text:
    ALFRED B. CHAPIN, as Receiver, etc., Appellant, v. JOSEPH THOMPSON, Respondent.

      Bond of indemnity — Statute of limitations — Costs.

    More than six years after the cause thereof arose, an action was brought against the plaintiff herein, to recover the rent of certain premises which had been occupied by him as receiver. Against such an action the defendant had, by a bond of indemnity, covenanted to save and keep the plaintiff harmless. The plaintiff, although requested by the defendant to do so, refused to interpose to such action the defense of the statute of limitations, or allow the defendant to do so, but suffered judgment to be taken against him for the amount claimed.
    In this action, brought upon such bond, to recover from the defendant the amount of such judgment, held, that the defense of the statute of limitations stood upon the same footing with other legal defenses, and was to be treated with the same respect, and given the same favor and consideration, as common-law defenses; that it was the plaintiff’s duty to have set up such defense to the action brought against him, or to have suffered the defendant to do so, and that, having refused to do either, he was not entitled to recover in this action; that the plaintiff was properly charged personally with the costs therein.
    As between the obligee and obligor, in a bond of general indemnity against claims or suits, a judgment against the obligee is only 'prima fade evidence; and in a suit upon such obligation, the obligor may show collusion between the plaintiff and defendant in the original action, or that his principal had a good defense to such action, which he neglected or refused to interpose.
    Appeal from a judgment entered on the report of a referee, dismissing the complaint, with costs, and also from an order of the Special Term charging such costs personally on the plaintiff. The appeal from the judgment was presented upon exceptions only.

      Magone & Holbrook, for the appellant.
    The statute of limitations was a personal defense, which the plaintiff herein had a legal right to interpose as a shield; if he should so elect, but he was not either in law, morals, or good conscience bound to interpose it as a sword, by which an honest and lawful contract entered into by him, for which he had received value, which was justly owing by him, and which he knew he had never paid, might be defeated, because the defendant did not wish to pay according to the terms of his agreement. The statute only affected the remedy —it did not destroy the debt. The plaintiff herein stood in no such relations to the obligors in the bond, as made it his duty, at their request, to interpose a defense to a recovery in the action which was only personal to himself. The obligors in the bond did not stand in the relation of guarantors or sureties for the plaintiff herein, in his agreement to pay the rent. The bond given was to the plaintiff herein, and not to E. J. Chapin, and was not one of indemnity merely to the plaintiff for rent, but on the contrary was an agreement in the form of a bond, in which they promised to hold the plaintiff harmless against all claims, etc., which the plaintiff herein might become liable for, and for all contracts made by him in taking and holding possession of the property of the judgment debtor and the premises in which such property was situate. There was nothing in the bond that required notice to be given by the plaintiff herein to the obligors in the event of any suit being brought against him. The plaintiff herein did, however, give notice to Thompson, and expressed a readiness himself to set up any defense there might be to the action, except the statute of limitations, or to allow Thompson to do so with the above exception. The case of Bridgeport Insurance Company v. Wilson and others (34 N. Y., 275) is relied upon as an authority for the view of the law taken by the referee in the decision of the case at bar. An examination of the case above cited will disclose the fact, that the bond given in that case covenanted to indemnify against a certain claim of parties therein named and all suits to enforce it — where the obligors made their liability to depend on the result of the litigation. The case of Annett, Admr., etc., v. Terry (35 N. Y., 256) was upon the bond of an administrator, where the sureties’ liability depended upon the failure of their principal to discharge his trust. Binsse and another, Executor, v. Wood (37 N. Y., 526) was a question of the liability of a surety upon an agreement for the lease of certain premises by his principal. The liability of the obligors in the bond given and referred to in the suit at bar, was not in the nature of, or analogous with a bond given to depend on the result of a suit, or that of an administrator or receiver; but was an agreement that if the plaintiff herein would, as such receiver, take and hold possession of the property of the judgment debtor, and the premises in which it was situate, and sell the same, they would save him harmless from all costs, charges, etc., by reason thereof.

      E. C. James, for the respondent.
   James, J.:

The action was upon a bond made by defendant, under seal, covenanting to save and keep harmless and indemnify said plaintiff, as receiver, from all damages, suits, judgments and executions, etc. The findings of the referee are acquiesced in by both parties, as stating correctly the facts; and the referee finds, that plaintiff was receiver, as set forth in the complaint; that such bond was made and delivered; that afterward the plaintiff herein, as receiver, at the request of the defendant, took possession of certain hotel property, and used the same four months and ’ twenty-six days, under one Edward J. Chapin, agreeing to pay at the rate of §655 per year; that said rent was not paid; that on the 27th of December, 1871, more than six years after said rent became due and payable, an action for the recovery thereof was commenced in the Supreme Court by said Edward J. against the plaintiff herein for the recovery thereof, and notice of the pendency of the action was given by the said Alfred B. Chapin to said Joseph Thompson, the defendant herein; that said Thompson then offered to take upon himself the defense of said action, and to retain and employ an attorney to defend the same; that the plaintiff herein refused to allow said Thompson to defend said action, unless he would agree not to interpose as a defense thereto the statute of limitations; that said Thompson refused so to agree, and insisted that the statute of limitations should -be interposed and set up as defense to said action, which said Alfred B. Chapin declined and refused to have done; and Thompson, the defendant herein, presented a petition in said action to the Supreme Court, and obtained an order therein requiring the said plaintiff and the said defendant therein to show cause before said court why said Thompson should not be allowed to defend said action; and upon the hearing of said petition, both the plaintiff and defendant therein appeared by their respective counsel, and opposed the granting of an order allowing said Thompson to defend said action; and thereupon an order was made therein denying the prayer of said petition, and said action was not defended. On the 25th day of April, 1872, the said Edward J. Chapin recovered a judgment in said action against the. said Alfred B. Chapin, for $459.95 damages, and $27.09 costs, etc., which judgment has been paid by said Alfred B.; that at the time said action was commenced, the claim which it was brought to recover was barred by the statute of limitations. And the referee held, as conclusions of law, that it was the duty of the plaintiff in this action, upon the request of the defendant, Thompson, to have interposed, or have suffered said Thompson to interpose, the statute of limitations as a defense to the action brought by said Edward J. Chapin against said Alfred B. Chapin for the recovery of said rent; that having neglected so to do, and having refused to allow said Thompson so to do, upon being by him thereto requested, the plaintiff herein was not entitled to recover against said Thompson upon said bond; that the defendant herein was entitled to judgment, dismissing plaintiff’s complaint, with costs, and judgment was ordered accordingly.

There can be no question as to the proper disposition of this case by the referee. It is now settled law in this State, that statutory defenses, such as the statute of limitations, usury, etc., stand upon the same footing with other legal defenses, and are to be treated by the courts with the same respect, and given the same favor and consideration, as common-law defenses.

As between the principal and indemnitor, in a case of general indemnity against claims or suits, the judgment against the obligee is onIjprima facie evidence; and in a suit upon such obligation, the indemnitor may show that his principal had a good defense to the original action, which he neglected or refused to interpose, or collusion between the plaintiff and defendant in such action, and if either are established it will defeat a recovery. (Bridgford Ins. Co. v. Wilson, 34 N. Y., 275; Annett v. Terry, 35 id., 256; Binsse v. Wood, 37 id., 530, 531.) It is shown, and found by the referee in this case, that the plaintiff herein had a good defense to the action against him, of which he refused to avail himself, or allow the indemnitor to do so. By so doing 'he has now no cause of action against the defendant herein. The decision of the referee was correct.

This action, although brought by plaintiff in his name as receiver, was not necessarily so, as it was a matter entirely persónal to himself, and not of any advantage to his receivership; in fact, he so characterized it, as he brought it without leave of the court. He also acted in bad faith in not defending the action brought against him, or in allowing it to be done by the indemnitor, without conditions. Under these facts, the Special Term properly directed him to be charged with the costs.

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs, and order of the Special Term affirmed, with ten dollars costs and printing expenses.


source: Caselaw Access Project

author: James, J.:

license: Public Domain

text:
    DANFORD R. CUSHMAN, Administrator, etc., Plaintiff, v. THE UNITED STATES LIFE INSURANCE COMPANY, Defendant.

      Inswcmce—Evidence—policy admissible, without being accompanied, by application therefor—conne'i'sations with administrator — Wa/rranties— Statements.

    A policy of insurance is properly admitted in evidence in an action brought to recover thereon, although the application therefor is not produced.
    A conversation had between a witness and the administrator of a deceased person, prior to such decease and the administrator’s appointment, in regard to such deceased person, is not admissible in evidence in an action brought to recover upon a policy of insurance issued upon the life of the -deceased.

      Where the papers show that the understanding of the parties was that the statements contained in an application for insurance, were not to be regarded as warranties, but representations only, it is necessary, in order to establish the invalidity of the policy, to show that such statements are fraudulent or untrue in a material matter.
    A warranty is a statement on the literal truth of which the validity of the policy of insurance depends.
    Exceptions ordered to be heard in first instance at the General Term.
    This action was upon a policy of insurance on the life of plaintiff’s intestate, tried before the court and jury. Plaintiff had a verdict for its full amount. A motion was made, on the coming in of the verdict, for a new trial on the minutes, which was denied. The court made an order that all proceedings be stayed, to enable the defendant to make a case and exceptions, and that the same be, in the first instance, heard at General Term. The defendant appealed from the order denying a new trial. The case is here, upon such appeal, case and exceptions.

      E. B. Thomas, for the plaintiff.

      E. S. Van Winkle, for the defendant.
   James, J.:

To maintain the action, plaintiff offered in evidence a policy issued by the defendant, upon the life of Burt Cushman; dated November 10, 1871. Its reception was objected to unless the application therefor was also produced, it forming part thereof. The objection was overruled and defendant excepted. This constituted the first exception. There was no error in the ruling. The policy was the evidence of the contract furnished by the defendant to the testator, and was admissible as evidence against it, without the application. The value of such evidence is not in question.

When the plaintiff rested, the defendant moved for a dismissal of the complaint. The court denied the motion, and defendant excepted. The ground of this motion was not stated, and hence, as there was evidence, jyri/ma facie, sufficient of the plaintiff’s right to recover, the motion was properly denied.

A Dr. Greenleaf was called as a witness by defendant. On his direct-examination, he testified that he attended the intestate as a physician in 1864, and that said intestate was sick in 1864, and was . pretty sick again in 1867. On cross-examination, the doctor was asked if he ever saw intestate after that, and witness answered “ Yes, frequently.” He was asked : “'Did he ever recover from said sickness ? ” Witness said he did. This was objected to and overruled, and defendant excepted. There was no error in this ruling. Witness • was an expert; had been intestate’s physician; and the question was proper and admissible on cross-examination. The defendant offered to show a conversation had by the witness Aldrich with the plaintiff, the administrator, before the death of the intestate, and prior to the date of the policy, in regard to the intestate. The plaintiff’s counsel objected that the declarations of the plaintiff, before his appointment as administrator, not in the presence of the intestate, would not bind or affect the estate. The objection was sustained. The ruling was clearly right. In this there was no error.

At the close of the ease, the court was asked to direct a verdict for the defendant, without stating the grounds or reasons therefor. The motion was properly refused.

The court was asked to charge the jury, that, if the intestate had been afflicted with disease of the liver at any time prior to the 4th of November, 1871, then plaintiff could not recover; or if he had ever been seriously ill prior to said date, then plaintiff could not recover. This the court refused, and defendant excepted. Also, that if the intestate was not in good health at said date, then plaintiff could not recover. That if, at said date, he had upon him a chronic disease of the liver, then, within the meaning of the law, he was not in good health, and plaintiff could not recover. That the declarations and statements of the intestate, contained in the application for insurance, are warranties, and, if fraudulent or untrue, any one of them, then the plaintiff could not recover. That'if the intestate made untrue answers to any question contained in the application, the facts in respect to which, from their nature, must have been within his personal knowledge, then, in law, his representations were fraudulent, and the plaintiff could not recover. That, in order to make the statements or representations fraudulent or untrue, so as to avoid the policy and relieve the defendant from liability thereunder, it was not necessary that they should have been made intentionally to defraud or mislead. That it was not necessary they should have been material. That the question was whether the statements and representations contained in the application were true or not. If untrue, whether made intentionally or not, and whether 'they were material or not, then the plaintiff could not recover. The court refused each and every of said requests, and defendant excepted. Defendant’s counsel also, excepted to that part of the-charge which said : If the deceased honestly and sincerely stated the facts as believed by him at the time, although he 'may have been mistaken, it would be no defense to the action.”

The foregoing, I believe, are all the exceptions taken. on the trial. They are all based on the theory that the answers to the interrogatories contained in the applications were absolute, unconditional warranties, irrespective of fraud or materiality, and that if any one of them was untrue, it avoided the policy. If such is the fact, then, as the charge was on the. theory that the answers to some were untrue, though honestly made, and not material, the defendant will be entitled to a new trial, for error of the court in its instructions to the jury. Upon the construction of the law, as stated by the court,-the motion for a new trial on the minutes was properly denied. There was ample evidence to warrant the finding of the jury, and the same should not be disturbed as against evidence. Neither the policy nor the application shows any warranty of the truth of the answers to the several interrogatories in the application. The policy declares that it is issued in consideration of the representations (not warranties) made in the application, and upon statements (not warranties) therein respecting, etc., “ which application and statement are hereby referred to and made part of said contract, and upon the faith of which application, statements and representations, said company doth issue this policy,” etc.; and the application, at its close, declares that the declarations and proposal therein shall be the basis of the eontrraot between the assured and the company, and that if it contain any fraud/ulent or untrue allegations, all money paid shall be forfeited and the policy void, showing clearly that the fair construction of the papers, and probable understanding of the parties, was not a warranty made, but representations, which, if fraudulent or untrue in a material matter, avoided the policy. “ A warranty in the law of insurance differs from a representation in this : the former is a stipulation inserted in writing on the face of the policy, or in another writing referred to in the policy and made a part of it, on the literal truth or fulfillment of which the validity of the entire contract depends; a representation is a verbal or written statement made by the insured to the underwriter before the subscription of the policy,” etc. (Pierce v. Empire Ins. Co., 62 Barb., 644.)

In this view none of the requests or exceptions of defendant’s counsel were well taken, and judgment should be ordered for the plaintiff on the verdict.

Learned, P. J., and Boardman, J., concurred.

New trial denied and judgment on the verdict directed for plaintiff, with costs.


text:
    ORLANDO M. SMITH, Plaintiff, v. JAMES WARDEN, Defendant.
    Warrant— recital in, of legal offense—when ojfiaw' protected in execution of.

    Where a warrant shows a case within the jurisdiction of the justice issuing it, although it does not recite a legal offense, the officer executing it will be protected in so doing.
    Motion for a new trial on a case, and exceptions ordered to be heard in the first instance at General Term.

      E. H. Prindle, for the plaintiff.

      H. Ballard, for the defendant.
   James, J.:

This action was for false imprisonment. The case shows that defendant was a constable of the town of Solon, Cortland county, and Samuel McGuire, a justice of the peace of said county. That, on the 31st day of March, 1871, the said McGuire, as a justice of the peace, issued a warrant against the plaintiff, directed to the sheriff or to any constable of the county of Oortland, to arrest Orlando M. Smith, the said plaintiff, and bring him before said justice, at his office in the said town of Solon, to answer, etc., and delivered said warrant to one Pierce, also a constable of said town of Solon. That said Smith was found by said Pierce in the county of Chenango; and that, on procuring said warrant to be indorsed over by a justice of the peace of the county of Chenango, the said Pierce, as constable, arrested said Smith and brought him to the said town of Solon, and there left him in the custody of the defendant, as constable (he being a' tavern-keeper), to keep over night, which is the imprisonment complained of.

When the plaintiff rested, the warrant was put in evidence by defendant, and read as follows:

Cobtland County, Town of Solon, ss. :

To the sheriff or any constable of said county: Whereas, complaint, on the oath-of Nathan it. Brown, has been made before the undersigned, a justice of the peace of said town, that, on or about the 23d day of September, 1870, at Solon, in said county, one O. M. Smith did, by false statements and false representations, induce this complainant to take his (Smith’s) note, to the amount of twenty dollars, by statements, to wit: That he (Smith) had a large sum of money in the bank at Norwich, in Chenango county, and that the town owed him $100, which statements were false and untrue ; and that the town did not owe him, and he did not have the money in the bank at Norwich, and the whole was false.

These are, therefore, in the name of the people of the State of New York, to command you. forthwith to take the said O. M. Smith and to bring him before me at my office in said town, to answer to the matters contained in said complaint, and to be further dealt with according to law.

Dated at said town the 31st day of March, a. d. 1871.

S. MoGTJIRE,

Justice of the Peace.

And thereupon the defendant moved for a nonsuit, which was denied, and defendant excepted.

The defendant, having testified his version of the case, rested. Thereupon the defendant’s counsel asked the court to charge the jury, that the warrant was a protection to him as constable, and that he was entitled to a verdict, which was refused, and defendant excepted. The court instructed the jury that the warrant was illegal, because it did not comply with the statute and recite a legal offense on its face as the ground of arrest. To this the defendant excepted.

The only question presented by the case and exceptions, is the sufficiency of the warrant as a protection to the officer. Ever since the case of Savacool v. Boughton (5 Wend., 170), it has been a recognized principle of the law of this State, that the process of a magistrate having jurisdiction of the subject-matter, fair on its face, protected a ministerial officer in its execution. In this case the justice of the peace had jurisdiction over the subject-matter of the warrant. On a complaint being made he was bound to entertain it and exercise his judgment; and whether the facts disclosed a prima facie offense, was certainly a question of law. In this case the magistrate adjudged that it did, and issued his warrant accordingly. It was claimed that the recitals in the warrant did not show an offense. In Stewart v. Hawley (21 Wend., 555) the court said : “Recitals of the offense in a warrant may be very brief. The object of the recital is to enable the defendant to see whether the offense be bailable, so that he may appear prepared with bail, or with any defense admissible, on the return of the warrant. The better opinion of the common law seems to be, that a recital of the offense in the warrant is not essential.” (Atchinson v. Spencer, 9 Wend., 62.) I am therefore of the opinion, that, notwithstanding the warrant did not recite a legal offense, it showed a case within the jurisdiction of the justice; a case in which he had exercised his judicial functions, and issued his mandate as the result of such exercise; and that the officer was protected by it in the exercise of the duty devolved upon him as such officer by its command. It was said in Campbell v. Ewalt (7 How., 400), where the justice had been sued for false imprisonment, “ that the complaint upon which the warrant issued and under which the plaintiff was arrested and imprisoned, did not set forth a criminal offense ” etc. “ But the complaint gave the justice jurisdiction of the case ” etc. It followed that the warrant was a protection to the justice and also to the complainant.

It follows from these views, that the court erred in refusing to nonsuit, in its refusal to instruct the jury as requested,, and. in instructing them as it did. The warrant was a complete protection to the defendant, as constable.

New trial granted, costs to abide the event.


author: Boardman, J.

text:
    ANN T. WALLACE, Appellant, v. LEAH B. STORRY, Executrix, and others, Respondents.

      Note of married woman—when changed against Twr distnibutime shave of payee's estate.

    In 1867, appellant and her husband gave their joint and several promissory note for $1,000, payable five years after date, with interest, to the defendant’s testatrix, her heirs or assigns. The husband died in 1871. After the death of the testatrix, the appellant promised her executor to pay the note. Held, that the amount of the note was properly charged against the appellant’s share as a legatee under the will of the testatrix.
    On the appeal from the decree of the surrogate the will was not returned with the papers. Held, that in its absence every, presumption was against the appellant. (Carman v. Pultz, 21 N. Y., 547; Williamson v. Field, 2 Barb. Ch., 281.)
    Appeal by Ann T. Wallace from a decree of the surrogate of Ulster county upon a final settlement of the accounts of Leah B. Storry, as executrix of the will of Blandina Storry, deceased, by which decree the appellant was charged with the amount of a note given by her husband and herself to the deceased in her lifetime.

      J. M. Cooper, for the appellant.

      A. Schoonmaker, Jr., for the respondents.
   Opinion by

Boardman, J.

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

Decree afiirmed with costs against the appellant personally.


author: Learned, P. J.

text:
    ANANIAS BOYCE, Respondent, v. CYRUS WASHBURN, Appellant.

      Statute of frauds—contract for sale of logs — interest in lands.

    This action was brought to recover the price of 206 logs, sold to defendant. The defense was that these logs were delivered under a contract, by which the plaintiff’s assignor agreed to deliver to the defendant all the market pine saw-logs that could be cut from the “ Perry ” lot, in Wilton, the logs to be delivered at defendant’s saw-mill, at two dollars per log, in the years 1873 and 1874, and to be measured and counted at said mill, which logs the defendant agreed to accept and pay for; that the plaintiff’s assignor cut a large number of logs from the lot, in addition to the 206, which he refused to deliver to the defendant, by means of which the defendant had sustained damage. Held, that this was not a contract for the sale of standing timber, and that it was not essential to its validity that it should be in writing, and therefore such defense could be established under it.

      Green v. Armstrong (1 Denio, 550) distinguished; Kilmore v. Howlett (48 N. Y., 569) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon a verdict directed by the court.

      John C. Hulbert, for the appellant.

      J. P. Butler, for the respondent.
   Opinion by

Learned, P. J.

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

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


text:
    THE NATIONAL STATE BANK OF TROY, Respondent, v. CHARLES H. RISING, Impleaded, etc., Appellant.

      Alteration of note—ratification of try indorser—evidence—Appeal from judgment— when questions of fact not considered on.

    An action may be maintained against an indorser of a note, who ratifies and promises to pay the same, with full knowledge of the fact that the same has, subsequent to his indorsement thereof, been altered by adding thereto the words “with interest.” (Commercial Bank v. Warren, 15 N. Y., 577; Huntington v. Ballou, 2 Lans., 120; Greenfield Bank v. Crafts, 4 Allen, 447; Hazard v. Spears, 2 Abb. Ct. of App. Cases, 353.)
    Upon the trial of such an action, evidence tending to show that .the words “ with interest ” were or were not written at the same time, and with the same pen and ink, is admissible. (Dubois v. Baker, 30 N. Y., 355.)
    Upon an appeal from a judgment entered on the verdict of a jury, where no motion for a new trial has been made, no question of fact will be considered. (4 Wait’s Sup. Ot. Pr., 295.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      C. F. Tabor, for the appellant.

      Esek Cowen, for the respondent.
   Opinion by

Boardman, J.

Present—- Learned, P. J., Boardman and James, JJ.

Judgment affirmed, with costs.


text:
    THOMAS C. WALBRIDGE, Respondent, v. EDWARD D. JAMES AND OTHERS, APPELLANTS.

      Judgment on referee’s report—how irregularity in, corrected—Bemedy, where referee has not been duly appointed.

    Where, in an action brought to foreclose a mortgage, the referee’s report states the amount due at the time of the commencement of the action and that due at the date of his report, before which latter date, after the time of the commencement of the action, a payment of principal fell due, under the provisions of the mortgage, and the judgment sets forth the latter amount as due, the remedy of the defendant is by motion to correct the judgment and conform the same to the report, and not by an appeal therefrom.
    Nor will a judgment be reversed and a new trial granted, on the ground that the referee was not duly appointed, by fit and proper words in the judgment, to make the sale. The remedy of the party aggrieved is.by motion at Special Term.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      E. D. James, for the appellants.

      John C. Hulbert, for the respondent.
   Opinion by

Boardman, J.

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

Judgment affirmed, with costs.


text:
    MARGARET HUNTER, Appellant, v. THE AMERICAN POPULAR LIFE INSURANCE COMPANY, Respondent.

      Right to open and close case.

    Where, in an action upon a life insurance policy, a copy of which is set forth in the complaint, the answer “ admits each and every allegation in the complaint contained,'except that they deny that the paper marked ‘ A,’ annexed to the complaint, is a full and complete copy of the policy issued by them: ” Held, that the answer in substance and effect denied the making of the contract set up in the complaint, and that plaintiff was entitled to open and close the case.
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed by the court, and from an order denying a motion for a new trial.

      Matthew Hale, for the appellant.

      George Bliss, for the respondent.
   Opinion by

Boardman, J.

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

Judgment and order reversed, and new trial granted, costs to abide the event.


text:
    HENRY VAN DENBURGH and others, Respondents, v. THE PRESIDENT AND TRUSTEES OF THE VILLAGE OF GREENBUSH, Appellants.

      Mechanic's lien—act for Rensselaer county—public buildings—exemption from oust.

    Chapter 778 of the Laws of 1866 (p. 9), establishing a mechanics’ lien law for Rensselaer county, was not repealed by chapter 558 of the Laws of 1869, as amended by chapter 194 of the Laws of 1870.

      Qucsre, whether the exemption from the lien law of the corporate property of a municipality used for a public use, established by the decision of Brinkerhoff v. Board of Education (6 Abb. [N. S.], 428), does not depend on the use actually made of the buildings, and not upon that for which they were intended. That is, whether the principle laid down in Brinkerhoff v. Board of Education would not apply to a building not actually used for a public purpose, whatever the intention of the village might have been when the contract was made.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      R. A. Parmenter, for the appellants.

      G. P. Jenks, for the respondents.
   Opinion by

Learned, P. J.

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

Judgment affirmed, with costs.


author: Learned, P. J., and James, J.

text:
    JOSEPH RUTHERFORD, Appellant, v. ALEXANDER GRAHAM, Respondent.

      Doweress—sale of interrest of— what constitutes — lease.

    A widow, being in possession of certain lands which had been admeasured to her for her dower, executed an instrument under seal, whereby she “ leased and to farm let,” the same to the defendant, from April 1, 1868, to April 1,1874, for which he agreed to pay her $500 at the date of the said agreement, and in ease she was living at the expiration of that time, the lease was extended for the term of her natural life, for which defendant agreed to pay her $400 within ten days after April 1, 1874, with interest, from April 1,1868, until it should be paid. Held, that this was a sale of the estate of the doweress, and not a lease thereof, and that it was not in violation of the fourteenth section of the first article of the Constitution. Parsell v. Stryker (41 N. Y., 480) followed.
    The right to dower comes by law, and the heir may assign the same to the widow voluntarily. The admeasurement fixes only the location and extent.
    Appeal from a judgment in favor of the defendant, entered upon a verdict directed by the court.

      Edward C. James, for the appellant.

      Magone & Holbrook, for the respondent.
   Opinions by

Learned, P. J., and James, J.

James, J., dissented.

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

Judgment affirmed, with costs.


text:
    SAMUEL B. WILLEY, Administrator, Plaintiff, v. IRA SHAVER and another, Defendants.

      Award — construction of.

    An appeal having been taken to the County Court from a judgment of a justice of the peace, the case was, by consent of the parties, submitted to an arbitrator, who awarded to the plaintiff’s intestate “ the sum of twenty-five dollars, and the costs, if any, recovered by her before Charles Gr. Day, justice.” Reid, that the plaintiff was entitled only to such costs as were owing to the deceased at the time of the award, and that as the costs had already been paid, they could not be recovered a second time upon the award.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed by the court.

      Jerome Rowe, for the plaintiff.

      King & Montgomery, for the defendants.
   Opinion by

Learned, P. J.

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

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


author: Leabned, P. J.

text:
    WILLIAM ROOT, Plaintiff, v. EDWARD J. BROWN, Defendant.

      Evidence—Admissions — admissibility of other statements made at same time by same pei-son.

    In order to give in evidence against a party his admissions, it is necessary to examine the party first as to whether or not he has made such admissions. Whatever was said by the same person, in the same conversation, that would in any way qualify or explain the statement proved to have been made by him, is admissible in his favor. (Rouse v. Whited, 25 N. Y., 170.) And although the party alleged to have made the admissions is asked by the adverse counsel, before proof is given of such statement by him, whether he so stated or not, he is not thereby precluded from giving evidence, after the proof of such admissions on his part has been made, of other statements made by him in the same conversation.
    Exceptions ordered to be heard in the first instance at the General. Term.
    The ■ action was in ejectment, and the issue was as to whether or not the plaintiff had delivered a deed of the premises in dispute to the grantor of the defendant.

      Betts & Grover, for the plaintiff.

      Hughes & Northup, for the defendant.
   Opinion by

Leabned, P. J.

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

New trial ordered, costs to abide the event.


text:
    THE PEOPLE ex rel. JAMES B. JERMAIN, Respondents, v. FRANCIS S. THAYER, as Auditor of the Canal Department, Appellant.

      Canal claims — chap. 331, 1870; chap. 836, 1866.
    By chapter 321 of the Laws of 1870, the canal appraisers were authorized to hear and determine all claims against the State, etc. All claims for damages which should have accrued more than one year prior to the passage of the act, were to be , filed within one year from the date thereof. The claim in dispute was so filed. By section 5, chapter 836 of 1866, claims were to be filed within one year after the injury. Held, that even as to claims embraced within the latter statute, its provisions could not be considered as limiting those of the act of 1870; and further, that as this objection was not raised before the appraisers, nor their action reviewed either by appeal to the canal board or by certiorari, the matter must be considered as settled.
    Appeal from an order granting a peremptory mandamus to issue against the defendant, to compel him to issue his warrant for the payment of-an award made by the canal appraisers.

      George W. Miller, for the respondents.

      Charles S. Fairchild, deputy attorney-general, for the appellant.
   Opinion by

Learned, P. J.

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

Order affirmed with costs.


text:
    NORMAN COX and another, Administrators, etc., Appellants, v. WARREN S. WIGHTMAN and others, Respondents.

      Assignment of mortgage to esca/pe taxation — effect of.

    This action was brought to recover the amount of a mortgage collected by the defendants, which had been assigned by the plaintiffs’ intestate to the defendants’ testator. The plaintiffs claimed that the assignment was invalid, for the reason that it was made to enable their intestate to escape taxation. Held, that the assignment was valid to pass the title to the mortgage, and that as the intestate had. put his property out of his hands for the purpose of escaping taxation, the court would not help him to get it back.
    Appeal from a judgment in favor of the defendants, entered upon the report of a referee.

      E. H. Prindle, for the appellants.

      R. A. Stanton and Jenks & Matterson, for the respondents.
   Opinion by

Learned, P. J.

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

Judgment affirmed, with costs.


author: Boardman, J. Learned, P. J.,

text:
    ABRAM FRYER, Respondent, v. STEPHEN ROCKEFELLER and others.

      Foreclosure sale — defeats in title—when pun-chases- not excused, by.

    The purchaser at a mortgage foreclosure sale cannot refuse to carry out his purchase on account of defects of title prior to the execution of the mortgage foreclosed. It is the equity of redemption that is cut oft' by the sale; that is all that the law authorizes to be done, and the purchaser is bound to know, when he bids, that he is getting nothing else. (Boardman, J.) (3 Barb. Ch. Pr. [2d ed.], 529; Holden v. Sackett, 12 Abb., 473.)
    Appeal by Isaac B. Findull, the ■ purchaser at a sale, under judgment of foreclosure and sale in this action, from an order made at the Saratoga Special Term, directing the purchaser to perfect his purchase, etc.

      Isaac L. Egbert, for the appellant.

      L'Amoreaux & Dake, for the respondent.
   Opinion by

Boardman, J.

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

Learned, P. J.,

concurred in the result, for. the reason that adverse possession appeared to have accompanied the paper title claimed under since 1833.

Order affirmed, with ten dollars costs and expenses of printing.


text:
    EM ELIZA SHEAR, Respondent, v. THE PHŒNIX MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Inswra/nce agent—power of, to waive conditions of policy.

    A general agent of an insurance company may waive payment of the premium when due and thereby bind the company. The existence and validity of the contract being conceded; an agent may waive or disregard conditions therein without destroying its vitality. (Bodine v. Exch. Fire Ins. Co., 51 N. Y., 117; Miller v. Phœnix Ins. Co., 27 Iowa, 203; 1 Am. R., 262; Carroll v. Charter Oak

      Ins. Co., 10 Abb. [N. S.], 166; Ins. Co. v. Colt, 20 Wall., 560, 568; Owen v. Farmers’ Joint Stock Ins. Co., 57 Barb., 518; Sheldon v. Atlantic F. and M. Ins. Co., 26 3 N. Y., 460; Trustees of First Bap. Ch. v. Brooklyn Fire Ins. Co., 19 id., 305; Rowley v. Empire Ins. Co., 36 N. Y., 550; Boehen v. Williamsburg F. I. Co., 35 id., 131; Whitwell v. Putnam Ins. Co., 6 Lans., 166; Dohn v. Farmers' Joint Stock Ins. Co., 5 id., 277.)
    Appeal from a judgment in favor of plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes.
    This action was brought upon a life insurance policy issued to plaintiff upon the life of her husband. The only defense interposed was the non-payment of the semi-annual premium due and payable August 31, 1872, whereby the policy became dead and of no further force or validity.
    The plaintiff gave evidence tending to show that in July, 1872, her husband saw Weller, defendant’s agent, and offered to pay the premium to become due August thirty-first thereafter; that Weller then waived such payment, saying he had not the company receipt and that he would keep him good with the company. Weller denied such conversation and waiver.
    Under these facts it was left to the jury to say whether there had been a waiver of payment legally binding upon the company.

      Samuel Hand, for the appellant.

      R. E. Andrews, for the respondent.
   Opinion by

Boardman, J.

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

James, J., dissented.

Judgment affirmed, with costs.


text:
    PETER S. MOORE, Respondent, v. DAVID H. BIXBY, Appellant.

      Statute of frauds—ddimery of personal pi’operty.

    Mere words are not sufficient to constitute a delivery of personal property. (Good v. Curtiss, 31 How. Pr., 4; Shindler v. Houston, 1 N. Y., 261-265; Caulkins v. Hellman, 47 id., 449.)

    Appeal from a judgment in favor of plaintiff, entered upon the report of a referee, in an action on an account.

      E. H. Prindle, for the appellant.

      George A. Haven, for the respondent.

       See Ham v. Van Orden, ante, page 709.— [Rep.

   Opinion by

Boardman, J.

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

Judgment reversed, and new trial granted, costs to abide event, and referee discharged.


author: James, J.

text:
    ISAAC MILLER, Plaintiff, v. JOHN S. BARBER and JAMES A. SCHEMERHORN, Defendants.

      Fraud — Oountei'-claim—Evidence.

    Exceptions ordered to be heard in first instance at the General Term.
    This action was tried before the court and jury, and the jury found a verdict for the plaintiff. The defendant was given time to make a case and exceptions, with stay of proceedings, and it was ordered that a motion for a new trial on the exceptions be heard in the first instance at General Term.
    The action was to recover damages alleged to have been sustained by the fraudulent acts and representations of the defendants.
    The complaint averred that defendants, with intent to deceive and defraud the plaintiff, falsely and fraudulently represented to him that they had formed a company — The Union Patent Right Company — and had purchased the right to sell in a large number of 'counties, a patented article, known as “ the hay-loading pitchfork ; ” that they had purchased very cheap; ■ that the right was worth $100 for each town, and would sell for that; that it was a very valuable machine and would be as indispensable to farmers as the mowing machine, and that the stockholders would realize large profits therefrom; that various individuals, known to the plaintiff as men of character and responsibility, were represented as having taken shares in said company, and given their notes for stock, and the stock book of said company was exhibited, on which appeared the names of such persons as subscribers for said stock. That relying upon said representations, and believing the same to be true, at the request and solicitation of said defendants, plaintiff gave his promissory note for $500 for one share of stock in said pretended company, and received a certificate therefor signed by defendant Barber, as president, and Schemerhorn as treasurer, which said note was payable to said defendants. That defendants immediately transferred said note to a Iona fide purchaser, and plaintiff was compelled to pay the same, and did not discover the fraud practiced upon him until after its payment; that said statements and representations were, at the time of making them, false and'fraudulent, and the said stock worthless; that the notes, shares and pretended subscriptions for stock, were a fraudulent and a contrived scheme, got up to cheat and defraud. The answers were denials, and a counter-claim by the defendant Barber.
    The court held, that this was not in a strict sense an action to rescind a contract and recover back money, but was properly in the nature of tort to recover damages for. a loss sustained by the fraud of the defendants. It was not like the case of Butler v. Livermore (52 Barb., 570), and hence it was not an action in which a counter-claim was admissible, unless it was one arising out of the transaction set forth in the complaint, which the counter-claim put forth by the defendant Barber was not.
    That this transaction of the defendants was joint. The representations made respecting the company, the stock and the pitchfork, were not only intended for the benefit of both, but the note taken was given to them jointly, and, when sold, both participated in its avails; and hence they were co-conspirators, and the acts and sayings of either, in the progress of the common fraud, were admissible against both. (Cary v. Hotailing, 1 Hill, 311-316; Jackson v. Timmerman, 12 Wend., 299.)

      M. M. Waters, for the defendant Schemerhorn.

      J. S. Barber, in person.

      George N. Kennedy, for the plaintiff.
   Opinion by

James, J.

Learned, P. J., and Boardman, J., concurred in result.

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


text:
    JAMES RYAN, Respondent, v. ANDREW WAVLE, Appellant.

      Cíase on appeal— Buie 43 — when not complied with.

    Appeal by defendant from an order denying a new trial, and from a judgment in favor of plaintiff.
    The action was for slander spoken by defendant of plaintiff, in that defendant had charged the plaintiff with setting fire to defendant’s barn, intending thereby to impute to plaintiff the crimé of arson.
    Plaintiff had a verdict. The defendant moved for a new trial on a case and exceptions before the Special Term. The motion was there denied, and judgment ordered for the plaintiff. From that order defendant appealed. After a hasty consideration of some exceptions taken in the case, the court say: The printed case used upon this appeal was unusually and unnecessarily voluminous — over 400 pages. It was filled with a vast quantity of irrelevant and immaterial matter, and in direct violation of rule 43. All that was material could have been contained in twenty-five pages. Perhaps such a case may be regarded as the legitimate fruit of the last clause of rule 41. If so, the sooner that clause of that rule is stricken out the better. We were rejoiced to learn that the-Court of Appeals, in a recent case, took occasion to signify its disapproval of the practice of taking the stenographic notes for a bill of exceptions. (Jewell v. Van Steenburgh.) Such practice casts unnecessary labor upon the appellate courts, and makes great and unnecessary expense in the way of printing to parties. Counsel should be required to observe strictly rule 43, and in all cases, when it is not adhered to, the case should be dismissed or sent back for resettlement at the expense of the attorney in fault. Motions to compel an observance of said rule, should be favored, and when granted, should be with costs personally against the attorney in fault.

      M. M. Waters, for the appellant.

      H. Ballard, for the respondent.
   Opinion by

James, J.

Learned, P. J., and Boardman, J., concurred.

Judgment and order affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error, v. DANIEL CHRISTOPHER, Plaintiff in Error.

      Perjury—Answer — allegation in, that defendant “ says he denies."

    Writ of error to the Court of Sessions in and for the county of Tompkins.
    The defendant was indicted, tried, convicted and sentenced to the State prison, in said Court of Sessions, for the crime of perjury. The perjury was alleged to have been committed in the verification of an answer interposed in an action brought upon two promissory notes made by defendant. The complaint averred the making of the notes and their transfer to the bank (the plaintiff); its ownership ; their presentment and demand for payment when the same became due; their non-payment; and that no part of said notes had been paid.
    The answer to said complaint was as follows : First. The defendant, Daniel Christopher, comes into court by John A. Williams, his attorney, and in answer to the plaintiffs’ complaint says that he denies each and every allegation therein alleged, except as herein admitted as follows, that is to say: He admits that he, on or about June 18th, 1870, made his promissory note for $850, payable at First Rational Bank, Ithaca, to the order of R. De Witt Mann, and that the same was indorsed by R. De Witt Mann and A. C. Ditmar; that the plaintiffs are a banking corporation and discounted said note at or about the day of its date, and paid this defendant, the then holder thereof, the sum of $500, and no more, and that no further or other sum has ever been paid by the plaintiff for or on account of .said note. Second. The defendant says that he admits the execution of the second note described on the said plaintiff’s complaint for the sum of $1,000, made July 19th, 1870, to the order of A. C. Ditmar and indorsed by said Ditmar and R. De Witt Mann, payable at the First Rational Bank of Ithaca and delivered to said plaintiffs. And this defendant, in further answer io said complaint, says that the said last described note is fully paid and satisfied, and should be delivered up to him to be canceled.
    The verification was that the same was “ true of his own knowledge, except as to those matters therein stated to be upon his information, and as to such matters he believes it to be true.”
    In the indictment perjury is first assigned on the admission contained in the answer — upon the words that the plaintiff discounted said $850 note, “cmdjpaid this defendant, the then holder thereof ’ the sum of $500, and no more, and that no further or other sum had ever been paid by the plaintiff for or on account of said note; ” and secondly upon the words in the second count of the answer, “ that the said last described note [the $1,000 note] is fully paid and satisfied.”
    On the question whether perjury could be assigned upon the verification of the answer, James, J., held, that in all cases the assignment of peijury, on which a conviction is asked, must be of matter material to the issue to be tried, and that materiality is always a question of law; that the words in the first count designated as untrue contained no answer to the complaint; were not responsive to any allegation therein; did not help to form any issue; were not a denial, but simply a statement of what defendant admitted,.and hence were wholly immaterial; that no issue was formed to the first count of the complaint; that the answer contained no denial, as the defendant only said he denied what he did not admit, and that this was a mere affirmance that he denied. Merely saying he denied was one thing; a direct and positive denial was quite another. (Arthur v. Brooks, 14 Barb., 533 ; Blake v. Eldred, 18 How., 240.)
    That by the second count the answer contained a separate and distinct allegation that the $1,000 had been paid; formed a direct issue with an allegation in the complaint upon a material point; and that the word “says” was not there used as an assertion of what defendant had done or was about to do, but was the assertion of a fact which, if true, constituted a defense to the note; that the allegation wáa therefore material, and perjury could be assigned thereon.
    That as a general verdict of guilty was rendered in the case, the evidence given upon the trial could be properly applied to said second count, and hence the conviction could be sustained.
    Learned, P. J., concurred in the result, without being confident that perjury might not be committed when the allegation of an answer is “ the defendant says that he denies.”

      H. Ballard, for the plaintiff in error.

      S. D. Holliday, for the defendants in error.
   Opinions by

Learned, P. J., and James, J.

Present—Learned, P. J., and James, J.

The conviction and judgment of the Sessions affirmed, and the record remanded to the Court of Sessions of Tompkins county, the court in which the prisoner was tried and convicted, and the prisoner ordered to appear before said Court of Sessions at its term to be held on the 9th day of"June, 1875, and said court directed then and there to pronounce sentence and order its execution.


text:
    GERTRUDE E. ELWOOD, Administratrix, etc., Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

      ContHlmtory mgUgence.

    Motion to set aside a nonsuit and for a new trial.
    Defendant’s passenger train stood at defendant’s depot in front • of a platform for the use of passengers. The deceased (plaintiff’s intestate) approached from the opposite side without the knowledge of defendant or its employes, got upon a car from the side opposite the depot platform, found the car door locked, got off the platform of the car on the side from which he had approached it, and undertook to walk between the tracks to the end of the train without looking behind him, was struck by a working train approaching him from behind, and killed. Held, that the negligence of the intestate contributed to the injury; that the fact that the working train did not give the signal required by statute on crossing a street before reaching the depot, was not an act of negligence'toward the intestate, who was not on the street or where he had any business to be.

      Amasa J. Parker, for the plaintiff.

      Samuel W. Jackson, for the defendant.
   Opinion by

James, J.

Learned, P. J., concurred.

Motion for new trial denied, and judgment ordered for defendant.


text:
    JOSEPH N. GREENE, Respondent, v. JOHN W. THOMAS, Appellant.
    Appeal from a judgment in favor of plaintiff, entered on the report of a referee.
    The plaintiff entered into a contract with Cornell University to erect and finish a certain building. Subsequently he made a subcontract with the defendant, by which the defendant, for a certain fixed sum, was to do all the carpenter work, find materials therefor, and do the painting, etc., in said building. The defendant commenced the work, and, after he had done a part thereof, abandoned the same without good cause. The plaintiff completed the work and sued the defendant for damages for the breach of the contract. The referee before whom the cause was tried allowed the plaintiff, among other things, $900 for his services in superintending the completion of the carpenter work. The only objection raised on this appeal was to this item of $900.
    The court at General Term held, that as, if the defendant had fulfilled his contract according to the agreement, the plaintiff would not have been obliged to devote any of his own time to the superintendence of the workmen doing the carpenter work; and that as the referee had allowed this, item to the plaintiff, it must suppose that he found the superintendence to be necessary, and it was therefore a proper item to be allowed, and the judgment should be affirmed.

      George F. Danforth, for the appellant.

      B. A. Benedict, for the respondent.
   Opinion by

Learned, P. J.

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

Judgment affirmed, with costs.


text:
    JOHN O. WHITAKER, Respondent, v. MILTON D. WHITAKER, Appellant.

      Payment — when receipt of note of third person is not.

    Appeal from a judgment, in favor of plaintiff, entered on the report of a referee.
    The plaintiff made a written contract to sell to the defendant certain land, at a certain price, to be paid at specified times. On the day of the date of the contract, the plaintiff received from the defendant the note of a third person, indorsed by the defendant. And the plaintiff indorsed upon the contract, as received thereon, this note. There was no agreement other than this, that the note should be taken in payment. The note was not paid or protested. The plaintiff sued for the balance due on the contract, being the amount of the note. There was no agreement in the written contract that the note should be taken as a part of the purchase-money. The contract provided for money payments. The Glen eral Term held, that the note having been taken on a precedent debt, was not to be deemed to be taken in payment, unless on positive proof to that effect.
    The plaintiff having offered to return the note on the trial, the court held this to be sufficient, citing Nichols v. Michael (23 N. Y., 267).

      T. & A. Moore, for the appellant.

      Alex. Cumming, for the respondent.
   Opinion by

Learned, P. J.

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

Judgment affirmed, with costs.


text:
    ANDREW S. WELLER, Respondent, v. JOSEPH H. TUTHILL, Appellant.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    This action was brought to recover the sum of $500, paid by the plaintiff to the defendant, who had contracted to see that a half share of the Ellenville Company stock should be got for plaintiff, if he would send to him or .the treasurer a check for $500'. Such check was sent by plaintiff to defendant, who directed it to be given to the treasurer, and by the treasurer credited to the defendant, in part payment of defendant’s stock subscription. The defendant did not transfer any stock to plaintiff, but continued to control and manage it as his own thereafter. Defendant had and used the stock, so paid for by plaintiff, and plaintiff never received any consideration for such payment. Defendant, who was the president of the company, never gave plaintiff any notice that he, defendant, had got the stock for him. The General Term held, that these facts made a much stronger case than that of Churchill v. Stone (58 Barb., 233), and that plaintiff was entitled to recover.

      John Lyon, for the appellant.

      C. A. Fowler, for the respondent.
   Opinion by

Boardman, J.

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

Judgment affirmed, with costs


text:
    ELIZABETH F. CAGGER, as Guardian of Infant Children, and another, Respondents, v. MARTINUS LANSING, Appellant.

      Ejectment—Judgment—concl/ume as to matters adjudicated—Writ of possession — laches.

    Appeal from a judgment in an action of ejectment, entered upon the verdict of a jury directed by the court. The recovery was of certain lands in Rensselaer county by the plaintiffs as the heirs of the late Peter Cagger.
    The answer of the defendant was merely a denial and the statute of limitations.
    It was proved on the trial that in February, 1864, William' P. Van Rensselaer recovered a judgment in ejectment against the defendant for these lands, upon which a writ of possession was issued in May, 1864. In August, 1864, Van Rensselaer conveyed to James Kidd and Peter Cagger. In December, 1864, Kidd released his interest to Cagger. Cagger died intestate in July, 1868, leaving, the plaintiffs his heirs at law. On the 26th of July, 1871, the plaintiffs made a demand upon the defendant for the possession of the premises, which was refused.
    This action was brought by Elizabeth F. Cagger, the natural guardian of Peter Cagger’s infant heirs, and by Mary 0. Cagger, his only adult heir.
    The defendant claimed that Cagger had no claim except as mortgagee, and that one Church was the real party in interest.
    Upon these facts the court ordered a verdict for the plaintiffs.
    The court at General Term held, that the defendant was concluded by the judgment recovered in favor of Van Rensselaer. (2 R. S., 309, § 36; Beebe v. Elliott, 4 Barb., 457; Bennett v. Couchman, 48 id., 73.) That it was also conclusive as to the question of Cagger’s title. (Van Rensselaer v. Barringer, 39 N. Y., 9; Van Rensselaer v. Dennison, 35 id., 393.) That mere" neglect to enforce the right by a writ of possession, unless the statute of limitations had run, did not invalidate the judgment. (Jackson v. Haviland, 13 Johns., 229.) The court also cited Cagger v. Lansing (43 N. Y., 550).

      Anson Bingham, for the appellant.

      Samuel Hand, for the respondents.
   Opinion by

Boardman, J.

Present—James and Boardman, JJ.

Judgment affirmed with costs.


text:
    MURTHA FLOOD, Respondent, v. CALEB W. MITCHELL, Appellant.

      Evidence — what draft of contract inadmissible as evidence of agreement between pm'ties.

    Appeal from a judgment in favor of plaintiff, entered on the verdict of a jury.
    The action was brought for work done in building or grading a race track. The answer denied the allegations of the complaint, and set up a contract by which plaintiff agreed to finish the track; alleged that he had neglected to do so, and claimed damages therefor. The court held, that the draft of a contract, unexecuted, drawn up in. accordance with what the person drawing it supposed to be the agreement between the parties, but which did not contain their language, was not admissible in evidence. That the cases of Halsey v. Sinsebaugh (15 N. Y., 485), and Russell v. H. R. R. R. Co. (17 id., 134), did not authorize such evidence.
    The jury found in favor of the plaintiff for the full amount claimed.

      A. Pond, for the appellant.

      L. B. Pike, for the respondent.
   Opinion by

Boardman, J.

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

Judgment affirmed, with costs.


author: GILBERT, J. :

text:
    WILLIAM F. EDINGTON, Plaintiff, v. THE MUTUAL LIFE INSURANCE COMPANY OF NEW YORK, Defendant.

      Policy of insurance — medical attendant — 2 B. 8., 406, §78 — Nonsuit—error in refusing, owed by defendant's -proof— Evidence — personal privilege — acts and dee-Icm'ations of insured before issuing of policy.

      A physician -who merely makes a casual prescription for a friend when meeting him in the street, cannot he called a medical attendant, who is properly a person to whom the care of a sick person has been intrusted.
    In an action brought to recover upon a policy of insurance, the insurance company offered to prove, by physicians, that the assured was affected with numerous diseases, from knowledge thereof which they had obtained by their attendance on him as physicians, and not from any information received from him. The evidence was excluded. Held (1), that the objection that the evidence was admissible because it did not appear that the information excluded was necessary to enable the physicians to prescribe, not having been made at the trial, would not be entertained on appeal; (2), that the objection that tire statute (2 R. S., 406, § 73) did not prohibit the disclosure of knowledge acquired otherwise than by communications made by the patient, was not . well taken, as the word information comprehends the knowledge which the physicians acquire in any way while attending the patient, whether by their own insight, or from statements made by the patient or others, given to the physician in aid of his duty.
    A.n error in refusing a nonsuit is cured by the defendant’s supplying the evidence needed.

      The statute (2 R. S., 406, § 73) does not apply only to the medical attendant or family physician, hut embraces a physician who casually or otherwise attends or prescribes for the patient.
    This statute was not repealed by the Oode, section 390.
    The privilege of objecting to such disclosure was not waived by the party’s refer-ing to the physician in the answers to the questions contained in his application for insurance: 1st. Such reference was made simply that the statements of the assured might be verified by inquiries to be made of the physician, and not for the purpose of having him examined as a witness. 2d. One cannot waive a right which, from its nature, must belong to another, and which, in the usual coui'se of things, can never be claimed by himself, because it is brought into existence by his death.
    The acts and declarations of an assured, before his insurance was effected, are not admissible as evidence in an action brought by the beneficiary named in a policy of insurance.
    MotioN for a new trial by defendant, on exceptions taken at the Circuit and ordered to be beard in the first instance at the General Term.
    This action was brought to recover the amount of four policies of insurance, issued by the defendant upon the life of William F. Diefendorf, for his benefit, and held by him up to the time of his assignment thereof to the plaintiff by virtue of an assignment bearing date November 4th, 1869. The assured died on the 21st day of March, 1871.
    Each application contained a declaration that it was thereby mutually agreed, by and between the assured and the company, that the particulars contained therein, being the answers of the assured to the questions proposed, formed a part of the contract with the company. And each application also contained an express stipulation and agreement that the said application and the declaration thereto attached, should form the basis of the contract between the assured and the said company.
    In each of said applications the assured was asked : “ How loug since you were attended by a physician, and for what. diseases ? .Give name and residence of such physician, and the name and residence of your usual medical attendant.” To this question, in the first application, he answered : “ Dr. Carpenter has known me two years.”
    In the second application he answered this question in the same way, and in the third application he answered it as follows: “ Have none ; only consulted Hr. O. H. Carpenter, now and then, for slight ailments, and taken his prescriptions. C. H. Carpenter, Geneva, has known me three years.” The court excluded certain evidence offered on the part of the defendant, which it proposed to give by calling as witnesses physicians who had attended the assured in his lifetime. The court also allowed, under objection by the defendant, the policies of insurance to be given in evidence by plaintiff, without the applications upon which they were issued. The judge at Circuit directed a verdict for the plaintiff, and directed the exceptions to be heard in the first instance at the General Term.

      Henry E. Domes, E. G. Lapham, Henry B. Selden, John Gillette, Jr., for the defendant.
    The learned judge at the Circuit erred in overruling the objection of the defendant that the applications for these several policies were part and parcel of the policies, and that it was not competent for the plaintiff to give in evidence the said policies, without putting in, also, the applications upon which the same were based, and which, by agreement of the parties, formed a part of the contract. It would seem clear that where part of an instrument, account or letter is offered in evidence, the opposing party is entitled to have the whole introduced. (Phillips on Evidence [2d ed.], 451; per HaRRis, J., La/rue v. Rowland, 7 Barb., 112 ; see, also, Bawls v. Am. Life Ins. Go., 36 Barb., 365 ; S. C., 27 N. Y., 293, 294.) An application signed by the insured is to be deemed a part of the contract of insurance, when it is expressly referred to in the policy as forming a part thereof. (Murdock v. Chenango Mwt. Ins. Co., 2 N. Y., 210; Bliss on Life Ins. [2d ed.], 91; 1/ycomi/ng Fire Ins. Co. v. Bailer, 67 Penn., 108 ; Dullard v. Am. Pop. Life Ins. Go., Supr. Ct., Buffalo.) The court erred in excluding the question put to Hr. Eastman, viz.: For what diseases did you treat Hiefendorf ? He was asked to state what he knew independent of any information he gave the witness, or of anything Hiefendorf said. The statute, by virtue of which this exclusion is sought to be maintained, only prohibits the disclosure of “any information which he may have acquired in attending any patient in a professional character, and which information was necessary to •enable him to prescribe for such patient as a physician.” (2 B. S. [Edm. ed.], 422; The People v. Gates, 13 Wend., 324; Kendall
      v. Grey, 2 Hilt., 300; Dutchess of Kingston Gase, 11 How. State Trials, 243; S. 0., 12 id., 643; 1 Greenl., § 248 ; 2 it. S., 406, § 13; Hewett v. Prime, 21Wend., 79.) The privilege being personal, the decease of the party entitled to avail himself of it, puts it beyond possibility^» assert the privilege. (Allen v. The PubUc Acbministrator, 1 Brad., 221; affirmed, sub nom. Thayer v. Allen, Selden’s Notes, 57, April, 1853; 1 Abbott’s Digest, 22; Johnson v. Johnson, 14 Wend., 637; 1 Greenl. on Ev.,note, 281; Bliss on Life Ins. [2d ed.], 64,8; Dil-láber v. Home Life Ins. Go., N.Y. S. 0., Judge VaN Yorst, Ins. Law Jour., Aug., 1874, p. 638.) By section 390 of the Code, a party may now examine the adverse party as a witness, in the same manner as other witnesses may be examined. It would, therefore, have been competent, if the applicant had been living, to have examined him as a witness with reference to his having had the diseases inquired of, or as to the state of his system or his organs. (Whitney v. Barney, 30 N. Y., 342; 12 Abb..Pr., 249, Daly, Oh. J., 262; GoutaAl v. Thomas, 9 Barn. & Cress., 288; In re Beilis et al., 38 Plow. Pr., 79.) There was concealment of what good faith and the contract between the parties required to be disclosed, in reference to matters inquired of, and those not asked about. {Balter v. Home Life Ins. Go., 4 N. Y. 8. O., 582.)

      George F. Dcmforth, for the plaintiff.
    The statements of the assignor could not affect the assignee. (Paige v. Gagwin, 7 Hill, 361; Booth v. Swezy, 8 N. Y., 279.). And the rule is not changed because the ■ declaration is made by a person about to be insured. ( Wesi/ropp v. Bruce, 3 L. and A. Ins. Rep., 288; Bawle v. Am. M. I. Ins. Go., 27 N. Y., 282.) The words of the statute applied to physicians are imperative. No person shall be allowed to disclose. (2 R. S., 442, § 73 ; Johnson v. Johnson, 4 Paige, 467; S. O. in error, 14 Wend., 641; 1 Greenl., § 243.) The fact (if it is so) that, the patient, if alive, could be required to testify as to the matters inquired of, will not render the physician competent. {Brand v. Brand, 39 Plow. Pr., 193; Rogers v. Lyon, 64 Barb., 373; see revisers’ notes, 3 R. S. [2d ed.], 737.)
   GILBERT, J. :

We are called upon to consider only the exceptions taken upon • the trial. Nothing else is before us. That the answers of the assured to the questions put to him on his applications, of which the defendants complain, were warranties, admits of no question. It is equally clear that a breach of warranty avoids a policy of insurance, whether the untrue statement was made upon the knowledge of the assured, or in good or bad faith, or was actnally injurious to the insurer. The rule of law on this subject, ‘as applied to contracts of insurance, is too well settled to require argument or authority to support it. This rule, however, is not directly involved in the case before us; for, in none of the rulings to which the exceptions relate, was it questioned that the statements of the assured, referred to, were warranties. The refusal of the judge to dismiss the complaint, or to submit the case to the jury, rests upon the ground that no breach of warranty had been proved. The legal effect of the answers given by the assured to the interrogatories put to him, was not disputed. The principal point to be determined, therefore, is whether either of the answers, of which the defendant complains, were untrue in point of fact. We are of opinion that the evidence does not warrant that conclusion. It appears that the same question was put to the assured on each application, namely : “ How long since you were attended by a physician ? For what diseases ? Give name and residence of such physician, name and residence of your usual medical atttendant ? ” The answer given on the first and second application was the same,' namely: “ Dr. Carpenter has known me two years.” That given on the third and last application was : “ Have none.; only consulted Dr. C. H. Carpenter now and then for slight ailments, and taken his prescriptions. C. H. Carpenter, Geneva, has known me three years.” ■ It appears that the assured consulted Dr. Eastman professionally, and the latter made prescriptions for him in 1863. Mr. Proudfit, who had been a partner of the assured from July, 1866, to April, 1868, testified that Dr. C. H. Carpenter and M. N. Picot attended the assured professionally during that period. Dr. Carpenter testified that he treated him in 1866 and in 1870, but could not state that he treated him in 1868, although he had before testified that he had given him some prescriptions in 1868. Dr. Picot testified that he attended him as a physician first in January, 1868 ; that he merely gave him a prescription to be used at that time, but did not attend him in sickness; that he gave him prescriptions, once in a while, for two years and a half afterwards. On cross-examination this witness testified that the assured was always about, attending to his regular business, when he attended him; that his prescriptions were a month or two apart, and were every time given upon the street. The answers given on the first and second application were neither true nor false, for they were not at all responsive to the questions put. Nor can the assured be charged with having suppressed the information which the interrogatories were designed to elicit. The company received the answers given without objection, and thereby waived the giving of fuller ones. If the answers were not satisfactory, they should have so informed the assured. Not having done so, it will be presumed that the answers gave them all the information needed. (Rawls v. Am. Mut. L. Ins. Co., 27 N. Y., 283.) The facts stated in them are true, and the omission to give all the information which full answers would have afforded, cannot be imputed as a breach of warranty, or as a fraudulent suppression of the truth.

With respect to the other answers, it is contended that the statement that the assured had no medical attendant was untrue, because Drs. Eastman and Avery attended him previous to 1866, Dr. Carpenter in 1866 and 1867, and Dr. Picot during the years 1867 and 1868. There is no evidence that either Dr. Eastman or Dr. Avery was his usual medical attendant at the time to which the inquiry related. On the contrary, Dr. Eastman testified that the assured passed out of his hands in 1863, and Dr.. Avery testified that his treatment occurred in 1864 or 1866, consisted of the preparation of medicines, and lasted only a week or ten days. The circumstances under which Drs. Carpenter and Picot prescribed for him, have been already mentioned. The statement of Mr. Proudfit that Drs. Carpenter and Picot attended him, must be taken as having reference to the acts testified to by them. Setting aside Dr. Eastman, we think it would be a perversion of the real relation which existed between these physicians and the assured, to call either of them his medical attendant. A medical attendant is one to whom the care of a sick person has been intrusted. A physician who merely makes a casual prescription for a friend, under the circumstances proved in this case, in the street or elsewhere, can hardly be called such. (Gibson v. Am. Mut. Life Ins. Co., 37 N. Y., 580.) We are of opinion, therefore, that the learned judge did not err in refusing the requests referred to, or in directing a verdict for the plaintiff.

The admission in evidence of the policies, without the applications, was not, we think, improper. The policies of themselves formed complete contracts on the part of the defendant, and the warranties and representations contained in the applications, though forming the consideration of the contracts, were independent and collateral engagements, the breach of which constituted a defense, and which, without proof of such breach, were wholly inoperative upon any rights of the plaintiff But even if the objection of the defendant on this point should be deemed a good one, it was obviated by the subsequent introduction of the applications by the defendant itself. Even an error in refusing a nonsuit is cured by the defendant’s supplying the evidence needed.

The remaining questions are these : First, whether the acts and declarations of the assured, before his insurances were effected, were admissible in evidence ; second, whether the physicians who had prescribed for the assured should have been permitted to disclose information which they had thereby acquired.

The first of these questions has been conclusively settled in this State adversely to the defendant, and it cannot now be treated as an open one. (Rawls v. Am. Mut. Life Ins. Co., supra ; Swift v. Mass. Mut. Life Ins. Co., 2 N. Y. S. C., 303; Bliss L. Ins., § 362.) The admissibility of acts and declarations of assignors, in cases where fraud committed by them and their confederates is the subject in controversy, rests on a different principle. Such declarations are admitted as part of the res gestee. But the acts and declarations offered in this case related to another transaction between the declarant and another party, and had no connection with the transaction in controversy here.

W'e are also of opinion that the testimony of the physicians was properly excluded. The statute provides that “no person authorized to practice physic or surgery, shall be allowed to disclose any information which he may have acquired in attending any patient in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or to do any act for him as a surgeon.” (2 R. S., 406, § 73.) The offer was, to prove by the physicians named that the assured was afflicted with numerous diseases, from knowledge thereof which they obtained by their attendance on him as physicians, and not from any information received from him. The plaintiffs counsel objected to the offer, on the ground that the evidence offered was privileged from disclosure by the statute cited, and the offer was rejected on that ground alone. It is now urged that the evidence offered was admissible because it did not appear that the information excluded was necessary to enable the physicians to prescribe. That suggestion was not made at the trial. If it had been, it might have been obviated. For this reason it cannot be considered on appeal. It is also urged that the statute does not prohibit the disclosure of the knowledge which the physicians acquired otherwise than by communications made by the patient. We think such a construction would be too narrow. The word “ information,” as used in the statute, comprehends the knowledge which the physicians acquired in any way while attending the patient, whether by their own insight, or by verbal statements from him, or from members of his household, or from nurses or strangers, given in aid of the physician in the performance of his duty. Such is the true signification of the word “information.” Knowledge, however communicated, is information. It may be as well derived through the sense of sight as that of hearing. The principle is the same in whatever way. the information passes. (Coveney v. Tannahill, 1 Hill, 35; Robson v. Kemp, 5 Esp., 53.) A dumb patient and one whose vocal organs have been paralyzed, are equally protected by the statute with others. The secrets of the sick chamber' cannot be revealed, because the patient was too sick to talk, or was temporarily deprived of his faculties by delirium or fever, or any other disease, or because the physician asked no questions. The statute seals the lips of the physician against divulging in a court of justice the intelligence — or, if the word is preferred, the knowledge or information — which he acquired while in the necessary discharge of his professional duty. It was enacted for the purpose of extending to the relation between a patient and his physician, the same rule of public policy by means of which the common law protected the professional confidence necessarily existing between a client and his attorney. We deem it a wise and saintary enactment, notwithstanding the principle of affording the protection of the law to professional confidence has in recent times met with strong opposition, supported by able arguments. (See Rules of Evidence, by Mr. J. Appleton of Maine.) It was intended to remove from the law a reproach which had been long felt and often expressed by judges, and it should be interpreted and enforced in a liberal spirit, with a view to effectuate its purpose. (People v. Stout, 3 Park. Or., 670.)

Again, it is saidjihat the privilege of objecting to the disclosure is that of the party, and that the assured, by referring the defendants to Dr. Carpenter when answering the questions put to him on his applications respecting his medical attendant, waived the privilege. There are several answers to this: First. The reference to Dr. Carpenter is easily explained by saying that it was given to enable the defendants to verify the statements of the assured by inquiries (0 be made of the doctor, who was one of the defendant’s medical examiners, out of court, rather than by an examination of him as a witness. Second. No occasion for the exercise of the privilege would ordinarily arise until after the death of the assured. One cannot waive a right, which, from its nature, must belong to another, and which, in the usual course of things, can never be claimed by himself, because it is brought into existence by his death. It is quite correct to say that the privilege is that of the party. The meaning of this, however, is, that the physician will not be allowed to break the seal of confidence, of his own volition. He must at least have the consent of his patient before he can doit. We are of opinion, also, that when the patient has died without giving such consent, the statnte forbids his testimony being received if objected to .by the party ” whose interests are to be affected by it. In such a case, if the rule mentioned be applicable at all, the term party ” must have reference, not to the dead patient, but to the living litigant, against whom the objectionable testimony is offered on the trial of an action to which he is a party. It would be unreasonable to suppose that it was the intention of the legislature, that the protection afforded by the statute should wholly cease with the death of the patient. Such a construction of the statute would impair and in many cases, frustrate the principle on which it is founded, namely, the promotion of unrestrained confidence between physi-cían and patient, and the removal of all temptation to concealment by the latter, which, without that confidence,. might operate on his mind. For it hardly need be observed, that most men are quite as solicitous respecting posthumous, as they are concerning living reputation. In Wilson v. Rastall (4 T. R.., 760), Buller, J., expressed the opinion, that an attorney who was privileged, so as not to be examined in any action against his client, could not prove the same facts in any action against any other person. (See, also, Rex v. Withers, 2 Camp., 578.) Professor Greenleaf lays down the rule applicable to such cases, thus : The protection given by the law to such communications, does not cease with the termination of the suit or other litigation or business, nor by any other change of relations between attorney and client, nor hy the death of the client.” (1 Greenl. Ev., § 243.) This is the logical consequence of requiring the consent of the client or patient before the attorney or physician will be permitted to disclose professional secrets, for it is impossible to conceive any principle whereby death, which forever precludes • the power of giving consent, might be deemed an equivalent thereof. The most that can be reasonably claimed, is, that by the death of the client or patient, the power of giving the requisite consent devolves upon the successor in interest of the deceased, with regard to the subject-matter involved, and perhaps the statute does not warrant that concession. We express no opinion on the subject.

The argument, that, by allowing the privilege under consideration, the court will promote a scheme of fraud, cannot be admitted. One reason is, that if any such scheme was devised, Dr. Carpenter, the defendant’s own medical examiner, must have been a party to it, and it would be more reasonable to presume that the scheme originated with him than with the assured. "Where a medical examiner, selected by the insurer, gives a certificate that an applicant is a fit subject of insurance, when he knows that he is afflicted with diseases which render him unfit, and the insurer acts upon that certificate without further inquiry, and makes the insurance, the conclusion that the transaction, unexplained, was a device of the insurer to cheat the assured, .would be quite as fair and legitimate as that it was the act of the assured alone. Another and decisive reason is, that the statute contains no exception, and we have no power to interpolate one into it. In Bank v. Mersereau (3 Barb. Ch., 600), Chancellor Walwobth rejected a similar argument in favor of admitting the testimony of an attorney, on the ground that it was contrary to the rule of law on that subject. That decision was unquestionably correct, for a rule of the common law, coeval with the existence of the State, can be rightfully changed only by the legislature. The courts overstep their province when they attempt to do so, and it would be a far greater breach of duty to frustrate ‘or impair the operation of a statute, because they deemed it too comprehensive in its scope, or liable to be perverted to improper purposes. The only legitimate remedy for such abuses must be sought in an amendment of the law by the legislature. It is proper to say in this connection, that it is hardly probable that ihe physicians in this case were privy to any fraudulent design of the assured, or that any such design existed. None of them, except Dr. Carpenter, appears to have liad any kno.wledge of the insurances made by the defendant, and nothing appears to implicate the latter.

Nor can we accede to the proposition that section 390 of the Code, whereby a party to an action is enabled to examine the adverse party as a witness, has abrogated the privilege by which the provision of the Revised Statutes, cited, has protected the-information of the physicians against disclosure. Both statutes are perfectly consistent with each other, and, upon a settled principle of law, each is preserved and must be enforced. The authorities to which we have been referred upon this subject, relate only to the effect of section 390 of the Code upon the rule which prevents attorneys and counselors from divulging information in regard to their clients, of a confidential character. It is unnecessary to express any opinion respecting these decisions, for the reason that they do not absolutely conflict with the views expressed. It does not follow that, because section 390 of the Code has abrogated the rule of the common law relative to attorneys, etc., referred to, it has repealed a positive statute which established the same rulé with respect to physicians. Besides, the réasons given to support those decisions, however cogent when the client is alive and capable of testifying, cease when he dies.

The prevention and detection of fraud, and the discovery, vindication and establishment of truth, no doubt are among the chief purposes for the existence of courts of justice. Still, even those great objects cannot be usefully pursued unfairly, or by discreditable means. The meanness and the mischief of prying into a man’s confidential consultations with his physician, the general evil of infusing reserve and dissimulation, suspicion and fear, into those communications, are too great to be encountered for the sake of the good which might escape, if the barriers of professional confidence should be pulled down. (See Pearse v. Pearse, 1 De Gex & Smale, 12.)

It might have been urged with some show of reason, but was not, that, inasmuch as neither of the physicians, except Dr. Eastman, was a medical attendant, they did not come within the purview of the statute. We think, however, that the language of the statute, as well as the policy and intent thereof, plainly embrace a physician who casually, or in any way, attends and prescribes for a patient, whether he be the family physician, or the usual medical attendant, or not. (People v. Stout, supra.)

Our conclusion upon the whole case is, that the exceptions must be overruled, and that judgment must be ordered for the plaintiff upon the verdict.

Present — MulliN, P. J., SMITH and Gilbert, JJ.

New trial denied, and judgment ordered for plaintiff on the verdict.


author: Gilbert, J.:

text:
    GEORGE McMILLAN, Respondent, v. THE SENECA LAKE GRAPE AND WINE COMPANY, Appellant.

      Mechamos’ lien — foreclosure of — Evidence•—Abandonment of contract — payments m.ade after filing notice of lien — Effect of notice of lien — Surplusage in notice of lien — when it does not vitiate.

    In an action brought for the foreclosure of a lien, the defendant offered to prove that on the very day the lien was filed the contractor became unable to complete the building or to advance the necessary funds to purchase materials therefor and to pay laborers thereon, and that the defendant, in order to complete the building, was forced to and did purchase materials therefor and pay laborers thereon to an amount exceeding the price agreed to be paid in the contract. Held, that the evidence was properly rejected, as the offer did not show that the contract had been abandoned, and the sums paid must be considered as payments made thereunder, after the lien was filed.
    While the contract remains in force, no payment made to the contractor, after notice of lien has been filed by a sub-contractor, can affect the lien thereof.
    The operation of the lien law, when a notice is filed by a sub-contractor, is to transfer to the lienor the contractor’s claim against the owner pro tanto, and when the contract provides that the contractor shall receive eighty per cent of the value of the work as it progresses, and the work has been in part performed, it is incumbent on the owner, in an action by the lienor, to show that such eighty per cent was paid before the filing of the lien.
    When the amount of a claim is specified in a notice of lien, the addition thereto of the words “ with interest ” does not vitiate the lien, but such words may be treated as surplusage.
    Appeal by the defendant from a judgment entered upon the report of a referee. He found, among other things, that during the years 1871 and 1872, the defendant was engaged in erecting a building known as a wine cellar, upon premises owned by it in the town of Milo, in the county of Yates. That on the 27th day of July, 1871, the defendant, by its president and secretary, made, entered into and executed a written agreement with one S. B. Ooe, for the erection of said wine cellar. That after the making and executing of said agreement between the defendant and the said S. B. Coe, and on the 31st day of July, 1871, the plaintiff and said Ooe entered into a writ; on agreement for the sale, delivery and furnishing of certain lumber and timber therein specified, to be used by the said Ooe in the erection and construction of said wine cellar. That the plaintiff, on the 26th day of August, 1871, caused to be shipped and delivered at Shingle Point landing, on Seneca lake, timber and lumber which was received and accepted by Ooe under, in pursuance of, and in part fulfillment of said last named contract, and contained in the bill or list. That on the 28th day of February, 1872, the plaintiff filed, in the clerk’s office of Yates county, a notice of lien as required by statute, for the sum of $575. The notice alleged that the plaintiff had a claim against the defendant for “ $575 and interest thereon, for lumber and material furnished,” etc. That previous to the filing of such notice the defendant had paid to said Ooe, upon said contract-price for the erection of the wine cellar and buildings, in money, the sum of $5,509.
    That after the execution of the written agreement, the defendant and Coe had an understanding or arrangement between them, by which the defendant was to aid said Coe in the erection of the building, board and furnish board for his workmen, furnish and haul stone, etc., at such times and in such amounts as suited the convenience of the defendant. That under said arrangement the defendant did furnish board for the workmen of the said Coe, and also furnished him with stone, labor, hay and oats, to the amount and value of $869.
    That after the filing of plaintiff’s lien, on the 28th day of February, 1812, the defendant, under such arrangement and understanding, voluntarily furnished board to said Coe and his workmen to the amount and value, as agreed upon between Coe and the defendant, of $180, which, with the amounts thereof paid to said Coe in money, board, labor, etc., exceeded the contract-price for the erection of said wine cellar and building in the sum of $136. That at the time of the furnishing by the defendant of the board, materials, etc., previous to the 28th of February, 1812, the same were furnished by said defendant without any collusion or design to defraud the plaintiff.
    That at the time of the filing of said plaintiff’s notice of lien, there was yet to grow due upon said contract, over and above the previous payments, the sum of $572.
    That in November, 1872, Coe substantially completed the building under the contract, and the defendant went into possession of the same.
    The referee found that the plaintiff was entitled to judgment.

      Butler <& Bearl, for the appellant.

      William 8. Briggs, for the respondent.
   Gilbert, J.:

The case contains several exceptions besides those insisted on by the appellant’s counsel. Upon examination, we think those omitted were properly waived on the argument, and we shall not discuss them.

The objection that the notice of lien did not accurately specify the amount of the claim, we think was properly overruled. An amount was stated, and the addition of the words, “ with interest,” . did not vitiate the notice, because, if need be, they may be rejected as surplusage. It was proper to show that the date, twenty-first January, in the schedule annexed to the complaint, was inserted therein by a clerical mistake which occurred in transcribing it from another paper, and'it was quite immaterial whether the latter was an original paper or a copy. The mistake might have occurred in transcribing from the one as well as the other.

When the plaintiff; rested, enough had been shown to establish, prima facie, that the defendant was indebted in some amount to Coe, the contractor. The operation of the lien law is to transfer to the lienor the contractor’s claim against the owner pro tanto. It is a form of equitable subrogation. The plaintiff having proved the contract by which the defendant agreed to pay eighty per cent of the value of the work as it progressed, and that the contractor had performed it in part, the indebtedness of the defendant to him appeared, and it was incumbent on the defendant to prove that it had been discharged. (Phil. Mech. Lien, § 63.) The work was in progress under the contract when the suit was commenced, and twenty per cent of the value of it would become due thereafter. The plaintiff was clearly entitled to intercept the payment of a part of that. There was no error, therefore, in denying the motion for a nonsuit.

In the course of the trial, the defendant offered to prove that, on the very day the lien was filed, the contractor became unable to complete the building, or to advance the necessary funds to purchase materials therefor, and to pay laborers thereon, and that the defendant, in order to complete the building, was forced to and did purchase materials therefor and pay laborers thereon, to an amount exceeding the price agreed to be paid in the contract. This evidence was properly rejected, for the reason that the offer did not embrace the proposition that the contract had been abandoned. Won constat the acts of the defendant were done under an agreement with the contractor, that the sums so expended should be treated as payments under the contract. Indeed, such appears to have been the fact. If, when a notice of lien is filed in a case like this, the contractor has been folly paid for all work done prior to that time, and, for any cause, the contract is mutually abandoned, the lien will be defeated, for nothing can thereafter become due to the contractor. The statute expressly limits the lien to the sum which the contract renders the owner liable to pay. But, while the contract remains in force, no payments to the contractor on account thereof, after the notice of lien has been 'filed, can affect the lien. It is immaterial whether such payments were made in the mode provided by the contract, or in a substituted form, for the statute gives the lienor his lien for the value of his labor or materials, subject only to the limitation before mentioned. The plain operation of the statute is to entitle the lienor to so much of the claim of the contractor ag’ainst the owner, as will be sufficient to satisfy his demand against the contractor. In other words, the lienor succeeds to the right of the contractor to receive the payments, and a payment to the contractor, after the lienor has filed his notice of lien, can in 'no wise affect or impair the rights of the latter. The statute places such payments on. the footing of a payment to the wrong person. (Carman v. McIncrow, 3 Kern., 70.) It may be added, that the answer does not set up that the contract had been abandoned.

These payments not being available to defeat the lien, it remained; and if the contractor could have recovered them in case they had not been made, the plaintiff may do so notwithstanding they were made. The fact that they were made under the contract, is satisfactory evidence, in the absence of proof of fraud or mistake, that they were due. The referee has so found in substance, and it is immaterial to inquire whether other propositions embraced in his findings are erroneous or not.

The judgment must be affirmed.

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

Judgment affirmed, with costs.