author: Learned, P. J.: Bookes, J.:

text:
    JAMES H. VAN GELDER, Appellant, v. DANIEL H. VAN GELDER and others, Respondents.

      Demurrer — costs at Special Term — costs upon appeal to General Term — Code of Oiml Procedure, §§ 1347, 1349.
    Upon an appeal to the General Terra from an order of the Special Term overruling or sustaining a demurrer to the whole or a portion of the pleading, the successful party is entitled to tax, as costs, twenty dollars before, and forty dollars for argument.
    Where an order is made at the Special Term sustaining or overruling a demurrer to the whole or a portion of the pleading, the successful party is entitled to the full costs of the trial of an issue of law; and where relief is granted to the unsuccessful party, it should be only upon the payment of those costs; and to grant it upon payment of ten dollars costs only is improper.

      Hoffmam v. Ba/rry (4 N. T. S. O. [T. & 0.], 253) limited.
    Motion to amend an order of the General Term.
    At a General Term held at the city of Albany on the 23d of November, 1811, an order was made in this action affirming an order of the Special Term, “ with ten dollars costs and disbursements.” The order of the Special Term overruled a demurrer interposed by the plaintiff to the fourth defense set up in the answer.
    This motion was made by the defendant to have the order of the General Term corrected by striking out the words “ with ten dollars costs and disbursements,” so as to allow full costs of the appeal.

      J. FT. Fiero, for the appellant.

      James B. Olmey, for the respondent D. H. Van Gelder.
   Learned, P. J.:

Section 307, subdivision 5, of tbe Code of Procedure fixes costs on appeals at twenty dollars before argument and forty dollars for argument. From this rate it excepts appeals to the Court of Appeals and appeals in cases mentioned in subdivisions 1, 3, 4 and 5 of section 349 and in the second paragraph of section 344. The present appeal was from an order overruling a demurrer. It was therefore brought under subdivision 2 of section 349, and is not excepted from the prescribed rate.

In reply it is urged that the repealing act (chapter 417, Laws of 1877, subdivision 4, section 1) has repealed section 349 of the Code, and that sections 1347 and 1349 of the Code of Civil Procedure have substantially taken its place; that subdivision 2 of section 1347 does not mention an order overruling or sustaining a demurrer. The commissioners say that an appeal from such an order is provided for in section 1349, as an interlocutory judgment. However that may be, we cannot apply the language and the exceptions of the section 307, subdivision 5, above referred to, to the sections of the Code of Civil Procedure above cited. If we cannot, since the repeal, refer at all to the old sections 349 and 344 for the meaning of section 307, then every appeal (except to the (jourt of Appeals) would cany the costs of section 307, subdivision 5. "We think it more fair and simple to construe section 307, subdivision 5, as if it incorporated the description of appeals instead of designating them by reference to other sections; and we think therefore that the rule of costs in this respect is not altered by the changes of the last year. In this view it seems to us that on an appeal from an order overruling or sustaining a demurrer the successful party is entitled to tax twenty dollars before argument and forty dollars for argument. This is contrary to previous practice. Put the matter has not before been called to our notice; and the change in the language of the Code has not been observed. The order of the last term must therefore be modified, as asked by the defendant.

The plaintiff asks a modification also that he may be allowed to withdraw his demurrer and to reply. He should be allowed to do so, on payment of the costs on overruling the demurrer at the Special Term,' the costs of the appeal, including taxable disbursements and ten dollars costs of motion, to be paid in ten days after service of a copy of tbe order.

Bookes, J.:

I concur in tbe views expressed in tbe above opinion of my brother Learned, but it may be well to add an observation as to what the practice should now be at Special Term when relief is asked for and given to the unsuccessful party on demurrer. A remark on this subject is deemed necessary to avoid a misunderstanding of the decision (or a misapplication of it) in Hoffman v. Barry (4 N. Y. S. C. [T. & C.], 253). The overruling of a demurrer is, in legal effect, the ordering of judgment on the demurrer against the party demurring, and so an order sustaining a demurrer is a direction for judgment in favor of the party demurring. It is the better practice — indeed it is the true practice — to enter the order inform for judgment in favor of the prevailing party on the issue of law. The form of the order will, too, be the same whether the demurrer be interposed to an entire pleading or to one or more of several causes of action or defenses. The direction so given in form is now probably, under section 1349 of the Code, an interlocutory judgment. Such was the understanding of the codifiers. (See note to section 1349.) The successful party on a demurrer is then, in an action in which costs are given him by law, entitled to full costs, as given on the trial of an issue of law; and, inasmuch as costs are not in the discretion of the court, the right to those costs is absolute. And if relief be granted to the party against whom the interlocutory judgment is directed, it must be on payment of those costs. It follows, that to grant relief to such party on payment of ten dollars costs only, as upon a motion, is improper. My remarks in Hoffman v. Barry must stand explained or perhaps modified and corrected to meet the viéws here expressed. As regards the costs on an appeal from an order for judgment on demurrer, 1 agree with the conclusion of brother Learned, above given, in view of the present provisions of the Code.

In this case both parties have moved for an amendment of the order of the General Term, the defendant by striking out the limitation of costs on the appeal, and the plaintiff by adding a provision for relief against the decision of the court on the demurrer. Both motions should be granted, as directed in the conclusion of the foregoing opinion.

Present- — Learned, P. J., Bookes and Osborn, JJ.

Motion to correct order granted. Motion of plaintiff granted allowing him to reply on payment of the costs of the demurrer and costs of the appeal, and ten dollars costs of the motion, within ten days after service of a-copy of this order.


source: Caselaw Access Project

author: Boardman, J.

license: Public Domain

text:
    EDGAR DAKIN, Plaintiff, v. THE LIVERPOOL AND LONDON AND GLOBE INSURANCE COMPANY, Defendant.

      Proof of loss — on one of several policies in the same company on the same property; payable to the sarnie person — when sufficient for all — Insurance of party “as inten'est may appear” — effect of — loss payable to A B — entitles A B to recover the entire amount, though in excess of his individual loss.

    Motion for a new trial on exceptions' ordered to be beard in tbe first instance at the General Term, after a verdict in favor of the plaintiff. This action was brought upon four policies of insurance issued by the defendant upon a tannery in Alpine, Schuyler county. The policies were all similar except as to dates, amounts and number of policy, and amounted in the aggregate to $8,000. The insurance was to “ S. D. Wood & T. W. Moore & Co., as interest may appear. * * * Loss, if any, payable to Lyon & Dakin.” At the time of the issuing of the policies Lyon & Dakin held a mortgage for $5,000 on the property, the whole of which subsequently passed to Dakin, who thereafter conveyed an interest therein to Wood, who already held -a second mortgage for $3,000 upon the property. T. W. Moore & Co. owned the tannery. After a loss had occurred proofs thereof were furnished under one policy, for $2,500, it being stated therein “ that in addition to the amount covered by said policy of said company, there was by the same company other insurance made thereon to the amount of $5,500, as particularly specified in the accompanying schedule, marked ‘A,’ besides which there was no insurance thereon.”
    The plaintiff in his complaint set out the issuing of all the policies but demanded judgment for $3,134.40 tbe amount due to him on bis mortgage. Upon tbe trial tbe court allowed tbe complaint to be amended so as to demand judgment for tbe full amount due on all tbe policies. Tbe defendant urged, among others, tbe following exceptions:
    First. That proofs of loss were furnished on but one of four policies, while tbe recovery was bad on all. r
    Second. That tbe interest of tbe assured was that of a mortgagee only, and that it was not so expressed in tbe deed.
    Third. That tbe comt erred in allowing tbe plaintiff to amend bis complaint so as to recover tbe whole amount of tbe insurance.
    With reference to these points the court at General Term said :

      “ Tbe proofs of loss were sufficient in law as to all four policies. They were identical, except as to dates and amounts. Tbe four policies constitute essentially a single policy and were so treated by tbe proofs of loss. Tbe defendant must be presumed to have knowledge of its own contracts. Tbe proofs of loss were tbe same for each policy. If, therefore, tbe description of each policy bad preceded tbe proofs of loss, it certainly would have been sufficient. How is it different when such description of tbe other three policies follows tbe proof of loss under tbe first policy, and gives notice that such proofs of loss apply equally to tbe other three. In any event tbe reception and retention of these proofs for nearly thirty days without objection on this point, the offer to pay a sum largely in excess of tbe amount insured by any one policy, and tbe other facts and circumstances leave no room to doubt that defendant waived and intended to waive any such objection, and that it was finally interposed as a technical, rather than a real, obstacle to this recovery.
    Tbe interest of tbe owners of tbe property and the interest of S. D. Wood, who was a mortgagee, were insured with tbe addition “ as interest may appear.” Tbe defendant thereby undertook and agreed to insure any insurable interest those parties bad. That was tbe language of the policies. Tbe defendant took tbe premium knowing or having reason to know that these parties bad some insurable interest in tbe property covered by tbe policy, and it would now be dishonest to allow tbe defendant to object that it did not know tbe nature and character of such interest, in order to avoid liability. {Bidwell v. Wo. West. Ins. Go., 24 N. Y„ 302.)

      The plaintiff was allowed to amend his complaint so as to recover the whole amount insured by the four policies. In fact all of those policies were by their terms payable to plaintiff in case of loss. The plaintiff was, therefore, the proper person to collect the same. He may not be entitled to retain all that he collects, but that is of no importance to the defendant. Its duty is discharged when it has paid up according to its contract. The plaintiff will hold the funds collected in trust for those who may be entitled thereto, besides himself. The allowance of the amendment was in the discretion of the Court, and we do not think it erred in its exercise in this instance. It was an amendment in furtherance of justice and did not change the cause of action.”

      M. M. Mead, for the plaintiff. Erastus P. Hart, for the defendant.
   Opinion by

Boardman, J.

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

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


author: per Owriam.

text:
    MARY B. WILKINS, Appellant, v. HELEN BUCK and others, Respondents.

      Reference — prelimimm'y decision of referee, as to point submitted by consent — regula/>ity of.

    Appeal from an order made at the Special Term, denying a motion to set aside the judgment entered upon the report of a referee dismissing the complaint herein. Several irregularities were specified in the moving papers.
    After considering several of these and holding that they were devoid of merit, the General Term said:
    “ The plaintiff insists that the report should be set aside because the referee dismissed the complaint on the merits.
    This is perhaps rather a question of alleged error to be reviewed on appeal from 'the judgment. We have not before us the evb deuce upon which the report was made. So far as appears by the affidavits, the referee’s action in this respect was quite regular. The parties had mutually agreed that instead of the usual order of proof, the question as to the genuineness or forgery of two papers should be disposed of first. That is, the plaintiff havinggivenprima facie evidence of the genuineness of the papers, both parties were to go on with their evidence on this point before they proceeded with the rest of the case. It would seem that question of the genuineness or the forgery of these two papers was important in the controversy. After the parties had gone through with such evidence as they chose to introduce on the question it was submitted to the referee. Subsequently he announced his conclusion on that question, and then appointed a day for the further hearing of the case. The defendants duly notified the plaintiff that the trial would be continued on that day and that they should move to dismiss the complaint on the merits. On that day the plaintiff failed to appear, and the referee dismissed the complaint on the merits. The case then was on trial. The referee had held that the two papers were forgeries on the evidence produced. The merits of the case had been partly tried and the plaintiff was at liberty to proceed with further evidence. It was not a mere failure of proof on the part of the plaintiff because the defendants had themselves given evidence. The papers before us do not show what the evidence was on either side. * * * The conclusion to which he came as to the two papers was substantially an exclusion of certain evidence offered by the plaintiff. The cause was still open for the production of further evidence if either party desired. The order should be affirmed, with costs.” .

      3. O. Soutiworth, for the appellant. Richa/rd L. Hand, for the respondents.
   Opinion

per Owriam.

Present — Learned, P. J., Bockes and Osborne, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: per Curiam.

text:
    PAMELIA A. MARSH, Appellant, v. HARRY S. HOUSE and others, Respondents.

      Usw'y — action by devisee of mortgagor, to set aside a mortgage on the ground of — ■ plaintiff must first offer to pay the amount loaned, to his ancestor.

    Appeal from a judgment entered on the report of a referee dismissing the complaint.
    This action was brought to set aside a deed of certain premises executed by one Joseph E. Wiley and the plaintiff, his wife, to Benjamin Raymond, now deceased, on the ground that the deed was given to secure the payment of money loaned by Raymond to Wiley at a usurious rate of interest, to wit, twelve per cent.
    The jffaintiff, appellant, claims in the complaint a life estate in the use, rents and revenues of the lands, as devisee of the same under Wiley’s will, and also claims to be the executrix named in his will, and alleges that the remainder-men, except one, conveyed to her, all their interest in the real and personal property of Joseph E. Wiley, in his lifetime. The complaint does not allege repayment of the amount received by Wiley of Benjamin Raymond, or contain an offer to repay, nor was any such repayment or offer proved upon the trial. The defendants moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action and the motion was granted, and from the judgment entered thereon this appeal was taken. The court at General Term said:
    “ The other action is brought in equity to set aside a conveyance, absolute on its face, not allQged to be in fact a mortgage, on the ground of usury. It was a well-known rule that when a party came into equity to set aside an instrument on the ground of usury, he was required to do equity by offering to pay what he had borrowed, with legal interest. This, of course, did not prevent a party from making a defense at law without any such terms. The rule has been modified by statute in behalf of the borrower (Laws 1831, chap. 430), and the borrower is not now required to pay, or to offer to pay, the money borrowed. But this statute modification extends only to the borrower. ( Wheelook v. Zee, 64 N. Y., 246.) Other persons must still do equity if they would have equity. Mrs. Marsh was not a borrower. She never owed the money. She is the devisee of Wiley, who, as she claims, borrowed the money. She cannot, therefore, maintain the action in equity without offering to refund what was received.”

      Ralph dwmbumne, for the appellant. Taylor (& Kilburn, for the respondents House and King, as executors, etc.

      Albert Hobbs, for the respondents Raymond and Flanders. W. P. Cambwell, for the respondents W. W. and H. E. King.
   Opinion

per Curiam.

Present — Learned, P. L, Bookes and Osborn, JJ.

Judgment affirmed, with costs.


author: Osborn, J.;

text:
    JAMES H. SMITH, Respondent, v. DAVID WALDORF, Appellant.

      Animals trespassing on lands of person, other than their owner — rights of owner of land to drive them off with dogs.

    Appeal from a judgment of the Otsego County Court, affirming a judgment of a justice of the peace in favor of plaintiff for fifty dollars damages and costs.
    The plaintiff in his complaint claimed to recover the value of a cow, which he alleged was killed by the wrongful and illegal acts of the plaintiff.
    This cow had been trespassing on the plaintiff’s lands. The plaintiff found the cow lying injured a few feet from the fence separating the lands of the parties, but on his, plaintiff’s, side of the fence. She was badly injured, and in a few days thereafter died. The testimony showed that this injury was occasioned in the attempt made by the cow to jump over the division fence in a bad place, and in falling in the place where she was found by the plaintiff. There were no marks upon her indicating that she was bitten or injured by a dog. There were no marks to indicate any bite whatever, and the only evidence there was to warrant a recovery was that the defendant, finding this cow with two or three other animals belonging to plaintiff trespassing upon his lands, set his dog after them. There was no pretense that the dog did any thing more than to run after and baric at them. In her fright this cow jumped over the fence at a somewhat dangerous point, and received in consequence thereof these injuries. The other animals escaped in another, direction and were unharmed.
    The court at General Term said: “ It seems to us entirely clear that there was no evidence in the ease to warrant a recovery for the value of the cow; indeed, no evidence to warrant its submission to the jury in the Justice’s Court. The justice should have granted the motion to strike out all the evidence in reference to this cow, and his refusal to do so is error. There was no evidence that the defendant did any thing which he could not legally do in removing from his premises a trespassing animal. To accomplish this object he had the right to call to his aid a dog, as he did in this case. If the owner of the land should urge on to a trespassing. animal an ugly and vicious dog, which should unreasonably and unnecessarily bite and lacerate such animal, he might be liable; but that is not this case. There is no evidence that the dog touched the cow at all. Indeed, the positive evidence is that the dog was, at all times, at a considerable distance from the animal. (Sherman & Redfield on Negligence, § 200; 1 Hilliard on Torts, 115; 1 Addison on Torts, 480.)
    The injury to this cow was clearly the result of an accident and not of any unlawful or negligent act of the defendant. He is no more liable than if the cow had fallen into a pit while trespassing on his lands; or, as in the case of Bush v. Brama/rd, had drunk maple syrup and died, which defendant had negligently left in an open place. (1 Cow., 78.) ”

      Countryman & Bowen, for the appellant. Lynes (& Van Morn, for the respondent.
   Opinion by

Osborn, J.;

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

Judgment reversed, with costs.


author: Osborn, J.

text:
    ELLEN DE GRAFF, Appellant, v. JOHN CARMICHAEL, as Executor, etc., of CALVIN FORBES, Deceased, Respondent.

      The right to dose the case.

    Appeal from a judgment in favor of the defendant entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried. This action was brought upon a $3,000 note made to plaintiff by defendant’s testator. The answer alleged three defenses: First. A want of consideration. Second. The short statute of limitations. Third. Hnsoundness of mind of the testator at the time of signing the note. At the Circuit a verdict was rendered for the defendant. The plaintiff insisted that the court erred in refusing to allow plaintiff’s counsel to make the closing address to the jury..
    The court at General Term said: “ As to the third point raised by the appellant it is only necessary to inspect thé pleadings to determine this question, and it can only be determined by so doing. The action was upon a note. Its execution was not denied. There was nothing in the first instance for the plaintiff to prove. "When the trial was ready to proceed it seems no suggestion was made as to which party had the affirmative. The plaintiff’s counsel stated his case and presented the note, and upon its appearing to be mutilated called the witness to identify it and to explain how it came in that condition. But this was in reference to no issue raised by the pleadings. When the evidence was closed the question arose for the first as to who had the right to make the closing address to the jury, and the learned justice very properly held that the defendant’s counsel had that right. Certainly this was so according to the pleadings, noi do I see that any thing had taken place upon the trial by which the defendant had waived such right. A different ruling would have been erroneous and would have entitled the defendant to a reversal, in the event that the verdict had been in the plaintiff’s favor. (.Mil-lord v. Thorn, 56 N. Y., 405; Fl/mell v.Chamberlcmh, 31 id., 614.) ”

      8. W. JaoJcson, for the appellant. F. Fish, for the respondent.
   Opinion by

Osborn, J.

Learned, P. J., and Bocees, J., concurred.

■Judgment and order affirmed,-with costs,


author: Talcott, J.:

text:
    CATHARINE OUTHOUSE, Respondent, v. ORRIN OUTHOUSE, Appellant.

      Destruction by its maleen' of an outlawed note — measure of damages for — Presumption as to pleading the statute of limitations.

    This action was brought by the plaintiff against her brother, for the conversion of a note given to her for money borrowed by him. After the lapse of more than six years from the maturity of the note, he asked her to let him see it, promising to return it. Having obtained possession of it, he threw it in the stove and burned it up. The justice at the Circuit charged, with reference to the amount of damages, that the plaintiff was entitled to recover the face of the note with interest; that, though outlawed, it constituted a moral obligation sufficient to uphold a new note or promise; that, although the defendant could have pleaded the statute of limitations in an action upon the note, yet being a wrong-doer, he was entitled to no presumptions in his favor.

      Held, that the charge was correct.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for anew trial made at Special Term.

      H. L. Oomstook, for the appellant.
    The judge erred in charging the jury, in substance, that if the plaintiff’s testimony was true she was entitled “ to recover the full amount of the note, principal and interest, from tbe time it was given to her by her brother,” and the exception to such charge is well taken. (Rom/ig v. Romig, Eawle, 241; Lowremore v. Berry, 19 Ala., 130; O’Donohue v. Oorby, 22 'Mo., 393; Bredow v. Mut. Saw. Inst., 28 id., 181; Bose v. Lewis, 10 Mich., 483 ; Latham v. Brown, 16 Iowa, 118; Ingalls v. Lord, 1 Oow., 240; Mathew v. Sherwell, 2 Taunt., 439; King v. Hami, 6 Allen, 523; MLeod v. M’ Ghie, Man. & G., 326; Mercer v. Jones, 3 Campb., 477; Menki/ns v. Menkins, 23 Mo., 252; Graig v. McHenry, 35 Penn. St., 120; Mi/ni/nger v. Banning, 7 Minn., 274; Fell v. McHenry, 42 Penn. St., 41; Sedg. on Damages [5th ed.], 563 ; Bobbins v. Packard, 31 Yt., 570; Stephenson v. Thcvyer, 63 Me., 143; Booth v. Powers, 56 N. Y., 22.)

      Metcalf c& Field, for the respondent.
    In actions brought for conversion of promissory notes, chose in actions, etc., the rule seems to be well settled that the measure of damages is prima, facie the face of the note; and that is so, even when there is no wrongful or illegal act connected with the conversion. Practically there can be no other rule of damages. (See Sedg. on Damages [6th ed.], 488, 495 ; Potter v. Merchants’ Bk., 28 N. Y., 641; Declcer v. Mathews, 2 Kern., 313; Bose v. Lewis, 10 Mich., 483; Parry v. Frame, 2 Bos. & Pull., 451; Glowes v. Hawl/y, 12 Johns., 484; see, also, King v. Flam, 6 Allen, 298; Mayne on Damages, 294, 295 ; McLeod v. M’ Ghie, 2 Mann. & G. Peps., 326.)
   Talcott, J.:

This is an appeal from a judgment entered on a verdict at the Ontario Circuit. The parties are brother and sister. The jury must be held to have found, under the charge of the court, that the plaintiff held a note against the defendant for $175, given to her for money borrowed by him; that more than six years from the time the note became payable had elapsed, and that after that time, and in the year 1874, the defendant requested the plaintiff to show him the note, and she did so on his promise to return the same to the plaintiff after he had looked at it, and thereupon he put the note in the stove and burned it up, without the consent of the plaintiff, and against her will.

The only question pf law in the case arises upon the rule laid down by the judge as to the measure of damages. lie charged the jury, in effect, that if they found a verdict for the plaintiff, she was entitled to recover the full face of the note, with interest; that notwithstanding the note was outlawed, it constituted a moral obligation sufficient to form a good consideration for a new note or new promise ; that if the defendant should choose to set up the statute of limitations in a suit on the note, the defense would prevail, but that the defendant, being a wrong-doer, was entitled to no presumptions in his favor. It is true that the general rule in an action for the conversion of a note of a third party is, that the damages are to be measured by the amount apparently due upon the note, but it may be shown that by reason of part payment, or the insolvency of the party obligated to pay the note, or by reason of the existence of some legal defense to the note, the plaintiff has not, in fact, sustained damages to the extent of the face of the note by reason of its conversion. (Booth v. Powers, 56 N. Y., 22.) It is, however, held that where the maker of the note has converted it, in an action brought against him for such conversion, he cannot set up his own insolvency by way of mitigating the damages. The statute of limitations is a good defense if specially pleaded. If not specially pleaded it does not defeat an action on the obligation. The question is, whether it is to be presumed that the defendant would set up that defense to this obligation in behalf of his sister, as was conceded, for borrowed money and no part of which had been paid. Oould such a presumption be indulged as being the course likely to be pursued by a man under such circumstances, where the outlawry of the note was occasioned by the indulgence of his sister?

But could such a presumption be indulged in favor of this defendant ? He was a wrong-doer,'a willful trespasser and spoliator, and is not only deprived of all presumptions in his favor, but all presumptions are against him according to the maxim, “ O'irmia preswn'imiyw' eoni/ra spoliatorem.” It was upon this ground that the judge at the Circuit put his ruling on the question of the measure of damages, and we think it was a proper application of the rule.

Judgment- affirmed.

Present — MulliN, P. J., Taloott and Smith, JJ.

Judgment and order affirmed.


author: Taloott, J.:

text:
    MILTON EDMONSTON, Appellant, v. RUTH ANN EDMONSTON, Respondent.

      Estoppel — must he certain — effect of, when pm't of description of real property — it does not apply to eollat&ml actions — Declaration of person in possession of land — when admissible.

    In 1832 E. Edmonston died, being tben in possession, as was claimed, of a farm of 100 acres, leaving him surviving his widow and seven children, who continued in possession of the farm until 1844, when, by agreement," the east half was conveyed to the heirs in fee, and the west half to the widow, but whether in fee or for life was in dispute. The widow died in 1869, leaving a will by which she devised all her estate to her daughter, the defendant herein
    Upon the trial of this action, brought by one of the children against the daughter, to recover his share of the west half, the daughter claimed that the west half belonged to the mother in fee, by gift from her brother, who was a tenant in common of the farm with her father, and that during the lifetime of the latter he had set apart the west half of the lot to the mother.
    In the deeds of the east half, made in 1844, the lots were described as “ being lot No. —, in the subdivision of the east half of the farm of Elijah Edmonston, late of Phelps aforesaid, deceased, owned and occupied at his death.” The plaintiff claimed that the widow, by executing deeds containing the words in italics, was estopped from denying that the whole lot belonged to her husband at the time of his death.

      Held, that the words were too indefinite and uncertain to constitute an estoppel, as they might' be construed -as meaning that the east half only belonged to the husband.
    That as the words in question were part of a description of premises, already sufficiently described, no estoppel was created by them.
    That even if they did constitute an estoppel, it was limited to questions arising oh the deed itself, and would not apply to a collateral action, such as the present one, not founded upon the deed.
    That the declarations of the widow as to her title were admissible, as tending to characterize her possession, and to show that it was claimed under a title adverse to that of the heirs of Elijah Edmonston.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe verdict of a jury.

      Wm. F. Cogswell, for tbe appellant.

      J. G. Cochrane, for tbe respondent.
   Taloott, J.:

This is an appeal from a judgment rendered on a verdict, after a trial at tbe Ontario Circuit, in an action of ejectment, in wbicb a géneral verdict was rendered for tbe defendant.

Tbe parties are two of the heirs at law of Elijah Edmonston, deceased, who died in 1882, as was claimed, in possession of a certain 100 acres in the town of Phelps. He left him surviving his widow, Elizabeth Edmonston, and seven children. The widow and children continued to live on the 100 acres until some time in the year 1844, when an ¿arrangement was made between them by which the east half of the farm was conveyed by the widow to the heirs ih fee, and the west half was set off to the widow, but whether in fee or not was one of the matters in dispute on the trial, the conveyance to the widow not being produced and having apparently been lost or destroyed, without being placed on record. The widow died in 1869, leaving a will by which she devised all her real and personal estate to the defendant, her daughter, who resided with her until her death and remained in possession of the east half of the 100 acres. This action was commenced in 1870, and has been once tried before the late Samuel SeldeN, as a referee, who reported in favor of the defendant, and the plaintiff took a new trial under the statute, as of course, on payment of costs.

It appeared that the 100 acres were conveyed to Elijah Edmonston and one Robert Orme, as tenants in common. Edmonston and Orme came from the State of Maryland, and purchased the land in 1807. They were brothers-in-law, Mrs. Elizabeth Edmonston being the sister of Orme. Edmonston and Orme appear to have occupied the land in common, until Orme, finding the climate did not agree with him, left this part of the country and returned to Maryland, and so far as appears, wholly abandoned his claim to the 100 acres. He died in the year 1827, never having been married, leaving the said Elizabeth Edmonston as one of his heirs at law.

There was evidence in the case tending to prove that MrsEdmonston claimed that her brother, Robert Orme, as he was about to leave this section of the country and return to Maryland, made a parol gift of his interest in the 100 acres to her, and there was evidence tending to show that Elijah Edmonston, in his lifetime, recognized the right of his wife to one-half the farm of 100 acres, and also tending to show that a division had been made of the 100 acres between Edmonston and his wife, and that to her was assigned the west half of the 100 acres. The house in which the widow and children lived until about the year 1844, when the settlement took place between them, whereby she conveyed the east half of the farm to the heirs, and retained the west half herself, was situated on the west half, and she continued to live there till her death.

The point first presented by the appellant’s counsel is, that the law will presume a grant from Orme to Edmonston by reason of the long possession of the latter. It does not become important to examine this position in this case, because we do not see that the question was anywhere raised upon the trial, either by a request to the court to so instruct the jury or otherwise, and this being an appeal from the judgment, we have nothing to do with any thing but questions of law raised upon exceptions. (Boos v. The World M. Life Ins. Co., 64 N. Y., 236.) The same answer applies to another proposition of the counsel for the plaintiff, to wit, that the defendant acquired no advantage by her deeds from the heirs of Orme, as, being a tenant in common with the other heirs of her father, her deed inured to their benefit.

The appellant’s counsel then claims, that the recital in the deeds between the heirs of Edmonston, that the 100 acres was owned and ooowpied by Elijah Edmonston, estops the defendant from claiming the same. The only exception taken by the plaintiff in respect to the charge, is to the refusal of the court to charge, as requested, in the following language: “ That the transaction which occurred in 1844,' the agreement and execution of these papers to the defendant, created an estoppel which prevents the defendant from setting up title.” The court refused so to charge and the plaintiff’s counsel excepted. The estoppel is now claimed to arise out of certain language used in the various deeds of subdivision of the east half of the 100 acres, all which were executed by Elizabeth Edmonston, and all, except the deed to herself, by the defendant, conveying to each of the heirs the portion of the east half of the said 100 acres which had been by an agreed partition set off to each of the heirs respectively. The language is a part of the description of the premises, and, taking the deed to the plaintiffs as an illustration, is as follows: “ Being lot No. 4 in the subdivision of the east half of the farm of Elijah Edmonston, late of Phelps, aforesaid, deceased, owned and occupied at his death.”

Estoppels are not favored in the law, for where they exist they prevent evidence of the truth being given; wherefore, in order to constitute an estoppel, it should appear very clearly that the party sought to be estopped, deliberately made an affirmation or recital of the fact in question, and there should be no question but- that he meant to state or recite, as a fact, that which he now seeks to contradict; and it is to be observed that the supposed estoppel in this case is in no wise certain'; and it might be a question of doubt whether the words owned and occupied at his death,” referred to any thing more than the east half of the farm. The expression does not seem to be of that degree of certainty required in estoppels by deed; but of doubtful import, and such as might, at all events, be understood by the party executing the deed, to do no more than recognize the fact that Elijah Edmonston, at his death, owned and occupied the east half of the 100 acres in question. It will be perceived, also, that the recital by which it is claimed that the defendant is estopped is introduced into the deed as a part of the description of the premises, sufficiently described before, as being outer lot No. 4, in the subdivision of the east half of the farm of Elijah Edmonston. It is doubtful whether the principle of estoppel applies to matter of description.

In Doane v. Willcutt (16 Gray, 360) a party to an indenture of partition containing a full and accurate description of the land and a recital that it had been set off to a widow, was held not to be thereby estopped, to show that land held by him under a lease from the widow, of all the premises set off to her as dower, was not, in fact, though so recited, embraced in the dower lands. And in that case, Merrick, J., delivering the opinion of the court, says: “ This recital, however, is plainly only a part of the description of the estate upon which the deed was intended to operate, which is therein otherwise fully and accurately described. The doctrine of estoppel is not applicable to such a case. Where several particulars are mentioned and referred to in the description of the land conveyed, some of which are found to be erroneous, these may be rejected as a false demonstration, and the other parts of the description which are unambiguous and correct may be relied on to fix and determine tbe rights of the parties under the deed.” And the record of the assignment of dower was held to have been properly given in evidence, though it contradicted the recital, and the party claimed to be estopped by the recital was permitted to set up a title by adverse possession. So, too, an estoppel is limited to questions arising on the deed itself, and does not operate collaterally.- (Bigelow on Estoppel, 286 ; Herman on Estoppel, 238.)

In Carpenter v. Buller (8 Mees. & W., 209) the court says: “ But there is no authority to show that' a party to an instrument would be estopped in an action by the other party, not founded on the deed and wholly collateral to it, to dispute the facts so admitted, though the recital would certainly be evidence.” It was on the latter ground, as we understand from the opinion of Judge Selden, as referee on the former trial of this case, that he held the defendant not to be estopped. •

The counsel for the appellant also insists that the admission of the declarations of Mrs. Elizabeth Edmonston, made to various witnesses and on various occasions as to her title, were clearly erroneous. Those declarations were inadmissible for the purpose of establishing such title, but the only objection made was to the admissibility of the testimony. The declarations of Mrs. Edmonston while in possession, on the subject of whether she claimed title and what title, were, we think, admissible in evidence to characterize the possession, as whether it was claimed under a title adverse to that of the heirs of Elijah Edmonston ; and specifying what title she did claim under, was one mode of showing that she claimed under an'adverse title. (Jackson v. Vredenburgh, 1 Johns., 159; Jackson v. Vandusen, 5 id., 144.) In the case last cited, Yan Ness, J., delivering the opinion of the court, says: “ It is every day’s practice to admit the declarations of the person in possession, to show under whom and by virtue of what title he holds. That such evidence is proper has been so repeatedly decided by this court, that I supposed the point was completely at rest.”

The plaintiff offered in evidence what purported to be a copy of, the will of Orme, that is, the .original will and proofs were probably lost, and the copy offered was a copy of what purported to be a copy of said will, as engrossed on the records of the County Court of Jefferson county, West Yirginia. The will purported to have been made in 1827, and purported to bave been signed by Robert Orme, by bis mark. If genuine, tbe will purported to devise to Malvina Dooley, all tbe land to wbieb tbe testator- was entitled in tbe county of Ontario, State of New York. Tbe evidence was rejected by tbe court. It is probably enough to say of tbis offer, that it was wholly immaterial, as tbe will did not purport to convey any title to tbe plaintiff, and be did not propose, in any manner to connect bis title with tbe devisee named in tbe will.

Thus, having considered all tbe reasons presented by tbe appellant’s counsel for a reversal of tbe judgment, we conclude that they are insufficient, and whatever might bave been tbe effect of tbe charge of tbe judge, or tbe omission to instruct tbe jury as to tbe legal position of tbe parties, we do not find that any exception was taken to tbe charge, save only that touching tbe alleged estoppel, in regard to which we- think the learned judge was correct.

Judgment affirmed.

Present — Mullen, P. J., Talcott and Smith, JJ.

Judgment affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. ADAM AINSLEE v. ALFRED A. HOWLETT and others.

      Swmmm'y proceedings — what defense may be set up by tenant — That lease was in fact a mortgage— that it was void for uswry — how proved.

    In summary proceedings instituted to remove the relator from certain premises, on the ground that he was holding over after the expiration of his term, he made an affidavit stating that on the day on which the respondent alleged that the lease was made he executed and delivered to the respondent an absolute deed of the premises, and he and the respondent executed an agreement hy which he agreed to huy the premises for a price therein named, to he paid on the day the lease expired, and also executed the lease upon which the proceedings were instituted; that said instruments were all given at the same time to secure the repayment of a sum of money loaned to him hy the respondent, and were in fact a mortgage; that upon the said loan usurious interest was reserved, the payment of which was secured hy the said lease.

      Held, that it was competent for the relator to establish in such proceedings, that the instrument purporting to create the relation of landlord and tenant between himself and the respondent was in fact a mortgage to secure the repayment of a loan.
    That it was also competent to show that such instrument was given to secure a usurious loan, and was therefore void.
    That the establishment of either of these facts would require the proceedings to be decided in his favor.

      Semble, that in summary proceedings it would not be competent to establish by parol evidence, that a deed absolute upon its face was intended as a mortgage.
    Where, however, the affidavit does not specify the kind of evidence by which it is expected to establish this fact, it must be presumed that it will be proved by competent evidence.
    Oeetiobabi to review proceedings instituted before tbe county judge of Onondaga county, under tbe landlord and tenant act, to remove tbe relator from certain premises on the ground that be was bolding over after tbe expiration of bis term.

      Fuller (& Vann, for tbe relator.

      D. Pratt, for tbe respondent.
   Talcott, J.:

This is a writ of certiorari, under tbe landlord and tenant act, to remove proceedings bad under that act before tbe county judge of Onondaga county. By tbe return it appears that tbe affidavit of tbe respondent, who claimed to be tbe landlord of tbe relator, was in due form, and that tbe county judge issued bis summons, which was duly served on tbe relator, who appeared before tbe county judge on tbe return thereof.

Tbe affidavit of tbe respondent on which tbe county judge issued tbe summons stated that on tbe 15th of May, 1876, tbe respondents let unto tbe said Adam Ainslee certain premises therein described, consisting of a farm in tbe town of Dewitt, from May 15, 1876, to tbe 1st day of April, 1877; that tbe said term has expired and that said Ainslee bolds over and continues in tbe possession of tbe premises without tbe permission of tbe respondents, bis landlords. At tbe return of tbe summons tbe relator Ainslee appeared and interposed his affidavit to the effect that on the 15th of May, 1876, in order to secure a loan then made to him by the repondents he executed and delivered to them a certain instrument in wilting, of which a copy is annexed (and which, upon examination, appears to be in form an absolute deed from Ainslee and wife, to the respondents, of the premises in question with covenant of warranty), and that the respondents at the same time executed and delivered to him, Ainslee, under their hands and seals, a written instrument, a copy of which is also set forth as Exhibit B, and at the same time the respondents executed and delivered to him a certain other instrument, also set forth as Exhibit C. The said instrument set forth as Exhibit B appears to be an executory contract made by the respondents of the first part and said Ainslee of the second part to sell and convey to said Ainslee in fee simple, with covenants of warranty, the same premises, and contains a covenant on the part of Ainslee to purchase the same, and pay, and secure to be paid, therefor on or before the 1st day of April, 1877, the sum of $16,600, with a further covenant on the part of Ainslee “ that in case the said party of the second part has possession of said premises before the execution and delivery of said deed, and in case of his failure to perform any of the covenants herein contained, he will quietly yield up and deliver peaceable possession of said premises that the party of the first part may, immediately after such failure, re-enter and take possession of the same without any previous notice to quit in reference to any legal proceedings to recover possession thereof.”

Exhibit. C, referred to in said affidavit, purports to be a lease of the same premises from the respondents of the first part to said Ainslee of the second part, from the day of the date of the lease, 15th day of May, 1876, to the 1st day of April, 1877, at the rent of $1,209.82, to be paid at the expiration of the said term, and containing a covenant on the part of Ainslee to pay said rent and to pay the taxes assessed on the premises during the term, and contains the usual clause of re-entry and a covenant on the part of Ainslee to quietly yield the possession of the premises at the expiration of the term.

The affidavit of Ainslee, after setting forth these papers, proceeds to say that the deponent denies each and every allegation and statement in the affidavit of the respondents on which the summons was issued, not hereinbefore specifically admitted. The admission is, therefore, of the execution of the said papers. The affidavit then proceeds to state that all of said instruments A, B and 0, were part of one and the same transaction, and all were simply designed as security for a loan from the respondents to Ainslee. That in the month of May, 1876, Ainslee, being in need, applied to the respondents for a loan of $5,600 ; that they agreed to make the loan until April 1, 1877, and that Ainslee agreed to pay them the sum of $500 over and above the lawful interest for the use and forbeai’ance of said sum from the 15th day of May, 1876, to the 1st day of April, 1877; and that the said instruments A, B and C were executed as security for said usurious loan; that it was agreed between them that the $500 excess of interest should be taken in the name of and under cover of rent; and that said instruments A, B and C, and particularly the lease, were executed and delivered to conceal the usury in said loan; and that said Ainslee has been in the constant possession of the premises described in the affidavit on which the summons was issued, for about forty-six years last past, and that the respondents never have been in possession of the same, or any part thereof; that the deed and lease were collateral to the loan of the money, and were simply a mortgage in fact, and were so intended by the parties thereto. The affidavit of Ainslee also contains certain further particulars and allegations unnecessary on this occasion to refer to. The county judge held that the affidavit of Ainslee did not show any cause to the contrary, and thereupon issued his warrant of possession, as in case of no cause being shown by the tenant.

The first question which arises on this return is, whether the fact that the instruments, namely, the conveyance from Ainslee and wife, the contract of sale and the lease, may be shown to be, in fact, a mortgage as security for a loan, and then that the actual relation of landlord and tenant did not exist between the parties; and for this purpose the allegations of Ainslee’s affidavit must be taken as true. The effect'of that affidavit, taken all together, is that the three papers referred to, instead of being actually intended to be what they purport to be on their face, were, in fact, intended as security for a loan in the nature of a mortgage ; presenting the precise case presented in Roach v. Cosine (9 Wend., 227), where the alleged tenant was permitted to show by parol that a similar arrangement under which he held possession of the premises was, in fact, only intended as security for a loan. The case of Roach v. Cosine came up on certiorari to remove summary proceedings under the landlord and tenant act, and in that case, although the jury had found a verdict for the landlord, the proceedings were reversed. The court, Savage, J., saying: “ If, in this case, the sale was absolute, and Roach was to remain in, free of rent or at a nominal rent, for two years, and continue to hold afterwards without any new agreement, he was a tenant at sufferance ; but if the conveyance, though absolute in its terms, was in reality a mortgage, and so intended by the parties, then Roach remained the owner, notwithstanding the agreement that Cosine should receive the rent. * * * I need not cite cases to establish the proposition that this conveyance, though absolute in its terms, was only a mortgage; as such it is to be treated, and Cosine has no remedy to enforce it, which he would not have had, had it been a mortgage in form. It cannot be contended that the statute under which these proceedings were had, was intended to afford an expeditious mode of foreclosing a mortgage.”

In one respect, and in one only, the case of Roach v. Cosine may be considered to have been overruled; that is in reference to proving by parol at law, that an absolute deed was intended only as a mortgage, for it was subsequently held by the Court of Errors, in Webb v. Rice (6 Hill, 219), that parol evidence is not admissible in a court of law, to show that a deed absolute in form was intended as a mortgage, and it may be doubtful, therefore, whether in these summary proceedings, parol evidence could be resorted to for that purpose. Since the Code, it is held, that inasmuch as it provides that the defendant may set up any defense in an action, whether such defense was theretofore a legal or equitable defense, that the same rule of evidence that prevails in equity, in regard to showing that a deed absolute in form was intended as a mortgage, also prevails in regard to such defenses. (Crary v. Goodman, 12 N. Y., 266; Despard v. Walbridge, 15 id., 374.) But these summary proceedings under the landlord and tenant act, are expressly exempted from the operation of the Code of Procedure, by section 411. (See Benjamin v. Benjamin, 5 N Y., 383.) It may be doubtful, therefore, to say the least whether, in the summary proceedings, parol evidence can now be given to turn an absolute deed into a mortgage, but it is to be observed that tbe affidavit of Ainslee does not specify the kind of evidence by which he expects to show the facts which he avers, and the presumption must be that they can be shown by some evidence which is competent for this purpose.

Again, the affidavit denies all allegations contained in the affidavit on which the summons was issued, except the fact of the execution of the deed, the contract for the conveyance and the lease; and he alleges, that although the lease was in form executed, still it was intended to secure a usurious rate of interest, which was to be secured in the lease under the name and cover of rent. He, in substance, denies that he holds of the respondents, except by virtue of the execution of this usurious lease; he alleges that the respondents are not his landlords, and that though such a paper is in existence, purporting to have been duly executed, it is void for usury. There is no rule of law or equity which prevents usury or a usurious device being shown by parol, and if it be true that the lease is a usurious device, it is void at law. The parties to it are not bound and we do not see how the supposed landlords are to maintain these proceedings, if it be true that the supposed relation of landlord and tenant is created only by an instrument which is void as against the supposed tenant. The conventional relation of landlord and tenant does not exist between the parties in such a case, and the facts averred in the answer amount to a denial of the existence of the relation. We think the county judge erred in holding that there was nothing in the affidavit of the relator which traversed the affidavits of the respondents, and that he should have summoned a jury in pursuance of the statute. As a consequence, the proceedings before the county judge must be reversed, and as in this case the county judge has issued a warrant of possession in behalf of the respondents, it is a case requiring restitution under the statute.

Proceedings before county judge reversed, and restitution of the premises described in the warrant of possession ordered, with costs to the relator.

Hullin,. P. J., concurs in result; Smith, J., does not vote.

Ordered accordingly.


text:
    WILLIAM R. McNAIR, Assignee, etc., Respondent, v. THE NATIONAL LIFE INSURANCE COMPANY OF THE UNITED STATES OF AMERICA, Appellant.

      Action upon a policy of insurance — DeclanxMon by doctor as to cause of death — admissibility of.

    This action was "brought to recover upon a policy of insurance, issued by the defendant upon the life of the son of the plaintiff’s assignor, for her benefit. In the application for insurance, signed by the son and plaintiff’s assignor, in answer to a question as to the cause of his father’s death, he stated “ don’t know.” Upon the trial it was claimed by the defendant that the father died of consumption and that this fact was known to the plaintiff’s assignor. Upon the examination of the plaintiff’s assignor she was questioned as to the disease by which her husband-died, and answered: “The doctors called it torpor of the liver and disease of the stomach and heart.” It appeared that both of the physicians who had attended the husband were dead at the time of the trial. The defendant claimed that the evidence as to the statements of the doctors was inadmissible, as being mere hearsay.

      Held, that the evidence was admissible as bearing upon the question of fact, whether or not the witness knew the disease with which her husband was afflicted and of which he died.
    That the declaration was also admissible, as having been made by the doctors in the ordinary discharge of their professional duties.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe report of a referee. Tbe plaintiff sues as tbe assignee for tbe benefit of tbe creditors of Cliauncey W. Gibson, tbe assignee of Mary Marsb, tbe party for whose benefit tbe policy of insurance, to recover on wbicb tbis action was brought, was issued on tbe life of her son Charles H. Marsb.

      James Wood, for tbe appellant.

      E. A. Nash, for tbe respondent.
   Talcott, J.:

Tbis is an ajipeal from a judgment entered on tbe report of a referee in favor of tbe plaintiff.

Tbe action is upon a policy of life insurance, issued in April, 1869, to Mary Marsb, of Avon, Livingston county, insuring tbe life of her son, Charles H. Marsh, of the same place, for the sum of $5,000. The appellant calls our attention to but one exception to the referee’s ruling as to the admission of evidence, which arose as follows: The application for the policy was signed by Charles Ii. Marsh, the person whose life was insured, and by the assured, Mary Marsh. Among other questions and answers contained in that application, the applicant was ashed the cause of his father’s death, to which he had answered, “ Don’t know.” On the examination of Mrs. Mary Marsh, as a witness in the cause, it appeared that the husband had employed, at different times, two regular medical attendants, Dr.. Salisbury, who attended him when ill until he (the doctor) died, and afterward Dr. Catón, who continued to attend Mrs. Marsh’s husband until his (the husband’s) decease. It was claimed on the part of the defendant, and evidence had been given tending to establish the fact, that Charles Marsh, the husband of Mary Marsh, and the father of Charles' Henry Marsh, who signed the application in behalf of his mother, had died from pulmonary consumption in or about the year 1859, and that Charles Henry was about at home when his father died, and that Mrs. Mary Marsh, the assured, was in attendance upon her husband previous to and at his death. And among other things, the counsel for the defendant had asked one Dr. Nesbitt, who testified that he had been called in consultation previous to the death of Charles Marsh, the following question, “"Was it understood and stated in the family with what disease Charles Marsh was afflicted ? ” To this question the counsel for the plaintiff objected. The objection was, however, overruled by the referee, and the witness answered, “It was said in the presence of the whole family, again and again, that the disease was consumption.”

On the examination of Mrs. Marsh after she had detailed some of the symptoms of her husband’s disease, she was asked of what disease her husband died; to which she answered, “ The doctors called it torpor of the liver, and disease of the stomach and heart.” The counsel for the defendant then objected to the witness testifying to the declaration of physicians as incompetent. The objection was overruled, and the defendant excepted. Other testimony of the same character was taken under exception; the ground of the objection being, as stated in the case, that “ such proof must be made by the physicians themselves.” Mrs. Marsh had stated that Drs. Salisbury and Catón were the physicians of her husband, and seemed to be ignorant that Dr. N esbitt had ever been called to visit him ; ^nd it had been shown that both Dr. Salisbury and Dr. Catón had died before the trial. These objections were overruled.

And among other things the witness stated, in substance, that she had asked both Dr. Salisbury and Dr. Catón, while in attendance upon her husband professionally, if her husband had consumption or lung trouble, and they told her he had not.

The counsel for the defendant on this appeal insists that the evidence was inadmissible, as mere hearsay. We think the evidence was competent.

First. As bearing upon the question of fact, whether the witness did know with what disease her husband was in fact afflicted and of which he died. Of course, in order to prove her statement untrue, the defendant must show that she did know the precise disease of which her husband died, as the referee well remarks, amid the conflict of opinion of medical men,” there was afforded ample justification for a layman to say, he did not know the disease of which Charles Marsh died. Laymen can only form conclusions as to what disease caused the death of a person, in general, by the announcement of the physicians in attendance, and where these are vague or uncertain or conflicting, the only safe way for an applicant for insurance is to state his ignorance of the fact, as, if he should undertake to state precisely, what had caused the death, he might attribute it erroneously, or at all events, give rise to controversies such as this case discloses. Besides, the declarations of physicians while in attendance upon a patient are in some sense a part of the res gestae. Stephens, in his recent work on the Law of Evidence, lays down as an established rale of evidence, a proposition under which the declarations of physicians as to what disease afflicts a patient are admissible. He says: “A declaration is relevant when it was made by the declarant in the ordinary course of business, or in the discharge of a professional duty at or near the time when the matter stated occurred, and of his own knowledge. Such declarations are irrelevant, except so far as they relate to the matter which the declarant stated in the ordinary course of his business or duty.” (Stevens on Ev., art. 27, p. 33.)

Of course the declarations of Salisbury and Oaton to Mrs. Marsh, of their opinion as to the nature of the disease which afflicted her husband, were declarations in the ordinary line of their professional duty, and as such, receivable in evidence to establish the fact, that they entertained such opinions as they stated.

This is all the exception in relation to the rulings upon the admissibility of evidence to which our attention has been called. As to the general merits of the case, we adopt the opinion of the learned referee, and must affirm the judgment.

Judgment affirmed.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed.


text:
    SAUNDERS IRVING, Sole Executor, etc., of CLARISSA GREIG, Deceased, v. JOHN RANKINE, Administrator, etc., of JOHN GREIG, Deceased.

      Annuity — apportionment of— ehap. 543 of 1875.
    A testator who died April 9, 1858, left to Ms wife, by will, Ms mansion-house and certain land, together with cattle, farming implements, furniture, etc., and an annuity for life of $10,000 a year, to be paid in semi- annual payments, the first half yearly payment to be made in six months from his decease, such devises and bequests being given in lieu of dower. The annuity was payable October ninth and April ninth in each year. The wife died on April 1, 1877. In an action by her executor to recover the pro rata proportion of the annuity up to that date, held, that the annuity could not be apportioned.
    Chapter 543 of 1875, changing the common-law rule as to the apportionment of annuities, only applies to instruments executed or taking effect after its passage.
    Oontroveb.sy submitted upon au agreed statement of facts, without action.

      E. G. Lcvpham, for the plaintiff.

      W- JJ- Adorns^ for the defendant.
   Talcott, J.:

This is a controversy submitted upon facts admitted. The facts are as follows:

John Greig, late of Canandaigua, died on the 9th day of April, 1856, leaving a last will and testament, whereby he devised to his wife Clarissa, in fee, his principal mansion-house and the land -on which the same was situated, containing ten acres, and certain other premises containing thirty acres in the village of Canandaigua, and the stock of cattle, horses and carriages, implements of husbandry, farming utensils and crops growing on said premises ; and also the furniture, plate, linen, paintings, books, liquors and other personal property, and also the stock of cattle, horses, carriages, implements of husbandry and farming utensils situate upon two farms, the title to which was in the said John Greig and his wife Clailssa, and which survived to her; and also an annuity for life .of $10,000 per rnimwm, in semi-ammal payments, the first half yearly payment to be made in six months from his decease, which devise and bequests were given instead of, and in lieu and satisfaction of, dower in his estate.

The defendant John Rankin is the administrator of the estate of the said John Greig, with the will annexed. On the 1st day of April, 1877, Clarissa Greig, the widow and annuitant named in the will, died, leaving a- last will and testament, which has been duly probated, and of which Saunders Irving, the plaintiff, is the sole executor and trustee.' By the terms of the will of said John Greig the annuity of $10,000 a year to said Clarissa Greig became payable on the ninth day 'of October and April in each year, and the same was paid to her to and including the ninth day of October, 1876, she having accepted the provisions of said will of John Greig in lieu of dower. John Greig died seized and possessed of a large real and personal estate, his real estate being valued at upwards of $70,000. The said Clarissa Greig continued to occupy the homestead or “ principal mansion house ” of said John Greig, deceased, until her death, at an annual expense exceeding the amount of her said annuity. Said Rankin, the administrator of said John Greig, with the will annexed, declines to make any further payment on the said annuity, having doubts about his right to do so.

The question submitted to the court is, whether the plaintiff as executor and trustee of the said Clarissa Greig, is entitled to an apportionment of the semi-armual installment of the said annuity, which, would have become payable to Mrs. Greig had she lived until the ninth day of April last.

It is well settled at the common law that there can be no apportionment of annuities. (Williams on Executors, 109; 3 Redfield on Wills, 184, § 13; Story’s Eq. Jur., vol. 1, § 410; Griswold v. Griswold, 4 Bradf., 216; Wiggin v. Swett, 6 Metcalf, 194.)

In the case of Wiggin v. Swett, cited, the husband provided in his will for the payment of an annuity of $800 to his wife, in quarterly installments; the wife died three days before a quarterly installment became due, but it was held that the annnuitv could not be apportioned and that her representatives were not entitled to receive a pro rata payment.

There are two exceptions to this rule recognized by the English authorities, which have been put upon the necessities of the case. One is the case of an annuity for the support and maintenance of infants. (Howell v. Hanforth, 2 W. Black, 1016; Hay v. Palmer, 2. P. Wms., 501; Ex parte Smyth, 1 Swants., 349 and note.) So, an annuity for the support of a wife, living separate and apart from her husband. (Note to 1 Swanst., 349, above cited.) These exceptions have been allowed from the necessities of the case, as otherwise the infants in the one case, or the wife living upon a separate maintenance in the other, could not procure credit for necessaries from the time when one installment became due to the next, unless the creditor should chose to take the risk of the annuitant surviving until the next installment became due. These, however, are noticed as remarkable exceptions to the general rule; and it has been held that they were not applicable to the case of a married woman living with and supported by her husband; and we do not find that they have ever been extended beyond the two cases referred to.

It. is claimed by the executor of Mrs. Greig that a provision in lieu of dower falls within the same principle ; but, in this case at least, there cannot be the same ground of necessity, for, besides a large and valuable property given to her in fee, Mrs. Greig had other valuable property, viz., the two farms which she took by survivorship. It is said that in the case of Wiggin v. Swett (6 Met., 194) it did not appear that the annuity was given in lieu of dower. It does not appear in the case how that was; and though probably the annuity was in lien of dower, the circumstance not being referred to as mating any difference, shows that the court considered it of no importance in the application of the common-law rule.

The rule of the common law on this subject has been abrogated as to annuities created by any instrument executed or going into operation after the passage of the statute (4th Wm. IY, c. II), and parliament has been followed by the legislature of this State (see Laws of 1875, ch. 542), likewise confined in its operation to instruments executed or taking effect after the passage of the act. The will of John Greig took effect on the ninth day of April, 1858, and therefore does not come within the provisions of the act of 1875.

We therefore think the representative of Mrs. Greig has no legal claim to any part of the annuity which would have accrued from October 9, 1876, to April 9, 1877; and, in pursuance of the stipulation, we order a judgment to be entered in favor of the defendant, with costs and disbursements, but without costs for any proceedings prior to notice of trial.

Present — Mullin, P. J., and Talcott, J.; Smith, J., not sitting.

Judgment in favor of the defendant, with costs and disbursements, but without costs for any proceedings prior to notice of trial.


text:
    ANSEL EMERSON, Respondent, v. THE AUBURN and OWASCO LAKE RAILROAD, Appellant.

      Summons — served upon corporation— “managing agent” of — who is.

    One Treat, tbe president and superintendent of a street railway in Auburn, was, on June 1, 1876, employed by the president of tbe defendant, a steam railroad company, to superintend tbe running of borse cars on a portion of defendant’s road not yet completed. • Treat bad no authority to make contracts for the defendant, except to purchase horses and feed; nor bad be any control over or knowledge of tbe affairs of the defendant, or its books; bis employment was to continue during tbe president’s pleasure.

      Held, that a summons, in an action against tbe defendant, could not be served upon him as its “managing agent.”

      Appeal from an order made at the Special Term, denying a motion to set aside the service of a summons.

      Ed. O. Marvin, for the appellant.

      Wood <& Ratlibun, for the respondent.
   Talcott, J.:

This is an appeal by the defendant, from an order of the Onondaga Special Term, refusing to set aside the service of a summons in this action. The attorney for the defendant appeared for the purposes of the motion only, and moved to set aside the service of the summons, upon the ground that it was served upon a man who was casually and temporarily in the employ of the defendant.

Manly T. Treat, the person upon whom the service was made, as appears by his affidavit read on the motion, was the president and superintendent of a street railroad company in Auburn, known as the East Genesee Street and Seward Avenue railway, and. on or about June 1,1816, Elmore P. Boss, the president of the defendant, on a personal interview with the witness, employed the witness to superintend the running of horse cars for the conveyance of passengers, on a portion of defendant’s road not yet completed; that the witness does not make, nor has he any authority to make, any contracts for the defendant, except for the purchases of horses and feed needed for the said portion of the passenger traffic of the defendant; that the witness, under the direction of the said president, has hired two men to act as drivers on said road, and that he never sells tickets, or takes fares on the defendant’s road ; that he has no control over, or knowledge of the affairs of the defendant, or knowledge of its finances or books, and that he was employed by said president as aforesaid, for no stated time, but for a term to continue at the pleasure of the said president, and that said Elmore P. Ross has been for several years the president of the defendant,'and Charles N. Ross is the secretary and treasurer of the defendant, and both of these have offices within a few rods of the office of the plaintiff’s attorney.

No complaint was served with the summons.

It appears to bo plain that the person served was not the “ managing agent ” of the defendant. (See Brewster v. The Mich. Central R. R., 5 How., 183.) Where it is held in an opinion by Wells, J., that a managing agent within the meaning of the statute in reference to the service of summons on a corporation, must be one who is engaged in the management of the corporation, in distinction from the management of a particular branch or dejrartment of its business. See, also, Flynn v. Hudson Railroad Company (6 How., 308), wh.ere it was held- that to be a “ managing agent ” . within the meaning of the said statute, the person must have the same general supervision and control of the general interests of the corporation that are usually associated with the office of cashier or secretary.” In Doty v. Michigan Central Railroad (8 Abb., 427) it was held, that a person who had sole charge of selling tickets for the defendant, was not a managing agent and service upon him was set aside.

It is suggested that the motion was denied because the affidavit read on behalf of the defendant did not specify the grounds of the motion under the forty-sixth rule of the court. That rule applies only to motions for vrregula/rit/y. The motion in this case went to the jurisdiction of the court, and probably, a judgment taken by default, in an action founded on such a service would be wholly void.

Nor was the defendant compelled to wait until the plaintiff had taken any further steps. It is necessary to hold these services of summons strictly within the statute limitation, or otherwise, great frauds may be perpetrated by attempting to get jurisdiction of a corporation by service upon some mere employe, who has nothing to do with the general management of the corporation.

The order appealed from is reversed, with ten dollars costs and disbursements, and the service is set aside with ten dollars costs of the motion.

Present — Mullin, P. J., Talcott, and Smith, JJ.

Order appealed from reversed, with ten dollars costs and disbursements, and service of the summons set aside with ten dollars costs of the motion.


text:
    JAMES H. BURHANS, Respondent, v. LESTER CARTER, Appellant.

      Exchange of note for bond and mortgage — fail/ure of consideration — Agreement ra/rying tei'ms of note — when it cannot be established by pa/rol.

    Prior to September 29,1871, Weir, as the testamentary guardian of the plaintiff, had received $500 in cash and a bond and mortgage for $1,100. On that day plain- . tiff and Weir stated to the defendant that Weir had used and spent the $500; that he could not repay the same and could only secure it by a bond and mortgage on his house which was already incumbered; that Weir could not make a mortgage directly to his ward and asked defendant to take a bond and mortgage on Weir’s house and give his note for the $500. Defendant accordingly gave a promissory note for $500, payable February 7, 1875, when plaintiff would be of age, “to Robert Weir, as guardian of James H. Burhans,” with interest payable annually, and received from Weir a bond and mortgage forthe same amount, payable at the same time. Subsequently Weir’s house was sold upon the foreclosure of a prior mortgage and no surplus remained for payment of defendant’s mortgage.
    In an action upon the note, held, that upon the exchange of the note for the bond and mortgage each became a valid and legal obligation, enforceable by the holder as a purchaser for value, and that plaintiff was entitled to recover though defendant had received nothing upon his mortgage.

      Semble, that an agreement that the defendant should not be liable on the note according to the terms thereof, but only for so much as he should receive upon the bond and mortgage, could not be established by parol.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      8. JR. Pratt, for the appellant.
    There was a totai failure of consideration for the note, and the plaintiff was not entitled to recover. {Aldrich v. Stoe7cioell, 9 Allen, 45,; Sawyer v. Chambers, 44 Barb., 42; S. C., 43 id., 622; Colmille v. Besley, 2 Denio, 139 ; Cross v. Huntley, 13 Wend., 385 ; Head v. Siemens, 19 id., 411; MeDougall v. Fogg, 2 Bosw., 387; Tappcvn v. Van Waggenen, 3 Johns., 465 ; Briggs v. Vanderbilt, 19 Barb., 222; Hills v. Bam/niste/r, 8 Cowen, 31; Spaulding y.Vcmdereoo7c, 2 Wend., 431; 1 Parsons on Contracts, 462.)

      A. H. Francis, for the respondent.
    The evidence of defendant and Weir shows valid, legal and full consideration for the note, in the bond and mortgage and the $1,100 mortgage delivered up by Weir, as between Weir and defendant. (Ray v. Richards, 21 Wend., 626; Dowev. Selmtt, 2 Denio, 621; Wooster, etc., v. Jcnkmsy 3 id., 187; Troy Vity Ramie v. McSpedon,- 33 Barb., SI; Bassett v. Bassett, 55 id., 505; 6 Duer, 341; 15 Johns., 44.)
   Talcott, J.:

This is an appeal from a judgment entered on the report of a referee. The action is upon a promissory note made by the defendant to one Robert Weir, as guardian of the plaintiff, on the 29 th day of September, in the year 1871. The answer admits the making of the note, but alleges that it was given without consideration, and solely for the accommodation of the said Wier as such guardian. The second defense contains allegations that defendant was induced to give the note by representations of Weir, and the plaintiff, that defendant should not be put to any cost or expense on account of the note, and that the same was obtained through false representations as to the value of a certain bond and mortgage, executed by Weir and wife to the defendant at the time when the defendant gave the note.

The facts of the case seem to be as follows: The said Robert Weir was a testamentary guardian of the plaintiff, who, at the time of the giving of the note, was about eighteen years old, and was then boarding in the family of the defendant, at Champion, in the State of New York. There had come to the possession of Wier, as such guardian, the sum of $500, which he had received from the defendant as the purchase-money of a parcel of land, purchased of the father of the plaintiff in his lifetime, and also a bond and mortgage made by the defendant for about $1,100. On the day of the making of the note Wier came to the defendant and told him that he (Weir) was in trouble; that he had used the $500 which had been paid to him as the guardian of the plaintiff, in his own business, and the same was spent; that he had no means of securing the amount to the plaintiff, except by giving a bond accompanied by a mortgage on a house and lot in which Wier then resided, and already incumbered, and requested the defendant to take said mortgage and execute the note in question, payable on the 7th day of February, 1875, when the plaintiff would arrive at full age, Wier giving as a reason for this, that he could not make the mortgage directly to his ward. When the plaintiff was informed of the fact of Weir’s insolvency, and that he had spent the $500, he also urged the defendant to accept Weir’s proposal, and also urged him to take from Weir’s possession the bond and mortgage of $1,100. The referee finds “ that the defendant, after consultation with said infant, and at said infant’s urgent solicitation, finally consented to and with said Weir to take said bond and mortgage and give his (defendant’s) note in exchange, on the further condition that said Weir should surrender and give up the $1,100 mortgage made by the defendant which he (Weir) held as guardian of said infant.”

This arrangement was finally consummated, Weir giving his bond, secured by a mortgage on the dwelling-house, conditioned to pay the defendant the sum of $500, on the 7th day of February, 1875, with interest annually, and all taxes to be assessed against the said defendant by reason of said bond and mortgage, and at the same time surrendered to the infant the $1,100 bond and mortgage, and received as such guardian the defendant’s note, purporting to be for value received, for $500, with annual interest payable on the 7th of February, 1875, “to Robert Weir as guardian of James H. Burhans.” Afterwards Weir was superseded in his guardianship and one Merrill was appointed by the surrogate of Jefferson county as guardian of the plaintiff, who, on the plaintiff coming of age, delivered to him the note for $500. The premises covered by Weir’s mortgage were sold on the 5th day of October, 1872, on the foreclosure of a prior mortgage, one of the incumbrances of which the defendant had been notified by Weir at the time of giving the note, and sold for less than the amount due on the judgment of foreclosure. The defendant did not attend the sale.

There appears to have been no evidence to sustain the allegations of the defendant that the bond and mortgage were obtained through false representations, and no finding by the referee on the- subject. There was no finding by the referee that either Weir or the plaintiff agreed at the time of the giving of the note, that the .defendant should not be called upon to pay upon it any more than he should receive on the bond and mortgage which was executed to him by Weir. On the settlement of the case the referee was specially requested to find that such an agreement was made both by the plaintiff and by Weir, but declined so to do.

There was evidence that both the plaintiff and Weir had made substantially such an agreement, consisting of the testimony of the defendant and his wife and daughter. On the other hand, the testimony of the plaintiff and Weir distinctly repudiated any such agreement, and in addition to this was the evidence contained on the face of the papers. The bond and mortgage of Weir were made to the plaintiff. The mortgage contained not only the usual consideration clause, but a statement that the grant was intended as security for the payment of the sum of $500 with the interest, and the note purports to have been given for value received. Considering that an agreement that the defendant should be bound to pay no more on the note than he should be able to collect and receive on the bond and mortgage was an affirmative fact for the defendant to establish, we cannot say that the referee erred in determining this question of fact upon the conflicting evidence.

The fact being thus determined, the question arises as to whether an exchange of Securities for mutual accommodation and without any agreement on either side for indemnity, or that they are not to be paid according to the face of the contracts, can be enforced in the hands of the original parties, who have not paid or parted with any new consideration.

The alleged agreement that the defendant should not be liable on the note according to the face of the promise, but for only so much as he should receive from Weir’s bond and mortgage, probably could not be established by parol. (Erwin v. Saunders, 1 Cow., 249; Ely v. Kilborn, 5 Den., 514; Payne v. Ladue, 1 Hill, 116; Brown v. Hull, 1 Den., 400.)

However that may be in the exchange of the securities, the bond and mortgage for $500 and interest, and the defendant’s note for the same amount, payable at the same time, in the absence of any agreement that the defendant was not to be required to pay his note, though it was done for the accommodation and benefit of Weir and the plaintiff, was valid, as each security formed a good considerar tion for the other at law, though it finally resulted that the defendant in fact realized nothing from the bond and mortgage made to him. “ Where cross-notes are made and specifically exchanged by tbe makers, each note is tbe proper debt of tbe maker thereof, and each bolder is a purchaser for value.” (Dowe v. Schutt, 2 Den., 621; Rice v. Mather, 3 Wend., 62; Cameron v. Chappell et al., 24 Wend., 94; Prest. of Troy City Bk. v. McSpedon, 3 Abb. Appeal Decisions, 133; Bassett v. Bassett et al., 55 Barb., 505.)

On tbe findings of tbe referee, therefore, tbe judgment must be affirmed.

Judgment affirmed.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed.


text:
    ELIJAH M. MERKEE, Respondent, v. THE CITY OF ROCHESTER, Appellant.

      Process' — volunim'y appem'ance — when sufficient — Violation of city ordinance — power to imprison in jail does not authorize imprisonment m penitentim'y.

    The want of process to bring a defendant into court may be waived by a voluntary appearance in the action; but to be effectual, such appearance must be with knowledge that there is an action pending and with a full intention to appear therein.
    The mere presence of a defendant in a court room does not authorize a magistrate to proceed and render a judgment against him, unless he notify him that an action is pending against him and unless he fully understands the nature of the proceedings.
    By the charter of the city of Rochester the police justice thereof has jurisdiction in suits brought for a violation of any of the city ordinances, and is authorized .to enter a judgment commanding a penalty, recovered for a violation of said ordinances, to be made of the goods and chattels of .the defendant, if such can be found; and if not, then to commit the defendant to the county jail for such time as shall have been directed by the common council, unless otherwise provided by the charter. The plaintiff having been adjudged guilty of a violation of one of the city ordinances, was sentenced to pay fifty dollars, or, in default thereof, to be imprisoned in the Monroe county penitentiary for ninety days.

      Held, that the judgment was void, (1)' because it did not appear that the common council had made any direction as to the length of time for which persons found guilty of violating city ordinances should be imprisoned, and (2) because the charter authorized an- imprisonment in the county jail only, and not in the county penitentiary.

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order of the Special Term denying a motion for a new trial made upon a case and exceptions.

      J. B. .Perkins, for the appellant.

      J. A. Adkmgton, for the respondent.
   Talcott, J.:

This is an appeal from a judgment for the plaintiff, rendered on a verdict in the County Court of Monroe county, and from an order denying a new trial.

The action is to recover back money alleged to have been wrongfully extorted from the plaintiff, for the benefit of the defendant, by the police justice of the said city of Rochester. It appears that the money, fifty dollars, was paid by the plaintiff in pursuance of a judgment rendered by the said police justice, whereby the plaintiff was ordered to pay the said sum of fifty dollars, or be committed in default thereof to the Monroe county penitentiary for the term of ninety days, and the plaintiff claims that the money was paid under threat of, and to save himself from the imprisonment imposed by the judgment.

The complaint against the plaintiff was for the violation of a city ordinance, which provides that no person shall exhibit or perform, for gain or profit, any theatrical or circus representation or exhibitions, or any other idle shows or feats which common showmen or jugglers usually practice or perform for private emolument or gain, without having obtained a license for the same from the common council of said city, under a penalty of fifty dollars for each offense.

It appears that the plaintiff is what is known as a spiritual medium, and for gain gave exhibitions, commonly called seances, in said city, without having obtained a license. The defense to this action to recover back the fifty dollars imposed as a penalty under the ordinance, is that a judgment for such penalty was duly recovered before the police justice of said city, on a plea of guilty by Marker, and that the fifty dollars was paid in pursuance of such judgment.

By section 245 of title 10, of the charter of said city it is provided, that “ the police justice of said city shall have jurisdiction in suits brought for a violation of any of the city ordinances,” The police justice was examined on the trial and produced his docket, which contained the following entry:

“ IN POLICE COURT, AUGUST 21, 1876.
The City oe Rochester >o. Elijah M. Marker.
Violating section 21 of Ordinance relatmg to JVmscmces.
Plead Guilty.
J udgment for one penalty fifty dollars; in default of payment, to be imprisoned in the M. C. P. for ninety days.”

It appears that no warrant, or other process, was served on the plaintiff to bring him into court. According to the plaintiff’s statement he went to the office of the city clerk and asked him if it was necessary, in the city of Rochester, to take out a license for holding spiritual seances or religious meetings of any kind. The clerk read the ordinance in question, and said it would come under the head of jugglers, and said the plaintiff would have to take out a license, and the plaintiff asked the clerk what the fee would be for six weeks, and was answered that he (the clerk) could not tell till he had ascertained what the back fee would be, till he (the plaintiff) paid up the old scores. This seems to have had reference to the fact that the plaintiff had already given several performances without having obtained any license therefor. Finally, the plaintiff says the clerk told him, if he was in a hurry, to come with him to the Justices’ Court. The clerk then took him to the police office, and when there the clerk said to the police justice: “ This is the man that holds spiritual circles.” The plaintiff then said: “Yes, I am the man.” The police justice then inquired of the plaintiff if he (plaintiff) had held these circles; to which the plaintiff answered in the affirmative. The police justice then inquired of plaintiff if he (plaintiff) took money at the door; to which plaintiff replied that he did not take money at the door, but only took money from those present at the circles,'after they were seated. And the police justice then said to the plaintiff: “ You have violated one of the penal ordinances of the city, and I fine you fifty dollars, or ninety days in the county jail,” and then turned the plaintiff over to the custody of the chief of police. The plaintiff further says that no process was served upon him, and he was not asked to submit himself to the jurisdiction of the Police Court; and, in fact, that nothing further took place at the police office, before the payment of the fine, than he had in substance related.

It is very clear that if the account of the plaintiff as to- what transpired at the police office is correct and contains a statement of all that occurred there, the police justice gained no jurisdiction over his person for the purpose of proceeding to judgment. Jurisdiction of the person may always be denied or put in issue. According to the account of the plaintiff he was not aware that any suit was proceeding and did not intend to appear in any suit, but supposed that what transpired at the police office was only a casual conversation, of no legal effect or pertinence.

The police justice entered in his docket a memorandum as though the proceedings had been had in a regular suit, and that the defendant pleaded guilty to a violation of the ordinance, whereas, according to his statement he only admitted what the city clerk had said, that he (the plaintiff) was the person who gave spiritual seances, without at all conceding that they required to be licensed under the ordinance.

The want of a process to bring a defendant into court may, it is true, be waived by a voluntary appearance in the suit; but a voluntary appearance, to be effectual for this purpose, must be with knowledge that there is a suit pending and with a full intention to appear therein. The mere presence of a defendant in a court room does not authorize a magistrate to proceed and render a judgment against him, without advising him that a suit is pending against him, nor without a full understanding on the part of the defendant as to the nature of the proceedings.

If the statement of the plaintiff is correct, not only he did not understand that he was voluntarily appearing and pleading guilty, in an action for a penalty for violating an ordinance of the city of Rochester, but he did not understand and was not informed that any such action had been commenced against him, and would not have pleaded guilty thereto if he had known of the complaint.

The testimony of the city clerk tends to corroborate that of the plaintiff in regard to what took place at the police office, though that of the police justice tends to establish that the plaintiff fully understood that a complaint was made against him for violating the ordinance, and that he deliberately and understandingly pleaded guilty thereto. Of the weight and effect of this conflicting evidence the jury were the judges, under proper instructions from the court. But the defendant’s counsel claim that the judge decided this conflict of the evidence in favor of the plaintiff, by instructing the jury that the judgment rendered. by the police justice was utterly null and void, and thus withdrew from their consideration the question whether the plaintiff was informed that a complaint was made against him, and was informed of the nature thereof, and knowingly pleaded guilty thereto. This part of the charge of the county judge was excepted to. He was requested to submit to the jury the question whether the plaintiff appeared in the action against him before the police justice, and to charge the jury that if he voluntarily appeared and submitted himself to the jurisdiction of the court and pleaded that he had violated the ordinance, then, that the judgment entered against him was valid. To this the court made answer : I decline so to- charge, and go further, and say that there was no action pending before the police justice in favor of the city.” To which the defendant’s counsel excepted.

The counsel for the plaintiff claims that the judgment is a nullity on its face because it is a judgment in a civil action for a penalty of fifty dollars, and directs, in default of its payment, the plaintiff be imprisoned for ninety days in the Monroe county penitentiary.

A judgment for a penalty recovered for the violation of an ordinance is, apparently, authorized by section 240 of title 10 of defendant’s charter to command the amount to be made of the goods and chattels of the defendant if such can be found, if not then' to commit the defendant to the county jail for such time as shall have been directed by the common council, unless otherwise provided by the charter. It does not clearly appear upon what ground the county judge charged the jury that the judgment purporting to have been rendered by the police justice was “ utterly null and void,” nor upon what ground the plaintiff’s counsel claims it to have been void on its face, and we are left to speculate upon the subject de novo.

It could not be for want of process to bring the defendant before the court, for in a civil action a voluntary appearance waives the irregularity, or even the want of process. (Allen v. Malcolm, 12 Abbott [N. S.], 337.) And it is well established that in a civil action the defendant may appear gratis, that is, without any process to compel him to appear. But though we do not think the judgment void, as seems to be supposed by the plaintiff’s counsel, and seems to have been supposed by the county judge, because of the want of any process to bring the defendant into court, nevertheless we think the judgment might well have been held to be void for the two following reasons:

First. It did not appear in the case that the common council had made any direction, as to the length of time for which the defendant should be committed to jail under the said section 210 of the defendant’s charter.

Second. The said section 210 only authorizes imprisonment in default of payment in the county jañl of Monroe county, and we are not referred to any statute which authorizes, in such cases, a judgment for imprisonment in the “ Monroe cou/nty penitentiary ” for default of goods and chattels, whereof to make the amount of the recovery in such an action.

For these reasons, therefore, we are’of the opinion that the judgment rendered by the police justice was void, and that the money which the plaintiff sued to recover was paid under the duress of a void judgment and could be recovered back.

Judgment and order affirmed.

Present — -Mullin, P. J., Talcott and Smith, JJ.

Judgment and order of Monroe County Court denying a new trial, affirmed.