author: By the Court :

text:
    DELILAH COLE v. EBENEZER TERPENNING, Executor.

      Costs — when allowed upon an appeal from the decree of a surrogate —Code of Civil Procedure, §§ 3550, 2585, 2589, 3240. •
    Where upon an appeal from a decree of a surrogate, denying a petition to com pel the payment of legacies, on the ground that the claim is harred by the, statute of limitations, the General Term affirms the judgment, it may award costs at the same rates-.as are allowed upon an appeal from a judgment.
    . Motion to amend the judgment of order of affirmance, entered in this action at a former term. The decision then made is reported in 25 Hun, at page 482.

      J. M. Fiero, for the plaintiff.

      F. L. Westbrook, for the defendant.
   By the Court :

At the January General Term this court affirmed a decree of the surrogate of Ulster county, with costs. The decree was rendered upon a petition for the payment of legacies. The statute of limitations was pleaded in bar of the petitioner’s application. Such plea was sustained and a decree entered, denying the petitioner’s claim on that ground. On appeal from such decree the same was affirmed with costs. A motion is now made to correct the judgment or order of affirmance, by striking out the words “ costs,” and inserting in lien thereof “ ten dollars costs and printing disbursements.”

"We think there was no error in affirming the decree w.th costs. It was the final determination of the rights of the party to a special proceeding in the surrogate’s court. (Code of Civil Procedure, § 2550.) The appeal was in effect from a judgment, and the effect and mode of proceeding is the same. (Id., § 2585.) By section 2589 the appellate court may award to the successful party the costs of the appeal. Costs in such proceedings may be awarded at the rates allowed for similar services in an action brought in the same court in like manner. (§ 3210.)

The analogy between this appeal and one from a judgment is so complete as under the provisions, as well as a matter of right, to demand full costs of appeal in the appellate court. The decision as made was correct, and the motion to amend the order of affirmance must be denied, with ten dollars costs of motion.

Learned, P. J., and Landon, J., concurred.

Motion to correct order denied with ten dollars costs.


source: Caselaw Access Project

author: Boardman, J.:

license: Public Domain

text:
    PHILIP GARLING, Appellant, v. CHARLES W. LADD, Respondent.

      Costs of an appeal — when to be allowed under the Code of Civil Procedure, though the appeal was taken before it took effect.

    The costs of an appeal taken from a Justices’ Court before, but heard and decided in the County Court after, the Code of Civil Procedure took effect, must be-allowed and taxed under section 3070 of the Code of Civil Procedure, and not under section 371 of the old Code.
    Costs in the end will be granted or refused in accordance with the law existing-when the party has the right to costs.
    Appeal from an order of the Albany County Court, denying a-motion to set aside the taxation of the costs herein.

      J. D. Rallen, for the appellant.

      George R. Donnan, for the respondent.
   Boardman, J.:

Are the costs of appeal from a Justices’ Court to the County Court, when a new trial is had, to be now governed by section 371 of the old Code, or section 3070 of the Code of Civil Procedure ? The notice of appeal to the County Court specified as error that the justice erred in not rendering judgment in favor of the defendant.” No offer was made by respondent to coi'rect the judgment in that respect. Afterwards the Code of Civil Procedure was enacted, by which the rights to costs were put upon a different basis. The case was retried in the County Court, and the plaintiff’s (respondent’s) damages were reduced from $160 to $100. Costs were taxed for defendant. Such taxation was sustained by the County Court, and the plaintiff appeals to this court.

If the costs were properly regulated by section 3070 of the new Code, the defendant was entitled to recover them. The plaintiff contends that his rights as to costs were fixed in 1876, when the appeal ~ was taken from the justice’s judgment; that as the defendant’s notice of appeal made no specific offer for reduction claimed, the plaintiff was not called upon to offer to correct; that saying the judgment should have been for defendant was not a statement of the particulars in which the judgment should be more favorable to him, and, as a consequence, he, the plaintiff, was entitled to costs if he recovered any sum in the County Court. This position is sustained by Wyncoop v. Halbut (43 Barb., 266), and some other old cases. Two late decisions in the Second Department take the opposite view. (Doron v. McLoughlin, 14 Hun, 628, and Chamberlain v. Chamberlain, 25 Hun, 199.) I think the reasoning is in favor of the older cases.

But the plaintiff’s position is that he acquired rights as to costs after the appeal was taken in 1876, which the legislature could not take away, or which were preserved by virtue of Code of Civil Procedure (§§ 3349, 3352, 3347). The legislature may take away all costs, or increase or diminish the same, during the pendency of the action. The conditions upon which the right to costs may depend may be removed or created at its will. Costs in the end will be granted or refused in accordance with the law when the party has the right to costs. (Supervisors of Onondaga v. Briggs, 3 Den., 173; Ackley v. Tarbox, 19 Abb., 119.) There can be no vested right to costs pendente lite. (Rich v. Husson, 1 Duer, 617.) The legislature had the right to change the law as to costs to the prejudice of the plaintiff. It has done so by section 3070, unless by the other sections referred to the effect of section 3070 is qualified and limited to actions thereafter commenced. The sections above referred to do not touch or refer to the rule of costs that shall be applicable when the case is finally disposed of. Section 3352 preserves and protects proceedings already taken, acts done, rights, defenses or limitations lawfully accrued or established prior to the taking effect of the Code of Civil Procedure. This does not aid the plaintiff, as costs are not included or provided for. The costs in the case before us must be taxed and allowed under the new Code, the same as costs are allowed in other cases decided since it took effect.

This conclusion leads to the affirmance of the order of the County Court.

Learned, P. J., and Landon, J., concurred.

Order affirmed, with ten dollars costs and printing disbursements..


text:
    H. WILSON BLASHFIELD, Respondent, v. LEANDER SMITH, Appellant.

      Judgment — should not be docketed until the judgment roll is made up a/nd filed — when an execution issued upon a judgment, docketed before this is done, will be set aside.

    When a judgment is docketed, upon the decision or order for judgment, without any judgment roll having been made up and filed, the court will set aside an execution thereafter issued upon the judgment docket, unless the defect be cured, and a proper judgment roll be made up within a reasonable time.
    Appeal from an order made by the county judge of Cortland county denying a motion to strike from the records an order for the entry of a judgment, and to set aside an execution issued upon the. judgment entered and docketed in pursuance of the said order.

      William H. Warren, for the appellant.

      0. Porter, for the respondent.
   By the Court:

No judgment roll in the County Court was ever made up and filed in the clerk’s office.

The order or judgment based upon the decision in the County Court was made out and signed by the county clerk and entered in the judgment book. Such judgment order and the docket of the judgment constitute the record upon which the execution was issued, which is now the subject of complaint. The defendant asks to have the execution and the paper herein, called the order for judgment, set- aside.

There was no such judgment roll as the law requires. The Code makes it the duty of the clerk to make up the judgment roll. Practically it is rarely or never made up unless by the attorney of the successful party. It should always be made up before the judgment should be docketed by the clerk. The docket should be sustained by the judgment roll. Perhaps in this case the court should not hold the docket void or the execution issued upon it; but a proper conduct of judicial proceedings requires such irregularities or defects to be corrected by the party in fault. Executions should be sustained by the judgment roll. Where, by carelessness or inadvertence, the roll has not been made up, the court should set aside the execution unless the defect he supplied within a reasonable time.

But the order for judgment was properly filed with the clerk and is a necessary part of the judgment roll. That is properly in the clerk’s office, and should not be taken from the records.

We think the execution should be set aside unless the plaintiff, within twenty days after notice of this order, shall cause a proper judgment roll to be filed, without costs to either party on this appeal.

Present — Learned, P. J.; Bocees and Boardman, JJ.

Order reversed and execution set aside, unless within twenty days after notice of order a proper judgment roll be or shall have been filed.


text:
    In the Matter of the Application of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY, Appellant, to Acquire Real Estate of the JUNCTION CANAL AND RAILROAD COMPANY and Others, Respondent.

      Railroad — taking of land for the purposes of — when the fact that the land is then held for and is adapted to that purpose, may he considered — evidence of such fact— a/wa/rd of commissioners — when it will not he set aside as excessive.

    The respondent is a corporation created by chapter 19.4 of 1846, and authorized to construct and maintain a canal through the valley of the Chemung river from Elmira to a point near Athens, in Pennsylvania. In pursuance of its charter it acquired the necessary real estate and water privileges, and constructed and maintained the canal until about 1875 when it was discontinued. By its charter it was authorized to sell its real estate and w^ter privileges. In 1866 an act was passed changing the respondent’s name and authorizing it to construct, maintain and operate a railroad tlpdugh the valley where its canal was located. The respondent claimed that by reason of the excavations, embankments, grades, etc., these lands were peculiarly valuable for railroad purposes, and that since the passage of the act of, 1866 it had held them for such purposes, intending either to construct a road itself or to sell them together with its rights and franchises to persons desiring so to do. The petition^ a railroad company, sought to acquire title to a strip of the said lands • for the purpose of constructing its road thereon.

      Held, that it was proper for the respondent to show the purpose and use for which the lands were held, and for the commissioners to allow it the market * value of the lands for such purpose and use.

      Matter of Blacle River, eta., Railroad Company (9 Hun, 104); Matter of Boston, Hoosic Tunnel and Western Railway Compom/y (22 id., 176) distinguished.
    The respondent gave evidence tending to show the source of its title to the strip of land; the cost of the right of way; the manner in which the land had been and was then used; the legislative authority for building a railroad; the purposes for which it had held and still held its title; the value of the strip per mile for any feasible purpose; the cost of building walls, etc., for its protection; its adaptability for a railroad route, and other evidence tending to show that the lands were peculiarly adapted to the building of a railroad at moderate expense and in a favorable location.

      Held, that the evidence was properly received.
    The award of commissioners appointed to appraise the damages to be paid for land taken for the purposes of a railroad will not be set aside as excessive unless the excess is plain and palpable upon the evidence.

      Appeal by the New York, Lackawanna and Western Railway Company from an. order confirming the appraisal and report of commissioners appointed to ascertain and determine the compensation to be made for certain real estate of the Junction Canal and Railroad Company, taken by the appellant for its roadway, under the provisions of the general railroad act.
    Upon the hearing before the commissioners evidence was given to show that the respondent company was created a body corporate by chapter 194 of the Laws of 1846. This act (sec. 8), as amended by chapter 236, Laws of 1853, authorized the company to “ construct and forever maintain a canal or slack water navigation” through the valley of the Chemung river so as to form a navigable connection between the Chemung canal at Elmira and the Pennsylvania North Branch canal, at ornear Athens, in Pennsylvania. By its charter it was empowered to alien and convey its real estate and water privileges. The company under its charter acquired by purchase and condemnation the fee of the real estate and water' privileges required for the work and completed the work necessary for navigation about 1854, a considerable part of which was slack water along the east or north shore of the river protected by slope and rip-rap wall. The real estate forming the prism, banks and structures of the canal is a narrow strip of about 180 acres and eighteen miles, or thereabouts, in length, a small part of which, near the southern terminus in this State, runs across a corner of ' the State of Pennsylvania. The use of the canal by the public was continued until terminated about 1875 by the close of the Chemung and North Branch canals, both of which have been converted into railway lines. ,
    Chapter 570, Laws of 1866, changed the name of the company to its present title and authorized it to construct, maintain and operate a railroad through the valley in which its canal lands are located.
    The company has continued its corporate organization intact, and has not sold or otherwise disposed of its lands or devoted any of them to private use.
    The appellant company has condemned and built a double-track road upon parcels of this strip, aggregating fifty-seven acres in "'quantity and five and fifty-six one hundredth miles in length. The perfect adaptability of the lands for a railroad route was proven by experts and their unfitness and want of value for any other use. The canal company claimed that from 1866 it had intended to devote these lands to a connecting railroad route, and that it had ever since held and preserved them for that purpose and for no other, intending either to construct a road itself or to sell them together, with its rights and franchises to persons desiring to do so, and that negotiations for pooling and construction were had in 1871 or 1872.
    The point of controversy before the commissioners was as to the principle upon which the compensation should be estimated, the railroad company contending in effect that the value of the lands for-agricultural purposes, or as they were, lying idle, should prevail, and the canal company insisting that their value for any- purpose should determine the measure of indemnity.
    i?. T. Turner and J. Mg Quire, for the appellant.

      E. F. Babcock, for the respondent.
   Boardman, J.:

In condemnation of land to public use the law gives to the owner, by way of compensation, the fair market value of the land taken. This value .is not ascertained from any advantages or economies to the party acquiring the land. • The injury occasioned to the owner by the taking is the correct rule. Counsel in this case do not differ as to the general rule, but they seriously differ as to its application to the facts proven. The Lackawanna company, which is the petitioner and appellant, insists that the value of the lands taken as agricultural lands should be the limit of allowance, and that the respondent should receive no more than would be allowed for an equal, amount of lands taken from adjoining farms. The respondent claims it is the owner of land of some eighteen miles in length by a few rods in width, constituting the line of the old Junction canal between Elmira and the State line, near Athens; that such narrow way, by reason of it excavations, embankments, abutments, stonework, grades, curves, etc., is peculiarly valuable for railroad purposes, and that the respondent has retained the same, since the abandonment of the canal, for railroad purposes only and not as agricultural lauds. The respondent therefore claims to recover from the petitioner the fair market value of the property for railroad purposes, so far as it is taken, and also the diminished value of that which is left by reason of such taking of a portion thereof.

The commissioners have adopted the respondent’s theory p.d allowed by'way of compensation for property taken and injury inflicted $56,090. The appeal from such appraisement and report and from the order confirming the same, brings up for review the conflicting claims of the parties. Yarious exceptions to the admission of evidence are also presented for our consideration.

The respondent gave much evidence touching the source of its title to the strip of land, the cost of the right of way, the manner in which it had been and was then used, the legislative authority for building a railroad thereon, the purpose for which the respondent had held, and still holds its title, the value of such strip of land per mile for any feasible purpose, the building of walls, etc., for its protection, its adaptability for a railroad route,' and other evidence, all tending to show that the respondent’s lands were peculiarly adapted to the building of a railroad at moderate expense and in favorable location. All such evidence was objected to and admitted subject to petitioner’s exception.

If the respondent is entitled to compensation for its lands on the basis of its value for railroad purposes, then, we think, such evidence was admissible, not as a measure of damage, but as tending to show how valuable, or rather how well adapted the land was for railroad purposes in the hands of the owner.

It is conceded that the value of these lands to the petitioner by reason of the economy of adaptation to its uses cannot be made a measure of damage in respondent’s favor. All that can be given to respondent is the fair market value of the lands taken and the injury to and diminution in value of other lands of the respondent by reason of such taking. So far there is no controversy.

The lands of respondent are of trivial value for agricultural purposes. They were not retained or used by respondent for such purposes. They had ceased to be of value for canal purposes. By reason of the shape they were only valuable for a road or way. The respondent had retained the control of them for that specific puipose. It had entered into negotiations and procured legislation with reference to sucli use. The embankments, cuttings, walls, etc., were to a greater or less extent available for railroad building and would be a source of economy. Why, then, was it not proper to show the purpose and use for which the lands were held, and why was it not proper to show the market value of the lmds for such use? Such was held to be the rule in Matter of New York Central, etc., Co., v. Metropolitam, Gas-Light Company (6 Hun, 149, 154); Henderson v. New York Central Railroad Company (78 N. Y., 423, 433); In re Furman Street (17 Wend., 670); Pierce on Railroads, 217; C. and S. Railway Company v. Longworth (30 Ohio St., 108, 111); Welch v. Michigan and St. Paul Railroad (27 Wis., 108); Queen v. Brown (L. R., Q. B., 630).

The strip of land was practicable and desirable for the route of a railroad. The respondent was holding it for use or for sale for that purpose. The petitioner, in the construction of its railroad, wanted this property. It became simply a question of its value for the use and purpose for which it was owned and held by respondent, and wanted by petitioner. If an unimproved water-power would be destroyed by the location of a railroad, ought not the owner to be compensated therefor? No doubt can exist. The damages would be, not the value of the use to the owner in its unimproved condition, but the market value of the property or water-power, having reference to the use which could reasonably be made of i.t. The rule should be the same in the present case. Here was a narrow strip of land formerly used as a way and only of value for a way. The owner holds it for such purpose only, expecting the time will presently come when he can utilize it to his own profit or sell it to some one else for such purpose. Why then are not the purposes for which it is held and the uses to which it is adapted, proper elements in its value? We think they are, and that the commissioners did not err in assessing compensation upon the basis of its value for railroad purposes. • It possessed a value for such purposes, but little or none for any other purpose, just as a waterpower possesses value for a mill site, but would be otherwise without sensible value. Such is the rule as laid down in Boom Company v. Patterson (8 Otto [H. S.], 403). The inquiry is, what are the lands worth in market from their availability for valuable ases ? The compensation will be made with reference to the uses for which the lands are suitable, having regard to existing wants or such as may be reasonably expected in the near future. The case last cited seems to be directly in point and conclusive of the present case. The property appropriated was almost worthless except for boom purposes. For such purposes it was very desirable. Its value for the one purpose to which in time it might be made available, was held to be the proper rule for compensation to the owner.

The cases, Matter of Black River Railroad (9 Hun, 104), and Matter of Boston, Hoosic Tunnel and Western (22 id., 176), are cited as sustaining the petitioner’s position. But we think such claim is unfounded. In the first case the owner held his farm for fanning purposes only. The work done by a defunct railroad corporation gave no value to the farm, nor was the taking of such work by a new corporation a source of loss or injury to the owner. It was of no value to him for railroad purposes, nor was it capable of being used as the line of a road. It was a mere casual or accidental advantage to the locating road, but no loss or damage 'to the owner. So in the second case the land taken by the Hoosic Tunnel Company was of no value to the owner, the Troy and Boston Railroad. It did not use or want the land for its purposes. It was in no way harmed by reason of such lands being taken by the Hoosic Company. In neither case was the owner harmed or entitled to compensation beyond the ordinary value of farm lands.

The use for which the respondent held these lands and the schemes it had in view were not speculative or imaginary, as the appellant contends. Such use has become real and positive by the act^of the appellant in seeking to become possessed of the property for the very purpose contemplated. The compensation granted by the commissioners was not then awarded for imaginary uses or in satisfaction of speculative schemes. The use and the purpose were reasonable, natural and feasible, as the event has shown.

The commissioners were justified upon the evidence given, in holding that these lands had a positive and marketable value over and above agricultural lands, that they possessed a value in the hands of the owner for the use and purpose of building of a railroad thereon, because such usé might reasonably be expected in the near future.

Much of the evidence offered by the respondent and received under exception, tended to show the availability of the lands for railroad purposes. Some of the evidence so received was of a very questionable character. But we cannot see that the commissioners have, erred in the principles which ought to guide them in making their appraisal. So that such technical errors in the admission of evidence ought not to affect the appraisal. (Troy and Boston R. R. Co. v. Lee, 13 Barb., 160; New York Cent. R. R. Co. v. Marvin, 11 N. Y,, 278.)

Nor will courts set aside an appraisal because the compensation awarded is too great, unless the excess is plain and palpable upon the evidence. (R. and S. R. R. v. Budlong, 6 How., 467; In re Furman St., 17 Wend., 649.) We cannot say the amount of compensation awarded was excessive. Very likely the members of this court sitting as commissioners would have made it less. But to have examined the lands taken, to have heard and seen the witnesses sworn, to have breathed the atmosphere of the trial are advantages in making a decision which must not be disregarded. These commissioners are gentlemen of experience and learning. Their judgment is entitled to great weight, and we are not, upon the facts proved, at liberty to disregard or reverse it.

We conclude that the order confirming the report and award of the commissioners should be affirmed, with costs.

Learned, P. J., and Landon, J., concurred.

Order aSS/med, with ten dollars costs against appellants.


author: Landon, J.:

text:
    DANIEL N. CROUSE and Others, Respondents, v. LAURA FROTHINGHAM and Others, Appellants.

      ■ Parol agreement that an insolvent grantor shall have a three years' lease of the premises conveyed, as part of the consideration of the grant — when it will be enforced in favor of his creditors — when a judgment creditor, who has by an action to set aside a conveyance (brought after the refusal of an assignee to bring such action) secured property of the debtor, will not be required to turn it over to his general assignee.

    In an action by a judgment creditor to set aside as fraudulent a conveyance of real estate made by his debtor, it appeared that the debtor was, as a part of the consideration upon which the conveyance was made, to have the use and occupation of the cellar and lower story of the premises for three years, without paying any rent therefor, and that such use and occupation was worth $750. The court directed the sale of the premises and the payment to the creditor out of the proceeds thereof, of that sum.

      Held, that the judgment was proper ; that if the reservation of the right to use and occupy the premises vested in the grantor a legal interest in the premises, it could he reached by his judgment creditors; that if the grantor obtained only a parol lease for three years, which was void under the statute of frauds, yet, as the consideration was wholly paid as between ’the grantor and the grantee, a court of equity would, in order to prevent irreparable loss, decree the performance of the contract, and that this equitable interest of the debtor could he reached by his creditors.
    Af tér the malting of a general assignment, some of the creditors of the. assignor, having recovered judgments against him, requested the assignee to bring an action to set aside a conveyance made by the assignor, which was alleged to be fraudulent as to his creditors. The assignee having declined so to do, the judgment creditors brought an action in their own name, to which he was made a party defendant, and in which he allowed a judgment to be taken against him by default.

      Held, that the plaintiffs were entitled to have any property they might reach by the action applied upon their judgments, and that they should not he.required to turn such property over to the assignee to be divided among the creditors generally.
    Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury.
    The action was brought by the plaintiffs as judgment creditors of the defendant Randolph upon two judgments, one of $1,087.19, recovered September 17, 1879, and tbe other of $535.71, recovered. October 23, 1879.

      The first count of the complaint alleged, in addition to the usual formal matters, that on the 18th of February, 1879, the defendant Randolph was the owner of a store in Hamilton village, of the value •of $4,000, on which there were liens of about $2,300; that by an instrument purporting to have been made on the 18th of February, 1879, acknowledged August 2, 1879, he and his wife conveyed the said premises to Laura Frothingham, his daughter, in consideration •of the payment of the mortgage liens thereon ; that the conveyance was made, to Laura as a device to cover a transfer to the defendant, Arthur Frothingham; that the transfer was designed by and between said Randolph and Arthur to defraud the creditors of Randolph, by putting the property beyond the reach of Randolph’s ■creditors; that the- old store upon the premises was torn down and a new one erected thereon, and that a large part of the money paid to cancel the liens on the store and to erect the new building was furnished by Randolph with the same fraudulent intent, and that Randolph had a valuable interest in the property which ought to be ■applied to the pajnnent of the plaintiffs’ judgment.
    The second, cause of action alleged that it was a part of the agreement made between Randolph and the said Arthur, that in addition to the consideration expressed in the deed, Frothingham .should erect a new building on the premises, and lease the ground floor and cellar to Randolph for three years, without the payment of rent, or for a merely nominal or small sum; that such agreement had not been fulfilled, and that the Frothinghams refused to make such lease; also that the consideration expressed in the deed was grossly insufficient, and that the remaining value in the form of such lease constituted-an equitable lien on the premises applicable to the payment of the plaintiffs’ claims.
    The complaint also alleged that on the 18th day of August, 1879 — this action'was commenced in March, 1880 — Randolph made an assignment of all his property, real and personal, for the benefit of his creditors to the defendant Mott, who duly qualified and entered upon his duties as such assignee; that prior to the commencement of this action the assignee was duly informed of the facts thereinbefore stated, and declined to take any action, disavowed .any intention to proceed and disclaimed all right "and interest in any property which might be recovered by proceedings for that purpose.

      The court decided in favor of the plaintiffs, and adjudged to them a lien upon the premises for $750 — subject to a mortgage for $1,000, which had been given by the Frothinghams to Ebenezer Dodge, who was not a party to the action — with costs to the plaintiffs, and directed a conveyance of the premises by Mrs. Frothing-ham and Randolph to a receiver appointed by the judgment, who-was required to sell the premises for the payment of the plaintiffs’" costs and the $750, with interest.

      M. A. Stanton, for the appellants.

      Ward Runt, Jr., for the respondents.
   Landon, J.:

The objections urged by the defendants, that the declarations of' one defendant not forming part of the res gestas of sale, were-received in evidence against the others, do not appear to be sustained by the record. The declarations of a defendant are competent against himself, and the court was not asked to receive them against the others. Both Randolph and Frothingham in substance-had stated, as witnesses testified, that part of the consideration of the sale was, that Randolph was to have the use of the building-after sale, and the finding by the court in that regard is supported by evidence competent against each of them.

It was competent for the plaintiff to rebut the testimony of the-defendants, though introduced as witnesses by himself. (Code Civ. Pro., § 838 ; old Code, § 393.) An effective way to do this was to-prove the untruth of such testimony. As against either defendant his declarations out of court were competent for this purpose. That such evidence may incidentally tend to impeach the party called as a witness, does not impair its value as evidence upon the-question at issue. It is a proceeding very different from introducing him as worthy of credit, and then directly proving that he is not.

The court found that the conveyance by Randolph was upon the consideration in part that Randolph was to have the use and occupation ' of part of the premises for three years without rent, and that such use and occupation was worth $750.

If such reservation was effectual to vest in Randolph a legal interest in the premises to that extent, his judgment creditors can reach it. If the grantor simply obtained a parol lease for three years, and that is void by the- statute of frauds, then, since the consideration for it was wholly paid, ás between Randolph and his grantee, equity, in order to prevent irreparable loss, would decree the performance of it, and thus Randolph has an equitable interest of the same value, which his creditors can also reach. The statute of frauds cannot be set up as the support and protection of fraud. (Story’s Eq. Jur., § 330; Hosford v. Merwin, 5 Barb., 51, 58; Willink v. Vanderveer, 1 Barb., 599.)

In either case, fraud upon the part of the grantee, or notice of any fraudulent intent upon the part of the grantor, is not essential, since the proceeding touches only the property, legal or equitable, which the grantor retains. Fraud upon the part of.the grantor ■exists. A conveyance by one indebted at the time, by which the grantor secures some benefit to himself at the expense of his creditors, is fraudulent upon the part of the grantor as to his creditors. (Young v. Heermans, 66 N. Y., 382.) In this ease the purchaser is protected to the extent of his actual purchase. His grantor only is deprived of that which he reserved, or intended to reserve, out of the' property for his own benefit.

It is urged that since the grantor made a general assignment for the benefit of creditors before the plaintiffs obtained their judgments, the action cannot be maintained by the judgment creditors, but should have been brought by the assignee; or, if by virtue of the refusal of the assignee to bring the action it may be properly-brought by the judgment creditor upon making the assignee a party, the recovery, when had, must be for the creditors generally and in aid of the assignment.

The assignee having been made a party and suffered default, does not raise the question. No other party can assert his rights. The judgment in this action concludes him and protects the defendants from prosecution for the same cause at his hands. The right to maintain this action, residing either in the assignee or the judgment creditor, the default of the assignee when made a party leaves the judgment creditor’s right uncontested; and since, but for the assignment, the judgment creditor’s right by virtue of his vigilance to apply the property of the debtor to the payment of his own judgment to the exclusion of the creditors generally would be complete, the same default leaves that right uncontested.

If there were to be any distribution of the assets of the judgment debtor among the creditors generally, it would have to be through the medium of the assignee. Frothingham is a creditor of the judgment debtor. He now claims that he can resist discovery until , defeated, and then share in the assets discovered. It would be singular if, having aided the judgment debtor to create and to conceal these equitable assets, Frothingham could deny their existence and resist their discovery, and then when the plaintiffs, in a struggle with Frothingham, in which they are abandoned by the assignee, finally wrest them from his hands, they should be obliged to force the fruits of their victory into the hands of the reluctant assignee, and crave leave to share ratably with Frothingham in their distribution. Having made his election to resist the discovery of assets, Frothingham cannot now change sides and share in their distribution. If this action had been brought in behalf of creditors generally, no doubt the assets discovered could be administered by the assignee. (Sands v. Codwise, 4 Johns., 586; Bate v. Graham, 11 N. Y., 237.) But our courts have- not felt it to be a duty to assert the rights of the assignee when he himself has abandoned them (Fort Stanwix Bank v. Leggett, 51 N. Y., 552); or to look beyond the record for other creditors among whom to dissipate the proceeds of the plaintiff’s vigilance. (Dewey v. Moyer, 72 N. Y., 70.)

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. HIRAM BANNER, as Commissioner, etc., v. EBEN M. TEMPLE and Others, as Referees.

      Laying out of a highway through a garden — the affirmance of a certificate of the commissioner of highways, by a county judge and, the General Term —1873, chap 773 — does not take away the tight of a/ppeal given by section 84 of 1 Bevised Statutes, 518 — Order laying out a highway, should not be made till after the decision of the General Term.

    The fact that the certificate of a commissioner of highways, to the efEect that the public interest will be greatly promoted by laying out a road through the garden of an owner who will not consent thereto, has been affirmed by the county judge and the General Term of the Supreme Court, as provided by chapter 773 of 1873, does not prevent any person who conceives himself aggrieved by the subsequent determination of the commissioner in laying out the road from appealing therefrom to the county judge, as provided in section 84 of 1 Revised Statutes, 518.

      It seems that, in such a case, the commissioner cannot regularly make an order laying out the highway until after the decision of the General Term upon the county judge’s order affirming the certificate of the commissioner.
    Certiorari to review the determination of the defendants as referees, appointed by the county judge of Otsego county, upon an appeal from the order of the relator as commissioner of highways of the town of Maryland, laying out a highway through the garden and bee yard of E. Swackhammer, without his consent, but upon the certificate of the commissioner to the county judge that the public interest will be greatly promoted thereby, and the affirmance of said certificate by the county judge and the General Term, pursuant to chapter 773, Laws of 1873. The question presented was whether such an appeal to the county judge could be taken after such action by the commissioner, county judge and General Term.
    On the 16th day of July, 1881, a jury was impanneled, and duly certified to the necessity of making certain alterations in a highway in Sperry Hollow, town of Maryland, Otsego county, N. Y. -They directed the alteration in question to be made. As appears by the commissioner’s order, a portion of the altered road ran through Ernest Swackliammer’s door yard, fruit trees, etc., and a portion through or “ over inclosed and improved lands of Arnold S. Lamp-here.” The first alteration was not to take effect until affirmed by the county judge of Otsego county and the General Term of the third department.
    The county judge made an order relating to the yard surrounding the house of Swackhammer, which was confirmed by the General Term.
    September twelfth, Swackhammer appealed from the order of the commissioner to the county judge, who appointed referees to hear the appeal. The hearing was had, and after an examination of the proposed route and hearing the testimony offered by the parties, the order of the commissioner, as appealed from, was in all things reversed.

      C. L. Barber, for the relator.

      Graham dk Lane, for the respondents.
   Landon, J.:

The Revised Statutes (1 R. S., 511, § 57), before the amendment of 1873, absolutely prohibited the laying out of a public or private road through any orchard, or garden, or building, or erections for trade or manufactures, or yards, or enclosures necessary to the use and enjoyment thereof, without the consent of the owner.

It is not disputed that the garden and bee yard of Mr. Swackhammer fall within the terms of the section. By chapter 773, Laws of- 1873, section 57 was amended by adding a proviso at the end of it. As amended, the absolute prohibition against laying out the road without the owner’s consent still continues, unless the substitute for that consent, as provided in the amendment, shall be obtained. That substitute is, that upon notice to the owner the commissioner shall certify to the Gounty judge that the public interest will be greatly promoted by the laying out and opening the road, and if, upon hearing both sides, the county judge shall affirm the decision of the commissidner, and then, upon further hearing, the General Term shall confirm ” the order of the county judge, then the non-consent of ‘the owner is no longer an obstacle, and it becomes the duty of the commissioner to proceed and lay out and open said road as in other cases.”

It will be seen that this proceeding before the county judge and the General Term is between the commissioner and the ownei of the land; the public have no notice of it and take no part in it. Its purpose is to remove, if it shall be right to do so, the obstacle of the owner’s non-consent. This removed, the commissioner proceeds as if he had that consent.

But the public niay be greatly aggrieved by his subsequent action in laying out the road, and the eighty-fourth section, giving an appeal to the county judge to “ every person who shall conceive himself aggrieved by any determination of the commissioner in laying out,” etc., is as necessary as if the owner had given his consent, and is in no wise repealed. If these views are correct, the appeal from the order of the commissioner laying out the road was properly taken, and the order of the referee thereupon should be affirmed, with fifty dollars costs, as provided in section 2143, Code of Civil Procedure.

It may not be improper to add that, in our opinion, the commissioner could regularly have made no order laying out the road until after the decision of the General Term upon the county judge’s order affirming the commissioner’s certificate. Until then he had no jurisdiction to lay out the road; that is, to make the order laying it ojfi ; but we have chosen to review the question presented as if his order were regularly made.

Learned, P. J., and Bqardman, J., concurred.

Order of referees affirmed, with fifty dollars costs and disbursements.


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

text:
    In the Matter of the Probate of the Will of JAMES O’NEIL, Deceased.
    Wül— when probate thereof willbe refused, because it is not subscribed at the "end" — ' 2 i?. &, 68, sec. 40.
    A will was written upon a printed form or blank consisting of four pages, folded in tbe center like ordinary legal cap. At the top of tbe first page was printed tbe usual first clause of a will. Tbe rest of tbe first page, tbe whole of tbe second and nearly all of tbe third were left blank. At tbe foot of tbe third page was printed a clause appointing executors, a subscription clause, “ In witness whereof,” etc., and an attestation clause; tbe fourth page was blank.

      The blanks in the printed portions were filled in, as were also all the vacant portions of the first, second and third pages.
    On the third page was written the thirteenth clause, as follows: “ Thirteenth, And I authorize and empower my executors hereinafter named to sell, convey, assign and transfer my real property for the payment of the bequests herein-before named and mentioned, either at private (here the end of the blank space was reached. On the top of the fourth page was written, as follows:) or public sale, and in the manner that they will deem the most profitable and advantageous to my said estate; ” it then directed that the executors should not be compelled to sell the real estate until the lapse of five years from the testator’s death. The will as so drawn, including what was written on the fourth page, was read to the testator, and then signed by him on the third page, at the end of the subscription clause, and by the witnesses at the end of the attestation clause.

      Held, That the will was not signed by the testator or the witnesses at the “ end ” thereof. ,
    That the portion of the will written upon the fourth page could not be rejected, and the residue thereof be admitted to probate.
    That probate of the will should be refused. (Learned, P. J , dissenting.)
    Appeal from a decree of the surrogate of the county of Essex, admitting to probate the last will and testament of James O’Neil, deceased.
    The will was written upon a printed form or blank consisting of four pages, folded in the middle like ordinary legal cap. The form consisted of a printed heading on the top of the first page, the rest of the first page, the whole of the second and the greater part of the third page being left blank. Towards the bottom of the third page was printed a clause providing for the appointment of executors, a subscription clause, “In witness whereof, I have hereunto subscribed my name,” etc., and an attestation clause at the bottom. The thirteenth clause was commenced on .the third page, and was written as follows:
    “ 13 th. And I authorize and empower my executors, hereinafter named, to sell, convey, assign and transfer my real property for the payment of the bequests hereinbefore named and mentioned, either at private-
    “ Likewise I make, constitute^and appoint Dennis Daly, of the town of Moriah, Essex county, State of New York, Oeorge T. Tread/way, also Edward Donohoe, all of Moriah, to be executors of this my last will and testament, hereby revoking all former wills by me made.

      “ In witness whereof, I have hereunto subscribed my name and affixed my seal the twenty-eighth day of February, in the year of our Lord one thousand eight hundred and eighty.

    “ JAMES ONEIL. [a. a]
    “ The above instrument, consisting of one sheet, was at the date thereof subscribed by James ONeiZ in the presence of us and each of us, he at the time of making such subscription acknowledged that he made the same and declared the said 'instrument so subscribed by him to be his last will and testament; whereupon we then and there, at his request and in his presence and the presence of each other, subscribed our names as witnesses thereto.

      “ DENNIS DALEY, residing at Mineville, N Y.

      “ GEORGE T. TREAD WA Y, residing at Mineville, N. Y.

      “EDWARD DONOHOE, Mineville, N. Y.

      “orpublic sale, and in the manner which they will deem the most profitable and advantageous' to my said estate, but in no case shall my said executors be process, by law or otherwise, to sell and convey and dispose of my said real property before the lapse of five years after my death, unless my said executors shall see fit and proper to sell and dispose of the same, by virtue of the power and authority hereinbefore given them as aforesaid I

    The last clause was written on the top of the fourth page. This will, as so drawn, was read to the testator in the presence of the witnesses, the portion written on the top of the fourth page being read as if it had all been written in the blank space immediately after the word “ private.” He then signed the will just after the subscription clause on the third page, declared it to be his last will andfestament, and requested the witnesses to sign, who thereupon did subscribe their names to the attestation clause at the bottom of the third page.,

      M. D. Grover and Samuel Hand, for the appellants Ann Lynch and others.

      Matthew Hale, for the executors, respondents.
   Boardman, J.:

The portion of the will offered for probate on the fourth page of the sheet of paper was after the signature of O’Niel and after the attestation clause and signature of the witnesses, all of which were on the third page. In the body of the instrument preceding^, the signatures no reference is made to the part on the fourth page, that part was read to the testator, and the evidence shows he considered it a part of his will. It seems to be the concluding portion of the thirteenth' clause of the will written upon the fourth page, because there was not room enough on the third page before the printed clause appointing, executors and the attestation clause. The question presented is, whether a will so executed is valid under our statutes.

By our statute of wills (2 R. S., 63, § 40), a proper execution of a will requires that it shall be subscribed by the testator at the end of the will, and that each attesting witness shall sign his name as a witness at the end of the will. It is not so signed in this case by either the testator or the witnesses. The part following such signatures was intended by the testator to be a part of his will. It is not referred to in the body of the will.. The instrument seems more objectionable and far more dangerous than the one rejected in Sisters of Charity v. Kelly (67 N. Y., 409), which is quite conclusive of the case now under consideration. Judge Folger, says: To say that where the name is, there is the end of the will, is not to observe the statute. * * * It is to make a new law to say that where we find the name there is the end of the will.” The part which followed the signature of Kelly was of less importance in that case than the part which here follows the signatures. It would be very dangerous to recognize the doctrine contended for by the respondents. In the present case, the part after the signature may not be of great importance. But in the next case it may be of vast importance. If this fourth page may be incorporated in the will in like manner, the third page also could be so incorporated had the signatures been at the bottom of the second page. It would be very dangerous to allow such construction. Wills are quite frequently made with great secrecy. Y ery often their contents are unknown to any one except the testator and the person who prepared them for execution. The witnesses are called in to attest the formal requisites, they see nothing but the signature and the attestation clause which they sign, they know nothing of the contents or the structure of the instruments; after execution it is not uncommonly left with the attorney or person who wrote it for safe keeping. How easy, after testator’s death for such person to add to any clause after the signature in the same handwriting, the most important and vital provisions wholly at variance with the testator’s will and wish. Who could detect such addition ? How could the estate be protected against such dishonesty, except hy a strict adherence to the rule that the testator must sign the will at the end so as to make such an act impossible ? Such was doubtless the purpose of the statute. As applicable to* this case, I may quote further from the learned judge’s opinion (p. 416): “It is evident that the deceased considered the instrument to be one paper. We have no reason to say that he wished one part of it to be carried into effect if the whole was not. The statutory provision requiring the subscription of the name to be at the end, is a wholesome one, and was adopted to remedy real or threatened evils. It should not be frittered away by exceptions.” The act of 1 Y ictoria, as is said in Jackson v. Jackson (39 N. Y., 160), “differs but little in its provisions touching the executions of wills from our own.” Hnder that act the English courts have repeatedly refused probate to instruments like the present. (Willis v. Lowe, 5 Notes Cases, 428; Smee v. Bryer, 6 id., 20; 406; Ayres v. Ayres, 5 id., 375; Goods of Henry, 2 Robt. Eccl., 140; In re Milward, 1 Curteis, 912.) Other decisions of the English courts of a later date, tending to- sustain the respondent’s position, were made under the statute (15 and 16 Yictoria), which “ very much relaxed the rigor of the former act,” as Judge Folgeb says. Such cases are mot, therefore, of controlling weight with us by reason of the greater latitude given in the execution of wills.

Where a will is complete ;n itself, instructions or directions inserted after the signature may perhaps 'be rejected as forming no part of it. Such was the case of Conboy v. Jennings (1 Thom. & C., 622). So, too, a will by reference to a deed, a record or a map may so far make it a part of the will as to authorize its use for the purpose of making that certain, which otherwise might be doubtful. But such cases do not aid us where the extraneous matter is plainly intended to be a part of the instrument to be executed, (Sweetland v. Sweetland, 4 Sw. & Tr., 6; Hays v. Harden, 6 Penn., 409; approved, 15 id., 291 [Wikoff's appeal]; Glancey v. Glancey, 17 Ohio St., 134; Tonnele v. Hall, 4 N. Y., 140; McGuire v. Kerr, 2 Bradf., 244.)

But without further reference to authorities, we think we are following the decision in Sisters of Charity v. Kelly (supra), when we reverse the decree of the surrogate.

The decree of the surrogate is, therefore, reversed with costs to both parties out of estate, and probate is denied.

Landón, J:

I concur. This will, as a whole, embraces writing following the signature, and therefore, in my opinion, cannot be said to be subscribed at the end. Argument based upon the suggestion of interlineation, or order of paying seems to be inapplicable to this will. To probate it, opens the door to an indefinite extension or modification of the matter directly preceding the signature.

Learned, P. J.

(dissenting):

If the doctrine of Sisters of Charity v. Kelly (67 N. Y., 409) applies .to this case there is no need of any discussion. In that case there were two signatures. The second was rejected for reasons which have no connection with the present case. ■ The first was rejected because it was in the middle, and not at the end, of the last sentence of the will — the sentence which named executors and revoked former wills. There was no question that, in orderly and regular reading, the will terminated with the clause revoking former wills. And the signature was not at the end of that clause, but was a few lines above. So that in reading the will that signature would be read before the will was finished. Now, it is urged in the present case by the proponents that in the orderly and regular reading of this will the testator’s signature would be after the last word of the will, and that the words on the fourth page come in regularly on the third page. There can be no doubt that such is, in fact, their real place. No one can fail to see that as the will was read and understood, and is now to be read and understood, these words formed, and now form, a part of the sentence which preceded, and now precedes, the final sentence by which executors were appointed.

The question then presented is this: Do the words at the end of the will ” in the statute refer merely to the place upon the paper, or do they refer to that which forms the conclusion of the testator’s written will, when such will is read in its plain logical order.

And, perhaps, this question may be illustrated by cases that may be supposed. It is a common practice in these days to begin a letter on the first page of a sheet of writing paper, to continue it on the third, then on the second, and finally, if needed, on the fourth. If a letter were written after this style, beginning on the first and then continuing on the third page and were finished on the second, is there any doubt that the signature of the writer would properly be said to be at the end of the letter, although, ■physically, on a page which would be before a part of the letter? Would anyone say. that the end of the letter was on the third page ?

And if testator should in like manner begin his will on the first page of a sheet of paper, continue it on the third and finish it on the second, could it be urged that his signature on the second page was not at the end of the will, 'because the third page came after it ?

Or suppose that, after having thus written his will, he should sign it at the foot of the third page, would that be a signature at the end of the will ?

Or again: suppose that, after a testator had written his will on several lobse sheets they were accidentally fastened together in an incorrect order, would it be said that his signature was not at the end of the will, because the sheet on which was his signature had been misplaced?

In the present case, if the scrivener, for want of space on the third page, instead of writing the continuation of the sentence on the fourth page, had found a blank space at the top of the first page and had written the continuation there, would not the will have been valid ?

Or if he had written such continuation on the margin of the third page, would not the will have been valid ? And that, too, even if some of the marginal words had extended farther down on the paper than the place of the testator’s signature.

Or if he had found that margin insufficient, and-had written them partly on that margin and partly on the margin of the fourth page, would that fact have shown that the testator’s signature was not at the end of the will ?

Sometimes a scrivener may use paper of which the pages are joined at the top; sometimes he may use that which is joined at the side. If a will covers two pages of one kind of paper, the end will come at one place; if it covers two pages of the other kind, the end will come at the other.

I have taken these illustrations to show that the end of the will does not depend on the physical position of the words; but that it is to be found at that point, where, on the reading of the whole instrument, is found the last word of the testator. Other illustrations might be taken from the various modes of beginning and ending their writings adopted by different nations.

A Hebrew book ends on what corresponds with the first page of an English book. If a will were written in Hebrew in that manner, I suppose the end might be on what i#s usually called the first page.

The question before us is not whether a forgery might not be committed in some cases. A forgery might be committed by an interlineation; yet an interlineation may, I suppose, be made before the will is executed, and the will may be valid. The validity of an inserted clause does not depend on the mere fact that it is wi’itten between the lines.

May it not be written on the margin ? And, if on the margin, is there any special place on the margin where it must be written ? Its validity depends on the fact that it forms a part of the written wishes of the testator, and that its true place in the will is manifest and was understood by him.

The sole question here is whether the testator’s signature is at the end of the will.” And that depends, as I said above, on the question what is the end? It seems tome that the end is tobe found by reading the will through in the order which the writing indicates, disregarding, if necessity requires, mere physical position. And when the will has been thus read through, the end will be reached; and there the signature should be found. This is what is continually done in reading manuscript, where a writer, by proper marks, indicates that sentences are to be inverted here and there. That I suppose to be the meaning of the court in Sisters v. Kelly (ut supra), when they say that the will is to. be “ scanned; ” that is, probably, examined with care. I suppose this means something more than that the writing is to be measured with a carpenter’s rule to see whether any part is lower on the page than the signature.

In the case of In re Goods of Henry (2 Rob. Ecc., 140), che will ended on the second page, leaving thereon a space of one inch and three-tenths of an inch. On the top of the third page began “ Signed by me,” etc., with the signature of the testator. It was held that on account of this space of one inch and three-tenths, the will was not signed at the foot or end.” Of the same character are the cases of Willis v. Lowe (5 Notes’ Oases, 428); Ayres v. Ayres (Id., 375); Smee v. Bryer (6 id., 406). Whether these cases are law here, I need not inquire. They are not law in England now; and at any rate they do not touch the present question.

In the case of Goods of Kimpton (3 Swabey & Trist., 427) the will occupied three pages of foolscap. A codicil of the same date occupied the upper half of the last page. A second codicil began on the fourth or lowest quarter of the last page, and ended with the words “ In witness whereof, I, the said.” Then the sentence was continued on the third quarter of the last page as follows: “ Sarah Kimpton, the testatrix, have hereunto set my hand,” etc., with a brief testamentary disposition of some books, followed by the signature and attestation, so that the chief part of this second codicil was literally underneath the signature. It was held that where any portion of the writing appeared to form part of the context anterior to the signature, it may be considered as following that context, and probate of the second codicil was granted. Thus, in that case, although the signature in its mere position stood over the important part of the codicil; yet on reading the codicil in the orderly and logical way the signature was at the end of the last word. That case is very closely analogous to the present.

Where, in this case, is the end of the sentence which begins the thirteenth clause ? Plainly at the last of the words written on the fourth page. The next sentence is that which appoints executors. And the last sentence of the will is the in testimonium, clause. The last word of that sentence is the end, and there stands the signature. See Tonnele v. Hall (4 N. Y., 140), which shows that a signature may be correctly said to be at the end of the will, although there be after it a map, referred to in the will and held by the court to constitute a part thereof.

I think the decree should be affirmed, with costs.

Decree reversed and probate refused, with costs to both parties-in the court below, and on appeal, to be paid out of the estate.


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    THE PEOPLE OF THE STATE OF NEW YORK, Plaintiffs in Error, v. ISAAC W. ENGLAND, Defendant in Error.

      Advertisement of an illegal lottery — publication thereof by a newspaper corporation— a stockholder cannot be convicted unless he had knowledge of the publication.

    The defendant was indicted for publishing in a newspaper called The Sun an advertisement of-an illegal lottery. The Sun was published and printed by a duly organized corporation, the business of which was managed by a board of trustees. The defendant was a stockholder of the corporation, and was employed as its treasurer and purchasing agent, and as the superintendent of its business affairs. Upon the trial he requested the court to charge that he could not be convicted if he had no knowledge or notice that the advertisement was printed by the corporation. The court refused so to charge, and instructed the jury that if the advertisement was published by the corporation of which the defendant was a member, he was the publisher within the meaning of the statute.

      Held, that this was error ; that he could not be convicted unless it were shown that he actually and personally did the acts which constituted the offense, or that they were done by the corporation with his permission or by his direction.
    Certiorari to the Court of Sessions of tbe county of Schenectady, to review the conviction of the defendant upon an indictment charging him with publishing in The Sun, a newspaper, an advertisement of an illegal lottery.

      J. T. Schoolcraft, district-attorney, for the people.

      N. Q. Moak, for the defendant.
   Landon, J.:

The evidence tended to show that the newspaper, “ The Sun,” in which the advertisement of the lottery was printed, was published by a corporation, duly organized and known as Tbe Sun Printing and Publishing Association; ” that its business was managed by a board of trustees; that the defendant was one of the stockholders of the corporation, and employed as its treasurer and purchasing agent, and superintendent of its business affairs. It did not appear that the defendant had any knowledge of the insertion of the advertisement.

Upon the trial the defendant, by his counsel, in various forms of request, asked the court to instruct the jury that he could not be convicted if he had no knowledge or notice that the advertisement was printed by the corporation; that the fact that he was a stockholder or treasurer or agent or employe of the corporation would not of itself be sufficient to convict him, if the corporation published the advertisement without his knowledge. The court held otherwise, and instructed the jury that if the advertisement was published by the corporation of which the defendant was a member, he was the publisher within the meaning of the statute.

A conviction based upon this instruction cannot, we think, be sustained. . * '

If the corporation did the acts constituting the offense, it must have done them by the direction or permission of its officers, and by the personal act of some .of its agents or servants. It seems reasonable that when the officer or servant of the corporation is held to answer crimmaliter for the acts of the corporation, that he should be permitted to require that some evidence be given showing his connection with the acts constituting the offense. He, and not the corporation, stands indicted. To prove that the corporation did the acts does not per se prove that he did them ; it must also be shown either that the corporation did them by his hand, act, direction or permission, which, of course, is direct proof of his own acts; or such circumstances must be shown as to justify the conclusion, as a fact, that what the corporation did he did; in other words, the circumstantial evidence may show that the defendant actually and personally did the acts which constitute the offense.

If the defendant must have had some actual personal connection with the illegal acts, much more, it seems to us, must he have had some notice or knowledge that the corporation was engaged in such acts if done by another. Otherwise the defendant might be eonvicted because of an act done by tbe hand of another, and without his consent or knowledge. The fact that he is a member of the corporation whose servants did the act may be a circumstance, to be left in connection with others to the jury, from which they may, under proper instruction, determine whether the defendant had any actual participation in the illegal acts charged; but,for the court to hold; as a matter of law, that such membership charges him with criminal responsibility for the illegal acts of the corporation is, we think, wrong in principle and unsupported by authority.

The conviction should be reversed and a new trial ordered.

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

Judgment and conviction reversed and new trial granted.


author: Learned, JP. J.:

text:
    PORTER C. KINGSBURY and GEORGE D. DANIELS, Appellants, v. GEORGE W. EARLE and WILLIAM L. EARLE, Respondents.

      Conveyance of land accepted under an agreement to pay the grantor’s debts — his creditors may enforce payment of the debts by the grantees without regard to the value of the land.

    Where a father has conveyed land to his sons upon their orally agreeing, in consideration of the conveyance, to pay all his debts, his creditors may bring actions against the sons to recover their debts even though the amount thereof exceed the value of the land.
    In such a case the amount named in the deed as the consideration for the transfer ■will not determine the actual value of the land.
    Appeal from an order of the Oounty Court, of Cortland county, setting aside a verdict rendered herein in favor of the plaintiffs and granting a new trial.
    The plaintiffs recovered a judgment in this action in a Justices’ Court, and upon an appeal taken therefrom to the County Court the jury rendered a verdict in their favor. This verdict was set aside and a new trial was granted.

      The action was brought to recover a debt due to the plaintiffs from the defendants’ father.

      L. Pierce, for the appellants.

      E. D. Grosiey, for the respondents
   Learned, JP. J.:

The jury decided, if there could have been any doubt, that the agreement of the defendants was to pay all the debts of their father. For this they had a sufficient consideration, viz., the conveyance to them of the land.. Their contract was not to pay the debt of another person, but to pay the debt which they owed for the land, and to do this by paying debts which their father owed. This doctrine on the subject of the statute of frauds is well settled.

The learned county judge, admitting this doctrine, granted a new trial on the ground that the consideration of the land was $1,100; that the debts of the father amounted to more than that sum, and that an oral agreement of this kind could not be binding beyond the extent ■of the consideration received by the person agreeing to pay.

We cannot agree with this view. The argument of the learned ■county judge would go to the extent of holding that even a written agreement by one person with another to pay on good consideration the debts of the latter would not be binding beyond the extent of the consideration received. Because the matter is immaterial whether ■such an agreement be in writing or not; since we have seen that it h,as been well settled that such an agreement is not the promise to pay the debt of another within the statute of frauds.

The point, therefore, which we understand the learned county judge to make is whether the third party who is to be benefited by such a promise can enforce it Tinier the case of Lawrence v. Fox, and similar cases. It would seem very plain that if the defendants, in consideration of the conveyance to them by their father of this land, agreed with him orally or in writing to pay all his debts, he might sue them and recover for a breach of this contract. And the question here is whether the father’s creditors have a right of action on that. promise. The learned county judge thinks that such a right of action is limited in its extent by the consideration actually received by the defendants. But we do not so understand the doctrine. On whatever principle the cases of Lawrence v. Fox and other similar cases may rest, we do not think they rest on the principle that the creditor can recover only 'the amount which the defendant has received from the original debtor. The learned county judge seems to be of the opinion that if such an agreement' were in -writing the consideration would be sufficient to sustain it. But clearly it is of no importance whether or not it is in writing, when it is once decided that such an agreement is not a promise to pay the debt of another. If it be a promise to pay one’s own debt, then, if there be a good consideration, the promise is binding to its full extent. It is often said that a small consideration is enough to make a promise binding, notwithstanding it may be much smaller than the thing promised. And if the promise to the defendants’ father was binding, then the only question would be whether the right of action thereon was only in him, or was also in those who were to be benefited, viz.: his creditors. And that is disposed of by the cases referred to.

But there is a further view. There is no reason to say, in this case, that the consideration of’the defendants’ premise was $1,100. The consideration was the conveyance of the land. The amount named in the deed did not determine the actual value. That was a matter indefinite. And whether the land was worth more or less cannot be important.

It is urged by the defendants that a question should have been submitted to the jury whether the promise wras obtained by fraud on the part of the father. That question is not discussed by the learned county judge, and evidently had no weight with him. And, on examining the case, we do not find that there was anything to go to the jury on that point. It nowhere appears that even if there were some misapprehension there was any fraud. And, as the court said on the trial, the defendants have retained, the land and have never offered to restore it.

The order granting a new trial is reversed, with costs.

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

Order of County Court reversed, with costs.


text:
    ANNA HORROCKS and JANE VAN BENTHUYSEN, Appellants, v. GEORGE E. THOMPSON and Others, Respondents.
    ' Trial before a referee — stenographer’s notes taken upon such trial — when the court map compel them to be filed — Code of 0ml Procedure, sees. 83, 84, 1018, 1022.
    Where an action brought to foreclose a mortgage has been referred, and the evidence upon the trial has been taken by a stenographer, whose fees have been taxed by the plaintiff in the disbursements, the court may, in its discretion, under sections 83 and 84 of the Code of Civil Procedure, order the plaintiff, when the stenographer’s notes are in his possession, to file the same with the county clerk, even though the property has been sold and the judgment and costs fully paid.
    Appeal from an order made at a Special Term, requiring tbe plaintiffs to file in the Albany county clerk’s office the original minutes of - the referee and the' stenographer, taken on the trial of this action. The motion was made by the attorney for the defendant George E. Thompson, to require C. E. Doyle, one of the plaintiff’s attorneys, to deliver such minutes to the said Thompson.
    The action was brought for the foreclosure of a mortgage. The referee reported in favor of plaintiffs on all the issues, and ordered judgment of foreclosure and sale. The fees for the stenographer’s minutes were included in and taxed as part of the costs. The judgment and stenographer’s fees were paid by the sale of the mortgaged premises. The judgment has never been appealed from.
    The referee gave the minutes to one of the plaintiffs’ attorneys after the trial was ended, and the judgment paid and satisfied.
    The plaintiff claimed that the defendants in this action had no interest in the motion, but that the same was made to assist their attorney in another action brought by him for a third person against the plaintiff.

      Doyle & Fitts, for the .appellants.

      E. F. Bullard, for. the respondents.
   By the Court :

This action has gone on to judgment, foreclosure and sale. The original minutes of the referee are his private property; with them the court has nothing to do.

It appears that the evidence was taken by a stenographer. Sections 83 and 84, Code Civil Procedure, perhaps do not in express language refer to a trial before a referee, at which a stenographer takes notes. But sections 1018, 1022, etc., have made trials before referees so closely analogous to trials before the court, that it is reasonable to apply sections 83 and 84 to trials before referees. We see no reason why this officer of the court (sec. 52) should not file his notes in the one case as well as in the other, if required to do so.

It is objected that the stenographer’s notes are the minutes of the referee, and section 1007 is cited. But that section only says that they may be treated as the minutes of the judge, for the purposes of this article.”

It is objected that the motion is not really made by any party in interest. But the order (sec. 83) may be made in the discretion of a judge, without an application.

We think, then, that the order should be modified so as simply to require the plaintiff to file, within thirty days, the stenographer’s notes, and as so modified affirmed, without costs to either party.

Present — Learned, P. J., and Bóardman, J.; Landon, J., not acting.

Order modified so as to require plaintiff to file stenographer’s minutes only, and as modified affirmed, without costs.


author: LANDON, J.: Learned, P. J.

text:
    EDWARD H. NEARY, Appellant, v. GEORGE ROBINSON and Others, Superintendents of the Poor of the County of St. Lawrence, Respondents.

      Superintendents of the poor — may audit the bill of an attorney employed, by them in bastardy proceedings —1882, chap. 26, sec. 1. .
    Under section 1 of chapter 26 of 1882, authorizing the superintendents of the poor in the several counties of this State, to ‘ ‘ audit and settle all accounts of overseers of the poor, justices of the peace, and all other persons for services relating to the support, relief or transportation of county paupers,” they have power to audit and settle the hill of an attorney, retained by them, for professional services rendered in bastardy proceedings instituted hy them. (Learned, P. J., dissenting.)

      Appeal from a judgment of the County Court of St. Lawrence county, dismissing the plaintiffs complaint and granting costs to the defendants.
    The action was originally brought in a Justices’ Court, where the plaintiff recovered a judgment.

      Edwa/rd H. Weary, appellant in person.

      D. M. Robertson, and Wry,. EL. Sawyer, for the respondents.
   LANDON, J.:

The plaintiff, upon the retainer of the defendants, as superintendents of the poor of the county of St. Lawrence, rendered professional services in a bastardy proceeding instituted by them. He presented his bill for such services to them, and they audited and allowed the same at twenty-five dollars, and tendered him an order on the county treasurer for that sum. The plaintiff regarding this as an inadequate allowance, refused to accept it, and the defendants destroyed the order.

If the defendants had jurisdiction to audit the bill, the plaintiff is bound by it, until he procures its reversal upon certiorari, which he has not attempted. (Vedder v. Superintendents, 5 Den., 564.) By chapter 26, Laws 1832, section 1 (4 Edm. St., 4), “ the superintendents of the poor in the several counties in this State shall audit and settle alLaccounts of overseers of the poor, justices of the peace, and all other persons for services relating to the support, relief or transportation of county paupers, and shall from time to time draw on the county treasurer for the amount of the accounts which they shall so audit and settle.”

This act forms no part of the Revised Statutes, though incorporated in them by subsequent compilers (vol. 1 [2d ed.], 636, § 62; vol. 2 [6th ed.], 814, § 32), and hence the argument of the learned plaintiff, based, upon the connection in which it is found in such compilations, has no force.

In bastardy cases the mother and child are “ deemed paupers ” (1 R. S., 642, § 4), and the fact that the mother or child are likely to become chargeable to the county as paupers, gives the superintendents of the poor authority to institute these proceedings. (Id., § 5.)

The proceedings taken are for the “ support ” and “ relief” of the mother and child, as well as for the protection of the county, and therefore the account for the services of the plaintiff “ relating ” thereto, seems to be within the jurisdiction of the superintendents for the purposes of audit.

The fact that upon the refusal of the plaintiff to accept the order upon the county treasurer, the defendants destroyed it, has not prejudiced the plaintiff. If he should reconsider his refusal, the superintendents would issue to him a new order.

The defendants are not obnoxious to the objection that, in auditing the plaintiff’s account, they became judges in their own cause. They were public officers, both in securing the plaintiff’s services, and in auditing the account for them, and in neither case can be presumed to have had any other motive than the honest discharge of official duty.

The judgment must be affirmed, with costs.

Boaedman, J., concurred.

Learned, P. J.

(dissenting):

The defendants retained the plaintiff to do certain services for them. He performed the services and sues to recover their value, proved to be $120. The defense is, that the defendants had audited his claim at a certain amount, viz.: twenty-five dollars. The services were performed in bastardy proceedings, commenced to charge a putative father with the support of a child about to be bom, and were in the name of the defendants. The proceedings were compromised by the defendants, and they received $300. They are authorized to “ audit and settle all accounts of overseers of the poor, justices of the peace and all other persons for services relating to the support, relief or transportation of county paupers.” (Laws 1832, chap. 26, § 1.) Under this section it was held that they could audit the plaintiff’s claim for services rendered to themselves in bastardy proceedings. I do not see that the plaintiff’s services related to the support of town paupers. Section 4 (1 R. S., m. p., 642), where it says that such mother and child shall in all respects be deemed paupers,” refers to the preceding section 3; which treats of clandestine removal. And this is made more apparent by the rest of section four, which states that the same proceedings may be had, etc., as in case of “paupers fraudulently or clandestinely removed.” So that it is only a mother and child who have been clandestinely removed, etc., under section 3, that are declared to be deemed paupers by section 4. And the subject of the support of bastards is treated of in title 6; that of the support of the poor in title 1 of chapter 20. Thus the statutes do not class the subject of bastardy under the head of the support of the poor.

Nor does it seem to me that the services rendered by the plaintiff related to the support of county paupers. They were services rendered, not to paupers, but to the defendants. The case of Vedder v. Superintendents (5 Denio, 564) vuts different. The plaintiff in that case was a justice of the peace. He had not been retained by the defendants, and had done no services for them. He had done services for which he was entitled to compensation from the public treasury; not from the superintendents. It appears to me at least doubtful whether, in the present case, the plaintiff has any demand against the public treasury; and whether his claim is not against the defendants, to be paid by them, and then to be allowed to them in their settlement of accounts. At any rate, I cannot think' that legal. services rendered to the superintendents of the poor are services relating to the support of paupers. The services related to legal proceedings ;■ just as if the defendants had employed the plaintiff to sue a filiation bond. Such services neither support nor relieve, nor transport paupers. But they are services rendered to the defendants, for which they are liable. (Paddock v. Symonds, 11 Barb., 117.)

I think the judgment should be reversed.

Judgment affirmed, with costs.


author: Landon, J.: Learned, JP. J.:

text:
    ALLEN WILSON, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Common carrier — may relieve itself from liability for its own negligence by stipulation.

    The plaintiff, upon shipping two horses by the defendant’s road, from New York to Ogdensburg, signed an agreement which, after reciting that the company transported live stock at reduced rates, upon the shipper’s assuming certain risks, provided, that the defendants were thereby released “from all liability for injuries which the animals, or either of them, may receive in consequence of * * the negligence of said company’s servants * * or in consequence of insecurity of cars.” The door of the car in which the horses were transported was defective, and one of the horses fell or got out and was hurt.

      Held, that the company was not liable for the damages thereby occasioned.

      McKinney v. Jewett (24 Hun, 19), followed.
    . Appeal from a judgment, entered in favor of the defendant, upon the report of a referee.
    In October, 1880,: the plaintiff applied to the defendant, in New York, to transport two horses from that city to Ogdensburg. This the defendant, by its special contract, in writing, agreed to do.
    The contract recites that, whereas, the company transport live stock at reduced rates, upon the shipper’s assuming certain risks * * * “in consideration that said company will transport, at said reduced prices, two horses, Allen Wilson, Ogdensburg, N. Y., they are hereby released from all liability for injuries which the animals, or either of them, may receive in consequence of * * * the negligence of said company’s servants * * * or in consequence of insecurity of cars.”
    The door of the car in which the horses were transported was defective, and one of the horses fell out, or got out and was injured.

      Leslie W. Russell, for the appellant.

      D. M. K. Johnson, for the respondent.
   Landon, J.:

The court, while doubting the wisdom of the rule which allows a common carrier, by special contract, to exempt himself from his .common-law liability for his own negligence, expressed .the opinion in McKinney v. Jewett (24 Hun, 19) that such was the rule in this State. We are not advised that the Court of Appeals has yet made any decision at variance with its repeated intimation that such is the law.

The case cited was disposed of, as many another has been, by the application of the rule of construction announced in New Jersey Steam Navigation Company v. Merchants’ Bank (6 How. [U. S.], 381), that if the carrier can so stipulate by his contract, he should do it so plainly as to leave no room for controversy about it. This rule has been extended so far, in order to fix a liability upon the carrier, as to seem to disregard a reasonable construction of the contract made by him. It is held that where general words limiting the liability of a carrier may operate upon something else as well as upon the negligence of the earner and his servants, such negligence is not included in the limitation. (Mynard v. Syracuse, etc., R. R. Co., 71 N. Y., 180, and cases cited ; Holsapple v. R. W. and O. Railroad Co., 86 id., 275.) But if we apply this rigid rule of construction, it will not aid the plaintiff. His horse either fell out or got out of the car in which it was transported, because the car door was insecurely hung, and insufficient to support or resist the outward pressure of the home against it. In other words, the damage was caused by “ the insecurity of the cars.” The contract for transportation between the parties exempted the defendant “from all loss or damage” caused thereby. If it be true, as the plaintiff ingeniously urges, that this does not exempt the defendant from negligence in furnishing such a car, or in putting the horse into it, the defendant can rely upon the other special exemption of the contract, namely, “the negligence of the said company’s servants.” The furnishing of the car and the putting of the horse in it must have been their negligence, if it was negligence at all.

The judgment must be affirmed, with costs.

Learned, JP. J.:

Hnder the decisions in this State I feel obliged to concur in this opinion, although I think the doctrine is unsound. The true rule, in my judgment, is laid down in Railroad v. Lockwood (17 Wall., 357). The alleged consideration in the contract, of a reduced price, can be understood by anyone.

Boardman, J., concurred with Learned, P. J.

Tudgment- affirmed, with costs.


author: Learned, P. J.:

text:
    In the Matter of the Application of the NEW YORK, LACKAWANNA AND WESTERN RAILWAY COMPANY, Appellant, to Acquire Real Estate of JOHN ARNOT and Others, Respondents.

      Eminent domain — taking land, for railroad purposes — rule for estimating the damages.

    In appraising tlie damages to be paid by a railroad company for land taken by it, the true inquiry is, what is the fair marketable value of the whole property; what will be the fair marketable value of the property not taken. The difference is the amount of the damages.
    Although one element of valuation in respect to the whole property and in respect to the residue may be, in a proper case, the facility or the difficulty of dividing it into city lots, if it be then valuable for that purpose; yet the mere hopes of an owner that his field may one day be built upon are not to be considered, unless the probability of such an event in the public mind has in fact affected the " fair marketable value” at the time of the proceeding.

      Semble, that as the appellate court in these eases is to exercise its discretion the ordinary rules of evidence will not be strictly enforced.
    Appeal from the appraisal and report of the commissioners appointed herein, and from an order made at a Special Term confirming the same.

      Robert T. Turner, for the New York, Lackawanna and Western Railroad Company, appellant.

      Erastus F. Babcock, for the landowners, respondents.
   Learned, P. J.:

The defendants are the owners of a field or tract of land nearly square and containing about twenty-six acres. On the south-west corner are the gas-works, taking out from the square a piece about 370 feet by 250 feet; and the test of the southerly side is bounded by the abandoned J unction canal. The field is generally flat; the southeasterly part, however, being low ground. The railroad company takes for its track a strip ninety-nine feet wide, running diagonally through the field. The center line starts about 270 feet southerly from the north-westerly corner and runs about the same distance northerly from the south-easterly corner. This center line is about 1,250 feet long. The strip contains about three acres. The easterly side of the field is bounded by Oak street, the westerly by Madison avenue. At Oak street, where the railroad crosses, the street is about eighteen inches higher than the lots. Just within the fence at Oak street, by the petitioner’s map (station 3072), the fill is 3.4 feet sub-grade; on which comes the ballast. It is stated in the brief that the stations are 100 feet apart. Assuming that to be correct, at a distance of 700 feet along the center line there is a cut of 1.2 feet sub-grade, and the cut becomes deeper farther up to the northwest end of the strip.

This field or tract of land, for the purposes of taxation is, assessed at about $8,000. The commissioners have awarded for the strip taken by the railroad $17,500. The estimates of depreciation caused .by the construction of the railroad, including the land taken, varied greatly, ranging from about $5,000 to $30,000. Now this disagreement throws discredit on the value of such testimony. It is difficult to understand how witnesses, who had any knowledge on the subject and who were competent to give opinions, could vary so widely. It would be wrong for us to assume that any of these witnesses did not testify honestly. And it seems, therefore, necessary, in order to account for this very great discrepancy, to inquire whether there was riot some element improperly brought into the estimate ; some element which diverted the minds of the witnesses ; from the mere question, “ what is the fair marketable value of the whole property, and then what will be the fair marketable value of the property not taken.” (Troy and Boston R. R. v. Lee, 13 Barb., 169; Black River and M. R. R. Co. v. Barnard, 16 Sup. Ct. N. Y. [9 Hun], 104.)

.' If these defendants had owned another tract of land in the neighborhood through which the railroad did not run, we do not know of any principle which would permit the commissioners to take into account the depreciation to that other tract. (In re N. Y. C. and H. R. R. R. Co., 13 Sup. Ct. N. Y. [6 Hun], 149.) Hnless, perhaps, the neighboring tract should be actually used in connection with that of which a part is taken, so that the two really formed one whole. The statute does not provide for compensation to be made to owners of land near to which a railroad runs; but only for compensation to those whose, land is taken. ( Walker v. Old Colony and N. R. R., 103 Mass., 10.) And it follows, therefore, that those whose land is taken must be compensated only for the damage to the tract which, or a part of which, is taken. Hence it follows that the estimate must consider the tract as a whole, in ascertaining first its fair marketable value as existing, and then the fair marketable value of the residue.

It appears that some twenty years ago, a map of this tract was made, by which it was divided up into lots and streets. But the map was not xecorded; the streets were never opened, no lot was ever sold and the tract was used for pasturage. There are some 107 lots in all, through about thirty of which only the • railroad passes. And it will be seen, on examining the testimony, that the estimates of value are-largely made by putting a value on each of the 107 lots, whether touched by the railroad or not, and estimating how much each is depreciated by the railroad. Now it will readily be seen that this objection arises to this mode of estimate. Let us suppose that one of the lots, not touched by the railroad at all, had previously been sold by these defendants and was at the time of the hearing owned by some other person. Could that person claim damages for the depreciation of his lot ? If not, can damages be allowed to these defendants for injury to such a lot as a distinct lot, upon the ground that the owners have another lot which is taken ?

It seems to us, that this argument shows, that when an owner, a part of whose land is taken, asks damages for that which is taken and for the injury to -the residue, his land must be considered as a whole. And that the estimating of the value by dividing it into parcels is not the correct method. It must be distinctly understood that, in saying this, we do not mean that one who expresses an opinion may not consider all the possibilities, including the right and opportunity of the owner to divide and cut up a large tract into lots. But we mean that it is inconsistent for an owner to treat his land as several distinct lots for the purpose of increasing the damages, and yet ask, that all these lots shall be considered as one tract from which the railroad has taken a part.

It is very plain, that to make a map of a tract of land and lay out streets thereon does not' add in the least to its value; any more •than it would to mark out .churches and school-houses on the lots themselves. The defendants cite Henderson v. New York Central Railroad Company (78 N. Y., 433), to show that they are entitled to the diminution of value'of the land considered as city lots. But that case is quite different. Williams had laid out and opened Washington street and had dedicated it to the public and the city had accepted and occupied it. (S. C., sub. nom. Williams v. N. Y. C. R. R. Co., 16 N. Y., 97.) The city permitted the railroad to lay its track in the street, without the consent of Williams. And it was held that he was entitled to recover for the damages in appropriating the street and injuring his adjacent land, every lot of which extended to the center of the street. Williams had in fact sold the lots, reserving his right of action. No question, such as is above stated, is discussed in that case; but the principle is recognized that the estimate should be what will be the effect of the proposed change on the market value of the property. (Troy and Boston R. R. Co. v. Lee, ut supra.)

It may be that a railroad passing diagonally through a tract will injure it more than it would if it passed through at right angles.. And, far from denying, we affirm the rule of estimate in Black River and Mohawk Railroad Company v. Barnard (ut supra). And see Presbrey v. Old Colony and N. Railroad Company (103 Mass., 1). One element of valuation in respect to the whole property, and in respect to the residue, may be, in a proper case, the facility or the difficulty of division; if the land is, at the time,, valuable for city lots. But the mere hopes of an owner that his. field may one day be built upon, are not to be considered; unless the probability of such an event, in the public mind, has in fact affected the “fair marketable value,” at the time of the proceeding.

There is another erroneous method which has been followed in these proceedings. The inquiries of witnesses have been like this: What is the compensation which ought to be made for the appropriation of this land, including the depreciation to such of it as is not taken ? ” This mode really puts the witness in the place of the commissioner. He might as well be asked, how much ought the commission to allow the owner. A witness testified that he estimated the land taken, estimating by lots, at $13,100, and he estimated $12,300 as the depreciation of land not taken. On what he based that estimate of depreciation does not appear. The true inquiry (as only a part of , the defendant’s land was taken) is that above pointed out: what is the fair marketable value of the whole; what is the fair marketable value of the property not taken ? If the questions had been limited with some strictness to those points, there would not perhaps have been the extraordinary variance ,of estimates. Statements of opinion are uncertain enough at the best. They ought to be kept in rather strict limits; to estimates of values, not to guesses at depreciation. ( Walker v. Old Colony and N. R. R. Co., 103 Mass., 10.)

Some points are made as to exclusion and admission of evidence. As we have said in another case at this term, we do not think that .. the ordinary rules of evidence are to be strictly applied on our review, since we are to exercise a discretion. Still we think that the commissioners should have permitted an inquiry as to the cost of other lands- as to which testimony had been given, by way of comparison. There was no objection that the purchase was not recent. (Hoffman v. Conner, 76 N. Y., 121)

Some other questions are raised which we think it not necessary to examine. Upon a consideration of the whole evidence in the light of the matters above discussed, we conclude in our discretion to set aside the award and to direct a new appraisal by other commissioners.

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

Award set aside, and new appraisal ordered, by new commissioners.