text:
    Charles Holmes, App'lt, v. Bessie L. Gilman, Impl'd, Resp't.

      (Court of Appeals,

      Filed June 6, 1893.)

      1. Partnership—Application op assets by partner to pay life insurance premiums on his own life.
    One G. was the managing partner of the firm of L. & Co., and for several years rendered stalements to the other members of the firm showing large assets, whereas the firm was insolvent through G.’s having w¡ ongfully appropriated large sums of money to his own use. Upon G.’s death it was found that he had insured his life in his wife’s favor for a large amount, all the premiums having been paid out of the firm funds. Held, that the moneys which procured the insurance were trust moneys, and, although invested in the policies, were subject at the very moment of such investment to the right of the owner of the funds to follow them into whatever change of form they might assume, and to claim the thing into which they were changed as if it were the original fund.
    2. Same.
    Although partners do not, in the strict sense of the term, occupy the position of trustees towards each other and towards the firm funds, yet the position is one of a fiduciary nature, calling for the maintenance and exercise of the greatest good faith between them. Such a relationship authorizes the same remedy on behalf of the wronged partner as would exist against a trustee, strictly so called, on behalf of a cestui que trust.

    Appeal by the plaintiff from an order of the general term of the supreme court of the first department, which reversed upon the facts, as well as the law, so much of a judgment entered upon the report of a referee as was in favor of the plaintiff, and granted a new trial of the issues involved before another referee.
    The action was brought for the purpose of having an account taken of all of certain moneys alleged to have been wrongfully abstracted from a partnership by one Arthur G. Gilman, who was one of the partners, and invested by him in certain policies of insurance in favor of his wife and children. The complaint asked also that the amount of the insurance money collected on such policies might be impressed with a trust in favor of the plaintiff, who was one of the partners in such firm, and the assignee of the other members, excepting Gilman, and that the defendant, the Union Trust Company (with which the moneys collected on the insurance policies had been deposited), might be directed to pay such moneys over to the plaintiff. Other relief was asked which was appropriate to the case stated in the complaint. The answer denied the chief allegations contained in such complaint, and upon the issues thus raised the parties proceeded to trial before a referee. The following are the material facts: In December, 1880, Arthur 0. Gilman became a member of the firm of J. II. Labaree & Co., dealers in teas and coffees in New York city, and continued such member until his death, which occurred, suddenly, on the 15th of December, 1890. During all this time he was a trusted member of the firm, and practically had exclusive charge of its office affairs, which included the management of the firm bank account, and the making of all notes and other paper issued in the business of the firm. For several years prior to his death he had1 prepared semiannual statements purporting to show the financial condition of the firm, and these statements he had rendered to its different members. The last one had been rendered as of the date December 1, 1890, and showed the firm with assets exceeding liabilities by nearly the amount of $200,000. This statement was received by the plaintiff (who resided in Cincinnati) about December 11, 1890. For some reason, which is not made plain by the proof; and soon after .the above date, the members of the firm commenced an examination as to its condition, and the examination was not concluded until after Gilman’s death, when it was discovered that the firm was insolvent by more than $36,000.
    Further investigation brought to light the fact that Gilman, commencing in the year 1882 and continuing down to his death, had wrongfully and fraudulently taken from the assets of the firm large sums of money, which he had wrongfully appropriated to his own use. By reason of this dishonest conduct on the part of Gilman the firm was, in December, 1890, insolvent instead of having a surplus of nearly $200,000, as shown by his last statement The amount wrongfully taken by him was over $220,000, and it was done by means of false entries in the books of the firm spread over the period of about eight years.
    There were found among his papers in the safe at the office of the firm four policies of insurance upon his life, one for $5,000, issued and dated March 9, 1880, and three other policies, aggregating $45,000, and issued between the dates of April, 1884, and January, 1888. Also two certificates of his membership in a benefit association, one dated in August, 1881, and the other in January, 1885. Each of the four policies was issued on Gilman’s application made in the name of Bis wife, and each was in terms payable to her. The certificates were also issued on his application signed by him, in which he stated he desired his death loss to be paid to his wife. It does not appear that any of the premiums upon any of the policies were paid by Mrs. Gilman, or with funds provided by her, or that she had any knowledge of the existence of the policies prior to her husband’s death. All of the premiums on the above-mentioned policies, aggregating about $4,000, were paid by Gilman out of the firm funds, and the premiums which fell due after the year 1882 on the above-mentioned $5,000 policy were also paid from such funds.
    When the firm was discovered to be insolvent the plaintiff provided funds for the payment of its debts and the continuance of its business.
    The policies of insurance having been collected and paid into . the trust company, the plaintiff and the defendant, Mrs. Gilman, each claimed the right to recover the whole sum, amounting to over $56,000. The refree awarded the above mentioned $5,000 policy, which was dated and issued in March, 1880, to the defendant, subject to the lien of about $1,000 of premiums becoming due. subsequent to 1882. and paid by Gilman out of the funds of the firm. The policy itself was taken cut prior to any conversion of firm funds, and the premiums thereon prior to 1882 were paid by ■Gilman out oí his own funds. The policies aggregating $45,000 were obtained and maintained, as the referee finds, from the funds -of the firm, which the evidence traces and identifies as thus invested. The referee, therefore, awarded all the moneys collected on those three policies to the plaintiff. He awarded to the defendant, Mrs. Gilman, the amounts of the two certificates of insurance in the benefit associations, on the ground that the plaintiff had failed to show that they had been either procured or maintained from the funds of the firm. The defendant, Mrs. Gilman, appealed from this judgment entered upon the report of the referee to the general term, where the judgment was reversed and a new trial granted as to the amount awarded to the plaintiff. For the purpose of facilitating an appeal by the plaintiff to this court, the defendant, Mrs. Gilman, has stipulated that if the order granting a new trial be here affirmed, the judgment to be entered in her favor shall nevertheless award to the plaintiff the amount of the .aggregate premiums found by the referee to have been paid out -of the firm money, together with interest thereon from the time of their payment, and that the rest of the proceeds of the policies shall be paid to her.

      George Hoadly, for app’lt; James G. Janeway, for resp’t.

       Reversing 46 St. Rep., 110.

   Peckham, J.

It is stated in the order which reverses the the judgment herein that it is reversed upon questions of fact as well as of law. In such case it is the duty of this court to review the determination of the court below upon both questions of fact and of law. Code of Civ. Pro.,.§ 1338. A careful review of the case •convinces us that the findings of fact made by the referee are amply sustained by the evidence, and that the judgment should not be reversed on the facts. We are confirmed in the correctness of this view upon a perusal of the opinions delivered by the learned judges at the general term. We there find that the order ■reversing the judgment upon questions of fact as well as of law was formal merely, the judgment being actually reversed because the court below took a different view of the law from that adopted by the referee upon his own findings of fact.

The claim of the plaintiff to recover the moneys arising from the payments of these policies is based upon the principle which allows a cestui que trust to follow trust funds and to appropriate to himself the property into which such funds have been changed, together with the increased value of such property, provided the trust fund can be clearly ascertained, traced and identified, and provided the rights of bona fide purchasers for value, without notice, do not intervene.

The right has its basis in the right of property, and the court proceeds on the principle that the title has not been affected by the change made of the trust funds, and the cestui que trust has his option to claim the property and its increased value as representing his original fund. The right to follow and appropriate -ceases only when the means of ascertainment fail.' It is a question of title. Van Alen v. American National Bank, 52 N. Y., 1; Newton v. Porter, 69 id., 133; Ferris v. Van Vechten, 73 id., 119; Matter of Cavin v. Gleason, 105 id., 256, 260; 7 St. Rep., 13; In re Hallett's Estate, L. R., 13 Ch. Div., 696. It is somewhat akin to the principle decided in Silsbury v. McCoon, 3 N.Y., 379, -where corn was wrongfully taken from its owner- and converted into whiskey. The court held the property was not changed in the hands of the wrongdoer, and the whiskey belonged to the owner of the original material, no matter how much it had been increased m value. The case of' Pennell v. Deffell, 53 Eng. Chy., 372, 388, 389, discusses the principle as thus- stated and agrees to it.-

That a partner occupies a fiduciary position with regard to his Qopartners and the funds of the firm, and will not be permitted to make a personal profit out of the use-of such funds,- is, I think, clearly established. 1 Lindley- on Part. (2d‘ Am. ed.:)j 303’; Featherstonhaugh v. Fenwick, 17 Ves. Ch., 298; Anderson v. Lemon, 8 N. Y., 236; Mitchell v. Reed, 61 id., 123; Riddle v. Whitehill, 135 U. S., 621. Although partners do not in- the strict sense of the term occupy the position of trustees toward' each other and towards the firm funds, yet the position- is one of a fiduciary nature, calling for the maintenance and exercise of the greatest good faith between them. Such- a- relationship authorizes the same remedy on behalf of the wronged partner as would exist against- a trustee, strictly so called, on behalf of a cestui-que-trust. Per Jessel, M; R.; In re Hallett's Estate, L. R., 13 Ch. Div., 696, 712. While legally incorrect to describe the fraudulent abstractions-made by Gilman of the funds of" the firm as embezzlements, the description is harmless. It was a monsttous and gross breach of the duty he owed'the firm, and the right of. the firm to-follow the funds is not affected because the act could not be regarded in law-as an embezzlement. The right to follow tlie funds springs from the fiduciary nature of Gilman’s position with regard- to them. These general positions are not really denied by the defendant.

It is claimed, however, that the tracing and identification of the funds have not" been sufficiently proved in fact, and it is also urged that there has been an actual mingling of firm funds with the private funds of Gilman in the purchase and maintenance of the policies. I have looked carefully through the evidence upon these questions' of fact, and I think the findings of the referee are fully sustained' and that no exception can prevail on such grounds.

If these preliminary questions be decided against him, the counsel for defendant then urges that the rule clearly is, if the trust fund has become mingled with money or property of the-trustees or others, equity impresses the proceeds with a trust to an amount equal to the original trust fund, and interest, and will go no further. He then claims that the firm funds which went to the purchase of the policies and the payment of the annual premiums were mingled with the property right of the wife, called her insurable interest in her husband’s life, an(|. so the policies were not wholly the result of the use of those firm funds, and, therefore, the plaintiff can have only a lien on the policies or the moneys arising from their payment to the amount of the prem-. iurns paid with the firm funds, and the interest thereon. This is really the chief question in the case.

Where moneys have been misapplied and have been used as a portion of a larger amount which has been invested in other property, the property thus acquired does not, as a whole, belong to the owner of the moneys misapplied. It does not belong to him because it has not been purchased or acquired wholly with his money or funds, and hence it is that such property is held charged with a lien at least to the amount of the trust funds invested in it It is not necessary to here decide it, because we take another view of the facts, but I am not at all prepared to admit that under no circumstances is the cestui que trust entitled to recover back anything more than the amount of his property and interest, where there has been a mingling of funds. In case the trustee took a thousand dollars of trust funds and five hundred of his own, and purchased property which advanced in value to twice its original sum, I nave seen no case where the point has been determined that the whole increased value belongs to the trustee, and that only the original sum wrongfully taken, and interest, can be given to the cestui que trust, although it was by reason of the wrongful use of the trust funds that the trustee was enabled to realize such value. If, in such case, the cestui que trust were not allowed to at least participate proportionately in this increased value, it would appear to be a violation of the principle that the trustee cannot ever be permitted to make a profit out of the use of the trust funds. It seems to me to be a case for the application of the doctrine that the parties became co-owners of the property at the option of the cestui que trust, in the proportion which their various contributions bore to the sum total invested.

In this case, however, the defendant is enabled to claim a mingling of funds and property only by treating the right of a wife to insure the life of her husband for her benefit as a species of property which has been mingled with the funds of the firm, the result of the combination being the procurement of the policies.

We do not regard this right as property in any such light as to bring the case within the principle of the authorities upon the subject of a mingling of funds in the purchase or acquisition of other property. The right of a wife to insure the life of her husband for her own benefit is not property. It is more in the nature of a power or a privilege to make a valid contract It is a status and not a property right The common law upon motives of public policy held that there must be what was termed an insurable interest in the life which was insured or else the policy was a dangerous kind of a wager and, therefore, void.

To take a policy out of such a class it was necessary to show that the insured had some interest in the continuance of the life of the cestui que vie. Who had such an interest as to give a right of insurance was frequently a matter of some discussion and of possible doubt. It may not even now, perhaps, be said that the .precise nature, character and extent of the interest in another’s life, which shall render that life insurable, have been formally and. plainly laid down. It is said by the federal supreme court that one essential is that the policy shall be obtained in good faith and not for the purpose of speculating upon the hazard of a life in which the insured has no interest. Connecticut Mutual Life Ins. Co. v. Shaefer, 94 U. S., 457, 460.

An interest which is insurable must be an interest in favor of the continuance of the life, and not an interest in its loss or destruction. If any person could be thought to have an interest in the continuance of the life of another, it would be a wife in the lile of her husband. Judge Allen, in Baker v. Union Mutual Life Ins. Co., 43 N. Y., 283, regarded the question as decided that a wife had at common law an insurable interest in the life of her husband. Judge Andrews held to the same effect in Brummer v. Cohn, 86 N. Y., 11, 14. These cases favor the view that the statute upon the subject of the insurance of the husband’s life in favor of his wife, while it regulates, does not create the right. I do not intimate that if the statute created the right it would in any way alter its nature. That such a policy was valid at common law simply makes it clearer that it. is the nature of the relationship between man and wife that makes the policy valid and relieves it from the objection that it is a wager policy. That relationship is not property in any fair sense of the term. It creates an insurable interest in the life of another, of a nature the same as a parent has in a child or a child in a parent, that is, an interest in the preservation of the life, and not in its destruction. Being so circumstanced, a policy of insurance upon such life is not a wager policy, and is, therefore, a valid policy. It is the same question, but it may perhaps appear a little clearer when it is asked whether the power or privilege of a parent or child or creditor to-insure the life of his parent or child or debtor is property ?

A man has an insurable interest in his own life. If he take trust funds and procure such insurance, he has thereby mingled those funds with other property, i. e., with his right to insure his own life? And can it be said that the policy is the product of such mingled funds and property so that nothing but the original amount of the trust funds and interest can be recovered backfrom the estate? The fact is apparent that a policy of insurance upon a life is not a policy of indemnity. The sum named in the policy is to be paid when the insured life has ceased, no matter how really valueless such life may have in the meantime become. The power of the wife to procure insurance is not in the least unfavorably affected by the fact that insurance in her favor has already been secured. As was said by Shaw, Ch. J., in Loomis v. Eagle Life Ins. Co., 6 Gray, 396, the amount of the insurance is immaterial. The premium is computed upon the law of averages to be the exact equivalent for the risk. So if insurance had been taken out by the husband on his life in the wife’s name, she could herself take out more upon just as favorable terms and just as expeditiously as if none had been taken. No one company might desire to go above a certain amount upon any one risk, but the ability to procure further insurance is practically unrestrained. The wife has, therefore, suffered no loss by the original procurement of this insurance and its subsequent maintenance unknown to her, so long as the premiums have not been paid with her moneys or in any way from her estate. In other words, her property has not been used for any purpose. Her power to obtain valid insurance upon his life remained wholly unimpaired and unaffected by the insurance already obtained.

The fact that she had what is termed an insurable interest was only material for the purpose of upholding the validity of the insurance in question. I cannot see how it can be regarded as property in any event. That a life insurance policy has not the features of a contract of indemnity, and is not such a contract, has been unquestioned for a number of years. Rawls v. Life Ins. Co., 27 N. Y., 282; Olmsted v. Keyes, 85 id., 593.

The case of these policies is very much like that in Baker v. Ins. Co., 43 N. Y., supra, where Judge Allen said the insurance was effected by the husband for the benefit of his wife and as a provision for her in case of his death. It was there stated that the case would not be changed if the policy were regarded as having been procured by the wife, because the husband was, in truth, the actor and represented the wife, and she, in claiming the benefits of the policy, necessarily ratified and confirmed the compact as it was made, and with all its terms and conditions. Therefore, this case is to be looked at with reference to the fact that every dollar of the moneys which procured and maintained these policies in existence belonged to the firm represented by the plaintiff, and that Gilman had no more right to invest or use these funds in the manner he did than would any third person who had procured them without any right or title.

It has been said that the husband, when he procures an insurance for his wife's benefit, acts as her agent or represents her, and that she has a vested interest in the policies the moment they are delivered, by force of the statute permitting them to be made in this form. Whitehead v. New York Life Ins. Co., 102 N. Y., 143: 1 St. Rep., 344.

This is doubtless true in the case of the husband procuring the insurance with funds which belong to him or to his wife, but where the premiums are paid with moneys which in truth do not belong to him, and which the husband misapplies in so paying, and by which he violates his obligation to the true owners of the moneys thus used, the wife, in such case, must claim the policy subject to the means by which the husband procured it, and she must adopt all his methods. The moneys in the hands of the company could not be recovered back by the cestui que trust if received by the company in good faith, because it would stand in the position of a Iona fide purchaser, yet the policy itself would stand as the representative of these trust moneys, and the right of the wife would be to that extent subordinate.

This principle has, in effect, been decided in New Jersey in the case of Shaler v. Trowbridge, 28 N. J. Eq., 595.

It was there held upon almost identical facts that, there was no public policy which favored the wife at the expense of the principle that trust funds could be followed, and that no profit could in any way arise in favor of the trustee who used them. It also held that the wife could not be permitted to avail herself of the proceeds of policies paid for her by her husband with trust funds. It is true in that case the policies were originally taken out in the name of the husband and subsequently made payable to the wife, and it is urged that there is a difference in the two cases, because in the New Jersey case it was the husband’s insurable interest which was insured and then assigned, and that in this case it is the wife’s interest which was originally insured. But we hold upon the facts in this case that the taking out of the policies in the name of the wife does not alter the principle as to trust funds. The cestui que trust is entitled to follow his funds and to take the moneys or the policy at his option.

The case of Central Bank of Washington v. Hume, 128 U. S., 195, is not in point. The moneys there used were in truth the property of the husband, although he was insolvent, and he used some of his property to purchase insurance for the benefit of his wife and children.

The supreme court held that a policy of insurance taken out by the husband in the name and for the benefit of the wife made the contract a contract with the wife, and that even though the premiums were paid by the insolvent husband with moneys which, or some part of which, ought to have been used for the payment of his debts, yet if there were no fraud as between the wife and the company, the wife could hold the policy as against the creditors of the husband, except the amount which had been wrongfully used in the payment of premiums. If the amount of the husband’s estate used to pay premiums were no more than reasonable and moderate under the circumstances, it was further held that the creditors could not recover back the moneys so paid for them, although the husband was, at the time of their payment, insolvent. It was said the interest insured did not belong to the husband or his creditors; that the contracts were not payable to-the husband, his representatives or his creditors; that no fraud on the part of the wife, the children or the insurance company was shown or pretended; and that there was no gift or transfer of the debtor’s property, unless the amounts paid for premiums were to be held as excessive.

That is a very different case from the one under consideration. It was no trust fund (within the meaning of that term when used to authorize the following thereof) which went to pay for the policy in that case. The moneys belonged to and were the property of the husband. They might, under certain circumstances,be reached in proceedings after judgment and return of execution, but the title was in the husband and he used his own property to procure the insurance. Having done so, the policy thus procured became a contract with the wife and her insurable interest in her husband’s life was thus made effectual. The creditors could not follow the moneys into other property and demand such property. No principle of following trust funds was involved.

In this case, however, there is the iact which alters and colors the whole transaction and is fundamental and controlling in its nature, and that fact is that the moneys which procured the insurance were trust moneys,and although invested in the policies, they were subject at the very moment of such investment to the right of the owner of the funds to follow them into whatever change of form they might assume, and to claim the thing into which they were changed as if it were the original fund. In the case in the Federal court the whole matter was discussed with reference to the violation of the statute of Connecticut, based upon the statute of Elizabeth, 13 Eliz., ch. 5, prohibiting the transfer of the property of an individual in fraud of his creditors. We have a statute to the same effect 2 R. S., 137, § 1. The learned chief justice said that the statute was passed to prevent debtors from dealing with their property to the prejudice of their creditors, but dealing with that which creditors, irrespective of such dealing, could not have touched, was within neither the letter nor the spirit of the statute. This was spoken of the insurable interest of the wife. And it was spoken in regard to creditors as that term is generally used. In this case it is not in the simple character of a creditor of Mr. Gilman', or of the defendant, Mrs. Gilman, that the plaintiff asks relief. He seeks the aid of a court of equity to enable him, in the character of a cestui que trust, to follow his property which was wrongfully converted by one bearing towards him the obligations of a trustee, and by such trustee invested in these policies, and such cestui que trust now asks in substance for his own property, or for the property into which his trust funds were wrongfully converted, and we think he has the right to recover the property which represents and stands in the place of the original trust fund.

The case in the federal court is not at all parallel, and is, therefore, no authority against our contention. Whether at common law or under the provisions of our statute, the procurement of policies of insurance in the wife’s name, under the facts developed in this case, does not prevent the cestui que trust from following and claiming the trust funds or their proceeds, if the proceeds of these policies had been greater than the whole amount of the indebtedness of the husband to the cestui que trust, arising out of the husband’s breach of trust, we do not decide what might in equity be the different rights of the wife and such cestui que trust in the balance, or whether any different rule could be logically applied. The husband in this case converted over $200,000 of what stood in the nature of a trust fund, and the plaintiff recovers only a little over one-fourth thereof in case the judgment on the referee’s report be affirmed.

We simply decide the case now before us. As to other questions discussed in the defendant’s brief we have carefully considered them, and we think there was no error in the result arrived at by the referee.

The order of the general term is, therefore, reversed and the judgment entered upon the report of the referee is affirmed, with costs to the plaintiff at general term and in this court.

All concur.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    Lucius Gleason, Resp't, v. Fannie M. Hamilton, App'lt.

      (Court of Appeals,

      Filed June 6, 1893.)

    Foreclosure—Alteration of mortgage.
    The alteration of the terms of a mortgage made by an attorney who had no power as agent of the mortgagee to make such alteration, of which alteration the latter was wholly ignorant until the commencement of the action of foreclosure, has no effect to bind the mortgagee, and he can enforce the mortgage as it was originally executed.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment of foreclosure and order denying new trial.
    Action for foreclosure of a mortgage for $30,000. The condition in the mortgage as recorded was as follows : “ This grant is intended as the security for the payment of any and all notes made by the El Oro Mining Company, and indorsed by William T. Hamilton and William N Thompson, and now held and owned by the party of the second part; and of any and all renewals of said notes; and also to secure said second party from all loss by reason of his liability as indorser upon any and all notes made by said El Oro Mining Company, and indorsed by said Hamilton and Thompson, and any and all renewals thereof; also any and all other notes or drafts made or indorsed by said Hamilton, now or hereafter owned by said second party, or on which he may be liable as indorser.” Defendant in her answer alleged “that said plaintiff altered, or caused to be altered, said mortgage in a material part after her signature was affixed thereto, and he had obtained possession thereof, by inserting at the end of the condition thereof the following words: “ Also any and all other notes or drafts made or indorsed by said Hamilton, now or hereafter owned by said second party, or on which he may be liable as indorser.” Said clause was inserted in said mortgage without the knowledge, request or procurement of the plaintiff after said mortgage had been executed and delivered; and plaintiff did not learn of its insertion until after the commencement of this action.

      William G. Tracy, for app’lt; Louis Marshall, for resp’t.

       Modifying 45 St. Rep., 491.

   Peckham, J.

in order to sustain this judgment it were necessary to maintain the finding that the mortgage was reaclcnowledged, and thus assented to by the defendant after the alteration was made, we should be unable to do it.

We think the case is wholly without evidence to sustain sucti finding. There is nothing to sustain it but the alleged promise of the husband of defendant that he would have it reacknowledged, and the declaration of the notary out of court that he had taken a reaclcnowledgment of the mortgage. It may be assumed that Mr. Doheny supposed it had been reacknowledged, and that he is correct when he says the notary told him that it had been. The declaration of the notary made out of court did not bind the defendant in any way, and was not competent evidence against her for the purpose of showing the fact of reacknowledgment. When the alteration had been proved, and it appeared to be a material one, the burden rested upon the plaintiff of showing that the alteration had been made with the consent of the defendant, and that the mortgage had been thereafter reacknowledged. Tillou v. Ins. Co., 7 Barb., 564; Acker v. Ledyard, 8 id., 514.

There was no proof whatever of such assent or reacknowledgment.

Striking out such finding and also the verdict of the jury upon the same proposition, there yet remains enough in the case to justify and demand our affirmance of the judgment

We ought not to reverse it and send the case back for a new trial when there is sufficient evidence, wholly uncontradicted and perfectly credible, to prove beyond any doubt that the plaintiff ought to recover. The plaintiff was wholly ignorant of the alteration attempted to be made in the mortgage, and so remained until after the commencement of this action. The action itself is brought to foreclose thp mortgage for non-payment of paper which, confessedly, it was originally given to secure. The attorney, who wrote in the addition to the mortgage as it originally was executed, had no power as agent of the plaintiff to make any alteration in the instrument by which its validity should be avoided. While the high character of the attorney who directed the addition might render it entirely plain that there was no intention of making any fraudulent alteration, and while the evidence seems to pretty clearly show there was not, in fact, the slightest wrongful intent in directing the alteration, and that it was done for the purpose of thereafter securing the assent of the defendant to the alteration, yet no such assent was secured, and this act of the attorney for the plaintiff cannot properly, as we think, operate as if it had been an alteration made in a material part of the mortgage by the plaintiff himself, or by his attorney or agent, with his knowledge, or by his authority expressed or implied.

The act of the attorney did not and ought not to bind the plaintiff in this case.

Many cases have arisen since the decision of Pigot's Case, 11 Rep., 27, where it was held that a material alteration made by a stranger to a deed, and without the privity of the obligee, did, nevertheless, invalidate the instrument. As late as the years 1843 and 1844, this decision was treated with respect by the English courts. Davidson v. Cooper, 11 M. & W., 778, 798; S. C., in Exchequer Chamber, 13 id., 343.

But there has been, since that period, a departure from this rule even in England, see Aldous v. Cornwell, 3 Q. B., L. R., 573, A. D. 1868, while in our state the cases referred to in the opinion delivered in the general term in this case, and those cited in the briefs of counsel before this court, show that when an alteration is not made by a party to the instrument and in a material mat'ter, the alteration is of no effect, and the original validity of the instrument remains. Casoni v. Jerome, 58 N. Y., 315, 321; Smith v. Kidd, 68 id., 130, 141; Martin v. Ins. Co., 101 id., 498; Town of Solon v. Bank, 114 id., 134; 23 St. Rep., 138.

In Vermont the same rule obtains. Bigelow v. Stilphens, 35 Vt., 521.

So, also, in other states. Robertson v. Hay, 91 Pa. St., 242; Hunt v. Gray, 35 N. J. Law, 227; Nickerson v. Swett, 135 Mass., 514; Brooks v. Allen, 62 Ind., 401.

Upon this view of the character and effect of the alteration, we think it clear that the judgment ought to be affirmed in spite of the error contained in the finding alluded to. The ground upon which we place our affirmance is wholly unaffected by the evidence or finding in regard to a reacknowledgment, or by any alleged errors in the admission or rejection of evidence. It is based upon controlling facts in the case, which are not substantially denied, and which in any event are proved by overwhelming evidence.

Upon the ground that the plaintiff was not in any manner responsible for the attempt, unknown to him, to enlarge the liability of the mortgagor by the proposed alteration, and because the plaintiff seeks only to enforce the mortgage as it was originally executed, we affirm the judgment appealed from.

Judgment affirmed, with costs.

All concur, except Andrews, Ch. J., not voting.


author: O'Brien, J.

text:
    Phoebe J. Hogan, App'lt, v. Daniel Kavanaugh et al., Resp'ts.

      (Court of Appeals,

      Filed June 6, 1893.)

    Decedent’s estates—Cannot be settled in an action in equity.
    A court of equity is not the tribunal appointed by law to administer upon the estates of deceased persons, and a judgment in an equity action which appropriates the real estate of the decedent to the payment of debts without the statutory proceedings having been previously taken in the surrogate’s court to ascertain who the creditors are, and the amount and validity of the debts, is improper.
    Appeal from judgment of the supreme court general term, fifth department, affirming judgment for defendants.

      William H. Henderson, for app’lt; J. G. Record and W. Woodbury, for resp'ts.

       Modifying 45 St. Rep., 940.

   O'Brien, J.

The judgment in this case has virtually settled and closed up the estate of a deceased person without administration or any resort whatever to the procedure prescribed by statute for the proof of debts and payment thereof from the personal estate or, if insufficient, the sale of the realty for that purpose. An action in equity, in which both sides are actors, has been substituted for the regular and orderly proceedings under the statutes for the settlement of the estates of deceased persons. It appears that in September, 1864, Edward Howard died, leaving a will and codicil which, in January, 1866, were duly proved and admitted to probate. Ho executor was named in the will or codicil, and no administration with the will annexed or otherwise was ever applied for. The entire use and control of the property, both real and personal, was given by the will to the widow during her natural life, and legacies were given to his children, of whom the plaintiff' is one. The legacy to the plaintiff was modified in some respects, by the codicil, bearing date April 21, 1864, and her claim, which is sought to be enforced in this action, is there expressed in the-following language of the testator: “Instead of giving an equal-share to all the children, I only will Phoebe Hogan and Phila Hogan five hundred dollars each, if there is that for them when I. and my wife get done with the property, but they are not to have airy thing until I and my wife get through with the property; and then if there is anything left after paying Phoebe and Phila Hogan their five hundred dollars each, the remainder I will to George-M. Howard, my son.” Another daughter was the wife of the defendant, Kavanaugh, and the codicil states that he had advanced to her $500, but makes no bequest to her. The estate is found to-have consisted of an improved farm of about seventy-five acres, worth about $2,500, and about $200 in personal.

It appears that the widow conveyed her life estate in the land, and the son, as residuary legatee, his interest, to the defendant, Kavanaugh, who went into possession immediately after the testator’s death, which gave him the title, subject to debts and legacies. On the 13th of January, 1872, Kavanaugh and wife mortgaged the farm to the defendant, Julia Allen, to secure the sum of $1,000, and interest thereon, which was paid to Kavanaugh, and used by him to pay a note upon which he was surety, made by the testator, and as to which there is a dispute as to whether it was in fact the debt of the testator or the son-in-law, and the testator in his will described the note as one “ that he had signed with his son-in-law.” The interest on the mortgage was paid by the mortgagor to January 13, 1890, but the principal remained unpaid. It is found that Kavanaugh himself paid the balance due on the note, amounting to $300, and also the legacy of $500 to the daughter, Phila Hogan, and he was treated in this action as the equitable assignee thereof, and both he and Mrs. Allen as the equitable assignees of debts of the testator, and representatives of creditors as to the claims paid by them or with funds furnished by them. The plaintiff’s action was to procure the judgment of the court declaring her legacy to be a lien or charge upon the land, and directing a sale thereof to pay it. The referee held that it was, but he also held that the mortgage was a prior charge, as well as the claims of Kavanaugh for the money advanced by him to apply upon the notes, and interest thereon, besides his costs in this action. He directed a sale to pay these claims with the expenses first, then the two legacies out of the surplus, if sufficient for that purpose, and if not then pro rata. Whether a legacy is a charge upon realty is always a question of the testator’s intention, and that appears from the will in this case. There can be no doubt that the testator intended to charge these legacies to his daughters upon the land within the established rules applica ■ ble to the question as settled by adjudications. Le Fevre v. Toole, 84 N. Y., 95; Hoyt v. Hoyt, 85 id., 142; Scott v. Stebbins, 91 id., 605; McCorn v. McCorn, 100 id., 511; Morris v. Sickly, 133 id., 456; 45 St. Rep., 735.

That part of the judgment, therefore, which declares the legacies to be a charge upon the land is correct, nor can there be any objection to the maintenance of an action in a court of equity to procure a judgment for that purpose, though it might not be proper in all cases and under all circumstances to direct a sale of the land for their payment. The primary fund for the payment of debts and legacies is the personal estate, and the land cannot be resorted to for that purpose until the personal is exhausted in the ordinary course of administration, and under the authority of the statute. Kingsland v. Murray, 133 N. Y., 170; 44 St. Rep., 515.

The difficulty with this case is that the judgment appropriates the real estate of the decedent to the payment of debts without the statutory proceedings to ascertain who the creditors are and the amount and validity of the debts. The defendants were made parties to this action because they were in possession of the land, and Mrs. Allen because there was a mortgage upon it in her favor upon record. They were not made parties as creditors or for the purpose of litigating the question whether they were creditors or not, and the amount and validity of their claims as such. The referee has found that there are no other creditors, and possibly that may be so. But this finding would not bind anyone hereafter who was not a party to this action and who made a claim against the estate through the regular channel of administration. An action of this character is not a suitable and appropriate proceeding for ascertaining who the creditors are, and the most that it could definitely or finally determine was as to the rights of the parties themselves. It could not decide whether others had claims or not. This is the case of a purchaser of the real estate of the testator from his devisees, who, having gone into possession, pays up such debts as he wishes, or perhaps can find, and then, without administration or any proof of these debts in the regnlar way, uses them to protect his title and possession as prior claims against legatees who have liens under the will. The claims of creditors of a deceased person are preferred to those of his legatees or devisees, for the only interest in the testator’s property that he could transmit to them was what remained after the payment of his just debts. Platt v. Platt, 105 N. Y., 488; 8 St. Rep., 77; Rousseau v. Bleau, 131 N. Y., 182; 42 St. Rep., 871.

But the right of a creditor to resort to the real estate of his deceased debtor did not exist at common law, nor was the collection of debts from the real estate ever regarded as a part of the jurisdiction of courts of equity. MacLaury v. Hart, 121 N. Y., 636; 31 St. Rep., 939. That right was conferred by statute, and it must be asserted and proved in the manner that the statute prescribes. Here the real estate of the deceased is directed to be sold for the payment of debts by the decree of a court of equity without regard to any of the statutory steps that must precede such sale in the ordinary course of administration. It is supposed that the facts found by the referee permit this to be done. He has found that there are no other debts and no other personal estate. But as there was no one made a party to the action who represented the creditors or the personal estate, the finding, as already observed, can bind no one except, possibly, the parties to the action themselves.

We will not now stop to inquire whether a party to an action of this' kind, who happens to be a creditor, can in any case assert his claim to the real estate of a deceased person in a court of equity when invited there for some other purpose, or when it is sought to charge the land with some other claim. Possibly it might be done in a case where the regular process of administration had reached the stage where real estate could be sold for the payment of debts, and an executor or administrator who could represent creditors and the personal estate was a party. It is not necessary to inquire how far and under what circumstances a court of equity would have jurisdiction in such a case. It is sufficient to say that a court of equity is not the tribunal appointed by law to administer upon the estates of deceased persons, and that part of the judgment in this case which virtually provides for the sale of the real estate of the testator for the payment of debts cannot be sanctioned without encouraging irregularities and, perhaps, abuses of the gravest kind, and which in the end might seriously affect the rights of parties interested in the estates of deceased persons. There can be no hardship in requiring creditors or their assignees to proceed in the regular way to appropriate real estate to the payment of debts. The statutory procedure is plain in itself, and obscure or doubtful questions have been solved by the decisions of the courts. O'Flynn v. Powers, 136 N. Y., 412; 49 St. Rep., 814; In re Powers, 124 N. Y., 361; 36 St. Rep., 347; Kingsland v. Murray, supra.

We have not been referred to any authority that lends any sanction to the procedure adopted in this case, and it is believed none can be found. The referee and the counsel in the case all admit in some form that it is a departure from the regular and usual method of enforcing debts and legacies. While the plaintiff’s action, in so far as it seeks to have the legacy charged upon the land, may be regular; it is difficult to see how it can be enforced by a sale without the presence on the record of the administrator of the deceased. The debt of Mrs. Allen is entitled to priority over the legacies, not by virtue of the mortgage, but only so far as she can maintain the status of a- creditor of the deceased, or the assignee in equity of some claim enforcible against his estate. Though it is quite apparent that the parties on both sides have misconceived their rights, it may be desirable to save as much of what has been done as possible consistent with their interests.

The judgment should be modified by providing for a sale of the real estate for the payment of the legacies, subject to the rights of creditors of the deceased and of persons who equitably represent creditors to be paid out of the fund before the legatees, but only after the debts have been duly established in the surrogate’s court, and such proceedings had as will authorize proceedings for the sale of real estate for the payment of the debts of the testator. The sale and execution of the judgment to be stayed until such proceedings are had, without costs to either party. The order, unless agreed upon by the parties, to be settled by a judge of this-court.

All concur.


text:
    John D. Wing et al., App'lts, v. Amos Rogers, Resp't.

      (Court of Appeals,

      Filed June 6, 1893.)

    Undertaking—Stay until return op commission.
    A commission to take the testimony of a witness in a foreign country was granted in certain actions brought by plaintiffs, and a stay granted until the return of the commission, on the giving by the defendant of an undertaking to pay any judgments that might be recovered in such actions. The commission was given to the witness, who wrote out his answers, but did not appear before the commissioner to verify them, and the commission was not actually executed or returned. About two years later the witness having returned, the stay was vacated and the witness testified on the trial. Held, that defendant was liable on the undertaking, as the return of the witness was equivalent to the return of the commission.
    Appeal from judgment of the supreme court, general term, first department, reversing judgment recovered upon a verdict directed by the court, and granting new trial.

      Paul D. Cravath, for app’lts; R. Floyd Clarke, for resp’t.

       Reversing 42 St. Rep., 331.

   O'Brien, J.

The plaintiffs recovered judgment against the defendant, as surety, upon an undertaking given to stay proceedings in an action pending, in behalf of the plaintiffs, against one Rowland H. Hazard. The general term has reversed the judgment, and the appeal brings that decision here for review. It appears that there were three actions, and that two of them were consolidated, and that the undertaking applied to the action as consolidated and another. In order to ascertain the consideration, scope and purpose of the instrument sued upon, it will be more convenient to give it here in full, with its recitals:

“ Whereas, Rowland H. Hazard, the defendant in the above-entitled actions, on December 7th, 1888, obtained from this court an order in both of said actions, staying the trials thereof until a return of a commission issued to take testimony of Jared E. Lewis, as a witness for the defendant, provided that the said defendant should give an undertaking with sufficient sureties conditioned that said defendant will pay any judgments that may be recovered against him in these actions ; and
“Whereas, the defendant has given an undertaking executod by the American Surety Company, conditioned to pay any judgments that may be recovered in these actions, or either of them, up to the amount of $7,500; and
“ Whereas, Amos Eogers has given a bond for any amount which may be recovered against the defendant, which bond, upon the execution hereof, is to be considered canceled and null and void;
“ Whereas, the plaintiffs have stipulated to accept as sufficient the undertaking by the American Surety Company and thisymdertaking:
“ Now, therefore, in consideration of the premises, and one dollar to me in hand paid, I, Amos Eogers, of No. 45 Broadway, New York city, do, pursuant to the above order and stijiulation, undertake that the said Bowland N. Hazard will pay any judgments that may be recovered against him in these actions, or either of them, over and above the sum of $7,500, secured to be paid by the American Surety Company, as aforesaid.
It being understood that my liability hereunder is limited to the amount óf the said judgment or judgments with interest, less $7,500.
“ In witness whereof I have hereunto set my hand and seal, this 12th day of April, 1889.
“ Amos Eogers. [seal.]”

This instrument was executed and delivered in pursuance of an order of the court, entered on the 7th day of December, 1888, upon the application of the defendant in the actions, and which directed, among other things, that a commission issue out of and under the seal of the court, to a commissioner named, at Santiago, Chili, to examine one Jared E. Lewis as a witness, in behalf of the defendant, upon interrogatories to be annexed. It was further ordered that the trial of the actions be stayed until the return of the commission, provided that the defendant, within ten days from the date of the order, give and duly file an undertaking, with one or more sureties, to be approved by the court, conditioned that the defendant will pay any judgment or judgments that may be recovered against him in the actions or either of them. After the execution and delivery of the undertaking the interrogatories were settled and the commission issued. The witness was a resident of New York, but sojourning at Santiago, where he was from early in December, 1888, to about the middle of September, 1889. The commission was received by the commissioner, who handed or sent it to the witness for the purpose of enabling him to write out his answers to the interrogatories, which he did and then returned it to the commissioner, but he never appeared• before the commissioner to sign or verify the deposition, and thus the commission was never actually executed or returned. In the month of May, 1890, the witness returned to New York, and on the 8th of August following the court, upon the plaintiffs’ application, vacated that part of the previous order which stayed all proceedings until the return of the commission.

In November the action was brought to trial and judgment rendered for the plaintiffs therein, and executions issued and returned unsatisfied. The American Suretv Company paid and this action was brought to recover from the defendant that part of the judgment covered by the terms of his undertaking. At first the defendant in the actions referred to attempted to comply with the order for a stay by an undertaking for the whole liability executed by the defendant. But that bond was never approved, and subsequently it was arranged to accept bonds with separate liability for distinct parts of the demand from the surety company and the defendant, and thus the instrument in question was made and delivered. On the trial of this action both sides asked the court to direct a verdict, thus eliminating from the case all questions of fact. The trial judge held that the plaintiffs were entitled to„ recover, and directed a verdict in their favor. The ground upon which the learned general term reversed the judgment and, in effect, held that the direction should have been in favor of the defendant, was that the consideration for and condition of defendant’s liability was the stay of proceedings until the return of the commission, and as "it had not been returned and the stay had been vacated, the defendant was not liable. When an action is brought against sureties upon a bond or undertaking given in an action, or upon appeal, the validity and force of the instrument depends upon its efficacy in performing the office or accomplishing the end or result contemplated by the parties at the time it was given. An instrument, though properly executed and filed, which for any valid reason is disregarded or fails to secure the stay or accomplish the object for which it was given, is virtually without consideration and cannot be enforced against the sureties. When an undertaking on appeal to stay proceedings upon the judgment appealed from fails for any legal reason to secure the stay, and the judgment is enforced as if the bond had not been given, the sureties cannot be held liable.

The cases of Hemmingway v. Poucher, 98 N. Y., 281, and Collins v. Ball, 31 Hun, 187, illustrate this principle, and that the role there sanctioned is sound and just cannot be questioned. The defendant in this case is liable if the instrument which he executed secured for his principal the advantages and benefits which the court had in view when granting the order, and which were fairly within the contemplation of the parties. This leads us to inquire what it was that Hazard wanted when he applied to the court for a commission with a stay. Clearly what he wanted was the testimony of an absent witness. The main purpose of the order was to enable him to procure this testimony, and the stay was an incident made necessary by the principal purpose. Surely this stay was not asked or granted for the mere purpose of delay, but in order to enable him to have the commission executed and returned, and thus procure testimony material to his defense. He certainly had all the benefits of that stay from December, 1888, when it was granted, until August, 1890, when it was vacated. The stay was not vacated until the witness had returned to New York, and the commission could not then be executed, and, moreover, he was then within the jurisdiction of the court, and the party could procure his attendance at the trial. So that the instrument in question operated to stay all proceedings in the case until the witness returned, to New York, when the party desiring his testimony could procure his attendance in open court. In view of this, it cannot be said that the undertaking failed to secure the end and object which the court and the parties had in view, and if it did, it is supported by a good consideration. On its face its conditions are simply that if the plaintiff in the actions recovered, the surety would pay the judgments. He did recover, and the judgments were not paid. But we have a right to look at the recitals and the legal proceedings out of which it grew, in order to determine its real consideration and conditions. Looking at all these, we think it is plain that the substantial thing which the party wanted, and which he obtained, was not so much the return of a commission, executed. or not, but an opportunity to procure the testimony of a witness who left South America before the commission was executed, and who returned to New York, where the trial was to be had-, many weeks before the stay was vacated.

As the commission could not be executed at the place to which it had been sent, it cannot be that the rights of the obligee in the bond depended upon such an idle ceremony as the return to the clerk’s office of the blank documents, which were no longer of the slightest use to anyone. The return of the witness was equivalent to the return of the commission, and the stay until that time satisfied every condition of the bond and every substantial right it was intended to procure. Had the commission been executed and returned and on file when the motion was made to vacate the stay, the court could have suppressed it on proof of the fact that the witness had returned to nis place of residence, and could be examined by the party desiring his testimony in open court and at, the trial. Code Civ. Pro. § 910. But under such circumstances it could not very well be shown that the surety on the bond was discharged because the party was not allowed the benefit of the commission, but was obliged to procure the testimony in the regular way by compelling the attendance of the witness at the trial. There was no way that either party could compel the return of the commission. The court could only operate upon the stay, and as that was not disturbed until ample time had elapsed for the return and un til the witness himself had returned and was subject to subpoena, there is no substantial ground of defense for the surety. To insist that he is entitled to have the paper issued under the seal of the court actually returned before an action can be maintained against him on his promise, is to subordinate important rights and obligations to the most trifling and meaningless forms. If the instrument on its face made that a condition of liability, the surety could, no doubt, insist upon it, because he may stand upon the very terms of the obligation, but as we have seen it does not, nor was it the substantial end and object which was sought to be secured by the execution and delivery of the instrument.

For these reasons the order of the general term should be reversed, and that entered upon the verdict affirmed, with costs.

All concur.


author: Herrick, J.

text:
    Abram Schermerhorn, Com'r of Highways, App'lt, v. The Mount McGregor Railroad Co. et al., Resp'ts.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Railroads—Highway crossings—Change of location.
    A railroad company in crossing a highway may make a change in its location, if necessary, so long as it does not unnecessary interfere with the usefulness of the highway.
    2. Same—Presumption as to permission of the court.
    In the absence of any admission or evidence, it will not be presumed that a railroad company used or crossed the highway in question without permission of the supreme court.
    3 Same—Restoration.
    In making a crossing of the highway in question the railroad, in 1881, altered the highway by building a new road in a straight line between two points on the old road, thereby shortening it, and crossed said new road four rods from the old one. The new road was on land of the commissioner of highways, who assisted in the work. Since then the new road has been constantly used and the old one been abandoned. Held, that the old highway not having been used or worked for over six years had ceased to be such, and that after such long acquiescence by the authorities, the court would not make any' change in its location or construction.
    Appeal from judgment dismissing the complaint on the merits.
    Action to compel the restoration of a highway to its former state, or to such a state as not to unnecessarily impair its usefulness.
    In 1881 the defendant railroad, in making a crossing of the highway in question, constructed a new road in a straight line between points on the old highway, thereby shortening said highway, and crossed the same about four rods from the point where it would have crossed the old one, and further up the mountain.
    The following is the opinion of the court below:
    Stover, J.—The complaint in this action alleges that the defendant constructed its road over a highway in the town of Wilton “ in such a manner, and left said highway in such a condition as to render travel thereon over said railroad dangerous and inconvenient, and the said corporation did not restore said highway in such locality to its former state, or to such state as to not unnecessarily impair its usefulness as a public highway, and the same has never been restored, and the said crossing of said railroad over such highway was left by said company, ever since has been, and now is, in a condition dangerous to public travel, inconvenient, and almost impassable.”
    It will be seen that this allegation, and this is the only allegation in that regard, does not point out the particulars in which the usefulness of the road is impaired, but is a general allegation, and evidently refers to the point where the railroad crosses the old portion of the highway. The complaint seems to be framed upon the theory that the railroad company was bound to restore the old highway, and to make a highway crossing at the point where the railroad crossed the old highway.

      On the trial, it was stated by the counsel for the plaintiff that his contention was that the railroad company had no right to change the location of the highway, but should have left the highway crossing at the same point it was prior to the building of the railroad, and have constructed its road -so as to pass over the highway at that point. It appears that the route of the new portion of the highway is somewhat shorter than the old portion, which had been abandoned and not used since the construction of the railroad. The railroad was constructed in 1881; at that time Cyrus Washburn was commissioner of highways, and owned the land upon which the new portion of the highway was built. The road was built under his direction, the railroad company furnishing the laborers to do the work, and, it must be presumed, to the satisfaction of Washburn. The new portion of the highway has been used since 1881, and it is conceded that the old portion has not been used during that period. The grade of the new portion is somewhat steeper than was that upon the old. It does not appear that it is practicable to maintain a crossing at the point where the railroad crossed the old portion of the highway.
    I thinlc the plaintiff has failed to make out his cause of action. The railroad company had the right to change the location of the highway, so long as it did not unnecessarily interfere with the usefulness of the highway. The railroad company has to judge, in the first instance, as to the manner in which the crossing of the road shall be made, and may change the location of the highway, if necessary, and the court is called upon to interfere only when the railroad company unnecessarily impairs the usefulness of the highway. The statute evidently contemplates that the usefulness •of the highway maybe somewhat impaired, but must not be unnecessarily impaired. The railroad company had the right to condemn sufficient property to change the location of the highway, but in this instance it was unnecessary. It might have obtained a deed from Washburn, or as it did with Washburn’s consent and permission, enter upon his land and build the road, thus making a highway by dedication and use, and so long as that act did not unnecessarily impair the usefulness of the highway, no one could complain. I think it is ■ quite clear that the new portion of the highway was dedicated for that purpose by Washburn, and that the public has accepted and used it sufficiently so as to constitute. it a highway. Again, if the court is to interfere in a case of this kind, the evidence should be clear as to the particulars in which the highway was unnecessarily impaired. I think it should be so specific that the court might direct the particulars in which the railroad company should proceed to restore the road. It would be idle for the court to mak,e a general direction that the railroad company should restore the highway to its former state of usefulness, unless it plainly pointed out the particulars in which the railroad company shall perform the direction of the court. I could not, it seems to me, under the evidence in this case, make such a direction. The court cannot, from the evidence, obtain a clear and well defined idea of the particulars in which the road should be improved, so that it could direct what should be done. The highway has been used for a long time, and, until within the past year or two, the evidence shows that there was no objection raised by anybody, and none prior to the time that the road went into the hands of the receiver.
    While perhaps the statute of limitations would not run in a case of this kind, yet the acquiescence for so long a period raises some presumption in favor of the defendant, and, in the absence of clear and direct evidence, this ought to prevail against those who have slept upon their rights, if they have any.
    The defendant is entitled to judgment dismissing the complaint, with costs.

      French & Smith (W. B. French, of counsel), for app’lt; C. H. Stuiges, for resp’t.
   Herrick, J.

There is nothing in the pleadings or in the evidence to show whether the railroad company did or did not procure the permission of the supreme court to use or cross the highway in question, and in the absence of any admission or evidence of the fact that such permission was not granted, the court will Hot infer that the railroad company proceeded in violation of the law, but, rather, that the law has been complied with.

The old highway not having been used or worked for more than six years, has ceased to be a highway”. Horey v. Village of Haverstraw, 124 N. Y., 273; 35 St. Rep., 360.

And the court cannot, in these proceedings, reopen it as a highway. The new road, laid out in place of the old, has been used and worked for so long, and its location acquiesced in for so many years by the town and highway authorities, that I do not see that the court should be called upon at this late day to make any change in its location or construction.

The opinion of the trial court seems to me entirely satisfactory^ and its disposition of the case correct.

Judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concur.