residuary legatees, was, as the surrogate finds, wrongful and in violation of the terms of the will. Because the widow consented that a certain portion of1 the trust fund might be paid directly to the legatees, she did not waive her claim to the income of it so long as the assets remaining in the hands of the executor were sufficient therefor.

The legatees, in receiving said payments, recognized the widow’s right to interest upon the $14,000 during her lifetime, but did not pay or contribute to it except for the first year. The executor paid the above balance of $5,058.40, and much more to the widow, without their paying her all she was entitled to under the will. And now these residuary legatees wish to hold the $14,000 paid them in April, 1853, to be exempted from payment of interest thereon for twenty-four years, which, at seven per cent, would amount to over $20,000, or, at $500 per year, would amount to $12',000, and finally, to compel the executor to pay to them moneys which he has already paid to the widow in satisfaction of what they had agreed to pay her, as well as in satisfaction of his legal obligation and duty under the will. It is plain that such payments by the executor to the widow have more than exhausted the $5,058.40 balance in his hands, and that by such payments the legatees have been benefited in exemption from payment of interest to a far greater amount. The claim seems to me so palpably inequitable and unjust that, if possible, it should not succeed.

I think the surrogate might justly have held, as law, that the executor was bound to pay the widow the income of the whole residuary estate notwithstanding the payment of the $14,000 to the legatees, so long as the assets in his hands sufficed therefor, and that when it was exhausted the widow would be estopped, by her consent to such payment, from any further demand of interest from the executor. He' might have well held that the contestants, by their receipt of $14,000 in 1853, had received the value of their interest in the residuary estate, while the widow, who only received $5,058, or thereabouts, had received much less than she was entitled to under the will and under all the facts and contracts in evidence in this case. In equity and justice the contestants are not entitled to anything more out of the executor or the estate, beyond what they received in 1853, twenty-five years before they were entitled to receive the same.

So that I think, for this reason also, the decree of the surrogate should be reversed, and as the estate has no moneys with which to pay the costs, the contestants should be charged with the costs of this appeal and of the accounting. •

Follett, J., concurred with opinion of Hardin, P. J., and with memorandum of Boardman, J.

Decree of the surrogate of Oswego county reversed, with costs and disbursemen ts of the appeal to appellant, payable by respondents personally, and costs of the proceedings to abide the final award of. costs by the surrogate.