text:
    MARY BEERS, Appellant, v. GEORGE WALHIZER and MARY WALHIZER, Respondents.

      Oivil damage act — to authorize a recovery, the loss need not he the direct result of the intoxication.

    In tliis action, brought under the civil damage act to recover damages, the plaintiff alleged in the complaint that James. Beers was her husband, and that on a day named therein they lived and cohabited together, and that prior thereto and at that time he provided for her support and maintenance, that the defendant George Walhizer sold her husband intoxicating liquors, which he drank and which caused him to become intoxicated; that while so intoxicated and in consequence thereof he shot and killed one Banfield; that her said husband was immediately thereafter arrested for the said offense, tried and convicted, and sentenced to confinement in a State prison for the period of his natural life, and is now confined by virtue of such sentence, and “ that by reason of his trial and imprisonment which were the result and consequence of said intoxication, the plaintiff was deprived of the support and maintenance furnished her by her said husband, and was thereby injured in her support and means of support in a large sum, to wit, $5,000, and as the plaintiff verily believes such deprivation will be a lasting and perpetual injury to her, the said plantiffl.”
    On motion of the defendants’ counsel the complaint was dismissed upon the ground that upon the facts stated it did not appear that the loss of means of support sustained by the plaintiff was the direct result of the intoxication.

      Held, that the court erred in so doing.

      That the statute makes no distinction, between cases in which the loss of the means of support is the direct result of the intoxication and those in which it is the remote result thereof; it only requires that it should be established that the loss of the means of support is the result of such intoxication.
    Appeal from a judgment, entered upon an order made at the Cattaraugus Circuit, dismissing the plaintiff’s complaint.
    After the jury were impanneled the defendant moved that the complaint be dismissed for the reason that it did not state a cause of action, and the same was granted. Judgment being entered thereon the plaintiff appeals.

      Albert joi'ing, for the appellant.

      J. Arthur Corbin, for the respondents.
   Barker, J.:

In the act entitled An act to suppress intemperance, pauperism and crime ” (chap. 646 of the Laws of 1813), it is provided that every wife * * * who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person, shall have a right of action * * * against any person or persons who shall, by selling or giving away intoxicating liquors, caused the intoxication in whole or in part.” The plaintiff alleges in her complaint that James Beers is her husband, and that on the day named therein they lived and cohabited together, and that prior thereto, and at that time, he provided for her support ánd maintenance; that the defendant George sold her husband intoxicating liquors, which he drank and which caused him to become intoxicated, and that while so intoxicated, and in consequence thereof, he shot and killed one Banfield.

The complaint further alleges that her said husband was immediately thereafter arrested for the said offense, tried and convicted and sentenced to confinement in a State prison for the period of his natural life, and is now confined by virtue of such sentence, and concludes the statement of her cause of action with an averment, viz.: “ That by reason of his trial and imprisonment, which were the result and consequence of said intoxication, the plaintiff was deprived of the support and maintenance furnished her by her said husband, and was thereby injured in her support, and means of support, in a lai’ge sum, to wit, five thousand dollars; and as the plaintiff verily believes such deprivation will be a lasting and perpetual injury to her, the said plaintiff.”

The only argument presented by the defendant, in support of the ruling at the circuit, is upon the facts as stated in the complaint. It does not appear that the loss of means of support sustained by the plaintiff was the direct result of the intoxication; that the arrest trial and conviction of the plaintiff’s husband by the officers of the law, and which resulted in his imprisonment, was the cause that produced that result, and was wholly independent of the intoxication produced by the liquor sold by the defendant George, and for that reason no cause of action was alleged against them within the provisions of the said act.

The homicide committed by Beers was a crime punishable by imprisonment, and his arrest, conviction and sentence was a result to be anticipated, and, as a matter of course, by the force and operation of the law of the land. The conviction of Beers was not the cause of his imprisonment, but was the result of the crime which he perpetrated in killing Banfield, and that act was the direct and only cause in the eye of the law for his incarceration. Under the act it is necessary that two facts should concur besides the sale or gift of the liquor by the defendant to constitute a cause of action, to wit, intoxication resulting from its use in whole or in part, and the loss of the means of support by the plaintiff in consequence of such intoxication. The statute requires nothing more. The act itself establishes a rule of evidence applicable to and controlling in ail cases arising under its provisions, which in some respects is new, and has produced a radical change of the common law rule. The statute makes no distinction whether the loss of the means of support is the direct or remote result of the intoxication. It only requires that it should be established that the loss of the means of support is the result of such intoxication. The decisions are all in one direction on this subject, and the meaning and effect of the statute in this respect is settled by the freauent interpretation which has been placed upon its provisions.

In Bertholf v. O’Reilley (74 N. Y., 509), Andrews, J., in delivering the opinion of the court, said: The legislature may change the rule of the common law, which looks only to the proximate cause of the mischief, in attaching the legal responsibility, and allow a recovery to be had against those whose acts contributed, although remotely, to produce it. This is what the legislature has done in the act of 1873.” In Volans v. Owen (71 N. Y., 529) the same learned judge remarked that both direct and consequential injuries are plainly included in the remedy given, and the legislature by giving a right of action for injury to means of support, created a cause of action unknown to the common law. In Meade v. Stratton (87 N. Y., 493) it was held that the statute provides for a recovery by action for injuries to jierson or property, or means of support, without any restriction whatever, and that both direct and consequential injuries were included; that it is evident that the legislature intended to go, in such a case, far beyond anything known to the common law, and to provide a remedy for injuries occasioned by one who was instrumental in the producing or who caused such intoxication. In the recent case of Neu v. McKechnie (95 N. Y., 632) a like interpretation was given to the statute, and applied to the case then under consideration.

The plaintiff averred, and we must assume was prepared to prove, that she was dependent upon her husband for the means of her own support. Of this she was. deprived by his act in killing Banfield while intoxicated, as plainly and certainly as if he had received while in a state of intoxication, and in consequence thereof, personal injuries which deprived him of the ability to labor. If a good cause of action was stated against the defendant George, then it is admitted that a perfect cause of action was alleged against the other defendant, who was the owner and lessor of the premises where the liquor was sold.

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

Smith, P. J., and JBRAdley, J., concurred; Haight, J., not sitting.

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


source: Caselaw Access Project

author: BARKER, J.:

license: Public Domain

text:
    THERON E. PARSONS, as Administrator, with the Will Annexed, of the Estate of LAUREN PARSONS, Deceased, Respondent, v. THE CITY OF ROCHESTER, Appellant.

      Action to recover m.ney paid on an invalid assessment — the right of action accrues at the time of payment. ■

    In 1865 the .common .council of the . city of Rochester, to raise money to meet the expense incurre! In,, improving ■ a street therein, imposed an assessment upon the several parcels of land abutting thereon, one of which, owned by the estate of Lauren Parsons, then deceased, was assessed $324.72. In August, 1865, his personal representative paid on and towards the assessment, the ' sum of $108.24. After such payment, one Hassan and others, whose lands were assessed for the'.improvement, commenced an action to set aside the assessment as invalid, and on September 9, 1882, a ■,-judgment was entered setting aside and declaring it void for the reason that all the lands benefited by the improvement were not assessed.
    In May, 1885, this action vims commenced to recover the portion of the assessment paid by the representatives of the estate of. Lauren Parsons.

      Meld, that the plaintiff had lost his right of action by his laches. ■
    That his right of action accrued as soon as the money was paid, and that the statute of limitations prevented him from maintaining this action.

      Brundage v. Village of Portahester (31 1-Iun, 129) followed.
    Appeal by the defendant from a judgment entered in the jVIonroe county court, affirming a judgment of the Municipal Court ,of the city of. Rochester for the sum of $265.30 damages and .$27.32 costs in favor of the plaintiff against the defendant.
    In the year 1865 the Common Council of the city of Rochester instituted proceedings to improve Oak street, and for the purpose •of raising money to meet the necessary expenses they were authorized by the charter to assess the same upon the several parcels of land abutting thereon, ■
    The deceased Lauren Parsons, who died prior to the instituting of those proceedings, was the owner of one of the parcels, and at the time the improvements were made such parcel belonged to his estate and was assessed by the Common Council $324.72. In August 1865., his personal representative paid on and towards the tax $108.24. After such payment, but when is not disclosed by the case, "William E. Hassan and -others whose lands were assessed tor the improvement, commenced an action in the Supreme Court to set aside the assessment as invalid and a'final decree was entered therein on the ninth of September, 1882, setting-aside and declaring the said assessment void, for the reason that all the lands benefited by the improvement were not assessed as required by the provisions of the city charter. Neither the personal representatives of the deceased or his heirs-at-law were parties to that action. At the time of the commencement of this action the premises had been alienated and were owned by one James Crouch. In May, 1885, this action was commenced in the Municipal Court to recover the portion of the assessment paid by the personal representative of the deceased.

      Ivan Powers, for the appellant.

      diaries II. Kingsbury, for the respondent.
   BARKER, J.:

The proceedings of the common council in levying, the tax for the improvement of Oak street were illegal and void, for the reason that a parcel of land owned by the State and benefited by the improvement was not assessed with the other lands benefited. The case of Hassan et al. v. The City of Rochester (67 N. Y., 528), was prosecuted for the purpose of contesting the validity of the assessment and the same was declared void, for the reason stated. It was also held, in the same case, that the proceedings imposing the assessment were regular and valid on their face, and that extrinsic evidence was necessary to establith their invalidity. We shall assume, in disposing of this appeal, that the money paid on and towards the assessment by the personal representative of the deceased was paid by him in the line of his duty, and was a proper and legitimate use of funds in his hands belonging to the estate of Parsons. This point being conceded, then it cannot be denied but that the money paid, ex mquo et bono belongs to the plaintiff in his representative capacity and was held by the defendant for his use. The reversal of the assessment and setting the same aside as void is conclusive evidence that the money was obtained from the estate of the deceased without right. As the assessment was valid on its face the payment of the tax was compulsory in a legal sense and may be recovered back by the parties coerced to make the payment. Both of these propositions were affirmed in Peyser v. The Mayor (70 N. Y., 497.) It is unnecessary to reiterate the reasons upon which these rules are founded as they are fully and comprehensively stated in the opinion of Mr. Justice Folgee, in Sirusburgh v. Mayor, etc. (87 N. Y., 452). These well established principles were applied to the facts in that case.

We are, however, of the opinion that the plaintiff has lost his right of action by laches on his part, and the statute of limitations bars a recovery. As soon as the money was paid a right of action accrued in the plaintiff’s favor entitling him to a judgment declaring the assessment void and recovering back the money which had been paid on and towards the assessment. Nearly twenty years elapsed after the payment and before the commencement of this action. Nothing intervened during this long period to arrest the running of the statute. The personal representative of Parsons was not a party to the Hassan suit. He had no control over the same _ and was not concluded by the judgment. Nor did the pendency of that action prevent the prosecution of one by the plaintiff to recover back the money. Every person whose lands were assessed could have maintained an individual action to vacate the same as invalid, and if he had paid the assessment to recover back the money in the action, (Strusburgh v. Mayor, 87 N. Y., 452) The decree in the Hassan suit vacating, the assessment was conclusive evidence of its invalidity, and was properly received in evidence for that purpose.

The respondent’s position that he had no right of action until the final decree in that action was entered in the year 1S82, is utterly falaceous. That decree did not create a right of action in any one. The void assessment which created an apparent lien on the land assessed was the fact which gave a right of action-to the plaintiff in that action, and also a like one in favor of all and each of the respective land owners.

The decree in the Hassan suit, so far as the other land-owners were concerned, became evidence which they might use to prove that the tax was illegal. The provisions of the statute of limitations are very comprehensive and include actions of this character, and it is unnecessary to determine whether it belongs to the class which must be prosecuted within the six or ten years after the cause of •action arose. In Brundage v. The Village of Portchester (31 Hun, 129), tlie precise point was considered, and it was lield that as soon as an invalid tax was involuntarily paid for the improvement of a public street, a right of action accrued and the statute of limitations barred a recovery after a period of six years.

The judgment of the County Court and of the Municipal Court are both reversed, with costs.

Smith, P. J., Haight and Bjradley, JJ"., concurred.

Judgment of the County Court and that of the Municipal Court reversed.


author: .BARKER, J.:

text:
    ANDREW ARMBRUSTER, Respondent, v. HIRAM E. WILSON, Appellant.

      Bight of distraint— B. S.,pt. 8, ohwp. 8, tü. 11 — effect of a failure in the charter of a city to provide for officers to assess the damages — it suspends, hut does not repeal the law.

    Upon tlie trial of this action of replevin, brought to recover the possession of a cow, it appeared, that the defendant, within the territorial limits of the city of Rochester, distrained the plaintiff’s cow, damage-feasant, and kept the same in his possession for the period of twelve days, refusing to deliver the same after demand, and omitting to institute any proceedings for the purpose of having his damages assessed by fence-viewers, as provided in title 11, chapter 8 of part 3 of the Revised Statutes. He claimed that this statute had been abrogated as to the city of Rochester, as the provisions of the city charter were inconsistent with and repugnant to it, and that the rule of the common ' law prevailed within the limits of the city.

      Held, that although the failure of the legislature to provide any officer to take the place of the fence-viewers, to whom, by the terms of the statute, the distrainor was required to apply to have his damages assessed, had rendered the statute inoperative in the city of Rochester, it could not be implied therefrom that the legislature intended to interfere with the existing law on the subject of distraint and to restore the common law to the territory included within the city limits.
    That the defendant acted at his peril, and if he was unable to comply with the provisions of the statute for the reason that the officers who were to assess the damages did not exist, or could not he found within the time prescribed by the statute, then the seizure was unlawful, and authorized the owner to bring replevin to recover possession of his property.
    Appeal from a judgment of the Monroe County Court, in an action of replevin, to recover the possession of a cow.

      The jury found a verdict for the plaintiff, and assessed the value of the. property at forty-five dollars and the damages for detention at seven dollars. At the close of all the evidence the court held that there was no dispute as to the material facts, and as a matter of law that the plaintiff was entitled to judgment, submitting to the jury the question of - damages.

      George II. Humphrey, for the appellant.

      Sullvoan & Morris, for the respondent.
   .BARKER, J.:

By the bill of exceptions it appears that the defendant, within the territorial limits of the city of Rochester, distrained the plaintiff’s cow, damage-feasant, and kept the same in his possession for the period of twelve days, and refused to deliver her to the plaintiff upon his demand. During ail the time the defendant had possession of the cow he omitted to institute any proceedings for the purpose of having his damages assessed by fence-viewers, as provided in title 11, chapter 8, part 3 of the Revised Statutes, entitled, “of distraining cattle and other chattels doing damage, and of distraining in other cases.”

The defendant contends that this statute has been abrogated as to the, city of Rochester, and, in cases of distress, arising within its territorial limits, the rule of the common law prevails. The city of Rochester was incorporated in the year 1834. (See Session Laws of that year, chap. 199.) At that time the provisions of the statute were in full force and effect and applicable to the territory now embraced within the city limits.

The appellant claims that the provisions of the city charter are inconsistent with and repugnant to the statute on the subject of distress and are impliedly repealed, and the intention of the legislature to abrogate the same as to the city of Rochester is fairly inferred from the omission to create a public officer authorized to discharge the duties of fence-viewers. It must be conceded that unless there is a fence-viewer, then the statute necessarily becomes inoperative. Whenever a distress is made of cattle, the statute requires the person making the same to apply, within twenty-four hours thereafter, to two of the fence-viewers of’ the town to appraise the damage. (Sec. 1.) The assessors,and' commissioners '.of highways, located in any town, are authorized to discharge the duties of fence • viewers in their respective towns.. (1 ,R." S’,, 340.) The territory embraced within the city limits ceased ’to be a part of the several towns from which it was taken, and thé assessors and highway commissioners of those towns cannot act as fence-viewers in a- case of distress arising within the city limits. By the charter, a board of assessors and highway commissioners were created,, each possessing the powers and charged with.the duties.thefeinispécificálly mentioned! (See present charter, Laws of 1880, chap. 14, §§ 8-149.). "We incline to the opinion that these officers are not authorized to act as fence-viewers in cases of distress made under the provisions of the Revised Statutes. The assessors and highway commissioners of the several towns in the State are authorized to. act as fence-viewers only by force of the statute already referred to. No siich;power is, in terms, conferred on the assessors and highway commissioners for the city, and the nature and character of .their duties áre, in most respects, unlike those imposed upon the same class of officers for the towns. There is no clause of the charter whichj in terms; abrogates the provisions of the Revised Statutes jn cases!, of' distress arising in the city, nor is any reference • whatever ¡made .to the subject. ¥e are unable to discover any intention of the .legislature to repeal or interfere with the provisions and operations.of the general laws then in force on the subject of distress. The omission to provide the necessary instrumentality to enforce the law witliim the city limits does not furnish satisfactory evidence that the legislature intended to repeal the statute,'and restore the harsh rules of the common law on the subject of distress. It is the undoubted rule that repeals by implication are not fayoredi "Where there is no repealing clause in a later statute, and' that and .-a former one can stand together and both have'effeet,theywi llrb6th have effect and be regarded as in force. But where a later, statute, not purporting to amend a former one, covers the whole subject and was intended to furnish the only law upon’ the subject, th'e ‘ former statute must be held to be repealed by necessary implication. (Heckmann v. Pinkney, 81 N. Y., 215; People v. The Gold and Stock Tel. Co., 98 id., 67; U. S. v. Tynen, 11 Wall., 88; People v. Jaehne, 4 Central Rep. 165.)

The omission by the legislature to create the office of fence-viewers for the city of Rochester may be regard as unintentional. It occasionally occurred, in the affairs of the State, that its general laws become inoperative for a period of time in certain and limited localities, because there has been a failure on the part of the legislature to provide the necessary officers and tribunals to carry into effect the provisions of existing laws. It is impossible to believe that the legislature, in creating a municipal government for the inhabitants living within the limits of the city of Rochester, intended to interfere with the existing law on the' subject of distress and restore the common law, which permitted the party making the distress to keep the cattle seized in his own possession for an unlimited period of time without giving notice to the owner, and that such detention would be lawful until the latter should make a tender of amends. It has been repeatedly held that if a party making a distress of animals, damage-feasant, failed to comply with the requirements of the statute, he was liable as a trespasser ah initio. The special remedy given by the statute, as a means of securing indemnity for the damages sustained, is an addition to the common-law right of action for damages, and the injured party has an election which he will pursue. The distrainor acts at his peril, and if he is unable to comply with the provisions of the statute for the reason that the officers who are to assess the damages do not exist, or cannot be found within the time prescribed by statute thereafter, then the seizure is unlawful and the owner may bring replevin to recover the possession of his property. This was the defendant’s position, and the seizure and detention of the cow was unlawful.

If assessors for the city were authorized to act as fence-viewers, as the respondent contends, then it is conceded by the appellant that the detention was unlawful and the judgment should be affirmed. But, as has been expressed, we are of the opinion they did not possess such powers.

Smith, P. J., ITaiqht and Bkadley, JJ., concurred.

Judgment affirmed.


author: Childs, J.:

text:
    MAGGIE A. BECKWITH, Respondent, v. LEROY S. OATMAN, Appellant.
    Hegligence— in order to establish the liability of a druggist for the mistake of his clerk, in putting up a prescription, a failure on the part of the clerk to exercise due tare and skill must be proved,
    This action was brought by the plaintiff to recover damages alleged to have been occasioned by the act of a clerk of the defendant, a druggist, who having undertaken, upon the request of the plaintiff’s husband, to compound a certain prescription of medicine made for the plaintiff by a physician, did in fact compound and put up other drugs and medicines materially differing from those which the plaintiff applied for, which did the plaintiff great bodily harm and injury.
    Upon the trial the defendant introduced evidence tending to show that no mistake was made by his clerk, and as to the qualification and length of service in the drug business of the clerk, and asked the court to charge that the plaintiff could not recover if the defendant’s clerk exercised proper care in putting- up the prescription, although there might have been a mistake in doing so.
    The court refused so to charge, and the case was given to the jury solely upon the question whether or not the prescription had been correctly put up, the court instructing them that if the same was not correctly put up the plaintiff, if injured thereby, was entitled' to recover; the question of the wane of skill or negligence of the defendant’s clerk being taken from the jury, and they being in effect instructed that it was immaterial, if a mistake was made, whether it occurred by reason of the want of skill or negligence of the clerk, or otherwise.

      Held, that the court erred in so charging.
    That the defendant undertook, when he assumed to put up the prescription for the plaintiff, that he possessed the ordinary skill of a druggist or apothecary, and that he would exercise due and proper care and skill in putting up the medicine required, the degree of care being proportionate to the gravity of the injury that would naturally result from a want of care, and that a failure to exercise such due and proper care was the only ground upon which the action could be maintained.
    Appeal from a judgment, entered upon the verdict of a jury at the Erie County Circuit.
    The complaint alleges that the defendant is a druggist selling drugs and medicines at Angola, Erie county, N. Y. That the defendant, by his agent and clerk having charge of his drug store, was requested by plaintiff, through her husband, to compound a certain prescription of medicine made for her by one William Danforth, M. D.; that defendant, by his clerk in charge of said drug store, undertook to put up said prescription; that, in fact, other drugs and medicines were compounded, and put up for the plaintiff by defendant materially differing from those which plaintiff applied for.
    In the next count it is alleged that the medicine thus compounded by defendant did not cure plaintiff of the bronchitis of which she was then suffering, and for which medicine was prescribed by said physician, and did not help said_disease of bronchitis, but that said drugs and medicines did plaintiff great bodily harm, to the damage of plaintiff of $5,000.
    In the next and last count it is alleged that if. the drugs and medicines prescribed had been given and sold to the plaintiff, the plaintiff’s health would have been benefited thereby, and that by reason of their being other and different and dangerous, harmful and poisonous drugs and medicines, the plaintiff was injured as aforesaid in the sum of $5,000.
    The answer admits that a prescription made by Dr. Danforth was compounded by defendant’s clerk at the time alleged in the complaint, and denies the remaining allegations of the complaint.
    The issue thus joined was tried at the Erie Circuit in April 1884, the plaintiff had a verdict for $500, and from the judgment, entered on such verdict, this appeal was taken.

      Sprague, Morey <& Sprague, for the appellant.

      George M. Osgooclby, for the respondent.
   Childs, J.:

No motion for a new trial having been made by the defendant, either upon the minutes of the judge or at Special Term, the exceptions taken by the defendant on the trial present the only questions for review on this appeal.

At the close of the plaintiff’s case defendant, moved for a nonsuit upon the following grounds: First. That no cause of action has been made out against the defendant. Second. There can be no recovery for negligence, because no cause of action for negligence is set forth in the complaint. Third. That no cause of action for breach of contract is made out by the evidence. This motion was denied and defendant excepted.

Again, at the close of the evidence the motion for a nonsuit was renewed upon the same grounds; was again • denied and defendant excepted. .These exceptions, with others, to the charge of the judge as made, and to his refusal to charge as requested, which will be stated and considered later, present the main question for review. The right of plaintiff to recover in this action rested upon, and had its foundation in, the rule of liability established in the case of the entire class of professional persons whose work or employment requires special knowledge or skill. Under that rule the defendant undertook, when he assumed to fill the prescription for plaintiff, that he possessed the ordinary skill of a druggist or apothecary, and that he would exercise due and proper care and skill in putting up the medicine required. (Bellinger v. Craigue, 31 Barb., 534; Carpenter v. Blake, 50 N. Y., 696; Cow. Treatise [7th ed.], 290.)

The degree of care required being proportionate to the gravity of the injury that would naturally result from a want of care, and the failure to exercise such due and proper care, is the ground of an action of negligence, and the only ground upon which plaintiff sought to or could recover in this action. (Thomas v. Winchester, 6 N. Y., 397; Brown v. Marshall, 17 Mich., 576 ; Norton v. Sewall, 106 Mass., 143; Losee v. Buchanan, 51 N. Y., 476, 488; Morris v. Platt, 32 Conn., 75 ; 1 Wait’s Actions and Defenses, 683.)

The Respondent acquiesces in the rule of liability as above stated and concedes that his right to récovér must be made to depend on the negligence of the defendant. It was therefore incumbent on the plaintiff to allege, and to prove on the trial, such want of skill on the part of defendant’s clerk, or such negligence on his part, in filling the prescription, as would bring the defendant within the rule, and make him liable for negligence in respect to that transaction. The complaint contains no allegation of negligence, and no testimony was given by the plaintiff tending to prove negligence, other than such as was given to show that the prescription had not been properly filled or put up by defendant’s clerk. This question was raised for the first time by defendant’s motion, for a nonsuit; it is one presenting some difficulty, but as we have concluded to grant a new trial upon another ground it does not become necessary to hold that for the insufficiency of the complaint the motion should have, been granted. At the close.of the case the judge charged tlie jury, among other tilings, as follows: “ This action is brought by the plaintiff against the defendant as proprietor of a drug store in Angola, upon the charge that a prescription, drawn for her by her physician, was wrongly compounded; as a consequence of that the medicine proved to be injurious to her health. So far as tlie plaintiff’s case is concerned, there is no direct evidence given by her as to the fact of this compound not having been according to the doctor’s prescription. Witnesses have been placed upon the stand for the purpose of establishing that to be a fact, and if it is the fact, if the evidence establishes it to your satisfaction, then the defendant in that case would be liable.” And again: “The controversy relates to the allegation whether it was compounded in a manner in which the prescription required it to be done; if it was, then the plaintiff cannot recover. If, as urged in her behalf, that it ivas not so compounded, but that the compound was made different, and to such an extent and to such a degree as to render it dangerous to be taken by her, and she suffered injury in consequence of it, then the action would be maintained and she would be entitled to a verdict against the defendant.” And again, “ If you are satisfied this medicine was not properly compounded, and in consequence of that this injury was sustained, she is entitled to recover.”

To each of these propositions the defendant excepted, and requested the court to charge the jury “That the plaintiff could not recover if the defendant’s clerk exercised proper care in putting up the prescription, although there might have been a mistake in doing it.” This request to charge was refused, and the defendant excepted. It will be observed that the case was given to the jury solely upon the question whether or not the prescription had been correctly put up, and they were told that if the same was not correctly put up the plaintiff, if injured thereby, was entitled to recover. The question of the Avant of skill or negligence of the defendant’s clerk, upon Avhich the plaintiff’s right to recover wholly depended, was taken from the jury by the court, and they Avere, in effect, instructed that it was immaterial, if a mistake was made, whether it occurred by reason of the want of skill or negligence of defendant’s clerk, or otherwise.

Brown v. Marshall (47 Mich., 576) is in point. In that case the trial judge charged as follows: “ It is the duty of druggists to know the properties of the medicines which they sell, and to employ such persons as are capable of discriminating and dealing out according to prescription; and if the defendant’s clerk in this case sold and delivered to plaintiff a poison instead of a harmless drug, and the plaintiff took it supposing it to be harmless, and was thereby caused a suffering and a serious injury, the defendant is liable for the damages so caused in this suit.” Cooley, J., giving the opinion of the court (p. 582), remarks upon this instruction as follows:

In this instruction there is no hint of negligence as a necessary element in the right of action. The duty is correctly stated, and it is assumed that a right of action will arise from a failure to perform it, irrespective of the reasons. If the judge is wrong in this the judgment cannot stand ; for though there are other instructions which seem to be inconsistent with this, we cannot know that the jury did not shape their action by this rather than by any other The question then is whether the delivery at a drug store of a deleterious drug to one who calls for one that is harmless, and a damage resulting therefrom, will not merely tend to make out a right of action, but of themselves give a right of action, even though there may have been no intentional wrong and the jury may believe there is no negligence. That such an error might occur, without fault on the part of the druggist or his clerks, is readily supposable. He might have bought his drugs from a reputable dealer, in whose warehouse they have been tampered with for the purposes of mischief. It is easy to suggest accidents after they come to his own possession, or wrongs by others of which he would be ignorant, and against which a high degree of care would not give perfect protection. But how the misfortune occurs is unimportant if, under all circumstancss, the fact of occurrence is attributable to him as a legal fault. The case, it must be conceded, is one in which a high degree of care may justly be required. People trust not merely their health but their lives to the knowledge, care and prudence of druggists, and in many cases a slight want of care is liable to prove fatal to some one. It is, therefore, proper and reasonable that the care required shall be proportionate to the danger involved. But we do not find that the authorities have gone so far as to dispense with actual negligence as a necessary dement in the liability when a mistake has occurred.” And upon this ground alone the judgment upon the verdict in favor of the plaintiff was, in that case, reversed.

In Carpenter v. Blake (50 N. Y., 696), which was an action against a surgeon for malpractice, it was claimed by tjie plaintiff that the dislocation was never reduced, and by the defendant that the dislocation was properly reduced, and the joint remained in its place until the defendant was discharged from the case. Evidence was given tending to show that defendant was reputed to be and was a skillful surgeon. The court charged, in substance, that it was immaterial to the inquiry whether defendant, at the time he under-' took the reduction of the dislocation, was or was not reputed to be, or was or was not a skillful surgeon. This was held to be error, for which the judgment was reversed.

In the case at bar the defendant gave testimony tending to show that no mistake was made by his clerk, in putting up the prescription, and insisted upon that fact in his defense. Testimony was also given as to the qualification and length of service in the drug business of Penfold, his clerk; also detailing all the acts of Penfold in preparing and delivering the medicine; the length of time the preparation used by him had been in the store; from whom the same was procured

We are of the opinion that, under the proofs, the defendant was entitled to have the question as to the competency of his clerk, and the exercise of due and proper care on his part, submitted to the jury, and that the exceptions to the charge, as made, and to the refusal to charge, as requested, were well taken and point out error which requires a reversal of the judgment.

It is to be observed that the case was not tried by the defendant upon the assumption that the complaint alleged a cause of action, or that his right should be determined upon the theory on which the casé was given to the jury, but, at the earliest opportunity, he raised the question presented on this appeal, and again at the close of the charge requested that the jury should be instructed in accordance with his claim as now insisted upon. As these views lead to a new trial, we have not examined the numerous exceptions taken to the rulings of the court in admitting testimony offered by the plaintiff.

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

Haight and Beadley, JJ., concurred.

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


text:
    EMILY CLARK, Respondent, v. THE CITY OF ROCHESTER, Appellant.

      A municipal corporation is liable to one upon whose lands it conducts surface water wrongfully diverted from its natural channel — evidence — when testimony as to the illness of persons living in a house is admissible as bearing upon rental value.

    A street in tlie city of Rochester, known as Edward street, which ran in a northerly direction until it terminated at a high, tight, hoard fence at its north end, was, pursuant to an ordinance of the common council of the city, duly graded and otherwise improved, a gutter nine inches helow the sidewalks being constructed on each side. The plaintiff was the owner of a lot on the west side of Edward street, the northerly line of which was the north line or end of the street, upon which was a dwelling-house, occupied by her, and also a barn. Before the improvement was made, the surface water from the territory lying easterly of said street, and the drainage from two streets running to the east side, but not crossing Edward street, passed over Edward street to the west and south of the plaintiff’s premises.
    After the improvement was made, this surface water and drainage were collected in the gutters and conducted "to the north end of Edward street, opposite to the premises of the plaintiff, where they spread out over the surface of the street and there remained, being covered with slime and emitting offensive odors. Heavy showers of rain caused this substance to flow over the sidewalk and upon the plaintiff’s premises, flooding the cellar of her dwelling-house, washing out the bed of the driveway, and so polluting the water in the well upon the premises as to compel her to discontinue the use thereof.

      Reid, that the act of the defendant in collecting this water and conducting the same m gutters and discharging it upon the premises of the plaintiff, was an unauthorized invasion of her property, and that the collection of the stagnant water in front of her premises, preventing the beneficial enjoyment thereof, created a private nuisance which entitled the plaintiff to maintain an action to recover the damages caused thereby.
    The cases bearing upon this question, collated and considered by Childs, ,T.
    Upon the trial, testimony was offered by the plaintiff, and received under the objection and exception of the defendant, tending to show that the plaintiff and other inmates of her dwelling had suffered from illness occasioned by the deposit of unwholesome matter upon her premises by the flood of water complained of. The testimony was received as bearing on the question of the rental value of the plaintiff’s premises, and not for the purposes of founding any claim for damages by reason of such illness.

      Held, that it was not error to receive this testimony.
    Appeal from a judgment entered upon the verdict of a jury in the Monroe County Court, and from an order denying a motion for a new trial.
    In about the month of May, 1882, Edward street, in the city of Rochester, was improved in pursuance of an ordinance of the common council. The grade of the street was established and the improvement completed, in all respects, in accordance with such ordinance. Edward street runs in a northerly direction and at that time terminated, at a high, tight, board fence at the north end. Plaintiff is and was at the time of such improvement, the owner of the premises No. 37 Edward street, situate upon the west side of said street, the northerly line thereof being the north line or end of said street. Upon said premises was a dwelling-house occupied by plaintiff, and also a barn. Two streets to wit, Hudson park and Gilmore street intersect said Edward street upon the east side thereof within the distance of about 400 feet southerly from the north end of Edward street. These streets, Hudson park and Gilmore are not continued west of Edward street. The improvement of Edward street consisted in grading the same and in constructing a plank sidewalk on each side thereof. In grading, depressions were filled at some points and at others filling was put in so that wdien the work was completed the street from Hudson park north to the end thereof had a uniform grade,-with a gutter upon each side, nine inches in depth below the sidewalk and the crown of the street at the center thereof. Before the improvement of Edward street the surface water from the territory lying easterly of said street, and the drainage from Hudson park and Gilmore street, passed over Edward street to the west and south of the plaintiff’s premises. After the improvement of Edward street the surface water from the lands east thereof, and north of the south line of Hudson park and the drainage from Hudson park and Gilmore street were collected in the gutters along Edward street, and conducted to the north end thereof and opposite the premises of plaintiff where they spread out over the surface of the street and there remained, being covered with slime, and emitting offensive odors. Heavy showers of rain caused this substance to.fiow over the sidewalk and upon the plaintiff’s premises,- flooding the cellar to her "dwelling, washing out the bed of the driveway, and so polluting the water in the well upon the premises as to compel her to discontinue the use thereof. .
    This action was brought to recover damages for these injuries. The plaintiff recovered a verdict for $300. Defendant’s motion for a new trial was denied, and from the judgment’ entered on such verdict, and from the order denying a new-trial, this appeal is taken. - -

      Toan Powers, for the appellant.

      Daniel Wood, for the respondent.
   Childs, J.:

The defendant, by its common council, haa the power unaer its charter to inaugurate and carry out this improvement, and it having been completed in accordance with the plans adopted by such counsel, it is contended by the defendant that the exercise of such power was in its nature judicial or discretionary, and, therefore, the defendant is not liable in damages for any injury sustained by the plaintiff by reason thereof. Numerous cases in this and other States have been cited by defendant in support of this contention. An examination of the leading cases cited will show that while they establish the general rule contended for, that the case at bar is not within the rule!

In Wilson v. The Mayor, etc. (1 Den., 595) the damages were occasioned by surface water naturally falling upon the plaintiff’s premises, but prevented from flowing off by the changes made in grading its streets. The city, it was held, owed no duty to a citizen to furnish drainage for the water naturally collected on his premises, and that no liability resulted from the change in the street grade ma.de under statutory authority.

In Radcliff's Executors v. The Mayor, etc. (4 Comst., 195), the city regularly laid out and opened a street; afterward they proceeded to grade the street in order to bring it into public use,- and in so doing removed a high bank which constituted a natural support to the premises of an adjoining owner, so that a portion of his land fell. There was no allegation of malice, or want of care or skill. It was held that the adjacent owner could not maintain .an action on the case for the damages sustained by him, there being no want of care or. skill in the execution of the work. Bkonson, •Oh. J., in the opinion in this case, says : “ As a general rule, a man who exercises proper care and' skill may do what he will with his •own property. He may, not, however, under color of enjoying 'his own, set up a nuisance which deprives another of the enjoyment of his property. Nor can 'he rightfully enter or cast anything on the land of another, unless he have a license from the owner or an authority in -law for doing the act. And the absence of a bad motive will not save him from an action.” After further ■illustrating this proposition, the learned . judge continues: The ■case before us seems to fall within the principle that a man may •enjoy his land in the way such property js usually enjoyed, without being answerable for the indirect' or consequential damages which anay be sustáinéd’ by an adjoining land-owner. But if that be a .doubtful position, there is a class of cases directly on the point in j udgment which hold that persons acting under an authority conferred by the legislature to grade, level and improve streets and "highways, if they- exercise proper care a/nd skill, are not answerable •for the consequential damages which may be sustained by-those who ■own lands bounded by the street or highway.”

In Mills v. City of Brooklyn (32 N. Y., 489, p. 495), Judge 'DeNIO says: • “ The grievance of which the plaintiffs complain, is that sufficient sewerage to cany off the surface water from their lot and house lías not been provided. A sewer of a certain capacity was built, but it was insufficient to carry off all the water which •came down in a rain-storm, and the plaintiff’s premises were, to a •certain extent, unprotected. Their condition was certainly no worse than it would have been if no sewer at all had been constructed. So ■far as the one laid down operated, it relieved the plaintiffs’ lot, but the relief was not adequate,” and it was held that the corporation was not liable.

The case of Smith v. The Mayor (66 N. Y., 295) related to a ■sewer. There was no proof of any defect in the sewer as originally constructed. After a heavy shower the sewer overflowed and flooded plaintiff’s premises. It appeared that the overflow was caused by a stoppage of the sewer with sand, etc., washed from the streets. It was held that the corporation could only be made liable for damages upon proof of some fault or neglect upon its part, either in the construction of the sewer or in keeping it in proper repair.

The case of Lynch, v. The Mayor (76 N. Y., 60) was a case where, as stated by Eael, J., “ the defendants caused the grade of the avenue to be raised twenty feet above the surface off the adjoining lands; that they failed and neglected to provide any means of carrying off the rain-water which fell upon the avenue, or to prevent such water from draining upon the adjoining lands. * if * There is no allegation that defendants, by this work upon the avenue, diverted any stream of water upon plaintiff’s lot, or that they collected surface ruater into a channel and thus threio it upon such lot, or that they caused any more water to flow upon the lot than would have flowed there if the avenue had not been raised.” The judgment of the General Term, affirming the judgment for defendant, entered on the dismissal of the complaint at the circuit, was affirmed.

It will be observed, from this examination of the cases relied upon by the defendant in support of his claim, that they contain no warrant or authority for a corporation to invade the property of a citizen, or, by the failure to exercise proper care and skill, to create a nuisance, public or private, to the damage of another.

That the act of defendant, in collecting the water from the territory easterly of Edward street, and from Hudson park and Gilmore street, and conducting the same, in a channel or gutter, upon the premises of plaintiff, was an unauthorized invasion of the property is beyond doubt, and it is equally clear that the collection of a considerable body of stagnant water in front of plaintiff’s premises, preventing the beneficial enjoyment thereof, as disclosed in the evidence, created a private nuisance.

That the exercise of an ordinary degree of care and skill in the performance of this work would have avoided the damage to plaintiff is apparent.

Edward street was a cul de sac. Across the north end thereof was a high, tight board fence, cutting off all opportunity for drainage over the surface in that direction. Under these circumstances, it manifestly became the duty of the defendant, if it saw fit to collect and conduct a body of water to this point in the street, to provide some manner for disposing of it other than to turn it upon the lands of the plaintiff or to allow it to spread over the surface of the soil and there stagnate until it soaked into the ground or evaporated. It is undoubtedly true that, before this improvement of Edward street was undertaken, the defendant could not have been required to construct a sewer or drain for the purpose of carrying away any of the surface water of this locality; but here they created the necessity for such relief by the failure to exercise such care and skill in the completion of such improvement as was required, and hence it became its duty to provide such relief in some manner, and for the failure to do so it is liable to the plaintiff for such damages as she has • sustained by reason thereof. The case shows that it was entirely practicable to dispose of this water in such a manner as to avoid the injury complained of, and that the difficulty has been remedied, since the commencement of .this action, by the extension of Edward street to Yose street on the north, a distance of about 100 feet.

This precise question was considered by the Court of Appeals in Byrnes v. City of Cohoes (67 N. Y., 204), and it was there held, Rapallo, J., delivering the opinion of the court that: “Diverting the water from its natural course so as to throw it upon the plaintiff’s premises, without providing any outlet, and thus injuring his building, was a wrong for which he was entitled to redress. The cases cited on the part of the appellant (the defendant), to the effect that a municipal corporation is not liable for an omission to supply drainage or sewerage, do not apply to a case whore the necessity for the drainage or outlet is caused by the corporation itself.”

The question was again considered by the same court in Noonan v. Albany (79 N. Y., 470), and it w-as held that a municipal corpor■ation has no greater right than an individual to collect the surface water from its lands and streets into an artificial channel, and to discharge them upon the lands of another. To the same effect is Bastable v. Syracuse (8 Hun, 587). The latest exposition of the daw on this subject by the Court of Appeals is to be found in Seifert v. City of Brooklyn (101 N. Y., 136). This was an action brought to recover damages caused to plaintiff’s premises by defendant’s negligence in the construction of a sewer. The defendant invoked the principle, exempting municipal corporations from liability for damages, occasioned through the exercise of judicial functions, by its officers, as a defense to the action. Rugee, Oh. J., in an able and exhaustive opinion, in ’which the authorities are extensively reviewed says: “ Municipal corporations have quite invariably been held liable for damages occasioned by acts, resulting in the .creation of public or private nuisances, or for an unlawful entry upon the premises of another whereby injury to his property had been occasioned. This principle has been uniformly applied to the act of such corporations in constructing streets, sewers, drains and gutters, whereby the surface water of a large territory, which did not naturally flow in that direction, was gathered into a body and thus precipitated upon the premises of an individual, occasioning damage thereto.” The cases hereinbefore cited, with others, are cited in support of this proposition.

Further quotations in support of the rule contended for by the plaintiff, might be made from the opinion in this case, but sufficient reference has been made thereto to show that the rule established is decisive of the case at bar,' and that for the act complained of the plaintiff had a remedy in her action for damages, notwitbstanding the general rule exempting municipal corporations, invoked by the defendant.

Upon the trial, testimony was offered by the plaintiff, and received under the objection and exception of defendant, tending to show that the plaintiff and other inmates of her dwelling'had suffered illness, occasioned by the deposit of unwholesome matter upon her premises by the flood of water complained of. This testimony was received as bearing on the question of the rental value of the plaintiff’s premises, and not for the purpose of founding any claim for damages by reason of such illness. Such was the statement of the judge, made in ruling upon the defendant’s objection, and that this was the sole purpose for which the testimony was admitted is made clear by the charge of the judge, who said to the jury: The only element of damages that you can take into consideration in this action, is the difference in the rental value of the premises between the time of the creation of the nuisance and the time it was abatedand, again: “ The other matters that have been suggested to you, for instance, the injury to the health of the plaintiff’s family, are not to be taken into consideration by you, except as bearing on the general question as to what is the rental value of the premises.”

It further satisfactorily appears, from the amount of the verdict rendered, that the jury followed the instructions of the court, and considered only the question of the difference in rental value of the premises, whicli was the true measure of damages. (Jutte v. Hughes, 67 N. Y., 267.)

¥e are of the opinion that the testimony objected to was competent and properly received for the purpose.indicated; but if this were not so, the defendant has not been injured thereby, and, therefore, no error was committed requiring a reversal of the judgment.

Other exceptions were taken by the defendant to the refusal of the court to direct a verdict for the defendant, and to the refusal of the court to charge certain requests made by defendant, and to certain parts of the charge as made. We have examined the rulings complained of, and find no error in either.

The judgment and order appealed from should be affirmed.

IIatght and Bkadley, JJ., concurred.

Judgment and order affirmed.


author: Lewis, J.:

text:
    WILLIAM B. ARNOLD, as Executor, etc., of MILO KELLOGG, Deceased, Plaintiff, v. LAURA S. HARONN, Defendant.

      Advancement — when the testator, by making a will after having made an advancement by which will he bequeathes property to the person receiving the advancement, prevents any deduction being made because of such advancement.

    The defendant, at the time of receiving from her father, the plaintiff’s testator, the sum of $900, executed and delivered to him a written instrument, which read as follows: “Ogden, September 3, 1873. Received from my father, Jlilo Kellogg, nine hundred dollars, to he deducted from my part of his estate,"' upon the back of which there was indorsed, in the handwriting of Miio Kellogg, This is to be charged to her portion.” Thereafter .Milo made a will by which he disposed of all his property, devising to his daughter certain real estate of the value of about $100, and a right to receive four-tenths of the income of the residue of the estate during her natural life.
    The plaintiff, the executor of Kellogg, claimed to be entitled to recover the $900, as money loaned to the defendant, or at least to the amount of the value of the. real estate devised to her.

      Held, that as the will contained a devise to the defendant, and was made after the money was advanced, the testator must be presumed to have taken the advancement into consideration when determining the amount of her devise, and to have intended to cancel any obligation which might .otherwise arise therefrom.
    That the plaintiff was not entitled to recover the sum advanced, or any part thereof, from the defendant, nor to deduct it from the property or income devised to her.
    Case agreed upon and submitted to the court under section 1279 of the Code of Civil Procedure.
    The defendant, Laura S. Haronn, is the'daughter of the plaintiff’s testator, Milo Kellogg; the parties reside in Monroe county, New York. Defendant made and executed to her father, Milo Kellogg, an instrument, in words and figures following:
    “ OgdeN, Sej>temher 3, 1872.

      “ Received from my father, Milo Kellogg, $900, .to be deducted from my part of his estate.
    (Signed) “LAURA S. HARONN.”
    There was indorsed upon the back of the writing, in the handwriting of Milo Kellogg, the testator, the following: “ This is to be charged to her portion.” The defendant, at the time she delivered this writing to her father, received from him the sum of $900. Milo Kellogg thereafter died in Monroe county, New York, leaving him surviving the defendant, one son and a widow, and leaving a last will and testament, dated February 2, 1878, in and by which he appointed the plaintiff his executor.' The will -was'duly admitted to probate in the Surrogate’s Court of Monroe county, and letters testamentary were issued to the plaintiff.
    Milo Kellogg by his will bequeathed to his wife and her heirs his homestead, household furniture, farming tools, etc. ■ Secondly. He devised to the defendant all the rest of his real- estate, of every name and nature. Third. He bequeathed to his son James the sum of $1,500; to 'William Webster, the son of a deceased daughter, §400, and $4Q0 to two children of defendant; and, fourthly, he devised to plaintiff, as executor, the residue and remainder of his personal estate, in trust for the payment of his debts and the legacies and charges upon his estate for and during the natural life of his wife and daughter, the defendant. Fifth. He gave to his wife the use, interest and income of six-tenths of the sum devised, in trust during her natural life, and also so much of the principal thereof as should be necessary for her proper support and maintenance ; and, sixth. He gave and bequeathed to the defendant the use, interest and income of four-tenths of the sum devised to plaintiff, in trust during the term of her natural life, and after her death the four-tenths to be divided equally between the children of defendant. And he further directed that the trustee deposit the same in some savings bank in the city of Rochester or invest it in the real estate for the use and benefit of defendant and her family.
    The property mentioned in the second subdivision of the will consisted of about five acres of swamp land in Ogden, Monroe county, of the value of about §100. The property mentioned in the fifth and sixth subdivision is personal property, consisting of money, notes, bonds and mortgages, and amounts in value to about $15,000. An inventory of the estate was filed in the Surrogate’s Court, and the paper mentioned as signed by the defendant was included in the inventory as aii asset of' the estate.

      Wilkin ds Pierce, for the plaintiff.

      G. D. Kiehel, for the defendants.
   Lewis, J.:

Had Mr. Kellogg left a will containing a devise to plaintiff, expressing his intention to treat the §900 as an advancement, or had the advancement be.en made after the will had been executed, then the advancement might have been deemed an ademption of the legacy; but having by his will disposed of his entire estate, the amount received by the defendant cannot be regarded as an advancement. This doctrine is established in Thompson v. The Executors of Carmichael (3 Sandf. Ch., 120); Clark v. Kingsley (37 Hun, 246; 4 Kent’s Com., 418, 419); Hays v. Hibbard (3 Redf., 28); and there are many other authorities to the same effect. That this is the law is conceded by plaintiff’s counsel, but his contention is that the transaction was a loan of money by the father to the defendant, and that the plaintiff, as executor, is entitled to recover of defendant either the $900 or at least to the amount of the value of the real estate devised to defendant, which is about the sum of $100.

A reason for the rule of law, that where an advancement is made, and thereafter the party making it executes a will disposing of all of his estate, and makes no mention of the advancement, that it shall not be regarded as an advancement, is, that the testator must be presumed, when making his will, to have taken the advancement into consideration when determining the amounts of his bequests, and intended to cancel any obligation which might otherwise arise from the advancement. The effect of the testator’s will was to cancel the advancement, and, in addition, he gave the defendant the lands and the use, interest and income during her life of four-tenths of his personal estate.

The value of the personal estate of the testator, after deducting the amount of the specific bequests, is about $12,500. The defendant, under the sixth clause of the will, would receive the interest and income of about $5,000 ; and the testator directs that this sum, so bequeathed in trust for the defendant, his trustee, shall deposit in some savings bank in the city of Rochester, or invest it in real estate for the use and benefit of the defendant and her family. Had he wished it applied to the payment of the advancement, lie would not have given this direction to the money.

It is quite apparent that the testator did not intend that the $900 advanced by him to the defendant should be taken out of her interest money. She was to receive this interest during her life only. It was, therefore, entirely uncertain what amount she might receive. It is not supposable that he intended that the insignificant value of the real estate devised to defendant should be applied upon the $900 advanced. Had he intended that the money advanced to the defendant should be taken from the portion of the estate, he would unquestionably have made provisions in his will to that effect. The intention of the testator must prevail. (Hine v. Hine, 39 Barb., 507; Proseus v. McIntyre, 5 id., 424.)

The instrument, signed by the defendant, acknowledged the receipt from her father of $900, to be deducted from her part of his estate. The father indorsed upon the back of the writing the words, “ This is to be charged to her portion.” It is apparent that at that time it was the intention of the parties that the amount should be a charge upon the 'defendant’s portion of her father’s property. She did not agree to pay the amount in money, but accepted it upon the condition that it should be a charge upon her portion of the estate; and had her father died intestate it might have been so applied. But when the father concluded to make a will we must-assume, as he made no mention of this advancement, that it was taken into consideration in fixing his bequests to the defendant, and that he did not expect she should pay the advancement, or any part of it. If she were adjudged to pay the whole sum it might very largely exceed the amount she receives from the estate.

The principle which is the foundation of the rule that advancements made shall not apply in ademption of a legacy where the person making the advancement thereafter makes a will disposing of his entire estate, should prevent recovery of a judgment for the amount of the advances. We think the plaintiff is not entitled to recover of the defendant the sum advanced or any part of it. Neither can it be deducted from the property or income devised to her.

The defendant is entitled to judgment against the plaintiff, with costs, and judgment is directed accordingly.

Haight and Bradley, JJ., concurred.

Judgment ordered in favor of the defendant, with costs.


text:
    EDWARD RUSH, Respondent, v. ELEANOR DILKS, Appellant.

      When a promise by a purchaser of land, to pay a mortgage thereon, may be enforced by the mortgagor — when a wife, receiving property through the fraudulent acts of her husband, acting as her agent, is liable for the consequences of such acts to the persons injured.

    Israel and Almira Adams, being indebted to the plaintiff, Rush, in the sum of $685, agreed to secure the payment thereof by selling and assigning to him a purchase-money mortgage for $700, theretofore received by them on the sale of certain real estate to one Boyington. Instead of assigning this mortgage to Rush, the Adams, acting under the advice of a justice of the peace, gave their own bond for $685, secured by a mortgage describing the premises sold to Boyington, which were not then owned by them, and agreed to keep the old mortgage for Rush until the new one was satisfied. Thereafter John H. Dilks, the husband of the defendant, agreed to purchase the premises and to pay therefor $865 upon the delivery of the deed, and also to pay $700 to Rush, in payment of his mortgage of $685, upon which there was then due the former amount.
    Thereafter Dilks fraudulently induced the Adams to satisfy of record the $700 mortgage without the knowledge or consent of Rush, and then procured the defendant, his wife, to whom the premises had been conveyed, to convey the same to a bona fide purchaser for the sum of $2,349.50, which was paid to him, Dilks.

      Held, that a judgment in favor of Rush and against the defendant for $700, with interest thereon from the date of the bond and mortgage given to him by the Adams, should be affirmed.
    That the promise of Dilks to pay the amount of the Boyington mortgage to Rush was supported by a good and valuable consideration, and could be enforced by Rush.
    That as the defendant availed herself of the results of her husband’s acts and' promises, made when he was negotiating the sale to her, she must be held to have adopted his acts, and thereby made him her agent in the transaction.
    That, as the transaction .concerned and benefited the defendant’s separate estate, she was liable therefor the same as if unmarried.
    Appeal from a judgment, entered in Cattaraugus county April 14, 188&, for $1,372.48, in favor of the plaintiff, upon the report of a referee.
    Michael McCarthy and Jeremiah McCarthy, being the owners of fifteen and sixty-seven one hundredths acres of oil lands in the county of Cattaraugus, conveyed the same to -the defendant March 31, 1876, for the consideration of $,1,565. There was a purchase-money mortgage upon the premises, duly recorded at the time of the conveyance, on which there was due and unpaid the sum of $700. It had been executed by Mi-. Boyingion to Is2-ael and Almira Adams. The Adams’ had theretofore borrowed of the plaintiff . Edward Rush, $685, and to secure the payment of this money to Rush, they agreed to sell and assign to him this, mortgage for $700. But, pursuant to the advice of a justice of the peace, whom they employed to di-aw the papers, instead of assigning this mortgage to Rush, they executed and delivei-ed their bond, conditioned to pay to him the $6S5, and a mortgage upon these premises for a like sum, collateral to the bond; and they agreed that they would keep the old mortgage for Rush until the new one was satisfied. The Adams’ were not owners of the land at the time they gave tin's mortgage. John li. Dilks, the husband of the defendant Eleanor Dilks, negotiated the purchase of the premises from the McCarthy’s, and agreed with them to pay for the premises as follows: Eight hundred and sixty-five dollars upon the delivery of the deed, which payment he made; and to pay the balance of the purchase-money, being the sum of $700, to Rush, in payment of his mortgage of $685, which, with interest, then amounted to more than $700, when requested by Rush so to do. The mortgage to Rush fell due, and he demanded payment, but instead of paying the sum of $700, as agreed, Dilks fraudulently induced Adams to satisfy the $700 mortgage of record, without paying any part of the same, and without the knowledge or consent of Rush, and then procured Mrs. Dilks to convey the premises to l)ona fide purchasers, receiving therefor the sum of $2,349.50, $784.50 over and above the amount paid for the premises. Mrs. Dilks was informed and knew of the conveyance to her of the premises, but had nothing to do personally with the matter, except to receive the'deed of conveyance and execute and deliver the deeds as aforesaid. Iier husband received the consideration-money. He had full knowledge of the rights and interests of Rush in the Boyington mortgage, and knew that there was due to Rush, upon his mortgage, more than the $700.
    The referee reported in favor of the plaintiff and against the defendant for the $700 and interest from April 8, 1876, the date of the bond and mortgage given to plaintiff by the Adams. Judgment being entered thereon against the defendant, she brings this appeal into this court.

      Cary c& Bumsey, for the appellant.

      Lincoln c& Nash and D. II. Bolles, for the respondent.
   Lewis, J.:

The agreement of Dilks to pay the amount of the Boyington mortgage to the respondent, Rush, though made to the McCarthys for the benefit of Rush, was supported by a good and valuable consideration, and can be enforced for the benefit of Mr. Rush. (Lawrence v. Fox, 20 N. Y., 268; Van Schaick v. Third Avenue R. Co., 38 N. Y., 346; Barlow v. Myers, 64 N. Y., 41.)

The contention of the appellant’s counsel is, that Mr. Dilks was not, in these transactions, the agent of Mrs. Dilks, and that, as the only acts of the appellant were accepting the conveyance of the premises, and executing and delivei-ing conveyances thereof, and as she neither paid the purchase-price of the premises conveyed to her, nor received the pay therefor when she conveyed them, she is not to be held liable for the acts of her husband; that he did not become her agent. Iler husband assumed to act for her in the negotiations which resulted in the conveyance to her of the premises; she knew that her husband had procured the conveyance to be made to her ; she accepted the deed, and thereafter conveyed the premises by warranty deeds to bona fide purchasers for a good and valuable consideration.

The conveyance vested in her the title to the land exempt from the control of her husband, notwithstanding he paid a part of the purchase-price, by force of 1 Revised Statutes, 72S, section 51, article 2, title 2, chapter 1, part 2. Having ava .led herself of the results of her husband’s acts and promises made when he was negotiating the sale to her, she must be held to have adopted his acts and thereby made him her agent in the transaction. If she did not wish to perform his agreements made for her benefit she should have refused to accept the deed. Having become the owner of the land she was entitled to control it and to receive the avails of its sale, and her consenting that the proceeds of the sale might be received by her husband did not change her obligations- to the plaintiff. She took the title charged with every equity that would have accompanied it, had it been conveyed to her husband. (Crans v. Hunter. 28 N. Y., 389 ; Bennett v. Judson, 21 id., 238 ; Elwell v. Chamberlin, 31 id., 611; Meehan v. Forrester, 52 id., 277; Krumm v. Beach, 25 Hun, 293; S. C., 96 N. Y., 398; Boe v. Berry, 24 Weekly Dig., 5.)

The court say in Bennett v. Judson (21 N. Y., 239): There is no evidence that the defendant authorized or knew of the alleged fraud committed by his agent Davis in negotiating the exchange of lands; nevertheless he can not enjoy the fruits of the bargain without adopting all the instrumentalities employed by the agent in bi-inging it to a consummation.” The appellant got title to the land on the strength of her husbands’s promise to pay to plaintiff the amount of the Boyington mortgage as part of the purchase-price of the land conveyed to her. She has failed to pay this sum, which, through her husband, she agreed to pay. It is true she did not make the promise personally, but her husband made it for her and she took the fruits of the bargain, and fair dealing demands she should perform the agreement. By her act of conveying the property to bona fide purchasers she put it beyond the reach of the plaintiff. He cannot follow the land, as the Boyington mortgage was discharged of record and innocent purchasers have acquired title to the land released from that incumbrance. Were it not for the fraud of her agent in procuring the discharge of the Boyington mortgage she would have been compelled to pay it, or to provide for it before she could have realized the full value of the premises she conveyed. Down to the time of her conveyance she held the lands in trust for respondent’s benefit to the amount of his lien. (2 Story’s Equ. Jur., §§ 1218 to 1222.) Haviug by her own act destroyed the trust she became liable to the beneficiary for its value. (May v. Le Claire, 11 Wall, 236; Peabody v. Tarbell, 2 Cush., 227; Hart v. Ten Eyck, 2 Johns. Ch.. 77; Meehan v. Forrester, 52 N. Y., 277; Starr v. Winegar, 3 Hun., 491.) While defendant was not personally guilty of any intentional wrong in conveying the premises, her act nevertheless injured the plaintiff, an innocent party, to the amount of the value of his mortgage, and she should suffer and -not the plaintiff. This transaction concerned and benefited the defendant’s separate estate; she is liable therefore the same as if unmarried. The case of Kelly v. Geer, 101 N. Y., 665, referred to by the appellant’s counsel, is clearly distinguishable from this case. The defendant there did not own the premises conveyed, or have any interest in them; they belonged to her son ; and though she joined with him in conveying the same, it was for liis benefit and not her’s. There are some exceptions appearing in the case, but they were not discussed upon the argument, nor in the appellant’s brief, and do not appear to have any merit.

The judgment appealed from should be affirmed, with costs.

Haight and Bradley, JJ., concurred.

Judgment affirmed.


author: Angle, J.:

text:
    In the Matter of the Application of PHILO M. SHEPARD (Appellant) to be Discharged from Imprisonment.

      Discharge of an imprisoned debtor — section 111 of the Code of dril Procedure, as re-enacted by chapter 672 of 1886, does not apply to orders of arrest.

    On December 19, 1885, the relator was arrested by the sheriff of the county of Wayne, upon an order of arrest, granted in an action brought against him in the Supreme Court by the New York Central and Hudson River Railroad Company, and was confined under such order in the county jail until June, 1886, when, upon his application, a habeas corpus was issued to inquire into the cause of his detention.
    Upon the hearing at Special Term, upon the retnrn to the writ, the petitioner claimed to be entitled to be discharged from imprisonment under the provisions of section 111 of the Code of Civil Procedure, as re-enacted by chapter 672 of 1886.

      Held, that an order, made by the Special Term, remanding him to the custody of the sheriff, should be affirmed.

      People ex rel. Podding v. Grant (10 Civ. Pro. R., 174, note); Warshauer Y.Webb (Id., -169) followed; The People ex rel. Lust v. Grant (10 Civ. Pro. R., 158; S. C., 1 N. Y. State Rep., 537) not followed.
    Section 111, as re-enacted in 1886, does not apply to orders of arrest granted before judgment, but only to executions or mandates to enforce a payment of money, issued after a final judgment or order has been entered or made determ, ining the amount to be paid.
    Appeal by Pbilo M. Sbepard from an order of the Erie Special Term remanding Mm to the custody of a sheriff after á hearing had been had on the retnrn to a habeas corpus issued to inquire as to the cause of his imprisonment.
    Shepard was arrested Dy the sheriff of the county of Wayne, New York, December 19, 1885, upon an order of arrest granted in an action in the Supreme Court, in which the New York Central and Hudson River Railroad Company was plaintiff and Shepard was defendant. He was, under such order, confined in the Wayne county jail until February 19, 1886, when he was brought before the Erie County Court of Sessions to plead to an indictment, and he was .then again delivered into the custody of the sheriff of Erie county under an order of said Court of Sessions. He was brought before the Erie County Special Term upon the return to a writ of habeas corpus, issued June 29,1886, to inquire into the cause of his detention, and after a hearing lie was remanded to the custody of the sheriff by the order appealed from.
    The following opinion was delivered at the Special Term by Corlett, J.:
    More than six months ago the plaintiff commenced an action against the defendant to recover a large sum alleged to have been wrongfully converted by the defendant. An order of arrest was obtained, and the defendant was held to bail in the sum of $25,000, in default of which he was committed to jail in Wayne county. Afterwards such proceedings were had that his imprisonment was continued in the county of Erie. It appeared upon the hearing, as the court held, that he had been imprisoned upon the order of arrest for more than six months.
    The law authorizing a discharge was passed January 14, 1886, and reads as follows: “No person shall be imprisoned within the prison walls of any jail for a longer period than three months, under an execution or any. other mandate against the person to enforce the recovery of a sum of money less than $500 in amount, or under a commitment upon a fine for contempt of court in the non-payment of alimony or counsel’s fees in a divorce case where the amount so to be paid is less than the sum of $500$ and where the amount in either of said cases is $500 or over, such imprisonment shall not continue for a longer period than six months. It shall be the duty of the sheriff, in whose custody any such person is held, to discharge such person at the exjfiration of said respective periods ■without any formal application being made therefor. No person shall be imprisoned within the jail liberties of any jail for a longer period than six months upon any execution or other mandate against the person, and no action shall be commenced against the sheriff upon a bond given for the jail liberties by such person to secure the benefit of such liberties, as provided in articles fourth and fifth of this title, for an escape made after the expiration of six months’ imprisonment as aforesaid. Notwithstanding such a discharge in either of the above cases, the judgment creditor in the execution, or the person at whose instance the said mandate was issued, has the same remedy against the property of the person imprisoned which he had before such execution or mandate was issued, but the prisoner shall not be again imprisoned upon a like process issued in the same action, or arrested in any action upon any judgment under which the same may have been granted, except in a case hereinbefore specified. Nothing in this section shall affect a commitment for contempt of court.”
    The command in the order .of arrest under which the defendant is imprisoned is as follows: “You are required forthwith to arrest the defendant in this action, if he is found within your county, and to hold him to bail in the sum of $25,000 by a written undertaking executed by two or more sufficient sureties to the effect that the defendant shall at all times render himself amenable to any mandate which may he issued to enforce the final judgment against him in the action, and return this order with your proceedings thereunder as prescribed by law.”
    This order is in proper form, and is a mandate. The defendant’s contention is that the above section applies to orders of arrest as well as to executions or mandates to enforce a payment of money, issued after final judgment or order determining the amount to be paid. This order is to the effect that the defendant shall keep him* self where he would be amenable to a future execution or mandate, issued to enforce the final judgment in the action. It is not a mandate to enforce the recovery of a sum of money, but to prevent him from placing himself where another mandate cannot be served. Although the plaintiff claims to recover a large amount of money, it does not follow that he will recover anything. It may turn out, on the trial, if one is ever held, that the plaintiff’s claim is entirely unfounded. In other words, that the defendant is not guilty of the conversions charged, or any of them. In that case the command in this order will cease to have any effect or impose any obligation. If, on the other hand, the plaintiff should re'cover a sum of money, the present order could not be used to enforce its payment; another mandate would bo issued for that purpose. -The present order would be fully satisfied by the defendant keeping himself where' the new mandate could be served, and the moment it was served the present order would be satisfied. The title to the section of the new law is “ Imprisonment on Execution.” That is an important element in determining the design of the legislature. (Bride V. Gcmnar, 36 Hun, 52, 55.)
    The intent of the legislature is further evidenced by the follow* ing.portion of the section : Notwithstanding such a discharge in ■either of the above cases, the judgment creditor in the execution, ,or the person at whose instance the said mandate was issued, has the same remedy against the property of the person imprisoned ■which he had before such execution or mandate was issued.”
    This langage is not consistent with the idea that the legislature intended it should apply to an order of arrest before judgment. The plaintiff had no remedy against the property of the defendant .at the time it procured this order of arrest; no demand had been .established which entitled the plaintiff to enforce payment out of ¡the defendant’s property. In the last quotation the word “ mandate ” is used in the same connection and sense as execution; the language clearly contemplates that each has reference to enforcing ■the payment of-amounts already established. Here, then, we have the title of the act; the fact that it provides for the enforcement of the payment of a sum of money; that it leaves the right, .after discharge, to proceed against the property, as before the process was issued. In addition to this the order is not to enforce the recovery of a sum of. money as above shown. There is a broad .distinction between a mandate requiring the defendant to hold himself amenable to a new mandate, and one issued to enforce the payment of money after its amount is established. The learned .connsel for the defendant argues that the purposes of the law and the reasons for it include an order of arrest. It seems the legislature assumed that it would be easier for a man to get bail to keep .himself where future papers could be served, than it would be for ,him to pay the money. It therefore provides that he could not be imprisoned only so long for failure to pay; besides, if the act .applies to an order of arrest, then the provision in the mandate would become of no value after he had been imprisoned under it -.the length of time required, because the only object of the condition is that he keep his body where a process could reach him. This ■would be of no avail after his discharge from arrest under this law. :Section 572 of the Code of Civil Procedure, as amended by the .same chapter, provides for prompt' action, in default of which -the defendant may obtain his discharge; No doubt is entertained as to the proper construction of the act. It cannot be held to ¡include an order of arrest; it is very clear that the legislature did not so intend. The same conclusion was reached at a Special Term held in the city of New York on the 25th day of June, 1886, by Justice Yan Brunt. (People ex rel. Max Podding v. Grant, Sheriff of the City of New York.)

    The application must be denied.

      P. K. Weaver, for Shepard, appellant.

      Charles. II Pooley, for New York Central and Hudson River Railroad Company, respondent.
   Angle, J.:

Shepard having been imprisoned more than six months under an order of arrest in a civil action, asked for his discharge under chapter 672, Laws 1886 (Code of Civil Pro., § 111), entitled “An act to amend the Code of Civil Procedure.” The court, at Special Term, denied his application for reasons stated in the opinion of Justice Corlett. (N. Y. Central and H. R. R. R. Co. v. Shepherd, 10 Civ. Pro. R., 153; S. C., 1 N. Y. State Rep., 77.) The case of the People ex rel. Rodding v. Grant (10 Civ. Pro. R., 174, note), at Special Term, and the case of Warshauer v. Webb (id., 169), at Special Term of New York City Court, are in the same direction. Adverse to these is the People ex rel. Lust v. Grant (10 Civ. Pro. R., 158; S. C., 1 N. Y. State Rep., 537.) The discussion which the point has undergone makes it unnecessary to go over the examination and discussion again in a written opinion. Our conclusion is that the order be affirmed.

Order affirmed, with ten dollars costs and disbursements.

Haight, Bradley and Childs, JJ., concurred.

Order affirmed,' with ten dollars costs and disbursements,.


text:
    CHARLES H. ERWIN, Respondent, v. DAVID CURTIS, Appellant.

      Evidence — oral evidence is admissible to prove a deed, absolute in form, to be a mortgage— the evidence, however, must be c ear and decisive.

    This action was brought by the plaintiff against one David Curtis to have a quitclaim deed, dated August 26,1880, executed by the plaintiff to Curtis, declared a mortgage, and that plaintiff be allowed to redeem, or that Curtis reconvey, reserving to himself a life estate. It was alleged in the complaint that while a mortgage given by the plaintiff upon the premises in question was being-foreclosed, he, to prevent a sacrifice thereof, applied for a loan to Curtis, who agreed to take an assignment of the bond and mortgage on condition that the plaintiff should execute a quit-claim deed of the premises for the expressed consideration of $1,500- that the plaintiff executed the deed under the agreement between them that upon the payment of the bond and mortgage, interest, costs and advances, Curtis would reconvey said premises discharged of said mortgage, or that the deed should be held for the purpose of furnishing defendant a home on said premises during his life and that of his wife.

      ■Held, that as the plaintiff was attempting to prove that the deed was a mortgage, and not to establish an oral trust, oral evidence was admissible to prove that the alleged agreement was made.
    That the evidence, required to show that a deed absolute in form was intended as a mortgage, must be clear, explicit, unequivocal and convincing.

      Kibby v. Harsh (61 Iowa, 196); Johnson v. Van Velsor (48 Mich., 208); Campbell v. Dearborn (109 Mass., 145); Hull v. Fries, 1 Cent. Rep., 612) followed.
    Appeal from a final judgment in favor of the plaintiff, entered in Steuben county September 17, 1885, and from an interlocutory judgment entered January 9, 1885.
    The action was brought in the lifetime of David Curtis, who died after this appeal, whereupon Josiah Curtis, his administrator and heir-at-law was substituted as defendant. The action was brought to have a quitclaim deed, dated August 26, 1880, executed by the plaintiff to David Curtis, declared a mortgage, and that the plaintiff be allowed to redeem, or that said David reconvey the premises, reserving to himself a life-estate. The complaint alleges, and the answer admits, that on or about February 14, 1877, the plaintiff, being the owner of certain described premises in the village of Painted Post, Steuben county, New York, upon which was a dwelling house occupied by plaintiff as a residence for himself and his faihily, did, with his wife, execute and deliver to the Southern Tier Savings Bank a moitgage of said premises, as collateral to hip, bond to secure the payment of $1,000, one year from the date,, with interest; that afterwards, and about September 17, 1878, said bond and mortgage were duly assigned to Eleanor C. Hermanee; that at some time prior to August 26, 1880, said Eleanor C. Hermanee commenced an action of foreclosure of said mortgage, against the plaintiff; that the defendant procured said bond and mortgage to be assigned and transferred to him by said Eleanor C. Hermanee, upon the payment to her of the amount secured thereby and the interest and the costs of said action; that plaintiff executed and delivered to defendant a quitclaim deed of said premises.

      A. 8. JAendall, for the appellant.

      G. T. Spencer, for the respondent.
   Angle, J.:

The controlling questions in this case arise under the issue, taken by the defendant to the allegations in the complaint: that while the Hermanee foreclosure was pending, the plaintiff, in order to prevent a sale thereunder and a probable sacrifice of the property, applied to defendant for a loan of money sufficient to pay the mortgage and costs ; that defendant refused to loan plaintiff, or assist him otherwise than by procuring an assignment of the Hermanee bond and mortgage, and on condition that plaintiff should execute to defendant a quitclaim deed of the mortgaged premises for the expressed consideration of $1,500, to consist of the amount of said'bond and mortgage, interest and costs, and such further sum as should amount to $1,500, and thereupon said defendant procured said bond and mortgage, to be assigned to him by said Hermanee, on payment by him to her of $1,000 and interest and costs, and plaintiff executed and delivered to defendant said quit-claim deed, under an agreement between them that upon payment of said bond and mortgage, interest, costs and advances, defendant would reconvey said premises, discharged of said mortgage, or that said quit-claim deed should be held for the purpose of furnishing defendant a home on said premises during his life, and that of his wife, and that he should release and reconvey, to plaintiff, said premises, subject to or reserving for himself and his said wife a home upon said premises.

The appellant makes two points: First. That the agreement alleged and attempted to be proved is an agreement for a trust, and cannot be proven by parol. (Citing 2 R. S., 134, 135, § 6 , Laws 1860, chap. 322; Cook v. Barr, 44 N. Y., 156 ; Hutchins v. Hutchins, 98 id., 56-63.)

The counsel for defendant does not contend that a deed absolute in form may not by oral evidence be shown to be a mortgage, and, in my opinion, that is all plaintiff is seeking to do here. He wants the property restored to him when the deed has accomplished its purpose as a security. It seems, from the evidence, on the part of the plaintiff, that as a bonus for the favor he was seeking from defendant, or for some other reason, he was willing defendant and his wife should under the deed retain a life interest in the property as a home, but this would not constitute an oral trust because defendant was himself the grantee in the deed.

The defendant’s second point is that the oral evidence is insufficient to prove the deed a mortgage. The evidence (as held by some authorities) required to show that a deed absolute in form was intended as a mortgage, must be convincing beyond a reasonable doubt. (Tilden v. Streeter, 8 N. W. Rep., 502; S. C., 45 Mich., 533.) It must be clear, satisfactory and convincing. (Kibby v. Harsh, 16 N. W. Rep., 85; S. C., 61 Iowa, 196; Johnson v. Van Velsor, 5 N. W. Rep., 223; S. C., 43 Mich., 208, 214.) Each case must be determined upon its own especial facts, but those should be of a clear and decisive import. (Campbell v. Dearborn, 109 Mass., 145.) It must be clear, explicit and unequivocal.

(Null v. Fries, 1 Cent. Rep., 612 [Pa., 1885].) The case does not show whether the rule indicated by the above authorities was adopted at the Special Term, or the rule indicated by another class of authorities which requires “ the triers of fact in civil cases to give a verdict to the party in whose favor the evidence preponderates.” Stearns v. Field, 90 N. Y., 642; Seybolt v. N. Y., L. E. and W. R. R. Co., 95 id., 569.)

It is necessary for us, in reviewing the question of fact, as to whether this deed was proven to be a mortgage, to determine the rule governing us, and we hold it to be as stated in Kerby v. Harsh, Johnson v Van Velsor, Campbell v. Dearborn and Null v. Fries (supra); and that the present case is one of the many exceptions to the general rule given in 90 New York, above.

"With this conclusion in mind we have carefully examined the evidence bearing upon the question, and all the circumstances that are shown to surround the parties and the transaction, and we cannot say that there was error committed in the finding below. (Hellburn v. Rosanson, 2 N. Y. State Rep., 618.)

The judgment should be affirmed, with costs.

Haight, J., concurred ; Bradley, J., taking no part.

Judgment affirmed, with costs.