author: TITUS, C. J.

text:
    George Pooly, Resp’ts, v. City of Buffalo, App’lt.

      (Buffalo Superior Court, General Term,

      Filed December 23, 1895.)

      1. Evidence—Parol.
    In an action to recover moneys paid upon assessment for local improve- ■ ment, evidence dehors the record of the common council to show that the objections to the confirmation of the assessment roll were not read to or heard by the council, is not admissable.

      2. Municipal Corporation—Assessments-Objections.
    Where, in such case, the assesment roll was in possession of the city clerk, and the record shows that he reported the objections thereto to the meeting of the common council and,after having remained on file in his office for ten days, an opportunity was given for parties to be heard concering the objections, and, upon no one appearing, the roll was confirmed, it is a substantial compliance with the provisions of the charter requiring the common council to “hear the objections.”
    8. Same—Benefits. '
    Where, in the proceedings to grade a street, the assessors reported that the property' assessed was benefited by the improvement, and there is nothing in the objections to show thaMhis was not true, an objection to the confirmation of the assessment roll that it includes a large quanity of land not benefited by the improvement for which the assessment is made, is untenable upon the ground tlj,at such fact does not appear from the roll itself.
    4. Same—Failure to consider objection.
    In an action to recover back assessments for a local improvement on the ground that the common council, in confirming the assessment roll, failed to consider objections made thereto, the plaintiff must show that he was in some way prejudiced by the failure of the common council to consider the objections winch were made.
    Appeal from a judgment in favor of plaintiff.
    Action by George Pooley against the city of Buffalo to recover moneys paid upon assesments levied against him and his assignors for a local improvement. From a judgment for plaintiff, defendant appeals. Reversed.
    Frank C. Laughlin, for app’lt;
    Tracy C. Becker, for resp’t.
   TITUS, C. J.

In the trial court the plaintiff obtained a judgment against the defendant for damages for assessments levied against him and his assignor in paving and grading Forest avenue, in this city. Forest avenue was paved in 1874, at a large expense, and the assesment for the improvement was ordered by the common council, to pay the expense thereof, under and by virtue of a special act of the legislature. The questions involved in this case have been before the courts many times, and this case has been twice argued in the court of appeals. Pooley v. City of Buffalo, 122 N. Y. 592; 34 St. Rep. 541; Id., 124 N. Y. 206; 35 St. Rep. 382. Objection is now taken that error was committed by the court in admitting parol evidence dehors the record to show that the objections to the confirmation of the roll were not read to or heard by the common council. It is also claimed that the fair inference and legal presumption is that the objections were laid before the common council, and read by the clerk, as the charter of the city required. Other questions are raised by the defendant’s counsel affecting the plaintiff’s right to recover. In disposing of this case all have not been considered, but we think, upon the record as it now appears before us, that this judgment must be reversed.

In the case of Granger v. City of Buffalo, 6 Abb. N. C. 238, and again when the same case was before this court, not being reported, but made a part of this record, some of the questions here discussed were passed upon; but we do not regard them as settled, so as to be controlling, with any unanimity of opinion by the judges of this court, if we except one, to which I shall refer later. The decision in the Granger Oase was practically the decision of one member of this court, Judge Smith writing a convincing argument, appealing most strongly to my view of the law. Judge Sheldon did not take part in the last decision. It is neither res adjudicata, so as to bind this court by the conclusion reached in that case, nor should it, on principle, conclude us from passing upon the questions here presented, in.view of the fact that the court of appeals has intimated, when this case was before that court, that the action of the common council, as appears by the record, was a hearing and passing upon the objections made to the confirmation of the roll, if we are satisfied that the decision is not based upon sound rules of law and of public policy.

When the case of Granger v.° City of Buffalo was before this court the last time, all the judges of this court held that it was not competent to alter the record of the common council by parol evidence. The case was tried before Judge Sheldon, where the defendant offered to show, by the testimony of the deputy city clerk, that the objections and roll were in fact laid before the common council, and read. The court ruled it' out. Judge Beckwith, in his opinion in the general term, sustaining the ruling of the court, cited many authorities, and, in concluding, said:

“Upon grounds of public policy, the rule is laid down by the courts, as I understand it, that where the proceedings of municipal councils affect the rights and personal interests of citizens, and are required by statute to be kept in writing, parol testimony cannot be received to vary or add anything to the written minutes,— that is to say, the record,—or to supply any alleged omission.”

Judge Smith, in the same case, although dissenting from the general proposition decided by the decision of the court, in speaking of tins question says:

“I pass over the defendant’s offer to show by parol evidence that the objections were in fact read aloud by the clerk or his deputy to the common council at their meeting when the roll was confirmed, both because I think, as I have already said, that the record as proved is sufficient/ and because I concede the force of the plaintiff’s objection that parol evidence is not competent to add or to supply defects or explain ambiguities in the official record of such a body as a common council.”

So that the ruling upon this particular question has been determined in the Granger Case by all the judges who were then members of this court adversely to the plaintiff’s contention here.

On the trial of this action, notwithstanding both of the opinions in the Granger Oase were before the court, the learned judge, when this same deputy city clerk who, in the Granger Case, was called upon by the defendant to prove that the objections were laid before the common council, and read, was called upon by the plaintiff to explain and impeach the record of the common council, allowed him to testify under objection that, “so far as my recollection is concerned, I should state they (the objections) were not read.” And, in his twenty-second finding of fact, the trial judge, upon the testimony of this clerk, predicates a finding as follows:

“That, on the 7th day of July, 1875, the assessment roll in suit herein, and the objections thereto, before mentioned, were brought before a meeting of the common council by the city clerk, who notified said common council that objections had been filed to said roll, but did not state what said objections were, by whom they were made, or in any way read said objections to said council, nor did said council in any way read or hear the same.”

In the twenty-third finding of fact, the court found as follows:

“That any presumption which might arise from the statement in the minutes of the common council of the city of Buffalo of the meeting of July 7, 1875, in reference to the proceedings of the city clerk and of the council concerning said assessment roll and said objections, that said objections were read and were heard by said common council, has been overcome by sufficient proof given upon this trial that said objections were not read to or heard by said common council in any way.”

—Thus by permitting what I conceive to be the erroneous admission of evidence, changing the official record of a public legislative body, and rebutting what in my mind would be the legal presumption that the assessment roll and objections were placed before the common council, and disposed of in the manner directed by the charter.

The court then, in the fourth conclusion of law, after finding that it was the legal duty of the common council to require said objections to be read, and to hear the same, concludes:

“That the failure of said common council to require said objections to be read, and to hear said objections, constitutes a defect in the proceedings confirming said assessment roll, which renders said roll illegal and invalid.”

There is, upon this incompetent testimony as a foundation, built a structure of fiction which enables the plaintiff to recover more than $25,000 of old assigned claims utterly without merit, and, as I believe, a fraud upon the city of Buffalo, it.appearing that these taxes have since been paid, and the property upon which they were assessed having received the benefit of the improvement.

Aside from the question of the admissibility of the testimony, of the deputy city clerk, I do not think the finding is sustained by the evidence. On the cross-examination of this witness, he said:

“I recognize these papers as having seen them before, from the fact that my writing is upon each of them. I recognize them simply by my handwriting. That is the only way. I have no recollection of the substance of these objections. I don’t remember this day of July 7, 1875. I haven’t anything that would refresh my memory other than seeing these papers. I don’t remember anything that took place on that day, nothing special, only in a general way. I remember it as I remember any other date of a meeting of the common council. * * * I would
not be positive who the clerks were. I don’t remember as a fact that I did read these objections. * * * These (objections) were filed in the clerk’s office, attached to the rolls, and submitted to the council that day.”

Further on the same witness says:

“I should be disposed to swear, because of my notation on the papers of June 30th and July 1st, that I saw these papers on July 7th. To the best of .my recollection, T will swear to that fact. * * * I simply reason it out. I don’t think I was present at every meeting of the common council in 1875. I wouldn’t swear I was not. My memory doesn’t serve me in that respect. -x' * * It is possible that July 7th was one of the meeting of the council at which I was not present.”

It is from the testimony of this witness, who has no recollection of what took place in the meeting of the council at which this roll was confirmed, except as he “reasons it out,” that the court finds an important fact which invalidates this roll, overruling the legal presumption in favor of the regularity of the proceedings of the common council, and of its compliance with the provisions of the charter in confirming this roll. This testimony, as is apparent on reading it, was of negative character. The witness did not profess to recollect anything that occurred at this meeting of the council, and could only speak of the course of procedure where an objection to a roll was laid before the common council; and he does not know that the objections were not read. I submit this is not sufficient, nor is it any evidence, assuming its competency, upon which to predicate a finding impeaching the proceedings of the common council; and, therefore, this ruling of the trial court, I think, was erroneous.

Without this finding of fact that these objections were not read or heard by the common council, with all due deference to the opinion of Judge Beckwith, I am of the opinion that the proceedings of the common council at their meeting on the 7th were a substantial compliance with the provisions of the charter requiring the common council to “hear the objections.” The roll was in the possession of the clerk, and the record shows that he re-, ported the objections to the meeting of the comtaon council, after having remained on file in his office for ten days. An opportunity was given for parties to be heard concerning the objections, and, no one appearing, the roll was confirmed. It seems to me the presumption must follow that the assessment roll and all objections thereto were before the council, and that they were informed of the nature of the objections, and confirmed the roll, notwithstanding them. Ho other presumption can follow. That was the purpose for which they were assembled, and it seems to me it would do violence to reason and the orderly proceedings of that body to say that it neglected to hear the objections. The full purpose and intent of the charter provision was accomplished. Persons objecting to the roll had an opportunity to be heard, and their objections, which had been reported by the clerk, were there for the purpose of having their sufficiency passed upon. The purpose of the law had been accomplished. Objectors to the roll had been given their day in court, and they should not at this remote period be heard to say in opposition of the record that their objections were not read and heard.

The objections to the confirmation of the roll do not seem to have been in the case when it was before the court of appeals. They now appear as an exhibit. They are allegations of conclusions of fact and of law. Ho fact is stated showing that the assessment was not properly made upon which the comon council could determine the question of the legality of the assessment. There were three objections. The first is that the “assessment is made without legal authority;” the second is that the “assessment roll includes a large quantity of land not benefited by the improvement for which the assessment is made;” and the third is that “the assessment is in excess of the taxing power of the state.” The court of appeals, when this case was before it, disposed of the first and last objections, holding that the common council had the power to make the assessment, as they were by special act of the legislature, authorized to do. The second objection is without merit. It is the allegation of a conclusion of fact which does not appear from the roll itself. Ho fact is stated showing wherein the assessment includes a large quantity of land not benefited by the improvement. The assessors reported, as the charter required them to do (Laws 1870, chap. 519, title 6, § 3), that the property assessed was benefited by the improvement, and there was nothing in the objections to show that this was not true. There is no provision in the charter requiring°or authorizing the common council to make an investigation for the purpose of determining whether all of the property assessed is benefited. The assessors are required to determine that fact, and it cannot, in the ■absence of a statutory direction, be said that anything was required of the council in that respect. The assessors had determined the question. The objectors simply took issue with the assessors. The roll, upon its face, showed no defect or illegality. The objection could be of no practical service to. the common council in determining its course, as it shed no light upon the question of th'e validity of the roll. It was an assertion which, in the light of subsequent events, was false. Ho one has ever claimed since, so far as I am able to learn, or offered to show, that there was any truth or merit in this second objection, and, if it had no merit, no one was harmed; and, in view of the fact that the burden is upon the plaintiff to prove the facts entitling him to relief, it must be made to appear that he was in some way prejudiced by the failure of the common council to consider the objections which were made. Pooley v. City of Buffalo, 124 N. Y. 211; 34 St. Rep. 541. It seems to me, therefore, in view of the fact that the court of appeals has determined that the first and third objections were not meritorious, the statement of the counsel and the finding of the court that the objections, if true, were sufficient to invalidate the roll, are'perfunctory, and not true in fact. While the assessors are required by the charter to assess the expense of a local' improvement upon all of the property benefited, there was nothing in the roll and no facts stated in the objection which tended in any degree to show that the assessors had not conformed to the charter in every particular in making this assessment, nor is any way pointed out by the charter for the common council to ascertain the truthfulness or falsity of objection after the assessors have reported that all of the property benefited by the improvement is assessed. I do not think there is any merit in this second objection, and invoking the law of this case, as I understand it to be determined by the court of appeals in 124 N. Y. and 34 St. Rep., the parties were not prejudiced by; the failure of the common council to consider the objections which were made.

I have not considered the other questions raised by the defendant in its brief, some of which appear to be meritorious, for the reason that I am satisfied that this judgment should be teversed on the grounds herein stated.


source: Caselaw Access Project

author: BOOKSTAVER, J.

license: Public Domain

text:
    Albert J. Adams, App’lt, v. Jacob Boelger et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    Lease—Execution.
    Where Loth parties, at the time the paper purporting to be a lease was delivered to the lessee, contemplated that it should be executed by both parties, the delivery to the lessee of such lease signed by the lessor only in payment of rent, and the giving of a check, and the accepting of a receipt therefor, do not amount to an acceptance and ratification and will not be construed as an execution of the lease.
    Appeal from a judgment rendered in favor of defendants,
    Francis V. S. Oliver, for app’lt;
    Moses Weinman, for resp’ts.
   BOOKSTAVER, J.

This action was brought to recover one month’s rent of the premises ETo. 11 James slip, in this city, which the plaintiff claimed to have leased to the defendants for a period of five years from January 1, 1895. The answer was a general denial, and a plea of the statute of frauds. On the trial the plaintiff offered in evidence a paper purporting to be a lease for the term of five years from January 1, 1895, at an annual rent of $1,500, which was signed by himself only, and not by the defendants; and the defendants claimed that this instrument was void because not executed by them. Although 2' Rev. Stat. p. 135, §§ 6, 8, seem to require an instrument conveying land, or creating a lease of the same for a period exceeding one year, to be signed by the grantor or lessor only, in order to make it valid, yet McAdam, in his Landlord & Tenant (page 555), states the broad principle that if a lease be subscribed by the lessee, and not by the lessor, or vice versa, it does not satisfy the requirements of the statute; citing several authorities. An examination of these authorities shows that, however clear they may be -as to the first part of the proposition, they are not very convincing as to the second. But the statement seems to he sustained by Whitford v. Laidler, 94 N. Y. 145, where it was held that a lease signed by the lessor and some of the officers of a farmers’ club, as lessees, but not by all of them, was void. In 12 Am. & Eng. Enc. Law, p. 986, it is stated that one of the essentials to a complete lease is the signatures of the parties thereto, or such a ratification as would in law amount to a signature; and in support of this proposition are cited Clemens v. Broomfield, 19 Mo. 118; Wade v. Newbern, 77 N. C. 460; Harrison v. Parmer, 76 Ala. 157; Waller v. Deane and Chapter of Norwich, Owen, 136; Kelsey v. Tourtelotte, 59 Pa. St. 184. On the other hand, the courts of Illinois, New Hampshire, Nevada, and Maine (McFarlane v. Williams, 107 III. 33; Fitton v. Inhabitants of Hamilton City, 6 Nev. 196; Worster v. Manufacturing Co., 41 N. H. 18; Libbey v. Staples, 39 Me. 166) have decided that it is not necessary for a lessee to execute a lease, in order to make it a valid instrument. But in all this latter class of cases it will be found, on examination, that, in order to make such an instrument binding’, the lessee must have entered upon the ' demised premises under the lease, or unqualifiedly accepted or ratified the same. At common law such leases were made effectual by livery of seisin, as in the case of a deed. In this case there is no evidence whatever that the lessees had possession of the premises in controversy for a single hour. There is some vague testimony as to their having the keys at one time, but this scarcely amounts to the dignity of evidence. Nor , do we think there is any conclusive evidence of acceptance or ratification. On this point the plaintiff relies chiefly upon the fact that the lease, when executed by the plaintiff, was delivered to the defendants, who kept the same, and afterwards gave a check for one month’s rent and the amount required for the transfer of the license to them, and gave a receipt therefor. But at the time this was done one of the defendants expressly stated to plaintiff’s agent that he could not sign the lease until his brother came, and would not sign it. The check was given by the bookkeeper of the. defendants. The evidence in" regard to the transaction is extremely vague and confused, plaintiff’s witnesses making different statements as to important features of it. We gather, however, that one Augustus Mayer and his attorney for the plaintiff had a conversation in regard to the former leasing a place in which to start the liquor business. When the attorney called Mayer’s attention to the premises in question, he made inquiries as to the terms on which the place could be procured, the character of the place, etc. After-wards Mayer had an interview with the agent of the plaintiff, not yet having seen the premises in question, when he told the agent to draw up a lease for five years for. Jacob Boelger. This lease was handed to the defendants, or one of them, and was returned as not having been made out to the right parties. Another lease was afterwards drawn up, and handed to one of the defendants; but all of the plaintiff’s witnesses testified that at the time there was nothing said as to accepting or rejecting the leoase, or in fact in regard to it. A careful reading of the testimony convinces us that Mayer was to be the party to be put in possession of the premises, and to have charge thereof, and that the defendants were to assist him in starting the place, in various ways, and they did not contemplate themselves being the lessees of the place. And when Mayer discovered, after the delivery of the paper to the defendants, that the premises had been used as a disorderly resort, and that a license for the same had been revoked by the board of excise on that ground, neither he nor the defendants would have anything further to do with it. One thing is clear from the evidence, and that is that both the plaintiff and the defendants, at the time the paper was delivered to the latter, contemplated that it should be executed by both parties. This was not done by the defendants, for the reasons above- stated, and therefore it did not become operative. Brackett v. Barney, 28 N. Y. 333; Whitford v. Laidler, supra. The giving of the check and the receiving of the receipt, under the circumstances appearing in the return, did not amount to an acceptance or ratification of the lease, and cannot be considered as an execution of that instrument.

We therefore think that the justice who tried the case was fully justified in arriving at the conclusion he did, and that the judgment should be affirmed, with costs to the respondents.


text:
    William H. Earle, Resp’t, v. Francis McGoldrick, App’lt.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    1. Summary proceeding—Petition.
    A petition in summary proceedings, which alleges that the petitioner became the owner of the premises by deed, and that defendant was in possession under an alleged agreement or hiring with the grantor, and still occupies the premises, that a notice to quit was served on him and that the defendant holds over and continues in possession without the permission of the owner and landlord, sets forth the relation of the parties-with sufficient particularity.
    8. Executors— Discharge.
    A lease signed by one of two executors after their final accounting and discharge is void as against them as trustees under the will where the property was, at the time of the making of the lease, held by them astros tees and not as executors.
    3. Courts—Jurisdiction.
    A district court of the city of New York may, in summary proceedings, declare a lease void.
    4. Estoppel—Recital in deed.
    A recital in a deed that it is subject to the rights of a certain person who claims to be a lessee, does not estop the grantee from denying that such person has any rights, or from asserting that the lease is void.
    Appeal from a final order in summary proceedings in favor of the landlord.
    George W. McAdam, for app’lt;
    Truax & Crandall, for resp’t.
   BOOKSTAVER, J.

The appellant claims that the petition was defective in failing to show that the conventional relation of

landlord and tenant existed between the parties. The petition, dated May 4, 1895, alleged that the petitioner became the owner' of the premises by deed from John P. Weis and Margaretta Herlt, as execcutors, etc., dated October 1, 1894; that the defendant was in possession as tenant for a term ending May 1, 1895, under an alleged agreement or hiring with Margaret Herlt, and still occupied the premises; that a notice to quit was served on him on or about ¡November 30, 1894, requiring him to give up possession May 1, 1895; that the defendant held over and continued in possession without the permission of “your petitioner, said owner and landlord.” These averments, we think, were quite sufficient, and set forth the relations of the parties with more particularity than was done in ¡¡STorsworthy’s Estate v. Bryan, 33 Barb. 153, which was held sufficient. We also think that the Margaretta Herlt, executor, etc., named in the petition, was sufficiently identified with the Margarétta Herlt described as executor and trustee under the last will and testament of John H. Moore, deceased, and as one of the grantors in the deed set forth in the petition. If there was any question as to such identity, it was open to the defendant to raise it in his answer, and he should have done so. From the petition it appeared that the Conventional relation of landlord and tenant existed between the lessee and the assignees or grantees of the lessor, provided there was a conventional relation between the original parties. McAdam, Landl. & Ten.. 619; Birdsall v. Phillips, 17 Wend. 464; Miller v. Levi, 44 N. Y. 489. The petitioner showed that he was the grantee of the lessor in this case, and thereby became the landlord of the defendant. Until May 1, 1894, the defendant had occupied the premises under a lease from Margaretta Herlt as executor, etc. Upon the trial he claimed that he was entitled to possession under a new lease for five years from May 1, 1894. This lease purports to have been made by Mrs. Mohr, as party of the first part, but it was signed by Margaretta Herlt, executor, and the defendant. It was therefore void as against the executors and any one claiming through them, being signed only by one of two trustees. Hill,' Trustees, 305; Anon v. Gelpcke, 5 Hun, 245, 255; Busse v. Schenck, 12 Daly, 12. The tenant was therefore, at most, a tenant from year to year. Talamo v. Spitzmiller, 120 N. Y. 37; 30 St. Rep. 186; Laughran v. Smith, 75 N. Y. 205. The lease last mentioned was also void because because executed by Margaretta Herlt, as. executor, whereas it appears from the return that before -executing such lease, the executors had fully accounted and were discharged, and the property was, at the time of the malting of the lease, held by them as trustees, and not as executors.

But counsel for the tenant contended that the judge before whom this proceeding was taken had no power to adjudge the lease void, seeming to assume that it required some equity jurisdiction in order to malte such an adjudication. In this we think he is in error. District courts have to pass daily upon the legality of contracts submitted to them for decision, and to say whether they are void, or of binding force. The determination of this matter required no more. The lease was either void at law, or of full force, and it was the province of the judge to determine that question; and we think he determined it correctly, for the reasons above stated. Indeed, in proceedings of this kind, he must frequently determine whether the instrument relied on is a lease or not; and it has been held, in proceedings of this nature, that the lessee may show that the instrument which purports to create the relation of landlord and tenant between the parties constitutes in fact a mortgage to secure the repayment of a loan, and that such a mortgage was void for usury, and was not a lease. People v. Howlett, 13, Hun, 138; Id., 76 N. Y. 574. It has also been held that in summary proceedings it may be shown that the lease is void, where the tenant answers he has held over thereunder. Dickinson v. Price, 63 Hun, 149; 45 St. Rep. 159; People v. Howlett, supra; In re Wright, 42 St. Rep. 455. Indeed, the tenant, by his answer, set up the lease in question, and claimed the right to hold thereunder for the full period of five years from the 1st of May, 1894, thereby raising the very question determined by the judge.

The tenant also claimed that the landlord was estopped by the recital in the deed from Weis and Herlt to him, which contained the following clause: “Subject to any rights Francis Mc-■Goldrick, or those claiming under him, may have in the above-described premises, or any part thereof.” Had the lease itself been recited in the deed, there might have been a foundation for such claim. Such, however, was not the case. It is nowhere referred to in the deed. The only thing reserved to Francis Mc--Groldrick were “any rights” he might have in the premises. These rights must, of course, be either legal or equitable, and capable of enforcement in a court of law or equity. But it is clear that the lease relied upon was invalid at law, and could create no right in the tenant. Sinclair v. Jackson, 8 Cow. 543,-—-where it was said:

“The defective lease would be inoperative at law, and must yield to the legal title acquired by the purchaser. * * * Mor was it legally available to the defendant * * * to show that the mortgage was taken subject to the lease, or that the sale was made with knowledge of the lease, and subject thereto. For the evidence, * * * if admitted, would not confirm the lease, or render it valid; for, being absolutely void, it was incapable of confirmation at law.”

If the tenant had any right in equity which he could enforce, then, under his own theory of the powers of the district court, •such equity power could not be entertained in those courts, in proceedings like these, and he should have resorted to an action in equity to restrain the landlord.

Due notice to quit having been given by the landlord to the tenant, he held over without right, and the final order dispossessing him was proper, and should be affirmed, with costs.


text:
    James R. Johnston et al., Pl’ffs, v. John Vinton Dahlgren et al., Def'ts.

      (New York Common Pleas, Special Term,

      Filed December, 1895.)

    Mechanic’s lien—Dower.
    A wife’s inchoate right of dower is not subject to a mechanic’s lien under section 1, eiuipier d4j of 1885.
    Action by James R. Johnston and others against John Yinton Dahlgren and Elizabeth Dahlgren to foreclose a mechanic’s lien. The defendant Elizabeth Dahlgren demurs to the complaint for insufficiency.
    Daniel P. Mahoney, for pl’ffs;
    Abraham I. Elkus, for def’ts.
   BOOKSTAVER, J.

The defendant Elizabeth Dahlgren demurs to the complaint for insufficiency. It is plain that no cause of action is stated against her, considered simply as the wife of the owner of the property against which the lien is sought to be foreclosed. That a wife’s inchoate right of dower is not made subject to a mechanic’s lien is obvious from the language of the act, Laws 1885, chapter 342. Section 1 provides for a lien “to the extent of the right, title and interest at that time existing of such owner, whether owner in fee or of a less estate, or whether a lessee for a term of years,■ or vendee in possession under a contract existing at the time of the filing of said notice of lien, or of the owner of any right, title or interest in such estate which may be sold under on execution under the general provisions of the statutes in force in this state relating to liens of judgment and enforcement thereof.” An inchoate right of dower is not, according to the settled theory of the law, an estate .or interest in land at all (Witthaus v. Schack, 105 N. Y. 332, 336; 7 St. Rep. 345), and obviously cannot be sold under an execution. Even a widow’s right of dower before assignment is not subject to such sale. Aikman v. Harsell, 98 N. Y. 186,191; Lawrence v. Miller, 2 id. 245, 254; Moore v. Mayor, etc., 8 id. 110, 113. This intention of the legislature not to affect an inchoate dower right, so apparent in the first section, is in come degree inferable from the fact that section 17 requires only prior incumbrancers who are mechanics’ lienors to be made parties to the foreclosure proceeding. In other jurisdictions it has been specially held that a wife’s dower is not subject to a mechanic’s lien. Bishop v. Boyle, 9 Ind. 169; Gove v. Cather, 23 III. 634; Van Vronker v. Eastman, 7 Metc. (Mass.) 162; Mark v. Murphy, 76 Ind. 547. The force of these caseg as authorities depends chiefly, of course, upon the similarity of the statutes relating to dower and mechanics’ liens in those states and in this; hut some of the opinions, notably that in Bishop v. Boyle, point out the reasons independent of statutes why dower should be paramount to mechanics’ liens:

“A wife’s dower in a favorite of the law, not resting in contract, but resulting from the marriage relation. * "" * Hers is the elder lien. The mechanic bestows his labor with knowledge of her prior right to the real estate, and he know.-* the house he is building, as brick is added to brick, and nail after nail is driven, becomes real estate. He can protect himself by security, or not venture. SL o is passive, and can do nothing.”

But. although no cause of action is stated against the demur-rant as wife simply, and in virtue of her incitóme dower right, is there, nevertheless, a cause made out against her by reason of her alleged agreement to pay for the impío/-.-ments made upon the property? In this respect, too, I think the complaint is defective. TJpon that alleged promise, which was, so far as appears, made without any mention of a lien, she has a right to a trial by jury, and cannot be brought in as a defendant in an equitable action of foreclosure. From a perusal of the complaint, including the prayer for relief, it is fairly apparent that the theory of the pleader was to charge the demurrant only to the extent of cutting off her interest in the property against which the lien was filed, although it is now urged in support of the complaint that a cause of action is stated against her upon her independent promise to pay. There is an allegation of the “special instance and request” of the husband, but only of the “knowledge and consent” of the wife. Thé prayer for personal judgment for deficiency is against the husband only. It is also alleged that the notice of claim and lien specified -the wife as well as' the husband as owner, and the prayer for relief is that the defendants and all claiming under them be forever barred and foreclosed of all equity of redemption. I think, therefore, that so distinct an intention to affect the demurrant only to the extent of her interest in the property is shown that it cannot be held that the allegations that she agreed to pay for the services and materials, coupled with the general prayer for other and further relief, state a cause of action against her upon her promise to pay, and which would result in a personal judgment against her for the full amount. Justice requires that the specific portions of the complaint be regarded as controlling and giving character to the more general portions. Had it appeared, by any fair inference, from the face of the complaint, that an attempt was made to unite an equitable action to foreclose a lien, affecting all the defendants, with an action at law upon a contract, affecting only one of them, the demurrant would have been put upon her guard by a sufficient notice, and might have raised in her demurrer the question of misjoinder. Neither do I think that her promise in her character of wife to pay for the improvements can be regarded as creating a mechanic’s lien upon her dower right. To say nothing of the strict compliance which the law exacts with respect to statutory provisions for barring or extinguishing this right, and the fact that such a promise is not one of these recognized statutory methods, the intention of the act, as evinced in section 1, above quoted, is too clear to allow any extension of the lien, by judicial construction, to cover dower right. It may be more just that a mechanic should have a lien where his material and labor have, at the wife’s request and upon her promise to pay, gone to enhance the value of the property in which she has this contingent interest, and more in accordance with the present tendency to give a married woman full control of whatever is hers, and more logical as being in analogy with her recognized power to charge her dower interest by uniting with her husband in a mortgage; but all these are considerations for the legislature in view of any amendments of the act. As it now reads, the lien extends only to estates or interests in the same which may be sold, under execution, neither of which an inchoate dower right is, and that restriction binds me. The demurrer is therefore sustained, with liberty to amend the complaint, if so advised, within twenty days upon payment of costs.

Demurrer sustained, with leave to amend complaint.


author: DALY, C. J.

text:
    Jackson Architectural Iron Works, Resp’t, v. Henry Hurlbut et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 23, 1895.)

    1. Carriers—Who are.
    Persons, who undertake for hire to transport the goods for such as choose to employ them from place to place, undertaking to carry the goods of all persons indifferently, are common carriers.
    2. Same—Nbgligehce. ''
    W,here common carriers broke, in handling, a machine they were moving, they are not relieved from liability therefor because the owner insisted on having the machine put into the shop after dark, as they had the right to refuse or to stipulate for immunity from damages if it increased their risk as insurers.
    3. Damages—Measure oe.
    In an action to recover damages for the breaking of a machine used by plaintiff in its business, the amount necessarily expended to have the work of the machine done elsewhere, while it is being repaired, is a proper element of damages.
    Appeal from a judgment entered on a verdict in favor of plaintiff.
    The action was brought to recover $1,752 damages to a planing machine intrusted by plaintiff to defendants as common carriers, to be transported from the foot of West Twenty-Third street, in the city of Hew York, to the shop of the plaintiff in East Twenty-Eighth, street, between First and Second avenues, in said city. The complaint alleged that the defendants were general truckmen and forwarding agents, and general carriers of goods, and also"that the machine was injured by defendants’ negligence. The answer denied that the defendants were common carriers, alleged that the injury to the machine was caused by the interference of the plaintiff, and put in issue the amount of the damages.
    J. Homer Hildreth, for app’lts;
    Jesse Grant Roe, for resp’t.
   DALY, C. J.

The defendants, composing the firm of Hurl-

but Bros., are general truckman, doing business in the city of Hew York,—“truckmen, and forwarding agents,” according to their own description of their occupation. Their “specialty,” as also described by themselves, is “heavy machinery,” which they move and thansport,—undertaking what ordinary truckmen cannot do, because they haye the appliances, wagons, and trucks to do it; employing nineteen trucks and twenty horses, making no discrimination as to customers, and not refusing to move anything upon request if reasonably paid. From this description of the defendants’ business, they undoubtedly come within the class designated as common carriers, as distinguished from special carriers for hire, who are not engaged in the general business of transporting goods. A common carrier is one who, by virtue of his calling, undertakes on recompense to transport personal property from one place to another for all such as may choose to employ him. Schouler, Bailm. (2d Ed.) 351. The criterion is whether he carries for particular persons only, or whether he carries for every one. If a man holds himself out to do it for every one who asks him, he is a common carrier; “but* if he does not do it for every one, but carries it for you or me only, that is a matter of special contract.” Ingate v. Christie, 3 Car. & K. 61. To be a common carrier, one must exercise the business as a public employment. He must undertake to carry goods for persons generally, and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation. Story, Bailm. § 495. The transportation must be in pursuance of some carriage vocation which the carrier exercises. One may be a common carrier who has no fixed termini, but leaves the course of transportation in each case to depend upon his customers’ wishes. Alkali Co. v. Johnson, L. R. 7 Exch. 267; affirmed, L. R. 9 Exch. 338. Wagoners and teamsters, whose business it is to carry or hire goods and chattels from one locality to another, common porters, drivers, draymen, truckmen, and carmen, whether their employment be carried on from town to town, or from one part of a town to another, are common carriers. Story, Bailm. § 496; Richards v. Westcott, 2 Bosw. 589. It is not necessary that the exclusive business of the party should be carrying. So held where one, whose principal pursuit is farming, solicits goods to carry to the market town in his wagon on certain convenient occasions. He makes himself a common carrier for those who employ him. Schouler, Bailm. 355, 356. See, also, Ang. Carr. 870, 871; Chevallier v. Strahan, 2 Tex. 115: Harrison v. Roy, 39 Miss. 396.

The sole business of the defendants in this case was the carrying of heavy articles of merchandise such as were intrusted to them by the plaintiffs. They undertook, for hire, to transport the goods of such as chose to employ them from place to place (Dwight v. Brewster, 1 Pick. 50), undertaking for hire to carry the goods of all persons indifferently (Gisbourn v. Hurst, 1 Salk. 249), and under the definitions must undoubtedly be regarded as common earners. Allen v. Sackrider, 37 N. Y. 341. By the'common law every common carrier is bound to receive whatever may be offared him for transportation on hire, as far as comports with his means and the nature of his calling,.and is liable to damages for unreasonable refusal. Schouler, Bailm. 383; Allen v. Sackrider, supra. It has been said that the test in a doubtful case is whether the carrier would be so liable, but if we apply that test to the present case we meet with no difficulty. These defendants are but truckmen^ or cartmen, on a large scale. A truckman would undoubtedly be liable for unreasonable refusal to transport the goods of a householder who was compelled to move, for instance, on the 1st of May; and in the case of the moval of heavy machinery, it is difficult to perceive why truck-men, whose business is to handle just such bulky goods, would not be liable for a like unreasonable refusal in a like emergency. The obligation to carry all goods offered grows out of the general transportation business in which the carrier is engaged, and his holding himself out to the public as a general carrier, so that dealings are had with him in reliance thereon. It makes no difference that these defendants’ “specialty” was the moving of heavy machinery, and that they would refuse to move furniture; for, as I said before, the carrier is only bound to convey so far as comports with his means and the nature of his calling. Nor is it of importance that defendants have no regular tariff of charges for their work, but that a special price is fixed by agreement in every case they undertake. The necessity for a different charge in each case grows out of the difference of labor in handling, articles of great bulk. The charge in each case may be proportioned to the risk assumed, and commensurate with the carriers’ obligation as insurers. Such was the obligation and liability of defendants in this case when they received the planing machine to transport it from the foot of West Twenty-Third street to plaintiff’s shop in East Twenty-Eighth street, and the learned trial judge might well have instructed the jury that they were common carriers and insurers of the goods. The defendants were not prejudiced, therefore, by his leaving it to. the jury to decide whether they were common carriers or not, and the verdict of the jury, if based upon a finding against defendants on that ground, cannot be disturbed.

The main question in the case is whether any act of the plaintiff relieves the defendants from liability for the injury which the machine received while handled by their men. It appears that the defendants had brought the machine to the plaintiff’s place on September 24tli, about six o’clock in the evening, and proposed to leave it on the sidewalk all night, with one end resting on the truck in which it had been brought, and the other end in the entrance to plaintiff’s yard. Plaintiff’s superintendent insisted upon its being put into the shop that night. Defendants proceeded to comply with this direction, and, while handling the machine, the bed on which it rested was broken by being lowered irregularly on the two jacks employed for that purpose. Defendants claim that their men at the different jacks could not see each other, owing to the darkness, and that the injury was occasioned from that cause. If this be so, the damage was due to the negligence of the defendants in attempting to work in the dark without procuring lanterns to assist them. Ho act or direction of plaintiff prevented their procuring- the necessary lights. Whatever precautions were necessary they were at liberty to take, and they were not restricted in any way, nor controlled, by plaintiff, in the manner in which the work was to be done. The insistence of plaintiff upon the machine being put in the shop, and not left upon the sidewalk all night, in no way controlled the judgment or discretion of defendants or their servants, who were at liberty to comply or not with this requirement, and who might have stipulated for immunity from damages if they had chosen, for a common carrier may limit his liability as insurer by contract ' in any particular case. Moriarty v. Harnden’s Express, 1 Daly, 22'L But the evidence tended to show that the understanding of the parties was that the work should be done in the evening after working hours, owing to the interruption of business which would be caused by the blocking up of the gangway, or entrance, in the moving of this bulky machine, which was over thirty feet long, four to eighteen feet wide, and four feet six inches high, the whole weighing about 22,000 pounds; and in that view of the case the defendants were not required by the plaintiff to do more than the contract called for.

On the question of damages the verdict cannot be disturbed. There was dispute as to whether a new bed was required, at a cost of $855, or whether it would be sufficient to repair the old bed, at a cost of about $100. The verdict was $500, and in view of the evidence that plaintiffs were subjected to an expense of $435 for work done out of the shop while the machine was disabled, and before repairs could be completed, the jury was manifestly indulgent to the defendants. Proof of the cost of such work was erly admitted. It was not an attempt to show loss of profits upon contracts, hut simply the direct damage sustained by the loss of the use of the machine. None of the exceptions in the case present error, or any ground for reversing the judgment.

Judgment and order affirmed, with costs.

All concur.


text:
    Frederick Wandelt, Resp’t, v. David Cohen, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed December 23, 1895.)

    1. Contracts —Performance.
    An architect must prove delivery, or tender, of plans, in order to recover for their drawing.
    3. Same—Waiver.
    An agreement between the parties that, when the plans are ready, the architect should notify the owner, who was then to call at his office and. ; examine them, and the fact that he did send such notice to the owner, who failed to call as agreed, constitute a waiver of delivery.
    8. Appeal—Presumption.
    Where the architect’s right to recover for the work upon the plans, without proof of delivery, depends upon his establishing an agreement of the owner to call and examine them when notified, and the referee, in face of a conflict of testimony as to the existence of such an agreement, has declined to decide the issue, a judgment in the architect’s favor is unwarranted and will be reversed.
    4. Same—Findings.
    Where the decision of the court fails to find or state all the facts necessary to a judgment and it expressly negatives any inference of such facts ana places the judgment upon untenable grounds, an error of law is apparent,, reviewable under the general exception to the decision.
    Appeal from a judgment rendered against the defendant. •
    David Leventritt, for app’lt;
    Wilson, Barker & Wilson (Frank Barker, of counsel, for resp’t.
   DALY, C. J.

The plaintiff claimed a mechanic’s lien for services as architect in preparing, at defendant’s request, plans for buildings to be erected in Cherry and Water streets, in this city. The lien was disallowed by the referee because building was-never commenced upon the premises, but the referee allowed a personal judgment for the value of the work of preparing the plans, which he found to be $450. The claim-was contested on the ground that the plaintiff had never delivered, nor offered to deliver, the plans to the defendant. Delivery was not alleged in the complaint, nor, in fact, made; but the plaintiff testified that it was agreed between the defendant and himself that when the’ plans were ready he should notify the defendant, who was then to call at his office and examine them, and that he did send such a notice to the defendant, who failed to call as agreed. Under such circumstances, proof of delivery was not necessary, although, had it been otherwise, plaintiff would have been bound, if employed to make plans, to show that they were delivered or tendered when completed. It was necessary, therefore, to establish the agreement to call and examine the plans upon notice, and a judgment in plaintiff’s favor could only be rendered upon a finding of such an agreement. Such finding was not made by the referee, although it was an issue in the case, upon conflicting testimony. On the contrary, his 'decision shows that he regarded the agreement as wholly immaterial to a recovery. The language of the decision, after stating that the plans were prepared under employment by defendant, is as follows:

“I do not regard it as essential to plaintiff’s cause of action that notice to the defendant of the completion of such preliminary plans should be shown; but I am satisfied from the evidence that plaintiff sent a notice by mail to, defendant Cohen, at his residence in Pike street, in the city of Hew York, on or about the 6th day of March, 1893, of the completion of such preliminary plans, which notice was delivered, in regular course of mail, at such residence of the said defendant Cohen.”

The notice which the referee finds was sent and received was as follows:

Dear sir • I wish you would call to see the drawings for your Market Slip property. If you have any suggestions to make, an alteration in the plan would be little trouble now. I have called at your house twice, and never found you, and have written you to call, too, but saw nothing of you. Please advise me what to do.”

This letter was not a tender of the plans, nor an offer of delivery. It was undoubtedly written in pursuance of the alleged agreement which was in dispute, and depends for its effect upon that agreement, the existence of which the referee considers immaterial. The decision that the notice was not essential to the plaintiff’s cause of action indicates clearly that the referee did not pass upon the issue of fact as to whether there was an agreement for such notice; and we cannot, therefore, assume, as we might in the absence of an express finding, or of any reference to the point in dispute, that a fact necessary to the judgment had been found in favor of the party who was bound to prove it. A decision by a referee that a certain fact is immaterial is equivalent to an instruction by a trial judge to a jury to the same effect, and, if such issue be material to a recovery, a verdict or decision, under the circumstances, could not be sustained. If, ih his decision, the judge or referee declares an issue to be immaterial, it is conclusive that he did not pass upon it. Since findings have been dispensed with, the decision of the court is made a part of the judgment roll, and cannot be treated as mere opinion. If it fails to find or state all the facts necessary to a judgment, the findings of such facts may nevertheless be inferred in support of the judgment; but if it expressly negatives such inference, and places the judgment

upon untenable grounds, an error of law is apparent, revieWable under the general exception to the decision. _ Code, § 1022 (amended in 1894.) As the plaintiff’s right to recover for the work upon the plans, without proof of delivery, depended upon his establishing an agreement of the defendant to call and examine them when notified, - and the referee, in face of a conflict of testimony as to the existence of such an Agreement, has declined to decide the issue, a judgment in plaintiff’s favor is unwarranted, and must be reversed.

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

All concur.


author: BISCHOFF, J.

text:
    Bartolemy J. Olifiers, App’lt, v. Perry Belmont et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed December 1895.)

    1. Officer—Personal liability.
    An individual acting under color of right as a public officer, cannot be held personally in an action for damages resulting to a party accepting a contract proposed by such assumed officer, in the absence of any element of deceit, where, through the latter’s mistake as to his powers, the corporate body fails to become bound. So held, in case of members of the committee appointed, under chapter 331 .of 1898, to celebrate the fourth-hundredth anniversary of the discovery of America.
    2. Costs—Separate defendants.
    Defendants, who appear by different attorneys, are entitled to an .allowance of separate bills of cost, where the liability of defendants, if any, were several and they appeared by separate attorneys and filed separate demurrers.
    Appeal from an interlocutory judgment, entered on orders sustaining demurrers interposed severally by defendants to the complaint. .
    John Brooks Leavitt, for app’lt;
    John M. Bowers and Charles N. Harris, for resp't Belmont;
    H. V. N. Philip, for resp’t Chandler.
   BISCHOFF, J.

As we view this case, there is little which may be added to the opinions delivered at special term upon the questions raised by the demurrers. The main and vital question was wdiether an individual acting under color of right as a public officer could be held personally in an action for damages resulting •to a party accepting a contract proposed by such assumed officer, in the absence of any element of deceit, where, through the latter’s mistake as to his powers, the corporate body failed to become bound. The law is well settled that in such a case the principles governing the liability of a private agent do not apply, the primary reason being that the individual contracting for his personal gain should be required to determine the actual scope of the authority assumed by the officer, since the restrictions upon the authority are necessarily matter of publicity, and the rule is founded upon legitimate grounds of public policy. The plaintiff urges that these demurrants, had they acted in quorum of their committee, would then, and then only, have brought themselves within this rule; but as to that it may be said that, under the public statute in question, whether these individuals acted in quorum or not, the municipality—the ostensible principal—could not have been, bound. Since the action taken by the defendants was, in so far as appears, under an honest mistake as to their public capacity, without an intention that there should be any personal liability, a cause of action is no more apparent upon this ground. The complaint is not framed as tendering issues ex delicto.

An appeal from the orders made at special term, allowing a bill of costs in the case of each demurrant, is also before us; but in view of the nature of the action, wherein such defendants would, if liable at all, be. liable severally, the determination in this regard as to their diversity of interest was sufficiently justified, and the right of costs, since there was an appearance by separate attorneys, was properly upheld. Railroad Co. v. Burkard, 40 Hun, 625.

The judgments and orders appealed from are to be affirmed, with costs, with the usual leave as to amendment of the pleading.

All concur.- -


text:
    Charles Strobel, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    Municipal corporations—Streets—Hotice.
    Proof that a defect in the sidewalk has existed for three months is sufficient to charge the city with notice.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Terence Farley and Theodore Connoly, for app’lt;
    Inglis Stuart and A. S. Hutchins, for resp’t.
   BISCHOFF, J.

This action was brought to recover damages sustained by the plaintiff, when lawfully upon the'highway, by reason of the defective condition of the sidewalk upon which he was proceeding, resulting from the overlapped form of two flagstones in his path. The evidence adduced in his behalf is found to properly support the finding that this particular defect caused the injury, and that the plaintiff was himself chargeable with no negligence contributing to the result. Further, the defendant’s negligence in maintaining the sidewalk as noted was sufficiently apparent from the period of its existence in this defective form,— an interval of three months, according to some of the evidence. In support of the claim that this condition of the flagstones was not actually shown to have caused the injury, the defendant points to the evidence of the plaintiff that his foot struck “that stone,” without an express statement appearing that the overlapping stone was intended; but, in view'of all the circumstances shown by the proof in the case, we must hold that there was ample room for an inference to be drawn by the jury that the defendant’s negligence, as pointed out, was the proximate cause of the accident. The award of damages is not questioned, and we can find no error in the rulings upon the trial.

Judgment and order affirmed, with costs.

I All concur.


text:
    Julius Freudenheim et al., App’lts, v. Julia Raduziner, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    1. Judgment—Offer—Merger.
    If an offer by defendant to allow judgment to be taken by plaintiff for a stated amount is accepted and a judgment entered thereon, it merges the entire cause of action.

      2. Same—Waiver.
    Where the plaintiff procures'a severance of an action on defendant’s offer of judgment, and takes judgment for the amount offered, and a continuance as to the remainder is claimed, and defendant goes to trial without objection, he thereby waives the effect of the judgment as merging the entire cause of action, and the defense of a former recovery is not available to him, because not pleaded.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of defendant. ,,
    Wales F. Severance, for app’lts;
    A. H. Berrick, for resp’t.
   BISCHOFF, J.

The action was to recover for goods sold and delivered, to which an answer was interposed which admitted a certain amount as due and owing, and denied any further indebtedness. With the answer the defendant caused to be served an offer to allow judgment to be taken against her for a stated amount, with interest and costs. Code Civ. Proe. § 738. Thereupon the plaintiff secured an order, upon their motion, which provided for a severance of the action, permitted judgment to be entered severally for the amount admitted by the answer to be due and owing, and continued the action for the residue of the plaintiffs’ claim. Id. § 511. On the next succeeding day the plaintiffs caused judgment to be entered upon the defendant’s offer and their acceptance thereof. Later the supposed cause was called for trial, and the parties proceeded to litigate the issues. The plaintiffs established a prima facie right to recover the amount for which judgment was demanded in the complaint, and the defendant, against the plaintiffs’ objection that the defense of former recovery was not pleaded, and under exception to the ruling, was permitted to introduce the judgment roll above alluded to in exidence. The trial court held the judgment to be a bar to the plaintiffs’ further recovery, and, under exception, directed a verdict for the defendant. From the judgment which was entered upon the verdict, and the judgment of affirmance at general term below, the present appeal was taken.

It is apparent that the trial court, as well as counsel for all the litigants, misapprehended the effect of the judgment which had been entered upon the defendant’s offer. Such judgment merged the entire cause of action, as set forth in the complaint. See note on “Defendant’s Offer to Compromise,” Potter v. Gates, 2 Silvernail, 415; 29 St. Rep. 662, and cases there collated; Stilwell v. Stilwell, 81 Hun, 392; 63 St. Rep. 136. It furthermore determined the action. Ho issues thereafter remained to be tried (Bucking v. Hauselt, 9 Hun, 635), and the cause should have been stricken from the trial calendar.

It was competent to the parties, however, to waive the effect of the judgment; and having proceeded to litigate the issues made by the pleadings, without objection on either part, such a waiver must be deemed to have resulted. Heither party can thereafter, for the purposes of an appeal, be permitted to assume an attitude which is inconsistent with his position upon the trial. See “Estoppel,” note on “Inconsistent Position in Legal Proceedings,” 7 Am. & Eng. Enc. Law, 22, and cases there collated; Fay v. Muhlker, 1 Misc. Rep. 321, 323; 48 St. Rep. 699. Adhering to the rule stated, and regarding the action, at the time of the trial alluded to, as pending, and the issues as undetermined, consistently with the attitude of all the litigants, it is clear that the defense of a former recovery was not available to the defendant, because not pleaded. If the appearance of the parties, "and their consent to the trial of the issues, be regarded as a new action, the result" remains unchanged. _ Hence it was error to admit the judgment-which was entered upon the defendant’s offer in evidence, and for such error the judgment should be reversed.

Judgment reversed, with costs of this appeal to the appellants. A new trial is ordered, unless, upon the objection of either party, the court below shall strike the cause from the trial calendar.

All concur.


author: MERWIN, J.

text:
    Mary A. Tinker, Resp’t, v. New York, Ontario and Western Railway Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Evidence—Statements oe third persons.
    Ia an action for personal injuries, it is proper to exclude a statement, made, at the place of the accident by one who had seen it, when not made immediately after the accident.
    2. Same—Admission—Silence.
    The mere silence of one, when facts are asserted in his presence, is no ground for presuming his acquiescence, unless the conversation was addressed to him under such circumstances as to call for a reply. So held, • where the plaintiff took no part in the conversation, and was then suffering from the injuries she had received.
    Appeal from a judgment for plaintiff, and an order denying a motion for a new trial.
    Howard D. Newton and Edward B. Thomas, for app’lt;
    George P. Pudney and George W. Ray, for resp’t.
   MERWIN, J.

The main questions upon the merits in this case were -considered by this court upon a former appeal (71 Hun, 431; 54 St. Rep. 528), and need not be reconsidered here. We find no good reason for departing from the views there expressed. They were in substance followed by the trial court on the trial now under review, and all the material questions of fact were submitted to the jury in a charge that, as a whole, presents no good ground for exception.

Our attention is called to a number of exceptions to rulings upon evidence. It is specially urged by the appellant that serious error was committed in rejecting evidence of What the husband of the plaintiff said as to the cause of the accident soon after it occurred. A witness was called by the defendant, who, after testifying that he lived about twenty rods from the crossing where the accident happened, said: “I remember the occasion when Mrs. Tinker was thrown from the wagon at the crossing. I saw the party there at the crossing after it occurred, and went out there at the time. When I got there, they were kind of getting together,—picking up things, picking up their shawls and robes, and so on, and what fell out. • I asked them what the matter was. I had a conversation with Mr. Tinker in the presence of Mrs. Tinker.” The witness was then asked the question : “ Did Mr. Tinker say to you, in the presence of Mrs. Tinker, that the back seat tipped up, and threw her out backward on the ground ? ” The witness was also asked to state what conversation occurred then in the presence of Mrs. Tinker between the witness and Mr. Tinker. This evidence is claimed to have been competent on two grounds : First, as part of the res gestas: and second, as a conversation in the presence of the-plaintiff. It was not claimed that Mrs. Tinker took any part in the conversation. She was then suffering from the injury she had received, and had to be assisted to the carriage.

In 1 Greenl. Ev. § 197, note c, it is said:

“ The mere silence of one when facts are asserted in his presence is no ground of presuming his acquiescence, unless the conversation were addressed to him under such circumstances as to call for a reply. The person must be in a position to require the information, and he must ask it in good faith," and in a manner fairly entitling him to expect it, in order to justify any inference from the mere silence of the party addressed. If the occasion, or the nature of this demand, or the manner of making it, will reasonably justify silence, in a discreet and prudent man, no unfavorable inference therefrom should on that account be made against the party. And whether the silence be any ground of presumption against the party will always be a question of law, unless there is conflict in the proof of the attending circumstances.”

Apparently, the witness did not see the accident. He saw the party there at the crossing after it occurred, and then went to the place. How long it was after the accident that the conversation occurred is therefore left indefinite. According to prior evidence on the part of the plaintiff, the frightened team ran some distance, and there had'been time for the husband to stop it, get out of his wagon,, and go back where his wife was, and assist her to get up, and, as one witness says, “ she sat awhile there.” The conversation" called for was not, as in some of the cases, immediately after the accident. Assuming the offered evidence to have been material, we are of the opinion that the court did not err in excluding it.

We have examined the other exceptions, and find no good ground for reversal.

Judgment and order affirmed, with costs. All concur.


author: PRATT, J.

text:
    Christopher Clarke, Resp’t, v. Richard K. Fox, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Slandeb—Repetition .
    A charge that the originator of a slander is responsible for its repetition, is erroneous where there is no evidence of such repetition.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    Howe & Hummel, for app'lt;
    John S. Griffith, for resp’t.
   PRATT, J.

The court charged the jury that the originator of a slander is responsible for the repetitions, and that they must inquire carefully to what extent, if at all, under the proof, the alleged slander had traveled. In this the was erroneous. There was no proof that the slander had been repeated, and the jury were invited to give damages upon this mistaken basis. The exception taken was sufficient.

Judgment reversed, and a new trial ordered, with costs to abide event. All concur.


text:
    Frederick Weiler, Resp’t, v. Equitable Aid Union, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Insurance—Mutual benefit—Changing policy.
    Where a life insurance company issues a policy payable in eleven years, if the assured should live at that time, a by-law that all persons holding such policies who should live the period mentioned and become totally disabled, should be entitled to receive yearly one-tenth of the amount of their policy, is an unreasonable by-law so far as the contract between the parties is concerned, in that its effect is to infringe upon and impair the contract of insurance originally made and rights already accrued, even ■though the policy was accepted subject to such regulations of the company as then existed or might thereafter be adopted.

      % Same—Authobity of cobpobation.
    Where a corporation has received the benefit of a contract which has been fully executed by the party with whom it has dealt, it cannot, in an action against it for performance upon its part, raise the question of its power to make it.
    3. Same—By-laws.
    A power reserved to make by-laws means a power to make reasonable by-laws.
    Appeal from a judgment in favor of plaintiff.
    Butler S. Farrington and John W. Church, for app’lt;
    W. B. Leach and George W. Ray, for resp’t.
   MERWIN, J.

This action is based on a certificate, called a “ benefit certificate,’’ or “ endowment life insurance policy,” dated July 10, 1882, executed and delivered by the defendant to the plaintiff, in and by which the defendant, among other things, in effect, agreed that, in case the plaintiff was living and in good standing eleven years from the date thereof, it would pay to the legal payee of the certificate (conceded-to be the plaintiff) the sum of $400. The plaintiff has at all times paid his dues and assessments to the defendant, as they were made and levied, and has paid to the defendant the sum of $221 in assessments or premiums upon his certificate, and has in all things complied with the terms of the union, and is a member in good standing. After the 10th of July, 1893, the plaintiff furnished the defendant with proper proofs, and demanded the money, which was refused. It is found that the reason for not paying it was that at the annual ■session of the supreme union of the defendant, in March, 1893, a by-law was passed, taking effect May 1, 1893, which provided that:

“All persons holding valid benefit certificates, that have been or may be hereafter issued to them, who shall live to the period of expectation of life, as designated in section 2 of this article, ‘ Synopsis,’ and becoming totally physically disabled, shall be entitled to receive yearly a one-tenth part of the amount specified in their benefit certificate.”

Provision was also made for determining the fact of total physical disability. In substance, the claim was that the certificate of the plaintiff was by the by-law changed so that no part thereof was payable unless the plaintiff became totally disabled, physically, and then only a tenth part thereof yearly. The appellant now claims that it had no power to issue the endowment policy or ■certificate, and that, if it had, the plaintiff is bound by the new by-law, and cannot, therefore, recover, as he does not claim to be entitled under that

The charter of the defendant, as it now is, appears in the findings. It seems to have been amended since the issuing of the certificate to the plaintiff, and the charter, as it was then, is not in the case. It is, however, found, as matter of fact, that:

“ The defendant is a foreign corporation duly organized under the laws of the state of Pennsylvania, doing business at Columbus, in said state; duly authorized to do business in the state of Hew York, and capable of suing and being sued therein. That the object and purpose of said corporation was, among other things, to do a life insurance business upon the assessment plan ; establish a benefit fund, from and with which, to pay fellow members, upon their arriving to a certain age, called ‘expectancy,’ in accordance with certain tables adopted, one-half the amount named in the benefit certificate held by the member, and in the event of death the sum specified in such certificate, not exceeding three thousand dollars.”

In the constitution of the defendant, which appears in the case, it is stated that the- defendant was incorporated March 22, 1879, in compliance with a statute of the commonwealth of Pennsylvania under date of April 29, 1874. It has been held that, where a corporation has received the benefit of a contract which has been fully executed by the party with whom it has dealt, it cannot, in an action against it for performance upon its part, raise the question of its power to make it. Arms Co. v. Barlow, 63 N. Y. 70; 27 Am. & Eng. Enc. Law, 360, and cases cited. This ground of defense is not, we think, available to the defendant here. Hor did defendant refuse to pay on that ground.

The main question relates to the effect to be given to the bylaw passed in March, 1893. This was passed as a substitute for the by-law under which the policy to plaintiff was issued, and it operated to change the definite and absolute contract of defendant to pay in case the plaintiff was alive and in good standing at the end of eleven years, into a contract to pay only in case plaintiff was totally disabled physically, and then only one-tenth thereof annually. It was essentially a new contract, and one upon which the plaintiff might never receive anything. The defendant claims that this change, though radical, is binding on the plaintiff, because in his application he agreed to accept the certificate “ subject to such laws, rules, and regulations as now exist or may hereafter be adopted by and governing said corporation.” There is no-finding that plaintiff assented to the change, other than as force may be given to the above clause of the application. A power reserved to make by-laws means a power-to make reasonable bylaws. Kent v. Mining Co.. 78 N. Y. 159, 183; Attg. & A. Corp. § 347. This principle applies to associations like the defendant. Bac. Ben, Soc. (2d Ed.) § 85. What are to be deemed reasonable, depends on the objects and purposes of the society. In People v. Society, 24 Barb. 570, 575, it is said the by-law must, be reasonable, and adapted to the purposes of the corporation. It must be consistent with its charter. Bac. Ben. Soc. § 83. Here the object and purpose of the corporation, as appears from the finding of fact, were, among other things, to do a life insurance business upon the assessment plan, and give certificates payable in manner and form as that given to plaintiff. The by-law in question strikes down these certificates, and to that extent changes the objects and purposes of the corporation. The right of plaintiff to payment upon the contingency named in the certificate was in the nature of a vested right. Goodman v. Lodge, 67 Md. 117, 127; 1 Bac. Ben. Soc. § 289; 1 Mor. Priv. Corp. § 496. The plaintiff had the right to believe that the defendant would not, by by-law,' assume to change, as to him, the objects and purposes of the corporation, upon the basis of which he had made-his contract, and for ten years and upwards had performed upon his part. As to the plaintiff, the new by-law was simply a repudiation of a positive contract. We are referred by the appellant to the case of Hutchinson v. Supreme Tent, .etc., 68 Hun,. 355; 52 St. Rep. 199. In that case the question of the reasonableness of the by-law was not considered and was not involved, as, without it, the plaintiff was held not to be entitled to recover-at all. In the present case the court below held that the by-law in question, “ so far as the contract between the parties to this action is concerned, is an unreasonable by-law, as its effect is to infringe upon and impair the plaintiff’s contract already given, and rights already secured, and, as to this plaintiff and his contract with defendant, is illegal and void.” We are of the opinion that the trial court did not err in so holding. There is no other question that need be considered.

Judgment affirmed, with costs. All concur.


author: HATCH, J.

text:
    Thomas Ennis, App’lt, v. Arthur Brown, et al., Resp’ts.

      (Supreme Court, Appellate Division, Second Department,

      Filed January 4, 1896.)

    1. Deed—Discretion.
    A deed to a person “and associates” vests the entire title in the person named in the absence of anything to, show that there existed at any time " any associates of his in the title, or that he was connected with any person or persons therein, or that there was any limitation upon his power to convey or any disclosure of purpose for inserting or referring to associates.

      3. Same—Power of grantee to convey.
    Under such a deed, the grantee .can convey a good title, even though he holds for himself and as trustee for others.
    S. Same—Restriction.
    A restrictive stipulation contained in a deed that the premises should.not be used for a tavern, is a mere personal agreement, and does not create a covenant running with the land, and does not affect the title.
    4. Same.
    The facts proved in this case, show that the above deed took effect at a time when the association was competent to take, and vested it with legal title, in the absence of any proof of delivery of the deed on the day of its date.
    Appeal from an order, denying the purchaser’s motion to be relieved from the purchase on his bid,
    John F. Foley, for app’lt;
    Sidney V. Lowell, for resp’ts.
   HATCH, J.

action was brought for an accounting," and

resulted in a decree settling the accounts of defendants, and directing a salé of the premises affected by this order. On the sale plaintiff bid in the property, and now seeks to be relieved therefrom. The chain of title shows a deed bearing date July 17, 1867, running from one Eldert and wife, as grantors, to Henry Eckert and associates. Under date of January 21, 1871, Eckert and wife conveyed the premises to Martin Kalbfleisch, in trust for the Ocean us Association. The first claim is that Eckert did not take a fee of the premises, as the deed was to himself and associates, and therefore he could not convey the fee. The deed to Eckert is absolute, vesting a fee; and nothing appears to show that there existed at any time, any associates of his in the title, or that lie was connected with any person or persons therein ; nor does there appear in the deed or otherwise any limitation upon his power to convey, or any disclosure of the purpose for inserting or referring to associates. It was said in Jarvis v. Babcock, 5 Barb. 146: The grantees must be plainly described, capable of contracting, and competent to take the estate.” The term “associates ” used in the deed in no sense answers this requirement It may therefore be disregarded as surplusage, or rejected for uncertainty. Towar v. Hale, 46 Barb, 361: Greenwood Lake & P. J. R. Co. v. New York & G. L. R. Co., 134 N. Y. 435; 47 St. Rep. 550.

If Eckert held for himself and as trustee for others, the rule would not be different; he would still possess authority to convey a good title. King v. Townshend, 141 N. Y. 358; 57 St. Rep, 437.

The restrictive stipulation contained in the deed that the premises should not be used for a tavern cannot affect the title. It was a mere personal agreement, and did not create a covenant running with the land. The deed from Eckert and wife to Kalbfleischer, as trustee for the association, by force of the statute of uses and trusts vested the legal title in the beneficiaries. Hopkins v. Kent, 145 N. Y. 363 ; 64 St. Rep. 821. The claim that there was no beneficiary capable of taking title cannot be sustained upon the facts. It is true that the date of the deed and acknowledgment was prior to the certificate of incorporation. But there is no proof that the deed was delivered on that date, and the presumption of delivery is sufficiently overcome by what followed. The certificate of the county clerk that the officer who took the acknowledgment was competent to take it was not made until the 18th day of May, 1871. The certificate of incorporation bears date March 6,1871, and was acknowledged before plaintiff as a notary on that day. The certificate of the county clerk that he was such notary was made upon the same day as the certificate upon the deed, and this was followed by record of both instruments on the next day. The association immediately entered into possession of the premises, and it and its grantors have been in continual occupancy since. These acts, and the occupancy thereunder, we think sufficient to show that the deed took effect at' a time when the association was competent to take and vested it with legal title. O’Connor v. Huggins, 113 N. Y. 511; 23 St. Rep. 275; Shriver v. Shriver, 86 N. Y. 575. No reasonable doubt attends upon his title. The same is good and marketable.

We conclude, therefore, that the order appealed from should be affirmed, with costs and disbursements.

All concur.


author: Bradley, J.

text:
    The People, Resp’t, v. Charles Young et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 2, 1895.)

    1. Appeal—Appealable order.
    An order, in relation to the remission of the forfeiture of a bail bond, is appealable.
    2. Bail—Remission of forfeiture.
    The provision of the statute that the court may remit the forfeiture, or any part thereof, upon such terms as are just, confers a discretionary power upon the court, and one court will not review the discretion of another court, unless authorized by statute to do so, or unless such discretionary power has been so abused by the latter court as to constitute error in law.
    3. Same—Expense of re-capture.
    It is not an abuse of such discretion for a court to refuse to remit so much of a forfeiting bail bond, as has been expended for the re-capture of the prisoner.
    Appeal from an order, denying a motion for a remission of the forfeiture.
    Abraham Benedict, for app’lt;
    Fred C. Hanford, Asst. Dist. Atty., for the People.
   Bradley, J.

The defendant Young was arrested on the charge of assault in the first degree, and the appellants became his bail, in the sum of $2.500, for his appearance to answer to an indictment, if it should be found by the grand jury. They presented one against the defendant for assult in the first degree. In the meantime, Young had left the country, and gone to England. With a view to his extradition, a requisition and warrant of the executive of the United States were obtained, and the sheriff of Monroe county sent his deputy to England after Young. He remained there during the pendency of a prosecution in that country against the defendant, which resulted in conviction and imprisonment. Thereupon the deputy returned to this country. The bill presented by the sheriff to- the board of supervisors for the service was $1,159.90, of which the sum of $989.90 was audited by the board, and put into the tax levy. Shortly prior to the expiration of the term of imprisonment for which Young was sentenced there, the deputy of the successor in office of the sheriff before mentioned went to England; was there when Young was discharged from such imprisonment; and, pursuant to the extradition treaty between the two countries, he was taken into custody, and brought from there to the county of Monroe. The amount of the sheriff’s bill for this service, as made out for presentation to the board, was $1,049.19. It does not appear that any action of the board of supervisors had been taken on this bill at the time the proofs in this proceeding were prepared, in April, 1894. In October, 1893, judgment was recovered against the appellants, upon their undertaking as bail, for the sum of $2,518.30. The excess of that su m over $2,039 was remitted by the order appealed from. The main purpose of the statutory requirement of bail, which, when furnished, relieves the person charged with crime from custody, is to have such assurance as it may furnish of appearance of the principal to answer to indictment, and his presence for trial, and as indemnity for the consequences of his failure to submit himself to the j urisdiction of the court. His default gives the right of action upon the undertaking of bail, to recover the amount of it. This was the consequence of the default of the principal in the case in question. By their motion, the sureties of Young sought the discretion of the court of sessions for relief pro tanto from the judgment recovered against them. The statute on the subject provides that:

“ After the forfeiture of the undertaking or deposit, as provided in this article, the court directing the forfeiture, the county court of the county * * * may remit the forfeiture or any part thereof, upon such terms as are just.” Code Or. Proc. sect. 597. “ The application must be upon at least, five days’ notice to the district attorney * * * and can be granted only upon payment of the costs and expenses incurred in the proceedings for the enforcement of the forfeiture.” Id. § 598.

The forfeiture was directed by the court of sessions of Monroe county, and therefore the motion was properly made in that court for the remission. The right of- appeal in criminal cases is dependent upon the statute, as are also appeals from orders. People v. Thompson, 41 N. Y. 1. If the order in question should be deemed to have been made in a criminal action, the appeal would have the support of no statute. The court of sessions is a court of criminal jurisdiction. It is nevertheless a court of record, of original jurisdiction. And the statute provides that an appeal may be taken to the supreme court from an order, affecting a substantial right, made by a court of record, possessing original jurisdiction, in a speciel proceeding instituted in that court pursuant to a special statutory provision. ' Code Civ. Proc. section 1857. The order was made in a special proceeding, and, although made in the court of sessions, it may, in view of the purpose of the motion, be deemed to have a civil, as distinguished from a criminal, proceeding, and therefore treated as within the provision of the Code of Civil Procedure entitled “ An act relating to county officers of justice and civil proceedings.” It was optional with the appellants to make the motion either in the court of sessions or the county court.

Assuming, therefore, that the order affects a substantial right, it is appealable. The difficulty encountered by the appellants is in the fact of the discretion of that court in determining the matter of the application on which the order was made. The bills for charges and expenses in recapturing Young, and bringing him into the jurisdiction of the court for the purpose of his trial for the offense charged, may, seem large and somewhat unreasonable, as they were made to appear upon the application for relief of the appellants. Yet the motion made by them was, in some sense, one for favor; and the court was justified in requiring that the county of Monroe should, so far as the obligation of the sureties would permit, be indemnified against loss arising from the expenses with which it was or might be chargeable in consequence of the default of their principal. The charges for the amounts mentioned were made by the sheriffs. Those of one of those officers had been acted upon, considered, and audited by the board of supervisors for a sum somewhat less in amount than that for which the bill was presented by him. The other bill, on the same basis, very likely became the subject of consideration, and was audited for some amount, before the order appealed from was made; and, as between the board of supervisors and the sheriffs, it does not appear whether or not the bills were challenged, otherwise than by the investigation given to them by the board. In this and in the audit the board of supervisors are deemed to have acted judicially. It may therefore be assumed that the taxable property of the county of Monroe became chargeable with the amount of such bills audited and allowed by the board of supervisors. So far as appears, the order in question.remits the amount of the recovery in excess of that found necessary to indemnify the county for the expenses charged in taxes upon the assessment rolls as perfected by such board. ■ The provision of the statute that the court referred to “may remit the forfeiture or any part thereof upon such terms as are just,” confers a discretionary power .upon it. People v. Spear, 1 N. Y. Cr. R. 533. And the general rule is that one court will not review the discretion of another court, unless authorized by statute to do so, or unless such discretionary power has been so abused by the latter court in such manner as to constitute error in law. Wavel v. Wiles, 24 N. Y. 635; Reilley v. Canal Co., 102 id. 383; Tanner v. Marsh, 53 Barb. 438; Thomas v. Keeler, 52 Hun, 318; 23 St. Rep. 436; Tucker v. Pfau, 70 Hun, 59; 53 St. Rep. 553. The appellants, by their application to the court of sessions, sought its favor and discretion for relief; and by requiring full indemnity to the county for the expenses incurred in recapturing Young, with which it was, through its constituted authorities, charged, it cannot well be said that the discretion of the court was abused by the order there made.

It is, however, urged on the-part of the appellants that the expense of recapturing Young was not a. county charge, but that such expense is primarily that of the - federal government. It is true that, as between the 'United States and Great Britain, the expenses of the extradition pursuant to the treaty are to be borne by the former; but the relation in that respect between the two governments does not control as to the primary or ultimate duty or obligation, as between the federal government and the county in which the crime is alleged to have been committed by the extradited person. The expenses of the recapture of Young were incurred by the officers of Monroe county. Those officers cannot seek indemnity elsewhere, and it was within the power of the court to treat the expenses as incurred in behalf of the county, and they were properly the subject of consideration by the court upon the motion made for' remission of the forfeiture.

These views lead to the conclusion that the order muat be affirmed.

All concur, except WARD, J., not sitting.