text:
    MILES STRICKLAND, Appellant, v. CHARLES G. HARGER and CHARLES G. HARGER, Jr., Respondents.

      Composition deed — when it is not necessary that it be signed by all creditors — when the deed cannot be explained by parol evidence

    A composition deed recited that “whereas, C. G. Harger & Son, hankers, are indebted to the undersigned, their several creditors, in divers amounts, hut by-reason of sundry losses and disappointments are unable to pay and satisfy our demands in full, now * *

      Held, that the words “ their several creditors ” were not synonymous with “ all their creditors,” and did not imply that the compromise was not to become binding until all the creditors had signed it.

      Held, further, that as there was no ambiguity in the deed, evidence of the circumstances attending its execution was inadmissible to show that it was intended to be inoperative unless signed by all the creditors.
    Appeal from a judgment entered on a decision of tbe Special Term in Jefferson county, dismissing tbe complaint.
    Tbe action was brought to set aside, as to the plaintiff, a compromise signed by tbe plaintiff and other creditors of tbe defendants, by which they agreed to take seventy-five per cent of their respective claims in full, and also a release by the plaintiff of his debts, on the ground that the plaintiff was induced to sign such compromise and release by fraudulent representations made by the defendants. The plaintiff received seventy-five per cent of his debt, according to the terms of the compromise, and he in this action demanded judgment for the remainder.

      Whiting & Moore, for the appellant.
    By the terms and conditions of tbe composition it was not to be binding on any of the signers, until all the creditors of the defendants had signed. ( Westcott v. Thompson, 18 N. Y., 363, 366; Shelby on Contracts, 70; Smith on Construction of Statutes, §527; Ward v. Whitney, 8 N. Y., 442, 446; Auburn Oity Banh v. Leonard, 40 Barb., 119, 134 ; Smith on Statutory Law, § 512 ; Blossom v. Griffin, 13 N. Y. [3 Ker.], 569, 574.]

      MeOartin <& Williams, for the respondents.
   Smith, J. :

The judge before whom this cause was tried found that when the plaintiff executed the release of his claim, one of the defendants told him that all the creditors had signed the compromise except a few scattering ones whose residence was unknown. It was also found that the statement was untrue, and it was admitted by the defendants that some of the creditors did not sign the composition, whose residence was known to the defendants. As the plaintiff testified that he relied upon that statement when he signed the release, a case was probably made for setting aside the release as fraudulent, provided the allegations in the complaint were sufficient for that purpose. But the fraud which affected the release did not touch the compromise which preceded it, and if that stands, and is of itself binding on the plaintiff, the setting aside of the release would not give the plaintiff a right to collect the remainder of his debt, and would yield him no practical relief.

The principal question is, therefore, whether the compromise Is valid and binding on the plaintiff. The judge at Special Term found that the defendants practiced no fraud upon the plaintiff to induce him to sign that instrument, and we concur in the views expressed in his opinion upon that point.

The appellant’s counsel contends that the compromise was not delivered by the plaintiff to take effect when signed, but was left with the defendants to enable them to get other creditors to sign it, and that it had no validity as to the plaintiff until he received his percentage and signed the release; and, consequently, it also is Void by reason of the fraud which vitiated the release. The judge found, as matter of law, that as against the plaintiff the compromise was fully delivered at the time when ho signed it and left it in the defendant’s hands, and that no fraud being practiced upon the plaintiff at the time of its execution, its validity was not affected by whatever occurred between the parties plaintiff and defendants after its execution. In those particulars also we concur with the Special Term.

It is also contended by the appellant’s counsel that the composition, by its terms, was not to be binding until all the creditors had signed it. The language is: “Whereas, C. G. Hargor & Son, bankers, are indebted to the undersigned, their several creditors, in divera amounts ; but by reason of sundry losses and disappointments are unable to pay and satisfy our demands in full; now, therefore, we,” etc. It is argued that the words “their several creditors ” are synonymous with “ all their creditors,” and that they necessarily imply that the compromise was not to be binding until all the creditors had signed it. We are not prepared to adopt that construction. Among the synonyms of the word “several,” given by lexicographers, are “various,” “divers,” “sundry,” “consisting of any small number more than two;” but the dictionaries furnish no authority for saying that “ several ” means “ all.” If it was intended that the signature of all the creditors was essential to the validity of the instrument, it was easy to say so. The plaintiff gave a practical construction to the agreement opposed to that contended for by his counsel, by accepting his percentage and giving the release, although he was told at the time that some creditors had not signed.

In Renard v. Tuller (4 Bosw., 107), which was the case of a composition agreement, it was said by HoffmaN, J., that “such a condition ought to be expressly declared or clearly deducible from unambiguous language. Compositions could rarely be carried into effect if such stipulation is in every case, or in every doubtful case, to be implied when the contrary is not declared.” We think the composition in this case did not in express terms, or by fair inference, declare that it was to be inoperative unless signed by all the creditors. When signed by more than one the agreement of each so signing was a good consideration for the agreement of the others, and it was binding on “the several” creditors who signed.

It was not competent to resort to proof of circumstances attending the execution of the agreement to show that it was intended to have the effect which the argument of the appellant’s counsel would ascribe to it. There was no ambiguity — nothing to be explained; and proof of the kind suggested could have served no other purpose than to make a new agreement.

The judgment should be affirmed, with costs.

Taucott, P. J., and HakdiN, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    CHAUNCEY A. SNOW, Respondent, v. CHAUNCEY WILLIAMS and GEORGE WILLIAMS, Appellants.

      Nuisance — action to restrain — when a 'party is not estopped, by acquiescence or laches from maintaining it.

    The plaintiff was the owner of a farm, through which ran a stream, upon which, adjoining plaintiff’s farm and situated above it on the stream, defendants had a cheese factory. Defendants discharged into the stream refuse washings and whey, so as to render the water unwholesome, offensive, and unfit for the uses of plaintiff’s farm. Upon the trial of an action brought to restrain such use of the factory, it appeared that plaintiff knew, when the factory was built, that it was customary for factories in that part of the country to discharge the surplus whey into streams, and that he made no objection when the subject of such discharge was spoken of.

      Neld, that he was not thereby estopped from maintaining his action.
    The factory was put in operation in the spring of 1874, during which season, and that of 1875, plaintiff patronized it, and made no objection to the whey being discharged into the stream. In December, 1875,'defendants bought the factory, and operated it in 1876 substantially as before. This action was brought in the spring of 1877.

      Held, that as the plaintiff had not induced the purchase by any act or representation, he was not estopped from maintaining this action against the defendants.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    Action to restrain an alleged private nuisance, by perpetual injunction, and to recover damages occasioned thereby. The plaintiff is, and for thirty years has been, the owner and occupant of a farm of about two hundred and fifty acres of land in the county of Cattaraugus, through which runs a natural stream known as Elm creek. The defendants own and operate a cheese factory, which was erected in the spring of 1874, upon a tract of land of about twenty-one acres, adjoining the plaintiffs' land, and situated above it on the same stream. In operating their factory the defendants have been in the habit of discharging the refuse washings and surplus whey into the stream near the factory, thereby, as the referee found, corrupting the water of the stream and rendering it unwholesome, impure and offensive, and often unfit for use for the purposes of the plaintiff’s farm, and to some extent corrupting the air along and near the stream, at certain points on plaintiff’s premises, to the discomfort, annoyance and damage of the plaintiff. The referee found that the plaintiff was entitled to an injunction restraining the defendants from discharging into said stream the whey or other refuse matter from said factory, which will tend to render impure or unwholesome the water of the stream, or the atmosphere along the stream. He also fixed the plaintiff’s damages at twenty dollars, and decided that neither party should have costs against the other, except that the defendants should pay the fees of the referee. The judgment entered on the report perpetually restrains the defendants from discharging any of the whey or refuse matter of the factory into the stream, and also from doing, suffering or permitting any act or thing at or about said factory which will tend to render the water of said stream or the atmosphere along the same impure or unwholesome. The judgment followed the report, in respect to damages and costs.

      Goodwill <& /Stevens, for the appellants.
    During the years 1874 and 1875 plaintiff not only acquiesced in the discharge of surplus whey into the stream, but also actively assisted therein. He thereby held out to the world that the manner in which the factory was managed was in all respects lawful and proper, and with his full and perfect assent. In December, 1875, when defendants purchased the factory, they had a right to rely upon the appearances which he not only allowed to be held out, but assisted in holding out to the world. This brings the case within the purview of the equitable doctrine of laches and acquiescence, elaborated by the cases hereinafter cited. (Williams v. Earl of Jersey, 1 Cr. & Ph. Ch., 97; Wood v. Sutcliffe, 8 Eng. L. & Eq., 217; Banhhardt v. Houghton, 27 Beav., 425; Rochdale Oanal Go. v. King, 16 id., 630; Anon., 2 Eq. Cas. Abr., 523; Short v. Taylor, 2 id.; Darrin v. Spurrier, 7 Yes., 231; Jones v. The Royal Oanal Qo., 2 Molloy, 319; Radenhurst v. Ooates, 6 Grant’s Ch., 140; Heenan v. Dewar, 18 id., 438, and 17 id., 638; Basset v. Company, 47 N. H., 426; Task v. Adams, 10 Cush., 252; Whitney v. R. R. Go., 11 Gray, 359; Raritan Go. v. Veghte, 19 N. J., 142; Hulme v. SJireve, 3 Green Ch., 116; Addison on Torts [Am. ed.], 259, and cases there cited; see, also, Campbell v. Sea

      man, 63 N. Y., 585, the opinion of Judge Earl ; also, Eden on Injunction, 167.)

      Alexander Wentworth, for the respondent.
    The discharging of the whey from the vat, and the washings, and other refuse matter from the factory into the stream by defendants, constituted a nuisance. (Wood on Nuisances, §§ 120, 439, 531, 682, 700, and the numerous cases cited in notes; Davis v. Lamberton, 56 Barb., 480; Oarhart v. Auburn Gas Light Go., 27 id., 297; Angelí on Watercourses, §§ 136, 137, 388, 450; People v. Townsend, 3 Hill, 479; Gatlin v. Valentine, 9 Paige, 575; Hutchins v. Smith, 63 Barb., 252; Brady v. Weeks, 3 id., 157; Fish v. Doge. 4 Denio, 311; McKean v. See, 51 N. Y., 300; Ohipman v. Palmer, 9 Hun, 517; Campbell v. Seaman, 63 N. Y., 568, and cases there cited; Harrison v. St. Marie's Church, 15 Albany L. J., 248.) There are no facts in the case constituting an equitable estoppel. (Babcoclc v. Utter, 32 How., 439; Bankhardt v. Houghton, 27 Beav., 430; Wood’s Law of Nuisance, § 798; Brown v. Bowen, 30 N. Y., 519; Heiskell v. Gross, 7 Phil. [Penn.], 317; Gordon v. B. JR. Co., 5 Beav., 233.) Conceding that the facts gave Wiggins a license, it will not aid the defendants. It was a mere personal right, not susceptible of conveyance founded in personal confidence, and revocable at pleasure. It is not an easement or appurtenance, and did not pass to defendants with their deed, but became extinguished. (Babcock v. Utter, 32 How., 439; Jamison v. Milliman, 3 Duer, 255; Hazelton v. Putnam, 3 Chand. Wis., 117; Ex parte Coburn, 1 Cow., 570; Mumfordv. Whitney, 15 Wend., 381; Eggleston v. JST. V. and Harlem JR. JR. Co., 35 Barb., 162; Brown v. Bowen, 30 N. Y., 519; Miller v. Auburn and S. R. R., 6 Hill, 61; Selden v. Delaware and Hudson Canal Co., 29 N. Y., 634; Wood v. Leadbitter, 13 M. & W., 838; Roberts v. Rose, 1 Exch. [L. R.], 82; Bank-hardt v. Houghton, 27 Beav., 425; Brown on Statute of Frauds, §§ 27 to 29; Angelí on Watercourses, § 285; 2 R. S.,134, § 6; 1 id., 738, § 137.)
   Smith, J.:

An examination of the testimony satisfies us that the findings of the referee, as to the extent to.which the stream is polluted and the plaintiff- is damnified and annoyed, by the discharge into it of refuse matter from the defendants’ factory, are not, as the appellants counsel insists, against the weight of evidence, but are warranted by the proof.

It is clear that such use of the stream, attended with such injurious results, is a nuisance. That the plaintiff is entitled to the interposition of the equitable power of the court, by injunction, to prevent a continuance of the nuisance, is equally clear, unless, as the appellant’s counsel contends, the plaintiff has so acted, by encouraging the erection of the defendant’s factory, by acquiescing in the use which those operating the factory have made of the stream, and by delay in complaining of the injurious effects of such use, as to preclude him from claiming equitable relief.

A person may so encourage that which he afterward complains of as a nuisance, as to iDreclude him from any claim in equity to an injunction. (Williams v. Earl of Jersey, 1 Cr. & Ph., 97; Bassett v. Salisbury, etc. Co., 47 N. H., 426; Wood v. Sutcliff, 8 Eng. L. & Eq., 217; Heenan v. Dewan, 8 Grant’s Ch., 438.) But neither an actual assent to the erection of the nuisance, nor active participation in its erection will have that effect, unless the party had reason to suppose that the erection would be a nuisance. The doctrine of estoppel, based upon encouragement or acquiescence, rests upon the ground that the party has so acted as that an attempt on his part to stop tlie nuisance or recover damages therefrom would be a positive fraud. If, therefore, the thing was'something winch might or might not become a nuisance, according to the circumstances of its use, he would not be estopped unless he knew the precise method of its use, and was fairly chargeable with notice of its results. (Wood ’on Nuisances, § 798 ; Bankart v. Houghton, 27 Beav., 425.)

' It appears that the plaintiff uses his farm for stock and dairy purposes. He herds his cows and other stock, at night, in a pasture, where they have access to the stream, the water of which is the only water they can obtain while in the pasture. On the opposite side of the stream he has a dairy-house and well, about twelve rods from the stream, and the water of such well and stream .is the only water which he has for-the use of his dairy-bouse, ancl the family occupying the same. The barn, in which the teams used on the farm are kept, is near the stream, and the water of the stream is principally used for watering the teams. The referee has found that in consequence of the accumulation on and above plaintiff’s farm, of wlicy and refuse matters discharged from the factory, the water in the stream upon plaintiff’s farm has been impregnated and corrupted therewith, and during seasons of warm weather and low water it has emitted noxious and offensive smells, and the water has been rendered unwholesome, impure, offensive, and often unfit for use, for the purposes of the farm, stock and dairy; the teams have sometimes refused to drink it; to some extent the air near to and along said stream has become corrupted, impure and offensive, and the milk from plaintiff’s dairy has sometimes become tainted, by reason whereof, as the referee finds, the occupation and enjoyment of the plaintiff’s farm and property have been rendered disagreeable, uncomfortable, inconvenient and less valuable, and the plaintiff has been annoyed and put to inconvenience, loss and damage. There is no finding and no evidence that when the plaintiff aided and encouraged the erection of the factory, he knew or had reason to suppose that the injurious results above stated would follow. The extent of the case on that point is, that he knew that it was the custom of cheese factories, in that section of country, to dischaage their surplus whey into the streams on which they were situated. It also appears that when the subject of discharging the surplus whey from the proposed factory into Elm creek was talked of in his hearing, he did not object to it. For aught that appears, he and all parties concerned may have expected at that time, that the water of the stream would carry away all the refuse matter proposed to be thrown into it, and no nuisance would be created on the plaintiff’s premises. In these circumstances he is not estopped by anything that occurred before the factory was put in operation. It is highly unreasonable to suppose that he anticipated and consented that his farm should be injured and himself annoyed to the extent found by the referee.

As to the plaintiff’s subsequent acquiescence and delay, the facts are these : The factory was erected and put in operation by John Wiggins in the spring of 1874. During the seasons of 1874 and 1875, from April to November, the plaintiif patronized the factory and knew thatthe surplus whey was discharged into the stream, and he did not object to it. He also knew that the tendency of discharging sour and stale whey into the stream was to render its waters more or less impure. In December, 1875, the defendant bought the factory property of Wiggins and operated it through the season of 1876, using the stream substantially as Wig-ins had done, and was preparing to do the same in the spring of 1877, at the time of the trial of this action. Had Wiggins continued to own the property, it is plain that the acquiescence and delay of the plaintiff after the erection of the factory would not have precluded him from relief by injunction. Mere delay, so long as the parties remain in statu quo, will not deprive a party of equitable relief, unless the lapse of time is so great as to create aright by prescription. (Gale v. Abbott, 8 Jur. [U. S.], 987; Carlisle v. Cooper, 18 N. J. Eq., 241; Gordon v. Cheltenham R. R. Co., 5 Beav. 233.)

The circumstance that the defendants purchased the title, in the meantime, does not divest the plaintiff of his right to relief. The purchase was not induced by any action or representation on his part. The defendants knew, at the time of the purchase, that the use which their grantor had made of the stream was a nuisance to the plaintiff, and they took the risk of his asserting his equitable rights in respect to it.

That the plaintiff’s farm will be materially lessened in value, by reason of the nuisance, if it is permitted to continue, is apparent from its nature and extent, as well as from the findings of the referee. The referee has not found that the business of the cheese factory must be abandoned if the defendants are prohibited from discharging the surplus whey and refuse matter into the stream, to the injury of the plaintiff. Such prohibition will only have the effect to diminish the profits of the business and the value of the property.

' We think the plaintiff is entitled to an injunction restraining the defendants from discharging the surplus whey and refuse matter of the factory into the stream to his injury. But the judgment allows an injunction broader than that. It prohibits the defendants from discharging into the stream any whey or other refuse matter produced at the factory, and also from doing or permitting anything at or about the factory that will tend to render the water of said stream, or the atmosphere along the same, impure or unwholesome. The referee has found that the factory cannot profitably be operated either in its present condition and structure, or by any available change therein, without some portions of the washings and drippings from the factory getting into the stream, and that what would so get into the stream would not corrupt its waters or render them impure. The fact established by the several findings on this point, as we understand them, is that in operating the factory some discharge into the stream is unavoidable, but that which is unavoidable will not injure the plaintiff, and any discharge injurious to the plaintiff can be avoided, but at increased expense to the defendants.

The judgment should be modified so as to restrain the defendants by injunction from discharging the surplus whey or refuse matter, or other noxious product of their factory into the stream known as Elm creek, so as to occasion damage or annoyance to the plaintiff, as owner or occupant of the farm and premises mentioned in the complaint, and as so modified, affirmed, neither party to have costs of the appeal as against the other.

Talcott, P. J., and HaediN, J-, concurred.

Ordered accordingly.


author: Smith, J. :

text:
    THE FIRE DEPARTMENT OF THE VILLAGE OF WHITESBORO, Plaintiff, v. MILTON H. THOMSON and MORTIMER G. THOMSON, Defendants.

      Code of Civil Procedure, § 1185 — when, the court cannot direct a verdict subject to the opinion of the General Term.

    Upon the trial of this action exceptions were taken by each party to rulings admitting evidence, and defendants excepted to a refusal to submit certain questions of fact to the jury. The court directed a verdict subject to the opinion of the court at General Term, under section 1185 of the Code of Civil Procedure.

      ■Held, that this was error, and constituted a mistrial.

      MOTION for judgment on a verdict directed by the court, subject to the opinion of the General Term. • The defendant on the trial excepted to the order directing the verdict for the plaintiff, and also to the refusal of the court to submit certain questions of . fact to the jury, and each party also took exceptions to the rulings of the court, under which certain evidence was admitted.

      Bagg <& Collins, for the plaintiff.

      Risley, Stoddard & Matteson, for the defendants.
   Smith, J. :

This case was tried by a jury at the Oneida Circuit, and a verdict was ordered for the plaintiff, subject to the opinion of the court. The action was to recover ten penalties of $200 each against defendants for insuring property in Whitesboro against fire, as the agents of insurance companies not incorporated under the laws of this State, without having filed the bond prescribed by chapter 465 of the Laws of 1875. The verdict was for three penalties only. The plaintiffs now move for judgment on the verdict, and also for the seven other penalties claimed in the complaint, which they insist they are entitled to recover on the evidence. The defendants move for judgment in their favor.

The order directing a verdict subject to the opinion of the court was irregular. Exceptions were taken by each party to rulings admitting or excluding evidence. The defendants also excepted to the refusal of the judge to submit to the jury certain questions of fact. The order was made under section 1185 of the Code of Civil Procedure, which authorizes a verdict to be directed subject to the opinion of the court, where the case presents only questions of law. The Code of Procedure contained the same provision. (Section 265.) It has been held frequently that the provision applies to cases where, the facts being found or conceded, it only •remains to pronounce the law, not to a case in which, as in this, there is a question as to the admissibility of evidence. (Bell v. Shibley, 33 Barb., 610; Sackett v. Spencer, 29 id., 180; Briggs v. Merrill, 58 id., 389; Purchase v. Matteson, 25 N. Y., 211; Byrnes v. The City of Cohoes, 67 id., 204; Biddlecom v. Newton, 13 Hun, 582.)

The defendants have not waived their exceptions by consenting to the disposition made of the case on the trial, as was done in Brynes v. Oohoes (supra), nor by omitting to insist on their exceptions at the argument, as was the case in Briggs v. Merrill and Biddlecom v. Newton (supra). On the contrary, they excepted at the trial to the order directing a verdict for the plaintiff, and asked that the case be submitted to the jury, and here they have argued several of the exceptions taken by them to rulings upon questions of evidence. The case must be retried on account of this irregularity.

Verdict set aside and new trial ordered, costs to abide event.

Talcott P. J., and HabxuN, J., concurred.

Ordered accordingly.


text:
    JOSEPH BORK, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Embezzlement — indictment — allegations as to kind, of property and its value — when sufficient — what evidence inadmissible to prove embezzlement

    An. indictment for embezzlement described the property as “ a large sum of money, to wit: the sum of $1,100.”

      Held, that the indictment was not required to describe the particular kind of money taken, viz.: bank-bills, coin, etc., and that, in that respect, the indictment was sufficient.
    That the indictment was, however, defective in not stating the value of the money taken, and that a conviction thereon should, for that reason, be reversed.
    Upon the trial of an indictment against the treasurer of the city of Buffalo for embezzlement, receipts given by him for the tax-rolls, placed in his hands for collection, together with the tax-rolls themselves were receceived in evidence, against his objection and exception.

      Held, that, in the absence of evidence showing that he had received the money authorized to be collected by the tax-rolls, the receipts were inadmissible.
    Certiorari to the Oyer and Terminer of Erie county, to review the conviction of the defendant for embezzling money of the city of Buffalo, in his hands as the treasurer of said city.

      A. G. Rice and W. II. Gurney, for the plaintiff in error.
    The indictment is clearly and fatally defective in not describing the money alleged to have been embezzled, and in not averring that it had any value. It is not sufficient to charge the offense in.the language of the statutes, but the acts must be described. (Arch. Cr. PL, 24; 1563 Chitty Cr. L., 24, 980; 2 Hawk. P. C., book 2, chap. 25, § 113.) The property embezzled or stolen must be described so that it can be identified. (2 Bishop Crim. Law, § 274 and cases cited; 2 N. Y. S. C. R. [Thompson & Cook], 383; The Peopler.Howe, Arch Cr. PL, 24,156; Rexv. Qhalldey, Russ&Ry., 258; 1 Chitty Cr. L, 169; 2 Hale P. G, 182; 2 Hawk. P. G, book 4, chap. 25, § 74; Rex v. Tyer, Russ & Ry., 402; Same v. Fur-niciux, id., 334; State v. Stimpson, 4 Zabriskie, 9; State v. Long-bottom, 11 Humph., 37.) The same doctrine is laid down in Hale's P. G, 182, 183; State v. Murphy, 6 Ala., 45; Commonwealth v. Smith, lMass., 245; Smithy. State, 33Ind., 159; 1 Whart. Cr. Law, §§ 363, 609; People v. Rail, 14 Cal., 101; also in Commonwealth v. Cahill, 12 Allen, 540; 4 Sarg. & R., 194; see Roscoo’s C. Ev., p. 417; People v. Paterson, 9 Cal., 313; 2 Bishop’s C. L., § 356 [5th ed.]; 2 Bishop’s C. Prec., § 321 [2ded.].) If the property is money, it is not enough to describe it as so many dollars, but the number and description of the pieces must be stated or the value given. (State v. Stimson, 4 Zabriskie, 9; Rex v. Poye, 1 Russ & Ry., 481; Same v. Ferniaux, Russ & Ry., 335; Same y. Flower, S. D. & B., 512; Same v. Tyer, Russ & Ry., 402; Same v. - 2 Hale, 185; 1 Chitty’s Crim. Law, 238 and notes; 3 id., 946, 947 and notes; 2 Arch., 353, note; 2 Colby C. L., 134, 135; 2 Arch., 256, note; 11 Hump., 30; Barb. Cr. Law, 158, 178-179-180.) When the money is not described as the legal coin of the State, of the value of which the court will take judicial notice, its value must be stated. See cases cited under last paragraph, and also Payne v. Barns, 5, Barb., 465; Commonwealth v. Smith, 1 Mass., 245; 5 Cush., 365; Colby’s Cr. L., 134, 135; 2 Bishop’s Cr. L., 319, 375; People v. Howe, 2 N. Y. Sup. Ct. [Thompson and Cook], 383; State v. Longbofiotn, 11 Humph., 30; 2 Arch., 354, notes.) The people have not established the corpus delicti by other evidence than the declarations of the defendant. That evidence will not legally establish it. People v. Rennesy, 15 Wend., 147; People v. Badgley, 16 icl, 53; People v. Buloff, 3 Par. C. R., 401; People v. McMahon, 15 N. Y., 384; People v. Porter, 2 Par. C. R., 14; Oalragan v. People, 1 id., 374; People v. Yfom-plvrey, 7 Johns., 314; Buloff v. People, 18 N. Y., 179.)
    i?. (District Attorney,) and D. Jf. Lockwood, for the people.
    The allegations in the indictment are in the exact language of the statute, both in regard to description and value — this is sufficient. (2 Bishop on Grim. Law and Prac., § 319; 1 Bishop on C. S. & P., § 393; People v. McKinny, 10 Mich. Rep., 55; TJ. B. v. Clark, Crabb’s Rep., 584; Riley v. State, 32 Texas R., 763; U. /S', v. Patterson, 2 McLean Rep., 254, 432; U. S. v. Gooding, 12 Wheat. R., 460; TJ. S. v. Mills, 2 Pet. R., 142; State v. Smith, 13 Kan. R., 247 ; 2 Bishop C. L., § 315 ; State v. Lincoln, 11 Allen, 233; Ólin v. State, 37 Ala., 135; People v. Stetson, 4 Barb., 151; 1 Bishop C. L., § 257; 16 Conn., 47; 33 Me. R., 498.)
   Smith, J. :

The defendant held the office of treasurer of the city of Buffalo. The indictment was found under the provisions of section 35, title two of the revised charter of said city (Laws 1870, ch. 519), which is in these words : “ The treasurer, upon conviction of having lent or deposited in a bank not designated by the common council, or unlawfully appropriated to his own use any money of the city received by him, shall be deemed guilty of embezzlement.” A question was raised in the court below, by motion to quash, and motion in arrest, as to the sufficiency of the indictment. It was objected that the indictment was insufficient for the reason that it did not particularly describe the money alleged to have been embezzled, nor state its value. The property was described in the indictment as “a large sum of money, to wit, the sum of $1,100, of it, the said city of Buffalo, received by him, the said Joseph Bork, as such treasurer,” etc. It is insisted by the defendant’s counsel that the indictment should describe the particular kind of money. We think the indictment is sufficient in that respect. To require it to show whether the money embezzled was coin, government notes, bank bills or the like, would be to require wbat is ordinarily impossible in the case of public officers, such as treasurers of large municipal corporations. • Such officers are not, as the servants of private individuals are, in most cases, under the immediate supervision and control of their principal; and they are not required or expected to keep their accounts in such a way that the kind of money received or disposed of by them in a given case can be traced or identified. The funds which the treasurer is alleged to 'have embezzled in the present case may have been a mere credit in a bank, and not money at all, and yet if he treated the credit as cash in his hands belonging to the city, proof that he embezzled it would support an indictment for embezzling money. The rule requiring certainty in an .indictment is not to be so applied as to defeat the ends of public justice. The case of The People v. McKenney (10 Mich., 55), cited by the counsel for the prosecution, seems to us to have adopted the true rule in this respect.

The want of an averment of value is more serious. In embezzlement, as in larceny, the value of the property determines the grade of the offense and the degree of the punishment (2 R. S., 678, § 59), and it is essential that the thing embezzled should bo of some value. If it is necessary to prove value it is necessary to allege it. The allegation that the property was “money to wit, $1,100,” is not an averment of value nor one from which .it can be said judicially that the thing embezzled had value, or if it had value, what was its amount? Had it been averred that the money embezzled was lawful money of the gold coinage, or the silver coinage, or the legal tender notes of the government of the United States, the court could have taken judicial notice of its value. But as it was competent, as we have seen, for the prosecution to prove under the indictment that it was money in either or all of those forms, or dollars of foreign coinage, or in bank notes, or in the shape of a mere credit, which the treasurer had treated as cash, it was necessary to allege that it had value, and what value, as an ingredient of the offense. It was easy for the pleader to do so. Nothing is more common in indictments for stealing or embezzling bank notes than to allege their value, in addition to giving a description of their denomination, as, for instance: “ One hundred bank notes for the payment of five dollars each, of the value of five dollars each.” Such an allegation was contained lu the Michigan case above cited. The reasons which induce us to hold the indictment fatally defective in this particular, are more fully set forth in the case of State v. Simpson, decided in New Jersey (4 Zabriskie, 4).

On other grounds,, also, we think the conviction should be reversed. Whatever evidence there is in the case of any criminal act, on the part of the defendant, consists wholly of his confessions. Aside from them there is no proof of the corpus delicti. The cash-book kept in the treasurer’s office, the receipts given by him, whether of money or tax-rolls, and the two checks of $1,100 each, of themselves, prove no embezzlement. The cash-book and the money receipts show that money went into the treasurer’s hands; the receipts for tax-rolls tend to show sources from which he might have received money; but the books and the receipts show nothing as to the disposition he made of what he received. The most that can be claimed for them is that, in the absence of any satisfactory accounting on the part of the defendant, they tend to show that he received a large sum of money belonging to the city, and possibly that he was a defaulter to a large amount. But it is necessary to prove something more than a defalcation on his part to convict him of embezzlement. The checks, on their face, show nothing criminal, and they would have no significance whatever, but for the proof of defendants’ admissions that they represented money which he took from the city treasury and delivered to Lyon & Co.

We think the court erred in receiving the tax-roll receipts in evidence. There was no' proof that the defendant had received the money which the tax-rolls authorized the collection of. But the evidence that they had been placed in his hands was calculated to prejudice the defendant in the minds of the jurors, by creating the impression that he was. called on to account, at the trial, for their entire amount. The learned judge who presided evidently endeavored to guard the jury against that impression, by instructing them that it was not to be presumed that the moneys assessed upon the tax-rolls had been collected by the prisoner. Why, then, was the evidence received ? The very next sentence in the charge states the reason. It was to show that the defendant had sources from which to receive money belonging to the city. What legitimate purpose was served by showing that he might have received money on the tax-rolls when there was no evidence that he had done so, and the law forbade it to be presumed. We think the testimony was erroneously received; that it tended to withdraw the minds of the jury from the real issue, and to call on the defendant to meet issues not presented by the indictment,- and that the injurious effect of it was not cured by the charge.

Even if the admissions of the defendant be taken into the account,' the only evidence that the defendant embezzled the sum of $1,100 specified in the indictment is that he lent it to the firm of Lyon & Co., in which firm ho was a partner. It was charged in the indictment that he embezzled the money by appropriating it to his own use. Whether the act of lending it to Lyon & Co., he being a member of the firm, was an appropriation to his own use, within the meaning of the statute, the act of lending being of itself an embezzlement, is a question not free from doubt, but we need not decide it, as we are of the opinion the conviction must be reversed on other grounds.

Hardin, J., concurred; Talcott, P. J., not voting.

Conviction reversed, and proceedings remitted to the Erie Oyer and Terminer.


text:
    EDWARD L. DOWNEY, Appellant. v. MARY L. DOWNEY and GEORGE DOWNEY, Respondents, Impleaded with others.

      Proof of will— deposition of uyitness not affected by the subsequent filing of objections.

    Upon the return day of citations issued upon an application to admit a will to probate, the appellant, two of the heirs-at-law and the petitioner appeared before the surrogate, and the formal depositions of the subscribing witnesses were taken before him and filed in his office. Afterwards, on the same day and before the decree of probate was entered, the appellant appeared and asked leave to file objections and contest the probate of the will, which was granted.

      Upon an adjourned day, the contestant claimed that the proofs, taken before he filed Ms objections and asked leave to contest, were no longer evidence and asked that the proponent be required to produce the subscribing witnesses and examine them.

      Held, that as the depositions were taken before the surrogate in open court, they were proofs as prescribed by the statute, and that they did not cease to be evidence by reason of the subsequent filing of objections by the contestant. Collier v. Idley’s JSxr. (1 Brad. Sur. it., 94), distinguished.
    That the proponent was not obliged to recall the witnesses, and again prove the due execution of the will.
    Appeal from a decree of tbe Surrogate of Erie county, admitting to probate tbe will of Tbomas Downey, deceased,

      Thos. Oorlett, for the appellant.

      J. M. Humphrey, for tbe respondents.
   Smith, J.:

This is an appeal from a decree of tbe surrogate of Erie county, admitting to probate tbe will of Tbomas Downey, deceased, and establishing tbe same as a will of both real and personal estate. It appears by tbe return that, on tbe return day of tbe citation Mary L. Downey, the respondent, upon whose petition tbe citation was issued, and George Downey, and Edward L. Downey, tbe appellant, two of tbe heirs-at-law, appeared before the surrogate, and tbe proof of tbe will was entered upon and proceeded with. Tbe formal depositions of tbe two subscribing witnesses to the will were taken before tbe surrogate, and filed in bis office. Afterward, and on tbe same day, and before tbe decree of probate was entered, tbe appellant again appeared before tbe surrogate and asked leave to file objections and contest tbe probate of tbe will, which was granted. Afterward, at an adjourned day, tbe parties appeared by counsel, and the contestant, by bis counsel, claijned that the proofs taken- before be filed bis objections and obtained leave to contest tbe will were no longer available to tbe proponent, and that tbe case was in the same position as if no proof had been made, and be asked tbe surrogate to bold that the proponent must produce, and put upon tbe stand tbe witnesses sworn before tbe objections were filed. He also insisted that, as tbe testimony taken before tbe objections were filed, was in tbe form of depositions, and not an oral examination, it was not evidence in tbe case.

These several propositions were overruled by tbe surrogate, and no further proof having been made by either party, tbe surrogate, on motion of tbe proponent’s counsel, admitted tbe will to probate, and tbe counsel for tbe contestant duly 'excepted to tbe several rulmgs.

We perceive no error in tbe ridings of tbe surrogate. When tbe appellant applied for and obtained leave to ’come in and file objections, tbe proponent bad made a case by tbe testimony of tbe subscribing witness which, if unopposed, would have entitled her to tbe probate of tbe will. Tbe effect of allowing tbe contestant to file objections was not to strike out or annul tbe testimony previously taken ; it was merely to permit him to enter at the stage which tbe proceedings bad then reached, and thereafter to contest them. He bad the right to produce and examine witnesses in support of bis objections, or to cross-examine tbe subscribing witnesses whom tbe proponent bad produced. But bo did not ask to be permitted to do either of those thmgs. He insisted that tbe testimony taken should be thrown aside, and that tbe proof should begin de novo. His request that tbe proponent should be required to produce tbe subscribing witnesses and put them on tbe stand, was not stated to be for tbe purpose of enabling him to cross-examine them, but as is plainly to be inferred from tbe position taken by bis counsel, it was for tbe purpose of having them examined anew on the part of tbe proponent.

Tbe contestant’s counsel insists that objections having been filed, tbe depositions were no longer sufficient proof. If tbe depositions so-called had been affidavits taken out of court, they would not have been proof in tbe surrogate’s court whether the proceedings were contested or not. But tbe return shows that they were taken before tbe surrogate in open court, tbe witnesses being produced and examined before him ; and they were strictly proofs and examinations “reduced to writing,” as required by tbe statute. (Laws of 1837, chap. 460, § 10.)

Tbe case of Collier v. Idley’s Exr. (1 Brad. Sur. R., 94), cited by tbe counsel for the appellant, has no application to tbe present discussion. That was a case under 2 Revised Statutes, 61 (§ 30), which 'provides that notwithstanding a will of personal property may have been admitted to probate, any of the next of kin to the testator may, at any time within one year after such probate, contest the same or the validity of such will, in the manner therein provided. Allegations being filed against the validity of the will, or the. competency of the proof; the surrogate is to cite the executors, etc., to appear before him and show cause why the probate should not be revoked. (Section 32.) The surrogate shall decide upon the proof taken before him on the hearing of the parties. (Section 35.) It could hardly be doubted that m such a proceeding the proof taken on the probate of the will could not be given in evidence. And so the surrogate held in that case. But the decision, as we understand it, was put upon the intelligible ground that the testimony taken on the probate was not proof for any purpose, not because it was in the shape of depositions, but because the proceedings then pending were of such a nature that the proponent was required to prove the will de novo.

The decree of the surrogate should be affirmed, with costs.

MulliN, P. J., and Talcqtt, J., concurred.

■Decree of surrogate affirmed, with costs to be paid by the appellant.


text:
    THE LACUSTRINE FERTILIZER COMPANY, Appellant, v. THE LAKE GUANO AND SHELL FERTILIZER COMPANY, SILAS M. STILWELL and SILAS M. STILWELL, Jr., Respondents.

      Code of Civil Procedure — an a/ppeal does not lie from an orda' sustaining or overruling demurrer.

    Under the Code of Civil Procedure an appeal does not lie to the General Term from an order overruling- or sustaining a demurrer. Judgment either final or interlocutory must be entered, and the appeal be taken therefrom.

      Appeal from an order of the Special Term in Seneca county, sustaining a demurrer to the complaint with leave to plaintiff to amend on payment of costs.

      F. L. Manning, Henry 8. Bennett and T. M. Morgan, for the appellant.

      I. F. Miller, H. O. Gardiner and John Cummins, for the respondents.
   Smith, J. :

The Code of Civil Procedure does not authorize an appeal from an order overruling or sustaining a demurrer. The remedy at the present time is by appeal from the judgment, final or interlocutory, as the case may be, entered upon the decision of the issue of law presented by the demurrer. In that respect the new Code differs from the former one, and abrogates the right to appeal from an order of that description, which was introduced by an amendment of section 349, adopted in 1851. The object of the change and the provisions of the new Code by which it has been accomplished are pointed out in Mr. Throop’s note to section 1350, of the Code of Civil Procedure. One or two provisions of the Code as framed, which indicated very clearly the pui'pose of the commissioners to effect the change above stated have been altered by the Legislature, but the plan is not thereby materially interfered with. Section 1201, which so defined an interlocutory judgment as to include the determination of the court 'upon a demurrer was enacted in 1876, as reported by the commissioners, and was expunged in 1877 ; and section 1224, which as reported and adopted in 1876, gave discretionary power to the General Term, upon a partial or entire affirmance of an interlocutory judgment, on appeals where no issue of fact remains to be tried, to render final judgment, unless it permits the appellants to amend or plead over, was changed in the following year by substituting the words “order or judgment,” for “ interlocutory judgments.” It can hardly be supposed that these changes indicate a purpose to return to the former practice. The provisions of section 349 of the old Code, as amended in 1851, was not restored, and section 1349 of the new Code stands, providing for an appeal to the General Term from an interlocutory judgment rendered at a Special or Trial Term. The conclusion above indicated is fortified by other provisions of the new Code relating to proceedings subsequent to the decision of the General Term, on an appeal from an interlocutory judgment. Section 1336 provides that when final judgment is rendered in the court below, after the affirmance, upon an appeal to the General Term of that court, of an interlocutory judgment, the party aggrieved may appeal directly from the final judgment to the Court of Appeals, notwithstanding that it was rendered at a special or trial term. The same section provides that such an appeal brings up for review only the determination of the General Term, ■ affirming the' interlocutory judgment. An appeal to review the final judgment in such case may be taken to the General Term, but on such appeal the interlocutory judgment cannot be reviewed. (Section 1350.) But upon an appeal to the Court of Appeals from the determination of the General Term uj)on the appeal from the final judgment, the determination of the General Term affirming the interlocutory judgment may be reviewed. (Section 1350.) The difficulties existing under the former practice, which the provisions above referred to were designed to remove, are stated in Mr. Throop’s note to section 1350. The object of these provisions would be frustrated, in a great measure, by allowing an appeal from an order sustaining or overruling a demurrer, as they would not apply to such an appeal. The present Code provides for the entering of an interlocutory, as well as of a final judgment (§ 1236), and directs that an appeal must be taken within thirty days after service of a copy of the judgment and notice of entry. (Section 1351.)

We have already held in accordance with these views in two cases (Miller v. Sheldon and Riggs v. The American Tract Society) decided that term; but, as they have not been reported, we have thought it due to the present case to give the reason for our decision.

The appeal must be dismissed, but without costs.

Talcott, P. J., and Hardin, J., concurred.

Appeal dismissed without costs.

       Reported in 15 Ilun, 220.

      Deoided upon opinion in Miller v: SJieldon


author: Talcott, P. J.:

text:
    TIMOTHY SMITH and A. PALMER SMITH, Respondents, v. MOSES H. CROSS and MARY J. CROSS and others, Appellants.

      When the grantee of premises assuming a mortgage thereon is not estopped from setting up usury — when a party is not a “borrows)',” and not entitled to affirmative relief.

    Cross & Wilson being- partners in business, and owning- as tenants in common certain real estate, one Smith agreed to loan them §4,500 on receiving a bonus of §500. Wilson accordingly conveyed his interest in the real estate to Cross, who executed a bond and mortgage to Wilson for §5,000, which bond and mortgage were assigned to the plaintiff who paid §4,500 therefor. Thereafter Cross conveyed the property to one Maltby, by a deed absolute on its face, but which was in fact a mortgage to secure indorsements, the deed containing no reference to the mortgage. The notes being paid, Maltby reconveyed to the wife of Cross, inserting without their knowledge a clause by which the wife assumed and agreed to pay the mortgage.
    In an action to foreclose the mortgage, held, that as Maltby was under no liability to pay the mortgage, the clause inserted in his deed did not enure to the benefit of the mortgagee, and that the grantee was not estopped from setting up the defense of usury.
    Both husband and wife set up the defense of usury, and asked for affirmative relief. .Held, that it could not be granted without a tender of the principal with legal interest, as to the husband, because having parted with the title he ceased to be a “borrower-,” and as to the wife, because she was not a “borrower” but a grantee.
    ' Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      D. O1 Brian, for the appellants.

      McQartin & Williams, for the respondents,
   Talcott, P. J.:

This is an appeal from a judgment rendered for the plaintiff on the report of a referee. The action is to foreclose a mortgage made by Moses H. Cross to Samuel Wilson on the 24th of August, 1872, conveying in mortgage certain premises in Watertown, Jefferson county, to secure the payment of $5,000, according to the condition of the bond accompanying the said mortgage. The mortgage was assigned by Wilson to one Timothy Smith and afterwards by the executors of Timothy Smith to McCartin and by McCartin to the plaintiff. The mortgagor, Moses H. Cross and his wife, Mary J. Cross, set up the defense of usury by separate answers. The mortgage was made in pursuance of an agreement between Timothy A. Smith, the first assignee, and the defendant, Moses H. Cross & Samuel Wilson (the said Cross & Wilson being then the owners in fee of the mortgaged premises and being also copartners in business), that Smith should loan to said Cross & Wilson, for their mutual benefit, the sum of $4,500 and that Smith should reserve and take as a bonus for the said loan the sum of $500. It was a part of the said usurious agreement that the loan and usurious interest should be secured as follows: Wilson was to convey to Cross his (Wilson’s) undivided half of the premises, and thereupon Cross should execute his bond to Wilson, conditioned to secure the payment of $5,000 on the 24th of August, 1877, with lawful interest annually from the date of the bond, and should execute to Wilson as collateral to the said bond a mortgage, conveying the entire premises to Wilson in mortgage, conditioned for the payment of the bond, and that thereupon, on receipt of an assignment of the said bond and mortgage, Smith should lend and advance to said Cross & Wilson the sum of $4,500. This agreement was carried out on both sides.

Afterwards by a deed bearing date on the 3d day of June, 1873, and purporting to have been executed in consideration of $2,000, Cross and wife granted to Clark O. Maltby, in fee, the ■ mortgaged premises. Tt does not appear that this deed contained any reference to the said mortgage. The said deed to Maltby, though in form an absolute conveyance in fee simple, was in fact to secure Maltby as an accommodation indorser on promissory notes made by the said Cross. The notes so indorsed having all been paid by Cross, he (Cross) then prepared and sent to Malby, for execution, a deed of the premises to Mary J. Cross, his wife, dated August 1, 1878. This deed, as prepared and forwarded by Cross to Malby, contained a covenant of seizin and against incumbrances. On receiving the proposed deed Maltby inserted, or caused to be inserted at the end of the covenant against incum-brances, the following words : “ Except a mortgage of $5,000, which the party of the second part assumes and agrees to pay as a part of the purchase-money.” Maltby and wife then executed the deed to Mary J. Cross, and returned it to Cross, who caused it to be recorded and retained it in his possession up to the time of the trial of this cause. It does not appear that Mrs. Cross ever examined or saw the deed from Maltby and wife to her. The referee has held that neither Cross nor his wife can set up the defense of usury against the mortgage in suit, because of the provision in the deed from Maltby and wife to Mary J. Cross, whereby the latter assumes and agrees to pay the mortgage in question.

In this ruling we think the referee erred. It is unquestionably settled that the grantee of land subject to a usurious mortgage, who assumes and agrees to pay it as a part of the purchase-price, when the price paid to the vendor has been diminished by the amount of the mortgage, cannot set up as a defense against the mortgage that the same was given upon a usurious contract between the vendor or his predecessors and the mortgagee, and this is upon the ground that on the purchase an allowance was made out of the purchase-money sufficient to pay the mortgage, and that the vendor has appropriated the land to the payment of the mortgage. Of course, under such circumstances, it would be inequitable to permit the purchaser, who has in effect received the amount of the mortgage from the vendor, to impose the defense of usury to an obligation which he assumed to pay, not upon any usurious agreement but upon a good and valid consideration, to wit, the conveyance of the land. In this case, the facts out of which the equity in behalf of the mortgagee arise did not exist, and the assumption in the deed of Maltby and wife to Mary J. Cross did not create any legal obligation to the mortgagee which could be enforced in his behalf, for Maltby not being himself under any obligation to pay the mortgage did not, by imposing a condition of its payment on his grantee, give the mortgagee thereby any right to enforce its payment by the grantee, either at law or in equity. “ A more stranger cannot claim the benefit of a contract between other parties.”

If Maltby had been in any way liable to the holder of the mortgage, by having assumed it or otherwise, then he might, by bis grant, have imposed, that liability on his grantee, which would have inured to the benefit of the mortgagee. “ To give a third party, who may derive a benefit from the performance of the promise, an action, there must be first, an intent by the promisee to secure some benefit to the third party; and, second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty, owing from the former to the latter, which would give him a legal or equitable claim to the benefit of the promise or an equivalent from him personally.” (Vrooman v. Turner, 69 N. Y., 280.)

In this case there was no privity between Maltby and the holder of this mortgage, and no obligation resting on Maltby for the payment of the mortgage, consequently the mortgagees acquired no right through the agreement inserted in Maltby’s deed. We think, therefore, that usury could be set sot up as a defense by both Moses H. Cross and his wife ; by him because he was the giver of the bond and mortgage and liable for any deficiency which might be left after a sale on the mortgage ; by her as a subsequent grantee of the premises not bound as between her and the mortgagees for the debt purporting to be secured by the mortgage.

Each of the answers, after sotting up the usury in the bond and mortgage, contains a prayer for affirmative relief. This could not be granted. except upon the terms of paying the principal with the legal interest, because as to Moses H. Cross, he having parted with the title to the mortgaged premises, is no longer a “ borrower” within the meaning of the act of 1837 (ch. 430), and Mary J. Cross was not the borrower, but is a subsequent grantee. (Schemerhorn v. Talman, 14 N. Y., 93.) We think, therefore, there should be a new trial.

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

Smith and Hardest, JJ., concurred.

Ordered accordingly.


author: Talcott, J.:

text:
    EDGAR HOLMES, Respondent, v. MARCUS D. DREW, Receiver of the Farmers' Joint Stock Insurance Company, Appellant.

      Application for insurance —when the knowledge of an agent is that of the company— when the latter is estopped from -insisting upon an inaccuracy in the application — right of the insured to apportion a mortgage covering two or more parcels of land.

    In an action upon a policy of insurance for §2,200, §500 being on a bam, and the balance on farm produce and other personal property therein, it appeared that the insured owned two farms, upon one of which the barn was situated, both farms being included in and covered by a mortgage for §4,800. Defendant’s agent filled in the answers to the application for the insurance, and was fully informed as to the facts; he apportioned the mortgage between the two farms, and stated that the one on which the barn was situated was incumbered to the amount of §2,600, stating- to the instu-ed that the amount of incumbrances on farm buildings was not considered important. The action was defended on the ground that there had been a mis-statement as to the amount of the incumbrance and a breach of warranty.

      Held, that even if there were any breach of warranty it only invalidated the policy as to the bam, and not as to the personal property therein.
    That the knowledge of the agent was to be imputed to the company, and that by issuing the policy it over-looked any inaccuracy in the statement of the incum-brances on the property.

      Semble, that in such a case an apportionment in good faith of the amount of the incumbrance between the two parcels would not be a breach of warranty.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      J. A. Stull, for the appellant.

      J. O. Oochranc, for the respondent.
   Talcott, J.:

This is an appeal from a judgment rendered on the report of a referee.

The action is upon a policy of fire insurance originally issued to one James L. Fulton, of Clarkson, in the'county of Monroe. The claim of Fulton for the loss having been assigned after the loss and proofs thereof to the present plaintiff, as collateral to a certain mortgage. The action was originally commenced against the Farmers’ Joint Stock Insurance Company of Meridian, in Cayuga county.

After the referee had made his report, the present defendant Drew, who had been appointed a receiver of the Farmers’ Joint Stock Insurance Company, was, by order of the court, substituted as the defendant in the action, -with leave to appeal from the judgment.

The defense set up in the answer is a false representation and warranty as to the amount of the incumbrances on the insured property, and also an over valuation thereof. The policy of insurance was for $2,200, viz., $500 on a certain barn, and the balance on farm produce and other personal property therein. The referee reports the actual loss to have been, on the barn, $450, the value of the same, but that the defendant, by the terms of the policy, is only chargeable with two-thirds of the value thereof, viz., $300, and the two-thirds loss on the personal property to have been $732.25, aggregating the sum of $1,032.25.

As it was not claimed that there was any misrepresentation or false warranty as to any incumbrances, except as to the amount of the incumbrances on the real estate, the only effect of such a misrepresentation or false warranty, if one was made, would be to prevent the plaintiff from recovering the amount of insurance on the barn. The subjects of insurance being separately stated and separately insured, the alleged false warranty applies only to the real estate, and has no application to the personal property which was not affected by the incumbrances undertaken to be stated on the part of the insured ; so that, if we thought the allegation of a false warranty was made out, it would only be necessary to deduct from the recovery so much as the report of the referee shows was recovered for the value of the barn.

But the facts in relation to the statement of the incumbrances on the real estate in the application, appear to be substantially as follows : Fulton, the assured, owned two separate farms, not adjoining, on one of which farms, containing forty acres, the barn insured stood, and the other of which consisted of sixty acres. One Blake, the agent of the Farmers’ Joint Stock Insurance Company, applied to Fulton to insure the property, and having in his possession a blank form of an application, filled it up himself, and being fully informed of all the facts in regard to the incumbrances, which were that the two farms were covered by a mortgage for $4,800, undertook to make an apportionment of the amount between the two farms, and stated in the application that the property insured (meaning the barn) was incumbered to the amount of $2,600, which application was signed by Fulton, upon the statement by Blake that the amount of incumbrance was not considered of great consequence, so far as farm buildings were concerned, but was only important when the insurance was upon village or city property, and where the value of the buildings constituted a more considerable proportion of the value of the whole property.

It is probably doubtful whether, in an application for insurance upon buildings standing upon one parcel ef property which is embraced in a mortgage covering several distinct parcels, an apportionment in good faith of the amount of the incumbrance between the several parcels would be construed as a breach. of a warranty as to the amount of incum-brance on the property insured. But however that may be, we think the statement of the incumbrances, and the amount of the valuation made in the application in this case, falls within the case of Van Schoick v. The Niagara Fire Ins. Co. (68 N. Y., 434), and that the knowledge and information of the defendant’s agent is to be imputed as the knowledge of the company itself, and it is to be presumed, in accordance with that case, that the company when it issued its policy had over-looked any condition which required an accurate statement of the incumbrances upon, and value of the insured property, or that it waived such condition and held itself estopped from setting it up.

The defendant’s counsel insists that the policy is void by reason that Fulton, the insured, was not the absolute owner of the fee of the real estate at the time of issuing the policy. Although there is no specific statement in the application on the subject, Fulton had an insurable interest in the property, though he.held it only under an executory contract.

The question of fact, as to whether Fulton set the barn on fire himself, cannot be reviewed here. The evidence at most only raises a weak suspicion to that effect.

The judgment should be affirmed.

MulleN, P. J., and Smith, J., concurred.

Judgment affirmed.


author: Talcott, P. J. :

text:
    MARIA MARVIN, Appellant, v. THE UNIVERSAL LIFE INSURANCE COMPANY, Respondent.

      Life insurance —• when a company is not estopped from claiming that it is forfeited by non-payment of premium.

    To render valid an extension of tire time for the payment of a premium upon a life insurance policy, after the time of payment has gone by, there must be some valid consideration for the extension or -waiver of the condition of payment, or there must be something said or done by or in behalf of the insurance company, while the party bound to make the payment has still time and opportunity for so doing, by which the insured is induced to believe that the condition is waived, or that a strict compliance will not be insisted on.
    One insured bydefendant failed to pay the premium falling due on his policy, on April thirteenth. On April twenty-seventh defendant’s agent told the assured that if he paid the premium the next morning he would receive it. The agent called the next day, but finding the assured sick, declined to receive the premium, but said he would do so when he got well, and that he would keep the policy in force. The assured never got well, but died in the following September. The premium due in July was not paid, as the company had notified him that the policy was canceled. In an action upon the policy, held, that the plaintiff was properly nonsuited.
    Appeal irom an order made at tbe Monroe Special Term, denying a motion for á new trial, made after a nonsuit directed at tbe Circuit.

      D. B. Beach, for tbe .appellant,

      O. F, Danforth, for tbe respondent.
   Talcott, P. J. :

This is an appeal from an order made at the Monroe Special Term, denying a motion for a new trial, made after a nonsuit at the Circuit. The action was to recover the sum of $3,000, insured to Milton B. Marion in January, 1874, on his life, for the benefit of and payable, in case of death, to the plaintiff, his wife. The premium, eleven dollars and eighty-eight cents, was payable on or before the thirteenth day of January, April, July and October, in each year. The quarterly premium which became due on the 13th day of April, 1874, was not paid. On the 27th of April, 1874, one Henkle, the agent of the defendant, told the insured that if he paid said premium the next morning, the twenty-eighth, he would receive the same. Henkle went to the house of the insured the next day, the twenty-eighth, and there found the insured lying sick upon his bed, and on being offered the overdue premium by the insured declined to receive it at that time, because the insured was then sick, but told the insured to keep the money and when he got well he, Henkle, would receive it and would keep the policy alive. The insured never did recover from his sickness, and the premium which became due on the thirteenth day of the following July was not paid or offered to be paid, as the company had notified the insured before the July premium became due that it would hold itself absolved from the contract, in consequence of the non-payment of the premium due on the thirteenth of April. The insured died of consumption on the 26th day of September, 1874.

We think the plaintiff was properly nonsuited. As we understand the law as laid down by the court of last resort in such cases, in order to a valid extension of the time for the payment of a premium upon a life policy after the time of payment has gone by, there must be some valid consideration for the extension or waiver of the -condition of payment, or there must be something said or done by or in behalf of the insurance company while the party bound to make the payment has still time and opportunity for so doing, by which the insured is induced to believe that the condition is waived, or that strict compliance will not be insisted on. This introduces an element of estoppel into the case. In such a case it would be unjust to allow the insurance company to repudiate the agreement, and to insist that because of the nonpayment of the premium punctually, which omission had been induced or countenanced by its own acts, it should be absolved from the performance of its part of the contract. (Underwood v. The Farmers’ Joint Stock Insurance Company, 57 N. Y., 500; Ripley v. Ætna Ins. Co., 30 id., 136.) In Dean v. The Ætna Life Ins. Co. (62 N. Y., 642) the agreement to extend the time was not only made before the premium became due, but the insurance company had actually received the notes of the insured for the payment of three-fourths of the premium. This not only introduced the element of estoppel, but the notes received constituted á valid consideration for the waiver of punctual payment. In Homer v. The Guardian Mutual Life Ins. Co. (67 N. Y., 478) the agreement extending the time of payment of the premium was made before the premium fell due, and thus the policy-holder was prevented from paying the premium on the day it became due by the terms of the policy.

The two cases last cited are much relied upon by the appellant’s counsel, but they differ from the case at bar in the particular that the agreement having been made before the premium fell due, the company was estopped from setting up the nonpayment of the premium on the day it fell due by the terms of the policy, because it had induced the insured to act upon the supposition that punctual payment would be waived.

The order refusing a new trial should be affirmed.

HakdiN J., concurred ; Smith, J., not sitting.

Order denying new trial affirmed.


author: Talcott, J. :

text:
    IN THE MATTER OF THE TAKING OF LANDS, ETC., FOR WIDENING CARLTON STREET BETWEEN MAIN AND JEFFERSON STREETS IN THE CITY OF BUFFALO.

      Charter of Buffalo — resolution for the talcing of land, must appear by the journal of the Common Council to have been adopted by a two-third vote — ten days must elapse betioeen the publication and the application for the appointment of eom-missionei’s.

    The charter of the city of Buffalo, in authorizing proceedings to take land, provides that after a certain notice has been given, the common council “ may declare, by resolution, to be adopted by a vote of two-thirds of its members,” that the city has determined to take it. The charter also provides that when, by its terms, “a vote of more than a majority is required it shall be taken by the yeas and nays, which shall be entered on the journal.”

      Held, that to render a resolution, declaring that the city had determined to take land, valid, it must appear from the journal itself that it was adopted by a two-third vote, and that such fact could not be proved by extrinsic evidence.
    The charter provided that upon the adoption of such a resolution, notice of the application for the appointment of commissioners of appraisement should be given “ by publishing such notice daily, for two weeks in the official paper,” by leaving a copy at each inhabited building on such land, and by personal service upon each owner, or by depositing it in the post-office, addressed to him “ at least ten days before the time when the application is to be made.”

      Held, that at least ten days must elapse between the expiration of the two weeks of publication and the time of the application.
    Appeal by certain land owners from an order made at the • Special Term of tbe Superior Court of the city of Buffalo.

      Joseph P. Qarr, for the land owners, appellants.

      Giles E. StilweE, for the city of Buffalo, respondent.
   Talcott, J. :

This is an appeal from an order made by the Special Term of the Superior Court of the city of Buffalo. The hearing of the appeal has been transferred to this court on a certificate of the fact that two of the justices of the said Superior Court arc disqualified to hear the same. The order appealed from was made at the Special Term of the said Superior Court, held on the 20th day of April, 1878, and vacated and set aside an order of the said Superior Court, made on the 26th of November, 1874, confirming a report of commissioners appointed by the said court on the 18tk day of September, 1874, to ascertain and report a just compensation to be paid to the owners of lands and property taken and appropriated for laying out Carlton street in said city, and the order appointing suck commissioners. Tke proceedings for tke taking of tke lands and property for tke laying out of said street, purported to be taken and bad under title eigktlr of tke revised charter of said city. (Session Laws of 1870, ch. 519, title 8.) The motion to vacate and set aside tke order of confirmation was made on several grounds on behalf of tke city and parties interested m tke question ; but, as appears from tke order, tke motion was granted upon tke ground “ that the city of Buffalo never acquired jurisdiction, in tins proceeding, of the lands affected thereby, so as to have tke power to take tke said lands.” The main objections to tke jurisdiction of the common council are two, namely : 1. That there was no legal vote of tke body to lay out said street and to take tke said lands for that purpose. 2. That no legal notice of such proceeding was given to tke parties interested, as required by the charter.

Premising that it is a well-settled principle of law that where tke right of eminent domain has been delegated to a municipal corporation, in order to tke due exercise of that right it must, in all respects and in all proceedings, pursue the provisions of tke act of tke Legislature by which tke power is delegated, and that no presumptions of regularity are to be made respecting suck proceedings, but they must in all things conform at least substantially to tke act of tke Legislature, we will proceed to consider the objections to tke jurisdiction of tke common council above indicated.

Title eighth of tke charter, which treats of eminent domain, and under which tke proceedings purport to have been taken, provides as follows:

“ Section 2. When it shall be intended to take any lands for any of said purposes or objects” (i. e., for streets, etc.), “the common council shall, by resolution, declare such intent and describe the lands to be taken. Upon such resolution becoming of force, the city clerk shall cause the same to be published in the official paper for two weeks.”

“ Section 3. Within three months after the expiration of the said publication the common council may declare, by resolution to be adopted by a vote of two-thirds of all its members, that the city has determined to take such lands for such purpose.”

Section two of title third of the same act provides as follows : 2. The common council shall determine the rules of its own proceedings, but when, by this act, a vote of more than a majority is required, it shall bo taken by the yeas and nays, which shall be entered on the journal.” “It shall * * * keep a journal of its proceedings and publish the same,” etc.

In this case the vote required being more than a majority vote, viz., the vote of two-thirds of all the members elected to the common council, does not appear by its journal to have been taken by yeas and nays, and the journal does not contain any entry to that effect, and there is no evidence aliunde that the resolution was actually passed by a two-thirds vote, arid the city attorney states that he believes that the said resolution was not passed by a two-thirds vote, and that it could be so established by evidence in a judicial investigation. Even if evidence aliunde the journal were admissible to establish the fact that the resolution was passed by a two-thirds vote, no such evidence was offered. But no parol or other evidence, other than the journal of the proceedings of the common council, is admissible to establish the fact that the vote was a two-thirds vote. The statute, in order to render this matter certain, has provided that in such case the vote shall be taken by yeas and nays, and that such votes shall be entered on the journal, and unless this thing is done the proceeding is void, and the only legal evidence that the resolution was passed by the requisite vote is the record of the proceedings of • the common council, kept according to law. (Morrison v. City of Lawrence, 98 Mass., 219; Spangler v. Jacobi, 14 Ill., 297-300; Strecherte v. East Saginaw, 22 Mich., 104; Young v. St. Louis, 47 Mo., 495.) So that we think it is clear that the common council acquired no jurisdiction to take the lands specified in the resolution, for want of the requisite two-thirds vote by which the resolution was passed.

Again, section three of said title eight provides, that after the expiration of the publication of the notice of an intention to take the lands, as provided in section two, the common council may, by resolution to be adopted by a vote of two-thirds of all its members, declare that the city has determined to take such lands for such purpose, and by section four, “ upon such resolution becoming of force, the attorney shall give notice that the city has determined to take such lands, describing them, for such purpose, stating it, and that on a certain day, naming it, he will apply to a court to bo held on that day in the city, naming the Court of Record, to which such application is to bo made, for the appointment of throe commissioners, to ascertain the just compensation to bo made for such lands ; by publishing such notice daily for two weeks in the official paper; by leaving a copy thereof at each inhabited building on such lands, with a person of full age, and by serving a copy thereof personally on each person who, by the records of the Erie county clei’k’s office, appears to be the owner or mortgagee of such lands, or any part of them, or by depositing it in the post-office in the city, with the postage prepaid, addressed to him at Buffalo, at least ten days before the time when the application is to be made.”

These notices were to be given at least ten days before the time when the application for the appointment of the commissioners was to be made. The notice was first published, as it appears, on the first day of September in the year 1874, and the application therein specified was to be made on the eighteenth day of the same month, and the last day of the publication was on the fourteenth day of September. The notice itself was dated on the thirty-first day of August. The order of the Superior Court appointing the commission was made on the 18th day of September, 1874, which of course must have been within four days after the last day for the publication of the notice for such application. The notice to the parties in interest must be given, as specified by the act, and in strict conformity with its terms.

The counsel for the appellant claims that when the jurisdiction depends upon certain facts, and the court has passed upon such facts, the determination is conclusive until reversed. This cannot be true in regal’d to notices required to be given to a party to authorize the taking of his private property under the exercise of the delegated right of eminent domain. The notice which is required to be published was the only mode in which many of the parties, such as non-residents and foreign corporations, could receive any information of the facts of which they are required by the act to be notified, and the determination of any tribunal that it has jurisdiction, by a proper service of notice upon the parties who are to be affected by the proceeding, is open to examination even in a collateral proceeding.

Bat it is to be noticed that the order of the 18th of September, 1874, appointing the commissioners in this case, does not purport to adjudge, either by recital or otherwise, the palpable absurdity that the notice of the application, publication of which was commenced on the first day of September, was published daily for two weeks, ending ten days before the application made on the eighteenth of the same month was made. On the contrary, the attorney who drew the order, in his recital of the facts concerning the notices, avoids stating anything in regard to the publication.. We think the publication of the notice must be complete before the ten days commence to run, so that a party interested who might chance to see the notices on or near the last day of its publication, might still have time to procure himself to be represented before the court at which the commissioners are appointed. The case is analogous to the service by publication of a summons, in which case it is held that the twenty days to answer do not commence to run until the expiration of the six weeks publication. (See Doughty v. Hope, 1 N. Y., 79, followed in Westbrook v. Willey, 47 id., 457.)

The order of confirmation, even treating it as a judgment of the Superior Court, did not give any validity to the previous proceedings, which were void for want of iurisdiction. (Doughty v. Hope, 1 N. Y., 79.)

We think the Superior Court was not only justified, but called upon, to vacate its orders in the premises, which might otherwise greatly embarrass the city and the various parties interested in the lands supposed to have been taken, and in the assessments which followed thereupon.

The order of the Special Term of the Superior Court of Buffalo appealed from is affirmed, with ten dollars costs and disbursements, to be paid by appellants.

Mullest, P. J., and Smith, J., concurred.

Ordered accordingly.


text:
    WILLIAM S. COOPER and others, Respondents, v. JOHN H. HOWE and others, Appellants.

      Coimter-elawn — cannot he stricken out as frivolous.

    A counter-claim cannot be stricken out or disregarded as frivolous; the remedy is by demurrer, or by motion to make it more definite and certain.
    Appeal from an order of tbe County Court of Monroe county, striking out defendants’ answer as frivolous.

      Thomas P. O’ Kelly, for tbe appellants:

      Horace McGuire, for tbe respondent.
   Talcott, J.:

Tbis is an appeal from tbe order of the County Court of Monroe county, overruling tbe answer of the defendants as frivolous.

The action is upon contract to recover an indebtedness arising upon the sale of goods, wares and merchandise by tbe plaintiffs to tbe defendants. Tbe third answer of tbe defendants sets up what purports to be a counter-claim, in the nature of a set-off. Tbe allegations in regard to tbe alleged counter-claim are very imperfect, and doubtless bad on demurrer, but a counter-claim cannot be stricken out or disregarded as frivolous. If defectively alleged, it is to be met by a demurrer, or by a motion to make it more definite and certain. (Fettrech v. McKay, 47 N. Y., 426; Briggs v. Bergen, 23 id., 162.)

Tbe order in tbis case purports to overrule tbe whole answer as frivolous.

We think so much of tbe answer as purported to be set up by way of defense to tbe action was frivolous, but tbe order was too large, in embracing tbe counter-claim.

The order appealed from should be reversed, with ten dollars costs and disbursements.

!MulliN, P. J., and Smith, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements.


text:
    JOSEPH C. BAILEY, Respondent, v. THE HOMESTEAD FIRE INSURANCE COMPANY, Appellant.

      Policy of insurance —warranty against future inewrhrances — what not a violation of.

    This action was brought upon a policy issued by defendant, insuring, for specific amounts, plaintiff’s dwelling-house, wood-shed, barn and certain articles of personal property respectively. At the end of one paragraph of the policy there was a provision that the company should not be liable for any loss, “if without written consent hereon, the property shall become incumbered in any way.” The answer set up as a defense that this provision was violated by the recovery of a judgment against the plaintiff by one Ansel A. Harris. The judgment was, in fact, recovered by one Sally A. Harris.

      Held, that, as the defense was a purely technical one, it was to be technically construed, and that it was properly overruled.
    (1.) Because the alleged incumbrance was improperly described.
    (2.) Because the provision against incumbrances referred by its terms to the whole property insured; and that, as the judgment was an incumbrance upon only a portion of the property insured, viz., the house and barn, the warranty was not broken.

      Qv&re, as to the true construction of the word “ incumbrance ” in such a provision.-

      Owen v. The Farmers’ Joint Stock Ins. Co. (57 Barb., 518), distinguished and criticised.
    Appeal from a judgment in favor of tbe plaintiff, entered upon a verdict, directed by the court subject to the opinion of the . court on a motion for a new trial to be made at chambers, and from an order denying such motion.

      F. W Hubbard, for the appellant.

      Edwin Hicks, for the respondent.
   Talcott, P. J.:

This is an appeal from a judgment for the plaintiff on a verdict rendered at the circuit in Yates county, and from an order denying a new trial on the minutes.

The action is brought to recover damages on a policy of insurance against loss or damage by fire, issued by the defendant on the 1st day of June, 1875, insuring the plaintiff on his dwelling-house and wood-shed attached, and on his bam and wagon-house, and also on certain articles of personal property, situated in Yates county, for the space of one year, different sums being insured on each article of property specified in the policy.

The dwelling-house was destroyed by fire on the 10th day of February, 1876. The defendant, among other things, sot up in defense that the policy contained 'a provision, in substance, that if the property insured should become incumbered in any manner, after the issuing of the policy, without the written consent of the company indorsed on the policy, the company should not be liable, and averred that the said property, after the issuing of the said policy, did become incumbered -without any notice to the company, • or consent from it, to wit, that on or about the 11th of December, 1875, a judgment in the Supreme Court in this State was rendered against the plaintiff in favor of Sally A. Harris, and docketed in the office of the clerk of the county of Yates, on or about December 12, 1875, for the sum of $214. That such judgment was a lien on said property from its date, and existed at the date of the alleged loss by fire stated in the complaint, and was known to and permitted by the plaintiff, but was unknown to the defendant.

On the trial the defendant proved a judgment as alleged in the said answer, except that it was docketed on the 13th of December, 1875, and was in favor of. Asel A. Harris instead of Bally A. Harris, as stated in the said answer. The policy, on production,, contained in paragraph seven, a provision that “ this company shall not be hable for any loss * # * * if without written consent hereon the property shall become incumbered in any way.” In the opinion written by the learned justice before whom the cause was tried, on the motion for a new trial on the minutes, he says, in regard to that condition, that “ it must be construed as referring to specific liens or incumbrances on the property, created or consented to by the insured, and did not include the case of a judgment recovered against him which was equally a lien on all his property, and to be satisfied first out of his personal effects,” and cites, as sustaining this view, the case of Owen v. The Farmers’ Joint Stock Ins. Co. (57 Barb., 518, 523), erroneously referred to as having been decided in this department, but which was, in fact, decided by the General Term of the seventh judicial district. The question in that case arose upon the allegation by the insurance company of an alleged falso representation in the application for the insurance, and it was a case in which the agent of the insurance company had, as in this case, made out the application himself, and signed the applicant’s name to it; whereas, in the case at bar, the question arises upon a provision in the policy itself, in the nature of a promissory warranty. It is doubtful whether the decision in the case referred to by the learned justice covers the present case. It is true “ if the stipulation in question is held to include judgments, the requirement is that the insured shall obtain the consent of the insurance company before a judgment shall be recovered against him.” Construing the provision literally, this seems to be a condition which the parties could not have had in their minds whén the contract of insurance was entered into ; but, nevertheless, it seems to us that to hold that a condition against the property being “incumbered in any way," must be construed as relating only to specific incumbrances, by • way of mortgage or special charge, would be to depart from the ■ plain and literal meaning of the contract; but however that may ■ be, we think the verdict may be sustained for other reasons.

The defense suggested is founded on the merest technicality. The provision is inserted in a few brief words at the close of a long paragraph relating mostly to matters entirely foreign to the particular provision relied on, and not calculated to attract the attention of the insured, but to operate as a trap to enable the company to receive its premium, but in case of loss to insure a strong probability, in many cases, of being able to interpose a technical defense, which operates as a surprise upon the party who has relied upon his policy as intended to be a fair contract of indemnity. Under the circumstances of this case, therefore, the insurance company has no right to complain if its technical defense is met by a technical answer.

That answer may, as we think, be found in the two following circumstances : 1st. The answer does not correctly describe the alleged incumbrance. It alleges a judgment in favor of Sally A. Harris; whereas the judgment proved was in favor of Asel A. Harris, and no application to amend the answer in that particular was made. Had the judgment been correctly described, non con-stat but the plaintiff might have been able to show that it was not an incumbrance against his property by reason of some defect in the jurisdiction of the court, that the judgment was against some other man by the same name as the plaintiff, or by some stipulation of the party exonerating the insured property from the lien of the judgment, or in some other way. But he, presumptively, came to trial prepared to meet the allegation that a judgment had been recovered against him by one Sally A. Harris, a totally different name from Asel A. Harris. But it may be possible that there has been a clerical mistake in copying the answer into the case, in the matter of the description of the judgment proved, and we therefore allude to another reason why it seems to us this technical defense cannot succeed. The provision relied upon by the defendant to defeat a recovery is, if “ the property,” referring to the property insured, “ shall hereafter become incumbered in any way,” referring by its terms to the whole property insured. Now the insurance was one-half of it upon personal property, specifically mentioned and separately insured, upon which the judgment could not be an incumbrance ; so that, literally and technically, the casus foederis has not arisen — the promissory warranty has not been violated. For these reasons we think the verdict may be upheld.

Judgment affirmed.

HakdiN, J., concurred ; Smith, J., not voting.

Judgment and order affirmed.