text:
    Anne Jay Bolton, Resp’t, v. Village of New Rochelle, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.)

      1. Municipal corporations—Liability—Nuisance.
    Municipal corporations have no immunity from responsibility for creating and maintaining nuisances,
    2. Same—Drainage commissioners.
    Chap. 201 of 1889 and chap. 220 of 1893 do not relieve the municipality from such liability.
    3. Same—Estoppel.
    The fact that a person has connected her house drain with the sewer, does not estop her from maintaining an action for a nusiance arising from the maintenance of such sewer.
    Appeal from a judgment in favor of plaintiff.
   Dykman, J.

The plaintiff is the owner of a house and lot in the village of New Rochelle, bordering on Long Island Sound. About fifty feet from the southerly side of her lot a village sewer has its outlet between high and low water. The sewage flowing from this sewer was deposited upon the flats in front of plaintiff’s property, and the odors arising therefrom were so offensive that the plaintiff’s house, in the year 1892, became uninhabitable. "This action was brought by the plaintiff to recover damages resulting from the nuisance, and to obtain an injunction restraining its continuance.

Municipal corporations have no immunity from legal responsibility for creating and maintaining nuisances, and their liability for such acts as are conceded to exist in this case is settled by numerous authorities. Noonan v. City of Albany, 79 N. Y. 470; Seifert v. City of Brooklyn, 101 id. 136; Stoddard v. Village of Saratoga Springs, 127 id. 261; 38 St. Rep. 683.

In Seiferts case the authorities relied upon by the appellant for a reversal of the judgment were discussed by the court of appeals, and their inapplicability to cases of the character of that now before the court pointed out. It is unnecessary to add to what was then said by the chief judge, and we quote the following from his opinion:

“We are also of the opinion that the exercise of a judicial or discretionary power by a municipal corporation, which results in a direct and physical injury to the property of an individual, and which, from its nature, is liable to be repeated and continuous, but is remediable by a change of plan or the adoption of prudential measures, renders the corporation liable for such damages as occur in consequence of its continuance of the original cause after notice, and an omission to adopt such remedial measures as experience has shown to be necessary and proper. Wood. Hu is. § 752. While in the-present case the corporation was under no original obligation to the plaintiff or other citizens to build a sewer at the time and in the manner it did, yet, having exercised the power to do so, and thereby created a private nuisance on his premises, it incurred a duty, having created the necessity for its exercise, and having the power to perform it, of adopting and executing such measures as should abate the nuisance and obviate damage. * * * The immunity which extends to the consequences, following the exercise of judicial or discretionary power, by a municipal body or other functionary, presupposes that such consequences are lawful in their character, and that the act performed might in some manner be lawfully authorized. When such power can be exercised so as not to create a nuisance, and does not require the appropriation of private property to effectuate it, the power to make such an appropriation or create such nuisance will not be inferred from the grant. Where, however, the acts done are of such a nature as to constitute a positive invasion of the individual rights guarantied by the constitution, legislative sanction is ineffectual as a protection to the persons or corporation performing such acts from responsibility for their consequences. Radcliff v. Mayor, etc., 4 N. Y. 195.”

The fact that the sewer complained of was, in the first instance, constructed by an individual upon his own property, has no relevancy to the question before the court. The streets in the locality known as “ Residence Park ” were conveyed to the village in April, 1892, and the trustees accepted the conveyance. At the time of the commencement of this action, the sewer was a public one, and. the nuisance was being maintained by the village. The defendant was therefore clearly liable, within the rule applied in the cases cited, unless it was relieved from such liability as the result of the laws creating the board of commissioners of sewage and draining of the village. Laws 1889, c. 201; Laws 1893, c. 220. The argument of the appellant is that as, by these laws, the entire charge and control of the sewers were given to commissioners, and they were charged with the duty of their maintenance and management, and could sue and-be sued, during the official life of such commissioners the defendant had no control over the sewers, and was not liable for a nuisance arising from the manner in which they were maintained. This contention was overruled in Re Smiddy, 47 St. Rep. 407; Ehrgott v. Mayor, etc., 96 N. Y. 273 ; Pettengill v. City of Yonkers, 116 id. 558 ; 27 St. Rep. 531.

In Ehrgotts case the court said :

“To determine whether there is municipal responsibility, the inquiry must be whether the department whose misfeasance or nonfeasance is complained of is a part of the machinery for carrying on the municipal government.”

In Pettengill’s case the court said of the board of water commissioners of the city of Yonkers that it was not an independent body, acting for itself, but a department of the city, and one of the instruments of the municipal government. Such is the legal character of the commissioners of sewers and drainage of the village of New Rochelle. They are not independent officers, acting for themselves, but constitute one of the instruments of the municipal government of the defendant. While created by special statute, they perform a duty which is primarily charged on the village, and they exist solely for the benefit of the village, and have no duty to perform disconnected with it. All property that they may purchase or acquirers taken in the name of the village. All money that they expend is derived from the village, either by taxation of its inhabitants or through the sale of its municipal securities. They are required to report annually to the taxpayers, and at the close of their official term, to turn over to the village all property and funds in their possession. In everything they do they exercise municipal power and perform municipal duties, and for their acts of misfeasance or nonfeasance the village, in its corporate capacity, is liable. It is of no importance, therefore, whether the nuisance existing at the mouth of the sewer in question is primarily due to the neglect of the commissioners or to the trustees of the village; in either case it is legally the creation of the defendant; and it is liable for the result.

The point that the plaintiff, having connected her house drain with the sewer, is debarred from maintaining this action, has no foundation in reason; and is not sustained.

The judgment is right, and should be affirmed, with costs.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Charles A. C. Beller, Resp’t, v. Sarah Jane Antisdel et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Costs—Partition—Mortgaged land.
    When, in an action of partition, a mortgagee is brought in as a party defendant and it is proposed to pay such mortgage from the proceeds of the sale of the property upon which the mortgage is a lien, but the mortgage covers other land than that sought to be partitioned and the relative value of the different parcels covered by the mortgage is not shown, the proceeds of the sale of the premises covered by the mortgage should be first applied in satisfaction of such mortgage before any part thereof shall be applied in payment of the costs of the partition action.
    Appeal from a judgment in favor of plaintiff.

      A. B. Coons, for app’lts; I. W. Winne (G. M. Palmer, of counsel), for resp’t.
   Per Curiam.

We think, as a general rule, to which, of course, there may be exceptions, that when, in an action of partition, a mortgagee is brought in as a party defendant, and it is proposed to pay such mortgage from the proceeds of the sale of the property upon which his mortgage is a lien, the costs of such partition should not be deducted from the proceeds of the sale before applying the same in extinguishment of the mortgage. Unless the mortgagee has unnecessarily increased the costs and expenses of litigation, there is no reason why he should be compelled to pay any portion of the costs of the action in partition, which he might be compelled to do if the costs of such action were to be deducted from the proceeds of the sale first, and the remainder applied to the satisfaction of his mortgage. There is some difficulty, however, in applying that rule m this case". It is contended that the mortgage is a lien upon some ten acres of land in addition to that sought to be partitioned. This does not clearly appear from the case, and the appellants have excepted to those findings of the referee from which it might be inferred that there is more property covered by the appellants’ mortgage than that sought to be partitioned ; but in the appellants’ brief it is practically admitted that such mortgage does cover land in addition to that sought to be partitioned, and to which appellants could resort to make up any deficiency which might, arise from applying the proceeds of that portion of the land involved, covered by the mortgage, to the payment of their mortgage, after deducting a pro rata share of the costs in this action from snch proceeds. The relative value of the different parcels of land covered by the appellants’ mortgage nowhere appears in the case, and does not seem to have been found or considered by the referee or by the special term; so that we find ourselves somewhat embarrassed as to the proper disposition of the matter; but it seems to us that the judgment entered should be so modified as to provide that the proceeds of the sale of that part of the premises described in the complaint which are covered by the mortgage of the appellants be first applied in satisfaction of said mortgage before any part thereof shall be applied in payment of the costs of this action, or, if the respondent so elect, the decree may be so modified as to provide for the sale of such premises, subject to the lien of the appellants’ mortgage. As so modified, the order appealed from is affirmed, with $10 costs and disbursements of this appeal, to be paid from the proceeds of the sale of the, premises described in the complaint.

All concur.


text:
    Effie B. Oliver, App’lt, v. Margaret R. French et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 26, 1895.)

    Appeal—Be argument.
    Beargument, on the ground that the court on appeal considered questions not raised on the trial, will not he granted, where such questions were, without objection, discussed on appeal by counsel.
    Motion for reargument.

      Hale, Bulkley & Tennant, for app’lt; A. Frank B. Chace, for resp’ts.
   Per Curiam.

It is urged that a reargument of this case should be had, for the reason that the opinion handed down by this court discusses the defective notice of motion, and the case does not show that the objection that it was defective was taken before the special term. On the argument before this court, the objection was taken orally, and elaborately discussed by respondents’ counsel in his printed points, and no objection was made that that question was not raised in the court below, which is probably the reason of the discussion of the defective notice of motion in the opinion handed down by the court. But, whatever led to that discussion in the opinion, the motion was also considered upon its merits, and the conclusion of the special term was fully concurred in by this court. On this motion for a reargument, the respondents" show by affidavit, which is denied by affidavit on the part of the appellant, that the specific objections that the moving papers were defective was made at the special term, before the argument upon the merits. But there seems to be another and almost insuperable objection to this court’s granting any relief on the appeal from the order in question. Ño specific error in the judgment being stated, either in the order to show cause, which was in this case the notice of motion, or in the affidavit upon which it was granted, a reversal of the special term order by this court would furnish the moving party no relief, unless an order modifying the judgment was made by this court on appeal; and, in the absence of any specific designation in the moving papers of the particular irregularity complained of, it is difficult to see how this court could, from an inspection of the voluminous record, satisfactorily correct the supposed irregularities which the appellant claims existed, without having the attention of the court directed specifically to them, either in the notice of motion, or the affidavits on which the motion was made. The motion for a reargument is denied, with $10 costs and printing disbursements.


author: Martin, J.

text:
    David B. Ackley, Resp’t, v. George H. Welch et al., Impleaded, etc., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February, 1895.)

    1. Appeal—Objections.
    Where an objection to copies of letters that they were not the best evidence, is not taken upon the trial, it cannot be raised for the first time on appeal.
    2. Same.
    A general objection to a question or to the admission of letters can only be considered as applying to the competency or materiality of the point sought to be proved, and not to the competency of the witness or the evidence.
    S. Evidence—Letters.
    Proof that letters are mailed to a person, postpaid, raises a presumption that they were received by him and, until repelled by proof, is sufficient evidence of the fact.
    Appeal from a judgment in favor of plaintiffi

      John F. Dorthy, for app’lts ; F. L. Brown, for resp’t.
   Martin, J.

The referee found that the contracts set forth in. the complaint herein were duly made and executed by the parties-to this action; that the provisions of all of said contracts were complied with and fulfilled on the part of the plaintiff, but that the defendants failed to fulfill them upon their part; and that, by-reason thereof, the plaintiff sustained damage in the sum of $459.92. After a careful examination of the testimony given upon the trial, we are satisfied that the conclusions reached by the referee were sustained by the evidence, and that the judgment herein should not be disturbed unless some error has been committed in the reception or rejection o'f evidence.

On the trial the plaintiff, while being examined as a witness, was shown a letter written by him to the defendant Ritter, January 81, 1893. He testified that it was his signature to the letter; that he mailed a duplicate of it to the defendant Ritter at 84 West Broadway, New York City; that there was a card upon the envelope in which it was enclosed; and that he did not receive it back ; and that both the duplicate sent and the one retained were signed by him. The letter was offered in evidence by the plaintiff, The defendant objected to it, on the grounds that it was not properly proven, and incompetent; also, as “incompetent and immaterial, and not properly made for its .reception.” The letter was received in evidence, and the defendants excepted. The plaintiff also testified that:

“ There were two of these letters. The other one (dated February 6, 1893) I signed, and addressed and mailed to W. G. Ritter, New York. On the envelope was 1 George H. Welch & Go., D. B. Ackley, Manager, 75, Arcade, Utica, N. Y.’ I wrote on myself, ‘If not called for, return after five days.’ The address was 75, Arcade Building, and, if not called for, it was to be returned to that address. It was never returned.”

Again, the letter was shown the witness, and he testified:

“ I dictated this letter. That is not the letter that was sent, and afterwards came into my possession ; that is, á carbon copy was-made,'and, I think, was sent. That is the original. The copy was sent, or the duplicate of it. - It was sent by mail, postage prepaid, and addressed to W. G. Ritter, 84 Broadway, New York City, who claimed that to be his post-office address.”

After this proof was given, the letter was offered in evidence, and objected to as incompetent, immaterial, irrelevant, and not properly proved. The case then states:

“ This letter was offered December 19,1893, and is now marked 1 Exhibit 11,’ as it was received at that time, but not marked.” When first offered, it was objected to upon the same ground as the preceding one, and received, to which the defendants excepted.

The most serious question presented upon this appeal is as to tffp Correctness of these rulings. It may be observed in passing that the letters sent and those retained were signed by the plaintiff, and perhaps -might be regarded as duplicate originals, and thus the rule preventing the introduction of a copy without first giving the defendant notice to produce the original may not have been violated in receiving .them in evidence. Totten v. Bucy, 57 Md. 446. But, be that as it may, it will be observed that the defendants at no time objected to the admission of these letters upon the ground that they were copies or not the best evidence. The only objections raised to either were that it was incompetent, immaterial, irrelevant, and not properly proved. We think none of these objections were well taken. Proof that these letters were mailed to the defendant, postpaid, raised a presumption that they were received by him, and, until repelled by proof, was sufficient evidence of that fact. Bell v. Lycoming Fire Insurance Co., 19 Hun, 238; People ex rel. Swinburne v. Albany Medical College, 26 id., 348, affirmed 89 N. Y. 635; Austin v. Holland, 69 id. 571; 2 Whart. Ev. § 1323. The letters were clearly relevant, material, competent, and properly proved. The only valid objection that could have been made to their reception, even if they were copies, was that they were not the best evidence. Having omitted to raise that objection upon the trial, we do not think it can be raised for the first time upon appeal. To entitle a party to the review of a ruling of a trial court upon the question of admitting or rejecting evidence, there must be a proper objection taken to the evidence when offered, and an exception taken to the ruling thereon. Overruling a general objection to evidence will be sustained on appeal, unless it clearly appears that there is some ground of objection which could not have'been obviated if it had been specified, or unless the evidence, in any aspect of the case, was incompetent. Daly v. Byrne, 77 N. Y. 182; Williams v. Sargeant, 46 id. 481; Tooley v. Bacon, 70 id. 34 ; Quinby v. Straus, 90 id. 664. In Stevens v. Brennan, 79 id. 254, it was held that a general objection to a question could only be considered as applying to the competency or materiality of the point sought to be proved, and not to the competency of the witness to testify upon the subject. The objections taken by the appellants to the admission of these letters related to the materiality, relevancy, and competency of the evidence itself, and not to the manner of proving them. If the proper objection had been interposed, presumably the plaintiff would have obviated it by giving notice to the defendants to produce these letters. Hence we think that the defendants’ exceptions to these rulings were not well taken. We have examined the various other exceptions taken by the appellants, but have found none that require special discussion or that would justify a reversal.

Judgment affirmed, with costs.

All concur.


author: Merwin, J.

text:
    Seymour Lowman, as Administrator, etc., Resp’t, v. Elmira, Cortland and Northern Railroad Company, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 1895.)

    1. Executors—Appointment.
    Where all the jurisdictional facts appear in the proceedings for the appointment of an administrator, the cuestión that his bond is insufficient cannot be raised collaterally. ■ =

      2. Same—Limitation of power.
    In a case under § 2664 of the Code, the payment of the judgment by the judgment debtor to the administrator does not discharge him therefrom, though the latter was also the general guardian of the next of kin of the intestate.
    3. Same—General guardian.
    An administrator has no right to pay a distributive share to the general guardian'of an infant, unless directed by the surrogate’s court.
    4. Same.
    The fact that the distributive share arises from the proceeds of a special action furnishes no exception to this rule.
    Appeal from a judgment in favor of plaintiff.

      Frederick Collin, for app’lt; Baldwin & Baldwin, for resp’t.
   Merwin, J.

On the 24th October, 1885, Charles Gr. Judd, then being in the employ of the defendant as a brakeman, was killed while in the performance of his duties, and died intestate, leaving, him surviving, as his only heir and next of kin, a daughter, Emily B. Judd, an infant, and leaving no widow. On the 10th November, 1885, Hurd B. Judd, of Pittston, in the state of Pennsylvania, was appointed general guardian of the said infant by the surrogate’s court of the county of Chemung. This appointment was based on the petition of Hurd B. Judd, which stated, among other things, that he resided at Pittston, and was the uncle of the minor; that the minor was eight years old, and resided in the city of Elmira, and had no property, real or personal, with the exception of $17 due to her deceased father. On the 3d day of March, 1886, Hurd B. Judd, as general guardian of the minor, applied to the surrogate’s court of Chemung county for letters of administration upon the estate of Charles Gr. Judd. His verified petition stated, among other things, that Charles Gr. Judd, at the time of his death, resided in the city of Elmira, in said county; that he died intestate, and the value of his personal property did not exceed $50; that he came to his death by reason of injuries through the. negligence of this defendant, and that the petitioner desired to commence an action, as administrator, to enforce the liability given by the statute; that the petitioner had no property in this state, and no means of procuring bondsmen or giving a bond for the amount of the probable recovery. Thereupon, the surrogate’s court, upon the petitioner filing a bond in the sum of $300, issued letters to Hurd B. Judd. These letters, after reciting the death and residence of Charles Gr. Judd, and that a right of action is reserved and granted by special provision of law, and that Hurd B. Judd is entitled to the administration of said estate, and has filed the proper oath, proceeds as follows :

“ We do by these presents depute, constitute, and appoint you, the said Hurd B. Judd, administrator of, all and singular, the goods, chattels, and credits which were of the said Charles Gr. Judd, deceased. These letters, however, are limited to the prosecution of an action by said administrator to recover damages, by special provision of the law, by reason of the death of said Charles G. Judd, deceased; and you, the said Hurd B. Judd, as such administrator, are hereby restrained from a compromise of any such actian, and the enforcement of any judgment recovered in any such action, until the further order of the surrogate of the said county of Chemung. Granting, by these presents, unto said administrator, full power to administer upon the estate of said deceased, and to do and perform any duties and acts relating thereto, which by the laws- of this state are required of administrators appointed by the surrogate, and the performance of which, in the administration of said estate, may be necessary for the due, faithful, and proper administration thereof. Subject, however, to the conditions, limitations, and restrictions hereinbefore mentioned.”

Thereafter an action was brought in the supreme court against the defendant, in the name of Hurd B. Judd, as such administrator, upon the cause of action referred to in the petition and letters, and Jacob Schwartz was the plaintiff’s attorney therein. It was brought to trial in October, 1886, and a verdict rendered in favor of the plaintiff therein for $4,000; and upon this, judgment was duly entered on the 29th October, 1886, for $4,349.31, damages and costs. On the 26th July, 188/; the defendant paid to said Schwartz the sum of $4,750 in settlement of the judgment, and also of another claim upon which a suit was pending in the supreme court, in favor of one Bogers, against the same company, to recover three or four thousand dollars, in which suit the said Schwartz was the attorney for the plaintiff Bogers. These two claims were settled in a lump amount, and no division made at the time, so that how much was for one or the other does not appear. At the time of this settlement the Bogers action was discontinued, and the satisfaction piece in controversy executed by Schwartz, as plaintiff’s attorney, and delivered to the defendant. On the 5th September, 1892, upon the petition of the minor, who had then arrived at the age of fourteen years, the plaintiff, Seymour Lowman, was duly appointed her general guardian, and immediately instituted proceedings in the surrogate’s court of Chemung county for the removal of Hurd B. Judd as administrator; and thereupon., after a hearing, and on the 24th October, 1892, an order was made removing Judd from the office of administrator, and revoking the letters issued to him, and directing that letters be issued to the plaintiff, Seymour Lowman, upon his giving the proper bond and qualifying. In pursuance of this order, letters were issued to plaintiff on November 1, 1892. It is not found how much of the moneys paid to the attorney reached the hands of the administrator, Judd. It is, however, found that he, as administrator or as guardian, has never accounted for any of such moneys, nor has the plaintiff ever received any part of the same. It was decided by the special term that the compromise and settlement of the judgment made by the attorney was made without right or authority, and that the plaintiff in that action had no right or authority to satisfy the judgment, or to receive pay therefor, and that the plaintiff in this action was entitled to a judgment vacating and setting aside the satisfaction piece, and restoring the judgment and the lien thereof. The defendant claims that the appointment of the plaintiff as administrator is invalid because no petition was filed, as provided by section 2664 of the Code, and because the bond which he gave was not twice the value of the personal property, including the recovery against the defendant.

All the facts authorizing and calling for the appointment of Lowman as administrator appeared in the proceedings in the surrogate’s court for the removal of Judd, and were before the court when it appointed the plaintiff. The bond was in the penalty of $4,000, and the proceedings showed that the recovery against the defendant was for $4,000, besides costs. The defendant cannot raise here the question that the plaintiff’s bond was insufficient. Sullivan v Tioga Railroad Co., 44 Hun, 304 ; 7 St. Rep. 627, and cases cited. The surrogate’s court had jurisdiction to grant the letters, and they are here conclusive. Code, § 2591; Kelley v. West, 80 N. Y. 145. We must, I think, assume that the letters to plaintiff are valid.

Assuming that the letters to Judd were without limitation, the attorney for the plaintiff in the judgment had no authority to compromise the judgment. Cox v N. Y. C. & H. R. Railroad Co., 63 N. Y. 419 ; Lewis v. Y/ooEruff, 15 How. Pr. 539. To avoid this situation, it is claimed by the defendant that the judgment must be deemed to have been paid in full. That fact, however, is not found, nor .is there any request to find it. The attorney for the defendant, who negotiated the settlement, testified that the full amount of the judgment was paid ; but he also testified that the two claims were settled in a lump amount, and that how much Schwartz received on the Judd judgment, and how much on the other'claim, he did not know, and that he did not know how Schwartz divided it in- his own mind, and that, as between them, there was no division made. Evidently, the statement of the witness that the full amount of the judgment was paid, was only the operation of the mind of the witness, and not a part of the agreement of settlement. If, on this subject, we were to assume anything, it would be, in support of the.decision appealed from, that there was'in fact a compromise of the judgment. We could not assume to the contrary for the purpose of revearsal. Equitable Co-Operative Foundry Co., v. Hersee, 103 N. Y. 25; 3 St. Rep. 100. This question, however, I do not consider very important; for, if the attorney had a right to receive any of the judgment, what he in fact did receive might be applicable on it, though he had no right to satisfy the judgment.

The important questions, therefore, are whether the defendant was protected in paying the judgment to the plaintiff therein, or his attorney, and, if not, whether the defendant can be afforded any protection by reason of the fact that Judd was at the time general guardian of the infant. By Code Civ. Proc. § 2667, as it was in 1886, now section 2664, it is provided as follows:

“But where a right of action is granted to an executor or administrator by special provision of law if it appears to be impracticable to give a bond sufficient to cover the probable amount to be" recovered, the surrogate may in his discretion accept modified security and issue letters limited to the prosecution of such action but restraining the executor or administrator from a compromise of the action and the enforcement of any judgment recovered therein until the further order of the surrogate on additional further satisfactory security.”

Under this provision the letters in question were issued, and the limitations appeared upon, their face, and also appeared in the records of the surrogate’s court. Very clearly, it was the purpose of the law to confer upon such an administrator only the right and power to prosecute the action for the purpose of obtaining a judgment, if he could, and so determine the right and liquidate the amount. He had no right to compromise the action, or collect the judgment. In the answer of the defendant in the action, the issuing of letters was denied. Presumptively, they were proved upon the trial, and the defendant would have knowledge of the limitation on their face. It is not found or proved in the present case that the defendant did not know of the limitations, or paid the money in good faith, although the attorney of the defendant who negotiated the settlement was a witness in the case. It should, 1 think, be held that, presumptively at least, the defendant was chargeable with notice of the limitations in.the letters, and that, therefore, it had no right to make the payment. The attorney for the administrator had no greater rights or power to receive the money than the client had.

The defendant further claims that the money, having been received by Judd as administrator, passed, by operation of law, to him as general guardian, and is now held by him as such. The principle is invoked that when a person acts in a dual capacity, and in one capacity receives money which should be transferred to and held by him in the other capacity, the law will presume that he has done his duty, and holds the money in the capacity in which he should hold it. Many cases are cited to the general proposition, and in most of them the question' arose in determining controversies between sureties for the party in his different capacities. None of the cases referred, to are in this state, except In re Brown, 72 Hun, 160; 55 St. Eep. 517. In that case one Brown was the general guardian of an infant who was a residuary legatee in a will of which Brown was executor^ On his accounting as executor, he credited himself, as executor, with certain funds ■as paid to himself as guardian, and filed receipts for the same for himself as guardian, and on the strength of these he was discharged from liability as executor. In fact, the payments had never been made. Upon an accounting by Brown as guardian, he charged himself with the same payments that he had been credited with as executor. The sureties on the bond of the guardian claimed that this should not be done, because, upon the settlement of the executor, the surrogate’s court omitted to decree that the guardian should give a special bond, as required by section 2746 of the Code, and that in default of this the payment to the guardian, though in pursuance of* a decree, was illegal. It was held that the guardian could not be heard to deny the right of the ward to a decree charging him the amount, and that the sureties were not in any better position than their principal. This ruling does not help us in the present case. The principle invoked by the defend ant does not apply to this case. Assuming that Judd, as administrator, had the fund in his hands, he had no right, as against the infant heir and next of kin, to transfer it to himself as- guardian. By section 1903 of the Code, it is provided that the damages in such case, when collected, “must be distributed by the plaintiff, as if they were unbequeathed assets, left in his hands, after payment of all debts, and expenses of administration,” but the plaintiff therein may deduct the expenses of the action, and his commissions, upon their allowance by the surrogate. The manner in which unbequeathed assets, after the payment of debts and expenses, shall be distributed, is provided for by other sections of the Code (section 2732 et seq.). By section 2746, it is provided that, when a distributive share is payable to an infant, the surrogate’s court may, among other things, direct it to be paid to the general guardian, upon his depositing with the surrogate, in his office, a bond of the-form and character there specified, but that, if no direction is made by the surrogate’s court as to its payment in some of the ways there described, it shall, by order of that court, be paid into said court, by payment to the county treasurer, to be managed by him as therein directed. Under the provisions of this section, an administrator has no right to pay a distributive share to a general guardian, unless directed by the surrogate’s court. It was so held under a similar provision of the Revised Statutes. Wilcox v. Smith, 26 Barb., 318, 336. See, also, Estate of Flagg, 6 Dem. 289 ; Redf. Sur. Prac. (5th ed.) 686. The .fact that the distributive share in this case arose from the proceeds of a special action furnishes no good reason for removing it from the operation of the general provision as to the manner of payment of a distributive share belonging to an infant.

It is suggested on the part of the defendant that a payment by the defendant to the general guardian would have been good, and that the payment here should be deemed to have been made to' the guardian. The damages in such a case are recoverable only by an executor or administrator, and the defendant would have no greater right to pay or distribute them than the administrator would. So that if the administrator, though" an unlimited one, had no right to pay the guardian without the order of the surrogate’s court, the defendant would have no better right. No question was made on the trial, or is here, about the costs that were included in the judgment. We must therefore assume that any equities the defendant may have in regard to them, as to the plaintiff-in the judgment or the. attorney, have been fully protected, or will be in any future proceeding on the judgment, as restored.

It follows that the judgment should be affirmed. Judgment affirmed, with costs.

All concur.


author: Putnam, J.

text:
    Nathan C. Douglas, et al., Resp’ts, v. Daniel S. Coonley et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    1. Appeal—Interlocutory judgment.
    An appeal from an. interlocutory judgment, sustaining a demurrer, brings up for review the order on which it was entered. ■
    3. Easements—Duration.
    An easement, created by the conveyance of the right to use a stairway in a building, by which means alone the grantee can reach the upper rooms of his premises, ceases with the destruction of the building.
    Appeal from an interlocutory judgment, sustaining a demurrer to the answer.

      Albert Hobbs, for app’lts; Cantwell & Cantwell (William, P. Cantwell, of counsel), for respondents.
   Putnam, J.

This is an appeal by defendants from a judgment-sustaining the demurrer interposed by plaintiffs to the answer. The action was brought to enforce plaintiffs’ alleged right to the use, in common with defendants, of a stairway on premises of the latter, leading from the street to the upper story, between the adjoining stores of the parties, situate in Ohateaugay, Franklin county.

It was alleged in the complaint that one Henry B. Smith, deceased, being the owner of a building containing three stores, died, leaving a last will and testament, in which he conferred on his executors, therein named, power to convey his real estate. The latter sold the middle store to one Margaret A. Cantwell on September 14, 1865, and on March 31, 1869, the adjoining west store to defendant Ooonley and one John Hughes whose title has since been transferred to the defendant Sophronia 0. Smith. Between said middle and west stores was a party wall. Also, there was a stairway from the street to the upper rooms of the building between the two stores built in the store so conveyed to Ooonley and Hughes, and used at the time of the above-mentioned conveyances in common by the tenants in the rooms over each of the stores as the only means of access thereto. It is alleged in the complaint:

“That while the said Daniel S. Ooonley and John Hughes continued to be the owners of said west store, and the said Margaret A. Cantwell the owner of said middle store, and on the 15th day of May, 1869, the said Daniel S. Ooonley and John Hughes, by a-deed of conveyance duly executed by them, granted, sold, and conveyed to the said Margaret A. Cantwell, her heirs and assigns, the right of way to pass and repass up and down the passageway or stairway between the store owned by Margaret A. Cantwell, and of the parties of the first part hereto, at all times, in common with the parties of the first part hereto, for the purposes of going and returning to and from the rooms in the upper part of said stores; the party of the second part to pay one-half of the expense of keeping said stairway in repair.”

It is further alleged in the complaint that plaintiffs have succeeded to the title in said middle store and stairway, formerly owned by said Margaret A. Cantwell; that on" the 11th day of January, 1893, said building was destroyed by fire; that plaintiffs have since rebuilt the middle store, and defendants the west store, with a stairway placed as and like the one destroyed, and the parties have built a party wall between the two stores similar to the one formerly existing; the defendants have wrongfully excluded, and continue to exclude, plaintiffs from the use of said stairway: that the plaintiffs, in consequence of such exclusion, have sustained damages to the amount of $200. Plaintiffs asked for a judgment restraining defendants from interfering with the use of said stairway by plaintiffs and their tenants, for $200 damages, and further relief.

An answer was interposed, which will be hereafter considered. Plaintiffs demurred to the answer, and from the judgment sustaining such demurrer this appeal is taken. The demurrer interposed was in two parts: First, to the whole answer; and, second, to"

certain portions thereof which were assumed to be set up as separate defenses.' The court below only considered and passed upon the demurrer to the whole answer. He, doubtless, concluded that the different paragraphs in defendants’ answer were not intended as separate answers, but as different paragraphs of one defense. It will only be necessary for us to consider the legal ques-' lions raised by the demurrer passed upon by the court below.

It is urged by respondents that this appeal does not bring up for review the questions sought to be raised by appellants, because no appeal is interposed from the order on which the interlocutory judgment was based, nor is .it stated in the notice of appeal that said order will be brought up for review on the hearing of the, appeal. That the position of respondents is not well taken has been held by this general term in Dich v. Livingston, 41 Hun, 455. Bocees, J., in "delivering the opinion, and speaking in regard to such an order, said:

“The decision was not appealable, but stood as does a decision by a referee-or a judge on a trial without a jury, which declares the rights of the parties and directs judgment. Section 1021. So here it gave direction for the entry of an interlocutory judgment, from which an appeal might be taken, pursuant to section 1349 of the Code.”

The order not being appealable, it was not necessary to refer to it in the notice of appeal. The reference to the interlocutory judgment entered pursuant to the order was all that was necessary.

It is claimed by plaintiffs that their grantor, Cantwell,- became the owner of an easement in, or right to the use of, the stairway in question, by virtue of the deed from the executors of Henry B. Smith, and, independently of the deed, from Coonley and Hughes. It does not appear from the statements made in the complaint that the deed from the said executors in terms conveyed any rights in said stairway; but plaintiffs urge that Smith being the owner of the two stores, and there being no other way of access to the rooms over the middle store except by the stairway, by the deed from the executors to Margaret A. Cantwell of said store and the rooms above it, without any reservation, a right to use said stairway as an appurtenance, passed ; that, when Coonley and Hughes afterwards purchased the west store, they took the premises subject to the easement or servitude existing in favor of Margaret A. Cantwell. Assuming that this position taken by respondents is correct, we are of the opinion that the easement in the stairway in question acquired under the circumstances by Margaret A. Cant-well, under the deed to her from the executors of Smith, only continued to exist while the building standing when the right to such easement was acquired remained, and ceased with the destruction of the building. See Heartt v. Kruger, 25 St. Rep. 686; id., 121 N. Y. 386; 31 St. Rep. 581. In the case cited, the owner of two adjoining lots erected a building on each, with, a party wall between them, one-half of which was placed on each lot. The two lots were afterwards transferred to different owners, and both buildings were destroyed by fire. The defendant, the owner of one of the lots, erected a new wall on the old party-wall foundation ; and the plaintiff, the owner of the other lot, commenced an action of ejectment, and was sustained in all the courts. In delivering the opinion of the court of appeals, Gray, J., remarked:

“When the title to the§,e two lots was severed by their conveyance to separate persons, the purchaser of each lot is presumed to have contracted in reference to the condition of the property at the time, and the openly existing arrangement of a party wall could not be changed so long as it stood and answered its purpose. It was made a party wall upon the severance of the title -by the description of the boundary line; but the whole extent of the qualification which resulted as to each lot owner’s title was the easement which the other acquired in the wall dividing and supporting their respective buildings.' Each was bound to preserve the existing order of things in that respect, and neither had any right to change the relative condition of his building to the injury of the adjoining one. The party wall of the two buildings was an open and visible condition of the ownership of the property, and, in legal contemplation, its use as such while the buildings stood was an-element which entered into the contract of the purchaser, and which charged the land with a servitude. * * * But, upon the destruction of the buildings, the tenements reverted to their original or primary conditions of ownership. Their ten'ure was no longer qualified by the relative rights and obligations which previously existed. * * * The implied agreement that the party wall existing at the time of the conveyances of the two lots by their common owner should continue in its use and occupancy as such cannot be extended so as to relate to a changed condition of things, caused by the casual destruction of the wall and buildings.”

We think the principles enunciated in the above quotation apply to this case. By the conveyances of the owner of both stores of the middle store to plaintiffs’ grantor, she acquired a right to use the stairway,—the same as the defendants in the case cited acquired the right to use the party wall, one-half of which was on plaintiffs’ premises ; but such right terminated on the destruction of the buildings.

Respondents also claim that under the deed from Coonley and Hughes to Margaret A, Cantwell, set out in the complaint, she, her heirs and assigns, acquired an easement in and a right to use the stairway existing when the conveyance was made, and also the stairway erected by defendants since the destruction of the building. The complaint does not contain a copy of the deed in question, or a statement of its contents, except as above quoted. The answer to which.the demurrer was interposed did not deny the execution of the deed. We think the recital of the provisions of said deed in the complaint does not show a conveyance to Margaret A. Cantwell of any other or greater right than she possessed before it was executed. The deed (as the complaint states) conveyed a right “to pass and repass up and down the. passageway or stairway between the stores owned by Margaret A. Cantwell, and of the parties of the first part hereto, at all times, in common with the parties of the first part hereto, for the purpose of going and returning to and from the rooms in the upper part of said stores.” The language above quoted should be deemed to apply to the rooms and stairway in the building then standing, and cannot be construed to convey a right in the space1 occupied by the stairs, or a right to rebuild after their destruction,'or a right in a new stairway in a new building that might thereafter be erected by defendants. It is true that the conveyance was to Margaret A. Cant-well, her heirs and assigns. But the old building might have stood a hundred years, and in that case the heirs or assigns of the grantee would have been entitled to the benefit of the conveyance. We think that the stairway referred to in the deed in question, as set out in the complaint, was the stairway existing when the conveyance was executed ; and hence it did not. appear from the allegations in the complaint that there was any conveyance of any eas'ement in a new building to be erected after the destruction of the old one. There is no provision in the deed as so set out which would have compelled defendants to rebuild the west store, or, if they did rebuild, to place a new stairway where the former one was, or which would have allowed plaintiffs to erect a new stairway on the failure of defendants to do so. We a,re inclined to think, therefore, that the complaint failed to show any right on the part of plaintiffs to .an easement in the stairway, in question, and hence to state a cause of action, and on that ground the court below erred in sustaining the demurrer. Harvey v. Brisbin, 16 St. Rep. 42. People v. Booth, 32 N. Y. 897.

Assuming, however, that the complaint did state a cause of action, we think the answer contained denials of the averments therein which could not be properly held insufficient. As we have seen, the complaint contained no copy of the deed from Coonley and Hughes to Cantwell. As far as it stated the Contents of the deed, that instrument did not appear to convey to the grantee any easement in the land or in a nev¡r structure that might be erected after the destruction of the one standing. The complaint, however, alleged inferentially, and in the way of a legal conclusion, that plaintiffs, under the provisions of said deed, and by reason of all the circumstances set out in the complaint, became legally entitled to an easement in the new stairway. To such a complaint, so stating the cause of action, if any, we think the denials in the answer were sufficient, and that the demurrer thereto should not have been sustained. The answer is somewhat indefinite and obscure, and doubtless could have been corrected on a motion to make it more definite and certain; but it alleges that under said deed any right acquired by Margaret A. Cantwell, her heirs and assigns, terminated with the destruction of the old building: that the deed in question related to and only conveyed an easement in the old stairway, and not in the new one. There being no copy of the deed in the complaint, and only a partial statement of its provisions, as heretofore shown, the above denials in the answer raised an issue. Plaintiffs having alleged only the legal effect of the conveyance in their statement of their cause of action, defendants, in the answer, could follow their example. The answer also denies the allegations of the complaint that plaintiffs had sustained damages to the amount of $200 or any other sum, and alleged that the defendants were the sole owners of the space occupied by the new stairway, and of the right to use the same. The answer also denied that, either in fact or law, plaintiffs had the rights claimed by them in the new stairway, or any right, claim, easement, or privilege in or over the same. We think to the complaint in the action the answer should have been held sufficient, and hence that the judgment should be reversed, and judgment rendered for defendants on the. demurrer, with the usual costs.

All concur.


author: Cullen, J.

text:
    In the Matter of the Probate of the Will of Adrian M. Suydam, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed February 11, 1895.

    1. Wills—Undue influence.
    The rule as to undue influence which prevails as to transactions inter rims between client and attorney, does not apply to a will made by a client in favor of his attorney.
    2. Same—Prejudice.
    Anger and ill will on the part of the testator toward the natural objects of his bounty, however unjustifiable, cannot defeat his will.
    Appeal from a decree, admitting will to probate.

      George F. Elliott, for appl’ts; John P. Rolfe, for resp’ts ; Horace Graves, for Bushwick Avenue Church; George H. Fisher, for Industrial Home.
   Cullen, J.

This is an appeal from a decree of the surrogate of the county of Kings admitting to probate the last will and a codicil thereto of Adrian M. Suydam. This appeal presents solely a question of fact. The evidence is brief, and requires but little discussion. The appellants are nieces of the testator, and disinherited by his will. There is no question here of dementia, or loss of intellect; therefore the only attack that can be made on the vil! is either the allegation of undue influence or of mental delu sion as to the appellants. There is no evidence whatever to support the first charge, except that the lawyer and draftsman of the will is given thereby a legacy of $5,000. The rule that prevails as to transactions inter vivas between client and attorney does not apply to a will made by the client in favor of his attorney. Matter of Smith, 95 N. Y. 516. In this case the legacy to the attorney is but a small part of the estate, and it is conceded that for years prior to his decease there bad been no disposition on the part of the testator to favor the appellants. It appears that a number of years ago the testator took offense at some conduct of his brother, the father of the appellants. This led to unfriendly feelings, not only against the brother, but also against the brother’s, family, including the. appellants. About ten years ago another brother—Jacob—died. Jacob left the great portion of his property to his nieces, .the appellants, and to the testator, Adrian, simply a burial plot. These testamentary dispositions by his-brother seem to have further imbittered the feelings of the testator towards his nieces, and he appears to have contrasted with some degree of anger the gift of substantial property to his nieces- and the burial plot to himself. This animosity on the part of the deceased continued till his death, and undoubtedly the will is-largely the result of that feeling. But anger and ill will, however unjustifiable, cannot defeat the testator’s will. “ On questions of testamentary capacity, courts should be careful not to confound perverse opinions and unreasonable prejudices with mental alienation. These qualities of mind may exist even in a high degree, and yet, so far as regards the view which the law takes of the case, the subject -may be sane, and competent to perform a legal act." American Seamen’s Friend Society v. Hopper, 33 N. Y. 619. There is no evidence to show that the testator even erred in his belief as to the facts out of which his animosity sprung, much less-that he labored under any insane delusion as to those facts. His feelings may have been unkind, uncharitable, and" even wicked, but unfortunately they are not wholly unknown in the history of human nature. Certain it is that no subject breeds more bitter-family dissension or quarrels than what are regarded as unfair dispositions of the family heritage. These feelings often far outweigh any grief at the loss of the deceased. The decree .appealed from should be affirmed, with costs.

All concur.


text:
    Isaac W. Winne, App’lt, v. David Houghtaling, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 11, 1895.)

    1. Execution—Justice’s coubt—Renewal.
    The renewal of an execution, issued on a justice’s judgment, for thirty days, is void.
    2. Habeas cobpus—When pkoper.
    A person arrested under a judgment obtained without jurisdiction, or under a process not authorized by the judgment or by statute, may be released by a writ of habeas corpus.

      Appeal from an order discharging defendant from custody under an execution against the person.

      G. M. Palmer, for app’lt; L. W. Baxter, for resp’t.
   Putnam, J.

This is an appeal from an order discharging respondent from the custody of the sheriff of Schoharie county, BT. Y, he being detained under an execution issued against the person by a justice of the peace, and having been brought before a justice of this court upon a writ of habeas corpus. A judgment was rendered in favor of plaintiff aguinst defendant for wrongful conversion of property by a justice of the peace. An execution -was properly issued upon said judgment by said justice on the 29th day of March, 1894, against the person of said respondent. This execution was renewed by said justice on the 28th day of May, 1894, by indorsing in said execution the following :

“The within execution is hereby renewed this 28th day of May, 1894, for the term of thirty days.
“Augustus Parsons, Justice of the Peace."

For a failure to pay said judgment the defendant, Houghtaling, was taken into custody by a constable on the 9th day of June, 1894, and imprisoned in the jail of Schoharie county, where he was detained by the sheriff until discharged by the order aforesaid, from which this appeal is taken. The order discharging the prisoner was granted on the sole ground that the indorsement of renewal upon the execution was irregular and void. It is provided by the Code of Civil Procedure (section 3025) that an execution issued by a justice of the peace must be made returnable in sixty days. Also (section 3027), that on the return of the execution issued by a justice of the peace, wholly or partly unsatisfied, he may issue a new execuion, or renew the former one, as follows:

“An execution is renewed by a written indorsement thereupon to that effect, signed by the justice, and dated upon the day when it is made. * * * Each indorsement renews the execution for sixty days from the date thereof.”

It thus appears that a justice, on the return of an execution unsatisfied, may at his election issue a new execution or renew the former one. If he issues a new execution, it must be return^ able under the provisions of section 3025 within sixty days, and, if he renews the former execution, it is a renewal for the same period. A renewal has the same effect and stands in the place of a new execution. The justice in this case, instead of renewing the execution as provided by statute, indorsed on it a restricted renewal whereby he attempted to make it returnable in thirty days instead of sixty. Such a renewal had no authority from the statute, and we think that the court below was correct in holding it void. In Toof v. Bently, 5 Wend. 276, the defendant, Bently, had obtained a judgment against plaintiff in a justice court for $50.87, and the justice had issued an execution made returnable in sixty days. Under the statute then existing, it should have been returnable in ninety days. A levy was made under the execution on Tool’s personal property, and the property was locked up in his building. The defendant, Bently, and Harris, the constable, after such levy, broke into the building where the property was situated, and for such trespass the action was brought. Savage, C. J., in delivering the opinion of the court, says:

“The justice had jurisdiction; the judgment was regular. If the execution had been returnable in ninety days, the officer would have been justified. The defendant in the execution (the plaintiff here) was not injured by the error in the return of the execution, but it is well-settled that inferior and limited jurisdictions must be confined strictly to pursue the authority given them. The justice had no more authority to issue an execution in the case before him, returnable in sixty days, than in thirty days, or even in ten days; and surely such an execution would be no protection to the officer, because on the face of the process it was not such a one as the justice had authority to issue upon such a judgment. In my opinion, therefore, the execution was no justification.”

The same doctrine was held in Farr v. Smith, 9 Wend. 338. In that case an execution issued, returnable in thirty instead of ninety days, as provided by statute, was held void. We are not cited by appellant to any authorities in conflict with the above. Under the doctrines therein laid down, we must hold that the renewal which the justice assumed to make in this case for thirty days was an unauthorized act by the justice, and void. It was, to all intents and purposes, the same as if he had on the return of the first execution issued a new one for thirty days, instead of sixty days. A justice’s court being one of limited jurisdiction, and the renewal assumed to be made in this case being unauthorized by any statute, it was void, and did not justify the officer in arresting the plaintiff. It is claimed, however, by the appellant, that, the plaintiff having been imprisoned by virtue of the execution issued upon-a judgment duly obtained against him under the provisions of section 2016 of the Code of Civil Procedure, he could not be discharged from imprisonment by a writ of habeas corpus. But in this case, as we have seen, the execution was without authority, although the judgment on which it was 'attempted to be issued was duly obtained. One arrested under a judgment obtained without jurisdiction, or under a process not authorized by the judgment or by statute, may be released by a writ of habeas corpus. The statute (section 2016, supra), which provides that one detained by virtue of an execution or other process, issued upon a judgment, decree, or final order, shall not be entitled to a writ of habeas corpus, refers to a valid, authorized, and not a void, execution. In People ex rel. Tweed v. Liscomb, 60 N. Y. 559-569, Allen, J., says:

“The prohibition of the forty-second section of the "habeas corpus act, forbidding the inquiry, by the court or officer, into the legality of any previous judgment, decree, or execution specified in the twenty-second section, does not and cannot, without nullifying, in good measure, the provisions of that and other sections of ,the act, take from the court or officer the power, or relieve him from the duty, of determining whether_the process, judgment, decree, or execution emanated from a court of competent jurisdiction, and whether the court making the judgment or decree, or issuing the process, had the legal and constitutional power to give such judgment, or send forth such process. * * * The in-

quiry is necessarily, in every case, whether the process is void, and the officer or court having jurisdiction of the writ must pass upon it. If a process, good in form, issued upon a judgment of a court having jurisdiction, either general or limited, mast in all cases be assumed to be valid until the judgment be reversed upon error, the remedy by writ of habeas corpus will be of but little value.”

The doctrine so enunciated in the case above cited was followed and approved in People ex rel. Frey v. Warden of County Jail, 100 N. Y. 20-24.

It follows that the order should be affirmed, with costs.

Herrick, J., concurs. Mayham, P: J., not acting.


text:
    John A. Schmitt, Resp’t, v. National Life Association, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    1. Insurance—Life—False statement.
    A statement in the application that the insured is a year younger than, he actually, is, avoids the policy, in the absence of explanation.
    2. Same.
    The beneficiary is not estopped, in such case, from showing the true age of the insured or a mistake in such statement.
    Appeal from a judgment, efttered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Stuart & Sutherland ( W. A. Sutherland, of counsel), for app’lt; Jordan & Holmes (Clark L. Jordan, of counsel), for resp’t.
   Putnam, J.

On the trial of this case, after the evidence was closed, the defendant’s counsel moved that the answer of the defendant be amended to conform to the proofs in the case in regard to the age of the assured, the proofs of death showing without contradiction that the assured was bora in 1841, while the application for insurance stated that he was bom in 1842. No objection appears to have been made to this application, and it was granted by the court, and the answer was amended by inserting at the end thereof the following clause:

“ That in and by the terms of the said application to the said Mutual Relief Society of Rochester, N. Y., and in and by the terms of the said application to this defendant, the said Louis Schmitt stated, represented and warranted that he was born on the 31st day of January, 1842, whereas, in 'truth and in fact, the said Louis Schmitt was born on the 30th day of January, 1841.”

Had plaintiff objected to the amendment, it probably would not have been allowed by the learned trial court. It set up a new defense, first interposed after the evidence was all in, and was not authorized by the provisions of section 723 of the Code of Civil Procedure. That section authorizes the court to conform the pleadings to the facts proved where the amendment does not change substantially the claim or defense. The amendment in question allowed the interposition of an entirely new defense.

If the court possessed the power to allow such an amendment after the evidence was in, the impropriety of such an allowance is apparent. The proofs of death were not conclusive on plaintiff as to the age of assured. He could have shown the real age of deceased, and that the statement in the proofs in that regard was erroneous. National Life Association v. Sturtevant, 78 Hun, 572 ; 61 St. Rep. 206; McMaster v. Insurance, Company of North America, 55 N. Y. 222 ; Cummins v. Agricultural Insurance Co., 67 id. 261. But, while the evidence was being taken on the trial, plaintiff had not been called upon to offer any evidence on the question of the age of the insured. There was no issue in that regard. Hence, had plaintiff interposed an objection, the court below, doubtless, would not have sanctioned the amendment in question.

But, having allowed the amendment, we are of the opinion that the court should have also granted the defendant’s motion for judgment, on the ground that it appeared that there was a plain breach of warranty as to the age of the assured. In the application the assured represented and warranted that he was born on the 31st day of January, 1842; while the proofs of death show that he was born, in fact, on the 30th day of January, 1841. In other words, by the proofs made and verified by plaintiff, and Which lie introduced in evidence on the trial, it was shown that in the application for insurance the assured, in answer to questions asked of him, had represented and warranted ■ himself as one year younger than he really was. Such answers were warranties, and will be regarded as material to the risk. Dwight v. Germania Life Insurance Co., 103 N. Y. 341; 3 St. Rep. 115; Boland v. Industrial Benefit Association, 74 Hun, 385 ; 56 St. Rep. 314. Such being the case, and as it appeared by the proofs of death made by the plaintiff, and, as above stated, by him introduced in evidence, that the assured, in his application- to the company, had misstated his age one year, the court, we think, should have granted defendant’s motion.

While, as we have seen, the plaintiff was not estopped by the pi’oofs from showing the true age of deceased, while he could have shown a mistake therein, in the absence of any explanation or other evidence the statement in the proofs as to the age of deceased should be deemed to establish the fact so stated. Daniels, J., in Kabok v. Phenix Insurance Co., 21 St. Rep. 203, says:

“But the fact did appear by the statement of the plaintiff herself, which was verified on the 24th of August, 1886, and made a part of the proof of death, that the person whose life was insured was born on the 10th of June, 1853, and no denial or explanation avoiding the effect of this admission Was made upon the trial; and that did establish the fact to be that the statement contained in the application concerning the time of birth and the age of this person was untruthfully given.”

We concur in the view so stated by the learned justice as to the effect of a proof of death made by a plaintiff in such a case.

See, also, Neill v. Insurance Co., 42 Super. 259 ; National Life Association v. Sturtevant, 78 Hun, 572; 61 St. Rep. 206; Parmelee v. Hoffman Fire Insurance Co., 54 N. Y. 198.

We therefore conclude that the judgment should be reversed, and a new trial granted; costs to abide the event.

All concur.


author: Mayham, P. J.

text:
    Orlo M. Bump, as Administrator, etc., App'lt, v. Mary Pratt et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    1. Witness—Section 829.
    The deceased person, referred to in section 829 of the Code, is clearly one over whose property the controversy in issue is made.
    2. Evidence—Hearsay.
    An exception to the general rule,excluding hearsay evidence, allows proof of the declarations of deceased persons, whether verbal or written, to be received in evidence when the deceased had possession of competent knowledge, and the declarations are against the interest of the person making them.
    3. Gift—Inter vivas—Delivery.
    A delivery of bonds by the intestate in her life time to another for the donee, with directions that they should at some time thereafter be delivered to the donee, is such a parting with the possession by the clonor and delivery to another for the donee, as to vest the title in the donee.
    Appeal from a judgment in favor of defendants.

      Calvin S. McChesney (Charles F. Patterson, of counsel, for app’lt; Davenport & Hollister (N. Davenport, of counsel), for resp’ts.
   Mayham, P. J.

The reception of the evidence of Mary Pratt, one of the defendants, in her own behalf, under the objection of the plaintiff, was not error. The declarations of Miss Cornell, testified to by the defendant, were not against the survivor of Miss Cornell in the sense in which such declarations are prohibited by section 829 of the Code of Civil Procedure, for the reason that the survivor acquired no interest under or through his deceased co-administrator. Nor does defendant derive her title or interest to the property in controversy from Miss Cornell, to whose declarations she testified. As was said by the learned referee: “The deceased person referred to in section 829 is clearly one over whose property the controversy in issue is made.” The controversy is over the property of the plaintiff’s intestate, and not that of Millicent Cornell, whose declarations were sought to be proved. While the declarations of Miss Cornell, to which the defendant testified, were hearsay, it was not that kind of hearsay as is condemned by the rules of evidence, but comes within one of the well-established exceptions to the general rule which excludes hearsay evidence, and that exception to the general rule seems to have been the ground upon which the learned referee received the evidence. That exception allows proof of the declarations of deceased persons, whether verbal or written, to be received in evidence when the deceased had possession of competent knowledge, and the declarations are against the interest of the person making it.

Gfreenleaf, in his elementary treatise on Evidence, states the rule as follows:

‘ This class embraces not only entries in books, but all other declarations or statements of facts, whether verbal or in writing, and whether they were made at the time of the fact declared or at a subsequent day. But, to render them admissible, it must appear that the declarant is deceased; that he possessed competent knowledge of the facts, or that it was his duty to know them; and that the declarations were at variance with his interest. When these circumstances concur, the evidence is received, leaving its weight and value to be determined by other conditions.” 1 Green!. Ev. § 147.

In support.of this rule, the author cites numerous cases, English and American. It seems that the evidence offered and received was fortified by all the essential requirements to make it.competent within this exception. She was an heir at law of the intestate, and her declaration tended to diminish her share of her inheritance, and was against her interest. She was possessed of knowledge of all the facts, of the subject upon which she assumed to speak, and at the time her statement was offered in evidence she was deceased. The evidence being therefore competent, it was the duty of the referee to receive it, and, with the other evidence in the case, to give it such weight as it deserved.

This brings us to the consideration of the main question in this case,—whether the transaction as proved establishes a gift inter vivas of these bonds ¡to the defendant Mrs. Pratt. The referee finds as facts that the' intestate in her lifetime, “in pursuance of her previously declared intention to give property of about the value of these bonds to the defendant Mrs. Pratt, and as she subsequently stated that she had done, delivered the bonds to Miss Cornell, with the instructions to which Mrs. Pratt testified; and that she did it with intent to transfer the bonds to Mrs. Pratt.” These findings of fact seem to be supported by sufficient evidence. Do they establish a valid gift so as to vest the title in the defendant Pratt ? To constitute a valid gift either causa mortis or inter vivas, there must be such an actual or constructive delivery of the possession as to place the subject of the gift beyond the possession and control of the donor, and placed in the actual possession of the donee, or of some person for the donee. Assuming, as I think we must, that the referee’s findings of the question of fact upon this point are supported by the evidence, then there was a delivery of these bonds by the intestate in her lifetime to Miss Cornell for the defendant Pratt, with directions that they should at some time thereafter be delivered to the donee. That, we think, within the authorities, was such a parting with the pas session by the donor, and delivery to another for the donee, as tc vest the title in the donee. From that time the defendant had such a title and possession, through Cornell as her trustee or agent, as would have enabled her to maintain an action for their delivery to her in person, or against any other person for their conversion or destruction. The delivery of these bonds by the donor to Cornell, with directions to deliver them to the donee, created such a trust in Cornell as to vest both the title in the donee and the possession in the trustee for the use and benefit of the donee, and was such a parting with the possession and title of the donor by her as to work an absolute change of title, and prevent even the donor from reclaiming the possession without the consent of the cestui que trust or donee.

In Young v. Young, 80 N. Y. 430, the court, by Rapallo, J., in discussing the necessity of delivery to constitute a valid gift, uses this language:

“To establish a valid gift, a delivery of the subject of the gift to the donee, or to some person for him, so as to divest the possession and title of the donor, must be shown.”

In that ease the bonds were not delivered by the donor to a third person for the donee, but were kept among the donor’s papers, in an envelope, indorsed, with a statement that the interest was to belong to the donor during his life, and, at his death, they belonged absolutely to the donee; and the court held that there was not such a delivery as to constitute a gift. While the language above quoted from the opinion in Young v. Young, supra, was not perhaps necessary to the decision of that case, and as to that case was obiter, still it is doubtless a correct statement of the law in cases of gifts of personal property. In Beaver v. Beaver, 117 N. Y. 421; 27 St. Rep. 405, it was held, to uphold a gift through a trust, there must be an explicit declaration of trust or circumstances which show beyond a reasonable doubt that a trust was intended to be created, and there must be on the part of the donor an intent to give, and a delivery in pursuance of such intent to or for the donor; and such delivery, whether actual or constructive, must be such as will operate to divest the donor of possession and of dominion over the subject of the gift. In such a case, acceptance may be implied when the gift, otherwise complete", is beneficial to the donor. Starting with the assumption of the facts as found, and applying them to the rules of law above adverted to, it would seem to follow that in the case at bar there was a valid gift inter vivas of these bonds to the defendant Mrs. Pratt. The intention to make this gift by the donor does not rest entirely in the declaration of the intestate to Miss Cornell, as disclosed by her statement to the defendant Pratt of the delivery of the bonds to her. The intestate had on numerous occasions signified by her statement a purpose of making a gift to the defendant as a compensation for losses she had indirectly suffered by the failure of a relative to pay defendant’s mother a debt due her. That purpose, as it would seem from the evidence, she put into execution by giving these bonds to the defendant, and delivering them to Miss Cornell for her; and, while the hearsay proof by which this gift is established is not of the most satisfactory character, yet as it was, as we have seen, competent evidence, and was, with other facts before the referee, sufficient to convince him of the factum of the gift, and is in no way contradicted or assailed by counter proof, his determination of that question of fact should not be interfered with on this appeal.

It is urged- by the learned counsel for the appellant that some suspicion attaches to the conduct of these defendants in not disclosing to the plaintiff the fact of the defendant’s claimed ownership of these bonds. But it is to be observed that Miss Cornell, the plaintiff’s coadministratrix, failed to claim these bonds for inventory, although it was her sworn duty to do so if the bonds belonged to the estate of the intestate; and as she knew of the existence of these bonds, and that they were in the possession of the defendant Pratt, the presumption that she knew and recognized the validity of the plaintiff’s title and possession would seem to be stronger than any presumption arising from the failure of the defendants to inform the plaintiff of the existence and whereabouts of these bonds. Indeed, if these facts have any significance, they tend to strengthen the theory that both Miss Cornell, the administratrix, and the defendants all knew that the bonds did not belong to the' estate of plaintiff’s intestate.

On the whole case, we think the conclusion of the referee was correct, and that the judgment upon his report should be affirmed.

Judgment affirmed, with costs against the administrator as such.

Putnam, J., concurs. Herrick, J., dissents.


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    Lizzie Byrnes, App’lt, v. Robert Rayner, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    Husband and wife—Liability,
    The husband is not liable on the express contracts of his wife for their joint support, when she is the sole contracting party and the credit is given to her.
    Appeal from a judgment of the county court, reversing a judgment rendered in the justice’s court in favor of- plaintiff^

      Charles H. Tefft, for app’lt; Nash Rockwood, for resp’t.
   Mayham, P. J.

The defendant’s wife, a married woman, contracted with the plaintiff to board herself and husband, and keep her horse, at a stipulated price per week. Under such agreement, the plaintiff furnished board to the defendant and wife, and kept the horse of the latter, and an indebtedness therefor accrued to the plaintiff. The plaintiff rendered a bill to the defendant’s wife, in her name, for a portion of such board and horse keeping, which was paid by her. To recover for an unpaid balance arising under the agreement, this action was brought against the defendant, husband of the contracting party, in which a recovery was had before a justice of the peace, and on an appeal to the county court the judgment was reversed, from which judgment of reversal the plaintiff appeals to this court.

The only question on this appeal is whether the common-law liability of the husband to support his wife makes him liable on the express contracts of his wife for their joint support, when she is the sole contracting party, and the credit is given to her. By chapter 381 o£ the Laws of 1884, all disabilities of married women to make valid contracts were removed, and she was invested with all the powers of a feme sole to make contracts and bind herself thereby. When, therefore, she avails herself of the powers and privilege conferred by that statute by making express contract in her own name, even for her necessary support, she would no longer be deemed as acting as agent for her husband in procuring such support, nor would there be any implied agreement on his part, as existed at common law, to pay for such necessaries. The plaintiff, by contracting with the wife, who was in all respects competent to make a valid contract and bind herself, and upon whom she, by her contract, relied for payment, cannot, we think, be permitted to shift the liability upon the husband, who is in no sense a party to the contract. In the absence of any contract with the wife, the common-law liability of the husband for her suitable support still remains. Strong v. Moul, 22 St. Rep. 762. And that liability continues unless there is an express contract with the wife. But when the contract is primarily with the wife, and credit given to her by the plaintiff, she cannot now ignore that contract, and shift the liability to the husband. In Travis v. Lee, 34 St. Rep. 233, the liability of the husband for necessaries furnished for his family was put upon the express ground that the board was not furnished upon the agreement of the wife, nor the credit given to her. I have found no case since the act of 1884 where the husband was held liable under his common-law obligation when the contract for necessaries was made by express agreement of the wife, and the credit given to her. In Maxon v. Scott, 55 N. Y. 247, which was decided before the act cf 1884, the court held that a wife was liable upon her express contract for the board of herself and husband, but her contract at that time had reference to and charged her separate estate. That restriction was entirely removed by chapter 381 of the Laws of 1884. That act seems so completely to habilitate the wife with power to contract as a single female that it would seem a violation of its terms to hold the husband, any more than a stranger, liable upon her contract. We think the judgment of the county court correct, and that it should be affirmed. Judgment affirmed, with costs.

All concur. „


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    Rachel A. Woolsey, Resp’t, v. Trustees of the Village of Ellenville, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 12, 1895.)

    1. Trial—Opening case.
    A judgment will not be reversed for the exercise of discretion by the ' trial judge in allowing a party, after a cause is rested, to recall witnesses and supply defects in the evidence which have been inadvertently omitted, unless he has been guilty of an abuse of such discretion.
    3. Evidence—Condition of place.
    For the purpose of showing the condition of the locus in quo at the time of the injury, testimony as to its condition, both before and after the accident, is competent, though by no means conclusive, evidence.

      3. Same—Record of board of health.
    Under chap. 270 of 1885, copies of the records of deaths, made by the board of health, when duly attested, are admissible in an action for personal injuries, to rebut the presumption, raised by evidence tending to show that plaintiff’s ancestors and kinsmen had been affected with paralysis, that the paralysis which she charged as the result of her injury was hereditary.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      G. G. & J. B. Keeler (A. T. Clearwater, of counsel), for app’lt; John E. Van Etten é Son (John E. Van Etten, of counsel), for resp’t.
   Mayham, P. J.

This action was prosecuted, by the plaintiff against a municipal corporation to recover for an alleged injury resulting from a fall of the plaintiff upon one of the sidewalks in the street" of the defendant, by reason of an alleged defect in the same. The theory upon which the -plaintiff prosecuted such action was that, by reason of the defendant’s negligence in the construction of an imperfect and faulty" ditch and an imperfect and defective culvert or drain under the sidewalk, surface water conducted in the ditch was precipitated upon the sidewalk, and formed ice on the same, by which the plaintiff, without negligence or fault on her part, slipped and fell, and by such fall suffered bodily injury. The defense proceeds upon the theory that ditch and culvert were properly constructed, and that the alleged ice was not the result of any fault or negligence on the part of the defendant, and that the plaintiff was guilty of contributory negligence, which caused or contributed to the alleged injury.

At the conclusion of the testimony of the plaintiff, the defendant asked the court to dismiss the complaint, on the ground, among others, that the plaintiff had failed to prove the absence of contributory negligence. Before deciding the motion, the court permitted the further examination of the plaintiff, under the defendant’s objection and exception ; and she testified that she was walking carefully, whereupon the court denied the defendant’s motion to which the defendant excepted. It is not unusual in the trial of actions for the court, in the exercise of its discretion,, to allow a party, after a cause is rested, to-recall witnesses and supply defects in the evidence which have been inadvertently omitted; and a judgment should be reversed for such exercise of discretion, unless the trial judge has been guilty of‘an abuse of the same. We do not think in this case that such discretion was abused. We have carefully examined all the exceptions to the rulings of the learned trial judge, as to the admission or rejection of evidence on the trial, and can find no error which would seem to justify a reversal on that ground.

The map made by the engineer, and verified by him, seems to be sufficiently authenticated as correct at the time it was made, and there is evidence that the situation of the sidewalk and gutter had not been changed between the time of the alleged accident and that of making the same ;■ and, as the map is not printed in the 3'ecord, we fail to see any error in its admission in evidence, and, while there is some evidence of a change of the locus in quo, the conflict upon that subject became a question for the jury, and could not be disposed of by the court as matter of law.

There was considerable conti'oversy on the trial over the admissibility of the testimony of witnesses as to the condition of this walk and gutter and culvert, both before and after the accident; but, as the evidence was manifestly offered for the purpose of showing the condition of the locus in quo at the time of the injury, we think the same was admissible, and, while by no means conclusive, it was not incompetent evidence. This evidence was not of the character condemned in Clapper v. Town of Waterford, 131 N. Y. 382 ; 43 St. Rep. 316; and Lane v. Town of Hancock, 142 N. Y. 510; 60 St. Rep. 112. In those cases the plaintiff proved that the defendant, soon after the injury, made repairs, for the purpose of establishing knowledge of the dangerous condition of the street and highway, and inferentially a confession of the de • fects, by proceeding to make repairs. Such evidence has been repeatedly held inadmissible.

On the trial the defendant offered evidence tending to show that plaintiff’s ancestors and kinsmen had been affected with paralysis, doubtless with the purpose of raising the presumption that the paralysis which the plaintiff charged as tile result of her injury was hereditary. To meet this evidence, the plaintiff put m evidence, under the objection of the defendant, a certificate of the_ cause of death of certain kinsmen of the plaintiff, on file in the" town clei’k’s office of the town in which such persons died, certified by the town clei’k to be t!@ue copies of the records in such office of the death of such persons. It is objected that these certificates were not competent evidence of the facts which they purport to certify, that they were not under oath, and the persons making the same not sworn as witnesses. It is quite clear that these certificates were not competent common-law evidence. But it is insisted by the plaintiff that they are made evidence by subdivisions 1 and 5 of section 3 of chapter 270 of the Laws of 1885. Subdivision 1 of this section provides for the proceedings of the board of health created by that chapter. Subdivision 5 of such section makes it the duty of the board of health to secure the registration of all certificates and records of death and the cause of death, and of undertakers, sextons, and persons having charge of the body of any dead person to procure a récord of the death, and, if possible, the cause, duly certified by the physician in attendance on the deceased during his last illness. “ It shall be the duty of such board of health to provide for obtaining copies of the said registered records of births, marriages, and deaths, and for the amount and payment of fees of-such copies." Such copies, duly attested by the local registering officer, and verified transcripts from the records preserved in the state bureau of vital statistics, shall be admitted in all the courts of this state as prima facie evidence of the facts therein set forth. While it is quite apparent that the primary object of the legislature, in enacting these provisions of law was to furnish information upon the subject of vital statistics for sanitary purposes, yet it is manifest that the language employed is broad enough to make these certificates such as the act expressly declares “shall be admitted in all the courts of this state as prima facie evidence of the facts therein set forth." Under such circumstances, we think the certificates were competent evidence.

We are also of the opinion that the motion for a nonsuit and the dismissal of the plaintiffs complaint was properly disposed of by the trial judge. Whether the plaintiff was or was not guilty of contributory negligence was, under the evidence in this case, clearly a question of fact for the jury, and properly submitted upon a fair and impartial charge to them. I think the same must be true as to the question of the negligence of thedefendant in the construction and maintenance of the sidewalk and ditch, by reason of which the plaintiff claims she was injured. On the whole case, we think there was no error committed at the trial for which" this j udgment can be reversed.

Judgment affirmed, with costs.

All concur.


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    Rachel A. Woolsey, App’lt, v. Trustees of the Village of Ellenville, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 11, 1895.)

    Costs—Condition op amendment.
    Costs, which were paid by the plaintiff as a condition for the allowance of an amendment of the complaint, cannot be subsequently taxed in his favor against the defendant upon the recovery of a judgment by him.
    Appeal from an order, disallowing certain items of costs.

      John E. Van Etten & Son (John E. Van Etten, of counsel), for app’lt; George G. & J. B. Keeler (A. T. Clearwater, of counsel), for resp’t.
   Mayham, P. J.

— This is an appeal from an order of" the special term modifying a bill of costs, as taxed by the clerk of Ulster county, in favor of the plaintiff. After two trials at the circuit, and an appeal to the general term on the third trial, the plaintiff obtained leave to amend his complaint on complying with the following order:

“ Ordered that leave be, and the same is hereby, granted to the plaintiff herein to file and serve a copy of said amended complaint upon the defendant’s attorney herein within twenty days from the date hereof on payment to the defendant’s attorney of the statutory costs after the first notice of trial, including two' trial fees at the circuit and one argument fee at the general term, and ten dollars, costs of this motion; but no disbursements or witnesses’ fees, or printing disbursements to be included in said payment, nor any other costs at the general term, except one argument fee.”.

. It appears that the items of costs above directed to be paid amounted in the aggregate to the sum of"$>190, and that the same constitute the statutory allowavice to the defendant for the items embraced in the order. On the third trial, and after the amendment of the complaint, the plaintiff recovered a verdict of $4,000, and, on entering judgment on such verdict, presented to the clerk for adjustment the same items of costs against the defendant, and amounting to the same aggregate sum. as that directed in the order allowing the amendment of the complaint to be paid by the plaintiff to the defendant as a condition for such amendment,which the clerk taxed under defendant’s objection, and which, on motion before the special term, were stricken out, and from which order this appeal was taken.

The plaintiff accepted of the terms imposed for the privilege to amend her complaint. We think the case comes clearly within the principle of the decision in Seneca Nation of Indians v. Hawley, 32 Hun, 288. As was said in that case: The order was an adjudication that the items covered by it belonged to the defendant. They could not again be taxed by either party.” This was the view taken' by the learned judge at special term, in which we fully concur. Order affirmed, with $10 costs and printing disbursements.

All concur.