text:
    ALFRED TILEY, Respondent, v. THE THOUSAND ISLAND HOTEL COMPANY, Impleaded, etc., Appellant.

      Mechanic's lien — sale of property during performance of contract— liaM/ity of pw’-chaser — Notice of lien, under chap. 489 of 1873.
    In March, 1873, the plaintiff entered into a contract with the owners of a hotel to furnish and put therein all the gas and water pipes and all wash-bowls, etc., that might he needed, and in pursuance thereof he commenced to furnish materials and perform work in March, and continued so to do until the contract was fully performed on his part on July nineteenth. On the first of May the property was conveyed to the defendant. On the seventh of August the plaintiff filed a mechanic’s lien against the defendant. Held, that he was not entitled to a lien for so much of the materials and labor as were furnished and performed before the title was acquired by the defendant.

      Held, further, that the lien only extended to such materials as were furnished and to such labor as was performed within the sixty days, immediately preceding the filing of the notice of lien.

      Spencer v. Ba/rneit (35 N. Y., 94) followed.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      O'Brien d¡¡ Emerson, for the appellant.

      F. W. Hubbard, for the respondent.
   MulliN, P. J.:

In the winter of 1813, Staples' & Nott erected on land owned by them in the village of Alexandria Bay, in the county of Jefferson, a hotel known as the Thousand Island House, and on the thirteenth of March of that year, they entered into a contract, in writing, with the plaintiff to furnish and put into the building, gas and water pipes, wash-bowls, and marble, that might be required therein, to be paid for by them in notes of said S. & N., one at two, and one at four, and one at six months.

Plaintiff commenced to furnish material and to do the work contracted for in March, 1873, and the contract was fully performed on the nineteenth of July, following.

On the twenty-eighth of April, of the same year, Staples & Nott, and their wives, proceeded to incorporate a corporation called the Thousand Island Hotel Company, and on the first of May conveyed to it, in fee, the land on which said hotel was erected. On the 7th August, 1873-, the plaintiff filed in the office of the clerk of Jefferson county, a mechanic’s lien, pursuant to the statutes relative thereto, specifying the amount of his claim, and that it was made against the Thoiisand Island Hotel Company.

The amount for which plaintiff claimed a lien, was $3,577.08, with interest from seventh August. S. & N., after the plaintiff had completed his contract, offered to give plaintiff their notes for the amount due, but he refused to receive them, and they were not executed.

The plaintiff, in March, 1874, brought his action to foreclose said lien ; S. & N., and the corporation defended.

The issues were referred, and a referee, after hearing the parties, found the facts above stated, and ordered judgment in favor of the plaintiff, and that said lien be foreclosed and the property sold, and from the proceeds the plaintiff be paid the sum of $3,863.93, being the amount of their claim, and interest, together with the costs of the action. At the close of plaintiff’s evidence, the defendant moved for a nonsuit on the following grounds:

1. That the evidence was insufficient to authorize recovery under the pleadings. ,

2. There was no proof that the work and material, or any part thereof, was furnished by the direction of the Thousand Island Hotel Company, or by virtue of any contract with said company.

3. The evidence did not show a valid lien in favor of the plaintiff, against the property described in the notice.

4.The evidence showed the claim of plaintiff was fully paid, satisfied and discharged.

•5. That as plaintiff refused to accept the notes tendered to him, he is not entitled to any judgment or relief in this action.

The motion was denied and defendant’s counsel excepted.

The defendant’s counsel requested the referee to rule and decide as follows, viz.:

1. That filing plaintiff’s notice did not create any lien except for such work as was done and materials as were furnished, within sixty days immediately preceding the filing thereof.

2. That the notice was not a lien for any of the items in plaintiffs bill that accrued prior to April 28,1873, the date of the incorporation of the hotel company.

3. That there was not a lien for any of the items of the bill that accrued subsequent to May 1, 1873, the date of the deed to said company.

4. The evidence did not show any indebtedness from the corporation to S. & N., on account of the erection of the building, and there could not for that reason be a recovery.

5. That plaintiffs work and furnishing of materials were not continuous from commencement till the termination of the same.

6. That if plaintiff had accepted the notes under the written agreement, they would have operated as payment of plaintiff’s claim as far as the corporation is concerned!

7. That the tender of said notes operated as payment so far as the corporation is concerned.

8. That the tender of the notes operated to release any lien plaintiff had against the corporation.

9. That filing notice did not create any lien upon the property as against the corporation.

The referee refused to find or decide as requested, and defendant’s counsel excepted.

Section 1 of chapter 489 of the Laws of 187?, provides that, any person who shall hereafter perform any labor in erecting, altering or repairing any house, building, or the appurtenances to any house or building, or who shall furnish any materials therefor, with the consent of the owner, shall, on filing with the county clerk of the county in which the property is situated, the notice prescribed by the fourth section of said act, have a lien for the value of such labor or materials upon such house, etc., and upon the lot, etc., to the extent of the interests of such owner.

By the fourth section, a notice must be filed in the county clerk’s office within sixty days after the performance and completion of such labor, or the furnishing of such material. The notice filed by the plaintiff in the county clerk’s office was a substantial compliance with the fourth section, and a lien was thereby created on the hotel property, from the date of the filing. But the hotel company did not become liable for work done or materials furnished before it became owner of the property. Until it acquired title it was not owner of the building, and could not be deemed to consent to doing the work or furnishing materials by the plaintiff.

The referee has, by his report, charged the company with the work done and materials furnished from the beginning of the work.

I understood the appellant’s counsel to claim in his points that a lien cannot be held to have been created against the hotel company, because the contract with plaintiff for doing the work, etc., was made by Staples & Nott, and not by the company, and cites in support of the proposition, the case of De Ronde v. Olmsted (47 How., 175) and Muldoon v. Pitts (54 N. Y., 269).

These cases have no application to cases arising under the general mechanic’s lien law. (Chap. 489 of Laws of 1873.)

By the mechanic’s lien law in force in the city of New York (chap. 500 of the Laws of 1863), in order to obtain a lien on property by a mechanic for work, or by one furnishing materials, it must appear that the owner of the property on which a lien is sought contracted for the labor and materials.

There is no such provision in the general law. It is only necessary that the owner should consent that the work be done or materials be furnished, in order to entitle the party to a lien.

It is not necessary to inquire what the rights of S. & N. were under the contract between them and plaintiff. After the sale to the hotel company, the latter was not a party to that contract and acquired no right under it, unless it might refer to it to fix the amount for which plaintiff was entitled to a lien.

The case does not show but that the hotel company purchased the property as it was at the date of its deed, and was itself to com-píete the plumbing. If so it had nothing to do with the notes that S. & N. were to give, nor with the term of credit that those notes provided for.

After the conveyance to the hotel company, the work was done and materials furnished on the credit of the hotel company or in contemplation of acquiring a lien on the house, etc., for the price of the work.

Practically, the sale to the hotel company terminated the contract between plaintiff and S. & N., although the plaintiff would have a remedy against them, if they were pecuniarily responsible.

The lien, as against the owner, is not impaired by taking security from some other party, unless it is expressly agreed that the security shall operate as payment.

The notes of S. & N., if given and received, would not have discharged the lien in whole or in part against the hotel company.

It is true the contract between S. & N., and the plaintiff provides that they (S. & N.) agreed to pay for such work as follows: give their notes, payable at bank in two, four and six months after completion of said work. This is not an express agreement to take the notes in satisfaction of the debt. The word pay,” as used in the contract, meant that the notes should be taken in liquidation rather than in satisfaction.

It is urged by the appellant’s counsel, that the referee should have limited the lien of the plaintiff on the property to the value of the work done and of materials furnished within sixty days, next preceding the filing of plaintiff’s notice in the county clerk’s office.

In Spencer v. Barnett (35 N. Y., 94), this question was before the Court of Appeals. The case arose under the lien law in force in the county of Kings. That statute (chap. 335 of the Laws of 1853) required a notice of the lien to be filed before the expiration of sixty days after materials were furnished, and before the expira-, tion of thirty days after the completion of the work.

The materials, says the judge who delivered the opinion of the court, were furnished under an agreement whereby the plaintiff was to deliver them at agreed prices until navigation closed, and after that at market rates. All the materials were delivered before the 10th of January, 1857, except three items delivered in March and April.

None were delivered between January tenth and March twelfth. The notice was filed May 9, 1857.

The City Court of Brooklyn, in which the action to enforce the lien was brought, held that the plaintiff was entitled to a lien for all the materials delivered by him under the contract.

The Court of Appeals reversed the judgment holding that plaintiff could only recover for the property delivered within sixty days before the notice of the lien was filed.

Whether this decision is right or wrong we must obey it. If a continuous delivery would enable the plaintiff to recover for property delivered within sixty days before the filing of the notice, this judgment ought not to have been reversed. The contract contemplated a delivery from time to time during navigation and after it closed, and the delivery was in accordance with such intention.

We think the case is directly in point, and is decisive of the question. The referee erred in allowing plaintiff for work done or materials furnished more than sixty days before the notice of lien was filed.

As this view of the case leads to a reversal of the judgment, it is unnecessary to consider the question raised by the appellant’s counsel in regard to the rulings on the trial and the refusal to find as requested.

Judgment reversed and a new trial ordered before another referee, costs to abide event.

Present — MulliN, P. J., Smith and Talcott, JJ.

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


source: Caselaw Access Project

author: E. DaewiN Smith, J.:

license: Public Domain

text:
    ELLEN M. BIGELOW, Administratrix, and others, Respondents, v. CHARLES B. BENEDICT, Appellant.

      Wager eonlrraets.

    The validity of a contract to sell and deliver gold or silver coin at a future day, at a stipulated price, depends upon whether it was intended as an actual sale of the gold or silver therein specified, or whether it was intended merely as a wager, there being no intention of performing the contract, which was used merely to fix the sum which the losing party should pay.

      Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    In April, 1866, Merritt C. Bigelow, the plaintiff’s intestate, commenced an action against the defendant to recover damages for a breach of the following contract, which he set out in his complaint:
    “Attioa, January 23, 1865.
    “ Know all men by these presents that I, Charles B. Benedict, for and in consideration of the sum of $250, good and lawful money of the United States, to me in hand paid, the receipt of which is hereby acknowledged, do agree to receive from M. C. Bigelow, at any time within six months from date, when he may choose to deliver the same, $2,500 in gold coin of the United States, for which I agree to pay to said Bigelow ninety-five per cent premium on the dollar, or at the rate of $195, in good current funds, for each and every one hundred of coin. The said Bigelow does not contract to deliver the coin, but pays the $250 for the privilege of delivering or not, at his option.
    (Signed) “ C. B. BENEDICT.”
    The complaint alleged a tender of the gold by Bigelow, and a refusal on the part of the defendant to receive it and pay the premium thereon.
    The defendant demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action.
    The issue of law was tried before Mr. Justice Daotels, who gave judgment for the plaintiff on the demurrer, upon the sole ground that the complaint contained a cause of action as to the $250 advanced as a consideration by the plaintiff, but held that the contract was void as being a mere bet or wager. Leave was given to the defendant to answer over.
    The judge before whom, without a jury, the. action was tried on the issues raised by the answer, found that the contract was not a wager contract, and directed judgment for the plaintiff.

      A. P. Laning for the appellant.
    The agreement in question is void, being in violation of the provisions of the Revised Statutes against betting and gaming. (1R. S. [2d ed.], 666, § 8.) Although the agreement has somewhat the form of an agreement for the sale and purchase of gold, it is apparent upon its face, and such is its legal import, that this feature is but a mere disguise, and that a sale or purchase was not desired or intended. (Girsewood v. Blame, 20 E. L. and E.-, 290; Ranke v. Short, id., 2Í9; Parsons v. State, 2 Cart. [Ind.], 499; Hiser v. State, 12 Ind., 330.) In respect to the nature and validity of the agreement, the option allowed to the plaintiff has very great foi’ce. The fact that he was not by the terms of the contract obliged to deliver it, is pretty conclusive that the defendant did not wish to purchase and the plaintiff did not have the gold to deliver. This circumstance is controlling as to the intention of the parties. (Oassard v. Hinmcm, 1 Bosw., 207; Hall v. Bergen, 19 Barb., 122 ; Marean v. Langley, 8 Shep., 26; Danforth v. Bvans, 16 Yt., 538; Orares v. Rogers, 11 Ala., 543 ; Vromwell v. Gordon, id., 656 ; Life v. Firiarity, 6 Clark’s Iowa, 394; Judd v. Burnett, 14 Ind., 25; Cooper v. Brewster, 1 Minn., 94; Ruekman v. Pitcher, 1 N. Y., 392 ; Matter of P. K. Chandler, 13 Am. L. B,. [N. S.], 310; Piekering v. Cease, Sup. Ct. Ill., rep. 8 Chi. Leg. News, 43, p. 340; Lyon v. Gul-burtson, id., 20, p. 153.)

      L. M. Tha/yer, for the respondents.
   E. DaewiN Smith, J.:

TJpon the face of the contract set out in the plaintiffs’ complaint, and upon which this action is brought, I should find no difficulty in concurring in the opinion of Judge Daniels, delivered when the case was before him at Special Term upon demurrer, that the said contract was a mere bet or wager contract. He overruled the demurrer and required the defendant to answer, upon the ground that the plaintiff was entitled to recover the $250 paid to the defendant, as acknowledged in said contract. This ground of action was relinquished at the trial, and the plaintiff can only recover upon the ground, in opposition to the opinion of Judge Daniels, that the said agreement was a valid contract for the purchase of the $2,500 in gold coin of the United States as therein stated.

The learned judge who tried the cause at the Circuit, without a jury, has found as matter of fact: “ That prior to and at the time of the making of said contract, the said defendant was engaged in the business of banking as a private banker, and had been and was engaged among other things in purchasing gold coin to hold, and said contract was made in the usual course of business, and was not a bet or wager, as alleged in the defendant’s answer to said complaint.”

It is doubtless true that a contract to sell gold or silver coin, and deliver it at a future time, for currency, at a stipulated price, may be a valid contract, and will be valid if it was intended, in fact, to be an actual sale and not a mere wager contract.

This is so held or recognized in Peabody v. Speyers (56 N. Y., 230); and in Cameron v. Durkheim (55 id., 425); and in Cooke v. Davis (53 id., 318).

In the case of Peabody v. Speyers, Judge GboveR said that “ the finding of the trial judge of the fact that the contract was for the sale by the plaintiff to the defendant of $40,000 of gold, to be paid for by the latter in currency at the stipulated price, if correct, entirely obviated the objection of the counsel that the contract was made void by the statute prohibiting betting and gaming.”

That is precisely like the present case.

The contract clearly admits the construction put upon it by the trial judge at the Circuit. The actual payment of the $250 in hand was to be absolutely forfeited if Bigelow failed to perform the contract. This may be regarded as a penalty for such non-performance on his part, and it is certainly a good consideration for the agreement of the defendant to receive and pay for the gold coin at the price and time stipulated in the contract. In this view the contract is, doubtless, an optional one so far as related to Bigelow, but not at all optional on the part of the defendant. He was bound to receive and pay for the gold at the stipulated pxdce. An optional contract is not invalid when it is made upon a good consideration. It is only objectionable when it is, in fact, a mere gaming contract. When contracts for the sale of merchantable articles have been held gaming contracts, the parties never expected or intended there should be performance in fact, but that they should merely operate to fix the price, which the losing party should pay on the settlement of a loss or profit depending upon the rise or fall of the property in the market.

Such was tbe case of Grizewood v. Blane (73 Eng. Com. Law, 525), where it was held that a colorable contract for the sale of railway shares, where neither intended to deliver or accept the shares, but merely to pay differences according to the rise or fall in the market, was a gaming contract.

In Brua’s Appeal (55 Penn., 298) the court say, that “ a contract to purchase stock without an intention to deliver or receive same is a gaming contract.”

And this is the rule asserted in the case of The Matter of Chandler (13 American Law Pegister, 310). In that ease the option was to deliver oats at a particular price within a time specified. Upon the proofs in the cause the learned judge decided as matter of fact that neither party expected to fulfill the contract; that the contract was simply to be used or refen’ed to in the settlement of differences, as to the value of the oats at the time specified.

The question in the last mentioned case, and in all the cases referred to, is treated as one of intention to be derived or inferred from the existing and extrinsic facts and circumstances of the case. It is in this view that the finding of the learned judge at the Circuit that the contract was made in the usual course of business and was not a bet or wager, must be regarded as giving the true construction of said contract. As such finding is not unwarranted by the evidence, the decision of the learned judge must stand, and the judgment should be affirmed.

Judgment affirmed.

Present — MulliN, P. J., Smith and Taloott, JJ.

Ordered accordingly.


author: E. Darwin Smith, J.:

text:
    LORENZO T. HOWARD, Respondent, v. CHARLES E. UPTON and others, Executors of O. M. BENEDICT, Deceased, Appellants.

      Evidence — res gestee — Deela/i’aiions in confirmation of prior statements of witness —
    In an action by the indorsee of a promissory note tbe title of tbe plaintiff was not put in issue, but tbe defendant relied upon the statute of limitations. Upon tbe trial one of tbe makers was allowed to testify that within six years bis co-maker, since deceased, bad paid to bim acting- as the agent of bis wife, tbe then bolder of tbe note, $100 to be applied upon tbe said note; and also that, at tbe time of tbe transfer of the note to tbe plaintiff, be bad stated to bim, tbe plaintiff, tbe fact of this payment.

      Eelct (1), that bis testimony as to what be bad stated to tbe plaintiff at tbe time of tbe sale of tbe note was inadmissible; (2), that it was not admissible as a part of tbe res gestee as it did not relate to or bear upon any issue raised in tbe case.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying defendants’ motion for a new trial.
    This action was brought by the plaintiff as the indorsee of a promissory note made by the defendants’ testator, O. M. Benedict, and one Lewis Benedict, to Louisa D. Benedict (the wife of said Lewis Benedict), and by Louisa D. Benedict transferred to the plaintiff. The issue arose under a defense setting up the statute of limitations. i

      George F. Danforth, for the appellants.

      A. JWilkins, for the respondent.
   E. Darwin Smith, J.:

This case presents but a single exception which appears entitled to particular consideration. The note upon which the action was brought was for $1,600, payable to the order of Mrs. Louisa D. Benedict. It was dated August 12, 1864, and was payable one year after date.

The production of the note at the trial, with the indorsement of Mrs, Benedict upon it, was sufficient prima faoie to pass the title to the plaintiff. No point appears to have been made upon this question on the trial, and I presume for that reason that the indorsement of Mrs. Benedict appeared upon the note when presented, although it does not appear to have been so indorsed as the note is described and set out in the case. Proof was, however, duly made of its transfer in fact by the husband of Mrs. Benedict, acting for her, for the consideration of $150 in October or November, 1871. If it was unnecessary it was yet admissible for the plaintiffs to make proof as he did of such sale and transfer.

And the proof given was sufficient to pass the title to the note for the purpose of the suit, although it showed that nothing was in fact sold, or intended to be, more than the amount advanced upon such transfer, and that the plaintiff was to collect the note and pay the balance, over and above said $15(3 and his expenses, to Mrs. Benedict.

The sole defense in this action was the statute of limitations, and the plaintiff proved by the same witness, Lewis Benedict, who was a joint maker of the said note with the deceased O. M. Benedict, that the latter paid to him, acting for his wife, the sum of $100 on said note, on about the 4th of July, 1871. After the proof of these facts was made, the plaintiff’s counsel proposed to show that at the time of the sale the witness told Howard, the plaintiff, that there had been a payment of $100 on the note.

The defendant’s counsel objected to the proposed evidence. The court overruled the objection and decided that it was no evidence of payment, and he should so instruct the jury, but inasmuch as it was a part of the transaction, he would not exclude it, and received the evidence, and the defendant’s counsel d\rly excepted.

The objection made to this evidence was a general one, and insufficient if such evidence was admissible upon any apparent ground. If the evidence was generally admissible as part of the res gestee, as stated by the judge, or on other grounds, the objection was not well taken and the exception unavailing. Upon the face of the offer it was nothing more, apparently, as it must have been understood and considered at the time, than an offer to corroborate the testimony of Benedict, the witness, on the question of the payment, of the $100 by proof that the witness afterward stated the fact of such payment to the plaintiff, The judge correctly ruled upon this' point, tbat it was inadmissible for such purpose. It was not suggested, as appears in tbe case, that the proof was directed to any. other point or issue, or offered to establish any other fact, and it is difficult to see how proof can be introduced into a cause on the trial, as part of the res gestm, not pertinent to some issues or directed to the establishment of some material fact within the issue. It does not appear that the counsel for plaintiff put his claim to give this testimony upon any particular ground. So far as appears or may be inferred from the remark or ruling of the judge, the offer was to give the evidence as part of the res gestm; that is to say, as part of the transaction of selling the note to the plaintiff. Upon this question there was no issue made in the pleading or on the trial, as I can see, in respect to the plaintiff's title to the note, or his right to sue upon it. This being conceded or assumed, there was nothing on that question to be further proved. The plaintiff had proved the sale, in fact, and the payment of $150 for the note by the. plaintiff. The only real issue upon the trial was whether the $100 was paid upon it as stated by the witness Benedict.

To let him testify, as part of the res gestce, of a distinct and independent transaction, that then and there he stated the fact of such payment, was to suffer him to make a declaration subsequent to the making of such payment in corroboration of ,1ns testimony on that point, and thus effect indirectly and illegitimately what he clearly could not have been allowed to do directly.

Evidence of declarations and entries is admitted in evidence as a part of the res gestm of a transaction, either because they constitute the fact which is the subject of inquiry, or because they elucidate the facts with which they are connected. (Starkie on Evidence [10th ed.], 89.) And the declaration must be made at the time of the act, and not relate to or be explanatory of a previous transaction. (1 Greenleaf, 136, and note; and 8 Smed. & Marsh., 722; Scragger v. The State and Enos v. Tuttle, 3 Conn., 250.) The evidence thus received of the declarations of the witness, Benedict, must have been considered by the jury, and may have influenced their opinion upon the question of his credibility within the main issue of the payment of such sum of $100. It was not excluded from the jury, nor were they instructed to disregard jt; on the contrary, they were instructed to look at all the evidence in determining the question submitted to them,” which must have included the declaration so made and proved by Lewis Benedict at the time of the sale of said note. I think it was error to have received such evidence in the manner and upon the ruling or ground stated at the Circuit, and that such evidence may have. prejudiced the defendant. The objection to the testimony of Mrs. Benedict, that she had in her hands at the time of the making of said note, $1,600, as guardian of her child, was a good objection. The evidence was irrelevant and immaterial, and might have been properly excluded, but it had previously been received in the testimony of Lewis Benedict without particular objection, and it could hardly have been of sufficient importance to exclude.it, when sought thus to be repeated by Mrs. Benedict. I think there should be a new trial with costs to abide the event.

Present' — MulliN, P. J., Smith and Taloott, JJ.

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


author: E. DaewiN Smith, J. :

text:
    NATHAN WEBSTER, Appellant, v. EDWIN BOND and MARTHA BOND, Respondents.

      legal action — equitable defense — does not entitle defendant to have others joined as 'parties in the action— Oode, § 122.
    A person bringing a legal action cannot be compelled to sue any person except such as he may elect to sue. A defendant cannot convert such action into an equitable one by interposing an equitable defense. Such defense must stand and be tried upon its merits, as a mere naked defense.
    Section 122 of the Code, authorizing the bringing in of additional parties, only applies to equitable actions.
    Accordingly, where a defendant in an action of ejectment alleged that the deed under which the plaintiff’s grantor claimed was in fact a mortgage, and that the same had been paid and discharged, held, that he was not entitled to an order requiring the plaintiff to bring in the executors of his deceased grantor, as necessary parties to the action.
    Appeal from an order of the Special Term, requiring plaintiff to bring in other parties, and staying proceedings in the mean time.

      The action was in ejectment to recover possession of certain lands in Elbridge, against the defendants in possession claiming title. After setting ont certain legal defenses to the action the defendants set up an equitable defense and counter-claim, alleging that although the legal title is in the plaintiff, they are entitled to a conveyance from one Squire M. Brown, his heirs and assigns, who took title originally as trustee of the defendants’ assignor, Henry W. Bond. That Brown was to hold the title to said premises till certain moneys due to him from said Henry W. Bond were repaid. That said moneys had been fully paid to said Brown, but that said Brown had neglected to make a conveyance.
    After trial and after the case was submitted to the court for decision, the court made an order staying plaintiff’s proceedings until the plaintiff brought in outside parties, either as plaintiffs or defendants, who were deemed necessary parties to enable the defendants to make their defense available in this action. The plaintiff appealed from this order to the General Term.

      Le Roy Morgan, for the appellant.

      G. S'. Kennedy, for the respondents.
   E. DaewiN Smith, J. :

The plaintiff commenced an action of ejectment for certain land in possession of the defendants.

The defendants’ answer, among other defenses, sets up an equitable defense to the effect that the plaintiff’s grantor, in the deed upon which he relied to show title, held such title as a mere security for a debt, or sum of money which had long previously been paid.

This answer, if established, was a complete defense to the plaintiff’s cause of action; for an equitable defense is equally as effectual as a legal one. (Crary v. Goodman, 12 N. Y., 266; Cavalli v. Allen, 57 id., 508; Traphagen v. Traphagen, 40 Barb., 537; Safford v. Hynds, 39 id., 625; Dobson v. Pearce, 2 Kernan, 156; Phillips v. Gorham, 17 N. Y., 274.)

If the defendants could establish that the title of the plaintiff’s grantor was that of a mere mortgagee, and that the mortgage had been fully paid before the conveyance was given to the plaintiff, the latter having full notice of the defendant’s possession under claim of title, took no title by the deed, more than his grantor possessed ; which being a mortgage title, at best, would not sustain an ejectment.

If the parties were reversed, and the defendants were plaintiffs, or if they were seeking affirmative relief in this action, it would, doubtless, be necessary that the executors of the Monroe estate, the plaintiff’s grantors, be made parties, either by amendment of the pleadings or by a cross-bill.

But the defendants ask no affirmative relief in the action ; they stand upon their equitable defense, and are clearly entitled as a mere defense, to prove and establish it, whoever may be concerned or interested in the result. The decision would, doubtless, not be res adjudicate/,, as against such executors, as between them and the defendants, or as between them and the plaintiff, unless the latter had given them due notice of such defense and called upon them to oppose and litigate it in this action.

The plaintiff’s action is a legal one; and in such action I do not see how a party can be compelled to sue any person except such as he may elect to sue. The provision of section 122, for bringing in other parties, was designed to adopt the rule in equity on this point, and is only applicable to equitable actions. In legal actions, if the plaintiff cannot recover upon the case made by him he must be nonsuited, or should have a verdict against him. If, in such action, a defendant sets up an equitable defense, it must stand, and be tried upon its merits as a mere naked defense.

By putting in an equitable defense the defendant does not convert a legal action into an equitable one, or change the plaintiff’s rights to have his legal rights determined in a legal forum. The Code simply allows an equitable defense to be set up in a legal action, to the same effect as if it were a strict legal defense.

The defendants in this suit stand upon their equitable defense ; they claim and seek to establish that the plaintiff’s grantor had a mere mortgage interest in the land in dispute, and that his mortgage was fully paid, and that the deed to the plaintiff is, therefore, fraudulent and void. They, and others under whom they hold, have been in possession, under claim of title, for nearly forty years, claiming title, and ask for no affirmative relief to protect such possession.

If the defendants desired equitable relief, as was the case in Siemon v. Schurck (29 N. Y., 613), they might and may still file their cross-bill and make the plaintiff and the executors of the Monroe estate parties; and in such suit they could set aside the plaintiff’s deed, and have a reconveyance of the property, and their possession and title quieted. (The Auburn City Bank v. Leonard, 20 How., 193.)

The cases in which pleadings have been amended to bring in other parties, under said section 122, have been, generally, equity cases.

The ease of Shaver, Receiver, etc., v. Brainard (29 Barb., 25), where the plaintiff was required to bring in another party, was an equitable action; so was Davis v. Mayor of N. Y. (2 Duer, 663; reversed, 14 N. Y., 514).

We think the defendants need to have no additional parties brought in to enable them to make their defense, and that the order should he reversed.

Present — Mullin, P. J., Smith and Talcott, JJ.

Order reversed, with ten dollars costs and disbursements.


author: E. Dabwot SMITH, J.:

text:
    THE PEOPLE ex rel. JACOB BAHN, Respondent, v. THE BOARD OF SUPERVISORS OF CAYUGA COUNTY, Appellant.

      Military cods, § 125 — certificate of commanding officer as to compensation of armorer

    Under section 125 of tlie military code the certificate of the commanding officer, as to the amount due to an armorer, is conclusive upon the board of supervisors, and nothing remains for them to do but to levy, collect and,pay such amount.
    Appeal from an order of Special Term, directing that a mandamus issue requiring the board of supervisbrs of Cayuga county to allow tbe amount of tbe bill of tbe relator, for services rendered by bim in taking charge of tbe armory at Auburn, New York.

      J. T. M. Davie, for the appellant.

      W. JS. Hughitt, for tbe respondent
   E. Dabwot SMITH, J.:

Section 124 of tbe act to provide for enrollment of the militia, and for the organization of tbe national guard, passed March IT, 1870 (Session Laws, chap. 80, p. 217), authorizes the commanding officer of each regiment to appoint a suitable person to take charge of the armory or place of deposit of his regiment, and of all uniforms or other property therein deposited.

The 125th section of said act provides that the person so appointed to take charge of an armory, shall receive a compensation not to exceed two dollars per day, for the time actually employed in the duties, indispensably necessary for the safe keeping and preservation of the property therein committed to his charge, which compensation, as certified to by the commanding officer appointing such person, shall be a county charge upon the county in which such armory is situated, and shall be levied, collected and paid in the same manner as other county charges are levied, collected and paid.

The relator, under this section, was duly appointed to take charge of the armory at Auburn, and his compensation was to be fixed by the commanding officer bywhom he was so appointed, not to exceed two dollars a day for the time actually employed in the duties, indispensably necessary for the safe keeping and preservation of the property deposited in said armory. The word compensation, as first used in section 125, has. obviously reference merely to the rate of compensation per day for the time employed. It was not to exceed two dollars a day for the time actually employed.

When the word is used a second time in said section, it obviously includes both the rate of compensation, and such rate applied to the time of service and employment of the person so employed for any given period in pursuance of such employment. It applies, and was intended to apply, to a bill or account for services rendered by sueb armorer under such appointment. In respect to such bill or account, the compensation as certified to by said commanding-officer, is declared to be a county charge. This means the bill or statement of account made out, stating the claim of such armorer for his services for the time, and at the rate therein specified.

The certificate of the commanding officer covers the entire claim of the armorer for the time specified therein, and fixes and allows, audits and determines the amount of such claim, or account.

This was the clear object and intent of this section. It leaves nothing to be done by the board of supervisors, but to “ levy, collect and pay such amou/ntT

The account was fixed and settled by the certificate of the commanding officer; as much as an account against a town would be finally fixed and settled, and liquidated by the audit of the town auditors. This commanding officer was made the auditor of the account, and of the amount finally. He was bound to audit it truly, and it would be a misdemeanor for him to audit a false account.

In the case of the People v. Supervisors of Livingston (12 How., 204), and same case (26 Barb., 118), the supervisors were the only body authorized to audit the account of the marshal. His account was an ordinary county charge — necessarily to be audited and passed upon by the board of supervisors.

It was the duty of the supervisors in this case to levy and collect the amount of the relator’s account, as certified by the commanding officer appointing him, and they had no discretion on the subject. They had no power to review said account, or to go behind the certificate of such officer. It is a proper case for a mandamus within The People ex rel. Johnson v. Delaware Supervisors (45 N. Y., 196); The People v. Otsego Supervisors (51 id., 401), and the order directing such writ to issue, was correct and should be affirmed, with costs.

Order affirmed.

Present — MulliN, P. J., Smith and Taioott, JJ.

Order directing peremptory mandamus to issue affirmed, with costs.


author: E. Darwin SMith, J.:

text:
    ELIZA W. KNOLLS, Appellant, v. LYDIA BARNHART and others, Respondents.

      Oonii'actof sale— death of pa/i'ty in possession thereunder — his interest passes to his hem's, subjéet to dower— Widow — purchase of outstanding title by — does not defeat rights of heirs.

    Where a person dies while in possession of land under a contract of sale therefor, leaving a widow and children him surviving, his interest therein vests in his children subject to the dower of the widow.
    Where, in such a case, the widow enters into possession of the land and from the rents and profits thereof pays the amount due on the contract of sale and discharges other incumbrances thereon, she holds the land as trustee for her children; she cannot pinchase any outstanding title and hold the same adversely to them.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    This action was brought to remove a cloud upon the title of land acquired by the plaintiff by descent from her father, and for a partition or. sale of the same. The defendant Lydia Barnhart, the mother of the plaintiff, denied the title of the plaintiff’s father to the land, and gave in evidence a certified copy of a deed of the premises from the plaintiff’s father ,to one Win. F. Hussey, dated March 27,1828, and also set up subsequent titles acquired by herself. It did not appear that any claim of title had ever been made, or any possession taken under this deed, to Hussey.

      W. Woodbury, for the appellant.

      Charles MoLouth, for the respondents.
   E. Darwin SMith, J.:

Hpon the facts stated in the plaintiff’s complaint, and clearly proved or admitted on the trial, and in the findings of the referee, it was error, I think, to dismiss the complaint.

The referee finds that Christian Barnhart, on the 13th day of January, 1835, died in possession of the premises in dispute, leaving the defendant Lydia Barnhart and eleven children him surviving, of whom the plaintiff is one. That, from the time of his death, the defendant Lydia continued to occupy said premises, and paid rent upon the lease mentioned in the pleadings.

The referee also finds that, on the 1st day of October, 1828, the said premises were sold upon a foreclosure of a mortgage thereon executed by the said Christian Barnhart and wife to one Margaret Jennings, afterwards the wife of Charles South wick, who foreclosed said mortgage and purchased in said premises on the said foreclosure sale. And that afterwards, on the 24th day of December, 1829, said Southwiclc made to the said Barnhart-a lease of said premises, who took and held possession of said premises under said lease until his death. The said instrument called a lease was, in fact and in legal effect, an agreement to sell and convey said premises to the said Barnhart upon the payment of $326, and interest thereon, at any time during the continuance of said lease; the said purchase money to be paid in the sum of twenty-five dollars, in the shape of rent, annually, until such principal sum and interest were fully paid.

Under this agreement, called a lease, the said Barnhart clearly took an equitable estate in said premises, and the said Southwiclc retained the legal title as a mere lien for his security for such unpaid purchase money.

Upon the decease of said Barnhart his interest in said land vested in his heirs, and his widow was entitled to dower therein. (Moore v. Burrows, 34 Barb., 173; Adams v. Green, id., 176.) It appears that his widow and the family remained in possession of said premises under said lease, the said defendant Lydia receiving the rents and profits thereof for the support of herself and family, and continuing to pay therefrom the said rent of twenty-five dollars, till from such rents and profits she finally paid up the same on the 21st day of December, 1868. It also appears that from such rents and profits she also paid the interest on a prior mortgage upon said premises, due to one Edward Durfee on the purchase of said premises by said Barnhart in 1820, and which she finally paid up in April, 1841, taking to herself an assignment of said mortgage from the holders thereof. This mortgage, it appears, said Lydia, subsequently, in 1871, foreclosed, and bid in the premises herself.

This foreclosure was a .clear nullity. The mortgage had been paid up by Mrs. Barnhart from the rents of said premises. Mrs. Barnhart was guardian in socage of her children, and,, as such, was entitled to go into possession, and became trustee for all the children and heirs of Barnhart interested in said premises. She could not purchase any estate and hold it adversely to them, and any title she might acquire she would still hold as trustee. (Sylvester v. Ralston, 31 Barb., 288.)

The widow of Barnhart and all his children and heirs hold under his title acquired from Southwick, and cannot dispute such title as against each other. The Hussey deed proved on the trial, if ever delivered, considered or treated as a valid conveyance, was probably foreclosed by the foreclosure by Southwick, but if not, it is obviously of no validity under the proof, no claim made or possession ever having heen taken under it. The defendants did not connect themselves with it, and could not set it up as any defense in this action.

It is too late to question the validity of the foreclosure of the mortgage given by Barnhart to Margaret Jennings. The plaintiff and all the parties claim under such foreclosure, and must be bound by the act of Barnhart in recognizing the title of Southwick, acquired under such foreclosure by taking the lease aforesaid under such title, and -agreeing to pay rent and receive a reconveyance after payment of the stipulated purchase money called rent.

It was error, therefore, to dismiss the plaintiff’s complaint. It is true he had no legal title, and could not maintain ejectment or an action for partition, but he was entitled to have the rights of the parties settled, the foreclosure of the Durfee mortgage set aside or decreed to be a conveyance of the title to the defendant Lydia for the benefit of all the parties interested in said estate; and also to have said Lydia account for the rents and profits received by her, and the deed which she had given to the defendant, Almon Barnhart, set aside, to the end that, upon obtaining the proper conveyance of the legal title to the parties interested, a partition of said premises or a sale thereof might be had and the proceeds divided.

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

Present — Mullin', P. J., Smith and Taloott, JJ.

Ordered accordingly.


author: E. DaewiN Skith, J.:

text:
    EDWIN S. SMITH, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Meozse law — eha/g. 175 of 1870— consPi'uotion of chap. 628 of 1857.
    One to whom a license has been granted, in pursuance of section 4 of chapter 175 of 1870, is authorized to sell intoxicatingliquors to be drank upon the premises.
    The provisions of the act chapter 628 of 1857, conferring upon the keepers of inns and taverns the particular and exclusive right to sell, by small measure, liquors to be drank upon the premises is repealed by the act of 1870.

      0’Bom'7ce v. The People (3 Hun, 325) distinguished.
    Wed? of error to the Court of Sessions of Jefferson county, to review the conviction of the plaintiff in error of a violation of the excise law.

      Thomas F. Kearns, for the plaintiff in error.

      Watson M. Rogers, district attorney.
   E. DaewiN Skith, J.:

The plaintiff in error was indicted for selling strong and spirituous liquors to be drank upon his premises without having obtained an inn-keeper’s, hotel or tavern license, and was upon trial in the Sessions of Jefferson county, convicted of such offense and sentenced to be fined $150 and imprisoned-till such fine was paid. On the trial it appeared that he had duly applied to the commissioners of excise of the city of Watertown where he resided, and had obtained in due form a license permitting him to sell and dispose of strong and spirituous liquors, wines,' ale and beer in quantities less than five gallons at a time, at a place designated in said license and within said city, and he had fully complied with all the provisions of the statute regulating the sale of intoxicating drinks, passed April 11, 1870, in respect to such license. (Vide, chap. 175, Sess. Laws, 1870, p. 456.) It was held by the presiding judge, and stated in his charge to the jury, that such license did not authorize the sale by the defendant of intoxicating liquors to be drank upon the premises, and was no protection or justification to him for the sales laid in the indictment. In this ruling and decision I think the learned judge was clearly mistaken. The defendant’s license was applied for and given under section 4 of the act of 1870, aforesaid, which, so far as is material to the question presented, is as follows: “ The board of excise in. cities, towns and villages shall have power to grant licenses to any person or persons of good moral character who shall be approved by them, permitting him and them to sell and dispose of, at any named place within such city, town and village, strong and spirituous liquors, wines, ales and beer, in quantities less than five gallons at a time, upon receiving a license fee to be fixed in their discretion, which shall not be less than thirty dollars nor more than $150.” This provision is a clear and explicit authority to the commissioners of excise of every city, town and village in this State to grant a license to any person or persons, without distinction, exception, or qualification, except that of good moral character, approved by them, to sell and dispose of, at any one place named, in such city, town or village, strong and spirituous liquors, wines, ale and beer in quantities less than five gallons.

The defendant was a person or citizen of this State; he applied in due form and obtained this license thus authorized and allowed; he had under it the grant and authority of the State, so far as the legislature could confer it, to sell strong and spirituous liquors, wines, ale and beer on his premises, at the place designated in his license, in quantities less than five gallons. In the absence of any restriction he clearly might sell at such place, to be drank on his premises. The language of the statute and the grant of power under and by the license obtained by him, it seems to me is too clear and explicit for discussion or misconstruction. It is express and absolute, and utterly unqualified, both as to the persons to whom sales should be made or the place where such liquors should be drank. This act of 1870, was obviously intended to change the law in regard to the sale of intoxicating drinks, and introduce a new law and a new system or rule, and not amend an old law. By section 6 of. said act, all the provisions of the act of 1857 (chap. 628, Sess. Laws, 405), not inconsistent with said act, are retained, but all provisions of such act of 1857, inconsistent therewith, are necessarily superseded and repealed. This repeal necessarily applies to all the restrictive provisions of the act of 1857, relating to inns and taverns, so far as such provisions confer upon the keepers of such inns and taverns the particular and exclusive right to sell, by small measure, liquors to be drank on their premises. Such particular privileges, restriction, or discrimination in favor of tavern or inn-keepers are repugnant to, and inconsistent with the provisions and purpose and intent of such act and its whole scope and meaning. The same inconsistency exists also in respect to the provisioars in the act of 1857 that require a license for storekeepers or others to sell such liquors in quantities less than five gallons, but not to be drank or used on the premises. These provisions are repealed, and no such license is longer necessary. No license is required for the sale of intoxicating drinks of any kind, except the license prescribed and allowed by section 4 of said act of 1870. The general provisions of the act of 1857 applicable to persons having a license to keep inns or taverns, so far as they are not inconsistent with such act, still apply to persons having license under the act of 1870, and the penalties imposed for any violations of the said law, or selling without a license when by this act of 1870 a license is required to sell in small quantities, are all retained and remain in full force. The act of 1870 is the last emanation and expression of the legislative will in respect to the sale of intoxicating diinks, and is necessarily controlling, conclusive and exclusive upon the subject, except where it distinctly retains the old law. It prescribes a single form of license for tavern-keepers, grocers and store-keepers, and all other persons asking a license to sell intoxicating drinks. As the law stood under the act of 1857, confessedly no person could sell intoxicating liquors in small quantities, to be drank on his premises (except ale and beei, under the act of 1869), without an inn-keeper’s or tavern license, as prescribed by said act.

Such was the express prohibition of section 6 of said act. It needed no new law to secure that end. If these provisions in the act of 1857 are retained in force by section 6 of the act of 1870, such act is perfectly meaningless.

Is it to be supposed, if legislation is to be considered as the result of delibei’ate and rational intention and purpose on the part of the legislators, that when they passed section 4 of the act of 1870, giving authority to the excise commissioners to license any person to sell sti’ong and spirituous liquors, wines, ale and beer, in any place to be designated in the license, they intended by said section 6 of the same act, wherein they retained the provision of the act of 1875 not inconsistent therewith, to re-enact in effect that said section 4 and the license therein authorized should be utterly ineffectual, and that there should be re-ingrafted upon it or re-imposed by construction the precise prohibitory provisions of the act of 1857, which it was the purpose of the act to supersede, and thus to render such act perfectly abortive, a snare and a delusion ? Such I think was not the intention of the legislature. This I think is apparent from the occasion for the act as well as from its terms. From the earliest history of the State down to the passage of the prohibitory act of 1855, there were two classes of licenses for the sale of intoxicating liquors, one to inns and taverns, and one to' merchants, store-keepers or grocers, to sell in quantities less than five gallons, but not to be drank upon the premises of the person having such license. After the prohibitory law of 1855 was declared unconstitutional, the legislature returned to the old law and re-enacted the same in substance in 1857, with other provisions. Under this act tavern or inn-keepers’ licenses were given, in many cases, to the keepers of groceries, restaurants or saloons where there was no preparation or accommodation to beep an inn or tavern, for which commissioners of excise were, in many cases, indicted and held liable to be punished criminally. (Vide People v. Jones, 54 Barb., 311.) The strictness of this act in its application to the large class of persons in the city of New York engaged in keeping restaurants, saloons, oyster-houses, and other places for refreshments, induced the legislature, in 1866, to except the city of New York from its provisions entirely, and to enact for that city an act entitled “An act to regulate the sale of intoxicating liquors within the metropolitan police district of the State of New York,” passed April 14, 1866. (2 Sess. Laws, 1242, chap. 578.) Section 4 of that act authorized the board of excise of such city to grant licenses to any person of good moral character and who shall be approved by them, permitting him or them, for one year from the time the same was granted, to sell and dispose of, at any one place named in said city, strong and spirituous liquors, wines, ale and beer, in quantities less than five gallons, upon receiving a license fee therefor, which should not be less than thirty dollars nor more than $250. The act contained other provisions, making a complete system for that city, forbidding the sale of such liquors on Sunday, and on any day of a general or city election which should be held within one-quarter of a mile from the place where the same was sold, and other provisions of the act of 1857. In 1869, the legislature also relaxed the strict provision of the act of 1857, inhibiting a license to sell intoxicating drinks upon his premises to any person not proposing to keep an inn or tavern, by allowing a license to be given for the sale of ale and beer. (Act of 1869, chap. 680.) So the law stood in 1870, when the act of that year passed. This act adopts in substance the leading features of the said metropolitan police act, and applies and extends them to the whole State. Section 4 of the act of 1870 is, as will be seen in the precise language — in toUbus verbis. — ■ of section 4 of said metropolitan police act, and said section 4 of the act of 1870 incorporates also section 8 of said metropolitan act of -1866, as follows : “ Persons not licensed may keep, and in quantities not less than five gallons at a time, sell and dispose of strong and spirituous liquors, wines, ale and beer, provided that no part thereof shall be drank or used in the building, garden or inclosure communicating with, or in any public street or place contiguous to the building in which the same is kept, disposed of or sold.” This provision, in section 4 of the act of 1870, clearly implies that the liquors to be sold under the license allowed in said section, were or might be drank on the premises. . It is a new provision first passed in the said metropolitan act and inserted therein, obviously because it was understood and intended that the licenses therein allowed should, as they did, give authority to sell the liquors named, and in the quantity named, upon the premises of the person holding such license. Said metropolitan act was clearly passed to secure that object and relieve the city of New York from the prohibitory and strict provisions of the act of 1857, in respect to inns, taverns and store-keepers, or grocers: But further, the said act of 1870, also borrowed from the said metropolitan act, the provisions in section 5 of said act, as follows: “License granted as in this act provided shall not authorize any person or persons to expose for sale, or sell, or give away, or dispose of any strong or spirituous liquors, wines, ale or beer on any day between the hours of one and five o’clock in the morning, and all places licensed as aforesaid shall be closed between the hours aforesaid.” These provisions quite obviously have respect solely to the sale of liquors in small quantities, to be drank on the premises, and clearly imply that the legislature expected and intended to allow such sales to take place. The restriction of sales in the late hours of the night, and the closing of the places where such liquors were expected to be sold, would never have been inserted to restrict store-keepers or other large dealers in the sale of merchandise or liquors to be removed immediately from the premises. Of- what consequence was it to the public how late a merchant kept open his store, or why should he be required to close it between the hours of one and five in the morning, and keep it closed during those hours ? And the same consideration applies to the restrictions incorporated in said act in respect to the sale of liquors on election day (as amended in 1873, Session Laws, chap. 549, p. 859), and on Sundays.

The case of O'Rourke v. The People (5 N. Y. Sup. Ct. R., 496; and same case in 3 Hun, 225), to which we have been referred, is not in conflict with these views. That was a case where the defendant was indicted and convicted for selling ale. He had a license under the act of 1870, which clearly authorized him to sell ale and beer, under the act of 1869; and this was so held, and quite correctly, as an amendment of the law of 1857, as it professedly was designed and intended to be. The decision of this question did not call for a decision whether the act of 1870 authorized the sale of strong and spirituous liquors to be drank on the premises, without a license to keep an inn or tavern, as required in section 6 of the act of 1857. In this case the question is different. The defendant sold strong and spirituous liquors, and was properly convicted if his license under the act of 1870 was not to him a justification and protection. The conviction in this case, and also in another case — The People v. Vosburgh — now pending before us, where, upon precisely the same ground, a similar conviction and sentence was had in the Court of Sessions of Seneca county, were doubtless based upon the opinion of one of the judges in the case of O'Rourke v. The People (supra). But that opinion was not concurred in by the whole court and the decision of that case was, as we have seen, put upon other grounds. The judgment and conviction in this and the other case mentioned should both be reversed, and the prisoners discharged.

Present — MunniN, P. J., Smith and Talcott, JJ.

Judgment and conviction reversed and prisoners discharged.


author: MulliN, P. J.:

text:
    JAMES KINSEY and STEPHEN KINSEY, Appellants, v. LUCIEN R. BAILEY, Respondent.

      Fixtures — machin&ry in mill — chattel mortgage thereon.

    This action was brought to recover for the conversion of a boiler and certain wheels, placed in a steam saw-mill in such a manner, as that ordinarily they would become part of the realty. At the time of placing the articles in the mill the owner thereof gave to the plaintiff chattel mortgages thereon, to secure the payment of money advanced by the plaintiff to enable him to purchase them, and at the same time stated that they should remain personal property. Held, that the articles remained personal property, and that plaintiff was entitled to the same, as against a subsequent purchaser of the mill upon a sale had under a judgment, recovered prior to the giving of the mortgages.

      Yorhees v. McGinnis (48 N. Y., 378) distinguished.
    Appeal from a judgment in favor of the-defendant, entered upon the report of a referee.
    This was an action of trover, brought for the conversion of certain personal property consisting of a boiler, machinery, brick, etc., put into the mill of one Converse, of which property the plaintiffs claimed to be the owners, and which defendant converted to his own use.
    On the trial before the referee to whom the issues in said cause were referred for trial, judgment was ordered for the defendant with costs, and from it the plaintiff appeals.
    Abner L. Converse was owner of a lot of land situate in the town of Darien, in the county of Genesee, on which had been erected a saw-mill propelled by water. It burned down, and Converse erected another in its place.
    On the 4th of August, 1870, Converse and wife made and delivered to Isaac E. Smith a mortgage on said land, to secure the payment of $1,300. This mortgage was foreclosed and premises sold, and bid in by the defendant on the 25th of January, 1873. On the 1st of June, 1871, a judgment was' recovered against said Converse by the First National bank of Batavia, for $165.19, and it become a lieu on said saw-mill premises, and they were sold upon a issued on said judgment, and were purchased by defendant and were conveyed to him by the sheriff January 14, 1873.
    On the 15th of August, 1872, Converse gave to the plaintiffs a chattel mortgage on part of the property described in the complaint in this action, to secure the payment of $300 at the time and in the manner mentioned in said mortgage ; this mortgage was filed in the clerk’s office of the town of Darien on the 2d of October, 1872. On the 19th of September, 1872, said Converse executed and delivered to the plaintiffs a chattel mortgage on other articles of personal property, the value of which the plaintiffs seek to recover for in this action ; this mortgage was given to secure the payment of $2,000. The articles mentioned in the chattel mortgages were placed in the mill between July and November, 1872.
    These moneys were advanced by the plaintiffs to Converse, for the purpose of enabling him to put into his mill steam apparatus by which to operate said mill. . The work of putting in was completed in.October of that year. An engine, boiler, fly and band-wheel, and heater, together with a locomotive boiler, was procured from Messrs. Drullard & Hayes, of Buffalo, under a contract by which the latter agreed to rent said boiler, etc., to Converse, for the term of eighteen months, for $800, and if that sum should be paid, Converse might at hiá election become owner thereof; the title to said property to remain in said D. & H. until said sum of $800 was paid. After the commencement of this action defendant paid to Messrs. Drullard & Hayes the balance of the $800 then unpaid.
    The engine and its appendages were put into a small building adjoining the saw-mill, and connected with the machinery in the mill by shafts and belts; the boiler was placed upon a solid foundation and inclosed in a brick arch, made from the brick covered by the chattel mortgage of the 15th of August, 1872. The property was such as was proper and necessary to be used in a steam saw-mill, and was attached to the land as permanently as such machinery is ordinarily attached. The machinery might, however, be removed without injury to the building.
    The referee found the facts above stated, and as conclusions of law, held that the property sought to be recovered for in this action was a part of the real estate, and that plaintiffs could not recover.
    The plaintiffs’ counsel requested the refei’ee to find, amongst other things, that it was the intention of the plaintiffs to secure the debts mentioned in the chattel mortgage by taking and retaining a lien on the property described therein, and that it was also the intention of Converse to secure and continue to the plaintiffs such lien for the payment of such debts. He was also requested to find that the property bought of Drullard & Hayes continued personal property as between those parties, until defendant purchased them of D. & H. He was also requested to find that it was the intention of Converse, that the property described in the chattel mortgages should remain personal property, for the purpose of paying plaintiffs’ demands.
    The referee refused to find as requested, and the plaintiffs’ counsel excepted.

      Thomas Oorlett, for the appellants.

      M. E. Peclt, for the respondent.
   MulliN, P. J.:

In Tifft v. Horton (53 N. Y., 377), it is said, in accordance .with a long series of adjudged cases, that chattels may be annexed to real estate, and still retain their character as personal property, and that the intention, with which they are annexed, is one of the circumstances by which to determine their character.

In the case cited there was a written contract between Mrs. Brown, who owned the elevator in Buffalo, and the plaintiffs, by which the latter agreed to manufacture an engine and boiler, and other machinery and to put them up in said elevator, all of which was to be paid for by two notes made by Mrs. B., to be secured by a mortgage on the machinery, to be given as soon as it was completed and ready to be put up. The mortgage was given while the boiler, etc., were still in the shop. It was provided in the mortgage that the engine, etc., should be and remain personal property until the notes were paid, notwithstanding the manner in which they should be put up in the elevator. There was a recital in the mortgage that the engine, etc., were made to be put up in the elevator, and in case of breach, it authorized the mortgagee to enter and take it away.

A note become due, and not being paid, the plaintiffs demanded the property of the defendants, who were in possession, but they refused to deliver it.

The engine, etc., were not put into the elevator building, but into a small building adjoining, called the engine-bouse which was erected over them after they were set up.

The defendants claim to own the property as purchasers, under three mortgages which were liens on the elevator premises.

There was in the case a clear manifestation of an intention on the part of Mrs. Brown and the plaintiffs, that the engine, etc., should not become part of the realty, although it might be permanently affixed thereto. And this exemption was held to be valid against the mortgagee in the three mortgages under which defendants derived their title.

In this ease it was in proof, by the son of one of the plaintiffs, that when Converse applied to them for money to aid him in putting steam power into his mill, his father, one of the plaintiffs, declined to do any thing about it until he could.take counsel, and see if the machinery, etc., to be purchased, would remain personal property. Converse said the property in chattel mortgages would remain personal property. This was before any mortgages were executed. On cross-examination the witness testified that his father said he knew if the property was attached to the mill, it might pass as real estate. Converse claimed to know that it would remain personal.

It would seem then, that the advance was made specifically for the purchase of machinery to be put into the mill, and under the assurance of the owner of the mill that the property so purchased should remain personal after its annexation to the building.

This is surely some evidence of the intention of the parties to that arrangement, that the machinery should remain personal property, although it might be annexed to the mill.

To this is to be added the evidence to be derived from the two chattel mortgages.

If putting the machinery into the mill, as such machinery is usually annexed to the building in which it is to be used, rendered it real estate, the mortgages were a mere nullity, except so far as they might contain covenants or promises to pay the amounts mentioned therein. Such a result was not contemplated or intended by either party. These mortgages were, I respectfully submit, a clear manifestation and declaration of an intention to make the machinery, etc., personal property, after it was annexed to the building.

Tbe intention was not as strongly expressed as in tbe case of Tifft v. Horton, but it was done in part by an instrument of tbe same character and of the same legal force and effect.

The contract expressed tbe intention more emphatically, but with no more legal force or effect than is done by tbe chattel mortgages.

It was said in Voorhees v. McGinnis (48 N. Y., 278), that giving a mortgage on chattels which are subsequently annexed to the realty, the chattels become a part of it, and cannot be taken by the mortgagee by virtue of the mortgage.

The case of Tifft v. Horton, if it does not overrule this proposition, so far qualifies it that there is practically nothing left of it.

If the intention of the parties to the agreement that personal property shall retain its character as such, notwithstanding it is annexed to the realty, is to determine its character, it cannot be material how that intention is manifested, so that it is clearly established. It may as well be done in a chattel mortgage, or in conversation, as in any other way.

Although, as between those parties the question is not material whether the engine, 'etc., bought of Drullard & Hayes, was or was not personal property after they were affixed to the mill, yet this property clearly remained personal within the case of Tifft v. Horton, and it being personal it is a circumstance to show that it was Converse’s intention, to consent that all the personal property obtained on credit should retain its character of personal after it was affixed to the building.

I am, therefore, of the opinion that the referee erred in refusing to find the facts as requested by the plaintiff’s counsel, and that he erred in holding that the property described in the complaint became part of the realty after it was annexed to the same, and hence the plaintiffs’ complaint was erroneously dismissed.

The judgment is reversed and a new trial ordered before another referee, costs to abide event.

Present — MulliN, P. J., Smith and Taloott, JJ. .

Ordered accordingly.


author: Mullin', P. J.:

text:
    MARY BESEL, as Administratrix, etc., Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      •Negligence — action against raib'oad company Try one of its employes — Duty of employer to employe.

    The plaintiff's intestate, a servant in tlie employ of the defendant, in pursuance of instructions given to Mm, crawled under one of a train of cars standing on what are called the repair tracks at Suspension Bridge in order to repair the same. While so engaged an engine was attached to a portion of the train and started to draw it away from the remaining- cars and up a grade which existed at that place. After it had gone a short distance a coupling- pin broke and the rear portion of the train ran down the grade, strpek the cars under one of which the plaintiff was working and ran over and killed him. After the pin broke, a brakeman who was upon the front part of the moving train, left this portion of it and sought to get upon the cars which were running down the grade to stop them but was unable to do so before the collision. There was no brakeman upon that portion of the train which ran back.
    In an action to recover damages for the death of the plaintiff’s intestate, held, that it was negligence in the defendant not to have a sufficient number of brakemen upon the train, so as to have one upon the rear portion of the train to stop it in case such an accident should occur, and that the plaintiff was entitled to recover.
    When the requisite number of men are employed having the requisite degree of skill, and are furnished with suitable and proper instrumentalities to enable them to perform their duties, and the men are so stationed as that they can promptly and effectually perform such duties for the proper protection of their co-employes, the employer has done his duty.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe verdict of a jury.
    Tbe action was brought to recover damages for tbe alleged negligent killing of tbe plaintiff’s intestate who was an employe of tbe defendant. In pursuance of instructions given to him the plaintiff’s intestate crawled' under one of a train of cars standing on what were called tbe repair tracks at Suspension Bridge, in order to repair tbe same. While be was so engaged, an engine was attached to a portion of tbe train and started to draw it away from tbe remaining cars and up a grade which existed at that place.
    After it bad gone a short distance, a coupling pin broke, and the rear portion of the .train ran down tbe grade, struck tbe cars under one of which plaintiff was working and ran over and killed him. After the pin broke, a brakeman who was upon the front part of the moving train, left this portion of it and sought to get upon the cars which were running down the grade, to stop them, but was unable to do so before the collision. There was no brakeman upon that portion of the train which ran back.

      Leming dé Willett, for the appellant.

      J. H. Martmdale, for the respondent.
   Mullin', P. J.:

The case presents but two exceptions, and these are to the refusal of the judge to charge as requested by the defendant’s counsel.

The first request to charge was, that if the jury should find that defendant had instructed the employes in charge of the switch engine, not to move the cars from the repair track while the car repairers were at work under or about the train, and that such cars were moved from such track by such employes, in violation of such instructions, and without the knowledge or consent of the defendant, then the plaintiff cannot recover.

The second request was to chai-ge that the burden is upon the plaintiff, to establish that defendant had not made proper and suitable rules and regulations for the government of its employes, and for the management of its business, before defendant can be charged with negligence through any want of care on the part of its employes, who do not have general charge of a department of its business. The court refused to charge as requested, and defendant’s counsel excepted.

The deceased was in defendant’s employ as a car repairer, in its shop at Suspension Bridge. On the morning of the 29th May, 1875, he was employed in repairing a car on the repair track in the yard, it being the practice to place -on such track the cars from the trains as they come in, and then to ascertain if any were out of repair, and if so, to proceed and repair them.

As the cars on the eastern end of a train, brought in to be examined and repaired, were repaired, an engine was attached to the cars at that end and they were drawn to a switch, and then distributed to the tracks on which they were afterwards to be sent forward.

The repair track was not level, but rose from west to east on a grade of some twenty feet to tbe mile, and down which grade cars, if not prevented, would run by their own weight.

The deceased was engaged in repairing the last car, being the one at the extreme western end of a train of forty-nine cars. To make the repairs, he was under the necessity of getting under the cars, and while there he could not see what was being done to the eastward of him, nor coidd those employed on the cars to the east see him.

While he was thus employed, an engine was attached to the eastern end of the train and started to draw off such of the cars as had been repaired, leaving cars connected with the car which deceased was engaged in repairing. After the cars had been moved up the grade a short distance, a coupling pin gave way, and the cars, thus let loose, ran down the track, struck the cars connected with the one on which deceased was at work, forced it hack, and passed over and killed him.

The negligence imputed to the defendant is, that no brakemen were upon the rear end of the train which was being drawn east by the engine, so that when the coupling pin broke there was no person to apply the brakes to the cars that were separated from the train that was moving east, and they were at. liberty to run down and strike the ears standing on the track to the west.

It was the duty of the defendant to cause to be taken all reasonable precautions against just such an accident as the one in question.

The lives of those employed in the repair of the cars were in constant danger, from the descent of cars in that portion of the train which was being moved up the track.

The precaution most likely to be effective was to have brakemen on the moving train, in such numbers and so stationed as to apply promptly the brakes and stop, if possible, the descent of the cars. •

There were no brakemen on the rear car; the one who was nearest the end of the train was ordered, as soon as it was discovered that some of the cars had got loose, to get on to them and stop them. For that purpose, the man thus directed leaped on to the cars standing alongside, and ran along the top of them in order to get on to the moving cars, but the collision occurred' before he could reach the moving cars.

The question to be decided is, whether defendant was liable for the omission to have brakemen stationed on the rear of the train being moved up the track, after the train had been separated into two divisions.

The deceased had the right to rely upon the performance, by the defendant, of its duty to protect him. This duty was not performed by merely giving an order to have men employed to perform the duties, necessary to be performed to protect its employes. The company must see that the means to be used are employed judiciously to meet the emergency; and that proper instructions are given, so that those employed are made to understand how and when and where to employ the instrumentalities intrusted to them to manage the engine and cars so as to protect those employed upon them, and who are unable to protect themselves.

When the requisite number of men are employed, having the requisite degree of skill, and are furnished with suitable and proper instrumentalities to enable them to perform their duties, and the men are so stationed as that they can promptly and effectually perform such duties as the proper protection of their co-employes who may be in danger may require, if any accident should happen in the business in which they are engaged, the employer has done his duty. (Laning v. N. Y. C., 49 N. Y., 521; Flike v. Boston and Alb. R. R. Co., 53 id., 549.)

It was the duty of the defendant not only to have brakemen on the train of cars that were being drawn east, but it was its duty to see that they were so located on the train, as to guard against such accidents' as could be anticipated; especially to have them so located that should the cars at the rear of the train get loose, they might be prevented from running back and colliding with cars standing on the track upon which persons might be at work.

. If the boss brakeman was the person whose duty it was to see that brakemen were put upon the ascending train, he in the performance of that duty, represented the defendant, and it was liable for his neglect.

If these views are correct, they dispose of the questions discussed .in the appellant’s points.

The judgment must be affirmed.

Present — MulliN, P. J., Smith and Talcott, JJ.

Judgment affirmed.