text:
    Gustave A. Kirchner, Pl'ff, v. The New Home Sewing Machine Co., Def’t.

      (Court of Appeals,

      Filed October 4, 1892.)
    1. Release—Charge.
    To obtain release from an arrest plaintiff gave to defendant a bill off sale of certain goods, but subsequently sued to set it aside, and for an accounting. and obtained an injunction. Notwithstanding this defendant’s servants ejected plaintiff, and took possession of the store and conkjuts. After numerous arrests and litigation, plaintiff gave a release to obiain his goods, but found them injured by neglect. In an action to recover such damages, the court charged the jury that if the only subject of negotiation between the parties was the release by the plaintiff of his rights under the action in the city court, and his claim for false imprisonment, then the general terms of the release could not be allowed to operate upon any right of action which was not covered by the particular clause and was not mentioned in the preliminary discussion that led up to the release. Reid, error.
    2. Same.
    If words are used in a release fairly importing a general discharge, their effect cannot be limited by the bare proof that the releasor had no knowledge of the existence of the demand in controversy.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff for $6,000, entered upon verdict, and affirming order denying plaintiff’s motion for treble damages, under § 1669 of the Code.

      M. L. Towns, for pl’ff; George S. Hamlin, for def't.

       Reversing 42 St. Rep., 907.

   Maynard, J.

The plaintiff alleges as the grounds of his cause of action a forcible eviction by the defendant from premises occupied by him as a store at 282 Grand street, Brooklyn, December 3, 1887, and a forcible detention of the premises from him until February 8, 1888 ; and the injury to his stock of goods, fixtures, machinery and other personal property in the store at the time defendant took possession ; which were either removed, destroyed or seriously damaged by the acts of the officers and agents of the defendant. He also claims that his business was broken up by this unlawful interference by the defendant

Tiie plaintiff gave evidence tending to establish these various grounds of recovery. The defendant denied the commission of the trespass, and set up as an affirmative defense, and proved upon the trial, a general release under seal executed and acknowledged by the plaintiff, February 8, 1888. This instrument in terms absolved the defendant from all liability for any demand or cause of action which the plaintiff might have against it, either upon contract or in tort, and especially for all trespasses committed by it, or damages for which it might be responsible to the plaintiff. The cause of action in suit here then existed, and the release was, upon its face, sufficiently comprehensive to include it within the scope of its operation. It contained at the end a special provision to the effect that it was understood between the parties that tbe plaintiff should not interfere in any manner with any sales of sewing machines theretofore made by him for the defendant, nor with the collection of any amounts due on such machines.

One of the points in controversy between the parties was tbe right of the plaintiff to control such sales and make the collections. When the release was executed the plaintiff had claims against the defendant amounting to $2,500 for services rendered and for sums due him for sewing machines sold, the proceeds of which had been collected or received by the defendant The defendant ¡had claims against the plaintiff amounting to $2,300, and a bill of sale of a part of the property in the store to' secure upwards of $1,000 of this indebtedness. There was also an action pending in the city court brought by the plaintiff against the defendant in. October, 1887, for an accounting, in which he claimed that the defendant owed him $940, after liquidating his indebtedness to it;. and in this action he sought to have the defendant perpetually restrained from interfering with the personal property; the bill of sale cancelled, and a re-conveyance directed to him. A preliminary injunction order had been granted in the action, and a proceeding was then pending to punish the defendant for a contempt of court in violating it. There had been a long and bitter controversy between the parties and the defendant had repeatedly caused the arrest of the plaintiff upon criminal charges; which had invariably been dismissed as not sustained; and it is to be inferred from the evidence that there was then pending in some court an action brought by the plaintiff to recover damages for false imprisonment or malicious prosecution because of these groundless-criminal proceedings. As one of the considerations of the release by the plaintiff to the defendant, the latter cotemporaneously executed a like general release to the plaintiff.

The plaintiff also claims that a part of the consideration of his-release was the restoration to him of his store and personal property, and that he then had no knowledge that any of the property-had been injured, destroyed or' disposed of by the defendant. He had been forcibly evicted and kept out of possession of the store where the property was by the defendant’s agents, and while he had obtained judgment against them in a proceeding for forcible entry and detainer in the police court, they nod procured from the landlord the execution of a new lease to another employee, and he was thus prevented from entering upon the premises and ascertaining the condition of the personal property.' He-expected when he regained possession of it, upon the execution of the release, to find it all still in the store and in as good order as when the defendant unlawfully seized it

It is unnecessary to go further into the details of the voluminous proofs in the record, except to note that there is evidence which tends to show that the plaintiff did not intend to discharge the cause of action upon which this suit was brought, and that, the defendant’s officers and agents did not intend to include .it in the release; or, if they did, that they concealed such intention from the plaintiff, and also concealed from him the condition of' the personal property; and that the plaintiff understood that the release only embraced the actions then pending; and that the defendant knew that such was his understanding of its contents and effect. The trial court,_following the opinion of the general term upon a former appeal, 59 Hun, 186; 37 St. Rep., 189, charged-the jury that if the only subject of negotiation between the parties was the release by the plaintiff of his rights under the action-in the city court and hi's claim for false imprisonment, then the: general terms of the release would not be allowed to operate upon any right of action which was not covered by the particular clause and was not mentioned in the preliminary discussion that led up to the release. This proposition, we think, does not correctly state the law applicable to this branch of the case. What-, is here denominated “ the particular clause,” apparently has refence to the concluding paragraph of the instrument, which, as we have seen, is a declaration that the plaintiff shall not interfere with certain sales which had been made, or the collections on account of them.

It is undoubtedly true that the whole of a release must be eonisidered in construing its provisions, and, if it is general in its; terms, it may be controlled and limited in its effects by the limitation in the recital 2 Parsons on Cont., 6th ed., 714.

The rule is very clearly stated by the court in Jackson v. Stackhouse, 1 Cow., 126: “It is well settled that where there are general words alone in a deed of release they shall be taken most, strongly against the releasor; but where there is a particular recital, and then general words follow, the general words shall be qualified by the particular recital. ” The reason is obvious. The-recital is presumed to express the intention of the parties as to-the scope of the deed, and if other matters are intended to be included specific language must be used declaratory of such intent, There are no recitals or particular words in this release to which its application can be restricted. It would be difficult to make it, more general or sweeping in all its parts.

It is a comprehensive discharge of every liability of the defendant, by whatever name known, arising “ by reason of any matter, cause or thing whatsoever from the beginning of the world ” to the date of the instrument. The final clause with reference to the sales and collections is not properly a part of the release. It is more of the nature of a covenant to refrain from the doing of certain specified acts; and it is manifest that the parties never intended to restrict the effect of the writing in such a way as to entirely destroy its character as a release. To so construe it would render its most important provisions meaningless and inoperative. It would not even bar the plaintiff’s further prosecution of the suits in the city court and for false imprisonment, and he-concedes that they were intended to be included Nor was the-effect of the release necessarily limited to the subjects considered, in the preliminary discussion that led up to it. If the parties intentionally embraced in the instrument demands not previously suggested or all subsisting causes of action, when only certain of them had been discussed, it would be operative according to its terms, and unassailable. Releases and other deeds and written contracts do not differ in this respect. . All preliminary negotiations are presumed to be merged in them, and from the time of their execution they must be deemed to be the only competent, evidence of the agreement of the" parties upon the subjects to-which they relate, unless avoided for fraud, mistake, duress, or some like cause. In Parsons on Contracts the rule is stated to be (2 vol., 6th ed., 715): “If a plaintiff is met by a general release under his seal to the defendant, he cannot set up an exception by paroi. ” In the early case of Pierson v. Hooker, 3 Johns., 68, the release was “ of and from all debts and demands of every nature and kind whatsoever,” and evidence was offered and excluded at the trial to show that at the time of its execution it was not intended to include the demand in suit; and Chief Justice Kent held the ruling correct, saying, p. 70: “ The instrument is general and comprehensive, and expressly reaches to every debt and demand of every kind. To show by paroi proof that it was not so intended, is to contradict, or explain away the instrument, which is contrary to the established rule of law.” There is just here a wide difference between a receipt and a release, and whatever confusion there may be in the authorities upon this point has resulted from a failure to observe the distinction.

The trial judge upon the request of -the plaintiff, and, as he states, under the decision of the general term, also charged the jury that the release did not cut off the plaintiff’s right to recover for any injury to him or his property of which he did not know at the time he signed it For the same reasons we think this direction was erroneous. It is competent for a party by his own act to forego a recovery for unknown as well as known causes of action. Construing the language of a release, as we must, most strongly against the grantor, if words are used fairly importing a general discharge, their effect cannot be limited by the bare proof that the releasor had no knowledge of the existence of the demand in controversy. The operation of such ah instrument cannot be made to depend upon oral testimony as to the knowledge of the creditor when he executed it of the liability which he subsequently seeks to enforce. It might happen that he did not then know or recollect that his debtor owed him anything, and the writing, under such a construction, would be wholly inoperative, although many causes of action fnay have at the time actually existed.

' While there must be a reversal of the judgment, it does not follow that this release is conclusive, or unavoidable. It has been set up and proven as an affirmative defense, and the plaintiff, under § 522 of the Code, is to be deemed to have controverted the defense by traverse or avoidance, as the case may require, and he may have the benefit of whatever evidence he can produce, to sustain such traverse or avoidance. Meyer v. Lathrop, 73 N. Y., 315. If the plaintiff can show that by a mutual mistake of the parties, or by what is its equivalent, a mistake on his part and fraud on the part of his adversary, the present cause of action is embraced in the release, contrary to the intent of the parties, or contrary to his intent in case fraud is proven, he is entitled to an instruction to the jury to the effect that the release does not bar his right to recover.

Generally speaking, whatever proofs would be regarded as sufficient to enable the plaintiff to maintain an action for the reformation of the release, so as. to except from its provisions the demand in suit, would be available to him in this action by way of avoidance of its terms. There are numerous cases in this court determining when such an action will lie and what evidence is required to support it. Bryce v. Lorillard Ins. Co., 55 N. Y., 240; Maher v. Hibernia Ins. Co., 67 id., 283; Paine v. Jones, 75 id., 593; Kilmer v. Smith, 77 id., 226; Smith v. Truslow, 84 id., 661; Albany City Sav. Inst. v. Burdick, 87 id., 40.

Upon such an issue evidence of the preliminary negotiations of the parties, and of the ignorance of the plaintiff of the injury to his property, is important. The fraud of the defendant may have been purely passive. An intentional concealment by it© officers and agents of the purport of the instrument, or of the; destruction of or injury to plaintiff’s property which he was- seeking by means of the settlement and release to regain or an om.is-^ sion to inform him of his mistake, if they perceived that- he- was'.' in error as to its provisions, would be sufficient to estop- the defendant from insisting upon any advantage to be derived from the mistake of the plaintiff.

This is not the case of an attempted rescission of a contract upon the ground of fraud, and the plaintiff is not, therefore^, under any obligation to return what he has received, or to tender restoration. He is not seeking to disaffirm the agreement actually-made, but merely objecting to the application of the written evidence of it to a subject which the parties did not intend to include in it. Welles v. Yates, 44 N. Y., 531.

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

All concur.


source: Caselaw Access Project

author: Maynard, J.

license: Public Domain

text:
    The Mutual Life Insurance Co., Resp’t, v. Lina T. Corey et al., App’lts.

      (Court of Appeals,

      Filed October 4, 1892.)

    Deed—Acknowledgment—Estoppel.
    Where the owner executes and delivers a deed of real property containing upon it a certificate of his appearance before an officer authorized by law to take acknowledgments, at a place within his jurisdiction, and an acknowledgment of its execution, and the certificate is signed by the officer, he cannot subsequently allege the invalidity of the certificate, even upon a jurisdictional ground, for the purpose of impairing the estate of the grantee.
    Appeal from judgment of the supreme court, general term, fourth department, affirming a judgment in favor of plaintiff, entered upon the decision of the special term.

      John J. Van Allen, for app’lts; D. C. Robinson, for resp’t.

       Reversing 27 St. Rep., 608.

   Maynard, J.

Unless the plaintiff is free to impeach the defendant’s deed because it was never duly acknowledged, the judgment under review cannot stand. Both parties claim title, by purchase from the same grantor; the defendants by a conveyance executed and recorded in 1873; the plaintiff by a. mortgage given in 1877, and foreclosed in 1881. The defendants’ deed is upon its face perfect in every respect, and sufficient in form to convey an estate in fee in the lands described in it. The trial court has found that it was freely and voluntarily executed, and for a good, but not for a valuable consideration. It was drawn by an attorney and counsellor afc ■law, who was lawfully commissioned as a notary public in and for the county of Schuyler, where he resided. The grantor lived in the county of Tompkins, and while the precise location of his residence is immaterial, it a¡jpeared that it was but a few rods from the boundary line between the two counties, upon which his farm abutted. The deed was executed and acknowledged at his dwelling-house, in the county of Tompkins, before the attorney who drew it, who there filled out and signed ■ the certificate of acknowledgment. The venue of the certificate was laid in the county of Schuyler, and the ■county clerk of that county authenticated in due form the ■official character of the notary, and the deed was upon the day ■of -its execution recorded in the clerk’s office of the county of 'Tompkins, where it has ever since remained of record; or until the entry of judgment in this action. The defendants were minor children of the grantor, the eldest being twelve years of age at the time of the grant. Ho collusion between the grantees and the notary is proven or charged, and it is not shown that the grantor was the victim of any fraud, imposition or duress.

Upon these facts, we think it cannot be doubted that the plaintiffs grantor, by the act of execution and delivery of the ■deed, became" estopped from insisting, as against these defendants, that it was not duly acknowledged. It is. in form unassailable, and purports to be a literal compliance with the requirements of law to make it a valid grant of the entire title, and he could not be.permitted to say that it does not speak the truth, or that after its execution there still remained in him the power to grant the property to another, and thus defeat its •operation as a conveyance. If the acknowledgment out of the ■county of the notary’s residence was unauthorized, the plainest principles of justice would seem to require that the grantor should be debarred from subsequently asserting, to the prejudice •of the innocent grantees, that he co-operated with the officer to place upon the instrument a false certificate, which, if honestly done, was an error of judgment, and, if done with evil intent, a crime. The due acknowledgment of the instrument must be held to be beyond the reach of successful contradiction by him. He assumed to convey a title good as against subsequent purchasers and incumbrancers, and it is now sought to cut down the estate, so apparently conveyed, to a partial or modified grant, as it was termed in Chamberlain v. Spargur, 86 N. Y., 608, or, .adopting the descriptive words of the opinion in that case, to convert “ a perfect and duly executed grant ” into “ an imperfect and unattested one.” The grantor cannot in this way assail or destroy his grant. He is bound, as between him and his grantee, to uphold the verity of every material fact and admission contained in it. The rule is thus laid down in 2 Herman on Estoppel, 743, § 607: “ Where a conveyance sets forth the facts necessary to. render it valid, it is conclusive against the grantor, whatever may be its effect as between the grantee and third persons.” And, again (p. 749, § 613): “When a deed recites, the existence of facts which render it valid, unless contradicted, the recital may take effect as an estoppel.” Also (p. 718, § 585) : “He cannot object that it (his deed) is inoperative by reason of informality of execution."

Exceptions are allowed in favor of matters not affecting the estate granted, such as the consideration, the date, and the like; but even these are carefully guarded, so as not to let in paroi proof which will subvert, the grant It may be shown that the true consideration is not expressed, but not that there was no consideration,, if one is recited. The actual date of execution may be proven, although differing from the date named, unless the effect of the contradiction would be to vary the operation of the instrument, or defeat some right evidently intended to be conveyed, in which cases the recital of the date is conclusive.

We think it may, therefore, be safely affirmed as a general principle, that where the owner executes and delivers a deed of real property containing upon it. a certificate of his appearance before an officer authorized by law to take acknowledgments, at a place within his jurisdiction, and an acknowledgment of its execution, and the certificate is signed by the officer, he cannot subsequently allege the invalidity of the certificate, even upon a jurisdictional ground, for the purpose of impairing the estate of the grantee. It was virtually so held in the early case of Jackson v. Colden, 4 Cow., 266, where a mortgage was acknowledged before a Hew York commissioner in Vermont, but the venue was laid in this state, and the mortgage, recorded in the proper county and then assigned by the mortgagee. It was shown by the testimony of the commissioner that the acknowledgment was actually taken in Vermont, but the court say that both the mortgagor and mortgagee were estopped from claiming, as against the assignee of the mortgage, that it was not regularly acknowledged and recorded.

There are other cases holding that the 'certificate of acknowledgment is not conclusive; but when examined it will be found either that the question did not arise between the parties, but between the grantee and third persons, as in Jackson v. Humphrey, 1 Johns., 498; or that they .were cases where the grantor was incompetent to execute a deed, Jackson v. Schoonmaker, 4 Johns., 161; or was deceived by the grantee, Jackson v. Hayner, 12 id., 469; or the deed was not delivered. Jackson v. Perkins, 2 Wend., 308.

It might be different if the certificate disclosed that the notary was acting outside of his jurisdiction. But the deed in this case represents him as taking the acknowledgment in the county of Schuyler, where his right to act is unquestioned. Even in the case of an estoppel in pais .this would be a sufficient answer to the objection^ that a void act could not be rendered valid by estoppel. The distinction is very clearly pointed out by Judge , Finch in Veeder v. Mudgett, 95 N. Y., 295. Where under the law there is an entire lack of power to do the act in question, it cannot be made good by estoppel. But if the power to do the act existed, and there was a way in which it could be lawfully exercised, and it purports to have been done in a lawful way, a person who has induced another to act upon the assumption that it was, in fact, done in the manner in which it purported to have been done, may be estopped from questioning its validity. Thesecurity of titles to real property would be greatly imperilled if every grantor was at liberty to show that his deed had not, in fact, been acknowledged before the officer signing the certificate, or that such officer was not within his jurisdiction when the acknowledgment was taken, or that he was not the officer he is represented in the certificate to be. In some states the officer taking the acknowledgment is not a competent witness to prove facts impeaching his certificate. His exclusion as a witness is not upon the ground of any disqualifying statute, but from considerations of public policy. Central Bank v. Copeland, 18 Md., 305; Harkins v. Forsyth, 11 Leigh, 307.

In Lickmon v. Harding, 65 Ill., 505, the grantee brought ejectment against the grantor, who attempted to show that the certificate of acknowledgment was false and forged; and it was held insufficient to avoid the deed, Breese, J., saying: “The magistrate in taking the acknowledgment acted judicially. The duty is imposed upon him by the law of ascertaining the truth of the matters about which he is to certify. Parties act on the faith of his certificate, and, in the absence of fraud and collusion, it must be entitled to full credit,”

The plaintiff derives its claim of title to the property in dispute from the defendants’ grantor by a conveyance subsequently executed, and is concluded by the acts of its grantor which affect the character of the estate previously granted. 2 Herm. on Estoppel, 720; Goodrich v. Ogden, 4 Johns.,140 ; Bank v. Housman, 6 Paige, 526; Hill v Hill, 4 Barb., 419; Lane v. Nickerson, 17 Hun, 148; House v. McCormick, 57 N. Y., 310.

Where an estoppel relates to an interest in land it passes with the land, and an estoppel by deed creates what in law is termed a title by estoppel. 2 Herm., 712, 817, §§ 578, 685. All who are in privity of estate are bound equally with the original parties and the plaintiff takes nothing by its subsequent conveyance, because its grantor had divested himself of the power to make a further grant which would be effectual. It is evident the plaintiff did not rely upon the defective acknowledgment of the defendants’ deed in taking its mortgage. The record of the deed was constructive notice, and in this case undoubtedly constituted actual notice to the plaintiff that the title was in the defendants and that the mortgagor had no estate in the lands which he could encumber. It was, unquestionably, misled by the judgment record, which adjudged the defendants’ deed to be void because of the mental incapacity of the grantor at the time of its execution ; but which was subsequently set aside as to these defendants on account of jurisdictional defects appearing in the judgment roll. The hardship which the plaintiff encounters is, therefore, not due to any action on its part induced by a knowledge of the want of a sufficient acknowledgment of the defendants’ deed ; and as the provisions of the recording act apply in all such cases, it is not seen how the rule we have here applied can ever work injustice.

Section 936 of the Code, which declares that the certificate of acknowledgment of a conveyance is not conclusive and that it may be rebutted and the effect thereof contested by a party affected thereby, cannot be invoked to prevent the operation of an estoppel by deed. It merely prescribes a rule of evidence; while an estoppel by deed involves a rule of property. It cannot avail to destroy existing property rights, or to avoid the consequences of an act, subsequent to the acknowledgment, which is conclusive upon the grantor and forecloses all investigation into the truth of his representations.

It has been said that estoppels differ from evidence in this, that the former are received as conclusive and preclude all inquiry into the merits of the title, while evidence is merely the medium of establishing facts which do exist or have existed. 2 Herm., 712.

The judgment must be reversed and a new trial ordered, with costs to abide event.

All concur, except Finch, J., not voting, and Peckham, J., not sitting.


text:
    Maria Ten Eyck et al., App’lts, v. Catharine Whitbeck et al., Resp’ts.

      (Court of Appeals,

      Filed October 4, 1892.)

    1. Deed—Recording act.
    One T. in 1871 conveyed a farm worth $20,000 to his wife through an intermediary for a consideration of $100, the wife in 1883 conveying to plaintiffs. In 1877 T., being eighty-two years of age, conveyed the same farm to his daughter, the defendant, in consideration of ten dollars actually paid, and the payment annually by her of the net proceeds of the farm to himself during his life and after his death to his wife and other daughter in certain proportions during their respective lives. This deed was recorded in 1879, but the one first mentioned was not until 1883, and defendant had no notice of the prior deed. EM, that defendant was not a purchaser for a valuable consideration, and was not, therefore, within the protection of the recording act.
    2. Same—‘‘Valuable consideration.”
    A small sum, inserted in a deed and paid, will not of itself satisfy the terms of the statute, where it appears upon the face of the conveyance or by other competent evidence that it was not the actual consideration.
    Appeal from judgment of the. supreme court, general term, third department, affirming judgment in favor of defendants entered upon verdict of jury. .

      N. C. Moak and J. H. Clute, for app’lts; Matthew Hale, for resp’ts.

       Reversing 39 St. Rep., 634.

   Maynard, J.

The single question presented by this appeal relates to the rights of the parties under then recording act. The property in controversy is a farm in the town of Coeymans, concededly worth $20,000. Peter W. Ten Eyck is the common source of title. The plaintiffs claim under a deed prior in date ; the defendant Catharine Whitbeck under a deed prior in registry. The plaintiffs’ conveyance is declared by statute to be void as against the defendant, providing she was a purchaser in good faith and for a valuable consideration! In the sense that she had no notice of the existence of the prior deed, the bona fides of her purchase is not disputed. The issue is, therefore, narrowed to the question whether she was a purchaser for' a valuable consideration. The deed was executed July 7, 1877. The grantor was her father, and it recited a .consideration of ten dollars .and the annual payment to the lather during his lifetime of the entire net proceeds of the farm, and of one-third of such proceeds to his wife during her lifetime,, if she survived him, and of one-third thereof to ■ another daughter for the same period, and of one-half of such proceeds to her after the death of both parents. The grantee was given power to sell the property after the mother’s death, and, if sold, the use of one-half of the proceeds of sale should be paid to- the sister during her life ; but the principal should be managed and controlled by the defendant. It was proved that ten dollars in money was actually paid by her to her father at the time of the execution of the deed. Peter Ten Eyck’s family then consisted of his wife and two daughters, who lived with him upon the farm, except the defendant, Mrs. Whitbeck, who lived with her husband upon another farm in the. same town. Immediate possession was not taken by her under her deed, but her father, with the rest of the family, continued to reside upon the farm and, -by himself and tenants, to manage and control it, until his death in 1883; after which it was in the same manner occupied by the mother and unmarried daughter until the death of the mother in 1885. In September, 1871, Ten Eyck, through an intermediate grantee, conveyed this property to his wife, who, in January, 1883, conveyed it to the plaintiffs. The defendant’s deed was recorded December ■5, 1879 ; but Mrs. Ten Eyck’s deed, under which the plaintiffs •claim, was not recorded until February 21, 1883.

After Mrs. Ten Eyck’s death the defendanttook possession and the plaintiffs brought this action in ejectment. The defendant challenged the validity of the plaintiffs’ title, upon the ground of the mental incompetency of Mr. Ten Eyck, and the undue influence of his wife over him when the deed to her was executed, and cf its alleged non-delivery, as well as the non-delivery of the deed from Mrs. Ten Eyck to the plaintiffs; and upon the further .ground that Mrs. Ten Eyck’s deed was void as to the defendant under the recording act.

The' trial court held that0 the defendant was not a purchaser for valuable consideration, and was not, therefore, within the protection of the statute; but submitted to the jury the question whether the deeds under which plaintiffs claimed had ever been delivered, and whether Peter W. Ten Eyck was of sound mind and free from undue influence when he executed the conveyance to his wife. The verdict was for the defendant, and the general term intimate very plainly that, in their opinion, it was not supportéd by the evidence, and that they would have set it aside were it not for the decision of the general term in the fifth department in the case of Hendy v. Smith, 49 Hun, 510; 18 St. Rep., 836, which holds that a grantee for a consideration of one dollar paid is a purchaser for a valuable consideration, as the terms are used in the recording act. They ■ felt constrained to regard this authority as controlling, and to hold, as matter of law, that the -defendant had a superior title because of the prior record of her deed, and that the verdict and judgment were, therefore, right The order of affirmance states that but for the recording acts the judgment appealed from would have been reversed.

From the relationship of the parties; the recitals in the defendant’s deed and the circumstances attending its execution, as dis■closed by the evidence, it is, we think, apparent that she cannot be regarded as a purchaser for a valuable consideration, so as to avoid the effect of the plaintiffs’ prior conveyance. While every legal mode of acquisition of real property, except by descent, is denominated in law a purchase, and the person who thus acquires it is a purchaser, it is evident that the word is used in this statute in a much more limited sense. It is there applied only to such grants of real estate as are obtained for money, or some other valuable consideration. It denotes a buyer of property and has reference to one of the actors in a transaction of bargain and sale, which is presumably controlled by commercial considerations.

We think it would be a perversion of language to say that a father, who had conveyed to a daughter property of the value of $20,000 for no greater sum than ten dollars paid, had sold the property to his child, or that she had bought it of him. The transfer would be recognized by the popular, as well as the judicial mind, as possessing all the essential qualities of a gift. It has been frequently so held. In Hayes v. Kershow, 1 Sandf. Ch., 265, the consideration recited in the deed was one dollar paid and love and affection, and the vice-chancellor said that this nominal sum was not such a valuable consideration as would support a bargain and sale.

In Duvol v. Wilson Ex’rs, 9 Barb., 487, the conveyance was to the grandchildren of the grantor, and recited a consideration of five dollars paid; and it was held that it was not sufficient to support a covenant to stand seized.

In Morris v. Ward, 36 N. Y., 587, the conveyance was to a granddaughter and recited a consideration of one dollar paid and natural love and affection; and this court held that it was an advancement and not a sale; and that the grantee took as donee and not as purchaser; and that it was competent, when the whole instrument shows the money consideration to have been intended as nominal merely, to give effect to such proof, and to the intention which it indicates.

It is true that in these cases it was assumed, or conceded, that the nominal money consideration expressed had not been actually paid; but we do not understand that any emphasis was placed ■upon that fact. The decision in each case seems to have been put upon the ground' that the nominal was not the real consideration.

In the case before us every feature of the transaction is indicative of a gift. The grantor was eighty-two years of age and the grantee was his eldest daughter. He was evidently conscious that the end oi his life was near and desired to make some final disposition of his real property for the benefit of his family through the medium of this daughter, in whom, for. the time being, he seems to have had especial confidence.

If in the full possession of his mental faculties, he must have known that he had previously conveyed the property to his wife. Apparently there was a struggle between the different members of his household for the possession and control of the farm, which destroyed that quietude and repose so grateful to old age. He may have thought that in this way he could appease both- factians, trusting that each might remain in ignorance of the status-of the other until he died ; when the result of the complications which he had created would be a matter of indifference to him. But we need not speculate as to his motives. Wc must deal with the fact of the execution of the later deed as we find it on the record, and the extent and quality of its consideration, as shown by the proofs. It is plain that the real consideration, which the grantor had in mind when he made the conveyance, was not the receipt of an insignificant sum of money, but the provision which he was thereby making for the benefit of the different persons who composed his family, and all of whom had just claims upon his bounty. By its terms no one in fact would enjoy the use of the property until after his death, for he reserved to himself the entire net rents and prtifits during his lifetime. The instrument was, therefore, most emphatically of the character, and intended to take the place, of the usual testamentary distribution of a decedent’s property.

So far as the cases of Webster v. Van Steenburgh, 46 Barb., 211, and Hendy v. Smith, supra, hold a contrary doctrine, they do not have our approval.

On the other hand, the cases of Fullenwider v. Roberts, 4 Dev. & Bat., 278; Worthy v. Caddell, 76 N. C., 82 ; Tipton v. Bassett, Cro. Eliz, 445; Doe v. Routledge, Cowp., 705, and Metcalf v. Pulvertoft, 1 Ves. & Bea., 183, so far as they hold that a purely nominal consideration is insufficient to protect the subsequent pur-. chaser, are in harmony with the views we have expressed. We deem. it unnecessary to undertake to determine here what degree of adequacy of price is required to uphold a subsequent deed first recorded. Upon this branch of the case we have no occasion to go, farther than to hold that-a small sum, inserted and paid, perhaps, because of a popular belief that some slight money consideration is necessary to render the deed valid, will not of itself satisfy the terms of the statute, where it appears upon the face of the conveyance or by other competent evidence that it was not the actual consideration. Where the subsequent conveyance is a mortgage, and only part of the consideration paid, there can be but little difficulty in properly adjusting the equities of the parties, for the mortgagee can then be considered as a bona fide purchaser pro tanto, and the mortgage enforced to the extent to which he has parted with value upon the faith of it Merritt v. Northern R. R. Co., 12 Barb., 605 ; Pickett v. Barron, 29 id., 505; Williams v. Smith, 2 Hill, 301; Stalker v. McDonald, 6 id., 96 ; Peabody v. Fenton, 3 Barb. Ch., 451. But iu case of a deed having a mixed consideration, that is, partly valuable and partly good, such a rule would be difficult of application, if not impracticable, and no case has been cited where the question has arisen in that form. There is an obiter remark by Judge Hand in Merritt v. Northern R. R. Co. that such a grantee may be considered a purchaser for value as to the entire title. The point, however, is not involved in a case like the present, where the money consideration is purely nominal or infinitesimal in amount when compared with the value of the property granted, and is shown not to have been the real inducement of the grant.

It is proper to observe here that the good faith of a purchaser may be seriously impaired, if not destroyed, by the inadequacy of the- price at which the property is offered by a person claiming to be its owner. If the sum which the seller is willing to take is grossly disproportionate to the value of the thing which is the subject of the negotiation, it is strong proof of a defective title and sufficient to put a prudent man upon inquiry, and if the buyer neglects to diligently prosecute "such inquiry, he may not be awarded the standing of a bona fide purchaser. It may be said that this rule would not hold good where the relation of parent and child exists, because of the natural and laudable desire of the former to share his worldly possessions with the latter, which is merely equivalent to saying that the actual consideration in such cases is not a pecuniary one.

It is strenuously urged by counsel that the considerations expressed in defendant’s deed, other than money, are sufficient to invest her with the title of a purchaser for value. It is not important to determine how these provisions should be construed.; whether as reservations out of the property granted, or as creating n trust for the benefit of the grantor and others, or as implied covenants on the part of the grantee to annually account for the net income of the property in the manner specified. Unquestionably, as between the parties, the defendant by the acceptance of the deed became bound to observe its conditions and to render to the beneficiaries named their respective shares of the net rents and profits of the farm. But this was simply an obligation to account for the use of the property which was the subject of the grant, and while it might be a good consideration for the conveyance, it was in no respect a valuable consideration as that term has been judicially defined. If, for any cause, the grant itself becomes nugatory, the covenant ceases to be operative. In order to give effect to the promise, effect must be given to the deed; and if the defendant is deprived of the land, she is relieved from the obligation which she assumed on the faith of the grant Dunning v. Leavitt, 85 N. Y., 30; Rice v. Goddard, 14 Pick., 293.

There is a wide distinction between a good and a valuable consideration, when the latter term is used in the statutes defining the rights of a subsequent purchaser. Blood, love and affection, future support, a precedent indebtedness, and the like, are, either of them, sufficient as a consideration between the parties; but neither is potential enough to override the prior equities of others in the property conveyed. The phrase “ a purchaser in good faith and for a valuable consideration" is not peculiar to the recording act, but' is one of frequent occurrence in the statutes. It can be' found in the chapter on trusts, 4 R. S., 8th ed., 2437, §§ 51, 54; on powers, id. 2451, § 132; on conveyances, id. 2452, § 144; and on frauds, id. 2593, § 5. It is an expression which has been borrowed from the language of courts of equity, and should be interpreted in the sense in which it is there understood. As pointed out by Chancellor Walworth in Dickerson v. Tillinghast, 4 Paige, 215, it has a curious and instructive history in connection with its introduction into the recording act. The English registry law made the prior unrecorded deed wholly void as against the .subsequent grantee, without reference to the question of notice, or the payment of value. Immediately the court of chancery, with characteristic diligence, sought to relieve the earlier grantee from the hardship which the enforcement of the letter of the law might inflict, and, while respecting the command of the statute, which made his deed void at law, it invested him with an equitable title, which it declared should prevail over the legal title of the subsequent purchasér, if it appeared that he had notice of its existence, or did. not part with value at the time of the purchase.

This rule of judicial construction was incorporated by the legislature hito the lex scripta in almost the identical words in which it had been phrased by courts of equity. A valuable consideration has been defined by writers upon equity jurisprudence as something “ which the law esteems as an equivalent given for the grant, and it is therefore founded on motives of justice." 1 Story Eq. Jur., 10th ed., § 354. If the subsequent grantee does not give up any security, or divest himself of any right, or place himself in a worse situation than he would have been if he had received notice of the prior equitable title or lien previous to his purchase, he will not be permitted to retain the legal title to the injury of the prior grantee.

Or, as it was tersely stated by Allen, J., in Weaver v. Barden, 49 N. Y., 291, a purchaser for a valuable consideration is a purchaser “for value paid.” This limited application of the term is entirely consistent with the purpose of the recording act, which was declared by the chancellor in Dickerson v. Tillinghast to be the protection of those “who should part with their money, property, securities, or other valuable rights, upon the faith of a conveyance, or mortgage of real estate, supposing they were getting a good title thereto,- or a legal or specific lien thereon, without notice, or having any reason to believe that there was any previous mortgage or conveyance which could defeat such title or lien."

If the rejection of the later conveyance will leave the grantee in the same position with respect to his property rights as he occupied before its execution and acceptance, he cannot be permitted to aid, however innocently, the fraudulent grantor in his effort to defeat a prior conveyance by him of the same lands. Where the grantee parts with nothing of substantial value, he must be satisfied if he receives nothing because his grantor had nothing which he could honestly convey. The considerations,, other than money, upon which the defendant relies, when submitted to this equitable test, fall far short of satisfying its requirements. If her deed is adjudged void, she has not lost or sacrificed anything which she possessed when it was executed, nor become-encumbered with qny promise or obligation which will result _ in a future loss or sacrifice. She has, therefore, failed to establish, her title as a purchaser for a valuable consideration.

Whether there was sufficient evidence to go to the jury upon the issue of fraud and undue influence in the execution of the-deeds under which the plaintiffs claim, or of their non-delivery,, we cannot now consider. The general term has not yet passed upon that question.

The order appealed from must be reversed and the case remitted to the general term for a review upon the facts, with costs to abide the event of the action.

All concur.


author:
Landon, J.
      Haight, J.

text:
    Alfred Eldridge, Resp’t, v. The Atlas Steamship Co., App’lt.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Master and Servant—Negligence—Seamen.
    Plaintiff, a seaman on shipboard, was ordered to operate a diagonal old' fashioned steam winch which he did not observe before the vessel sailed, the wheels of which were uncovered, and in obeying orders crushed his hand. The noise caused by the machine was so great that orders could not be heard, and plaintiff was obliged to take Ms orders from motions of the officer's hand. There were two other winches of improved pattern, and with the wheels covered. Plaintiff’s testimony was to the effect that he had to reach over the wheels to take hold of the lever; while defendant’s-testimony was that he might have reached around. Held, that while plaintiff knew that the winch could not be operated without risk of danger to himself, he was constrained to obey the order given him by his-superior, because he knew that disobedience would result in his punishment, and the question as to whether he was guilty of negligence was for' the jury.
    (Pollett, Oh. J., Haight and Parker, JJ., dissent.)
    Appeal from a judgment of the general term of the supreme-court, affirming a judgment in favor of plaintiff for $3,700.
    Action, negligence, in that plaintiff, a sailor in the employ of defendant upon its ship, while in obedience to orders he was operating its winch, an alleged unsafe machine, had his hand caught, in the cog wheels thereof and the ends of four fingers taken off.
    November 9, 1886, plaintiff at New York engaged as an able-bodied seaman to serve on board defendant’s ship, the Alvena. The defendant is a British corporation, but it was not shown under what flag the ship sailed. The plaintiff had not served upon that ship before. The ship had three winches, two horizontal, one-No. 3, diagonal. The cog wheels of the horizontal winches were covered, those of the diagonal, No. 3, were without cover. No. 3-was an old fashioned winch ; the other two of modern constructian. Plaintiff did not observe No. 3 before he went to duty November 10th, on which day the ship sailed from New York for Kingston, Jamaica. At Kingston the ship proceeded to Aspinwall, and there was hauled alongside defendant’s ship Athos; some >of the cargo of the Athos was then transferred to the Alvena. Plaintiff was ordered to operate winch No. 3„ in transfening the ■cargo. He had to stand between the winch and the house of the ship, a space eighteen inches wide.'' He, bad to operate a valve with his right hand so as to let the steam on or shut it off as ordered by his superior, and to operate a lever with his left hand so .as to revolve the drum forward, or backward as ordered. There was so much noise that these orders were given by signals by the ■officer. Thus, the officer raised his hand as the order to go forward, moved it down to go backward, opened it wide to stop, and twirled it round fast, to go fast, etc. The officer was on the right of the front of the plaintiff. The valve to be moved by plaintiff’s left hand was about as high as his knee, and was at the end of the winch near its middle. The lever to be moved by his left hand was on the outside of the side of the winch. The plaintiff’s testimony was to the effect that he had to reach over the big .and small cog wheels to take hold of the lever. The defendant’s ■testimony was to the effect that he might have reached around the winch and seized the lever without passing his hand over the cog ^wheels. The size of the winch is not given.
    While watching for orders and at the same time obeying them, the plaintiff’s fingers, in grasping for the lever, came in contact with the cog wheels and were crushed. His contention is, if these wheels had been covered as the wheels of the other winches were, Iris fingers would have been protected. Defendant gave testimony fending to show that the winch was safe enough if plaintiff had been reasonably careful. The trial court charged the jury that if plaintiff entered defendant’s service knowing that this winch had no cover he could not recover upon that ground, and if his own negligence in any way contributed to bis injury he could not recover.
    The court also charged that plaintiff was bound to obey all lawful orders of the defendant’s officers and for a refusal would have forfeited his wages or been punished. Testimony was given to this effect.
    The court also charged that if this accident had happened on land, plaintiff not working as a sailor, he could not recover, but left it for the jury to say whether in view of the plaintiff’s duty .as a sailor he was guilty of negligence.

      E. P. Wheeler, for app’lt; Jacob Fromme, for resp’t.

       Affirming 33 St. Rep., Í016.

   Landon, J.

In view of the verdict and the instructions of the -trial court, we assume that the plaintiff knew that the winch ■could not be operated without risk of danger to himself, but was •constrained to obey the order given him by his superior to operate it, because he knew that disobedience would result-in his punishment ; that he therefore did operate it andDbecause of its known defects of construction was injured notwithstanding his exercise of reasonable care to avoid injury.

The defendant insists that the command to operate this dangerous winch was not lawful, and therefore plaintiff might rightfully have refused obedience. If it be conceded that the command was unlawful it does not necessarily follow that plaintiff’s obedience was negligence. For whether the command was lawful or unlawful,, the evidence is to the effect that his disobedience would have resulted in his punishment.

The boatswain, under whose orders plaintiff was operating the winch, testified that the plaintiff “ was bound to obey the order that I gave him; if he did not obey the order he would have been put in irons and fined.” Grant that the plaintiff had been so learned in the law as to know that the courts would ultimately decide that the command was unlawful, and disobedience to it lawful, he could'know no way of escape from the ship’s punishment of his disobedience, for there was none. The jury found, in effect, that he was coerced through fear of punishment into obedience. If the command was unlawful the- defendant’s case is not improved by the fact that the punishment it would visit upon disobedience was also unlawful. In any event the plaintiff was in a dilemma. He had to choose between present punishment with a possible hope of remote justification, and customary obedience to orders with the hope that by care he would escape injury. Grant that he made a mistake in judgment under these difficult conditions, the law does not adjudge it to be negligence,, and the jury, upon consideration, have refused to dó so. We cannot hold that their refusal was error.

Except as the case is affected by the dangerous condition of the winch the order to operate it was lawful, and the plaintiff’s obedience was the duty of his service. Whatever may be the practical administration of law or of arbitrary power on shipboard, the plaintiff, if amenable to- the law of the United States, was also punishable by our courts for wilful disobedience to any lawful command. Section 4596, U. S. R. S., provides: “ Whenever any seaman who has been lawfully engaged * * * commits-any of the following offences, be shall be punishable as follows: Fourth. For wilful disobedience to any lawful command, by imprisonment for not more than two months, and, also, at the discretion of the court, by forfeiture out of his wages of not more than-four days pay.”

Thus, the plaintiff had to choose whether he would obey the order, or take the hazard of liability under the statute. Whatever may have been the law of the flag of the ship, or of the-United States of Colombia, in whose port the injury was received, it was not shown, and hence the parties in our forum must accept the law as we administer it. The Scotland, 105 U. S., 24.

In this view of the case, if the plaintiff made a mistake in judgment, the defendant could rightfully ask no more than that the jury should pass upon the facts.

We find no error of law requiring a reversal

Judgment affirmed, with costs.

Haight, J.

(dissenting).—This action was brought to recover «damages ior-a personal injury.

On the 9th day of November, 1886, the plaintiff, at the city of New York, engaged as an able-bodied seaman to serve on board ■defendant’s ship “ Alvena.” The ship had three winches for the ^purpose of lowering into and hoisting freight from the hold of the "vessel. Two were known as horizontal and the other as diagonal winches. The cog wheels of the two former were covered, whilst •those of the latter were open and old-fashioned. On the 10th day of November thereafter the'vessel sailedofor Kingston, Jamaica, at which place it arrived in due time and the plaintiff there worked •the latter winch for a while. From Kingston the ship proceeded to Aspinwall, and the plaintiff was again ordered to operate the same winch in transferring the cargo. In doing so he had to turn a, valve with his right hand so as to let on or shut off the steam, and to operate a lever with his left hand so as to move the drum forward or backward, as directed by the officer in charge. These -directions were given by means of signals made with the hand, and whilst the plaintiff was looking at the officer for signals he attempted to pass his hand over the cog wheels of the winch to the lever, and in doing so his fingers were caught between the wheels and he received the injury for which this action was ■brought

Upon the trial, after the plaintiff- rested, and again at the close the evidence, the defendant moved for a dismissal of the complaint upon the grounds that there was no evidence of negligence on the part of the defendant; that the injury resulted from a risk assumed by the plaintiff as an incident of his employment, and that he was guilty of contributory negligence. The motion was ■denied and an exception was taken.

The defendant’s counsel then requested the court to charge the jury that “ An employee, in accepting service with a knowledge -of the character and position of the machinery, the dangers of which are apparent, and from which he might be liable to receive injury, assumes the risks incident to such employment and cannot Teco ver for any injuries resulting therefrom.”

The court so charged, subject to the qualifications which he had .already made- in his charge as to the peculiar position of the plaintiff on the vessel, and that the rule of law embraced in the request is only applicable to ordinary cases where the plaintiff is entirely free to work or not to work. The charge already made was: “That the rule which ordinarily would be applicable to a case of this ■character if it occurred on land did not apply on ship-board, and for this reason, that under the maritime law, which was applicable to the owners of this ship, any seaman who shipped on board was subject to the lawful commands of his superior officers; that if he were directed, as it was shown that he was in this case, to work this winch, it could not be said that it was something that he did voluntarily ; that it was to be considered there was a species of •coercion about it, and that he had no option but to operate the winch when he was directed to do so, and that, therefore, it could mot be considered thát he was guilty of contributory negligence -which would defeat his action, merely because he went to work upon a machine which was obviously dangerous to operate.” An exception was taken by the defendant to the qualification made by the court.

It is now claimed that the defendant is liable for the reason that it had furnished no cover for the wheels of the winch, and that the plaintiff is not chargeable with contributory negligence for the reason that he was a sailor upon the high seas and was obliged to obey the orders of his superior officer. There is no claim that the winch was out of repair. It was an open, visible structure upon the deck of the vessel and the cog wheels were in plain sight. It had been in use many years and no similar accident is reported. The plaintiff had been a sailor for many years, was familiar with the use of winches, had used this one at Kingston, but was accustomed to the use of those with covers.

The rule is well stated in Sweeney v. Berlin & Jones Envelope Co., 101 N. Y., 520, where it was held that a servant accepts the service subject to the risks incident to it; and where he enters into the employment when the machinery and implements used in the master’s business are of a certain kind or condition, and the servant knows it, he voluntarily takes the risk resulting from their use, and can make no claim upon the master to furnish other or different safeguards. That a master may carry on his business with an old machine not provided with all the safeguards attached to new machines; that he may discharge a servant employed to run it who refuses to perform his stipulated service, and a threat to do so is not coercion which will make the master liable for inj uries to the servant resulting from the use of the machine.

In that case the plaintiff was operating an embossing machine in a printing office. The process required that the plate and die should coincide. To effect that he necessarily placed his hands between them, but before doing so, he put his foot upon the pedal and stopped the press. All of a sudden the cam came around and jolted harder than usual, causing his foot to slip from the pedal. The machine started and his hand was crushed. It was claimed that the defendant was guilty of negligence in not providing a clutch other than the pedal to prevent motion in the machine while the operator’s hands were exposed to danger. It was held, however, that the plaintiff could not recover.

In the case of Appel v. T he Buffalo, New York & Philadelphia Railway Co., 111 N. Y., 550; 20 St. Rep., 90, the plaintiff’s intestate was a switchman employed in the defendant’s yards, helping to make up and distribute trains. While so engaged his foot was caught in a frog which connected two converging tracks and he was run over and killed. It was claimed that the defendant was negligent for the reason that it had failed to place blocks in the ■openings of the frogs which would prevent such accidents. It appeared that blocks were in use by other roads for the purpose c£ preventing similar accidents, but, notwithstanding, it was held that in accepting and continuing in the employment, he assumed the hazard and that the plaintiff could not recover.

And to the same effect is Hickey v. Taaffe, 105 N. Y., 26; 6 St., Rep., 426; DeForest v. Jewett, 88 N. Y., 264; White v. Witleman Lithographic Co., 43 St. Rep., 312.

The winch would have been safer had a covering been placed over the wheels. After an accident has occurred it is often easy to discover means that would have prevented it. But the plaintiff knew that there was no cover and the consequences that would result from the placing of his hand between the wheels. If operated with care the machine was reasonably safe, and if so, under the rule to which we have called attention, the defendant did not become liable by reason of its failure to furnish an additional, safeguard in the form of a cover.

But again, the plaintiff was reaching for the lever over the cogwheels. He did this without looking. A glance of an instant would have disclosed the position of the wheels and enabled him to have reached the lever in safety. Instead of looking, he thoughtlessly extended his arm toward the lever, and in doing so, placed his fingers between the cogs of the revolving wheels. In this he was negligent. To hold masters liable under such circumstances would practically make them insurers against accidents.to their employees. In our large factories and machine shops hundreds of machines are to be found with wheels open to view and to touch. Persons employed to operate them are required to exercise ordinary care, and hitherto it has not been understood to be necessary that the wheels should be covered so as to prevent them from thoughtlessly placing their fingers between the wheels.

But it is claimed that the ordinary rule has no application in this case, for the reason that the injury occurred on shipboard; that the plaintiff, having been commanded by his superior officer to operate the winch, was under coercion, and had no right to refuse. But it does not appear to us that this question is presented by- the evidence.

Under the maritime law the master has absolute authority on board of bis ship, and his orders, if lawful, must be obeyed by the common seamen. The master, however, has no right to require a seaman to operate a dangerous machine.

If, as we have shown, the machine was reasonably safe if operated with care, the master had the right to require the plaintiff to operate it, and it was his duty to observe the care necessary to prevent the injury.

But assuming that the machine was dangerous, there were no threats made by the master, or evidence given tending to show coercion. The usual order was given to the plaintiff to operate-the winch. He made no objection or complaint in reference thereto. He was in port, and could have left the vessel and sought the protection of the consul if the orders of the master were unlawful.

Coercion must be established by the evidence. The bare fact that he was told to operate the winch does not establish an intent, to unlawfully interfere with him, and we cannot from that fact alone assume that he would have been unlawfully punished had he refused to obey the order.

In the case of Thompson v. Hermann, 47 Wis., 602, the plaintiff was ordered by the master to adjust a gaff which had been unshipped, by standing upon the lower boom and pulling upon the bow line fastened to one of the horns of the jaw of the gaff .and which was liable to slip from the horn, which was smooth and slippery, and cause the plaintiff to fall from the boom to the deck below. The plaintiff, thinking it unsafe and dangerous to obey such an order, objected and protested against the same and informed the master that thé main gaff could be adjusted by means of a tackle there at hand and with safety to all concerned. But the master refused to adopt such precautionary means and imperatively ordered the work to be done in the manner direfeted by him. The plaintiff thereupon undertook the task and was in the careful discharge of his duty in obedience to the order when the line slipped from the horn of the jaw, causing the plaintiff to fall from the boom and receive the injuries for which the action was brought. It was found as a fact that the master was grossly negligent in not adopting the safe and proper means suggested by the plaintiff. It was held that the plaintiff could recover. But in that case the seaman objected and protested against. the improper order of the master. He was, however, imperatively ordered to do the work in the manner directed. Here was evidence of coercion, and no contributory negligence, clearly distinguishing the case from the one we have under consideration.

It consequently appears to me that the exceptions to which we have called attention were well taken, and that the judgment should be reversed and a new trial ordered, with costs to abide the event.

Judgment affirmed, with costs.

All concur, except Follett, Ch. J., Haight and Parker, JJ., dissenting.