author: Haight, J.

text:
    John Flannery, App’lt, v. J. Wesley Van Tassel, Resp’t.

      (Court of Appeals, Second Division,

      Filed April 21, 1891.)

    Evidence—Declarations of assignor made before transfer
    In an action brought to recover the value of a stock of goods taken from plaintiff by a writ of attachment against the debtor who had previously sold them to plaintiff in payment of his indebtedness to him, defendant was allowed to show by one of the plaintiffs in the attachment suit that the debtor on the evening previous to his sale to plaintiff in this action had made statements to the witness and others that he was perfectly solvent, had sufficient on his hooks to pay all his creditors, was not short in his accounts as village treasurer, etc. Meld, incompetent, as being the mere declarations of an assignor of a chose inaction, forming no part of the res gestee and not competent to prejudice the title of his assignee.
    (Follett, Oh. J., dissents.)
    Appeal from a judgment of the general term, second department, affirming a judgment entered upon a verdict.

      H. H. Hustis, for app’lt; Howard Thornton, for resp’t.
   Haight, J.

This action was brought to recover the value of a stock of goods and merchandise alleged to have been wrongfully taken from the possession of the plaintiff by the defendant.

The defense was that they were the goods of one Edward Mc-Manus, and that the defendant as sheriff of Dutchess county levied upon them by virtue of an attachment issued in an action brought against McManus by Edward 0. Barnes and Albert W. Mapes.

The evidence on behalf of the plaintiff tended to show that on the 12th day of March, 1889, McManus was short in his accounts as the treasurer of the village of Fishkill Landing in the amount of $1,569.89, for which the plaintiff was liable as his bondsman ; that he was also endorser upon two notes of McManus for $50 each and one for $100 ; that in addition McManus was owing him $90 for the rent of a barn ; that on the morning of that day Mc-Manus sold to him the stock of goods in question upon the consideration that he should assume and pay the liability of Mc-Manus as treasurer, the three notes upon which he was endorser and cancel the amount that McManus was owing him, all of which was done. The plaintiff, through his attorney, Mr. Hustis, immediately took possession of the stock of goods and put one John McManus, a former clerk under Edward McManus, in charge. Two days thereafter the defendant through his attachment took possession of the goods and closed the store.

After the plaintiff had rested, Mapes, one of the plaintiffs in the attachment suit, was sworn as a witness for the defendant, and was permitted under an objection and exception by the plaintiff to give evidence of the declarations made by Edward McManus on the evening before the sale to himself and several others in reference to his financial condition, in which he stated that he was perfectly solvent; that he had sufficient upon his books to pay all of his creditors; that the report in reference to his being short in his accounts as treasurer of the village was not true; that there was only a discrepancy in his accounts amounting to between two and three dollars; that he had not absented himself from his place of business to avoid the service of process, etc.

We are of opinion that the evidence in reference to these declations was improperly received. It enabled the defendant to argue before the jury that on the evening before the transfer of the goods in question to the plaintiff McManus falsely represented his financial condition to be solvent and that the report of his defalcation as treasurer was untrue, thus materially prejudicing the plaintiff’s claim.

Undoubtedly all that was said and done by parties upon the occasion of the transfer of personal property may be given in evidence as part of the res gestee; so also may the declarations of a party to the action be given as against himself but not as against the others, for as to them it would be mere hearsay. Ordinarily the declaration of a vendor when not a party, made to a stranger in the absence of the vendee, is not competent as evidence affecting the title of a purchaser of personal property, in good faith and for value, either before or after its transfer. To this rule there are exceptions, as for instance, where a conspiracy between the vendor and vendee to defraud is first shown to have existed; or where the party holds as a privy by representation, or in such a representative character as between whom and the declarant there is a community of interest in the event of the suit; or where the vendor after the sale still continues in possession, exercising acts of ownership over the property, thus raising the presumption that the sale was fraudulent

The cases in which the question has been considered are quite numerous and are about evenly divided between declarations made before and those made after the transfer. As to the latter, there appears to have been no question about the rule. It is elementary and settled by an unbroken line of authorities. As to declarations made before transfer, the rule at one time appears to have been in some confusion; but it was finally settled in the case of Paige v. Cagwin, 7 Hill, 361, in which Senator Lott, in an elaborate opinion, reviews all of the authorities and disposes of the question.

In Dodge v. Freedman's Savings & Trust Co., 93 U. S. Sup. Ct. Rep., 382, Mr. Justice Hunt, in delivering the opinion of the court, commenting upon the evidence of declarations, says: “Evidence of this character was given by each party and admitted, notwithstanding the objection of the other. Ho principle can be found to justify the admission of this evidence. It has long been settled that the declarations made by the holder of a chattel or promissory note while he held it are not competent evidence in a suit upon it or in relation to it by a subsequent owner. This was settled in the state of Hew York in the case of Paige v. Cagwin, 7 Hill, 361, and is now admitted to bo sound doctrine.”

In the case of Truax v. Slater, 86 N. Y., 630, the plaintiff, as assignee for the benefit of creditors, sought to recover of the defendant the amount of accounts collected by him upon the ground that they belonged to the assigned estate. The defense was that they had been transferred to the defendant by the assignor before the general .assignment. Upon the trial declarations of the assignor were sought to be given in evidence, which was ruled out under objection. On review the court says: “ The conversation inquired about does not appear to have been a part of any res gesto and was clearly incompetent to bind or affect the plaintiff. The mere declarations of an assignor of a chose in action, forming no part of any res gesto, are not competent to prejudice the title of his assignee, whether the assignee be one for value or merely a trustee for creditors and whether such declarations be antecedent or subsequent to the assignment”

To the same effect are the cases of Bullis v. Montgomery, 50 N. Y., 352-358; Gardner v. Barden, 34 id., 433 ; Flagler v. Wheeler, 40 Hun, 125; Flagler v. Schoeffel, id., 178; Vidvard v. Powers, 34 id., 221; Jones v. The East Society of the M. E. Church of Rochester, 21 Barb., 161-174; Whitaker v. Brown, 8 Wend., 490; Kent v. Walton, 7 id., 256; Stark v. Boswell, 6 Hill, 405; Beach v. Wise, 1 id., 612.

As to declarations made after transfer, see Coyne v. Weaver, 84 N. Y., 386-392; Burnham v. Brennan, 74 id., 597; Cuyler v. McCartney, 40 id., 221; Jacobs v. Remsen, 36 id., 668-670; Noyes v. Morris, 31 N. Y. State Rep., 608; and see authorities there cited.

And upon the exceptions to the rule, see Loos v. Wilkinson. 110 N. Y., 195-210; 18 N. Y. State Rep., 110; Tilson v. Terwilliger, 56 N. Y., 273 ; Newlin v. Lyon, 49 id., 661; Adams v. Davidson, 10 id., 309.

In the case under consideration, the question at issue was as to whether the plaintiff purchased in good faith, paying full value. If he did, he became the owner of the goods. The case is brought within the general rule, and is not affected by any of the exceptions thereto. It consequently follows that the judgment should be reversed, and a new trial granted, with costs to abide the event. ■

All concur, except Follett, Ch. J., dissenting, and Yann, J., not voting.

       Reversing 32 N. Y. State Rep., 350.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    William H. Crossman et al., App’lts, v. The Universal Rubber Co. of New York, Resp’t.

      [(Court of Appeals, Second Division,

      Filed April 21, 1891.)

    I. Sale—Election oe remedies.
    Plaintiffs, doing business in New York, attached property of defendant in New Jersey, and filed a bill in chancery against the latter as an insolvent corporation, alleging its insolvency, and that delivery of plaintiffs’ goods to it was brought about by fraud in false statements made by its president, and plaintiffs offered to surrender defendant’s notes given therefor, but not yet due, and asked for a receiver. Held, that this did not constitute an election of remedies which would prevent an action in this state upon a note taken for a portion of the goods; that the attachment proceeding and the chancery suit in New Jersey were instituted and had in affirmance of the sale of the goods to collect the purchase money.

      2. Abatement—Evidence.
    The plaintiffs offered to prove that the attachment proceedings had been discontinued; also that nothing had or could he realized by the chancery suit, and that such suit was unproductive through the action of the receiver for such purpose, but were not allowed to do so. Held, error; as this evidence was admissible to avoid the conclusion that the pendency of such proceedings operated by way of abatement of the present action.
    Appeal from judgment entered pursuant to order of the general term of the superior court of the city of New York, denying new trial and directing judgment on verdict in favor of the de-. fendant.
    The plaintiffs, partners doing business in the firm name of W. H. Grossman & Bro. in the city of New York, about the first of May, 1888, sold and delivered to the defendant, a corporation of the state of New York, a quantity of goods at the price of $9,309, for which the defendant gave them its three promissory notes of date May 5, 1888, payable to the order of the plaintiffs. This action was brought upon the one of them made for $3,166.61 payable at four months. The defense alleged is, that before any of the notes matured the plaintiffs by bill in chancery in the state of New Jersey, and by attachment in the supreme court of that state, had taken proceedings founded upon alleged fraud in the purchase by the defendant; and that by so doing the plaintiffs had made an election of remedy inconsistent with that of this action. The trial court held that such defense was established and directed a verdict for the defendant. Upon that subject it appears that the defendant was engaged in business in New Jersey, and that on the first of August, 1888, the plaintiffs instituted a proceeding by attachment in the supreme court of that state against the property of the defendant, and that a few days after the plaintiffs filed a bill in chancery in that state against the defendant as an insolvent corporation, alleging its insolvency and its indebtedness to the plaintiffs for goods obtained from them; and that the delivery of the goods to it was brought about by fraud in that the president of the defendant represented to the plaintiffs that the company was perfectly solvent, by which the plaintiffs were induced to deliver the goods and take the promissory notes which they “ bring into court and tender themselves willing to surrender under the direction of the court;” that such representations were untrue, as the corporation was then insolvent and known by such president to be so. And added that they “ repudiate the contract and would take back the materials delivered if it were possible to do so; ” and the prayer for relief was that a receiver be appointed and injunction issue. A receiver was appointed, whose duty it was to take possession of all the property of the defendant in the state of New Jersey with a view to the ultimate distribution of the proceeds amongst its creditors, as provided by the statute of that state relating to proceedings against insolvent corporations. As the defendant did not answer the bill its insolvency may be assumed.

      Carlisle Norwood, Jr., for app’lts; Benjamin Estes, for resp’t.

       Reversing 39 N. Y. State Rep., 29.

   Bradley, J.

The question arises whether the proceedings taken by the plaintiffs in the courts of New Jersey constituted an. election of remedy inconsistent with that which they seek to enforce by this action upon the note taken by them for a portion of the consideration of the sale of the goods, which was the subject of those proceedings in that state. Those proceedings were taken there with a view to the collection of the purchase price of the goods sold, and such price is represented by the notes. The rule is well settled that when a party has elected to adopt and has pursued one of two inconsistent remedies he is not permitted to after-wards avail himself of the other. In Comyn’s Digest “ Election , it is said : “ If a man onee determines his election it shall be determined forever; as if an obligation delivered to the use of A. be refused when he is first informed of it, he cannot afterwards accept it.” And the same author adds: “ But where an election is of several remedies, if he chooses one, he may afterwards have the other in personal cases; as where he has election of several actions.” It is the inconsistency of the remedy sought with that he has before adopted and pursued which determines the right of a party as between them. And ■ this as the consequence is founded upon the principle that the other party may otherwise be in some manner prejudiced in respect to a defense or cause of action by the abandonment of the one and resort to the other of such remedies. But whether or not that is the effect is not the subject of inquiry. In the case where a party may resort either to an action upon contract or in tort, the election between them concludes him. And the question has more frequently arisen where a purchase of property is obtained by fraud. Then after the seller has elected to rescind the sale and has proceeded for the purpose of recovery of the property or for its conversion, he denies to himself the right to abandon that remedy and seek to recover in affirmance of the sale; and the effect is the same when his election is effectually made to prosecute for recovery of the purchase money with knowledge of the fraud. He then has lost his right to rescind the sale and reclaim the property. Moller v. Tuska, 87 N. Y., 166 ; Conrow v. Little, 115 id., 387 ; 26 N. Y. State Rep., 527; Terry v. Munger, 121 N. Y., 162; 30 N. Y. State Rep., 746. And the same rule is applicable to other cases where there are two existing and substantially inconsistent remedies.

Then the adoption and pursuit of one of them excludes from the party the benefit of the other. Rodermund v. Clark, 46 N. Y., 354; Fowler v. Bowery Savings Bank, 113 id., 450; 23 N. Y. State Rep., 130 ; Kennedy v. Thorp, 51 N.Y., 174; Littlefield v. Brown, 1 Wend., 398. But that incompatibility is not applicable to the present case. The attachment proceeding in Hew Jersey was instituted and had in affirmance of the sale of the goods, to collect the purchase money. And the purpose of the suit in chancery there was the same. Heither was founded upon rescission of tire contract of sale. Pursuant to the statute of that state, under which the bill was filed providing for proceedings by creditors of insolvent corporations, domestic and foreign, the plaintiffs filed their bill and caused the appointment of a receiver of the property of the insolvent defendant. It is true that in the bill they alleged fraud on the part of the defendant in making the purchase, and offered to surrender the notes under the direction of the court. But reference must be had to the nature of the bill, in view of its purpose and of the statute under which it was filed, to determine the character of the suit It is seen that it was founded upon the debt arising out of the sale and purchase of the goods, and instituted to collect the purchase money. The consideration of the sale was what the plaintiffs sought to recover, and the attachment proceeding and the chancery suit were in the nature of proceedings in rem for that purpose. It cannot, therefore, properly be said that the plaintiffs sought to or did avoid the contract of sale, but that they did for the purpose of an earlier remedy to obtain the purchase money seek by reason of the alleged fraud to be relieved from the credit given. This did not have the effect to otherwise impair the contract of sale. Wigand v. Sichel, 4 Abb. Ct. App. Dec., 595; 3 Keyes, 120. In the suit and proceedings there, as in the action here, the purpose was to recover or collect the price for which the goods were sold. So far there is no inconsistency of remedy. The credit was there sought to be repudiated for the fraud, because the stipulated time of payment had not then expired. This action was brought after the expiration of that time, and is founded upon the promise of the defendant furnished by its note to pay such amount of the purchase money.

The giving of the notes was not a payment, but their apparent effect was a suspension of the right of action to recover it. If the plaintiffs had recovered in assumpsit upon the implied promise to' pay for the goods the amount- of the purchase price, they would have been required to surrender the notes. But this they did not do, and they still hold the note in question. In effect it is an express promise to pay so much of the purchase money. It is not seen how the remedy by this action is inconsistent with that founded upon the implied promise to pay for the goods; the practical effect is the same, and both proceed upon the affirmance of the sale. While the action upon the note is not consistent with the repudiation and proceeding in disregard of the credit in the courts of New Jersey, the incompatibility in practical effect had relation to the time of application of remedy and not substantially to its nature or purpose. The conclusion follows that the defense cannot effectually rest upon the doctrine of election of remedies, as those pursued in the New Jersey courts were not inconsistent in their purpose and effect with that of this action. But relief from that defense does not necessarily enable the plaintiffs to recover here. When it appeared, as alleged, that the plaintiffs J.It had taken the proceedings by attachment and in the chancery suit in that state, their pendency there presumptively operated by way of abatement of the present action, else the plaintiffs may have had the means of twice collecting the same debt against the defendant. Embree v. Hanna, 5 Johns., 101. The plaintiffs, how-ever, if the facts permitted, may have shown that those proceedings had been discontinued or, as they did not charge the defendant personally with the debt, that neither of them was effectual to produce any fund to apply upon their claim, or that they could be productive of a sum applicable to it, sufficient partially only and to what extent to satisfy it. The plaintiffs offered to prove that the attachment proceeding had been discontinued, also, offered evidence in relation to proceedings founded upon the chancery suit with the view, as claimed, of making it appear that nothing had been or could by them, as creditors of the defendant, be realized by such proceedings ; | and that such suit was unpro-' ductive through the action of the receiver for such purpose. Those facts were essentially important, and if permitted to prove them, it must, for the purposes of the question here, be assumed that they would have been shown by evidence legitimate for that purpose. The exceptions to the exclusion of the evidence so offered was error, and for that reason the judgment should be reversed and a new trial granted, costs to abide the event

All concur, except Vann and Brown, JJ., absent.


text:
    Joseph Atwater, App’lt, v. The Trustees of the Village of Canandaigua, Resp’ts.

      (Court of Appeals, Second Division,

      Filed April 21, 1891.)

    1. Nuisance—Flooding- lands.
    Defendants were authorized by chap. 658, Laws 1886, to construct a sewer in the outlet of Canandaigua lake, and for the purpose of maintaining the height of water in the lake, to erect and maintain locks or bulkheads, with gates, in said outlet. In doing so they erected a coffer dam during low water, which at the time of the spring freshets retained the water on plaintiff’s distant pasture land for a time, to his damage. Held, that the circumstances of the case were not such that the omission of the defendants to resort to all possible means to overcome the obstruction by the dam to the flow of water into and through the channel during the time reasonably necessary for the work rendered them chargeable with negligence in the performance of their duty, although the consequence was that water remained on plaintiff’s premises longer that season than usual.
    3. Same.
    The action of the defendants in the performance of the work was confined within the limits where they had the right to execute it, and the effect upon property beyond those bounds resulting in damages was the consequence < f such performance of the work and not the direct act of its execution by them, and they were therefore not liable.

      (St. Peter v. Denison, 58 N. Y., 416, distinguished.)
    2. Same.
    In order to have protection against liability the work must not only be done for the purposes of the public and by authority of law, but it must be done in manner and method reasonable with a view to as little injury to others as practicable, and with reasonable care, skill and dispatch.
    Appeal from judgment entered upon order of the general term of the supreme court in the fifth judicial department, overruling exceptions ordered heard there in the first instance, denying motion for a new trial and directing judgment on the verdict in favor of the defendants.
    The plaintiff alleged that in March, 1888, the defendants wrongfully, negligently and carelessly erected a coffer-dam in the outlet of ■Canadaigua lake at the foot of Main street in the village of Canandaigua, and maintained it there, by which the water of the lake was backed upon and over his pasture land causing damage. The defendants, admitting the existence of the dam, put in issue those ■allegations in other respects and matter alleged in justification. And it appeared that at the time in question there were two outlets of the lake. One of them, known as the Du Bois outlet, may be termed the old one, as by the opening of a channel more than ■eighty years from the lake to the then existing outlet it had since ■continued such, and the other west of it known as the feeder was made by the Ontario Hydraulic company in 1856 pursuant to authority given by Laws of 1855, chap. 234, , under which the company having obtained the right of way, made the channel leading from the original outlet a short distance from the lake and at the point where the original outlet turned to go east. This new channel was made to supply water to mills below and connected with the old channel one and a half miles from its mouth. Across these outlets and along near the lake shore was a highway or street known as Lake Road, which at the foot of Main street came into the latter. By Laws of 1886, chap. 658, the defendants for the purpose of obtaining drainage ■and sewerage for the village, and to drain and reclaim wet and swamp lands, were empowered to construct a public sewer along the bed of the outlet and the new channel formerly constructed by the Hydraulic Company, and for that purpose to take and appropriate, in the manner provided, the right to use and occupy such -outlet and new channel with such lands as should be necessary to carry out those purposes, but the rights and privileges granted .should be so exercised that the waters of the lake should be maintained at a height not less than ordinary low water mark. And for the purpose of maintaining the water at proper level the defendants were authorized to erect and maintain in the outlet and such new channel locks or bulkheads with gates, etc., to so control and regulate the discharge of the waters of the lake as to comply with the provisions of the act.
    In 1887 the defendants acquired the interest and right formerly had by the Hydraulic Company to regulate and control the flow •of water into and through the new channel or feeder and the right to occupy its bed for such sewerage and drainage with the right of way along the banks, etc. In March, 1888, with a view to the ■construction of a bridge in the highway across this channel and in combination with it bulkheads and gates, the defendants caused to be erected a coffer-dam, and thereafter proceeded to construct the bridge in the place of an old one which was in a dilapidated condition. The coffer-dam remained there until in August, when the use for it in the construction of the bridge was accomplished .and the dam was removed. The cause of the plaintiff’s complaint was that the effect of the dam was to hold back the water of the lake and cause it to remain on his low pasture land situated up the lake a quarter of a mile distant from the dam. The court directed a verdict for the defendants.

      William H. Smith, for app’lt; Thomas H. Bennett, for resp’ts.

       Affirming 30 N. Y. State Rep., 587.

   Bradley, J.

It was within the power of the defendants to construct the bridge and bulkheads with gates at the place where the work was located and performed. The trustees of the village of Canandaigua were commissioners of highways in and for the village, having the powers of such commissioners, Laws 1854, chap. 352, § 1, and in the construction of the bridge they were proceeding pursuant to authority and in the performance of their duty. The coffer-dam placed in the channel was necessary to the construction of the bridge. It had the effect to stop the flow of water from the lake through the channel known as the feeder, and the only outlet for it during the time the dam remained there was through the Du Bois channel. There was evidence tending to prove that from the time of the removal or opening in February, 1888, of the Chapinville dam (located about four miles from the lake) the Du Bois outlet had the capacity to take from the lake and did carry off as much water or more than previously flowed through both channels.

This fact was controverted, and the conclusion was warranted that the coffer-dam had the effect to obstruct the discharge to’ some extent of the quantity of water, when high in the lake, which the two channels had been accustomed to carry off before the removal of the dam, and that the continuance of water on the plaintiff’s land longer than it otherwise would have remained there was attributable to the cofferdam. While the water was no higher and covered no more of this land that spring than it had years before, and was not so high as in the spring of 1887, it remained on the plaintiff’s pasture field longer; and it was the continuance of it there which impaired the usefulness of the land and substantially deprived him of the beneficial use of it that season. The question, therefore, is whether or not the alleged justification is a defense against liability of the defendants for injury suffered by the plaintiff. The Hydraulic Company took by statute, Laws 1885, chap. 234, the right to maintain bulkhead and gates in the channel subject to “ liability for all damages occasioned thereby actually sustained by any person whatsoever.” The mere acquirement of the rights of that company afforded no means of protection of the defendants against liability for injury occasioned by the use of the privileges to which they succeeded. Nor can they be relieved unless their rights were superior to those of persons engaged in work private in character. The doctrine, however, is well established in this state, that public officers lawfully employed in making public improvements, and corporations engaged in the performance of work of a public nature authorized bv law, are not liable for consequential damages occasioned by it to others unless caused by misconduct, negligence or unskillfulness. Radcliff's Executors v. Mayor, etc., 4 N. Y., 195; Bellinger v. N. Y. C. R. R. Co., 23 id., 42 ; Moyer v. N. Y. C, etc., R. R. Co., 88 id., 351; Uline v. N. Y. C., etc., R. R. Co., 101 id., 98. And such is the weight of authority elsewhere. Transportation Co. v. Chicago, 99 U. S., 635, 641.

By virtue of these lawful powers the trustees, as commissioners of highways, were authorized to construct the bridge, and the power was conferred upon them by statute to erect bulkheads and gates to regulate the flow of water in the channel, which the municipal corporation had appropriated for the purposes of sewerage and drainage. Laws 1886, chap. 658. And they had the lawful authority to do whatever was essential to the proper performance of the work of making the improvement It was for that purpose only that the coffer-dam was erected. The necessity for it made it lawful, and its usefulness was dependent upon the obstruction by it of the flow of water in the channel at the place where the improvement was made. The necessary consequence was to hold back the water which would otherwise have gone through this one in excess of that which passed down the other channel during the time the coffer-dam was there.

It is urged on the part of the plaintiff that the damages were incurred by the direct and physical invasion of his land by the defendants in the construction of the dam; and that it constituted a taking of his property within the meaning of the provision of the constitution that private property shall not be taken for public use without compensation. This subject has had much discussion and judicial consideration; and that consequential damages to property of others, occasioned by the performance of public work, are not treated as the taking of it within the meaning of the constitution is not an open question in this state, as will appear by reference to the cases before cited. The dam did not nor did any of the work encroach upon the plaintiff’s premises. The right to construct this dam and thus obstruct the flow of water in that channel to the prejudice of owners of property affected by it depended upon its necessity for the purpose of the work of the public improvement according to the plan devised for the structures to be erected. And assuming as we do, for the purpose of the question now under consideration, that it was such, and that they properly and expeditiously performed the work, it is not seen within the doctrine before stated how the defendants can be held liable for the consequences resulting from it to others.

The principle applicable is the same whether the injury to the use of property resulting in damages is physically upon it or not, provided they are consequential. Within this rule serious injury to property may be occasioned by the lawful exercise of powers of public character pursuant to law, and that if the work is carefully and skillfully performed the consequences may be damnum absque injuria when the legislature has provided for no compensation. In such case the protection of the owner of property not taken or appropriated which may be subjected to hazard of injury is in the care and skill to be observed by those engaged in the execution of the work." If they fail to do that they are liable for the consequences of such failure. In the present case the action of the defendants in the performance of the work was confined within the limits where they had the right to execute it, and the effect upon property beyond those bounds resulting in damages was the consequence of such performance of the work and not the direct act of its execution by them. In that respect this case is distinguishable from that of St. Peter v. Denison, 58 N. Y., 416. There the defendant was held liable because by casting stone upon the premises he committed a trespass; and the fact that he was engaged in the performance of a public work and the fragment of rock was in the process of blasting thrown upon the land of another was no justification. Here the injury to the plaintiff’s premises was not done directly by any act of the defendants, but it was the consequence following and traceable to the work as the cause. In the one case the act of the party was and in the other not a direct invasion of the premises of the plaintiff. The distinction between the principle of the Radcliff and Bellinger cases and the St. Peter case is recognized by Judge Folger in the latter. The dam was but a temporary structure essential to make the public improvement and was removed when that was accomplished. The damages so resulting from such cause have quite uniformly been treated as furnishing no common law remedy. Plant v. L. I. R. R. Co., 10 Barb., 26; Matter of Squire, 34 N. Y. State Rep., 722.

In Pumpelly v. Green Bay Co., 13 Wall., 166, the defendant not only by its dam raised the water in Fox river above the height authorized by the statute, but the dam and its consequences of flooding the plaintiff’s land was permanent. And in Transportation Co. v. Chicago, the Pumpelly case and another are mentioned as those in which the extremest qualification of the doctrine is to be found in support of an action for damages sustained in consequence of the performance of a public work. But added that in those cases it was held that a permanent flooding of private property may be regarded as a taking.” And in that case the court held that “acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the state or its agents, or give him any right ©f action. This is supported by an immense weight of authority.” In order to have protection against liability the work must not only be done for the purposes of the public, and by authority of law, but it must be done in manner and method reasonable with a view to as little injury to others as practicable, and with reasonable care, skill and dispatch.

It may be observed that the plaintiff does not allege delay on the part of the defendants in the commencement or prosecution of the work of construction of the bridge. The further question is whether the inference from the evidence was fairly permitted that the defendants were chargeable with any want of care which caused the injurious consequences suffered by the plaintiff. The propositions which the court was specifically requested to submit to the jury in that respect were whether the defendants constructed the dam at an unreasonable time, being shortly before the spring floods; also whether they should not have taken the water around the place of the work, rather than hold it back from the channel by the dam. The time and the necessity for the construction of it were matters to be determined by the trustees, upon whom was imposed the duty in that respect. And assuming, as we must upon the evidence, that they acted in good faith, their exercise of discretion in those respects is not the subject of review. Talcott v. City of Buffalo, 125 N. Y., 280; 34 N. Y. State Rep., 871.

It appears that it was necessary to put in the dam when the water in the channel was low, and that it could not be properly done in the spring during high water which usually came in April and May, and sometimes later. While it may be that they could with propriety have, without serious prejudice to the use of the highway by the public, have delayed the work until low water in the summer, there is no support for the imputation of bad faith on the part of the defendants in erecting the dam at the time they did. If the municipal corporation had owned the adjacent land it may at the requisite expense, which it seems would have been large, have dug a channel of sufficient width and depth around the place where the work was done; but it does not appear that this could have been accomplished by any reasonable means. The circumstances of this case are not such that the omission of the defendants to resort to all possible means to overcome the obstruction by the dam to the flow of water into and through this channel during the time reasonably necessary for the work rendered them chargeable with negligence in the performance of their duty, although the consequence was that water remained on the plaintiff’s premises longer that season than usual.

These views lead to the conclusion that the evidence was not such as to support a verdict for the plaintiff.

The judgment should be affirmed.

All concur.


text:
    In the Matter of the Will of John Guy Vassar, Deceased.

      (Court of Appeals, Second Division,

      Filed April 21, 1891.)

    1. Collateral inheritance tax—Not to be calculated on increase OF ESTATE AFTER DEATH OF TESTATOR.
    The property of which the person died seized or possessed is subject to the collateral inheritance tax; the increase or interest thereafter obtained by the executors is property of which the testator was not seized or possessed at the time of his death. The property should be appraised, and the tax assessed as soon after death as practicable and becomes immediately due, but the provision for charging interest, in case it is not paid, is in lieu of any increase or interest that may be derived from the estate by the executors.
    3. Same—Exempt corporations.
    By the act incorporating the Vassar Brother’s Hospital, so much of its real estate as was occupied for a hospital, and all its personal property was exempt from taxation. The bequest to it was entirely of personal property. Held, that it was one of the corporations excepted from the provisions of the collateral inheritance act by the section exempting societies, corporations and institutions exempted by law from taxation.
    i. Same.
    The provision of the act excepting “ the societies, corporations and institutions now exempted by law from taxation ” is not limited to those bodies which enjoy complete immunity from taxation.

      4. Same—Home for aged men.
    The fact that a home for aged men charges an entrance fee for its inmates does not operate to deprive the home of the exemption from taxation as an alms house to which it would otherwise be entitled under 1 R. S„ 888, § 4.
    5 Same—Vassar College.
    By chap. 89 of the Laws of 1863 the real and personal property of Vassar College to the extent which it was authorized to take by the act of incorporation, viz., $40,000, was exempted from taxation. The personal estate invested produced an income of $35,000. Held, that if it has power to take the whole or any part of the bequest in question, the same would be exempt.
    Appeal from an order of the general term of the supreme court, second department, affirming an order of the surrogate’s court of Dutchess county.

      Joseph H. Choate, C. Swan and R. E. Taylor, for app’lt, Vassar College; Allison Butts, for app’lt, Vassar Brothers Hospital; John T. H. Tallmun, for app’lt, Vassar Brothers Home; Robert F. Wilkinson, for People and the county treasurer, resp’ts.

       Reversing 34 N. Y. State Rep., 338.

   Haight, J.

On the 27th day of October, 1888, John Guy Yassar died at the city of Poughkeepsie, leaving a last will and testament which was duly admitted to probate by the surrogate of Dutchess county on the 11th day of February, 1889, by which will legacies were bequeathed to the Yassar Brothers Home for Aged Men, Yassar Brothers Hospital, Yassar College and the John Guy Yassar Orphan Asylum. On the 20th day of February, 1890, upon a petition of the executors appointed under the provisions of the will the surrogate made an order appointing Daniel W. Guernsey an appraiser to appraise the fair market value at the time of the death of the decedent of the bequests to the institutions named, and ordered and directed the appraiser to inquire into and report as to the liability to or exemptions from the collateral inheritance tax under the provisions of chap. 713 of the Laws of 1887 of each of said institutions. Thereupon and on the 3d day of March, 1890, the appraiser, after giving the notices required by the statute, entered upon a hearing of the parties interested and after taking the evidence submitted by the respective parties, made his report to the surrogate bearing date March 24, 1890, in which he appraised the cash market value of the bequests made to the institutions named by the deceased under the provisions of his will, as follows :

Yassar Brothers Home for Aged Men............ $ 50,560 59
John Guy Yassar Orphan Asylum.............. 609,506 05
Yassar Brothers Hospital....................... 660,871 05
Yassar College................................ 558,516 05

The appraiser further reported that in liis opinion none of the bequests to the institutions named were subject to the collatera inheritance tax.

' Upon a hearing before the surrogate this report was set aside and the proceedings were referred back to the appraiser witl directions for him to report as to the fair market value at the time of the death of the decedent of the aforesaid bequests, and thereupon the appraiser made his second report to the surrogate giving the values the same as they were given in his first report, and thereupon and on the 13th day of May, 1890, the surrogate made an order assessing a tax of five per cent upon each of the bequests to the institutions named except that of the John Gruy Vassal1 Orphan Asylum, which he held to be exempt. He also in and by the terms of his order adjudged that all increase of the residuary legacies and each of them, except the one to the John Gruy Yassar Orphan Asylum, accrued or thereafter to accrue since the death of the testator, was liable to the payment of the tax, and directed that the amount should be ascertained and determined upon the final accounting of the executors. This order having been affirmed in the general term, was brought to this court for review upon appeals taken on behalf of the Yassar Brothers Home for Aged Men, Yassar Brothers Hospital and Yassar College.

It appears that the personal estate of the deceased amounted to upwards of two million dollars, and that at the time of the hearing before the appraiser the same had been increased by the collection of interests upon investments made in the amount of about $150,000, so that the question as to whether the increase is subject to the tax is one of some importance.

The act to which we have referred provides: “ Section 1. After the passage of this act all property which shall pass by will or by the intestate laws of this state from any person who may die seized or possessed of the same * * * shall be subject to a tax of five dollars on every hundred dollars of the clear market value of such property.” It will be observed that the property here referred to is that of which a person may die seized or possessed. By § 2 of the act‘it is provided that, “ When any grant, gift, legacy or succession upon which a tax is imposed by section first ■ of this act shall be an estate, income or interest for a term of years, or, for life, or determinable upon any future or contingent event, or shall be a remainder, reversion or other expectancy, real or personal, the entire property or fund by which such estate, income or interest is supported or of which it is a part shall be appraised immediately after the death of the decedent at what was the fair and clear market value thereof at the time of the death of the decedent in the manner hereinafter provided, and the surrogate shall thereupon assess and determine the value of the estate, income or interest subject to said tax in the manner provided in § 13 of this act, and the tax prescribed by this act shall be immediately due and payable to the treasurer of the proper county,” etc.

And again, § 4: “All taxes imposed by this act, unless otherwise herein provided for, shall be due and payable at the death of the decedent, and if the same are paid within eighteen months no interest shall be charged and collected thereon, but if not so paid interest at the rate of ten per cent per annum shall be charged and collected from the time said tax accrued; provided that if said tax is paid within six months from the accruing thereof a discount of five per cent shall be allowed and be deducted from said tax."

We shall not stop to consider whether the bequests in question are those mentioned within the provisions of § 2 of the act referred to, for the reason that if they are not covered by the provisions of that section they certainly are by that of § 4; but the provisions of the former section indicate the legislative intent as. bearing upon the question under consideration, for it requires the appraisal to be made immediately after the death of the decedent at the fair market value of the property at the time of the death and makes the tax immediately due and payable, and to the same effect are the provisions of § 4, for therein the taxes imposed are made due and payable at the death. If they are not paid within eighteen months interest thereon at the rate of ten per cent may be charged and collected, but if they are paid promptly or before the expiration of six months a discount of five per cent is allowed. It appears to us that these provisions are inconsistent with the claim that the tax is not to be assessed until the final accounting of the executors, and then is to be assessed upon the interest that has been collected upon the funds in their hands. This would not only deprive the legatees of the right to avail themselves of the discount of five per cent, but would subject them to the liability of being taxed upon interests thereafter accruing.

It appears to us that the better and more reasonable construction of the statute is that the property of which the person died seized or possessed is subject to the tax; that the increase or interest thereafter obtained by the executors is property of which the testator was not seized or possessed at the time of his death; that the property should be appraised and the tax assessed as soon after death as practicable; and that the tax should then become immediately due and payable: that the provision for charging interest thereon in case it is not paid is in lieu of any increase or interest that may be derived from the estate by the executors.

It appears that Matthew Yassar, Jr., died in the year 1881, possessed of a large real and personal estate; that he left a will in which he disposed of a portion of his estate and then provided that the residue should be devoted to the founding of a hospital in the city of Poughkeepsie. Thereupon the legislature by chapter 298 of the Laws of 1882, passed an act to incorporate the Yassar Brothers Hospital in the city of Poughkeepsie.

It provides, “Section 3. So much of the real estate of this corporation as is occupied for the purposes of a hospital, and all its personal property, shall be exempt from taxation.”

“ Section 5. The said corporation shall be and is hereby empowered :

1. To demand and receive from the trustees under the said will of Matthew Yassar, Jr., deceased, as proved on the twenty-fourth day of August, eighteen hundred and eighty-one, and recorded in the office of the surrogate of the county of Dutchess on the twenty-fourth day of August, eighteen hundred and eighty-one, the real estate heretofore purchased by them, and whereon they design erecting said hospital.” * * *
“ 2. To purchase and hold any other real estate in the said city of Poughkeepsie, and to erect and maintain thereon, or on lands already acquired, suitable buildings, for the use of the said hospital."
“ 4. The said corporation may take and hold any additional donations, grants, devises or bequests which may be made in further support of, or in addition to said hospital.”

It does not appear that it has other real estate than that on which the hospital building is located. The bequest to the Vassar Brothers’ Hospital under consideration is entirely of personal property. Under the provisions of the collateral inheritance act the societies, corporations and institutions exempted by law from taxation are excepted from the provisions of the act. It consequently appears to us that the Vassar Brothers’ Hospital, under the express provision of its charter, is exempted from taxation on all of its personal property, and, therefore, is one of the corporations excepted from the provisions of the collateral inheritance act.

The court below appears to have been of -the opinion that the provision of the act excepting “ the societies, corporations and institutions now exempted by law from taxation ” referred only to those bodies which enjoy complete immunity from taxation as to all property which they now have or of which they may at any time become possessed, even in excess of the statutory limit. Such a construction of the statute would practically nullify the provisions and render exemption from taxation contained therein of no avail. It would subject every or nearly every charitable institution in the land to the payment of the tax. It has always been the policy of the government to limit the power of charitable corporations to take and hold property. Under the general act such corporations were permitted to take and hold real estate for the purposes of their incorporation, and for no other purpose, to an amount not exceeding the sum of $50,000 in value and personal estate for like purpose and amount, but the clear, annual income of such real and personal property shall not exceed the sum of $10,000. Laws of 1848, chap. 319.

Various amendments have from time to time increased these amounts. The last, in 1890, which permits them to take not exceeding $3,000,000, or the yearly income derived from which shall not exceed the sum of $250,000. Laws of 1872, chap. 649; Laws of 1889, chap. 191; .Laws of 1890, chap. 553.

This policy has been generally adhered to in the special acts incorporating societies of this character, and in nearly every instance limitations and restrictions are incorporated in the provisions of the act. The act of 1890 to which we have referred embraces all such charitable corporations whether organized under general laws or special acts. They may now lawfully take $3,-000,000, a sum largely in excess of that which was before permitted and which under former acts would not have been exempt. These corporations if exempt either under general laws or special acts, are generally exempt to the extent that they are empowered to take and hold; and if they are liable to taxation it must be for other and additional property of which they may have become possessed. Such is the case with the Vassal’ Brothers’ Hospital. As we have seen, all of its personal property is exempt; so-also is its real estate which is occupied for the purpose of a hospital. It is not empowered to take or acquire real estate for any other purpose. It may take the land already purchased by the trustees of Matthew Vassar, Jr., on which they were to erect the hospital. It may purchase other real estate in the city of Poughkeepsie for the purpose of erecting thereon suitable buildings for the use of the hospital. It. may take by donation or grant, other real estate “ in further support of or in addition to said hospital.” The concluding clause evidently was intended to limit the purpose for which grants of real estate may be received. That is, to make additions to the hospital. The proper care of the sick often requires buildings-separate and apart, so that those inflicted with infectious and contagious diseases may be isolated. A properly equipped hospital should have such buildings and if they are erected on land even remote and not connected with that on which the main building is constructed they are none the less “ for the purposes of a hospital.”

Again, under the act of 1890, the personal property of such corporations is exempt. Their real estate is not unless it is exempt under existing laws. It provides that the provisions of the collateral inheritance act should not apply thereto, nor to any gifts to any such corporations, by grant, bequest or otherwise.

It is true that the assessment in question was made before the passage of this act, and there is nothing in its provision indicating a legislative intent that it should be retroactive in its effect; but it shows the trend of legislation and is to some extent a legislative construction of the act under consideration. We have shown that the hospital is exempt to the extent of its capacity to take and hold property. We cannot assume that it will exceed its corporate powers or do that which would be ultra vires.

The Revised Statutes provide that' “the following property shall be exempt from taxation, * * * every poor house, alms house, house of industry and every house belonging to a company incorporated for the reformation of offenders or to improve the moral condition of seamen, and the real and personal property used for such purposes belonging to or connected with the same.”1 1 R. S., 388, § 4.

It will be observed that only the personal property which is-used for the purpose belonging to or connected with the institutions named are exempt, so that as to other personal property it would still be liable to taxation, and therefore complete immunity from taxation is not provided for. And yet it will hardly be claimed that it was intended that the state should impose and collect a collateral inheritance tax upon a bequest of bedding to an alms house for the use of the inmates. See In the Matter of the Legacy under Frederick Herr's Will, 27 N. Y. State Rep., 591; reversing the order of the surrogate, 22 N. Y. State Rep., 905; In the Matter of the Estate of Curtis, Deceased, 25 N. Y. State Rep., 1028; In the Matter of the Estate of Forrester, Deceased, 35 N. Y. State Rep., 776; Association for the Benefit of Colored Orphans v. The Mayor, etc., 104 N. Y., 581; 6 N. Y. State Rep., 477.

The taxes imposed by the collateral inheritance act are special and not general. In Matter of McPherson, 104 N. Y., 306-317; 5 N. Y. State Rep., 680.

And the rule is that special tax laws are to be construed strictly against the government and favorably to the tax-payer; that a citizen cannot be subjected to special burdens without clear warrant of law. Dos Passos on Collateral Inheritance Taxes, 41; Matter of Enston, 113 N. Y., 174, 177; 22 N. Y. State Rep., 569.

Applying this rule to the act in question, it appears to us that there can be little if any doubt as to the way it should be construed upon the question under consideration.

The case of Catlin v. The Trustees of Trinity College, 113 N. Y., 133 ; 22 N. Y. State Rep., 189, we understand to be in harmony with the views herein expressed. In that case a legacy of §50,000 had been left to Trinity College, a Connecticut corporation. The chief question discussed was as to whether the personal estate of the college was exempt under the Revised Statutes exempting property from taxation. 1 R. S., 6th ed., 932, § 4.

Subd. 3 exempts “ every building erected for the use of a college, incorporated academy or other seminary of learning; every building for public worship; every school house, court house and jail, and the several lots whereon such buildings are situated, and the furniture belonging to each of them.”

It was clear from the provisions of this section that the personal property other than the furniture was not exempt. It was claimed, however, that the personal property was made exempt under subd. 7, which provides for the exemption of the “ personal estate of every incorporated company not made liable to taxation on its capital stock in the fourth title of this chapter.” It was, however, held that incorporated companies therein referred to were intended to designate business and stock corporations which, under the provisions of the chapter, were exempted from taxation on their capital and that it did not embrace incorporated colleges or churches.

The Yassar Brothers’ Home for Aged Men, in the city of Poughkeepsie,, was incorporated under the general act for charitable purposes, and its certificate of incorporation provides that its particular business and object is “ the support of respectable, aged, indigent Protestant men who are unable to support themselves and who have been actual residents of the city of Poughkeepsie for five years next preceding the application for said support.”

The by-laws of the board of trustees, among other things, provide “ that the proposed beneficiary shall be at least of the age of sixty-five years, unless in a special case by a three-fourths vote of the trustees the age shall be fixed at sixty years, and he or some one in his behalf in case the application is favorably acted upon shall pay to the treasurer to belong absolutely to the home the sum of §250 should the accepted applicant be between the ages of sixty-five and seventy years; the sum of $200 should he be between the ages of seventy and seventy-five; the sum of $150 should he be between the ages of seventy-five and eighty years ; the sum of $100 should he be of the age of eighty years or upwards, and if an applicant has any property he shall be required to transfer the same by suitable methods to the home.”

Corporations are given the power to make by-laws not inconsistent with any existing law for the management of its property, the regulation of its affairs, etc. 2 R. S., 7th ed., 1531, § 6.

The home is not exempt under the provisions of any special act. If exempt, it is because of its being an alms-house within the provisions of the Revised Statutes to which we have already referred. It would be an alms-house were it not for the fact that under its by-laws an entrance fee is charged to those seeking its benefits. The Association for the Benefit of Colored Orphans v. The Mayor, etc., 104 N. Y., 581; 6 N. Y. State Rep., 477.

It is claimed that the by-laws referred to are unauthorized and inconsistent with the provisions of the charter; that the ■ business and object was the support of respectable, aged, indigent Protestant men who were unable to support themselves. However this may be, we are of the opinion that the charges authorized by the by-laws do not operate to deprive the home of the exemption to which it otherwise would be entitled. The home was founded, incorporated, endowed and so far has been substantially maintained by charity. Its object, as we have seen, is the support of the aged and indigent who are unable to support themselves. It possesses no element of private or corporate gain, and whatever income it may derive is devoted to the charity for which it was incorporated.

In the case of Philadelphia v. The Women’s Christian Association, 125 Pa. St., 572, the defendant maintained a house for the lodging of women who were dependent upon their own exertions for support and who did not receive more than six dollars per week as wages. The association charged them from three to three and one-half dollars per week for their board and lodging. It was held to be exempt from taxation; that it was essentially a public charity, free from the element of gain, and that its character as a charitable institution was not destoved by reason of the revenue it received from the recipients of its bounty.

In County of Northampton v. La Fayette College, 128 Pa. St., 132, a tuition fee of forty-five dollars per annum was charged in the classical and general scientific course and seventy-five dollars in the technical course to students who were able to pay the same. The college buildings were erected and the college substantially maintained by voluntary gifts and donations. It was held to be a purely charitable institution and exempt from taxation notwithstanding that a portion of its annual expenses were paidbytui-' tion fees received from its students.

In Gooch v. Association for Relief of Aged Indigent Females, 109 Mass., 558, it was held that a corporation established for the support of poor and old women, which devotes all of its funds to the support of such women in its home and is no source of profits to its members, is a charitable corporation, although it requires a payment of money as a requisite for admitting the women into its home and a transfer to it of all of the property that the beneficiary may have.

And in McDonald v. Massachusetts General Hospital, 120 Mass., 432, it was held that a corporation the object of which is to provide a general hospital for sick and insane persons, having no capital stock nor provision for making dividends or profits, deriving its funds mainly from public and private charity and holding them in trust for the object of sustaining the hospital, conducting, its affairs for the purpose of administering to the comfort of the sick without the expectation or right on the part of those immediately interested in the • corporation to receive compensation for their own benefit, is a public charitable institution, and the fact that its rules require of its patients payment for their board according to their circumstances and the accommodation they receive, does not render it the less a public charity.

The case of Temple Grove Seminary v. Cramer, Receiver of Taxes, etc., 98 N. Y., 121, originated under the subdivision of the statute already referred to in reference to the exemption of colleges, incorporated academies or seminaries of learning. During tire summer months the school buildings were leased as a summer ■ hotel or boarding house, and yet it was held that the seminary did not waive or forfeit its right to exemption.

We are aware that a different conclusion has been reached by the surrogate in New York, and by the general term of the first department. Matter of Keech, 26 N. Y. State Rep., 433 ; affirmed 32 N. Y. State Rep., 227; In re Lenox Estate, 9 N. Y. Supp., 895; 31 N. Y. State Rep., 959; In re Vanderbilt's Estate, 10 N. Y. Supp., 239-242.

But this result would hardly be in keeping with the general policy of the state government, which has been to foster and encourage charitable institutions of the character of the one under consideration; and where it operates to relieve the public from the support of the poor and indigent, thus relieving the public of the burden that it otherwise would have to assume, to regard it as an almshouse and as such exempt from taxation.

Vassar college was incorporated by chapter 2 of the Laws of 1861, under the name .of Vassar Female College. Its object as stated in the act was to promote the education of young women in literature, science and the arts. It was given power “to purchase, take and hold by gift, grant or devise * * * any real and personal property the yearly income or revenue of which shall not exceed the value of $40,000.”

By chapter 39 of the Laws of 1862, it was provided that “ the real and personal property of Vassar Female College to the extent it is by its act of incorporation authorized to hold the same is hereby exempted from taxation.’’ We have already discussed the question of complete immunity from taxation, and from the conclusion reached it follows that the college would be exempt unless the yearly income from its real or personal property shall exceed in value the sum of $40,000. We gather from the evidence that but little if any income is derived from the real estate of the college. It is possessed of a farm which is largely used for walks and pleasure ground by the students. It produces some income but the expense of maintaining it is said to about equal the income. The personal estate invested produces an income annually of about $25,000. We are not informed as to the amount that would' be required to bring the income up to the statutory limit. The surrogate has not favored us with any findings upon the question, and we are left .without evidence upon which we can determine the fact. The courts below appear to have been of the opinion that the determination of this fact was not essential or material, and to this extent we are inclined to adopt their views. Under the act of incorporation the college has capacity to take and hold property only to the extent of the limit prescribed by the statute; beyond that, its capacity or power ceases. Its property is exempt from taxation to the extent of its power to take and hold. It follows that if it has power to take the whole or any part of the bequest in question the same would be exempt. The question as to whether it can take the whole of the bequest is not now before us. It was said upon the argument to be pending in the court of appeals, but whether it is or not we think we may safely trust the heirs-at-law to look after their interest and the attorney general to see that the college does not exceed its corporate powers.

The orders should be reversed, and the proceedings dismissed, with costs.

All concur.


author: Follett, Ch. J.

text:
    James C. McDonald, App’lt, v. The State, Resp’t. George Eastman, App’lt, v. The State, Resp’t.

      (Court of Appeals, Second Division,

      Filed April 21, 1891.)

    1. State—Evidence—Negligence.
    On the trial of a case by the board of claims, grounded on the giving way of a canal bridge over which claimants were attempting to roll two mill stones, weighing 11,250 pounds, united by a short axletree. a witness for the state who had, previous to the accident, reduced the size of the stringers to the bridge, was asked: “Now, with what you did to these stringers of this bridge, did you leave it, in your judgment, safe for the ordinary uses of a highway bridge;" and was allowed to answer over plaintiff’s objection that it was incompetent and immaterial. Held, error; as it was in effect testifying that the employes of the state were not negligent.

      2. Same.
    A civil engineer and bridge builder was allowed to testify that stones of the size and weight mentioned united and moving as described were an excessive load for the bridge as originally constructed. Held, error, as the issue was whether the bridge, as reconstructed, was sufficient to bear the traffic which might reasonably be expected to pass over it, and the witness by his answer put himself in the place of the board of claims whose duty it was to determine from all of the evidence whether or not the elaimants by their negligence contributed to the accident.

      3. Board of claims—Notice of appeal from.
    The statement in appellant’s notice of appeal that “ The board of claims erred in receiving evidence against the objection and exception of the claimant,” sufficiently pointed out the error on which they intended to rely, as the record did not show that any other evidence than this pointed out was admitted against their objection, and the counsel for the state was clearly apprised by this specification that these rulings would be challenged on appeal.
    Appeal from final orders of the board of claims rejecting claims of the appellants.
    In April, 1881, the state built an iron bridge over the Champlain canal in the village of Fort Ann; the planks of each panel were supported by eight pine stringers, three inches thick, and eleven and one-half inches wide, resting on needle beams. The ends or bearings of the stringers were but ten inches in width, and in September of that year they were, in some of the panels, reduced to five inches in width so as to diminish the grade of the bridge. It was testified in behalf of the state that when this was done the number of stringers in the panels, the grades of which were reduced, were doubled. The bridge remained in this condition until April 15, 1886, when the claimants attempted to roll over it two mill stones weighing 11,250 pounds, united by an axletree so short that they were but twenty-one inches apart. When part way over the bridge, one of its panels gave way and the claimants fell to the bottom of the canal, a distance of about twenty feet, and were severely injured.
    They filed claims for their damages, alleging that the bridge was negligently constructed and maintained, and that they did not by their own negligence cause, in whole or in part, the accident. The board of claims, in deciding the case, refused to find that the employes of the state were negligent in the construction or care of the bridge, and found affirmatively that the claimants negligently caused the accident, and dismissed their claims. From this decision the claimants appeal, specifying in their notices, among other grounds: “ 1. The board of claims erred in receiving evidence against the objections and exceptions of the claimants.”

      L. H. Northrup, for app’lts; Charles F. Tabor, attorney-general, for resp’t.
   Follett, Ch. J.

Oliver Thomas, who reduced the bearings of the stringers, was called as a witness in behalf of the state, and was asked: “ Q. Mow, with what you did to these stringers of this bridge, did you leave it in your judgment safe for the ordinary uses of a highway bridge ? Objected to on the ground that the witness is not shown competent to give an opinion with reference to the bridge, and it is immaterial whether in' his judgment he left it safe or not.” This objection was overruled, the claimants excepted, and the witness answered that he did. In effect, the witness was permitted to testify that the employes of the state were not negligent in making the change; that the bridge as changed was safe “ for the ordinary uses of a highway bridge,” and he was thereby permitted to determine whether tbe state or its employes were negligent, whicli was an issue to be decided by the board. Again, it does not follow that a bridge which was “ safe for the ordinary uses of a highway bridge,” was sufficient to sustain the traffic in that particular place.

A civil engineer and bridge builder was aslced by the counsel for the state whether, in his judgment, stones of the size and weight mentioned, united and moving as described, were an excessive load for the bridge as originally constructed, to which the claimants objected as immaterial, and as calling for an opinion regardless of facts, but their objection was overruled, and an exception taken. The witness answered: “ It was an excessive load; was too large a load for the bridge to carry as originally constructed.” The evidence does not show how the strength of the panels was affected by the change. The opinion of the witness as to whether the weight was excessive for the bridge before it was changed was not competent; the issue being whether the bridge, as reconstructed, was sufficient to bear the traffic which might reasonably be expected to pass over it.

Again, the witness by his answer was allowed to testify not only that the weight was excessive, but in effect that the stones were negligently united and moved over the bridge by the claimants, thus putting himself in the place of the board of claims, whose duty it was to determine from all of the evidence whether or not the claimants by their own negligence contributed to the accident. It was competent for experts in the art of bridge building, and having knowledge of the strength of timber used in such work, to testify to the supporting power of the bridge, or any one of its panels, or any one of its stringers, and had they not gone beyond this no error would have been committed. Hughes v. The County of Muscatine, 44 Iowa, 672.

It is urged in behalf of the state that the first ground of error specified by the claimants in their notices of appeal is not sufficiently definite to enable them to raise these questions in this court. The statute provides that: “Every appeal shall be in writing stating briefly the grounds on which it is taken and subscribed by the party or his attorney.” Sec. 10, chap. 205, Law's 1883, as amended by § 10, chap. 507, Laws 1887. Also that: “ On the hearing before the court of appeals only such questions shall be considered by the court as are raised by the notice of appeal. And on all questions not raised by the notice of appeal it shall be presumed that sufficient evidence was given to sustain the award.” Sec. 11, chap. 205, Laws 1883. We think the specification that “ the board of claims erred in receiving evidence against the objection and exception of the claimant ” sufficiently pointed out the error on which they intended to rely. The record does not show that any other evidence than this pointed out was admitted against their objection, and the counsel for the state was clearly apprised by this specification that these rulings would be challenged on appeal.

The order in each case should be reversed and a new hearing directed before the board of claims, with costs to abide the event.

All concur, except Yann and Brown, JJ., absent.


author: Bischoff, J.

text:
    Charles H. Dyett, Assignee, Resp’t, v. Samuel P. Hyman et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Attachment—Liability op indemnitobs
    Indemnitors upon a bond given to the attaching officer, to hold him harmless against the consequences of a wrongful seizure and removal, are liable as trespassers for the full value of the property taken, jointly and severally, and cannot claim that because of a subsequent levy on the same property by others ivho shared in the proceeds, each should be held liable only to the extent of his profit in the wrong committed.
    2. Evidence—Former adjudication.
    In an action brought by an assignee for creditors, a judgment in a former action brought by the defendants to set aside the assignment, sustaining it, is admissible in favor of the plaintiff.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court in an action to recover damages for trespass de bonis asportatis.

      Dyett & Einstein, for resp’t; A. C. Blumenstiel, for app’lts.
   Bischoff, J.

That the indemnitors upon a bond given to the attaching officer to hold him harmless against the consequences of a wrongful seizure and removal of the property attached, are liable as trespassers for the full value of the property taken to the person aggrieved, though there be no other proof of participation in the taking or interference with the property, is a proposition so well established by authority as to admit of no dispute. Herring v. Hoppock, 15 N. Y., 409; Davis v. Newkirk, 5 Denio, 92; Root v. Chandler, 10 Wend., 110 ; Wall v. Osborn, 12 id., 39; Lovejoy v. Murray, 3 Wall., U. S., 1; Pool v. Ellison, 56 Hun, 108; 30 N. Y. State Rep., 135; Pozzoni v. Henderson, 2 E. D. Smith, 146; Posthoff v. Bawndahl, 43 Hun, 570; 6 N. Y. State Rep., 613; Posthoff v. Schreiber, 47 Hun, 593; 14 N. Y. State Rep., 897; Ball v. Loomis, 29 N. Y., 412.

The persons participating in the commission of the trespass are liable jointly and severally, and the omission to pursue one or more of them can be of no avail to those against whom the liability is sought to be enforced. Rose v. Oliver, 2 Johns., 365 ; Wehle v. Butler, 61 N. Y., 245; Lawson’s Rights, Remedies and Practice, vol. 3, § 1044, p. 1773, and cases cited.

It appeared upon the trial that the property for the wrongful seizure of which plaintiff complained was taken under three several attachments issued against the propertir of plaintiff’s assignor, two of which were issued at the instance of the defendant Hyman and the other at the instance of Louis Stroook and others, and that the defendants Hyman and Morris were two of the indemnitors upon the several bonds given to the sheriff upon such seizure. It also was shown that subsequent to that seizure the same property ivas levied upon at the instance of other alleged creditors who shared in the proceeds of its sale, and the defendants thereupon contended that the liability of each should be limited to the extent of his participation in the distribution of the avails of the property. The trial justice correctly ruled against the contention. It does not lie in the mouth of a number of joint tort feasors to say that each should be held liable only to the extent of his profit in the wrong committed, Williams v. Sheldon, 10 Wend., 654, and the subsequent levy under legal process upon the property seized can furnish no defense to the prior wrongful seizure. Hanmer v. Wilsey, 17 Wend., 91; Carpenter v. Dresser, 39 Am., 337. Posthoff v. Schreiber, 47 Hun, 593; 14 N. Y. State Rep., 897, cited by appellants, is not to the contrary. In that case the court ruled that the damage to the party aggrieved was complete when the original seizure was made, and that, therefore, the defendants who were subsequent attaching creditors, and not joint trespassers with the original takers, could only be held answerable to the extent of the remaining value of the property levied upon under their process.

The provisions of the Code of Civil Procedure (§§ 1419 and 1429) do not impair the right of a person wrongfully deprived of his property under legal process issued against the property of another to prosecute the indemnitors and all others concerned in the seizure as joint trespassers. The provisions referred to undertake no more than to allow the exoneration of the officer acting under legal process by a substitution of the indemnitors as defendants in his place if the person aggrieved has elected to sue the officer, and their effect should not be extended by implication. Hein v. Davidson, 96 N. Y., 175 ; Hayes v. Davidson, 98 id., 19.

There is nothing in the case on appeal before us to indicate that the record of the action of Hyman & Morris v. Dyett et al. was admitted in evidence bn plaintiff’s offer as conclusive upon the defendants on the question of the bonajides of the assignment. It was not incumbent upon plaintiff to repel the charge of fraudulent intent in the making of the assignment until it had been assailed by the defendants ; and the latter were not only not precluded from introducing all evidence offered by them tending to impeach the assignment, but did actually secure the admission of the testimony of several witnesses to that end.

The action to set the assignment aside was brought by Hyman and Morris individually, and they were prosecuted in this action in the same capacity. The question litigated in the equity action was whether or not the assignment was made with intent to hinder, delay, cheat and defraud the creditors of the assignor, and the determination therein adverse to the plaintiffs was certainly admissible against them in this action. Woods Practice, Evidence, pp. 751, 752; Doty v. Brown, 4 N. Y., 71; Gardner v. Buckbee, 3 Cowen, 120; White v. Coatsworth, 6 N. Y., 137; Demarest v. Darg, 32 id., 281; Cromwell v. Sac, 94 U. S., 4 Otto, 351-371.

This appeal being from the judgment only we can therefore review only the exceptions taken upon the trial; and the omission from the case of the testimony introduced by the defendants to impeach the assignment prevents us from saying that it was sufficient to warrant the submission of the question of the assign- or’s fraudulent intent to the jury. Hence we cannot say that the learned trial justice erred in his direction of a verdict for the plaintiff for the agreed value of the property admitted to have been taken.

We can discover no errors in the rulings of the trial justice, and the judgment should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


text:
    The Ætna National Bank et al., Resp’ts, v. Theodore Shotwell, Assignee of Joseph Frazier, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Assignment fob cbeditobs—Assignee mat be obdebed to take up befebee’s bepobt.
    The court at special term has power to make an order directing an assignee for creditors to take up and file the referee’s report upon his accounting.
    2. Same.
    If the assignee makes payment of the claims of creditors without first having ascertained the precise amount of the estate to which creditors would be entitled, such payments are wholly voluntary and at his risk, and lack of funds will not discharge him from the performance of the duty to pay the necessary expenses of his accounting.
    Appeal from an order made at special term directing the assignee to take up and file the referee’s report upon his accounting, and to pay the taxable fees of the referee.

      Clarke & Lynde, for resp’ts; J. E. Ludden, for app’lt.
   Bischoff, J.

There is no sufficient reason for doubting the power of the judge at special term to make the order from which this appeal has been taken. It is true that the assignee is not an officer of the court and subject as such to its directions, and the assigned estate is not in custodia legis, but the correlative rights and obligations of the assignee and those interested in the assigned estate are the same as those of other trustees and cestuis que trust, Ludingtons petition, 5 Abb. N. C., 307, and the general equity powers conferred by § 25 of the general assignment act of 1877 upon the courts having cognizance of the matter of the administration of assigned estates are amply sufficient to compel the assignee to perform the duties requisite for the speedy determination of the trust committed to him.

Pursuant to the deed of assignment, the assignee is directed to incur such expense as may be reasonable and necessary in the performance of the trust, and such expenses are directed to be preferred in payment over the claims of creditors of the assignor. To secure the expeditious distribution of the assigned estate among those ultimately shown to be entitled thereto, it is therefore the duty of the assignee to incur and pay the reasonable expenses necessary in that behalf, in the first instance, out of the fund in his possession for that purpose ; and if he fails so to do it is proper that the performance of that duty be required of him, provided it appears that the assignee has or ought to have funds properly applicable to the payment of such expenses.

Here, the assignee admits that he has received upwards of $90,000 in funds of the estate, but claims that by reason of the payment of debts of the assignor the balance remaining in his hands is insufficient to pay the referee’s fees, and upon that ground objects to-the order requiring him to .do so. It is a sufficient answer to that objection to say that it was incumbent upon the assignee first to ascertain the expenses necessarily to be incurred in the performance of his duty, which as a matter of course includes the rendering of an account of his proceedings; and, if he made payment of the claims of creditors without first having ascertained the precise amount of the assigned estate to which the creditors would be entitled, such payments were wholly voluntary and at the risk of the assignee, and the lack of sufficient funds in his hands will not discharge him from the performance of the duty imposed by law upon assignees for the benefit of creditors, the assumption of which was wholly voluntary on his part.

The order should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


author: Pryor, J.

text:
    Simon Desson, Resp’t, v. Carl Antony et al., App’lts.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Sale—Breach op warranty—Counterclaim.
    Defendants sold to plaintiff a pony which they warranted to be sound and kind. It not being so plaintiff returned it and defendants agreed to keep giving a pony untd he was satisfied. After several exchanges, one was offered which plaintiff agreed to aceept, but defendants refused to deliver except on payment of an additional sum. In an action to recover the money paid for the first pony, Held, that as the parties never agreed on the price for the last horse and defendants refused to deliver it, the title remained in defendants and they could not counterclaim for its keep.
    Appeal from judgment of the seventh judicial district court, on a trial by the justice. Action for money had and received.

      Frederick H. Ernst, for app’lts; Leon Lewin, for resp’t.
   Pryor, J.

The appellants sold respondent a pony horse with a written warranty that he was “sound and kind.” The purchase price, $100, was paid. On trial the horse proved anything but lrind, and so there was a breach of warranty. The breach of warranty, however, did not entitle the purchaser to damages. Nevertheless the buyer returned the horse and the sellers received him, saying that they “ would keep giving me a pony until I was satisfied.” Thereupon they gave tlie plaintiff another horse, with a warranty that he was “sound and kind.” This horse proving unsound, from a “ deformity in the neck,” was returned, and received by the sellers, who gave.plaintiff a third horse, with a warranty, Hawkins v. Pemberton, 51 N. Y., 198, that he was “all right and perfectly kind, just the pony your boy wants.” But, this third horse had an ugly habit of lying down with the boy in the middle of the street, and of rearing on his hind feet when the girth was tightened. So the third pony was returned, and was accepted by the sellers. Then a fourth pony was produced ; but having distemper, the sellers said they would cure him, and the buyer answered that he would “ take him. in exchange for the other.” Accordingly the buyer sent for the pony, but the sellers demanded “ $110 to boot,” which the buyer refused to pay, and so the negotiation terminated. Hence this action for the $100 paid for the first pony.

Plaintiff’s demand is met by a counterclaim of eighty-one dollars, expense of the keep of the fourth pony. Hence, plaintiff is out of pocket $100; has no horse to show for it; and is, besides, required to pay eighty-one dollars for the keep of a horse which ■defendants refused to deliver to him except on payment of $110 •“ to boot.”

Upon the evidence the manifest agreement between the parties was that, for the $100 paid for the first pony, the defendants would eventually furnish plaintiff a pony to his satisfaction. Two ponies were successively delivered to the plaintiff in exchange for the first; but they being unkind or unsound, were taken back by the defendants; and when, finally, plaintiff found a pony to his purpose, he was told that he could not have him except on payment of $110 additional. This was not the bargain between the parties, but rather that for the $100 received defendants would continue to exchange until plaintiff was suited. Defendants, however, declined a further exchange except on a further payment of more than double the original paid. This demand plaintiff righteously resisted.

As the parties never agreed upon the price for the fourth pony, and defendants refused to deliver him, the title to him remained in defendants, and they cannot charge plaintiff with the keep of their own property. ‘

The case was well decided by the court below, and the judgment must be affirmed, with costs.

Bischoff, J., concurs.


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    Estella Leoncini, Resp’t, v. Edward S. Post, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Warehousemen—Liability eob goods lost ob stolen.
    In an action against a warehouseman to recover the value of goods which he refuses to return, proof that such goods could have been stolen or lost while being transferred with other goods from one warehouse to another is not sufficient to require proof on the plaintiff’s part that the theft or loss could have been prevented by the exercise of due care.
    2. Same—Estoppel.
    A warehouseman is not permitted to defeat the right of the person from whom he received property to its return by interposing the claim of ownership in a third person.
    3. Same—Damages—Evidence.
    Plaintiff stored with defendant certain sheet music which her husband had left in her custody. In an action to recover their value after refusal to return, Held, that as bailee of the true owner she had a right to recover, and that evidence was admissible to show that the music had a special value to her husband because of annotations and transpositions inscribed thereon by him.
    Appeal from judgment of the eleventh district court in favor of plaintiff in an action to recover the value of a quantity of sheet music belonging to plaintiff’s husband, which had been annotated and transposed by him and left in plaintiff’s custody, and which she had stored with defendant, who was a storage warehouseman and who failed to return the same upon demand.

      Frank G. Wild, for resp’t; Abm. F. Fromme, for app’lt.
   Bischoff, J.

The storage of the property with defendant was sufficiently shown to warrant a finding of that fact in the plaintiff’s favor and it thereupon devolved upon defendant to show either a return or to account for its loss. When it appears that the property has been lost or stolen, it then becomes the duty of the party seeking to recover to prove that the loss or theft could have been prevented by the warehouseman’s exercise of due care, but as is stated in Claflin v. Meyer, 75 N. Y., 263 ; “ it is not, of course, intended to hold that a warehouseman, refusing to deliver goods, can impose any necessity of proof upon the owner by merely alleging as an excuse that they have been stolen or burned. These facts must appear with reasonable certainty.”

No testimony or other evidence was offered by the defendant on the trial tending to prove an actual loss or theft of the property, but it was attempted to show that it could have been stolen or lost while with other property it was being transferred from one of the defendant’s warehouses to another. It was, of course, possible that the property was thus stolen, or lost, but it by no means follows that it was so stolen or lost and the evidence offered did not, therefore, come within the ruling of the court of appeals above cited requiring proof on the part of the plaintiff that the theft or loss could have been prevented by the defendant by the exercise of. due care.

We have examined the numerous exceptions taken by defendant to the rulings of the trial justice on the admission and exclusion of evidence, but fail to find any thereof of sufficient merit to warrant a reversal of the judgment. The particular exception urged on the argument of this appeal by defendant’s counsel was that taken to the exclusion of the following question addressed to Snape, called as a witness for the defense: “Who superintended the removal from the Thirty-third street to the Broadway warehouse? ” but, without passing upon the materiality thereof, it is sufficient to say that the error of its exclusion, if any, was fully cured by the fact that the same witness with others called forth e defense were subsequently permitted to be examined at length concerning the matter included in the question propounded.

Appellant’s claim that this action was not maintainable by the plaintiff, it appearing that she was not the owner of the property for which she sought to recover, is not countenanced by what has repeatedly been declared to be well settled law. Having received the property from the plaintiff, defendant is not permitted to defeat her right to its return by interposing the claim of ownership in a third person. Frost v. Mott, 34 N. Y., 253 ; Mullins v. Chickering, 110 id., 514; 18 N. Y. State Rep., 606; Transportation Co. v. Barber, 56 N. Y., 547; Wheeler v. Lawson, 103 id., 40; 2 N. Y. State Rep., 791.

So also, being the bailee of her husband, the true owner, with respect to the property she was entitled to recover its full value as against the defendant, who had no title or right of possession thereto, Fowler v. Haynes, 91 N. Y., 352; Addison on Torts, Dudley & Baylis’ ed., vol. 1, p. 461, and the recovery by the bailee bars a further action by the bailor. Lawson’s Rights, Remedies and Practice, vol. 4, p. 2935, § 711, and cases cited

Neither was it error for the trial justice to allow plaintiff to introduce evidence tending to show that the sheet music had a special value to her husband because of annotations and transpositions inscribed thereon by him. When the owner seeks to recover damages for the conversion of personal property having no market value the measure of damage is its cost, the cost of replacing it and the value to him for a particular use, Heald v. MacGawan, 15 Daly, 233; 25 N. Y. State Rep., 579; Spicer v. Waters, 65 Barb., 227; Houston & T. C. R. R. Co. v. Burke, 40 Am. Rep., 808; Scattergood v. Wood, 14 Hun, 269, aff’d 79 N. Y., 263; Frankinstein v. Thomas, 4 Daly, 256, and if recovery by the bailee of the owner bars a further action by the bailor, there appears to be no sound reason for-limiting the amount of the recovery by the bailee to less than the bailor could have recovered, since eventually the former would have to account to the latter for the recovery had.

The judgment appealed from should be affirmed, with coste.

Pryor, J., concurs.


text:
    Philip Thorman, Resp’t, v. Julius Polya, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Services—Evidence—Novation. “
    Defendant having been engaged to do certain work for one W., sublet, it to plaintiff, who presented bills therefor to W. and took his note. In this action to recover for said work the court excluded all evidence tending to show defendant’s approval and assent to the substitution of W. as. debtor in his place, and that- such arrangement was intended to discharge defendant from further liability. Held, error; that if such arrangement had the assent of all the parties concerned it constituted an accord and satisfaction by novation and would be a good defense to the action.
    Appeal from a judgment of the eleventh district court in favor of plaintiff in an action to recover for work, labor and services and materials furnished.

      Herman Frank, for resp’t; Wager & Acker, for app’lt.
   Bischoff, J.

Polya was engaged in the business of repairing carriages and had been requested to do repairs for Wyman. He sublet the work to Thorman, and the latter, having completed it, brought this action- against Polya to recover the amount alleged to be due him therefor. On the trial plaintiff claimed that the services rendered were performed at the request of the defendant and upon his promise to pay therefor; but on cross-examination plaintiff admitted that he had rendered bills to Wyman charging the work to defendant, and' that upon Wyman’s promissory note for the amount he receipted the bills and so delivered them to him. The bills were introduced in evidence and in handwriting bore an endorsement to the effect that the same were paid by Wyman’s note. Whether or not the defendant had approved of this arrangement between plaintiff and Wyman we cannot determine, because the trial justice persistently ruled out every question by the defense tending to show by cross-examination of the plaintiff and the testimony of the witnesses for the defense that Wyman had been substituted as debtor to plaintiff in the place and stead of the defendant, with the latter’s approval and assent; and that it was thereby intended to discharge the defendant from further liability.

The defense to plaintiff’s cause of action was in effect an accord and satisfaction by novation, that is to say, the substitution of a new debtor in the place of the original debtor, and if such arrangement was assented to by all the parties concerned and it was thereby intended to release and discharge the defendant from the claim in suit, such would be the effect. Lawson’s Eights, Eemedies and Practice, vol. 5, 4236, § 2572. A case closely resembling this was that of Cadens v. Teasdale, 38 Am. Rep., 697. Oadens having a claim against Teasdale accepted the note of one Oliver in payment, and when at maturity of the note Oliver proved to be insolvent Oadens sought to recover against Teasdale upon the original claim.

Teasdale was held to be discharged. See also Wharton on Contracts, vol. 2, “Novation,” §§ 852, etc. ; W hitbeck v. Van Ness, 11 Johns., 409 ; Boyd v. Hitchcock, 20 id., 76; Booth v. Smith, 3 Wend., 66; Frisbie v. Larned, 21 id.,450; Shaw v. Republic Life Ins. Co., 69 N. Y., 286.

The exclusion of the evidence offered by the defense was error and the judgment appealed from must be reversed and a new trial ordered, with costs to abide the event.

Pryor, J., concurs.