text:
    Margaret M. Wendt, Resp’t, v. Patrick Craig, App’lt.

      (Court of Appeals,

      Filed October 15, 1895.)

    Witness—Credibility.
    Where it cannot be said, as matter of law, that there is no contradiction between two affidavits, made by a person who is a witness in the action, their effect upon the credibility of the witness should be left to the jury, without the statement of the court that there is no contradiction in them.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered. upon a verdict, and also affirmed an order denying defendant’s motion for a new trial in an action for slander.

      J. Newton Fiero, for app’lt; James M. Seaman, for resp’t.

       Reversing 45 St. Rep. 23.

   Peckham, J.

We are of the opinion 'that the learned judge erred in his charge to the jury, that the second affidavit of Eliza Elynn does not contradict the first. It was so worded that the jury might well have come to the conclusion that it did contradict and was so intended. In that way her credibility was impugned and the effect was for the jury.

In the second affidavit she says she made the first through fear, and that she did not want to make it as she had nothing against Mr. Oraig. Also, that she wanted to withdraw whatever charge she made.

The expression of her desire to withdraw the charge might be interpreted as a desire to withdraw because she did not wish to prosecute or because it was not true. And again, when she said that she had nothing against Mr. Oraig, it might naturally be construed as meaning she had no ground of complaint against him.

It cannot be said, as matter of law, that there is no contradiction between the two affidavits, and their effect upon the credibility of the witness should have been left to the jury without the statement of the court that there was no contradiction in them.

The verdict was quite a large one and the case closely contested and an error of this kind may have been quite prejudicial to the defendant’s case.

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

All concur. Judgment reversed.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Arthur W. Shultes, App’lt, v. Nicholas A. Sickles, Resp’t.

      (Court of Appeals,

      Filed October 22, 1895.)

    1. Appeal—Direction op verdict.
    Where both parties request the court to direct a verdict, the party, whose request is denied, is not precluded from asking that the case be submitted to the jury, if the evidence warrants it.

      2. .Lease—Mortgage.
    The purchaser upon the foreclosure of a mortgage of a leasehold interest has no right to possession as against the grantee of the lands in possession under a conveyance from the assignee of the lessor after judgment of reentry for breach of the lease by the lessee.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order,which affirmed a judgment in favor of defendant entered upon a verdict directed by the court and dismissed plaintiff’s complaint upon the merits.

      William Youmans, for app’lt; George L. Stedman, for resp’t.

       Affirming 53 St. Rep. 700.

   O’Brien, J.

This was an action of ejectment, in which the plaintiff claimed to recover the possession from the defendant of a parcel of land containing about one hundred and twenty-three acres, situated in the county of Albany. At the close of the trial both parties requested the trial judge to direct a verdict, each in his own favor. A verdict was directed in favor of the defendant. The plaintiff having excepted to this ruling, then requested the court to submit the case to the jury upon all the questions of fact. This request was denied and the plaintiff excepted.

While it is true that in a case where both parties request the court to direct a verdict, the court is thereby clothed with the functions of the jury, with respect to any questions of fact in the case and in the absence of a request to go to the jury by the party against whom the verdict is directed the decision stands in the place of a verdict, yet in this case the plaintiff, upon a denial of his motion, made the request to have the case submitted to the jury. He was not precluded from making this motion by his previous request to have a verdict directed in his favor, and if there was any evidence competent to submit to the jury upon the disputed questions of fact the denial of his motion would probably be error. Howell v. Wright, 122 N. Y. 667; 34 St. Rep. 212; Dillon v. Cockcroft, 90 N. Y. 649; Kirtz v. Peck, 113 id. 222; 22 St. Rep. 733; Thompson v. Simpson, 128 N. Y. 270; 40 St. Rep. 164.

The question, therefore, is whether the plaintiff had given any evidence to carry the case to the jury.

The common source of title is a manorial lease in perpetuity by Stephen Van Rensselear to Johannes Shafer of the lands in question, with others, reserving certain yearly rents, with the right of re-entry in case of non-payment. The title and interest of the grantee under this lease, became, through various mesne conveyances, vested in John Sickles, the defendant’s father, in the year 1845, subject, however, to the obligation to pay the rent reserved in the lease, and to the right of re-entry in case of non-payment.

On April 28, 1864, Van Rensselaer recovered a judgment against Sickles in ejectment for the recovery of the premises, based upon the covenants in the lease and the non-payment of the rent reserved, but no attempt was made, so far as appears, to enforce this judgment for many years afterwards. In the meantime, and in the year 1875, one Joseph I. Shultes foreclosed a mortgage which he held upon the interest of Sickles in the land, and became the purchaser thereof upon a sale under the decree entered in the foreclosure action; but his title was expressly subject to the superior rights of Van Rensselaer under the manorial lease. It does not appear that Shultes ever went into actual possession, but it does appear that the next year he contracted to sell his interest to the defendant, who is the son of John Sickles, and who succeeded his father in the possession of the land. Subsequently Joseph I. Shultes died, and whatever claim the plaintiff, who is his son, may have is derived through his father’s will.

In the year 1883 Walter S. Church, having become the assignee of the judgment in ejectment at the suit of Van Rensselaer, proceeded to execute the same. Leave was granted by the court permitting the owner of the judgment to enforce the same by execution or writ of possession; and it was executed against John Sickles and the defendant, his son, who were then in possession. The sheriff made return upon the process that on July 27, 1883, he delivered the possession of the premises to Church, the assignee of the judgment. On the same day the defendant and his father executed an instrument in writing to Church, whereby they admitted that possession of the farm was that day surrendered by them and delivered to Church, and they acknowledged that they held the premises as tenants at will under Church, On the 12th day of January, 1885, Church conveyed the lands to the defendant by deed duly executed and delivered, and under this title the defendant was in possession at the time of the commencement of this action.

Some questions were discussed by the learned counsel for the plaintiff which relate to the procedure by which the judgment was revived and finally executed, but, we think, they have no bearing upon this appeal. The judgment,in favor of Van Rensselaer adjudged his title to the land and his right to the possession. It was not impaired by the lapse of time. The court in which it had been rendered had the power and jurisdiction to enforce it, and no error or irregularity in the order permitting the execution to issue, even if such existed, can be reviewed upon this appeal. If there was any error or irregularity in the proceedings which resulted in the delivery by the sheriff of the possession to Church,, the plaintiff’s remedy was by appeal or motion, and the only question here is the power of the court to set the sheriff in motion. We have no doubt in regard to the power and very little with respect to the regularity of the proceedings.

But it is urged by the learned counsel for the plaintiff that the deed of Church to the defendant, based upon the judgment, execution, recovery of possession and attornment, above referred to; conferred no title as against the plaintiff. This proposition is sought to be deduced from certain dealings and transactions between Church and the plaintiff’s father, Joseph I. Shultes, whereby it is claimed that the latter was reinstated in all the rights that he had prior to the proceedings to recover possession under the judgment. It is said that the plaintiff’s father had, under statute, six months in which to redeem the land after the delivery of possession to Church under his judgment, and that by agreement this time was extended to April, 1885; that such redemption was made, either wholly or partially, and that the deed to the defendant, when given was subject to all the rights and equities that Shultes obtained under his mortgage title.

With respect to the various considerations submitted in support of these general propositions, it is quite sufficient to say that the plaintiff gave no proof to show that his father even in fact redeemed, or attempted to redeem, this land. There is no proof in the record to show that Church ever intended to surrender or waive any right which he obtained under the judgment and execution. Hor is there any proof upon which it could properly be found that Shultes in his lifetime attempted by any acts or arrangements on his part to restore the situation as it existed prior to the execution of the judgment under which defendant claims.

Church was the owner of a money judgment against Shultes. It had no relation to his title to the land in qnestion. If it was paid in full it would not in any way affect that title. The various agreements, stipulations and payments to which our attention has been called and which appear in the record, relate to this judgment which Church held and Shultes was bound to pay. It is to be inferred, also, from the proof that Church claimed that Shultes owed him certain arrears of rent which had accrued some time between the rendition of the judgment and its execution in 1883. The dealings between Church and the plaintiff’s father relate entirely to these personal claims and not to the judgment under which possession had been obtained, or to any right of redemption that remained in Shultes.

The learned counsel for the plaintiff has, we think, misapprehended their true nature and legal effect. All claim to or interest in the land in question which the plaintiff's ancestor ever had was subject to the judgment at the suit of Van Rensselaer, and when that judgment was enforced these rights, whatever they were, disappeared, and nothing took place afterwards between him and the purchaser under that judgment that was effectual to restore them. There was no redemption and no waiver by Church of any right which he obtained by virtue of the execution of the judgment and the attornment of the parties in possession to him. Therefore, the title and possession of the defendant were not in any way impaired or affected by the transactions and dealings between Church and Shultes in regard to the personal claims referred to. It is quite clear, we think, that no such force can be given to the proofs in regard to these transactions as is claimed by the learned counsel for the plaintiff. They could afford no basis for a finding by the j ury that Shultes ever redeemed, or attempted to redeem, the land in question from the judgment in ejectment, or that Church intended to or did waive any right that he acquired under the judgment or in any other way qualified or impaired his title.

It follows that the learned trial judge was correct in. directing a verdict in favor of the defendant.'

The other exceptions in the case present no questions that require discussion, or any error that would justify a new trial.

The judgment must, therefore, be affirmed, with costs.

All concur, except Peckham, J., taking no part.

Judgment affirmed.


author: Per Curiam.

text:
    Silas F. Overton, Resp’t, v. Emily F. Barclay et al., Def’ts. William H. Hall, App’lt.

      (Supreme Court, General Term, First Department,

      Filed July 16, 1895.)

    Service cw process—Substituted.
    _ An order for the substituted service of a summons upon an infant, which directs such service to be made by leaving a copy at the infant’s residence with a person of proper age, or, if such a person cannot be found, by affixing the same to the outer or other door of such residence, and by depositing another copy thereof, addressed to such infant, in the post office, only requires a copy to be deposited in the post office in case service cannot he made by leaving a copy at the infant’s residence with a person of proper age.
    Appeal from an order, denying a motion, made by the purchaser on a foreclosure sale, to be relieved from his purchase.
    The order for substituted service on the infant defendant is as follows:
    Ordered, that service of said summons upon said defendant, Emily E. Barclay, be made by leaving a copy thereof and of this order at the residence of said defendant, No. 74 WestlSáth street, in the city of New York, with a person of proper age, if, upon reasonable application, admittance can be obtained and such a person found who will receive it, or, if admittance cannot be so obtained or such a person found, by affixing the same to the outer or other door of said defendant’s residence, and by depositing another copy thereof, properly inclosed in a post-paid wrapper addressed to her at her said place of residence, in the post office oí the saidcity and county of New York.

      Robert K Deyo, for app’lt; H. H. SnedeTcer, for resp’t.
   Per Curiam.

The purchaser’s objection to taking title is founded on the claim that service of the order appointing a guardian ad litem for the defendant, an infant over fourteen years of age, unless within twenty days she should procure one to be appointed, was not made. The order was not personally served upon her, because she could not be found, and subsequently the plaintiff caused a petition to be presented to the court, in which it was stated, among other things, that the infant secreted herself to avoid service. Thereupon an order for substituted service was made, ami the purchaser argues that the provisions of the order in respect to-manner of service were not complied with ; that it required two. things to be done: “First, the order appointing the guardian and the order for substituted service should both be left at the residence of the infant with some person of proper age ; second, that, copies of both orders be deposited in the post' office.” It is true that the orders were not deposited iii the post office, and if the purchaser is right in his claim that the order required it to be done his position would be well taken. But we do not so read it. The provision for service of the order úpon a person of proper age at the residence of the infant was by the order made sufficient. Only in the event of the failure to make such service was the alternative of affixing the orders to the outer door and mailing them provided for. The papers were served at the residence of the infant upon her mother, and thus the order was complied with.

The order should be affirmed, with $10 costs and printing disbursements.


text:
    Patrick C. O’Rourke, App’lt, v. Margaretha Hanchett, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Notes—Indorser—Promise to pat.
    An absolute promise, by an indorser, to pay a note, made without full knowledge of the fact that he had not been charged as indorser thereon, is insufficient to create a liability.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      A. B. Stewart, for motion; F. Fder, opposed.
   Per Curiam.

Although the record in this case contains no evidence of an absolute promise to pay, yet, if it did, it not appearing that such promise was made with full knowledge of the fact that the defendant had not been charged as indorser, it would be insufficient to create a liability. Meyer v. Hibsher, 47 N. Y. 265. The rule laid down in that case is as follows : “A promise to work a waiver, must be made with full knowledge of all the facts.”, The exceptions should be overruled, and judgment ordered upon the verdict, with costs.

All concur.


author: Follett, J.

text:
    David V. Howell, Resp’t, v. John Schuyler Crosby, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1 Accounting—When not necessary.
    When the defendant enters into a contract to collect money due plaintiff for services performed for the government and, after defraying the expenses of doing such work, to pay a portion of the net profits to plaintiff and the balance to persons named, he is liable in an action for the amount due from him to the plaintiff, without a resort to an equitable action for an accounting.
    S. Evidence—Books—Non-production.
    The fact that the books and vouchers kept by the defendant in respect to the matters in litigation have been carried out of the county and are not produced on the trial, though notice to produce them has been given, is a circumstance, which the referee has a right to take into consideration in determining the defendant’s account, as presented.
    Appeal from a judgment in favor of plaintiff.

      Be Lancey Nicoll, for app’lt; Frederick H. Man, for resp’t.
   Follett, J.

This action was begun December 18, 1882, to recover a sum of money alleged to be due under a contract entered into between the litigants January 15, 1875. September 24,1874, the plaintiff entered into a contract with the United States, by which he agreed to construct a pier for a lighthouse at Middle Ground, Stratford Shoals, L. I. On the same day, the defendant and Leonard W. Jerome, as sureties; executed an undertaking to the United States, conditioned that the plaintiff should faithfully perform his contract. January 15, 1875, the plaintiff appointed the defendant his attorney to collect from the United States all sums of money which should become due on the contract, the defendant at the same time entering into a contract, under seal, by which he bound himself to pay to the plaintiff forty per cent., and to Emil Yon Trentini twenty per cent., of all the profits made on the contract. The remaining forty per cent, was to be retained by the defendant as compensation for furnishing the security to the government, and for his services in collecting and disbursing the money in the construction of the pier. Yon Trentini’s twenty per cent, was to compensate him for keeping the accounts necessary to be kept in the prosecution of the work. In November, 1875, the contract was performed, and the work accepted by the government, which paid to the defendant, as attorney for the - plaintiff, $81,-301.¿5. The foregoing facts are not in dispute, and are found by the referee. The plaintiff testified that the defendant had paid out $60,705.11. Yon Trentini testified that he had paid out' $69,161.34, there being a difference of $8,456.23. The referee found that the defendant had paid out $60,805.11. The referee reached his conclusion on the following basis :

Received by defendant.......................... $81,301 85
Expended by defendant......................... 60,805 11
Cash in defendant’s hands................... $20,496 74-
Property.
Schooner “Lorillard”..................$3,000 00
Steam engine........................ 675 00
Tools................................ 300 00
-- 3,975 00
$24,471 74
Plaintiff’s share, 40 per cent........... $9,788.696
Defendant’s share, 40 per cent.......... 9,788.696
Yon Trentini’s share, 20 per cent....... 4,849.348
--- 24,471 74

The referee found that the plaintiff had received from the defendant $2,000 in cash, that the plaintiff had the schooner and the tools, valued at $3,300, making a total of $5,3000 which the plaintiff had received, leaving a balance due him of $4,488.69, for which a judgment was ordered, with interest from December 18, 1882, the date of the commencement of this action.

The principal controversy before the referee was over the difference of $8,456.23, which sum the defendant asserted he had paid out over and above the amount admitted by the plaintiff to have been paid out by the defendant, and over the value of the schooner Lorillard. The witnesses who testified as the value of the Lorillard varied in their estimates from $1,000 to $5,000. Two of defendant’s principal witnesses valued the boat at $3,000. The value fixed by the referee, $3,000, is fully sustained by the evidence, and it cannot be successfully asserted that, under it, the vessel was undervalued, to the injury of the defendant. In respect to the items making up the disputed sum of $8,456.23, the evidence is very unsatisfactory and inconclusive, and it is quite impossible to say that the referee erred in disallowing this sum. The books and vouchers which were kept by the defendant and Yon Trentini had been carried to Europe, and were not produced on the trial, although notice to produce them had been given. This was a .circumstance which the referee had a right to take into consideration in determining the validity of the defendant’s account, as presented.

Whether the litigants and Yon Trentini were partners, as to third persons, is not material. Under their written contract they were not partners as between themselves. It nowhere appears that the defendant and Yon Trentini assumed any liability in case the enterprise proved to be unprofitable. Each of them was to have a definite proportion of the profits for his services, and the defendant agreed by his written contract, under seal, that he would collect all sums due from the government, and pay over to the plaintiff forty per cent, of the profits of the enterprise.. Yon Trentini, by his evidence, admits that he has received his full share from the defendant, and makes no claim. So there is no accounting to be had as among the three. A decision of the controversy simply required the ascertainment of the amount received by the defendant, admitted to be $81,301.85, and the amount which he had expended. The defendant did not set up in his answer that Y on Trentini was a necessary party to the action, or that an accounting among the three was necessary, and he was permitted to give all the evidence which he offered tending to establish payments on his part; and we think, under the written contract, the defendant could be properly held liable in this action for the amount found due from him to the plaintiff, without resorting to an equitable action for an accounting.

In August, 1878, the plaintiff filed a voluntary petition in bankruptcy, to which was annexed an inventory of his assets. The defendant offered to show that, under the head of “chooses in action,” the plaintiff did not include any claim against the defendant arising out of the contract on which the action was brought. This evidence was excluded, and it is urged as a ground of error. It is argued that the fact that the plaintiff then swore that he owned no such claim as he seeks to enforce in this action was competent It would have been, had not the fact been fully explained. In March, 1881, the plaintiff wrote the defendant that he had assigned this claim, which letter was put in evidence by the defendant, and upon the cross-examination of the plaintiff it was shown, and not disputed, that he had previously assigned the claim, and that it had been reassigned to him. It is urged that the referee’s conclusion is inconsistent with the evidence on either side. It is quite evident from the meager materials furnished for a judgment, the books and vouchers being absent, and under the defendant’s control, that the referee was compelled to determine what items should be allowed and what disallowed by substantially allowing such as were agreed on between the parties, and that be did not err in not adopting the claims of one side or the other.

The judgment should be affirmed, with costs.

All concur.


text:
    George Waite Tubbs, Resp’t, v. Robert C. Embree, Individually and as Trustee, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Trial—Transfer from calendar.
    Where the answer, in an action for damages, admitted plaintiff’s cause of action and set up a counterclaim for equitable relief, and the cause was placed on the circuit calendar and noticed for trial by both parties, the defendant’s conduct is equivalent to a consent to a trial at circuit, and a motion, made by him two months afterwards, to strike the cause from the / circuit court, and place it on the special term, calendar, is properly denied, though there is no issue of fact requiring trial by jury.
    Appeal from an order, denying a motion to strike the cause from the circuit court calendar and to place it on the special term calendar.

      Robert G Embree, in pro. per.; Gratz Nathan, for resp’t.
   Per Curiam.

The action was brought by the vendee in a contract for the purchase of real property to recover damages for the breach of such contract by the vendor, the breach consisting of the inability of the vendor, by reason of the defect in the title, to give a good or marketable title to the premises at the time fixed for closing the title. Such inability, is, in effect, admitted by the answer, but byway of counterclaim defendant asked for equitable relief, demanding specific performance, upon the claim that, within a few days after the date for closing, all objections to the title were cured and obviated, and the deed was tendered before suit brought. It will thus be seen that, by the pleadings, there was practically no issue of fact requiring a jury trial, and as the real question in the case would turn upon the counterclaim set up in the answer, which called for equitable relief, had the motion been made in time it would have been proper to have granted it to the extent of striking the case from the circuit calendar and remitting it to the special term calendar, or at least of staying the trial of the action at law until the equitable defense set up by the answer could be disposed of. The defendant, however, did not move promptly. The plaintiff served notice of trial for circuit court, and on the same day the defendant served a similar notice for the same term of the circuit court; and it was not until the lapse of two months thereafter that this motion was made to strike the cause from the circuit calendar, and place it upon the calendar of the special term. We think that, under the authority of Mackellar v. Rogers, 109 N. Y. 468; 16 St. Rep. 406, such conduct amounted to a distinct waiver on the part of the defendant, and was equivalent to a consent to a trial at circuit. In that case a counterclaim was interposed in an equity action, the defendant demanding affirmative judgment for money. Both parties noticed the issues for trial at special term, where, upon the cause being reached, the defendant demanded a trial by jury, which was denied. It was held (headnote) that-, by noticing the cause for trial at a court of which a jury forms no part, the defendant waived his right to a jury trial, and consented to a trial by the court, and that the granting or refusal of the request was a matter of discretion, and its exercise not reviewable here.”

Upon the facts appearing, we think that the discretion vested in the special term was wisely exercised, and that the order appealed from should therefore be affirmed, with $10 costs and disbursements.


author: Parker, J.

text:
    The People, Pl’ff, v. American Steam-Boiler Insurance Company, Def't. In the Matter of Gendron Iron Wheel Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Insurance—Limitation of action.
    Where a policy of insurance against liability for injuries to third persons, provided that, in case the insured should be sued by a person injured, an action by the insured on the policy must be brought within six months from the termination of the action by the injured person, the termination of such action, where an appeal is taken from a judgment therein for plaintiff, is on the filing of the mandate of the appellate court, affirming such judgment, and not on the payment of such judgment.
    Appeal from a judgment, dismissing a claim against a corporation in proceedings for its dissolution.

      A. W. Gleason, for app’lt; J. 0. O' Oonor and G. M. Spier, for resp’t.
   Parker, J.

An affirmance of the judgment, upon the ground that the claim is barred bv the limitation contained in the policy, is required. That the claim was not presented within six months from the termination of the suit against the assured is too clear for questioning. It is only by attempting to read into the provision something which would not have occurred to either of the parties to the contract, but for the neglect to file a claim seasonably, that the claimant is able to present a question for consideration. Tiie American Steam-Boiler Insurance Company insured the claimant against loss or damage, by explosion or accident, of two steam boilers, the policy expressly including damages sustained by an employe and recovered by him against the assured. While the policy was in force, an explosion occurred, in which an employe was injured and other damage done. For the latiera claim was presented and paid. But the former was contested in the trial court, and on appeal, resulted in a judgment which was finally-affirmed, the order of affirmance being duly entered October 13, 1893. The policy provides that:

“ No suit or proceeding shall be brought to recover any sum, * * * unless commenced within one year from the date of the explosion dr accident, nor for loss arising from injury to person, * * * unless commenced within three years from said date, and in case a suit instituted by a third party against the assured for personal injury, or loss of life, be pending at the termination of said period of three years, a suit may be brought against the company within six months from the termination of said suit, and not later.”

If the suit of the employe terminated October 13, 1893, when the mandate of the circuit court was filed with the clerk of the court of common pleas of Lucas county this claim should have been presented within six months, or on or before April 13th. It was not presented until April 23d, ten days later. After October 13th, two events happened which the claimant seeks to make use of to save it from the natural result of its neglect. These events are: (1) The payment of the judgment by the claimant on October 28th; (2) the payment of the costs November 1st.

As to the first, the claim is that the assured had no cause of action until after it had paid the judgment, could not present a claim until then, and, therefore, had six months from the time its cause of action accrued within which to present it. If this position be well taken, then the limitation provided for by the contract was dependent upon the time of payment of the judgment, instead of upon the terminination of the suit. And as payment could be postponed by the assured for so long a period as it could arrange with its judgment creditor, the right to determine when the six-months period should begin to run would rest with the assured. But the language of the provision does not admit of such construction. It provides that the period of six months shall date from the termination of the suit, not from the date of payment. It was within the power of the assured, through a prompt payment of the judgment; to make both dates the same, and thus to secure, if desired, six months after the cause of action accrued within which to present its claim. But it had not the right to postpone the period by refusing to pay the judgment. The decisions to which the appellant calls our attention, such as Steen v. Insurance Co., 89 N. Y. 315, do not call for a different construction of the language employed in this contract than we have given to it. In Steen’s Case, it is true, the court held that the provision in the policy limiting the time for bringing an action to a “ term of twelve months next after the loss or damage shall occur was not barred until over fourteen months thereafter; but the reason assigned for the conclusion reached was that the company intended to give the insured a full period of twelve months, within any part of which he might commence his action, and having postponed the assured’s right to bring an action until sixty days after the receipt of the proof of loss by the company, it was apparent that it did not intend to include that period within the term of limitation. The court said:

“ The parties cannot be presumed to have suspended the remedy and provided for the running of the period of limitation during the same time.”

If this policy provided for a postponement of payment of the judgment by the assured after the termination of the suit against it, the Steen Gase would be in point, and controlling. As it is, it has no bearing whatever.

The second event relied on, to wit, the payment of costs on November 1st, is in the main answered by what we have said in relation to the payment of the judgment. Claimant’s counsel, in his brief, suggests that, as the costs constituted part of the recovery, the suit was not finally terminated until after they were taxed. Assuming this position to be well taken, the difficulty with its application to the facts contained in this record is that it nowhere appears that the costs were not taxed on the day the remittitur was entered. All the information we have relating to costs is found in three receipts, entered upon the appearance docket. The first receipt, dated October 28th, is for the judgment, “except the costs,” and authorizes the clerk to cancel the judgment of record. The second is dated November 1st, and acknowledges the receipt of clerk’s and notary fees from the sheriff, The third entry acknowledges the filing of receipts for witness fees on the 14th of November. The record, therefore, does not furnish a basis for the position the appellant suggests rather than urges.

The judgment should be affirmed, with costs.

All concur.


text:
    Frederick J. Ulbricht, Resp’t, v. Alida S. Ulbricht, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Divorce—Alimony.
    In an action for divorce by a husband, the wife’s right to alimony pendente lite is not lost by her delay in demanding a trial of the issue by a jury.
    Appeal from an order, vacating an order granting to defendant alimony pendente lite and counsel fees.
    On September 18, 1894, plaintiff commenced this action for an absolute divorce upon the ground of defendant’s adultery. Issue was joined on November 12th. On December 11th, an order was made at the special term of this court requiring plaintiff to pay defendant $5 per week alimony until the trial of the action and $50 counsel fee, which was paid in full down to the date of the motion upon which the order was made from which this appeal is taken. On the same day plaintiff served notice of trial for the January, 1895, special term of this court, issue having been joined on November 12, 1864. The case was placed upon the equity calendar of the court, being numbered 2,568, and would have been reached at the June term, 1895. Defendant took no steps to claim her right to a jury trial of the issue until May 16, 1895, when a motion was made and argued by her that issufes be framed for trial by jury, which motion was granted. The order on.said motion was entered June 5, 1895, awarding issues of fact to be tried by a jury “on the 1st day of September, 1895, or as soon thereafter as the same may be tried.”

      3. Walker, for app’lt; W. B. Bronk, for resp’t.
   Per Curiam.

This action was brought for a divorce, on the ground of adultery. The defendant was entitled, as a matter of right, to a trial by jury of the issue of adultery, and she could only be deprived of that right in the manner provided for by the Code. She was not obligated to move the court for the purpose of framing the issues in order that they might be put in position to be tried by a jury. This was the plaintiff’s duty, if he desired to have his action.tried; and the fact that the defendant undertook that duty at a late day, as the plaintiff claims, is no reason for depriving her of the order which had been made in her favor for alimony and counsel fees. If there was any loches, it was the loches of the plaintiff, in not prosecuting his action diligently, and getting it into a condition of readiness for trial.

The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs.


text:
    Manhattan Life Insurance Company, Resp’t, v. Morris Alexander, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Bond—Execution.
    Where a person, whose name is signed to a bond, represents and duly acknowledges it to be his signature, there is an execution of the bond by him, though the signature may have been written by some one else.
    3. Trial—Failure to call witness.
    No inference can be drawn against a party because of the absence of a witness, where such-party had duly subpoenaed the witness and procured an attachment against him to compel his attendance.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial.

      Henry A. Foster, for app’lt; Arlemus H Holmes, for resp’t,
   Parker, J.

The recovery which the defendant Alexander seeks to have reviewed was had upon a bond purporting to be executed by him as surety for Jacob P. Solomon, who had been appointed an insurance solicitor for the plaintiff. Upon this, the second, trial of the action, the plaintiff understood that the defendant claimed not to have signed the bond personally, and the evidence offered by it was for the purpose of establishing, not that Alexander affixed his signature to the bond, but that he, with full knowledge that a signature purporting to be his had been affixed, represented and acknowleged the signature to be his, and was therefore bound by it. Evidence to the contrary was adduced on behalf of the defendant, and thus was presented a question for the jury, which the trial court carefully and properly submitted to them, resulting in a verdict in favor of the plaintiff. The appellant now contends that the trial court erred in refusing to charge the jury that, “if the jury believe that the defendant did not personally execute' the bond he is entitled to a verdict,” because, as he alleges, that was the issue presented by the pleadings. This position is based upon too narrow a view of the complaint, and assumes that under it there could be no recovery without proving that the defendant personally wrote his signature upon the bond. But the complaint does not so allege. It chargés the execution and delivery of the bond by the defendant. And if the fact be as plaintiff attempted to prove, and the jury have found, that the defendant represented and duly acknowledge the signature on the bond to be his signature, there was an execution of the bond by him, although the signature may have been written by some one else. But there is a still further answer to the appellant’s contention. The plaintiff did not attempt to prove that Alexander wrote the signature personally, bnt that he represented it to be his, and the evidence tending in that direction was received without objection. Further than that, the defendant attempted to meet this issue. When the court came to submit the case to the jury, it properly presented to them the issue which the parties had tried, without a suggestion that it was not embraced in the pleadings. Then it was too late to present the point, for the first time, had defendant attempted it. But he did not attempt it. There was nothing in the request to apprise the court that the defendant’s contention was that under the pleadings there could be no recovery, in the absence of proof that Alexander personally affixed his signature to the bond It suggested to the court simply that it was the plaintiff’s view of the law that the defendant was not liable unless he wrote the signature. Under the facts before the court this was not a sound proposition, and its refusal to charge as requested was not error.

The appellant complains of the refusal of the court to charge that the jury should take into consideration the failnre of the plaintiff to call the subscribing witness Steinitz, and that no excuse has been given for not calling him. But this complaint is without force, because it appears that the plaintiff did subpoena him, and the court issued an attachment against him to compel his attendance. The court, therefore, properly said that no inference can be drawn against the plaintiff because of his absence, for the reason that the plaintiff is not responsible for his nonappearance at this time.

We have carefully considered the appellant’s argument intended to persuade us that the verdict is against the weight of evidence; but shall content ourselves with saying that we not only do not agree with him, but we cannot see how the jury could have reached a different conclusion.

The judgment should be affirmed, with costs.

All concur.


author: Bradley, J.

text:
    Geneva and Waterloo Railway Company, Resp’t, v. New York Central and Hudson River Railroad Company App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Railroads—Intersections.
    Chap. 239 of 1898 does not make the right to an order, directing the crossing and intersection of street railroads over and with tracks of steam railroads, dependent upon an appointment of commissioners, hut declares the right of the petitioner to the order when an answer to the petition is interposed.
    2. Same.
    To vacate the order in such a case, it is essential that the steam railroad makes it appear, by affidavit or otherwise, that the proceedings have been in some respect irregular, or not authorized by the statute.-
    8. Same.
    Such statute does not authorize the taking of private property for public use without compensation, though it permits a temporary crossing to be made before the commissioners are appointed.
    Appeal from an order, denying a motion to vacate an order permitting plaintiff to lay its tracks across the roadbed and tracks of defendant.

      Albert H. Harris, for app’lt; Charles A. Hawley, for resp’t.
   Bradley, J.

The plaintiff, a corporation created and organized, pursuant to the “railroad law,” to construct and operate a street surface railroad in North street, from the village of Geneva into the village of Waterloo, obtained the requisite consents of the abutting property owners, and proceeded to lay its tracks in that street. The completion of its railway required the intersection of the defendant’s railroad, which crosses that highway. The plaintiff, being unable to agree with the defendant as to the manner of or compensation for the crossing, applied upon petition to the court for the appointment of commissioners. The defendant thereupon, by answer to the petition, raised issues which were sent to a referee for trial. Thereafter, upon application of the petitioner, the court by order directed it to lay its tracks across, and to intersect upon the surface of such highway, the roadbed and tracks of the defendant, and directed the latter to allow it be to done, and approved the petitioner’s bond, with sureties in that behalf. This order, and the bond so approved, were made pursuant to and in compliance with the statute. Laws 1893, ch. 239.

The question whether it was within the legislative power to grant such right to a street surface railway company was determined in the affirmative by the court in Buffalo B. & L. Ry. Co. v. New York, L. E. & W. R. Co., 72 Hun, 587; 54 St. Rep. 877. So far as that case is applicable to the present case, it is authoritative here. The fact that commissioners had been appointed in that case, and not in the one at bar, when the order was made, is a distinction urged as constitutionally vital, for the reason that, in the one case there had been a judicial recognition of the right of the company to construct a street railway for a public purpose, while in the present case there had been no judicial action to that -effect, but that the question in that respect was still an open one, and the legitimacy of the purpose of the project remained a matter for controversion by the defendant on the trial of the issues raised by its answer.

The statute, however, does not make the right to the order directing the crossing and intersection dependent upon the appointment of commissioners, but declares the right of the petitioner to the order when an answer to the petition is interposed. Before occasion can arise for obtaining such an order, the street surface railway company must have become a corporation organized for the purpose of the construction and operation of its railroad, and must have served its petition with notice of the application for the appointment of commissioners pursuant to the statute. The defendant railroad company is thus brought within the jurisdiction of the court, and subject to such proceedings as the statue permits the petitioner to take, among which is the application, in the event there mentioned, for the order giving the right to make the intersection by laying the tracks of the petitioner street railroad, the route of which is described in the petition, corresponding in length and termini with the description in that respect in the certificate of incorporation. And, so far as appears here, the organization of the petitioner as a corporation, ana the preliminary proceedings following it, were regular and valid. It may be seen that its purpose is legitimate. The state of the proceedings, lawfully conducted, at which the granting of such an order as that in question may be authorized, after the defendant by such proceeding is brought by it into the jurisdiction of the court, is not important, so far as relates to the question of legislative power. We are not advised of the matters alleged in the answer. The issues, whatever they are, do not defeat the petitioner’s right, given by the statute, to the order. The purpose of the statute permitting the application for it, when an answer - is interposed to the petition, evidently was to enable a street-railroad company to avoid the delay in laying its tracks, which otherwise would be consequent upon thus raising issues for trial. And, to vacate the order in such case, it is essential that the defendant make it appear, by affidavit or otherwise, that the proceedings have been in some respect irregular, or not authorized by the statute. Nothing whatever to that effect was made to appear in the papers upon which the motion to vacate the order in question was made. We are not dealing with the wisdom of legislation, but with its power ; and in that respect there is no apparent reason for the distinction before mentioned.

The intersection made pursuant to such an order, in either case, is for the time being provisional, and its permanency is dependent upon the result of the pending proceeding of the petitioner. By the reserved power to alter, suspend, or repeal the charter of a corporation (1 Bev. St. p. 600, § 8; Const, art. 8, § 1), its franchise is subject to legislative regulation. The relation of railroad corporations to the public is such that they may,in that behalf,be by statute required to assume burdens, having relation to the operation of their roads and with a view to the safety or convenience of the public. Laws 1874, ch. 648; People v. Boston & A. R. Co., 70 N. Y. 569. And by legislative enactment they may be required, without compensation, to allow streets and highways to be laid out, opened and used by the public across the land occupied by their tracks. Laws 1853, ch. 62; Railroad Co. v. Brownell, 24 N. Y. 345; Boston & A. R. Co. v. Village of Greenbush, 52 N. Y. 510; President, etc., of Delaware & Hudson Canal Co. v. Village of Whitehall, 90 N. Y. 21.

The statute last cited, and others having the support of judicial authority, illustrate somewhat the limitations applicable to the tenure of lands taken by a railroad corporation, and upon which its tracks are laid. The title so taken is limited to the use of the corporation for the purpose of its railroad, and that is a public use. And the exercise of the legislative power, to which such corporation is subject for the benefit of the public, may not be deemed the taking of property, in the sense which requires provision for compensation for constitutional support. Such was the case of Railroad Co. v. Brownell, where Judge Denio said : •

“ The property of the railroad is not taken away from the proprietors, who are still allowed to use it for all the purposes for which it was acquired from the original owner. Nor is there anything unlawful in obliging the railroad company to make the necessary excavations or embankments for taking the highway across the railroad.”

The question in the present case has relation to the right of the petitioner, derived from the statute, to lay its tracks on the surface.of a public highway, across the land occupied by the defendant’s track, also laid on the surface of the highway. The defendant, to that extent, has there an easement in common with the public. The intersection and contemplated use by the petitioner, as authorized by the statute, are for the public, and are consistent with the continued use by the defendant of its railroad, and without any substantial interference with such use by it.

It is unnecessary to further consider the question whether the intersection of the defendant’s road by that of the petitioner, as authorized by the statute and directed by the order, is a taking of property of the defendant in the constitutional sense of the term, since it was held by the court in Buffalo B. & L. Ry. Co. v. New York, L. E. & W. R. Co., 72 Hun, 587; 54 St. Rep. 877, that it was within the legislative power to permit such intersection and crossing without the allowance of compensation, and for that reason it is in this, as it was in that case, held that the question whether or not the statutory provision for security for the payment of compensation would otherwise have furnished the requisite certainty for the purpose does not necessarily arise for consideration.

The order should be affirmed.

All concur.


text:
    Edward C. Burns, Individually et al., as Executors, etc., Resp’ts, v. Augustus F. Allen et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Will—Charge on land.
    The intention to charge legacies upon the real estate may be inferred, where it appears that the personal estate of the testator at the date of his will is largely and clearly insufficient to pay the legacies, and that the testator must then have known and understood that their payment could not be made without the aid of the real estate ; but the deficiency must exist when the will is executed, and be so great and so obvious as to preclude any possible inference that the testator did not realize it, or that he may have expected and intended, before his death, to remove the difficulty.
    2. Same—Construction.
    Where a testator devises real estate to his son for life and, in case of his death, to his wife, as long as she should remain a widow, and directs that, at the end of the life tenancy, such real estate should be held in trust for certain persons, or the survivor of them, there is not an unlawful suspension of the power of alienation
    3. Same.
    A clause in a will, which by itself makes a valid disposition of a trust estate, is not rendered invalid by a subsequent clause which, in a certain event, makes an illegal suspension of alienation or ownership of the same trust estate, where the former clause is not dependent upon, but is complete and independent of, the latter clause.
    Appeal from a judgment, containing a will
    The purpose of the action was to obtain judicial construction of the will of the plaintiffs’ testatrix, and the controversy has relation to the first, fourth, seventh, eighth and ninth clauses of the will, which are as follows: “ First. After all my lawful debts are paid and discharged, I give and bequeath to my nephews, Augustus F. Allen and Alfred D. Allen, the sum of one thousand dollars each ($1,000); said sum to be expended upon their education, and for no other purpose whatever. In case either or both of said nephews should die before the above-mentioned sum or sums are expended as directed above, I direct that the sum or sums be given to Isabella S. Burns, daughter of Edward 0. Burns.” “ Fourth. I give and bequeath to Edward 0. Burns, for the term of his natural life, and in case of his death to Mary G-. Burns, as long as she shall remain a widow, the use of my house and lot on the corner of Fifth and Spring streets, in the city of Jamestown, New York, together with the use of my household furniture. On the completion of the life tenancy as above, I direct the aforesaid house and lot and household furniture to be held in trust for my adopted daughter, Melita Black, and Isabella S. Burns, or the survivor of them.” “Seventh. I give to my executor or executors hereinafter named all my interest in the wheat farm of the Brown Bros, and Preston Company) Blanchard, Trail county, Dakota; my land in Lansing, Michigan; fifty-five (55) and one-half acres of land in Dexterville, or East Jamestown; the ‘homestead,’ subject to the conditions of the preceding clause. All of said enumerated property, together with the rest, residue, and remainder of my estate, of every kind whatsoever, to be held in trust for my adopted daughcer, Melita Black, giving to my said executor or executors full power to sell any or all of said real estate or corporate interest at public or private sale, at such time and upon such terms as they may deem best, in the peaceful execution of their trust, and to give good and sufficient deeds for the same. The income arising from said trust estate, or so much thereof as may be necessary, to be used in the education and support of Melita. Directing and authorizing my said executor or executors, however, from said trust estate, to provide a sufficient sum to afford Isabella S. Burns like educational advantages as are afforded to Melita. Should the income of said trust estate be insufficient to carry out the provisions of this clause, then so much of the principal may be used as may be necessary for that purpose. Should Melita marry without the full consent of Edward G. and Mary G. Burns, then only so much of the income arising from said trust estate be paid her as shall be absolutely necessary for her support Eighth Should Melita die without leaving issue, I direct that the aforesaid trust estate be divided equally between my nephews, Augustus E. Allen and Alfred D. Allen, and Isabella S. Burns, or the survrvors of them. Ninth. Should Melita have children surviving her, I direct that the said estate be held in trust for said child or children until the youngest of said children reaches the age of twenty-one years. The estate then to be divided equally between such children; and, in case none of said children reaches the age of twenty-one years, the remainder of said estate to be divided as provided in the preceding clause,” The trial court determined that the legacies mentioned in the first clause were not a charge upon any of the real estate left by the testatrix; that by the fourth clause the estate in remainder was devised to Melita Black and Isabella S. Burns as tenants in common, or to the survivor of them; that by the provisions of the seventh clause a valid trust was created; and that in the event mentioned in the eighth clause the persons there mentioned, or the survivors or survivor of them, will take the estate there referred to,

      A. C. Wade and Noah Davis, for app’lts; Robert G. Shaw and George Barker, for resp’ts Melita Black and Isabella S. Burns; Stillman F. Kneeland, for other resp’ts..
   Bradley, J.

The legacies bequeathed to the appellants are not expressly charged upon the real estate of which testatrix died seised, by any provision of the will, nor does it furnish any implication of her intent to that effect. In re City of Rochester, 110 N. Y. 159; 17 St Rep. 146; Brill v. Wright, 112 N. Y. 129; 20 St. Rep, 305; Morris v. Sickly, 133 N. Y. 456; 45 St Rep. 735, But it is urged that extrinsic circumstances appearing by the evidence required the conclusion that the intention of the testatrix was that those legacies should be a charge upon the realty. If that contention is supported, they are entirely to that advantage, McCorn v. McCorn, 100 N. Y. 511; Briggs v. Carroll, 117 id. 288; 27 St. Rep. 468, The appellants were nephews of the testatrix, and at the time of her death they were her only heirs and next of kin. Her will was made in September, 1886, and she died in January, following. The intention in that respect, so far as it is to be ascertained by extrinsic facts, is dependent upon the circumstances as they existed and appeared at the time her will was made; and, to thus establish the charge of the legacies upon the real estate, it must clearly appear that the intent of the testatrix to make them so was manifested. Such intention may be inferred where it appears that the personal estate of the testator at the date of his will is largely and clearly insufficient to pay the legacies, and that the testator must have then known and understood that their payment could not be made without the aid of the real estate. In Briggs v. Carroll, it was said in the opinion of the court, delivered by Judge Finch, that “the deficiency must exist when the will is executed, and be so great and so obvious as to preclude any possible inference that the testator did not realize it, or that he may have expected and intended, before his death, to remove the difficulty.” In the present case the only evidence relating to the personal estate of the testatrix is in the testimony of the person who is an executor of the will, that “there was not enough personal property of the testatrix to pay her debts, to the best of my belief.” This statement was made in reference to the personal estate after the death of the testatrix, and in view of the debts as they then ex-' isted. There is no evidence of the nature of her personal estate at the time the will was made, nor of the extent or value of it, other than such inference as is derivable from that before mentioned. This is not sufficient to fairly require the conclusion that there was an obvious deficiency of personal property four months before her death to pay the legacies, in view of her debts as they then existed. It therefore does not appear to have been the intention of the testatrix to make those legacies a charge upon the real estate.

In the view taken of the fourth clause of the will, the contention that by its provisions the power of alienation of the real estate, and the absolute ownership of the personal property therein mentioned, are unlawfully suspened, is not sustained. The purpose of the testatrix evidently was that Edward 0. Burns, during his life, and Mary Gr. Burns,, if she survived him, so long as she remained his widow, should have the use of the property. And the limitation over was to the use of Melita Black and Isabella S. Burns, without the creation of any trust by that clause of the will. If the use were restricted to the income, it may be that the executors, although not named in that connection, might be treated as the trustees, without the expression of any devise to them, and a trust be deemed created, within the statute. 1 Rev. St. p. 729, § 55. But the provisions in that clause, giving Melita and Isabella the beneficial enjoyment of the remainder of the estate in that property without intervention of any recognized trust in an-, other, gave to them the estate in remainder, not cut down by the declaration of a mere passive or naked trust. Id. pp. 727, 728, §§ 47, 49. And such must be deemed the legal effect of the devise to them, unless there is elsewhere in the will some qualification of. the provisions in that respect of the fourth clause. Rawson v. Lampman, 5 N. Y. 456; Syracuse Savings Bank v. Holden, 105 id. 415; 8 St. Rep. 29; Greene v. Greene, 125 N. Y. 506; 36 St. Rep. 30. ■ The disposition of this property by the provisions of the fourth clause, as relates to the beneficiaries there mentioned, seems to be independent of the other provisions of the will. And therefore the suspension of alienation of the estate therein referred to terminates with the tenancies of Burns and his wife. The trial court determined that the devise of the remainder to Melita Black and Isabella S. Burns, or to the survivor of them, is to take effect as of the time of the termination of the prior estates. If it were necessarily here, the question whether or not the estates in remainder vested in the persons last named at the time of the death of the testatrix would be worthy of some consideration. The general rule of construction is that an estate in remainder is vested, rather than contingent, unless something appears in the instrument to indicate that the intent of the donor was otherwise. Moore v. Lyons, 25 Wend. 119; Livingston v. Greene, 52 N. Y. 118; Kelly v. Kelly, 61 id. 47; In re Mahan, 98 id. 372; Nelson v. Russell, 135 id. 137; 48 St. Rep. 64; Jennings v. Barry, 5 Dem. Sur. 531.

By the seventh clause the executors take the property there referred to in trust for Melita Black, and, in execution of it, are to 'apply the income of that estate, or as much of it as may be necessary, to her education and support. They are also directed to use sufficient of the income to give Isabella S. Burns like educational advantages and if the income is not sufficient they are to appropriate so much of the corpus of the fund to these objects as may be necessary for such purposes. To this, standing alone, there can be no objection going to its validity. The eighth clause follows, giving direction for the ultimate disposition of this trust estate in the event that Melita Black dies without issue. Thus far there is no legal suspension of alienation or ownership of the estate. But it is urged that the seventh and eighth clauses are * rendered invalid by the provisions of the ninth clause, which is to the effect that, if Melita leaves children surviving her, the-1 estate is to be held in trust until the youngest of them arrives at the age of twenty-one years, when it is to be divided oetween them. There might be some force in this contention, if the provisions of the seventh clause were dependent upon those of the ninth clause. Rice v. Barrett, 102 N. Y. 161. But they are not. The provisions of the seventh clause created the trust, and, for the purpose of its execution as there provided, they are complete, and independent of those which follow. While the devolution of the estate in the- events mentioned was within the scheme which the testratrix had in view when she made the several provisions of her will, those of the seventh and ninth clauses are not in such relation, or so united, as to render the execution of the former, in any sense, dependent upon the validity of the latter. Savage v. Burnham, 17 N. Y. 134; 6 St. Rep. 787.

The question of the validity of the ninth clause had no consideration of the trial court, and none is necessary to the result on this review.

The judgment should he affirmed, with costs of this appeal to the respondents, payable out of the estate. All concur.


text:
    Harvey A. Sweetland, Resp’t, v. Franklin S. Buell et al., Individually and as Executors, etc., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Adverse possession—Tenants in possession.
    Where one tenant in common assumes to sell and convey the entire estate in the premises and apparently does so by warranty deed, and his grantee takes it as such and goes into possession, claiming title to the whole, the possession, thus taken by the grantee and held by him, may be treated as an ouster of the cotenants and constitute adverse possession, and, by its continuance for the requisite time, will ripen into a title as against them.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Olarh H. Timerman, for pl’fi • George Wadsworth, for def’ts.
   Bradley, J.

The plaintiff seeks to compel the determination of a claim made by Jonathan S. Buell, the original defendant, to certain real property in the city of Buffalo, to which the plaintiff alleges title in himself. The lot in question is part of a tract of land of which Elijah Holt became the owner prior to 1819. On the 5th day of February of that year one Hancock recovered in the ¡Niagara court of common pleas a judgment against Holt for $310, upon which judgment was issued to the sheriff a fieri facias, tested J une 5, 1819. In the sheriff’s deed, of date April 12, 1820, it is recited that by virtue of that execution and another issued on a judgment against Holt and one Cotton, and tested February 12, 1820, he seized the land, and sold it to Asa Rice and Joseph Clary, “ said Asa and Joseph being executors of John Dill,” deceased, for the sum of $320, followed by grant to Rice and Clary of all the estate, title, and interest which Elijah Holt had in the premises on the 5th day of February, 1819. At the time of the sheriff’s sale, Rice and Clary were partners in business in the village of Buffalo, and, although they were executors of the will of Dill, it may be assumed that they by the purchase became tenants in common of whatever estate in the premises was conveyed by the sheriff’s deed. Asa Rice died in 1823, leaving three children, —John D., aged eleven years; ¡Norman Clary, aged five years; and Henry, aged three years. A warranty deed of date February o, 1819, expressing a consideration of $1,887.58, and recorded February 6, 1819, was made of the premises by Elijah Holt to Williams Holt, who, by warranty deed of date October 17, 1829, expressing consideration of $200, and recorded the same day, conveyed the premises, including those in question, to Joseph Clary. By the statute as it then was, the docketing of a judgment was not essential to a sale of land by virtue of an execution issued upon it, but it was provided that no judgment not docketed should affect any lands or tenements as to purchasers or mortgagees.” 1 Rev. Laws, chap. 50, §§ 1, 3. The undocketed judgment, however, was then a lien, and in equity had priority as against a purchaser or mortgagee having notice of it when he made the purchase or took his mortgage. Buchan v. Sumner, 2 Barb. Ch. 165. The Heacock judgment against Elijah Holt was not docketed, and, assuming that the judgment was entered prior to the delivery of the deed by the latter to William Holt, it did not affect the latter if he was a purchaser without notice of the judgment. The expression of consideration in the deed within the recording act is prima facie evidence that the purchase was for a valuable consideration. Hendy v. Smith, 49 Hun, 510; 18 St. Rep. 836; Wood v. Chapin, 13 N. Y. 509. And as there is no evidence that Williams Holt had any notice of the judgment when he took the conveyance, it cannot be assumed that he then had notice of it. Jackson v. Elsten, 12 Johns. 452; Dey v. Dunham, 2 Johns. Ch. 182; Brown v. Volkening, 64 N. Y. 76. The apparent situation as represented by the record of the deed of Elijah Holt to Williams Holt was such as to give apprehension that the title may have been conveyed by it to the latter. Such was the effect if it was made and taken in good faith for a valuable consideration; and therefore it was desirable to obtain conveyance from the grantee in support of the title derived from the sheriff’s deed. In view of his relation as tenant in common with the heirs of Asa Rice, Clary was not permitted to purchase the outstanding title exclusively for himself, but, as between him and them, such purchase inured to their benefit also, and they were chargeable with their proportionate share of the expense of it. Van Horne v. Fonda, 5 Johns. Ch. 388; Burhans v. Van Zandt, 7 N. Y. 523; Carpenter v. Carpenter, 131 id. 101; 42 St. Rep. 718. But Clary evidently did not contemplate any benefit to the heirs of Asa Rice by his purchase from Holt, as he had before then, by warranty deed of date September 13, 1828, recorded November 5, 1828, and expressing a consideration of $1,340, conveyed the premises covered by the sheriff’s deed to Martin Koebel and Adam Pforter ; and Pfortpr conveyed to Martin Koebel an undivided half of the premises by warranty deed of date December 31,1828, recorded March 14, 1868, expressing a consideration of $1,600; and Martin Koebel conveyed the premises to Philip Koebel by warranty deed of date August 1, 1864, recorded February 27, 1868, expressing a consideration of $2,500. The land conveyed by all those deeds was a tract of many acres, and in it was included the premises in question. As early as 1829 the grantees in the deeds had actual possession of the land, occupied and worked it for farming purposes, raising crops upon it annually until it was conveyed by Philip Koebel to Elam R. Jewett by warranty deed of date September 7, 1868, and recorded September 10, 1868, expressing a consideration of $6,000; and after such conveyance the land was occupied and worked for agricultural purposes under and by Jewett until after his conveyance of it to the Park Side Land Improvement Company, which was made by deed of date November 1, 1885, recorded March 16, 1886, expressing a consideration of $44,148. This company having possession of the land, afterwards, in 1888, divided it up into lots, laid out streets, graded it, and put the lots into the market; and in May, 1892, the company conveyed to the plaintiff one of the lots, which is the land in questian, by deed recorded May 24, 1892. He thereupon went into possession of the lot.

It is true, as asserted on the part of the defendant, that the possession of one tenant in common is, in the legal sense, that of all of them until he assumes a possession and control notoriously hostile to such relation of his coten'ants, and assumes to have the exclusive right to the premises; and that he cannot convey their interest in the property. But when one tenant in common assumes to sell and convey the entire estate in the premises, and apparently does so by warranty deed, and his grantee takes it as such, and goes into possession, claiming title to the whole, the possession thus taken by the grantee and held by him may be treated as an ouster of the cotenants, and constitute an adverse possession, and by its continuance for the requisite time will ripen into a title as against them. Clapp v. Bromagham, 9 Cow. 530; Bogardus v. Trinity Church, 4 Paige, 178; Town v. Needham, 3 id. 545; Florence v. Hopkins, 46 N. Y. 186; Baker v. Oakwood, 123 id. 16; 33 St. Rep. 223. The conclusion was warranted by the evidence that the premises including the lot in question were in the actual possession of the grantees under the deeds purporting to convey the entire estate, and that they took the conveyances, and, treating the grants as of that effect, held the possession, claiming title to the whole continuously for more than fifty years, and for more than forty years since the youngest heir of Asa Rice arrived at the age of twenty-one years. By this state of facts the survivors of those heirs are concluded from effectually asserting a claim to any estate in the premises, and their deed of conveyance, made in 1892, to Jonathan S. Buell, was ineffectual to support any claim thereto in behalf of him or of the defendants who succeeded him in title to his estate. And it is not necessary to inquire whether there was any question of 'fact arising upon the evidence as to the adverse possession, since the questions presented at the trial were there treated by counsel as those of law. Kirtz v. Peck, 113 N. Y. 222; 22 St Rep. 733; Winchell v. Hicks, 18 N. Y. 558. Although Franklin S. and Kate M. Buell, as executors, were not devisees in trust of any estate, they were, by the will of their testator, given power of sale. It seems that they by default, permitted the granting of the order bringing them in as defendants for the purpose of the continuance of the action after the death of the original defendant. They have not alleged any disclaimer by answer, and individually were necessary parties defendant There is no occasion furnished on this review to consider any question bearing upon their relation as such personal representatives to the action.

The motion for a new trial should be denied.

All concur.


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    The People ex rel. Charles Hoffman, App’lt, v. Charles A. Rupp et al., as Board of Police, etc., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Mandamus—When proper.
    Where an office is already filled by an actual incumbent, exercising its functions, even when he is merely an officer defacto, under color of right, mandamus is not available to compel the admission of another claimant to the office.
    Appeal from an order, denying the application by relator for a writ of mandamus against the board of police of the city of Buffalo to compel the appointment of relator to the office of assistant sealer of weights.

      Geo. W. Cothran\ for relator; Frank C. Laughlin, for resp’ts.
   Bradley, J.

The proceeding was instituted by an alternative writ of mandamus, commanding the defendants to appoint the relator to the office of assistant sealer of weights and measures of the city of Buffalo, or show cause to the contrary. The writ was founded upon the fact that the relator had served in the army of the Hnited States in the late war, and was honorably discharged therefrom; that lie had made application to such board of police for appointment to that office, and was entitled to preference, pursuant to the statute, which provides that:

“In every public department (of the cities), and also in noncompetitive examination under the civil service rules, laws, or regulations of the same, wherever they apply, honorably discharged Hnion soldiers and soldiers shall be preferred for appointment and employment; age, loss of limb or physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position.” Laws 1894, chap. 716.

The statute also further provided that:

“The civil service rules and laws of this state shall not apply to such persons residents of this state, who served in the army or navy of the Hnited States in the late war, and have been honorably discharged therefrom, for any position or employment, the compensation of which does not exceed four dollars a day, in the public departments and upon all public works of the state of Hew York, and of the several cities, counties, towns and villages thereof.” Id. chap. 717.

The defendants made return to the writ, and the issues were tried, and the court found as facts that the office of assistant sealer of weights and measures is a public office of the city of Buffalo, with an annual salary attached thereto of $1,000, and with a definite term of one year; that on the 12th day of December, 1894, there were two vacancies in such office, and that the filing of them by appointment devolved upon the .defendants, constituting such board of police ; that the relator was a volunteer soldier in the army of the Hnited States in the late war, and was honorably discharged therefrom; that he applied to the board for appointment to such office, and in his application set forth his military service and honorable discharge ; that he was competent to perform the duties ■of the office, and was the only honorably discharged soldier who •applied for appointment to either of those vacancies; that the board of police did not appoint the relator, but did appoint two other persons, who duly qualified and were incumbents of the office; that neither of them was an honorably discharged soldier ; that each of them had qualifications for the performance of the ■duties of the office superior to those of the relator ; and that such superior fitness was the inducement for their selection by the board, in preference to the appointment of the relator. And as conclusion of law the court determined that the writ of mandamus was not the proper remedy, and dismissed the proceeding.

The only question requiring consideration on this review is whether the remedy adopted by the relator was available for the purpose of the relief sought by him. The purpose of the statute is to give preference to honorably discharged soldiers, in making appointment to the offices within the classes there referred to, and ■such is the duty devolved upon the appointing power, not, however, excluding from consideration the question of competency and fitness for the positions. Assuming that the relator was entitled to preference, as against either of those so appointed by the defendants, he has no title to the office. That is not given by the preference, but is dependent upon appointment by the constituted authorities, without which no person can legally become an incumbent of the office. • It is in that view that the relator seeks to enforce his appointment by the defendants. They have exercised their power in that respect, and the persons appointed are in the -offices. But it is insisted that one of them was unlawfully placed there, by reason of such preference to which the relator was entitled, and that the defendants, having made the appointment in violation of law, cannot assert it in the denial of his right to the preference. The fact remains that there is no vacancy to fill. The offices are occupied by those having apparent authority, derived from appointment by the board having the power to make it. The appointment of the relator would not displace either of the present incumbents. It is not the province of a writ of mandamus to establish rights or to determine controversies. It is available only for the enforcement of a clear, specific, legal right, and there must also be an existing duty of the respondents to perform or execute it. The absence of either defeats the remedy. The proceeding by mandamus, in some sense, has the nature of an action between the parties, and is for the enforcement of a right in favor of the person in whose behalf the writ is granted. This duty of the respondents, without the corresponding right upon his part, would furnish no support for granting it. People v. Supervisors of Greene Co., 12 Barb. 217. The claim of the relator, upon which the proceeding is founded, is that he is entitled to the office. The question of his appointment in voles the consideration of the right to the office, and, unless the latter is clear, the writ of mandamus is not the appropriate remedy to enforce the former. It cannot be assumed that the right to the office does not present a disputed question, which would have to be determined upon conflicting claims between the relator and one of the present incumbents. The determination of the right in such case is not within the purpose of a proceeding by mandamus, but the question may properly arise and be disposed of in an action which now, in this state, takes the place of what was formerly known as an information in the nature of quo warranta. Code Civ. Proc. § 1983. In such case the proceeding or action is instituted by the attorney general in the name of the people, and the relief sought is not dependent upon the right of the relator. The burden, in the first instance, is with the defendant to show that he has the legal title to the office, and the fact that he is ousted for want of such title or right to the possession of it does not necessarily establish the title of the relator to it. People v. Thacher, 55 N. Y. 525.

The proposition is well settled that, where an office is already filled by an actual incumbent, exercising the functions of it, even when he is merely an officer de facto, under color of right, mandamus is not available to compel the admission of another claimant to the office. People v. Mayor, etc., of New York, 3 Johns. Cas. 79; People ex rel. Wren v. Goelting, 133 N. Y. 569; 44 St. Rep. 503. It is first to be determined, in an appropriate action in the nature of quo warranta, whether one of the persons appointed by the defendants to the office in question is rightfully in possession of it; and if the result is judgment of ouster, a vacancy is furnished. Then it may be the duty of the board of police to fill it, and in that event, if any one person is entitled to the appointment, he may, if necessary, proceed to obtain it by means of the mandatory writ. Those questions, however, do not arise here for consideration. The conclusion of the trial court, that the writ of mandamus was not the proper remedy, is well supported by the opinion of Justice Spring, before whom the trial was had.

The judgment should be affirmed.

All concur, except Ward, J., dissenting.


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    Daniel Hurley, as Administrator, etc., Resp’t, v. New York Central & Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Negligence—Burden of proof.
    In an action for injuries causing death, the burden is with the plaintiff to prove that his intestate was free from, contributory negligence.
    2. Same—Questions for jury.
    Where the conclusion is permitted that the emergency, in which the in. testate was placed by the negligence of the defendant, was such that he was not responsible for failure to use the best or most accurate judgment which may now seem to have been available to extricate him from his perilous position, the question of contributory negligence on the part of the plaintiff’s intestate is one of fact upon the evidence for the determination of the jury.
    Appeal from a judgment entered on a verdict in favor_ of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions.

      James Fraser Gluck, for app’lt; John Cuneen, for resp't.
   Bradley, J.

In the evening of November 19, 1891, the plaintiff’s intestate, in driving a corette on Seneca street, in the city of Buffalo, was killed by a train upon the defendant’s road, which crossed the street diagonally in a northeasterly and southwesterly direction. The line of the street is nearly east and west. The deceased was driving east, and had passed over the tracks of the Western New York & Pennsylvania Railroad, and stopped between them and the tracks of the defendant’s road for an engine moving westerly to pass, and after it passed he drove forward onto the track of the defendant, and his vehicle was struck by a train going northeasterly on the defendant’s road, causing his death. The inference was warranted by the evidence that no signal by bell or whistle was given of the approach of the train. The jury were permitted to find that the defendant was chargeable with negligence. The burden was with the plaintiff to prove that his intestate was free from contributory negligence. There was evidence tending to prove that he looked -both ways to see whether he could safely cross the track, before he drove upon it. The engine of the train had a-headlight and, while it does not very clearly appear that he may not have seen it if he had carefully and continuously looked, there is evidences of circumstances which may have reasonably led him to suppose that he could safely cross when he sought to do so, until he had so far proceeded as to relieve him from the imputation of negligence in entering upon the track. The street is a business one. It is crossed by the Western New York & Pennsylvania Railroad tracks westerly of and parallel with those of defendant. The gates at the crossing were, and had been for two or three days, out of repair, and not operated, and a flagman was stationed there. The evidence on the part of the plaintiff is to the effect that when the deceased had driven across the track of the Western New York & Pennsylvania Railroad the flagman gave a signal for him to stop, which he did between it and that of defendant, and that immediately after the engine going west passed the flagman gave a signal for him to proceed, and that he did so, with the unfortunate result. The signal to proceed may be deemed to have been something of an invitation to the deceased to go forward, and such assurance as it could furnish that it was safe to do so. Three passengers in the carette saw the headlight of the approaching engine just as the horses were going upon the tract, and jumped from the vehicle before the collision; two of them without and the other with some personal injury occasioned by it. The plaintiff’s intestate having charge of the team did not abandon the carette. It is .evident" that he was in a position to see the train momentarily, as did the passengers, before the collision. But at the time his situation was an emergent one. He had so far proceeded that his position was perilous, and he may not have used the best j udgment for his personal safety. He probably may, by the abandonment of his rig, have jumped from the coach, and saved himself. But the conclusion was permitted that the emergency in which he was placed by the negligence of the defendant was such that he was not responsible for failure to use the best or most accurate judgment which may now seem to have been available to extricate himself from his perilous position. Voak v. Railway Co., 75 N. Y. 320: Twomley v. Railroad Co., 69 id. 158; Dyer v. Railway Co., 71 id. 228; Roll v. Railway Co., 15 Hun. 496; 80 N. Y. 647. The questions of negligence on the part of the defendant and of contributory negligence of the plaintiff’s intestate were those of fact upon the evidence, and were fairly submitted by the learned trial court to the jury, and it is not seen that the questions arising upon the conflict of the evidence were not properly disposed of by the verdict. None of the exceptions were well taken.

The judgment and order should be affirmed.

All concur.


author: Davy, J.

text:
    James M. Constable et al., Pl’ffs, v. Matthew Hardenbergh et al., Def’ts.

      (Supreme Court, New York Special Term,

      Filed October, 1895.)

    1. Assignment nor creditors—Withholding assets.
    The intentional appropriation of money by an assignor for the benefit of creditors, in contemplation of the assignment, however innocent and plausible may have been the pretense, constitutes in law a fraud upon his creditors.
    2. Same—-Advice.
    The mere fact that he acted upon the advice of counsel in so doing, furnishes no excuse for the unlawful act.
    Action to set aside an assignment for benefit of creditors.

      Hpstein Bros., for-pl’ffs; Henry S. Rosquin, for def’ts.
   Davy, J.

On the 18th day of July, 1893, Matthew Hardenbergh and George H. Kelly, composing the firm of Hardenbergh & Go., executed an assignment of all their property, both real and personal, in trust to Hugo Hirsh, to convert the same into money, and, after paying the lawful expenses of the trust, to pay their partnership debts in the order specified in the assignment. The plaintiffs, who are judgment creditors of the firm, bring this action to set aside the assignment upon the ground that it was made with intent to hinder, delay, and defraud the creditors of said assignors, and to have the assets of the assigned estate applied to the payment of their debt. Both the assignors and assignee respectively appeared and answered in the action, and denied all the allegations contained in the complaint imputing fraud to them. There are three specific acts of fraud on the part of the assignors alleged in the complaint, and established, as the plaintiffs contend, by the evidence, but I do not deem it necessary, however, to discuss but one of them. It appears from the evidence that the assignors, just prior to making the assignment, and in contemplation thereof, took from the firm assets, and appropriated to their own use, about $500. They admit the taking of the money, but attempt, however, to justify the act upon the ground that the money was necessary for the immediate need of their families, and that they appropriated it in good faith, upon the advice of counsel, without any intent on their part to defraud the creditors. The answer to this contention is that the firm assets which they took belonged to their creditors, and the intentional appropriation of the money, in contemplation of the assignment, however innocent and plausible may have been the pretense, constituted in law a fraud upon the creditors. The law does not contemplate that a debtor in failing circumstances, when he makes an assignment for the benefit of his creditors, shall retain a portion of the assets upon the pretext that he needs the money to support his family until he can find employment or engage in some other enterprise. If such a power was vested in the direction of the insolvent, it would be a most danger-, pus precedent to establish, because, if he was clothed with a discretionary power to retain from the assets a sum necessary to support his family for a brief period, it would be a discretion that in most cases would not be judicially exercised, and would prove disastrous to the rights of the creditors. The mere fact that they received such advice from counsel furnishes no excuse for the unlawful act. By the terms of the assignment they were required to turn over to the assignee all of their property except such as was specifically exempt by law from levy and sale on execution. The schedule, which purports to contain a full and true statement of all the assets, does not include the $500. It is, therefore, a false schedule, and made so intentionally. The natural effect of this false inventory tended to mislead and deceive the creditors, and to induce them to accept a smaller sum than they otherwise would if the inventory had contained a true statement of all the assets. The intentional taking of the money prevented the legal distribution of all the assignors’ property among the creditors, and thereby hindered, delayed, and defrauded them in the collection of their debts. Shulz v. Hoagland, 85 N. Y. 465. It is a rule well settled that “every party must be deemed to have included the natural and inevitable consequences of bis acts; and where his acts are voluntary, and necessarily operate to defraud others, he must be deemed to have intended the fraud.” It was held in Coursey v. Morton, 132 N. Y. 556; 43 St. Rep. 673, that “an intentional withholding and secreting by the assignors of assets of a substantial value from the possession of the assignee is a fraud upon the rights of the creditors of the assignor, and renders a general assignment for the benefit of creditors vo.id.” I am inclined to think that if the rule laid down by the court of appeals in the case last cited is applied to the facts in this case, the assignment cannot be upheld, but must be vacated, and set aside, on the ground that it is fraudulent and void as against the creditors of the assignors. The plaintiffs, therefore, may have judgment vacating the assignment, with costs, to be paid out of the assets in the hands of the assignee.


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    Frederick Brandt, Resp’t, v. George Schmeckenbecher et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Mechanic’s lien—Extinguishment.
    The statute (section 6, chap. 343 of 1885) does not provide that the commencement of an action by a lienor shall be deemed an action by every other lienor to enforce his lien, but such shall be its effect only as to a claimant made a party defendant.
    2. Same.
    Where the lien of a claimant has expired before the summons is amended so as to bring him in as a party defendant to an action to foreclose the plaintiff's lien, the amendment cannot have the effect of reviving his lien.
    Appeal from so much of the judgment as dismissed the liens claimed by the appellant.

      Early & Pendergast, for app’lts ; Philip L. Wilson, for Brandt; Milo J. White, for resp’t Burton.
   Parker, J.

Complaint is made' by the appellants of the decision of the learned referee in two respects : (1) Of the holding that the liens of the appellants had expired by operation of the statute; (2) of the necessary determination that the question whether the lien had expired was before the court for adjudication. The appellants filed their liens on the 1st and 2d days of October, 1891. They did not commence an action to foreclose them, or either of them, within one year after such filing, nor obtain an order of the court continuing such lien. This plaintiff commenced his action within the year, to wit, September 9, 1892, and, had he made the appellants parties defendant, they would be within the protection of the further provision of section 6 of chapter 342, Laws 1885, which reads:

“ And when a claimant is made a party defendant to any action brought to enforce any other lien, such action shall be deemed an action to enforce the lien of such defendant who is a claimant within the provision of this act.”

But, having failed to do that, affirmative action on the part of these appellants within the year was necessary to longer continue the life of their liens. They failed to take any steps whatever, and the presence of the straws at which they grasp on this appeal is due to the fact that the owner demurred to the complaint on the ground of defect of parties, in that other lienors, including these appellants, had not been joined as defendants. The demurrer was sustained by an order made February 10, 1893, by which it was further provided that the plaintiff should be allowed to amend the summons and complaint by making the other lienors parties defendant. This was subsequently done, and service of such amended summons and complaint was made upon these appellants April 21, 1893.

Because the appellants were necessary parties to a successful prosecution of plaintiff’s action, they urge that their omission should not work to their prejudice. But it will serve no good purpose to pursue that suggestion. It is sufficient to observe that the statute does not provide that the commencement of an action by a lienor shall be deemed an action by every other lienor to enforce his lien, but that such shall be its effect only as to a claimant made a party defendant. The language of the statute is clear and unambiguous. It does not admit of a construction which gives to the making and nonmaking of a claimant a party defendant, in an action to enforce a lien, precisely the same potency for continuing the life of his lien. As the lien of these appellants had expired before the summons was amended, the amendment could not have the effect of reviving the lien. That which the statute declares to be dead, the court cannot, by order, restore to life.

The suggestion that the question of the running of the statute against the appellants’ claims was not before the court seems to be without merit. It is distinctly presented by the answer of D. Gr. Burton, one of the lienors.

The judgment should be affirmed, with costs to the respondent Burton.

All concur.