text:
    Henry Tefft et al., Resp’ts, v. George M. Bissell, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886.)
    1. False Pretenses — Ex delicto — Wheh action must pail.
    In an action for obtaining money under false pretenses. Held, tbat if the defendant sold logs to plaintiff and received money on them in good faith, believing that he owned them and had a right to sell them, then he did not obtain the money from the plaintiffs fraudulently, but under mistake of fact, and the action being ex delicto must fail.
    2. Referee — When ms CONCLUSIONS will not be disturbed.
    When a referee has reached a determination from all the-evidence, it will not be disturbed by an Appellate Court unless good reason is shown to dissent from the conclusion.

      R. Armstrong, for resp’t; Waldo & Grover, for appl’t.
   Landon, J.

The questions involved are mainly of fact. If the defendant sold the" logs to the plaintiffs and received from them the $500, upon them in good faith, fully believing that he owned and had the right to sell them, then he did not obtain the money from the plaintiffs fraudulently, but under a mistake of fact, and this action, being ex delicto, would fail.

If the referee believed the version of facts given by and in behalf of the defendant, then he ought to have found for the defendant. The defendant now insists that the uncontradicted evidence entitled him to such a finding, and that it was error for the referee to refuse it.

Defendant cut the logs in question upon the land of Durant between July 1, and October 25,1881, without permission from Durant. Defendant claimed that’ one Butler gave him permission, and that he believed and was justified by the circumstances in believing that Butler had the right, by virtue of a contract between Butler and Durant, to give it. Butler did have contracts with Durant under which Butler had the right to cut logs upon Durant’s land in the years 1879 and 1880; and the defendant under Butler had during those years rightfully cut logs there.

Butler’s first contract with Durant was in writing, and was by its terms limited to 1879. His second contract, with a slight alteration in price, seems to have been an oral extension of the written contract for 1880, though it was not so expressly stated.

In the fall of 1880, defendant applied to Butler for leave to cut the spruce logs still remaining uncut upon the lot in question, and Butler told him “ he could have all the right to cut that I had,” and defendant claims that his right to cut the logs in 1881 was in good faith believed by him to continue under Butler in like manner as in 1879 and 1880.

Confidence in the defendant’s assertion that he regarded the somewhat equivocal permission given to him by Butler as sufficient authority to cut the logs in 1881, is shaken by the fact that before he commenced cutting them, he applied to Hall, the agent of Durant, for the privilege and Hall refused it. The defendant claims that his request of Hall was confined to the hemlock timber, and did not relate to the spruce winch Butler’s contract with Durant had embraced. Hall testified that defendant “ asked me if I would sell the timber, I told him I would not, Durant had forbidden my selling any in that vicinity.” Defendant is next called, and although he testifies that it was only the hemlock he spoke to Hall about, he does not deny that Hall told him that Durant had forbidden his selling any. Moreover, Hall was then posting notices .for the sale of the lots by Durant, and this defendant knew, and probably knew it was a reason why' no more timber was to be cut.

Other testimony was given. It is inferable that the referee came to the conclusion that the defendant cut the logs in spite of the refusal of permission by Hall, and that the conversation between Butler and defendant was afterwards seized upon, with intent to give it an effect that neither Butler nor defendant at the time understood or intended it to have.

In a case of this kind muck must depend upon the estimate the referee gives to the candor and veracity of the witnesses. It must be admitted that the defendant, upon the printed testimony, seems to have a very plausible defence. But the referee has discredited it, and we can see that there is some reason to suspect that it was only verbally true, and not true in substance.

The claim of the defendant that Butler under Ms written and oral contract with Durant had the right to continue chopping in 1881, rests upon a construction which probably Avas not within the intention of either party to the contracts. The written limitation to 1879 in the first contract was orally extended to 1880, by the subsequent oral contract. It does not appear that Butler ever represented to defendant that his, B.’s, right to cut, extended beyond the “ lumber season ” of 1880. It was the duty of the referee to determine whether Durant gave to Butler an indefinite extension of time, and this was a matter of intention implied, if not expressed. The referee has drawn the inference from all the facts, and we see no reason to dissent from his conclusion.

Error is alleged in the admission of testimony. The referee expressly held that he did not receive what Butler said to Hall as a fact, but for the purpose of showing that what he said was subsequently communicated to the defendant. The testimony was properly received for tMs purpose, but the defendant contends that the referee evidently disregarded his OAvn ruling, and used the testimony as evidence of the fact stated by Butler, and thus committed an error. But Butler noAvhere testifies that he actually gave to defendant permission to cut the logs, — but instead, “ all the right that I had,” and the referee may have concluded that Butler sought to convey, or the defendant sought to create, a false impression by the words truthfully testified to.

The judgment must be affirmed with costs.

LEARNED, P. J. and Bockes, J., concur.


source: Caselaw Access Project

author: Learned, P. J. Landon, J.

license: Public Domain

text:
    Clara Belle Doughty, an infant, by Guardian, etc., Appl’t v. Collins Doughty et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)
    Evidence — Competency of — Code Civ. Pro., § 829 — Partition — Wild.
    An action of partition involved tlie validity of the will of one P. P.D., the question being as to his competency. The alleged will contained a clause, “ My daughter, H.E.D., now wife of D.J.H., has already received from her share §285.” She was called as a witness of defendants, and this clause read to her. She was asked what she knew about it. Objection was made that she was incompetent to testify under Code Civ. Pro., § 829. The objection was overruled. Held, that the evidence being introduced to show the forgetfulness of the father when he made the will, its relevancy therefore depended on its .being a denial by her of an act said to have been done by him. That the plaintiff having given no evidence as to the fact of the gift, excepting the production of the will, the evidence ivas improperly admitted.

      James Lansing, for appl’t; C. A. Waldron, for resp’t.
   Learned, P. J.

This action of partition really involved the validity of the will of Platt'P. Doughty. The question was as to his competency, and the matter was closely contested. The alleged will contained a clause, “ My daughter Helen E. Doughty, now wife of David J. Hegeman has already received from her share $285,” Mrs. Hegeman was called as a witness for defendants. The clause was read to her. She was ashed what she knew about it. Objection was made that she could not testify under § 829, she was herself a party and interested to defeat plaintiff’s claim to the action. The objection was overruled. She testified “ I know nothing of it, I never had it,” the plaintiff moved to strike out the answer for the same reasons and this was refused, and exceptions taken.

That was evidence by her that she had never received during her father’s life-time $285 of his estate. It was introduced to show the forgetfulness of her father when he made the will. Its relevancy therefore depended on its being a denial by her of ap act said to have been done by him. If it be said that the $285 might have been paid by some one other than the father the answer is by her testimony, that neither he nor anyone else, paid it from, his estate. If she could not be permitted to testify that her father never paid her the $285, she could not evade the prohibition by testifying that no one paid it to her. If she had testified “ I never had it from any one except my father,” the testimony would have been unobjectionable and useless.

If this were an appeal from a surrogate’s decree, probably we might overlook this matter as unimportant. Sect. 2545. But it may have influenced the referee to know that the testator had been in error as to the alleged fact.

The plaintiff had given no evidence as to the fact of the gift excepting the production of the rvill. So that this is not a case of contradicting evidence already given by the other side. Pinney v. Orth, 88 N. Y., 447.

It seems to us that this evidence was improperly admitted.

Landon, J.

I concur in the above. I also think that this will should have been held valid upon the facts. It was the testator’s will, drawn as dictated by him, and notwithstanding the draftsman undertook to influence him to change some of its provisions, he had the force of will, understanding, and capacity to resist the influence. He was strong of mind even to obstinacy in defence of his own opinions and rights. He sometimes dozed, it may be, when his attention was not aroused, but when he made this will his mind was clear, his faculties alert, his recollections good, his purpose firm, and his control over himself and his draftsman commanding. The evidence showing his general capacity and soundness of mind is so preponderating that it should have been controlling.


text:
    Johan J. Becker et al., Resp’ts v. Walter S. Church,Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)
    1. Summary Proceedings — Answer in — Limited to denial op allegations CONTAINED IN PETITION — CODE ClV. PRO., § 2244.
    One B. was, on July 5th, 1886, tenant from year to year of C. On that day a paper was executed between the parties, which purported to change such tenancy to a tenancy at will. This paper was obtained by fraud. In May, 18S3, 0. served a notice to quit on B., pursuant to the statute to terminate a tenancy at will, and proceeded to take summary proceedings thereunder to dispossess B. Held, that Code Civ. Pro., § 2244, allows a person against whom summary proceedings are taken, to put in an answer denying generally the allegations of the petition, or specifically any material allegation. The party answering is limited to denials, and there is no authority for affirmative allegations.
    :2. Same — Fraud in obtaining a lease cannot be shown.

      Held, That fraud in obtaining an alleged lease is not an issue to be tried in summary proceedings. Landon, J., dissenting.
    3. Equity — Action to set aside instrument obtained by fraud will BE MAINTAINED.

      Held, That an action in equity will be maintained to set aside and cancel an instrument affecting the title to land when obtained by fraud.
    4. Same — Injunction.

      Held, That as part of the remedy, actions or proceedings on the fraudulent instrument will be enjoined,

      W. & G. W. Youmans, for resp’ts ; Rosendale & Hessberg, for appl’t.
   Learned, P. J.

I assume for the present, that on and before July 5,1882, Becker was tenant from ye'ar'to year of Church; that on that day a paper was executed between the parties which purported to change such tenancy to a tenancy at will; that such paper was (as the referee finds, obtained from Becker by fraud.

Thereupon in May, 1883, Church served a notice to quit upon Becker pursuant to the statute to terminate a tenancy at will; and proceeded to take summary procedings thereunder to dispossess Becker.

Now upon those proceedings that paper would have been proof against Becker that he was such tenant at will. Could he in those proceedings have shown that that paper was obtained by fraud ? Is he therefore forbidden to maintain this action which is brought both to set aside and cancel that paper and also to restrain the summary proceedings ?

Now I suppose that an action in equity will be maintained for the purpose of setting aside and cancelling an instrument affecting title to land and obtained by fraud. Pomeroy’s Equity, sections 110, 899. Story’s Equity, sections 694, 700. Potter’s Willard’s Equity m. p. 304.

As part of the remedy actions or proceedings or the fraudulent instrument will be enjoin edi

But could the County Judge try the question of fraud in the obtaining the instrument ? • He has jurisdiction to pass on the legal title only, and not on an equitable title. Terret v. Cowenhoven, 11 Hun, 320; Ainslee v. Howlett, 13 Hun, 138.

This latter case was affirmed 76 N. Y., 576. And the decision there (made by only four out of seven judges) goes to the point that the defendant by alleging facts showing that the so balled lease was void for usury, set up a defence that denied the conventional relation of landlord and tenant, and that such an issue should have been tried by a jury.

Now if we look at the Code, section 2244, it will be seen that the person against whom summary proceedings are taken may put in an answer, denying generally the allegations or specifically any material allegation. He is therefore limited to denials, and there is no provision for affirmative allegations. Suppose, .then, that the petitioner alleged a tenancy at will and the respondent denied it. On the trial of that issue, could the respondent have been permitted to show that the alleged lease was obtained by fraud, and was therefore voidable; not void, :as in a case of usury ? I find no case where it has been held .that any question,, such as here arises, can be tried in summary proceedings.

It seems to me then that, if the alleged instrument was obtained by fraud, as it affected Becker’s title to land, he might maintain an equitable action for its cancellation; and as a part •of the relief therein might restrain proceedings upon it. Nor -do I think that fraud in obtaining an alleged lease is an issue to he tried in summary proceedings.

As my Brother Bockes concurs with me in the former of these .two propositions, the judgment is affirmed with costs.

Landon, J.

This is an appeal from a judgment entered upon the report of a referee, granting an injunction restraining .the defendant from certain summary proceedings instituted by him to remove the defendants from certain premises in the town •of Berne, by reason of the expiration of the term of tenancy. .Four acres of the premises are the same which we have considered in the case of Church v. Schoonmaker, and were held by plaintiff subject to the rents reserved in the Post lease of 1795. The other portion consists of one acre adjoining the Post parcel. 'This acre had originally belonged to Stephen Yan Rensselaer, had been leased by him to one Kast, and in 1842 was by deed -conveyed by Kast to Van Rensselaer. At that date Paul Settle was occupying the Post four acres as tenant of Van Rensselaer End it .seems he went into possession of the Kast parcel as tenant hut without any written lease. The Post parcel was upon one side of a creek, and the Kast parcel on the other side, directly opposite. The Post parcel had been known and used as a mill lot; and when Paul Settle went into the occupation of the Kast parcel, he built a new mill upon the Kast parcel, and the old mill went to decay or was torn down. Thereafter both parcels were used in part as a mill lot.

The term of sixteen years mentioned in the Post lease of 1795, expired in 1811, but thereafter, without any written renewal of the lease, the Post parcel was occupied under the same terms as to rent until sometime before 1842, when the rent was raised to $60. After Paul Settle went into possession of both parcels he paid rent at the rate of $60 per year without any specification of the amount charged upon either parcel.

In 1851, Paul Settle conveyed his interest in both parcels to Edward Settle, who continued to occupy and pay the same rent; he paid rent in full “ on said lands,” as the referee finds, up to January 1, 1860. The referee finds that it does not affirmatively appear from whom Settle derived title to the Kast parcel, or by what tenure he held it.

It is apparent, however, from the facts found by the referee, that both Paul and Edward Settle held the Kast parcel under Van Rensselaer and as his tenant, and, further, that the rent of both the Kast and Post parcels was sixty dollars per year.

On the 27th of March, 1860, Edward Settle conveyed both parcels to the plaintiff by quit claim deed, both parcels being separately described, the Post parcel being subject to the rents in the Post lease, but no mention of tenancy being made with respect to the Kast parcel. The referee finds that, on the 5th day of July, 1882, the plaintiff did not know the amount of rents reserved in the Post lease and did not know that any rents were reserved upon the Kast parcel. The rent on the 5th day of July, 1882, had remained unpaid from January 1,1860. Church became the grantee of the Van Rensselaer title February 21, 1882.

In May following Church agreed to take, and the plaintiff agreed to give, $1,200. “ for all arrears of rent.” The plaintiff paid Church $1,008.75 upon this agreement July 5, 1882.

Upon these facts no question of adverse title or of champerty can arise. Becker by paying $1,008.55 upon “ all arrears of rent,” attorned to Church and admitted that he had held under the Van Rensselaer’s and now held under him. The plaintiffs’ quit claim deed was not inconsistent with the tenancy, and when rent was demanded of him he agreed to pay it and did. The referee does not find that the $1,008.75 was paid under a mistaken impression that it referred only to the Post parcel. The plaintiff testifies that when the $1,200 was agreed upon “ there was something said concerning that should be all the claim against tbe whole place.” The plaintiff also told Church that he would pay his rent thereafter, there would be no more trouble.” Since he was to pay rent thereafter, it probably did not occur to him that it made any difference whether he paid the $60 per year upon both parcels or.upon one of them.

We ought not, in support of the judgment, to presume that the referee found a fact which the evidence will not justify.

The referee has rejected as fraudulently procured the paper executed by the plaintiff at the time he paid the $1,008.75. This paper purported to change the tenancy from year to year to a tenancy at will. We see no reason to differ from the referee'in iiis finding of fact in this respect. The effect of it is to leave the tenancy from year to year existing in the same manner as if no paper had been executed. But such tenancy was not terminated by the service of the notice in May, 1883, requiring the plaintiff to quit the premises one month thereafter. Hence the summary proceedings could not be sustained. We have discussed the case on the merits because the case of Becker v. Church, herewith argued, requires it.

But this was an objection which could have been taken in the proceedings themselves. The invalidity of the paper purporting to change the nature of the tenancy could have there been litigated. The People v. Howlett, 76 N. Y., 574. The court will not by injunction restrain summary proceedings unless the tenant has some equity or defence of which the county judge has no jurisdiction. Knox v. McDonald, 25 Hun, 268; Jessurun v. Mackie, 24 id. 624; S. C. 86 N. Y., 622; Bradwell v. Holcomb, 4 Civ. Pro. Rep. 159.

Here all the facts insisted upon by plaintiff would have been competent as evidence in support of the issue before the county judge and if error had been committed, the remedy was by appeal.

The judgment should be reversed, new trial granted, reference discharged, cost to abide event.

Judgment affirmed with costs upon opinion of LEARNED, P. J. and Bocees, concurring.


author: Learned, P. J.

text:
    Stewart Maxwell, Resp’t, v. Horace Inman, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)
    Chattel moetgage — acknowledgment — cebtified copies of — hot evidence OF'EXECUTION — CODE ClV. FBO., § 934.

    The defendant offered in evidence a paper certified by the town clerk to be copy of originals on file. The originals of which a copy was thus certified, were an alleged chattel mortgage, and an alleged acknowledgment thereof. Held, that a copy of a chattel mortgage certified by the town clerk, is no proof of the execution of the mortgage, because no proof of such execution need be on the instrument in order to require the town clerk to file it.

      Held, also that there is nothing in the statutes authorizing the filing of the acknowledgment of a chatttel mortgage or the certifying a copy of such acknowledgment.

      Stover & Nesbit, for resp’t; F. J. Maxwell, for appl’t.
   Learned, P. J.

To maintain Ms case tbe defendant offered in evidence a paper certified by tbe town clerk to be a copy of originals on file. Tbe originals (of wMcli a copy was thus certified) were an alleged chattel mortgage and an alleged acknowledgment thereof. Tbe defendants objected that tMs was not evidence of tbe execution of the instrument.

Sect. 934 of the Code Civ. Pro. is to tbe same effect as 1 R. S. m. p. 350, sect. 16 (1 Edm. 323). There is no change. And this provision of the Revised Statutes was in force when Bissell v. Pierce, 28 N.Y. 252 was decided.

It, therefore, did not modify or give greater effect to the provisions of Chap. 279, Laws 1833, Sect. 4. See 7th. Ed. Rev. Stat. p. 2250.

Now it was held in that case and again in Sunderlin, v. Hyman 17 Sup. Co. (10 Hun) 493, and in Fellows v. Hyring, 23 How. 231, that a copy of a chattel mortgage certified by the town clerk was no proof of the execution of the mortgage. And this is necessarily so, because no proof of such execution need be on the instrument in order to require the town clerk to file it. Thus the case is different from that of conveyances of land.

Nor is there anything in the statutes authorizing the filing of the acknowledgment of a chattel mortgage, or the certifying a copy of such acknowledgment. It is otherwise as to deeds, 1 R. S. m. p. 760, sect. 263, 7th. Ed., Rev. Stat. p. 2220.

The town clerk has only to file any paper which appears to be a copy of a mortgage. If his certificate of a copy thereof is evidence, then the copy filed has more effect than the mortgage itself. Of course the Original of wMch the town clerk certifies a copy, is the paper in his office. And tins itself may be a pretended copy.

Sect. 934 of the Code Civ. Pro. is a general provision as to all papers, just as the corresponding provision was. 1 R. S. m. p. 350, Sect. 16. But the Stat. of 1833 specially provided as to the effect of certified copies of chattel mortgages, or of copies of chattel mortgages. That statute has. been construed, and construed correctly, and should be followed.

For this error. — Judgment reversed, new trial granted, costs to abide event.

LANDON, J., concurs.


author: By the Court.

text:
    John M. French, Resp’t v. Emma J. Kenworthy et al., Appl’ts.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886).
    1. Moktgage — Foreclosure and Sale — motion to set aside sale for ALLEGED FRAUD — REMEDY BY ACTION.
    A judgment of foreclosure has been rendered in this ease, and a sale thereunder took place December 18th, 1880. Two infants were parties, and appeared by guardian ad litem. The proceedings were regular. The mother of the infants bought at the sale and gave a mortgage on the premises which was subsequently assigned to the plaintiff, who has also taken another mortgage from her on the premises.
    After a lapse of six years, a motion was made by the general guardian of the infants, and the infants themselves, to set aside the sale on the ground of some alleged fraudulent arrangement between the plaintiff’s attorney and the mother, as to the sale. This fraud is denied by the plaintiff. The guardian ad litem does not appear. The papers were served personally on plaintiff without the State. Held, that too long a time had elapsed since judgment and sale to make it proper to set aside the sale on motion. The parties should be left to their remedy by action.
    2. Same — Service of papers without the state.

      Held, that it was very doubtful whether the court should hear a special motion, upon papers served on a party without the State.
    3. Same — Infant parties must act by guardian ad litem.

      Held, that if the motion is in an action the guardian ad litem must act.

      Newkirk § Chace, for resp’t; Wm. H. Silvernail, for appl’t.
   By the Court.

A judgment in foreclosure was had in this case, and a sale thereunder which took place Dec. 18, 1880.

Two infants, Effie B. Kenworthy and Charles A. Kenworthy, were parties and appeared by guardian ad litem,. The proceedings were regular.

Emma J. Kenworthy, mother of the infants, bought at the sale, and gave a mortgage on the premises, which was subsequently assigned to plaintiff. Plaintiff has subsequently taken another mortgage from her on the premises.

Now, after the lapse of nearly six years, a motion is made by the general guardian of the infants and the infants themselves, to set aside the sale on'the ground of some alleged fraudulent arrangement between the attorney for the plaintiff and Emma J. Kenworthy, as to the sale. This fraud is denied by the plaintiff.

The papers on motion were served personally on plaintiff out of the State.

The guardian ad litem of the infants does not appear.

The court denied the motion without prejudice to the right of the infants to bring on action.

Since such denial one of the infants, Effie B. (now of age), has brought such action.

We think the motion was properly denied. Too long a time has elapsed since the judgment and sale to make it proper to set aside the sale on motion. The parties should be left to the remedy by action.

It is very doubtful whether the court should hear a special motion upon papers served on a party out of the State. The plaintiff had an attorney in the aótion, though he is now dead ; and it would be unreasonable to call a person from another State to oppose a motion in an action which was ended six years before.

Again, if the motion is in an action (as this is) then the guardian ad litem must act. If the action is sufficiently in existence for the guardian ad litem of the infant’s interests.

The order must be affirmed with $10 costs and printing disbursements as to Effie B., and the appeal dismissed with $10 costs as to Charles A., such costs and disbursements to be paid by the general guardian personally.


author: Landon, J.

text:
    Laura E. Thayer, App’lt, v. Stephen Gile, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886.)
    1. PléadiNQ — Pacts may be stated according to their legal effect— Exception.
    In. an action brought for damages for the conversion of plaintiff’s hay by the defendant. Held, that it was good pleading to state the facts according to their legal effect, unless the pleaderso narrates the facts as to show that, he is mistaken as to their legal effect.
    2. Same — Conversion — Allegation of, is statement of fact not of a CONCLUSION OF LAW.

      Held, that the allegation of .conversion was not a statement of a conclusion of law, but a statement of fact.

      W. D. Silvernail, for appl’t. B. C. Strait, for resp’t.
   Landon, J.

This complaint is very crudely drawn. It is redundant in statement of immaterial matters, and it lacks definiteness and certainty with respect to material matters. Nevertheless it states in substance — That on the 17th of March, 1886, the plaintiff as tenant in common with the defendant was in possession of a quantity of hay (what was remaining of 40 tons) which the defendant then wholly converted to his own use, to plaintiff’s damage, etc.

How large a quantity, what share the plaintiff owned, and its value are left uncertain. Still, since the defendant converted it all, he converted the plaintiff’s share, and thus injured her to the extent of its value. There is an immaterial allegation of .a demand of one half, but that is not an allegation that the plaintiff owned one half, also of a division, but the plaintiff could take her own share without demand of the defendant. The material allegation is, the defendant’s conversion. It is still good pleading to state facts according to their legal effect, unless the pleader so narrates the facts as to show that he has mistaken their legal effect, which is not quite the case here. Thus it was not necessary for the plaintiff to allege the details from which her tenancy in common, or possession, or the conversion by the defendant would follow as their legal effect. These details are rather in the nature of the evidence to be adduced upon the trial to support these three allegations.

A complaint must contain a plain and concise statement of the facts, no statement can be plainer or more concise than the statement that the defendant converted the plaintiff’s hay. If the plaintiff gave a narrative of all the acts performed by the defendant in order to accomplish this conversion, it might be far from plain'whether any conversion was in fact accomplished. The details of the transaction may very much obscure the fact of conversion. Since the share of the plaintiff is not stated, it may be that in order to establish conversion the plaintiff will have to prove the loss, sale or destruction of the entire hay. Lobdell v. Stowell, 51 N. Y., 70: Osborne v. Schenck, 83 id., 201; Dear v. Reed, 37 Hun, 594.

By using the word “ converted ” the plaintiff has concisely condensed in a single word the notice to the defendant that whatever it may be necessary to prove, she intends to prove it.

It is 'objected that the allegation of conversion is a conclusion of law and not of fact. Ordinarily the narration of a transaction, whether by stating all the details of it, or by stating these details according to their legal effect, is the narration of a fact.

A statement of a conclusion of law is usually a statement of the right or liability flowing from certain facts. Thus A. lent B. a dollar, is the fact. B. owes A. dollar is the law. A. converted B.’s hay, is a fact; B.’s liability to A., the law. But from a given state of facts, the law will pronounce that A. converted B.’s hay. Is the statement of the conversion therefore the statement of a conclusion of law ? It is rather the statement of a fact, ascertained by the rules of law. From the facts given the law presumes the fact required, but the presumption is only a rule of evidence, and by the application of that rule, the fact required is determined. The rule of evidence by which the fact sought is found, is not the fact itself.- The rule is the instrument or help through which the fact sought is discovered. If the rule is called, a conclusion of law, then by means of the conclusion of law the conclusion of fact is established.

Judgment reversed with costs of appeal and of court below.

The defendant may have usual leave to answer.

Learned, P. J., and Bockes, J., concur.


text:
    John Brotherson, Resp’t, v. John Consaulus, as surviving executor, etc., of Emanuel Consaulus, deceased, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886.)
    1. Appeal — Application op payments — Cokeection op eeeobs in— Accounting.
    Where in an accounting, certain errors in the application of payments were not apparent on the face of the findings of the lower court, but appeared from computation submitted by counsel for the respective parties. Held, that they were sufficiently apparent to justify their correction by an Appellate Court.
    2. Costs — Retaxation op — Appeal pbom obdeb fob, held final.
    An item having been allowed as costs under an order for retaxation, and a party having appealed therefrom. Held, that he had exhausted his remedies.
    3. Same — Statute op Limitations — Cubbent Account.
    As to allowance of costs on special term orders made more than six years before the commencement of this action, it appearing that a judgment or order granting costs was obtained by either party against the other, the amount thereof was regarded by both parties as an additional item in the account current between them. Held, that they were not barred by the Statute of Limitations.
    4. Amendment — When matteb op poem.
    After trial, and before judgment, the plaintiff was allowed to amend his complaint to conform to the proofs and the decision ; and the defendant was also allowed to amend his answer, but not to make it inconsistent with the original answer. Held, that the plain purpose of this was to have the pleadings state the issue disposed of, not to allow new ones to be made. The defendant having so amended his answer as obviously to raise an issue not tried, the court struck out so much of his answer as did this. Held, that this was a mere question of form, and in no way involved a substantial right.

      Edwin Quaekenbush, for resp’t; E. F. Bullard, for appl’t.
   Landon, J.

Tbe appellant concedes that tbe main question was as to tbe application of payments. Tbe respondent concedes that there is an actual error of $6.73 allowed tbe respondent as of date Aug. 15, 1871, making with interest as of Oct. 20, 1885, $13. which ought to be deducted.

It seems clear from the order of Aug 15, 1871, that the Hall judgment of $319.21 must be applied as of that date with interest from July 8, 1865, — the interest was $136.36. This judgment seems to have been applied as of date July 8, 1865. To apply it of the latter date would be to apply it upon the interest upon plaintiff’s demands, and would give the plaintiff a new rest from which to compute interest without changing his principal. To rectify this error it is necessary to allow the appellant a credit of $136.36 with interest from Aug. 15, 1871, to Oct. 2, 1885, amounting to $261.29. Those errors are apparent from the computations submitted by counsel for the respective parties, and though not apparent upon the face of the findings of the court, we think they are sufficiently made to appear to justify their correction. We have examined other alleged errors in application and computation, but we cannot find anything in the findings of the court, or in- the request submitted by the appellant for findings to enable us to determine whether-any such alleged errors exist.

The appellant objects to an item of $60, allowed as one of the items of costs, by an order of retaxation of several bills in 1874. The defendant exhausted his remedies by appeal from that order. Besides he accepted such part of it as benefited him. At this late day the order of retaxation ought not tobe reopened collaterally.

The plaintiff had nine special term orders, in each of which there was an allowance to him of ten dollars costs. All of these orders were made more than six years before the commencement of this action. We think the trial judge was right in holding that they were not barred by the statute of limitations. Whatever the rule might be in case there had been no mutual accounts, it is unnecessary to decide, but the evidence in this case would justify the finding that as a judgment or order granting costs was obtained by either party against the other, the amount thereof was regarded by both parties as an additional item in the account current between them.

The judgment should be modified as of date October 20, 1885, by deducting therefrom $274.29 and as so modified, affirmed without costs.

The order appealed from should be affirmed with $10 costs and printing disbursement. After trial and before judgment the court permitted the plaintiff to amend his complaint so as to conform to the proofs and the decision, and also allowed the defendant to amend his answer but not to make it inconsistent with the original answer.

The plain purpose of this was to have the pleadings state the issues disposed of, not to allow new ones to be made. The defendant so amended his ansiver as obviously to raise an issue not tried, and the court struck out so much of his answer as did this. This was right, otherwise further trial Avould have been necessary. It seems to have been a mere question of form and in no way involved a substantial right.

LeaiíNED, P. J., and Bocees, J., concur.


text:
    City of Cohoes, App’lt, v. James Morrison, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886).
    1. Judgment — When conclusive as evidence.
    The City of Cohoes sued the defendant to recover the amount of a judgment which the city at the suit of one S. was compelled to pay him on account of an injury suffered by reason of a wrongful obstruction of the street, which obstruction was, as between the city and S., the act of the city. Upon the theory that this defendant was the author of the obstruction the city gave him notice of the action and requested him to defend. He did not comply. In this action the judgment roll in the action between the city and S. was given in evidence. Held, that to make that judgment conclusive evidence between the city and the defendant, the city must establish the fact that the defendant was the author of the act whereby S. was injured.
    2. Estoppel — Effect of, ok same issue in s ubsequent suit with another PARTY.
    This defendant erected over the bank of the E. canal a tramway. Between the bank and the tramway there was a clear space of twelve feet. The bank belonged to the State, and there was no evidence showing that it was accepted by the city as a street at the time of erection of the tramway. The city assuming control over the bank graded and paved it, and in so doing raised its level two feet. The evidence tended to show that if there had been twelve feet of clear space S. would have escaped injury. Held, that the issue as to whether the bank was a public street was open to contest in this action, that the fact that in the action by S. the city was estopped from denying the fact, did not operate against the right of this defendant.
    3. Dedication of land as public street — must be followed by acceptance.

      Held, that in case of a dedication of the bank to the city by the State as a street, it was necessary, in order for the lawful establishment of a street, that the city’s acceptance should appear.

      4. Same — Acceptance subject to burden.

      Held, that an acceptance of the bank as a street, by the city, after the building of defendant’s tramway, was an acceptance subject to this burden.
    5. Public streets — Duty of city in regard to their safe condition.

      Held, that the city was bound to keep its public streets in a reasonably safe condition for travel, and should not invite the public to use them before it had placed them in that condition.
    P. D. Niver, for appl’t; Matthew Male, of counsel. Earl L. Stimson, for resp’t, Esek Qowen, of counsel.
   Landon, J.

The city sued the defendant to recover the amount of a judgment which the city at the suit of one Sewell was compelled to pay him, because of the injury done to Sewell by a wrongful obstruction of the street, which obstruction was as between the city and Sewell, the act of the city. The city, upon the theory that this defendant was the author of the obstruction, gave the defendant notice of the action and requested him to defend it, but this he failed to do. The judgment roll in the action between the city and Sewell was given in evidence in this action. To make that judgment conclusive evidence between the city and the defendant, the city must establishthe fact that the defendant was the author of the act whereby Sewell was injured. City of Rochester v. Montgomery, 72 N. Y., 65; Village of Port Jervis. v. First National Bank, 96 id., 556; The Mayor of Troy v. Troy & L. R. R. Co., 49 id., 677; City of Chicago v. Robbins, 2 Black, 418, 4 Wall., 657.

If that fact was in issue and determined in the acd .1 of Sewell v. The City, then the judgment in that action w uld establish it here. But it was not in issue in that action; Sewell only sought recovery from the city, and it was not needful for him to establish that the defendant was the primary author of the act which injured him. At least an inspection of the judgment roll in that action fails to disclose the existence of that issue, and it is not shown by evidence aliunde that it was therein determined. It was necessary, therefore, for the city to show by proof outside of the judgment roll, that the defendant was the author of the act injuring Sewell.

Now, the proof is that the defendant did erect over the bank of the Erie canal, in 1868, the tramway between which and his great vehicle Sewell was caught and crushed in 1874, (see Sewell v. Cohoes, 75 N. Y., 45). This canal bank was the property of the State upon which the public were accustomed to travel. There is no evidence that it was accepted as a public street by the city at the time the tramway over it was erected. The tramway was so erected as to leave twelve feet clear space between it and the surface of the canal bank beneath it.' In 1873 the city appropriated the canal bank as a public street; whether rightfully or not as between the city and the State was immaterial to the issue between the city and Sewell (75 N. Y., 45). The city assuming control and authority over the canal bank, graded and paved it, and in doing so, raised its surface two feet, so that the twelve feet clear space beneath the tramway was reduced to ten feet. The evidence tended to show that if there had been twelve feet of clear space, S.ewell would have escaped injury.

Upon these facts the city could not resist the conclusion that its acts caused this tramway to be injurious to Sewell. It failed therefore to prove the facts necessary to bind the defend-an by the judgment in favor of Sewell, unless the law charged the duty upon the defendant, when the city appropriated the canal bank as a public street, to remove the tramway. The city had not prior to Sewell’s injury required its removal.

The complaint in the former case alleged, and the answer denied, that the tramway was over a public street. It is claimed in behalf of^ the city that that issue having been made'and determined in the former action is not open to inquiry here. But in order to Sewell’s recovery, it was only needful for him upon that issue to show that as between himself and the city, the city was estopped by its action to deny that the street was a public street. The city raised the objection upon the evidence in that action that it had not been shown that the city had lawfully acquired and established the street, but it was held that it was not necessary to the plaintiff’s recovery to proceed so far. The court of appeals in affirming the judgment remarked that the city “ cannot escape liability, for the alleged reason that it had no control over it and the land belonged to the State (75 N. Y., 52). It certainly accords with justice that the defendant here should be allowed to contest an issue material to his defense in this case, namely, whether in fact the place in question was a public street as between himself and the city. This issue, had he assumed the defense of the city in the former action, he could not have brought to a decision. The city was there estopped by acts in which this defendant had not participated.

The issue in the former action is broad enough either to cover the issue raised here, or to exclude it. The issue determined is consistent either with a lawful or an unlawful act as between the city and this defendant. The judgment, therefore may or may not have determined the issue now raised by this defendant, and we cannot know except by extrinsic evidence whether it did or not. The judgment therefore leaves the issue open to further contention. To this effect are the authorities. Russell v. Place, 94 U. S., 606; Davis v. Brown, id; 423; Cromwell v. County of Sac, id., 351; Campbell v. Rankin, 99 id., 261; Doty v. Brown, 4 N. Y., 71; McKnight v. Devlin, 52 id; 399.

The judgment failing to show that the locus in quo was a public street as between the city and the defendant at the time the tramway was erected by the defendant, the construction of the evidence most favorable to the city is, that after the tramway was erected, it accepted a dedication from the State.

The city contests the conclusion that a street did not exist before the tramway was erected. The evidence shows that the public had before the erection of the tramway, traveled over the canal bank at this point in order to reach a bridge crossing the canal. Probably this travel was by the implied license of the State, a license revocable at pleasure. But if we assume a dedication by the State, we must find an acceptance by the city before we can hold that a public street was lawfully established, and there are no acts upon which to base an acceptance until the city entered and established a new grade. An acceptance must be of the dedication as made; the acceptance does not enlarge the dedication. When the acceptance was made it was of the street with the defendant’s tramway over it. The city accepted the dedication subject to the burden. Fisher v. Prowse, 2 B. & S., 770: State of New Jersey v. New Jersey Society, 15 Vroom, 502; City of Oswego v. Oswego Canal Co., 6 N. Y., 257.

The defendant so far as appears from the evidence, was the owner of the tramway. The State could abandon its own claim, but could not without the defendant’s consent or upon compensation or by proceedings in which he might have an opportunity to be heard, extinguish his. The city occupied no better position, and it does not appear that before the injury to Sewell, it desired to hold the street otherwise than in subjection to defendant’s claim.

The city contends that the judgment in the former action is conclusive tbat it did not accépt the street subject to the obstruction, because if it had, Sewell could not have recovered, as he was one of the public which had accepted the dedication, and thus accepted its burden. The answer seems to be that the city is bound to keep its public streets in a reasonably safe condition for travel, and should not invite the public to use them before it had placed them in that condition.

Judgment affirmed with costs.

LearNed, P.J., and Bocees, J. concur.


text:
    James Hogan, Resp’t, v. James Ryan, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886.)
    1. Evidestoe — Assault and battery — Self-defence — Evidence of circumstances LEADING TO THE ASSAULT RELEVANT.
    In. an action for damages for assault and battery, the defendant claimed that the injuries to the plaintiff were inflicted by him in defending his life from the assaults of the plaintiff and others. The proof showed that the plaintiff at the request of one of the parties in a fight, intervened at a time when the conflict had ceased either altogether or temporarily, and, in the act of making peace, as he claimed, used violence on one of the parties, and then without explanation laid hands upon the defendant, and.that thereupon defendant stabbed him. The defendant offered to show the strength of one of his former assailants, that a few minutes previous to the intervention of plaintiff, he was attacked by this man and that he was a powerful man. This evidence was excluded on the ground of immateriality, the affray between this man and the defendant having ended. Reid, that the defendant was to be judged in the light of the situation as it stood when the plaintiff accepted it, and that it was necessary to show what had already occurred. The defendant was entitled to show that his desperation was the natural consequence of the injuries done and apparently threatened him.
    2. Same — Damages — Evidence showing defendant’s belief in his DANGER RELEVANT — COMPETENT EVIDENCE IN MITIGATION.

      Reid, that the defendant was also entitled- to prove his belief as to his danger at the time the plaintiff assaulted him. His belief or good faith was competent evidence in mitigation of exemplary damages, unless the plaintiff disclaimed any other than compensatory damages.
    3. Same — Person using force in self-defence only liable for-the use of excessive force.

      Held, that if the defendant’s version of the case was true he was only liable for excessive force used.

      L. L. Shedden, for resp’t; Royal Oorhin for app’lfc.
   Landon, J.

The plaintiff recovered-$1700, in an action of assault and battery. The defendant acted with desperate violence, but his defence is, that his life was in danger from the assaults of the plaintiff and others and that he acted in his proper self-defence. . The main question here is, whether he was prejudiced by the exclusion of evidence which he offered to sustain his defence, and in mitigation of damages.

There had been a bee at one Horrigan’s, which these parties and about fifteen others attended, and at which they remained until ten o’clock at night.

The evidence on the part of the plaintiff tended to show, that the plaintiff was in a room apart from the kitchen of the house, that while he was thus apart a fight occurred in the kitchen, first between James Shehan and the defendant, James Shehan being the aggressor; that Matthew Shehan and Denis Dwyer joined James against the defendant; that one after another assailed the defendant with great violence, and that the defendant stabbed James Shehan. The plaintiff was the brother-in-law of James Shehan. After James Shehan was stabbed there was a lull in the conflict and witnesses on the part of the plaintiff speak of it as being over. Horrigan then called to the plaintiff “ to come out and make peace.” He came out into the kitchen, James Shehan was disabled ; the defendant was standing quietly against the wall; Matthew Shehan near him, and Denis Dwyer present, but in what attitude towards defendant does not clearly appear. The plaintiff testifies that he first caught hold of Matthew Shehan, twisted him around, told him to be quiet, then without speaking to defendant he laid his hand upon his shoulder and instantly the defendant stabbed him with a knife.

The defendant’s theory was that the three persons who first assailed him, and the plaintiff had conspired to beat him and did do it in pursuance of their conspiracy with such violence as threatened his life.

He called one McGinley as a witness who testified that the plaintiff said to the defendant, “ By-you will take it to-night.” That plain tiff kicked defendant two or three times; Denis Dwyer drew a chair to strike him; that James Shehan four or five minutes before that struck the defendant. He was then asked how many times James Shehan struck the defendant. This was objected to as immaterial and the objection sustained. He was then asked whether James was a strong man and to this the like objection was sustained. The defendant then offered to show that within two or three minutes before plaintiff attacked him he was attacked by James Shehan, who was a powerful man, and the same objection was interposed and sustained.

It is sought to sustain this exclusion of evidence upon the ground that the affray between James Shehan and the defendant was ended. But it is not clear as a matter of fact that the affray was over; James Shehan, it is true, was disabled, but the defendant was still at bay against the wall, confronted by Matthew Shehan with Denis Dwyer at hand. Two or three minutes is not a long time, and when the plaintiff volunteered to take part, according to the testimony of McGinley, he renewed the conflict against the defendant. He claims he came as a peace-maker, but upon his own testimony, he set about restoring peace by the use of force, and it was natural that the defendant should estimate his motives by his action, and his relations to James Sbeban, and by tbe violence which he had already suffered or repelled.

Upon the defendant’s evidence, the plaintiff apparently took up the fight where James Shehan had been compelled to abandon it, and if he was a wrongful volunteer and aggressor, the defendant certainly was entitled to an account of the whole contest up to the point where the plaintiff apparently renewed it. The defendant is to be judged in the light of the situation as it stood when the plaintiff accepted it, and we cannot know how it stood without knowing what had already occurred.

The defendant was also entitled to prove his belief as to his danger at the time the plaintiff assaulted Mm. His belief or good faith was competent evidence in mitigation of exemplary damages, unless the plaintiff disclaimed any other than compensatory damages. Yates v. N. Y. C. R. R. Co., 67 N. Y., 100; Wharton Crim. Ev. § 459.

The defendant failed to establish the conspiracy to assault him, but there was evidence tending to show that after the fight was begun by James Shehan, the other parties arrayed themselves against the defendant. He became desperate, but he was entitled to show that his desperation was the natural consequence of the injuries done, and apparently threatened him. The verdict was not large, regard being had to the injuries he inflicted upon the plaintiff, but if the defendant’s version of the case was true, he was only liable for excessive force, and excessive force implies that some force is lawful. Elliott v. Brown, 2 Wend, 497; Brown v. Gordon, 1 Mass., 1821.

The defendant was entitled to a full version of the whole affray. Upon the question of exemplary damages, he was entitled to have his conduct considered in the light of the-danger in which' he was apparently placed, and especially so when the plaintiff’s conduct apparently increased his danger

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

LeauNED, P. J; and Bocees, J., concur.


author: Landon J.

text:
    Francis A. Parr, Admr’x., etc., Resp’t, v. The Village of Greenbush, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886.)
    1. Municipal corporation — Contract — Acts done in pursuance op a RESOLUTION ULTRA VIBES CANNOT BE RATIFIED.
    The plaintiff’s testator P. contracted to furnish certain materials specified and do certain work at a price which the Village of G-. the defendant, agreed to pay him; by the same contract the defendant agreed to furnish sand and gravel and pave the street. P. could not perform his part of the contract until the sand and gravel were furnished and the grading done. The village had no power to make or cause to be made this precedent performance except in a certain manner, and it never took the steps necessary to acquire the power to make it, and never in fact made it. Being in default by a resolution made without its powers, it requested P. to furnish the sand and gravel and do the grading. P. perf mined this, his performance being worth about § 6000, and then fulfilled his contract. In an action brought by him to recover for the work done under the contract, and also under the resolution, he obtained a recovery for as much as he had furnished under the contract but was denied recovery for that furnished under the resolution. This action was brought to recover the liquidated damages or penalty agreed upon in the contract which provides, “ And for the true and faithful performance of all and every of the covenants and agreements above mentioned, the parties to these presents find themselves each unto the other, in the penal sum of $5000, as fixed and settled damages, to be paid by the failing' party.” Held, that what P. did at the void request of the village was not done by the village. That the village could not adopt the act since it could not ratify what it could not originally authorize.
    2. Res ad judicata — Plea or — When sot a bar to a subsequent action.

      Held, that the judgment in the former action was no bar to this action; to sustain the plea of a former judgment in bar of a second action, it must either appear that the cause of action in both suits is the same, or that some fact essential to the maintenance of the second was in issue, or determined in the first action adversely to the plaintiff.
    3. Same — Compromise and satisfaction.

      Held, that the satisfaction of the judgment in the former action upon a settlement and compromise between the parties while an appeal was pending, did not embrace this cause of action.
    4. Municipal corporation — Power to contract — Liquidated damages.

      Held, that the village had power to make this contract for this work with P. to the extent that it should furnish the sand, etc., and pay P. upon his performance, and on breach it would have become liable to P. for his actual damages, and that the damages might in advance be estimated and limited, and that the sum limited in the contract might be regarded as liquidated damages.
    5. Same — Waiver op performance — What is not.

      Heidi that P. by his performance of the part of that contract for which the village was in default, did not waive performance.
    6. Same — Application op covenant to pay liquidated damages.

      Held, that the covenant to pay damages applied to a failure in performance of any part of "the contract. - -
    6. Same — Contract — When regarded as under seal.
    The contract recites that it was made.under the seals of the parties, and uses the word “ covenant ” which implies a seal. It is signed by P. and by the president and members of the board of trustees of the village, and a wafer or seal is affixed after each individual name; it was signed at a meeting of the board. The village had no corporate seal. Held, that if the village needed to use a seal upon any contracts it must adopt for the purposes of that contract the seal it chooses to affix thereto. Held, that the contract was under seal.

      George Parr, for resp’t; John B. O’Malley, for appl’t.
   Landon J.

The Contract in question of date December 20,. 1870, was adjudged valid in.the former suit. The resolution of the board of village trustees of date September 30, 1873, was-in the same suit held invalid. Parr v. Greenbush, 72 N.Y. 463.

By the valid contract, Parr agreed to furnish certain specified materials, and do certain work at a price which the village thereby agreed to pay him. By the same contract the village agreed to furnish the sand and gravel, and pave the street. From' the nature of the case, Parr could not perform bis part of the contract until tbe sand and gravel were furnished and the grading done. This precedent performance the village had no power to make or cause to be made, except in a certain prescribed manner, and it never took the steps necessary to acquire the power to make it, and never in fact made it. Being in default it went outside of its powers, and by the void resolution of Sept. 30, 1873, apparently, but not actually, requested Parr to furnish the sand and gravel and do the grading. This Parr did, and his performance was reasonably worth upwards of $'6000. Having made this performance, he went on and performed his contract.

He first brought an action against the village to recover for .all his labor and materials, and upon the trial made proof of all .thereof furnished under both contract and resolution. He recovered for so much as he had furnished under the contract, but was denied recovery for so much as was furnished under the resolution. It stands adjudged that he can recover nothing under the resolution. This action was then ’ brought to recover the liquidated damages or penalty agreed upon in the contract of December, 1870. It provides : — “ And for.the true and faithful .performance of all and every of the covenants and agreements .above mentioned, the parties to these presents bind themselves ■each unto the other, in the penal sum of $5000, as fixed and .settled damages, to be paid by the failing party.”

The statute of limitations bars the action, if the contract is not under seal. The contract recites that it is made under the seals -of the parties. It uses the word covenants, which implies a seal. It is signed by Parr, and by the president and members of the 'board of trustees, and a wafer or seal is affixed after each individual name; it was signed at a meeting of the board. The village had no corporate seal and therefore if it needs to use a seal upon .any contract, must adopt, for the purposes of that contract, the .seal it chooses to affix thereto. It could use these wafers, and we think that the facts here existing justify, within the authorities, the finding of the trial court, that the contract was under iseal. — Bank of Middlebury, v. Rutland R. R. Co., 30 Vt., 160; Tenney v. East Warren Co., 43 N. H., 343; Pickens v. Rymer, 90 N. C., 282; Mill Dam Foundry v. Hovey, 21 Pick, 417; South Church v. Clapp, 18 Barb. 36; 1 Dillon, Mun. Corp. (3rd. ed.), §190.

The breach of the contract on the part of the village was -established. What Parr did at the void request of the village was not done by the village. It could not adopt the act, since it -could not ratify what it could not originally authorize.

The judgment in the former action is no bar to the recovery in this. That action sought recovery for work and materials .furnished under an invalid resolution: this action seeks recovery for stipulated damages upon breach of a valid contract. The unsuccessful pursuit of a recovery upon an invalid demand, is no bar to the successful pursuit upon a valid one. The invalidity of the resolution made all the evidence given in support of the demand under it, utterly impotent and unavailing. Hence it was impossible to recover anything upon that claim in any action whatever; and since this one was not therein alleged no recovery upon it is admissible. Stowell v. Chamberlain, 60 N. Y., 276; Dawley v. Brown, 79 id., 390.

To sustain the plea of a former judgment in bar of a second action, it must either appear that the cause of action in both suits is the same, or that some fact essential to the maintenance of the second action was in issue or determined in the first action adversely to the plaintiff. Perry v. Dickerson, 85, N.Y., 345. Here the causes of action are not the same, and no fact essential to the maintenance of this action was determined adversely to the plaintiff in the former action. The issue of law that was determined in the former action was, that the resolution was invalid. The plaintiff insisted that it was valid and was overruled. What he insisted upon there, namely, that the resolution was valid, he does not insist upon here; it is so far from being essential to his recovery here, thatlf established it would be fatal to it. The conclusion of law established there, aids his recovery here, and as far as the purposes of this action are concerned, was determined favorably to the plaintiff, and he accepts that determination. If that conclusion is one of fact, the same result would follow. The judgment establishes the fact that the resolution was invalid; if that fact could bar this action, the judgment would establish the bar. But the fact which was fatal to the former claim establishes this one. It follows, also, that the satisfaction of the judgment in the former action upon a settlement and compromise between the parties while an appeal was pending, did not embrace this cause of action. It did not in terms, and there is no evidence that would support a finding that such was the intention of the parties.

The village objects that it had no power to make the agreement to pay |5,000, as liquidated damages,. It had the power to make this contract for this work with Parr, to the extent that it should furnish the sand, etc., and pay Parr upon his performance. It would therefore have become liable to Parr for his actual damages if it had refused to allow him to perform, he being ready and willing. What would have been the amount of those damages ? They could not certainly be known in advance, but they might be estimated and limited. If grossly excessive, fraudulent collusion might be inferred, and be redressed upon proper allegations and proof. But, as was said in Little v. Banks, 85 N.Y., 263, — “ While there is no positive statute which authorizes the state officers to fix a sum as liquidated damages for a breach of tbe contract, inasmuch as they have the power to make such a contract as would be advantageous to the State, it necessarily follows that they have the right to impose such reasonable provisions as would carry out this purpose.”

Here the actual damages which Mr. Parr sustained, were in excess of the sum fixed: these are damages which, under the circumstances, it is just the village should pay, because it has had their .full equivalent in the work done and materials furnished ; to the extent that he suffered, the village was benefited.

There does not, for the reasons above stated, appear to be any urgent need to determine whether the $5,000 should be regarded as liquidated damages or as a penalty. The case of Little v. Banks instructs us that the determination must be made in view of the circumstances of each particular case. The courts hesitate to formulate a rule that will prevent the accomplishment of the justice which the particular case requires. Here the contract speaks of “ the penal sum of $5,000, as fixed and settled damages,” and we see no reason to dissent, from the conclusion of the trial judge, that that sum is to be regarded as liquidated damages.

The village further urges that the contract was in part performed by it, and that Mr. Parr accepted such part performance, and thus waived his damages. But the damages sustained by Mr. Parr were under that part of the contract which the village did not perform, and the covenant to pay damages was for failure to perform every agreement upon its part. The covenant embraces every breach, and if, there was only one, it embraces that. But the defendant refused wholly to perform, and Mr. Parr did all the work and furnished all the materials for both parties. He performed the part which the village ought to have performed, doubtless supposing that thereby the village was in fact performing. He could not without injustice be held to have waived a performance which he supposed to have been performed through himself.

Waiver implies a consent that the breach existing shall be disregarded. No' such consent can be here implied. He, in effect, said to the village, “ I will waive the breach caused by your non-performance, if you will pay me for making performance for you.” The condition of the waiver was not accepted.

The judgment should be affirmed with costs.

LeaeNed, P. J. and Bocees, J. concur.


text:
    Garrett M. Clute, Resp’t v. New York Central & Hudson River R. R. Co., Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed November, 1886.)
    1. Title-Deed — Conveyance.
    A certain lot marked K. had been for many years in the possession of N. C. who died in 1833 claiming to be the owner thereof. By his will S. C. gave land including the lot K. to D. C. for life, with remainder in fee to plaintiff the son of D. C.
    D. C. went into possession and so remained until the S., & T. R. R. Co. took possession of the strip in question in 1841, and he remained in possession of the residue until he with his wife executed a deed to plaintiff, dated March 14th, 1859.
    Plaintiff remained in possession until he executed a deed to C. and M. of the land so conveyed to him. In 1S41 proceedings were taken by the S. & T. R. R. Co., to acquire title to the strip in question. Such proceedings were had in two counties in which the laud was situated, that the property was appraised, and in the one county the money was paid into the bank, to the credit of D. C. and in the other to the credit of D. C. and the plaintiff.
    The petitioner in the same year went into possession by virtue of a final order in these proceedings. The R1 R. Co., held from 1841 adversely to the title of D. C. In the conveyance Which plaintiff executed to C. and M. in 1865, Lot K. is described by courses and distances. Then follow these words : “ Containing 16 acres, 1 rood, and 13 perches of land exclusive of 1 acre, 1 rood and 32 perches belonging to the railroad.” Held, that a deed is to he construed most strongly against the grantor. That the words “exclusive” etc., did not except the railroad land ; but that they only indicated how many acres were in the lot excluding the railroad land.
    2. Same — Adverse Possession — Conveyance not void under Champerty Act.

      Held, That the time of the conveyance of plaintiff to M. & C. the R. R. Co., were in possession claiming under proceedings which purported to convey a fee or title during the continuance of the company. They had however acquired only the life estate of D. C. and during the continuance of that life estate, the plaintiff being the remainderman might convey his remainder without violating the Champerty Act. As the plaintiff was not entitled to possession, the possession of the R. R. Co., was not adverse to him.
    G. M. Clute, for resp’t; S. W Jackson, for appl’t.
   Learned, P. J.

This is an action in ejectment to recover a narrow strip of land, used and occupied by the defendant and its predecessors for about forty-five years, for its roadway and tracks.

On the trial the plaintiff relinquished all claim, except to so much of the land as is included in the lot marked K. This lot is the last of several described in a deed dated-March 14, 1859, from Derrick Clute and wife to plaintiff, and in a deed, dated March 29, 1865, from plaintiff to Copley and Miller.

Nicholas Clute died in 1833, claiming to be the owner of lot K. and having been in possession for many years. By his will he gave land (including lot K.) to Derrick Clute for life, with the remainder in fee to plairitiff, the son of Derrick.

Derrick went into possession and so remained until the Schenebtady and Troy R. R. Co. took possession of the strip in question, in 1841, and he remained in possession of the residue until he executed the aforesaid deed to plaintiff, in 1859.

Plaintiff remained in posession of the said residue until he •executed the aforesaid deed to Copley and Miller, in 1865.

Derrick died July 14, 1868. The plaintiff claims in his complaint to have become owner of the premises in question, upon the death of Derrick.

In 1841 proceedings were taken by the Schenectady and Troy Railroad Company, before the County Judge of Schenectady county, and the County Judge of Albany county, to acquire title to the strip in question, under chapter 242, Laws of 1836. Part of the strip was in each county.

Such proceedings were had that the property was appraised, and the appraised value was ordered to be paid into a bank. In the proceedings in Schenectady county the money was to be paid to the credit of Derrick and the plaintiff. In Albany county to the credit of Derrick. It would seem that the money was deposited.

The petitioners, the same year, went into possession by virtue of the final order in these proceedings. Derrick seems never to have disputed their title; the railroad company therefore, were holding adversely to Derrick from 1841, claiming under a title. 2 R. S. m. p. 739, section 147. Dawley v. Brown, 79 N. Y., 390.

In 1873 the plaintiff, claiming as remainderman after the death of Derrick, brought this action, insisting that his remainder had never been acquired by these proceedings.

In the conveyance which plaintiff executed to Copley and Miller, in 1865, lot K. is described by courses and distances. Then follow these words:

Containing 16 acres, 1 rood, and 13 perches of land exclusive of 1 acre, 1 rood, and 32 perches belonging to the railroad.

On the former appeal the question was discussed, whether these words made an exception of the land occupied by the railroad, or whether the words “ exclusive” etc., applied only to the number of acres. We were of opinion that they did not except the railroad land; but that they only indicated how many acres there were in the lot, excluding the railroad land. We are still of that opinion; a deed is to be construed most strongly against the grantor. Here is no express exception in the description; and the description includes the railroad land. When the number of acres is stated, the grantor only explains that, exclusive of the railroad land, there are so many.

By the act of incorporation the company is to become possessed, during the continuance of the corporation. Heard v. Brooklyn, 60, N. Y., 242.; Heath v. Barmore, 50 N. Y., 302.

The deed provides that if the railroad company shall remove its track from the said land, then the land shall become the property of the grantees. This, though inaccurately expressed, shows that the plaintiff, the grantor, did not intend to except this land from his conveyance; but that all bis rights therein were to go to the grantees. The grantor’s reservation of a claim against the N. Y. C. R. R. Co., for locating their track through the land, was not a reservation of the land, whatever was meant. That railroad company did not make the location of the track. This was the act of the Schenectady and Troy Railroad Company. But if by the success of the plaintiff’s action against the N. Y. C. R. R. Co., it should be compelled to remove its tracks, then the land would, according to plaintiff’s deed, become the property of the grantees therein.

At the time when he executed the deed to Copley and Miller, the plaintiff’s claim is that he was entitled to a remainder in the lands occupied by the railroad company, after the death of his father. Now if he had intended to except or reserve his interest in that part of the lands which he was about to convey, he could have expressed his meaning easily. But in such case, he would never have inserted the clause that that land was to revert to the grantees, if the railroad company should remove their track. And the grantees did not intend that their grantor should retain a strip through their land, while they were willing to take the land subject to such rights as the railroad company had acquired.

But again, it is urged that assuming that the deed from plaintiff to Copley and Miller, by its terms, conveyed the land in question, such conveyance would be void under the section of the Revised Statutes above cited.

In considering this question we must remember that there were two estates in the land, that of Derrick for his life, and that of the plaintiff in fee in remainder. The railroad company was in actual possession from 1841, claiming under a title adverse to Derrick. Derrick, then, could not convey by his deed of 1859, his life estate to the plaintiff in that part of the land actually in possession of the railroad company. And indeed the plaintiff does not claim to have acquired Derrick’s life estate in this strip of land. For his complaint alleges that he became owner in fee, and entitled to possession of the land in question upon the death of Derrick.

At the time, then, when the plaintiff executed his deed to Copley and Miller, assuming his title to be as he claims, he was only a remainderman of the premises; and the life estate was still in existence, held by the railroad company, adversely to Derrick, and having been so held by the company or its predecessors for over twenty years..

The question then is, was the land then held adversely to the plaintiff, so as to prevent him from conveying his remainder. This question was decided in Christie v. Gage, 71 N. Y., 189; where it was said, that where a tenant for life executes a deed in fee and tlie grantee goes into possession, a conveyance by the heirs during the continuance of the life estate would not be void under the Champerty Act, although the grantee of thelife tenant was in possession claiming under a grant purporting to be a grant of the fee.

That applies to this present case. The R. R. Co. were in possession claiming under proceedings which purported to convey a fee or title during the continuance of the company. They had acquired, however, in fact (as plaintiff claims), only the life estate of Derrick during the continuance of that life estate, the plaintiff being (if he had any title) the remainderman, might convey his remainder without violating the Champerty Act. And this must be so. For as he' was not then entitled to possession, the possession of the R- R. Co. was not adverse to him. Grout v. Townsend, 2 Hill, 557: Clarke v. Hughes, 13 Barb., 151.

That this must be so follows from another consideration. If the possession of the R. R. Co. was adverse to plaintiff in 1865 when he executed his deed; then it was adverse in 1841, when the R. R. Co. went into possession. Hence he has now lost his title by this adverse possession of moré than forty years, if the Company held adversely to him in 1865.

With these views we need not examine the other questions in the case.

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

Bockes J., concurs, Landon not acting.


text:
    People of the State of New York, ex rel. Hiram Sinkler, Resp’t v. Irving C. Terry, sup’t of the Onondaga County Penitentiary, Appl’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886.)
    1. Justice oe the peace — De facto — Acts of, how regarded.
    In a proceeding to inquire, under the writ of habeas corpus, into the cause of imprisonment of the relator S. who was arrested and brought before one Seaver Justice of the Peace of the village of Canton, on a charge of assault in the third degree to which he pleaded guilty and was sentenced by said Justice to imprisonnent in the Onondaga County Penitentiary for the period of four months. Held, that if there were such an office as justice of the peace in the village of C. then S,, notwithstanding, the fact that his election was attended with such ¡regularities as would probably be fatal to his title, if the people should by an action in the nature of quo warranto require him to defend it, having under color of legal title assumed the office and discharged its duties was justice of the peace de facto, and his official acts'would upon grounds of public policy be regarded as valid so far as the rights of third persons were concerned.
    2. Same — In order that a person may be a de facto officer the OFFICE MUST EXIST.

      Held,that, in order that these.might he an officer defacto there must have actually existed the office into which he could intrude.
    S. Constitutional provisions as to — Constitution, art., 6, § IS — Laws 1859, ch. 70, § 2, as amended by laws 1870, ch. 263, § 2, held unconstitutional.
    The constitution of the State of New York, article 6, § 18, provides for. the election, of justices: of the peace in towns and cities. Held, that the constitutional provision for the election of justice of peace in towns and cities is the denial of the power to elect them in villages, and that the charter of the village (Laws 1859, chapter70, § 2,) as amended by Laws 1870, chapter 203, § 2, authorizing the election of one justice of the peace for said village is unconstitutional.
    4. Same — Officer existing by virtue of constitution only.
    The constitution of the State of New Vork, article 6, § 19, provides that “■inferior local eourts of civil and criminal jurisdiction may be established by the-legislatui-e.” Held, that justice of the peace is an officer of the constitution, and that an officer so designated whether with greater or less power can not exist, except, as allowed by the constitution.
    5. Appeal from festal order discharging a prisoner under Code Civil Procedure § 2059 — Affirmance — Costs.
    In a ease where an appeal was taken in the name of the people under Code Civil Procedure,, | 2059, and the order of the lower court affirmed. Held, that the costs should be paid by the county.
    Henry E. Seaver, who pretended to be a Justice of the Peace, pretended to convict tbe relator, Hiram Sinlder, of the crime of assault in the third degree and to sentence him to the Onondaga County Penitentiary for the term of four months. The relator was accordingly confined in that penitentiary. After the relator had been confined in the penitentiary for the period of three months, his mother, in his behalf, procured a writ of habeas corpus requiring the superintendent of the penitentiary to produce the relator before Justice Tappan on the 10th of July, 1886, that the cause of his detention might be inquired into. Mr. Terry, the superintendent, produced the relator, certifying that he held him by virtue of the commitment. The relator traversed the return assigning his reasons why he should be discharged. At the hearing, the District-Attorneys of St. Lawrence and Onondaga counties both appeared and contested the discharge of the relator. Justice Tappan required service of the writ to be made upon the District-Attorney of St. Lawrence county, who objected to the hearing of the writ until the District-Attorney of Onondaga county had been notified, which was accordingly done. Evidence was taken before Justice Tappan from which it appeared that at the annual charter election in the village of Canton on the 12th of January, 1886, Mr. Seaver received no votes for the office of “ Justice of the Peace,” but did receive 162 votes for “ Police Justice.” The clerk of the village filed with the county clerk a certificate of Mr. Seaver’s election as “ Justice of the Peace.” Mr. Seaver pretended to give a bond as Justice of the Peace, which bond was approved by the Supervisor of the town of Canton. The Act which created the office of Justiee of the Peace of the village of Canton is Chap. 263, of the Laws of 1870. The act makes him a Justice of the Peace of the town and county as to criminal matters. It seems to have been a matter of grave doubt in Mr. Seaver’s mind as to what, if any, office he held, for he signed his name not only “ Justice of the Peace,” but also “ Police Justice.” At tbe session of the last Legislature a new charter-was created for the Tillage of Canton (Laws of 1886, Chap. 363). This Act repealed Chap. 263 of the Laws of 1870, but proyided by its 85th Section that the officers elected at the election in January, 1886, should hold their offices until the term expired for which they were elected, but they were to be goYerned by the provisions of the new Act, which took effect immediately and repealed all the other laws relating to the village of Canton. There was nothing in the commitment to show that it Avas issued by an officer of the village of Canton, but it does show that Mr. Seaver supposed himself to be a Justice of the Peace of the town, for in his record of conviction he styles himself a “ Justice of the Peace of said county,” and it is headed “Town of Canton, County of St. Lawrence.” Justice TappAN held that Mr. Seaver’s commitment was irregular and void; that he was never elected a Justice of the Peace and was not a magistrate, and that Chap. 263, of the Laws of 1870, was unconstitutional and void in so far as it pretended to create the office of Justice of the Peace. Mr. Terry did not appeal from the order, neither did the District-Attorney of St. Lawrence or Onondaga county, but they have served upon the relator a paper signed by them from which it appears that “ the People of the State of New York ” appeal from the order.

      P. R. McMonagle, for the relator, resp’t; John Q. Keeler, of counsel; Leopold O. Hale, Ass’t Dist. Att’y, for appl’t.
   Landon, J.

If there is such an office as Justice of the Peace for the village of Canton, then Mr. Seaver, notwithstanding the fact that his election was attended with such irregularities as would probably be fatal to his title, if the people should by an action in the nature of a quo warranto require him to defend it, had, under some color of legal title assumed the office and discharged its duties, and was therefore a justice of the peace defacto, and his offical acts would upon grounds of public policy be regarded as validso far as the rights of third persons are concerned. Re Wilcox v. Smith, 5 Wend., 231 People v. White, 21 Wend., 520; Re Wakker, 3 Barb, 162; People v. Cook, 8 N. Y., 67; People ex rel. Bush v. Thornton, 25 Hun, 456; Morrison v. Sayre, 40 id., 465.

But in order that there may be an officer defacto there must actually exist the office into which he can intrude. The unauthorized person must occupy an actually existing seat of authority, otherwise he would by his assumption create an additional office and exercise its functions.

The village of Canton, it was conceded upon the argument, formed part of the town of Canton. We may presume that the town of Canton has all the justices of the peace to which it is entitled. Section 18 of article 6, of the Constitution provides that, — “ The electors of the several towns shall, at tbeir annual town meeting, and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years.” Mr. Seaver in order to have any color of claim to the office of justice of the peace for the town of Canton, must have sought to enter into it when the' entrance was open. But no such claim is made in his behalf. He claims an election by the electors of the village of Canton. The charter of the village Laws 1859, ch. 70, § 2, amended by Laws 1870, ch. 263, § 2, authorizes the election of one justice of the peace for said village, The section of the constitution, cited, also provides “ that justices of the peace and district court justices shall be elected in the different cities of this State in such manner, and with such powers, and for such terms, respectively, as may be provided by law.”

It has been repeatedly held that justices of the peace cannot be elected otherwise than as prescribed by the constitution. Geraty v. Reid, 78 N. Y., 64; People ex rel. Smith v. Schiellein, 95 N. Y., 124; Wenzler v. The People, 58 N. Y., 516. The constitutional provision for the election of justices of the peace in ,towns and cities, is the denial of the power to elect them in villages. The statute authorizing the election of a justice of the peace for the village of Canton is therefore unconstitutional, and Mr. Seaver could not be a de facto justice of the peace for the village since there is no such office.

But section 19, of article six of the constitution provides that — “ Inferior local courts of civil and criminal jurisdiction may be established by the legislature.” This provision toolc effect in 1870. It had been previously decided that the legislature had the power to establish the office of police justice in villages provided such officer was given a strictly local jurisdiction, and not the general territorial jurisdiction which justices of the peace possess. Sill v. Village of Corning, 15 N. Y., 297; Brandon v. Avery, 22 id., 469.

But it had also been decided that, if such police justice in villages, is vested with the same powers and territorial jurisdiction as a justice of the peace, then he is a justice of the peace under another name, and the statute creating the office is unconstitutional. Waters v. Langdon, 40 Barb., 408. The distinction thus indicated affords the test of constitutionality, Village of Deposit v. Vail, 5 Hun, 310; Brady v. Cochran, 23 id., 274; Conor v. Hilton, 66 How, 144; Geraty v. Reid, supra.

The charter of the village defines the power of thejusti.ee of the peace as follows: “ The said justice of the peace shall have the usual powers of justice of the peace of towns in relation to crimes and misdemeanors, and to oaths and acknowledgments, and also in civil actions, in which all the parties shall be residents or inhabitants of said village.” § 2.

If the designation of the officer had been police justice instead of justice of the peace, the act might have been sustained, within the authorities cited, upon the implied construction, that his civil and criminal jurisdiction was limited to the village, and thus local, and within the express power conferred by the constitution.

But a justice of the peace is an officer of the constitution. Whether it is competent for the legislature to pass a local law depriving him elsewhere than in cities, of any of the powers and jurisdiction conferred by general laws, we need not inquire, Const. Art. 3, § 18. Certain it is, that if by so doing, he may be elected in villages, then the constitution is thwarted by an easy evasion — an evasion pointedly condemned in Wenzer v. People, 58 N. Y., 516. This officer is designated a justice of the peace whether with greater or less statutary powers, and we cannot suppose that any other than a constitutional iustice of the peace can exist.

The relator was properly discharged.

Order affirmed with $50 costs and printing disbursements, Code Civ. Pro., § 3240.

The appeal was taken in the name of the People under § 2059, Code Civ, Pro., and the costs should be paid by the county of St. Lawrence.

Learned. P. J. and Bockes, J. concur.


author: Boardman, J. Hardin J.

text:
    Peter Phillips, Resp’t. v. Sarah Plato, Appl’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)
    Bills and notes — Guabantob — When liability ceases.
    The note of a third party was endorsed by Phillips, and afterwards unknown to him, was guaranteed by Sarah Plato. The note being dishonored was paid by Phillips who seeks in this suit to make S. Plato contribute one half. _Held, that the guarantor’s liability ceased when the note was paid.
    2. Same.
    The difference between an endorser and guarantor is slight. The former becomes liable on condition of notice of dishonor if the note is not paid by the maker when due, the latter becomes absolutely liable to pay if the note is not paid when due.
    Appeal from judgment in favor of plaintiff by the court without a jury.

      Bently & Jones, for resp’t; Olney & Powers, for appl’t.
   Boardman, J.

This is an appeal from a judgment upon a decision by the court without a jury. The action was upon a guarantee of payment of a promissory note for the amount of the note. The complaint was amended on the trial so as to constitute an action by plaintiff, as endorser, who had paid the note, against the defendant who had guaranteed its payment, for one half of the amount paid. G. H. Plato, defendant’s son, was indebted to one Olney, and to pay tbe same, made this note, and procured the plaintiff to endorse it. It was then offered to Olney, who refused to accept it unless G. H. Plato would procure the defendant’s signature. Soon after, the defendant, with full knowledge of the facts, executed on the back of the note over plaintiff’s endorsement an absolute guarantee of the payment of the note. The note was then delivered by G. H. Plato to Olney. When it became due it was dishonored and plaintiff paid it. He now brings this action against the guarantor and claims that she, as a co-surety for G. H. Plato, the principal debtor, is liable for contribution, and a recovery for one half of the amount paid by plaintiff is given against the defendant. G. H. Plato is insolvent. The plaintiff had no knowledge of, or participation in, the procuring of defendants guarantee nor did he require it.

It is plain that the defendant’s guaranty was given without consideration and as an accommodation to her son, the principal debtor. By the instrument she became absolutely liable to pay the debt. She did not assume this liability at the request or in the interest of the plaintiff. Indeed his position as endorser was complete before the necessity of any other security became known. He doubtless supposed the creditor would accept the note with this endorsement alone. The defendant knew these facts and signed for the purpose of giving to the note as it then existed, the security of her name. In the language of TaícOTT, P. J. in Deck v. Works, 18 Hun, 266-272 “ the guarantor of a note, on which there is a prior endorsement, undertakes for the performance of each contract which he has guaranteed, that of the maker and that of the endorser. If either fails to perform the contract which is guaranteed, a cause of action arises to the holder of the guaranty for such fault.” As a corollary it must be true that if either the maker or endorser shall pay the note the guarantor’s liability ceases.

Again until the note had been endorsed by the plaintiff it had no commercial or negotiable existence. When it was so endorsed its use was followed by liability, but before such endorsement it was incapable of being used to create an obligation. When the note was presented to defendant it was complete and perfect in its form. Such perfect and complete note she guaranteed payment of. It has been paid by the parties to it or one of them. That is what she agreed should happen and her obligation is at an end. There is no reason to believe the plaintiff required or expected defendant to sign the note as his co-surety. or for his protection in whole or in part. Her signature was placed there with the purpose of becoming in effect a second endorser but was modified because she was a married woman. The difference between an endorser and guarantor is slight. The former becomes liable on condition of notice of dishonor if the note is not paid by the maker when due ; the latter becomes absolutely liable to pay if the note is not paid when due. Brown v. Curtis, 2 N. Y., 230. McMurray v. Noyes, 72 N. Y., 523, 525. The defendant by her guaranty made under the circumstances of this case became the surety of the maker and endorser. She did not intend to become the co-surety of the plaintiff and equally liable with him for the debt but only for his default. In this respect the case is brought within Hanis v. Warner, 13 Wend. 400. Belloni v. Freeborne, 68 N. Y. 383, 388. No importance is attached to the position of the guaranty above plaintiff’s endorsement upon the note.

For these reasons we are constrained to differ with the learned Judge who decided this case below. Nor do we think the case of Wells v. Miller, 66 N. Y., 255, is controlling although the decision was mainly founded upon it. The parties to that action were in fact sureties for the principal debtor and both signed the note beneath his signature. The question was whether the plaintiff, who was a partner of the debtor, had not so acted as to deceive the defendant into the belief that he was signing as surety for both the partners, and hence not entitled to contribution in equity. No such question is presented in the present case. This is an action by an endorser against a guarantor, where the purposes and intent of the parties, their mutual relations to each other, to the note and its maker, the possible liabilities of each and the actual liability of the defendant after payment of the note by plaintiff are open for consideration. In Wells v. Miller, supra, the court consider only whether contribution should be enforced between actual and recognized co-sureties in equity by reason of the peculiar facts in the case.

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

Follett, J., concurs.

Hardin J.

Plaintiff’s contract of endorsement was made without reference to the defendant: it was to pay if the maker did not and the holder gave notice of the dishonor.

Defendants undertaking was that if the note was not paid by the maker or endorser, she would pay it. Moakley v. Riggs, 19 John., 69. The endorser has paid. it. He has no more claim upon the defendant than though she had in form, as was her intent (aside from binding herself as a married woman), become a second endorser. I concur.