text:
    COLUMBUS C. RISLEY, as Executor, etc., of ELIZA R. WIGHTMAN, Respondent, v. JAMES R. WIGHTMAN, Appellant.

      Plaintiff described in pleading as executor instead of as administrator — amendment allowed .at General T&rm ■ — Defect of pcwties — must be pleaded — Indorsement on note — when it takes a case out of statute of limitations.

    In this action, brought upon a promissory-note made and delivered to one Eliza R Wightman, the complaint alleged her death, the admission of her will to probate, and the issue of letters testamentary to the plaintiff as sole executor. The answer denied the appointment of plaintiff as executor and the issue of letters testamentary to him. Upon the trial it appeared that no executor had been named in the will, and that letters of administration with the will annexed had been granted to the plaintiff and one Harriet E. Ackerley.

      Held, that the error in the description of the representative character of the plaintiff was amendable, either before or after judgment, and that such amendment should be allowed by the General Term upon appeal.
    That any defect of parties plaintiff, arising from the omission of the plaintiff to join his co-administratrix with him, was waived by the. failure of the defendant to set up the defect in his answer.
    The defendant claimed that the action was barred by the statute 'of limitations. The note was dated March 1, 1864, payable one year after date. Upon the back of the note were indorsements of interest in the handwriting of the'testatrix, dated in 1865, 1866, 1867, 1868 and 1869, and May 9, 1870. The action was commenced April 12, 1876.

      Reld, as the indorsements purported to have been made by the testatrix before the note was outlawed, they were admissible in evidence against the defendant, without proof of actual payment.
    Whether or not such payments were actually made was a question for the jury.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      H. J. Ooggeshall, for the appellant.

      Henry T. Wiley, for the respondent.
   Talcott, J.:

This is an appeal from a judgment recovered on a verdict rendered at the Oneida circuit. The action is upon a promissory note made and delivered to one Eliza R. Wightman in her lifetime? and the plaintiff sues as b§r executor,

In the complaint, after alleging the death of Eliza R. Wightman, he alleges that the will was admitted to probate by the surrogate of Oneida county, and that letters testamentary were, thereupon, duly issued to the plaintiff as sole executor. The defendant by his answer denied that the plaintiff was ever appointed executor of Eliza R. Wightman, or that letters testamentary were ever issued to the plaintiff as sole executor of said Eliza.

When -the will came to be introduced it appeared that the places left for the names of executors had never been filled up, and that instead of letters testamentary having been issued to the plaintiff, he had, jointly with one Harriet E. Ackerley, been appointed administrator with the will annexed, and the defendant moved for a non-suit on the ground, that “this action having been brought and prosecuted in the name of the plaintiff as sole executor, and the evidence showing that he is administrator with the will annexed, he cannot under the pleadings recover as such sole executorand, that the action .is brought and prosecuted in the name of Oolumbus O. Risley, as sole executor of the estate of Eliza R. Wightman, deceased, whereas, the letters offered by plaintiff and received in evidence, show that Oolumbus O. Risley is not such sole executor, but is co-administrator with Harriet E. Ackerly, with the will annexed. The objection thus made presented two points: Eirst, Whether the plaintiff could recover by reason of the variance in his description of his representative character; second, because of the non-joinder as plaintiff of the co-administratrix of the plaintiff. As to the misdescription by the plaintiff of his representative character the complaint was amendable in that respect and should be amended accordingly. (Bank of Havana v. Magee, 20 N. Y., 355.) Where it is held that a misdescription of the plaintiff is amendable before or after judgment. As an amendment describing the plaintiff as administrator, with the will annexed, instead of executor, does not change the rights of the parties, and constitutes a mere technical variance in the description of the representative character, and the defendant has not been in any way mislead or injured by such misdescription, the complaint is ordered to be amended under section 173 of the Code of Procedure in force when this action was tried, and section 723 .of the Code of Civil Procedure, by stating the title of the plaintiff as that of administrator, with the will annexed, and by changing the averment that letters testamentary were issued to the plaintiff by the surrogate of Oneida county, to an averment that letters of administration, with the will annexed, were so issued.

As to the non-joinder, the answer does not set up any facts showing any defects of parties plaintiff; and as no such defect appears on the face of the complaint, the non-joinder of the co-administrator was waived by the defendant, when he omitted to allege in his answer the facts which show that Harriet E. Ackerley ought to have been joined with the plaintiff in bringing the action. If such facts had been set up in the answer, the plaintiff might have come to the trial prepared to show that Harriet E. Ackerley had resigned or been removed before the action was commenced.

The defendant also set up, by way of defense, that the cause of action did not accrue within six years next before the commencement of the suit. The note in question was dated March 1, 1864, payable one year after date; certain indorsements of partial payments on the note were proved to be in the handwriting of the testatrix. The indorsements were dated in 1865, 1866, 1867, 1868, 1869, and the last, a payment of twenty dollars, on May 9, 1870. The testatrix died in 1875, and the suit was commenced April 12, 1876. The part payment, May 9, 1870, took the case out of the statute for six years ensuing that payment. (Code, § 110.)

The indorsements in the handwriting of the testatrix which purport to have been made before the. note was outlawed were admissible in evidence. The .fact that the indorsements constituted admissions against the interest of the testatrix, at the time they were made, rendered them admissible in evidence against the defendant, without proof of the actual payments. Whether thfe payments were actually made was a question for the jury. (Roseboom v. Billington, 17 Johns., 182; Coffin v. Bucknam, 12 Maine, 471; Smith’s Leading Cases, 725, marginal.)

The judgment is affirmed and the amendment of the complaint specified in this opinion ordered.

Present — Mullin, P. J., Talcott and Smith, JJ.

Judgment affirmed and complaint ordered to be amended as specified in the opinion.


source: Caselaw Access Project

author: Talcott, J.:

license: Public Domain

text:
    NORTHERN INSURANCE COMPANY OF NEW YORK, Respondent, v. JOHN C. WRIGHT, Appellant.

      Surety — request that es'editm' will foreclose mortgage — neglect to comply with— effect of.

    The defendant being the owner of a bond and mortgage, dated September 28, 1809, for $4,400, $500 of principal being payable on January first of each year from date, assigned the same on September 26, 1872, guaranteeing that the security was sufficient for the payment of the amount thereof, and guaranteeing also the collection of the same. In January, 1873, several installments of principal being due and unpaid the secretary of the plaintiff, who then held the bond and mortgage under such assignment and guarantee, wrote to the defendant in regard to it. The defendant called at the office and notified the secretary that he wanted the company to foreclose the said mortgage. The company neglected to foreclose the mortgage until October 13, 1875. In the meantime a frame dwelling, worth $2,000, had burned down, and only $700 of insurance was received thereon.
    A deficiency having arisen upon the sale, for which it was sought to hold the defendant liable, held, that the act of the company in failing, for more than two years, to foreclose the mortgage, after defendant had requested it so to do, relieved him from all liability for the deficiency which had arisen.
    Appeal from a judgment in favor of -tbe plaintiff, entered upon tbe report of a referee in an action brought upon tbe following guarantee given by tbe defendant as administrator of Lucinda Wrigbt, upon tbe assignment of a bond and mortgage given by Michael Langdon to defendant’s intestate, to wit: “I, John C. Wrigbt, do hereby guarantee that tbe said security is amply sufficient for tbe payment of tbe amount secured to be paid by said mortgage, and I hereby guarantee tbe collection of tbe said mortgage.”

      MoCa/rlm c& Williams, for tbe appellant.

      J. Mullin, Jr., for tbe respondent.
   Talcott, J.:

This is an appeal from a judgment entered on tbe report of a referee. Tbe action is brought on a guaranty of collection on tbe assignment of a bond and mortgage. Tbe bond and mortgage assigned were dated on the 28th of September, 1869, and were to secure $4,400 of principal, payable $500 on the first day of January in each year thereafter with interest annually. The defendant held the legal title to the said bond and mortgage as administrator of Lucinda Wright, whose sole heir he also was. The plaintiff is the successor to the title of the Black River Insurance Company. On the 26th day of September, 1872, the defendant assigned the bond and mortgage to George F. Paddock and accompanied such assignment with his guaranty, that the security was sufficient for the payment of the amount secured to be paid by said mortgage, and a guaranty of the collection of said bond and mortgage; and on the 20th of October, 1872, Paddock duly assigned the said bond and mortgage and guaranty of collection to the Black River Insurance Company, the name of which has been changed to that of the plaintiff, under chapter 208 of the Laws of 1875. The defendant was a director of the Black River Insurance Company and a member of the executive committee of said board until January 4, 1874, but never attended any meeting of said board or said committee after February 3, 1873. Orrin C. Frost was the secretary of the Black River Insurance Company from its organization until January 4, 1874. In January, 1873, several installments of principal having become due on sard bond and mortgage and remaining unpaid, Frost, as such secretary, wrote to the defendant in regard to the. payments due on the mortgage, and requested him to see Mr. Langdon, the mortgagee, and have it paid. In response to that letter the defendant called at the office of the Black River Insurance Company, and then and there notified Frost that he wanted the company to foreclose the said mortgage, and by due course of law.” At that time there was a frame dwelling-house upon the mortgaged premises worth some $2,000, which was destroyed by fire in October of the same year. The building was insured for $1,000, but in consequence of a dispute as to the liability of the insurance company only $700 was paid upon the loss, which was paid to the Black River Insurance Company.

The Black River Insurance Company commenced a foreclosure of the said mortgage on the 13th day of October, 1875, and obtained a judgment of foreclosure and sale, and in and by the said judgment it was adjudged that there was due to the insurance company, as assignee of said mortgage, tbe sum of $4,561.48 for its debt and $120.99 costs. The. defendant was made a party defendant in that suit, but no personal claim was made against him. The referee finds that Frost never communicated to any of the other officers of the company the request of the defendant that the mortgage should be foreclosed.

Here was a delay of some two years and nine months, after the Black River Insurance Company had been expressly requested by the surety to proceed and enforce the collection of the demand against the principal, before any proceedings were commenced to that end, when the security was in all probability good for the amount then due and which would have become due while the foreclosure was in progress. It is well settled in this State that if a surety requests the holder to proceed and enforce his security against the principal, and he omits to do so within a reasonable time so that a loss occurs, the surety is discharged.- (King v. Baldwin, 11 Johns., 384; Remsen v. Beekman, 25 N. Y., 552.)

But again. The action is upon a guarantee of collection, and no notice was necessary from the surety to the creditor requiring the latter to proceed with due diligence to collect the principal security. It is a condition precedent in such a case that the creditor shall diligently endeavor to collect the amount of the principal debtor, by exhausting the ordinary legal remedies for that purpose, and if he fails to do this the surety is discharged.

In Keyes v. Tifft (1 Cow., 98) it was held that the allowance of the lapse of one term after the debt became due without suit against the principal, discharged the surety.

In Craig v. Parkis (40 N. Y., 181) it was held that a delay of six months in foreclosing a mortgage after a payment became due, discharged the guarantor. (See, also, Moakley v. Riggs, 19 Johns., 69; Loveland v. Shepard, 2 Hill, 139.)

The referee seems to recognize this as the settled law, for lie finds that the creditor was bound to proceed with due diligence to collect the amount due on the bond and mortgage as the same became due and payable, by process of law, “as a condition precedent to a recovery on said guarantee against the defendant,” but he allows a recovery against the defendant upon the ground, as stated by him, that, “by his acts and negotiations with the officers of the said insurance company and plaintiff, he waived a strict compliance with such condition precedent.” We do not see in the case any sufficient evidence of a waiver on the part of the defendant of a compliance with the conditions precedent. It appears that in April, 1873, the mortgagor and obligor, wishing to remove from the premises, conveyed them to the defendant under an agreement that the defendant might sell them, returning to the mortgagor any surplus that should be obtained on the sale over and above the amount of the bond and mortgage held by the insurance company, to which mortgage the conveyance was made subject. The defendant did not, in any manner, assume the payment of the bond and mortgage.

It is said, too, that the defendant kept the fact that he had a conveyance of the premises concealed from the insurance company. The evidence, perhaps, tends to show that the defendant did not mention the fact of this conveyance to the officers of the insurance company, but fails to show that the conveyance was surreptitiously taken, or was intentionally concealed. It was put upon record in May, 1873, and the defendant was in possession, so far as anybody was (the mortgagor having left the farm and removed to another place). Besides, there was no reason why the defendant was bound to notify the insurance company of the fact of the conveyance. It was an arrangement, as appears, made by them for the convenience of the mortgagor, that if the defendant had an opportunity to sell the place, he might be in a position to convey without sending to the mortgagor for a deed.

The defendant resided in the neighborhood of the mortgaged premises, some sixteen miles distant from the office of the insurance company. The president of the company testifies that the defendant told him that the mortgagor was a poor man, and advised that the property be sold, and that he, the president, acquiesced in the plan and arranged with the defendant to negotiate 'a sale if possible, and frequently inquired if he had perfected a sale — to which, the defendant replied, that he had not and that he had written to one or two persons about it. In all this, we see no evidence of any intention on the part of the defendant to waive any of his rights as a surety, but his acts seemed to have been entirely consistent with a desire to have the matter so arranged, that both himself and the insurance company, should, if possible, be saved from loss.

We tbink there was no evidence of any waiver of tbe condition precedent; especially as tbe defendant bad made a special request that tbe mortgage should be foreclosed at once, and tbe company failing to take any measures for that purpose tbe defendant might well have considered himself discharged from bis guaranty, and tbe acts and negotiations by him afterwards which have been adverted to, are, we tbink, not inconsistent with an intention of insisting upon tbe rules of law as applicable to bis case. Tbe question fairly arose on a motion for a nonsuit and on tbe exceptions to tbe decision. As this view, if correct, disposes of tbe case, we do not examine any of tbe other exceptions.

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

Present — Talcott and Smith, JJ.; Mullin, P. J., not sitting.

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


author: Taloott, J.:

text:
    THE CAYUGA RAILWAY COMPANY, Plaintiff, v. CORNELIUS A. NILES, Defendant.

      Parol agreement — easement cdnnot.be created by — not to be performed under one year —when it mures as a license.

    The defendant’s assignor having a five years’ lease of certain lands, upon which was a stone quarry, entered into a parol agreement with plaintiff’s assignor, by which the latter, a railroad company, were to lay a side track to the quarry over the leased land; and were to be allowed to take such loose dirt and stone as they might need for their road, for which they were to pay plaintiff’s assignor $100 per year, and he was to use the side track to ship his stone. The agreement was to continue during the term of the lease. Subsequently the plaintiff, having become vested with all the rights of the first company, paid fifty dollars on account of the rent and used the side track to draw stone and dirt. Thereafter, desiring to abandon the agreement and take up the tracks, they were prevented by the defendant from removing the same.
    In this action of replevin, brought by the railroad company to recover the iron and ties and for damages for the detention of the same, held, that the effect of the agreement would be to give tbe company an easement in tbe land upon wbicb tbe tracks were laid, and that, as it was a 'parol agreement, it was void under the statute of frauds.
    That it was also void, because it was a contract not to be performed within one year.
    That the agreement, though void as a contract, was valid as a license; the company were not therefore trespassers in laying the tracks thereunder, and that for that reason the rails and ties so laid down did not become fixtures.
    That plaintiff was entitled to recover.
    Motion for a new trial on a case and exceptions ordered to be heard, in the first instance, at the General Term, after a verdict in favor of the plaintiff, directed by the court.

      J. T. Pvngree, for the defendant.

      J. B. Gox, for the plaintiff.
   Taloott, J.:

This is a motion for a new trial, on behalf of the defendant, on exceptions taken at the Cayuga Circuit and ordered to be heard at the General Term in the first instance.

The action was in replevin for the wrongful detention of certain raih’oad iron and a quantity of ties laid down, and constituting a railroad track leading from the main track of what was lately the Cayuga Lake Railroad Company, now belonging to the plaintiff. The said side track is about eighty rods long and was laid upon and across land belonging to Mrs. Winegar and led to a stone quarry situated on Mrs. Winegar’s land.

One Hawley was the lessee from Mrs. Winegar of the premises on which the side track was laid, and the side track was laid by the Cayuga Lake Railroad Company, the predecessors in title of the plaintiff, by and under an agreement between that company and Hawley, the lessee of Mrs. Winegar. The railroad company wished to procure loose stones and dirt for the purposes of the railroad from the said quarry. Hawley had taken a lease of the premises for the term of five years from September 3, 1873, at the annual rent of $500, and it was then agreed between Hawley and the railroad company, by parol, to the effect that the company was to lay this track to the quarry and to have the earth and loose stones down to the building stone, and were to send their ears into the quarry by means of the side track and take out what they wanted, and in consideration thereof the company agreed to pay $100 per year of the annual rent due by Hawley’s lease, and if Hawley loaded the cars for the company it was to pay him certain rates for so doing.

The Cayuga Lake Railroad Company, under the said parol agreement, laid down the side track .which, by the parol agreement, Hawley was to use in shipping building stone from the quarry. The agreement was to continue during the term of Hawley’s lease. Whether the Cayuga Lake Railroad Company had ever availed itself of the privilege of taking out the loose earth and stone, or whether that company ever paid any thing on the rent of $100 per year, did not appear. The Cayuga Lake Railroad Company and all its lands and premises, rights of way, side track, branches, turnouts; etc., owned by the company on December 6,1872, or to be thereafter constructed, erected or acquired, in any way connected with, or appurtenant to, the said railroad track, was sold on the foreclosure of a second mortgage and purchased by one James Stillman, to whom the referee, who made the sale, conveyed on the 29th of August, 1874, and Stillman conveyed to the plaintiffs. In the meantime Hawley, by parol, transferred his lease by parol to the defendant Niles, who had been a pai’tner with Hawley in working the quarry.

The new coxnpany (the plaintiff) by its president, agx*eed by parol with Niles, that the arrangement should contixxue at the same price of $100 per year, and went in and took out the dix’t and loose stones, and paid Niles for what cars he loaded at the rates which had been agreed on —■ and paid also fifty dollars on account of the rent. In 1875, the sxxperintendent of the plaintiff’s road was desirous of removing the said rails and ties composing the said side track, but was forbidden and prevented by Niles, the defendant.

On this appeal, the defendant’s counsel presents two points, which ax’ose on his motion for a nonsuit, and to the railing of the justice at the Circuit:

First. That the contract was not void by the statute of frauds.

Second. That if void then the placing of the side tracks on the premises was a trespass, and the said rails and ties became fixtures, for which, thex’efore, this action would not lie.

We think the contract was void at law under the statute of frauds, as being an agreement for an easement, wherfeby, if valid, the premises, so far as the leasehold interest for five years was concerned, became the servient tenement.

The statute is, that no estate or interest in lands, or any trust or power, over or concerning lands, or in any manner relating thereto, shall be created, granted or assigned, etc., unless by act or operation of law or by a deed of conveyance.

We think, also, the contract was void as not to be performed within a year. (Pitkin v. The Long Island Railroad Company, 2 Barb. Ch., 221; Day v. The New York Central Railroad Co., 31 Barb., 548.)

We think, also, that the rails and ties so laid down, did not become fixtures, for the intent was that they were to be placed there for a temporary purpose and the consent of the lessee, though void as a contract, inured as a license and prevented the act from being a trespass. The receipt of the fifty dollars on account of rent, was conclusive evidence of the consent of the lessee to the occupation of the premises by the side track, and judgment should be ordered for the plaintiff on the verdict.

Present — Mullin, P. J., Talcott and Smith, JJ.

New trial denied and judgment ordered for the plaintiff on the verdict.


text:
    MICHAEL HENNESSY, Jr., Appellant, v. DENNIS CONNOLLY, Respondent.

      Policemen — power of, to a/rrest for violating city ordinance.

    A policeman has no authority to arrest, without a warrant, a person violating a city ordinance, unless expressly authorized so to do by the city charter, or unless such violation of the ordinance is accompanied by a breach of the peace.

      Butotph v. Blust (5 bans., 84) distinguished.

      Appeal from a judgment in favor of the defendant, entered upon the verdict of a jury, and from an order made at the Special Term denying a motion for a new trial made upon a ease and exceptions.

      S. A. Webb, for the appellant.

      N. W. Nutting, for the respondent.
   Talcott, J.:

This is an appeal from a judgment for the defendant, rendered on a verdict at the Oswego Circuit, and from an order of the Special Term denying a new trial. The action was for assault and battery and false imprisonment. The defendant was a policeman of the city of Oswego, and arrested the plaintiff on view and without warrant, on the charge of violating an ordinance of the city, which is as follows, viz.: “ Section 8. The bridge across the Oswego river in this city, on the line of Bridge street, shall be kept and reserved free from all obstructions, and all groups and assemblages of persons thereon at any time are strictly prohibited. No person or persons shall sit or stand on said bridge or any railing thereof or occupy the same so as in any manner to obstruct the free passage thereof, or to hinder, molest or annoy any person in passing along the same; and no person shall peddle any fruits, nuts or other articles or things thereon. "Whoever shall violate any provision of this section shall forfeit a penalty of five dollars for each and every offense.”

By the charter of the city of Oswego, title 3, section 8 (Sess. Laws of 1860, ch. 463), the penalty for a violation of such an ordinance is to be collected before a justice of the peace, or other court, and the first process may be by civil warrant or summons.

The justice at the Circuit instructed the jury that the plaintiff was violating a city ordinance in regard .to the bridge, and if he did not desist at the command of the officer then the officer had a right to arrest him without any process.

We find nothing, and are referred to no section in the charter of the city of Oswego, providing that a policeman may arrest without warrant and simply on view', for the violation of a city ordinance. It is not like the charter of Syracuse, which was examined by this court in this respect in Butolph v. Blust (5 Lansing, 84); and it was found in that charter the power was expressly conferred on a policeman of the city to arrest, detain and take before the police justice, any person whom he shall find committing a violation of any ordinance of the city.

Admitting the obstruction of the bridge to have been a misdemeanor, the policeman had no authority to arrest the defendant unless such misdemeanor was accompanied by a breach of the peace at common law. (Butolph v. Blust, supra.) There was some evidence tending to show a breach of the peace by the plaintiff, preliminary to the arrest, and that the conduct of the plaintiff was reprehensible in the extreme, but the difficulty with the charge excepted to is, that it was not in any manner qualified; and the jury was instructed generally that if the plaintiff was violating a city ordinance and did not desist on demand, the policeman had a right to arrest him without warrant.

It may be that a policeman should have authority to arrest without warrant, and on view, any person engaged in the violation of a city ordinance, and we presume this authority is conferred by most city charters, but it is a matter which rests with the legislature, and until the power is conferred, an arrest by a constable without warrant, in case of a misdemeanor, can only take place where it is accompanied by a breach of the peace. (1 Chitty’s Crim. Law, 13; Carpenter v. Mills, 29 How. Pr. R., 473.)

For the reason that the jury, under the instruction given them, cannot be deemed to have found a breach of the peace, the judgment and order denying a new trial must be reversed.

Present — ■ Mullin, P. J., Talcott and Smith, JJ.

Judgment and order reversed and new trial granted, costs to abide the event.


text:
    MORTIMER P. WORTHY, as Assignee of DUDLEY W. CASE, Plaintiff, v. DAVID V. BENHAM, Sheriff of Ontario County, Defendant.

      Gfen&ral assignment — failure of assignee to give bond — effect of — chap. 848 of 1860- and chcup. 56 of 1875.
    Under the provisions of chapter 348 of 1860, as amended by chapter 56 of 1875, relating to general assignments, the failure of the assignee to enter into the bond within the time thereby 'prescribed does not invalidate the assignment. The statute simply prohibits him from selling the assigned property or converting it to the purposes of the trust until he shall have entered into such bond.
    Motion for a new trial on a case and exceptions ordered to be heard in the first instance at the General Term, after a nonsuit directed by the court.

      Metcalf dc Field, for the plaintiff.

      Fdwm Hicks, for the defendant.
   Talcott, J.:

This is a motion for a new trial after a nonsuit at the Ontario Circuit, upon exceptions ordered to be heard at the General Term in the first instance. The action is for taking and detaining 6,000 hoop poles.

The plaintiff claims as the assignee of one Dudley W. Case under an assignment for the benefit of creditors ratably and without giving preferences. The assignment was dated and acknowledged the 25th day of September, in the year 1876. Case made a schedule and inventory of the assigned property, pursuant to section 2 of chapter 318 of the Laws of 1860. No question was made as to the form or contents of the said schedule and inventory. The schedule and inventory were duly verified by Case on the 19th day of October, 1876, and delivered to the county judge on the 28th of October, 1876, and filed in the office of the county clerk on the 30th of October, 1876.

The defendant justifies the taking and detaining of the goods, as sheriff of Ontario county, by virtue of an execution in favor of one Edwin Bond on a judgment against the assignor, Case, recovered in February, 1877. The defendant alleged in his answer that the said assignment was made and accepted with intent to hinder, delay and defraud the creditors of said Case. On the trial he gave no evidence tending to impeach the validity of the assignment, except by proving that the bond required by the statute of 1860 was not approved by the county judge or filed till the 4th of December, in the year 1876. The justice at the Circuit ordered the plaintiff to be nonsuited, relying on the case of Juliand v. Rathbone (39 N. Y., 369).

We think the Circuit judge erred in directing the nonsuit. The Court of Appeals held, in J%dia/nd v. Bathbone, that the neglect to file the inventory and schedule within the time prescribed rendered the assignment void; and afterwards the legislature, by the act of 1874, chapter 600, enacted that if the assignor omits or refuses to make and deliver the inventory or schedule and affidavit, as in the act specified, the assignment shall not, for such reason, become invalid or be ineffectual.” This alteration of the statute the Court of Appeals, in The Produce Bank v. Morton (52 How. Pr. R., 157), recognizes as an abrogation of the rule laid down by the court in Juliand v. Rathbone (supra). By the act of 1875, the statute of 1860 was still further amended by providing that the assignee, in any such assignment, shall, within ten days after the delivery to the county judge of the inventory and schedule, and before he shall have power or authority to sell, dispose of or convert to the purposes of the trust any of the assigned property, enter into a bond, etc. The statutory provision on this subject seems to intend, not that a failure to enter into the bond within the ten days shall have the effect to avoid the assignment, but to prohibit the assignee from selling the assigned property, or converting it to the purposes of the trust, until he shall have entered into such bond. Such seems to be the view the courts have taken of that provision since the case of Juliand v. Rathbone.

The Com-t of Appeals, in Thrasher v. Bentley (59 N. Y., 649; S. C. more fully reported in 1 Abbott’s New Cases, 39), holds, that even the entire invalidity of the bond does not affect the validity of the assignment. See, also, a decision to the same effect in the first department. (Von Hein v. Elkus, 8 Hun, 516.)

The nonsuit is set aside and a new trial ordered, costs to abide the event.

Present — Mullin, P. J., Talcott and Smith, JJ.

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


author: Talcott, -I.:

text:
    SAMUEL KOPELOWICH, Appellant, v. WILLIAM KERSBURG, Respondent.

      Or dm' of wrest— Buie 6 of 1874 — what a sufficient compliance with.

    It is a sufficient compliance with. Rule 6 of the Rules of 1874, requiring the sheriff to file with the clerk the order of arrest and affidavits on which it was granted, and directing that a copy of the rule be indorsed on the order of arrest before its delivery to the sheriff, if the substance of the rule be indorsed upon the outside of the original papers given to the sheriff, although such indorsement be omitted from the copy of the papers served upon the person arrested.
    Appeal from an order made at the Special Term setting aside an order of arrest.

      Chamberlain & Kncvpj), for the appellant.

      Fuller da Vann, for the respondent.
   Talcott, -I.:

This is an appeal from an order of the Onondaga Special Term made in May, 1877, setting aside an order of arrest granted in the action in March, 1877, with costs.

The order setting aside the order of arrest was granted, apparently, as appears from the memorandum of the justice, upon the ground that a copy of the sixth rule was not indorsed. It appears by the stipulation in the case, that no question was made as to the sufficiency of the affidavits on which the order of arrest was made. The affidavits and the order were so attached that when the papers were folded, the back of one of the affidavits formed the outside of the package, and upon the outside of the original papers was indorsed a direction to the sheriff, containing the substance of the sixth rule, •but no such notice or direction was indorsed on the copies served.

The justice at Special Term followed the case of Dent v. Watkins (49 How. P. R., 275), expressly reserving his own opinion. The case of Dentv. Watlwns was decided by the Superior Court of New York, and holds that a copy of the indorsement must be served. We have to say about this, that the Rule 6 does not require by its terms any copy of the indorsement to be served, and as this is a mere technical objection, we think the rule is fully satisfied by complying with its terms.

In Barker v. Cook (25 How. Pr. R., 190), approved by the Court of Appeals, it was held that it was not necessary in serving copies of papers required to be served, to serve copies of the signature or jurat.

It was held by Mr. Justice Henderson, in Forward v. French (52 How., 88), that the said. Rule 6 was without authority, as being in conflict with section 183 of the Code of Procedure, which provides that the order of arrest shall direct the sheriff to return the order “ to the plaintiff or attorney by whom it shall be subscribed or indorsed ” However this may be, it seems to us that the rule cannot be stretched beyond its tel ms.

In the new “ Code of Civil Procedure ” section 561, it is provided that the order of arrest shall require the sheriff “ to return the order with his proceedings thereunder, as prescribed by law,” * so that it is not perhaps important at this day to determine whether Rule 6th was in conflict with the Code of Procedure or not, as we think the order setting aside the order of arrest should be reversed, because we think the indorsement in this case, substantially complied with the rule.

Order appealed from reversed, without costs of appeal to either party.

Present — -Mullin, P. J., Talcott and Smith, JJ.

Order appealed from reversed, without costs to either party.

       Rule 6 of 1874 was omitted from the rules of 1877, and the whole matter is now regulated by sections 577 and 590 of the Code of Civil Procedure.— [Rep.


author: Taucott, J.:

text:
    HORACE WEBSTER and CHARLES W. LAWRENCE, Respondents, v. JAMES P. BAINBRIDGE, Appellant.

      Ord&r striking out am answer as frivolous — appealable — A note, in order to líame the effect of extending the time of payment of a past debt, must be negotiable.

    In an action to recover for liquors sold to the defendant, the defendant set up that the plaintiff had accepted the defendant’s promissory note for the amount due, whereby the time for the payment of the debt was extended, and that such note was not yet due.

      Held, that as the answer did not allege that the note so accepted was a negotiable note, it was properly overruled as frivolous.
    An order striking out an answer as frivolous is appealable.
    Appeal from an.order striking out an answer herein as frivolous, and directing judgment for the plaintiffs for the relief demanded in the complaint, with costs. These actions, two in number, were brought to recover for liquors sold to the defendant by the plaintiffs, the original term of credit for which- had expired. The only defense set up in the answer was that the time of payment had been extended. In one action the answer alleged “ that in pursuance of an agreement the defendant made and gave to the said plaintiff his promissory notes, which the said agent then and there received and accepted in settlement of said indebtedness, and the defendant alleges that neither of said notes has yet matured or become due, or any part thereof,” and in the other that “ they took from the said defendant his note for such amount, payable June 16, 1877, which they have ever since retained, and which they never offered to release to the defendant until this suit was brought; and thus, defendant alleges, that said indebtedness of this defendant was thus arranged, and that said note has not yet matured or become due, or any part thereof.”
    A motion was made to dismiss the appeal, on the ground that the order was not appealable.

      Wm. F. Edmonds, for the appellant.

      Ffathamel Foote, for the respondents.
   Taucott, J.:

We tliink the appeal in this case is properly brought from the order to strike out the answer of the defendant as frivolous, otherwise the defendants seem to be remediless, as when the answer is struck out as frivolous, it no longer appears upon the record, and the judgment is entered up in form, as for want of an answer. (Briggs et al. v. Bergen, 23 N. Y., 162; The J. Dixon Crucible Co. v. The New York Steel Works, 57 Barb., 447.) Consequently the motion to dismiss the appeal must be denied.

As to the merits of the order striking out the defendants’ order as frivolous, the answer does not purport to set up any defense to the action, except that the plaintiffs, through their agent, accepted the promissory note of the defendants, whereby the time for the payment of the debt was extended. It seems that the acceptance of a-negotiable note of the debtor operates to suspend the cause of action until the maturity of the note, but if the note be not negotiable it is otherwise. (Geller v. Seixas, 4 Abb., 103; Hughes v. Wheeler, 8 Cow., 77; Raymond v. Merchant, 3 id., 147.)

The answer in this case does not aver the note given for the extended credit to have been negotiable ; and the plaintiffs in their complaint allege that they are still the owners and holders of- the notes given on the extension, and that they are‘ready and willing to surrender the same to the defendant. (Cole v. Sachett, 1 Hill, 516; Hill v. Beebe, 13 N. Y., 556.)

The result is, that the motion to dismiss the appeal must be denied, and the order appealed from affirmed, with ten dollars costs and disbursements.

Present — Muxlin, P. J., Talcott and Smith, JJ.

Motion to dismiss appeal denied; order appealed from affirmed, with ten dollars costs and disbursements in two cases.


author: Smith, J.: Talcott, J.

text:
    SYLVESTER TRIMMER, Respondent, v. ZACHARIAH TRIMMER, Appellant.

      Evidence — res gestee — what statements do not constitute pa/rt of.

    This action was brought to recover the amount alleged to he due to the plaintiff upon a sale of certain real estate made by his assignor to the defendant. Upon the trial the person who drew the deed was called as a witness and stated, against the defendant’s objection and exertion, that the grantor, at the time he was executing the deed (the grantee not being present) stated to the witness that the purchase-price had not been paid, but that the grantee had promised to pay it whenever he should be requested so to do.

      Reid, that the statement did not constitute a part of the res gesta, and should have been excluded. (Talcott, J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered on tbe report of a referee.
    Tbe action was brought to recover tbe purchase-price of certain land sold and conveyed to tbe defendant by Leonard Trimmer, tbe plaintiff’s assignor. Tbe referee found, upon conflicting testimony, that a portion of tbe price bad been paid, and be reported in favor of tbe plaintiff for tbe reihainder.

      A. J. WilT&m, for tbe appellant.

      G. E. JRipson, for tbe respondent.
   Smith, J.:

Tbe only questions in this case deserving consideration are presented by exceptions to certain rulings of tbe referee, admitting testimony offered by the plaintiff.

Tbe testimony of tbe plaintiff’s witness, Losee, as to declarations made by the defendant’s son William, was received conditionally, on tbe statement of tbe plaintiff’s counsel, that be expected to show that William was acting, at tbe time, as tbe agent of tbe defendant. That expectation was not realized. There was no evidence in tbe case that tbe defendant authorized bis son to procure a deed to be drawn. Tbe bare fact of bis subsequent acceptance of tbe deed is no evidence of a prior authorization, nor does it appear that he accepted with knowledge of his son’s declarations. Besides, the defendant and his son testified that the latter had no authority from his father to procure the deed. The testimony was, therefore, improperly received, but as the whole case is before us, and not the exceptions, alone, it is proper to inquire whether the testimony in question prejudiced the defendant. (Crary v. Sprague, 12 Wend., 41; Beebe v. Bull, id., 504; Cameron v. Irwin, 5 Hill, 212; Watson v. Campbell, 38 N. Y., 153; Porter v. Ruckman, id., 210.) The declarations testified to had no possible bearing on the question of payment, which was the only issue in the case. The testimony of Losee, that the son told him he need not be particular to read the deed to the old man (the plaintiff’s assignor), if uncontradicted, may have affected the credit of the son, who was afterwards called as a witness for the defendant, but to make it admissible for that purpose it was not necessary to show that the son had authority to act for his father, and the attention of William was called to it when he was on the stand, and he fully contradicted it. On the whole, were this the only testimony the admissibility of which is questioned, I should hardly be prepared to say that it constitutes a substantial ground for reversal.

But another item of testimony elicited by the plaintiff’s counsel, from the witness Losee, presents a more serious question. The witness was permitted to testify, in the face of an objection, that when the old man (Leonard Trimmer) executed the deed, he said to the witness that he had not got his pay for the land, but Zachariah had agreed to pay him when he wanted it. It did not appear that the defendant or his son William was present at the time when the declaration was made. The plaintiff’s counsel claims that the declaration was a part of the res gestee ; not so, it was merely a casual conversation between the grantor and the scrivener, having no necessary connection with the act of signing or delivering the deed, and no legitimate tendency to characterize or qualify the deed, in the face of the written declaration contained in it that the consideration was paid. The res gestee were the transactions between the parties to the deed; and the words which passed casually between the grantor and the scrivéner, who in no way represented the grantee, were no part of them. The testimony was clearly inadmissible. Was it prejudicial to the defendant ? It could hardly have been otherwise ; it bore directly upon the very point in controversy, and although the grantor was afterwards called as a witness and gave testimony of the same import as his declarations, yet it is impossible to say that his testimony did not, in the judgment of the referee, derive credit and corroboration from the declarations themselves. We see no way of avoiding the conclusion that the reception of this item of evidence was erroneous.

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

Mullin, P. J., concurred.

Talcott, J.

(dissenting):

This action is to recover the price unpaid on the conveyance of thirty-six acres of land by Leonard Trimmer, the father of both parties, to the .defendant. The claim was subsequently assigned to the plaintiff in the action. The appellant presents for consideration several exceptions to the admission and rejection of evidence.

The production of the deed, which, in the usual form, acknowledged the payment of the purchase-price, prima faoie establishes the fact of such payment; and although the referee says, in one part of his opinion, that the burthen of proving payment rests on the defendant, I do not understand him as asserting this as an abstract principle of the law of evidence, but only as applicable to the facts proved in this case, the grantor having, as a witness, denied that any payment on account of the purchase-money was made at the time of the conveyance, but claiming that the defendant was to pay the purchase-price afterward, at such times as the grantor should need the money; and the defendant himself, not controverting this statement, but claiming that he had made full payment afterward from time to time, by applying indebtedness due from the grantor to him on various accounts, so that, in my opinion, the referee is to be understood that, on the facts and concessions in the case, it must be assumed that the acknowledgment of payment contained in the deed was not, in point of fact, true as indicating that any payment was made at the time of the conveyance.

In general the consideration clause of a deed is not within the rule excluding parol evidence to contradict a writing. (Adams v. Hull, 2 Denio, 306; Whitbeck v. Whitbeck, 9 Cow., 266; Shephard v. Little, 14 Johns., 210; Witbeck v. Waine, 16 N. Y., 538.)

It seems that a deed had been drawn up by one Borst for the purpose of conveying the land in question, the description contained in which was not clear and satisfactory, and therefore "William E. Trimmer, a son of the defendant, applied to one Losee to draw another deed, with a different and more perfect description of the premises intended by the grantor to be conveyed. Losee, as a witness, was inquired of by the plaintiff’s counsel as to what was stated by William E. Trimmer, when he applied to the witness to have the new deed drawn. To this question the counsel for the defendant objected, on the ground that the evidence called for was immaterial, and that William was not shown to be the agent of the defendant. The referee overruled the objection on the ground assumed by the plaintiff’s counsel, that the plaintiff expected to show that William was acting as the agent of the defendant. The objection, therefore, merely went to the order of proof, and if the plaintiff afterward failed to make proof of the agency, it was incumbent on the defendant, if he intended to rely on this objection, to move to strike out so much of the testimony as related to what the supposed agent had said to Losee. But, moreover, the evidence objected to was wholly immaterial to any issues in the action, and could not have, in any way, affected the conclusions of the referee, or any issue presented by the case.

The witness Losee further stated, in the course of his examination, that when the grantor and his wife executed cund acknowledged the deed, “ I said to the old man (the grantor) you are deeding away about the last piece of property you have got; have you got your pay for it ? ” He said, “ No, but Zachariah had agreeed to pay him when he wanted it.” To this testimony the defendant objected, and on the objection being overruled took an exception.

My brethren differ with me as to the admissibility of this evidence, and think a new trial should be ordered in consequence of the ruling of the referee, whereby the testimony was held admissible.

I think the declaration of the executor made at the time of executing and acknowledging the deed, as to whether the consideration mentioned in ’the deed had been paid, and that an arrangement had been made for the payment thereof, in future, was plainly a part of the res gestm and admissible as a declaration accompanying an act, and as tending to counteract the effect of the evidence of payment afforded by the formal acknowledgment of the payment of the consideration contained in the deed which he was then in the act of executing and acknowledging. The same witness was subsequently asked, “ Did you at the time measure off the land described in the Borst deed drawn by you ? ” This the plaintiff’s counsel objected to as immaterial. The testimony of the witness upon this subject could have had no bearing upon any issue in the case. There was no controversy about the quantity of land conveyed in the deed which was finally executed, and the testimony was wholly irrelevant. The testimony of the defendant as to whether he had received any thing from Eliphalet’s estate, by the hands of the grantor, was simply explanatory of testimony which had been given by other witnesses, as to the distribution which had been made of the estate of a deceased brother, and was wholly immaterial to any issue in the action. The questions of fact decided by the referee were as to the amount which should be allowed to the defendant as payments toward the purchase-price of the land conveyed, and I think, so far as we are able to see, on the vague and conflicting evidence, the findings of the referee were quite as favorable as could be justified under the answer of the defendant; and on the whole case I think the judgment should be affirmed. But as my brethren differ with me as to the admissibility of the evidence of Losee as to the declarations of the grantor made at the time of the 'execution and acknowledgment of the deed, and are of the opinion that for the admission of that testimony, the judgment should be reversed and a new trial ordered, it must be reversed accordingly.

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


author:
Smith, J.: Mullin, P. J.
      Folger, J.,

text:
    ELIZABETH SALTER, Administratrix, etc., of FREDERICK E. SALTER, Deceased, Respondent, v. THE UTICA AND BLACK RIVER RAILROAD COMPANY, Appellant.

      Action for negligence — Railroad crossing — duty of one passing over.

    The plaintiff's intestate was struck by one of defendant’s engines and killed, while driving a team of horses across one of its tracks. Upon the trial counsel for the defendant requested the court to charge that it was negligence on the part of the intestate, if he approached the crossing at such a rate of speed as to be unable to stop or turn his horses aside before going on to the track. The court charged, “that if the intestate approached the track at such speed that he was unable to control or stop his team, without making any effort to apprehend the approach of the train,” he was guilty of negligence.

      Held, that the charge as requested was properly refused, and that as modified it was as favorable to defendant as it was entitled to, except that it was the duty of the plaintiff’s intestate to make such effort as was reasonable under the circumstances to ascertain if a train was approaching. (Mulmn, P. J., dissenting.)
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial made upon tbe minutes of tbe justice before whom tbe action was tried.

      F. Kerncm, for tbe appellant. -

      F. W. Subbard, for tbe respondent.
   Smith, J.:

Tbe defendant’s counsel requested tbe court to charge tbe jury, without qualification, that if tbe plaintiff’s intestate approached tbe crossing at such speed as to be unable to stop or turn bis horses aside, before going on tbe track, be was negligent.

Tbe presiding justice thinks tbe refusal was error, and that for that reason tbe judgment should be reversed and a new trial ordered.

I am unable to concur in that opinion; I think tbe refusal of tbe court to charge in tbe exact terms of tbe request was correct. It depended upon certain questions of fact, which tbe jury were to decide upon evidence in some respects conflicting, and from which different conclusions might be drawn, whether the deceased was negligent in driving towards the crossing in the manner stated in the request. If the approaching train was not in sight or hearing, or if, with the exercise of due care and attention, the deceased was not aware of its approach, there was nothing in the speed or manner of his driving which the law can pronounce negligence per se. The questions whether he omitted to look and listen, or whether, having looked and listened, he failed, without fault on his part, to see or hear the coming train, were for the jury.

The court instructed the jury, in reply to the request, that if the intestate approached the track at such speed that he was unable to control or stop his team, without making any effort to apprehend the approach of the train, he was guilty of negligence. The defendant’s counsel excepted, on the ground that the charge was not exactly as requested. The charge was quite as favorable to the defendants as they were entitled to, except that it, in effect, treated the intestate as free from negligence, if he made any effort, however slight, to ascertain whether a train was approaching, whereas, he was required to make such effort as was reasonable in the circumstances of the case. That point, however, was not suggested by the exceptions taken, and the defendants cannot now avail themselves of it.

I think the case was well tried and that the judgment should be affirmed.

Talcott, J., concurred.

Mullin, P. J.

(dissenting):

The learned judge who tried this cause at the circuit conformed to the views of the Court of Appeals, upon the appeal to that court as set forth in the opinion of Folger, J., and there is, therefore, no propriety in considering them on this appeal. We shall consider only a few of the exceptions of the defendant’s counsel to the charge of the judge.

The defendant’s counsel moved for a new trial on the judge’s minutes, and he appeals from the order refusing such motion. The defendant has the right on the appeal from the order to present the question, that all or any of the findings of fact are against the weight of the evidence or without any evidence to support them.

Folger, J.,

in his opinion, has examined seriatim all the material questions of fact that were proved on the former trial, and the evidence in the case now before us is substantially the same as was given on the former trial, and he arrived at the conclusion that the findings were justified by the evidence and the facts properly submitted to the jury, and that the jury and not the court was the proper tribunal to decide them.

I am free to say, that I am not as well satisfied as I would wish to be, that the intestate was free from contributory negligence, and yet, I cannot say that the finding on that point is without evidence to support it, or so decidedly against the weight of evidence as that it is the duty of the court to set the verdict aside in view of the opinion of the Court of Appeals.

The defendant’s counsel requested the court to charge the jury that it was negligence on the part of the intestate if he approached the crossing at such speed as to be unable to stop or turn his horses aside, before actually going on to the track. The judge, in reply, said if he had any apprehension of the approach of the train. The counsel requested the judge to charge as requested, without any qualification. The court then said if he approached the train at such speed as that he was unable to control his team or stop it, without making an effort to apprehend the approach of the train, he was guilty of negligence. The defendant’s counsel excepted to the omission to charge exactly as requested. The court then asked the counsel to read his proposition again and he read as follows : “ I ask your honor to charge that it was negligence on the part of the deceased if he approached this crossing at such speed as to be unable to stop or turn his horses aside before actually on the track — such a speed that he could not stop within twenty-five feet.” The court in answer said he charged that with the additional suggestion he had made, which was that driving at the speed mentioned in the request was negligence, if the intestate had any apprehension of the approach of the train. To this the defendant’s counsel excepted.

The facts necessary to a proper understanding of tbe charge made and the refusal to charge as defendant’s counsel requested are in brief as follows, viz.:

On the day of the accident the deceased was drawing logs on bobsleds to a saw-mill in Carthage, and to reach it he was obliged to cross defendant’s track. To reach the track he drove down Furnace street. At the upper end of the street there is a hill having a descent of some nineteen feet in the space of some 200 feet; from the foot of the hill to the railroad crossing there is a slight descent, but the road is nearly level. The day was cold and the road slippery. There are two places between the foot of the hill and the crossing at which a train might be seen on the track, and at a point twenty-five feet from the track a train might be seen at any point between the railroad bridge that crosses Black river at the distance of 1,225 feet and the crossing on Furnace street. The defendant went down the hill on a trot, and after getting to the foot of it he struck his horses with his whip, and this caused them to move faster and without stopping he drove on to the track; the horses had crossed over and just as the engine struck the sleds he raised his arms and jumped off, on or at the edge of the track, and was struck and killed. It was a cold day and the deceased had on a cap with earlaps over his ears and a woolen comforter round his neck. He had been drawing logs across the track at the same place for several days. The train, on the morning of the accident, was some fifteen minutes behind its usual time.

It is manifest from these facts, that had the deceased looked toward the bridge when he was twenty-five feet from the crossing he would have seen the train at the bridge some 1,225 feet from the crossing. The train must have been less than that distance from him, or if it was moving at the speed of twenty miles per hour, it would take it thirty-four seconds to pass over that space, and it could not require that length of time for the horses to move thirty feet, which would be the distance of the west rail of the track from a point twenty-five feet east of the track. If, then, he might have seen the train in time to avoid the collision, but his horses were going at such a rate of speed that he could neither stop nor turn them from the track, it was manifest carelessness and the court should have so charged.

To allow parties approaching a railroad crossing to regulate their action in crossing, by their knowledge of the time for the passage of trains, would be a most mischievous regulation in its operation upon railroad companies as well as upon travelers and others on the highways. So long as railroad companies have the right to run trains on their road at their own pleasure, those who cross them must see to it, that not only is the track clear, but that there is no train in sight or hearing that can interfere with them in crossing. The time table furnishes no evidence that trains are not in motion and approaching the crossing.

I am of the opinion that the defendant was entitled to have the proposition contained in his request charged without the modification made by the court. Because of the refusal so to charge, the judgment should be reversed and a new trial granted, costs to abide event.

Judgment and order affirmed.


author: Smith, J.:

text:
    SAMUEL F. V. WHITED, Respondent, v. THE GERMANIA FIRE INSURANCE COMPANY, Appellant.

      Policy of insurcmce — condition of —power of agent to waive.

    The defendant issued to the plaintiff a policy of insurance .upon a frame building owned by him, the policy providing that it should be void if any change or transfer in title or possession should take place without the consent of the company indorsed upon the policy, or if the interest of the assured, as owner, mortgagee, devisee, or otherwise, was not truly represented to the company and stated in the policy; it also provided that the use of general terms, or any thing less than a distinct, specific agreement, clearly expressed and indorsed on it, should not be construed as a waiver of any printed or written conditions.
    The plaintiff sold the house and took back a purchase-money mortgage. The defendant’s agent thereafter received the annual premium from and gave a receipt therefor to him, being aware of these facts and understanding that he intended to insure his interest as mortgagee.

      Held, that in an action on the policy the jury might infer an agreement by the agent to insure plaintiff’s interest as mortgagee, and a waiver of the requirement that the plaintiff’s interest, as mortgagee, should he endorsed on the policy.
    The agent was authorized to solicit insurance, issue and renew policies, note the changing of title, and to collect and pay premiums.

      Held, that this evidence justified the conclusion that the agent had authority to waive, and by his acts had waived the condition above referred to, and that plaintiff was entitled to recover.

      Appeal from judgment in favor of the plaintiff entered on a verdict rendered at the Oswego Circuit, before Mr. Justice Morgan.
    Action on a policy of insurance for $Y00, issued by defendant to plaintiff, on a frame building occupied as a dwelling and grocery. The policy was issued October 11, 1869, and was continued in force by annual renewals till October 11, 18Y3. The policy contained the following conditions: “ If the property be sold or transferred, or any change takes place in title or possession, etc., * * * without the consent of the company indorsed hereon, or if the interest of the assured in the property, whether as owner, * * * mortgagee, lessee, or otherwise, be not truly stated in this policy, the policy shall be void.” “ If the interest of the assured in the property be any other than the entire, unconditional and sole ownership of the property, for the use and benefit of the assured, * * * it must be so represented to the company and so expressed in the written part of this policy, otherwise this policy shall be void.” “ The use of general terms, or any thing less than a distinct, specific agreement, clearly expressed and indorsed on this policy, shall not be construed as a waiver of any printed or written condition or restriction therein.” When the policy was issued, the plaintiff was the owner of the premises, and the buildings insured were described in the policy as his. In December, 18YO, the plaintiff agreed verbally, to sell the house and lot to John Donohue, and on November 1Y, 18Y1, in consummation of the agreement, he deeded the property to Donohue and took back a bond and mortgage thereon for $1,500 purchase-money. No notice of the transfer, or of plaintiff’s interest as mortgagee was stated in the policy, or indorsed on it. At the trial, the judge submitted to the jury, upon conflicting evidence, the question whether the local agent of the defendant at Oswego, received from the plaintiff the renewal premium and paid it over to the company, after being notified by the plaintiff that he had deeded the property and taken a mortgage, and whether it was understood by the agent that the premium was paid by the plaintiff to renew the policy for his benefit as mortgagee. The jury found a verdict for the plaintiff for the amount of the policy, with interest from the time of the loss.

      John Qhetwood, for the appellant.

      W. A. Poucher, for the respondent.
    The defendant’s agent, at Oswego, had full power and authority to continue the insurance on the plaintiff’s interest as mortgagee, either verbally or by making the indorsement of the change of title upon the policy, or to waive that condition of the policy requiring the indorsement and consent to the transfer verbally. (Angelí v. Hartford Fire Ins. Co., 59 N. Y., 171; Pechner v. Phoenix Ins. Co., 65 id., 195 ; Rhodes v. Railway Passenger Ins. Co., 5 Lans., 71; Ellis v. Albany City Fi/re Ins. Go., 50 N. Y., 402; S. O. reported Gen. T., 4 Lans., 438; Fish v. Lmerpool, London and Globe Ins. Go., 44 N. Y., 538; Trustees of First Baptist Church v. Brooklyn Fire Ins. Go., 19 id., 305; Sheldon v. Atlantic Ins. Go., 26 id., 460; Bochen v. Williamsburgh Ins. Go., 35 id., 131; Pitney v. Glen’s Falls Ins. Go., 65 id., 6; Shearman v. Niagara Fire Ins. Go., 46 id., 526; Pechr ner v. Phoenix Ins. Co., 6 Lans., 411; Whitwell v. Putnam Ins. Go., 6 id., 166.) The condition in a written instrument not under seal, requiring an act to be performed or evidenced by a statement in writing, may be waived by parol, and a parol waiver of a similar condition of a sealed instrument may be upheld in equity on the theory of an equitable estoppel. (Pitney v. Glen’s Falls Ins. Go., 65 N. Y., 6.) The issuing and delivering to the plaintiff of the certificate on the 11th day of October, 1872, after notice of the change of his interest in the premises, and saying to him that it was all right, was in law an insurance of his mortgage interest and a waiver of the condition of the policy requiring it to be in wilting and indorsed thereon. (Pechner v. The Phoenix Ins. Go., 6 Lans., 411, 417; affirmed, 65 N. Y., 195 ; Shearman v. Niagara Ins. Go., 46 id., 526; Parker v. Arctic Fire Ins. Go., 1 N. Y. S. O. R. [T. & 0.], 397; affirmed, 59 N- Y., 1.)
   Smith, J.:

The jury were instructed that if they should find from the evidence, that at the time when the renewal premium was paid to the defendant’s agent, he was notified by the plaintiff of the conveyance and mortgage, and he understood that the plaintiff paid the money to renew the policy for his benefit as mortgagee, they might infer'an agreement that it should be renewed for that purpose, and in that event they were further instructed, as is to be inferred from tlie charge, that they might find for the plaintiff. The instruction was proper, in view of the evidence, provided the agent had power to waive the provisions in the policy requiring the interest of the assured, as mortgagee, to be stated in writing in the policy itself. The charge undoubtedly assumed the existence of such authority. That question, probably, should have been left to the jury, if it had been insisted on. (Van Allen v. Farmers' Joint Stock Insurance Company, 64 N. Y., 469.) But there was no exception to the charge, in that respect, or any other, and no request was made that the specific question of the agent’s authority be submitted to the jury. The question was treated on all hands as one of law, or, if of fact, one which the parties submitted to the decision of the court. (S. C., 17 S. C. N. Y. [10 Hun], 397, 402.) The evidence fully warranted the conclusion that the agent had such authority. The agent, who was called as a witness by the defendant, testified that he was the local agent of the defendant at Oswego, and that as such agent he solicited insurance, issued and renewed policies, noted the changes of title upon policies, issued renewal certificates, collected premiums, and paid premiums to the company. That being the scope of his agency, it is clear that in the circumstances of the case, the conclusion was well warranted that he had authority to waive a compliance with the conditions referred to, and that the agreement to renew, which the jury must have found by their verdict, was valid and binding on the company. ( Whitwell v. Putnam Fire Insurance Company, 6 Lans., 166, and cases there cited by Mullin, J.; Pechner v. Phœnix Ins. Co., id., 411; S. C. affirmed, 65 N. Y., 195; Shearman v. Niagara Fire Ins. Co., 46 id., 526; Pitney v. Glen's Falls Ins. Co., 65 id., 6.)

' In the case of Rohrbach v. Germania Fire Insurance Company (62 N. Y., 47), cited by the appellant’s counsel, the ruling of the court that notice to the agent, or his knowledge of facts, was immaterial and did not affect the company, was made in view of a provision in the policy, which constituted him the agent of the insured and not of the company. (Opinion of Folger, J., p. 62.) The policy in this case contains no such provision. The case of Alexander v. The Germania Insurance Company (MSS. op. of Rarallo, J.) was upon a policy containing a provision like that in the case of Rohrbach.

Certain rulings upon questions put by tbe defendant’s counsel ■were excepted to. The questions were improper, as they called for the conclusions of the witness on questions of law. It is unnecessary to refer to them more particularly.

The judgment should be affirmed.

Mullin, P. J., and Talcott, J. concurred.

Judgment affirmed.


author: Smith, J. :

text:
    FERDINAND S. HAHN, Respondent, v. THE NORTH AMERICAN LIFE INSURANCE COMPANY, Appellant.

      Insurance company — contract fen' payment of agent of— aonst/ruciion of.

    This action was brought by the plaintiff, an insurance agent, to recover the amount due upon a contract made with him by the defendant, which provided that his compensation was to be a commission upon premiums paid to the company on policies procured by him. The contract further provided that said defendant “agrees to advance to the party of the second part (plaintiff), each month, the sum of $175, in addition to the foregoing commissions, such allowance to be charged against his commission account.” It also provided that the plaintiff might, upon repaying the sums advanced under the contract, receive an additional commission on premiums.

      Held, that the monthly advances were to be received by the plaintiff absolutely, in addition to his commissions, and that the same were not to be repaid by him, unless he should elect so to do in order to rceive the higher commission.
    Appeal from a judgment entered on the report of a referee.
    This action was brought upon a contract to pay the plaintiff a specific compensation for his services as an agent of the defendant. The referee reported in favor of the plaintiff for the sum of $105.52.

      G. N. Kennedy, for the appellant.

      W.- O. Huger, for the respondent.
   Smith, J. :

The plaintiff was employed by the defendant as general agent to solicit insurance and collect premiums. The agreement provided that his compensation was to be a certain commission on premiums paid to the company on all policies procured by him, to be paid to him as long as he should continue such agent, and to himself, his heirs or assigns, so long as the premiums should be paid to the company. The agreement contained the following clause, the construction of which is one of the contested points in the case: “ The party of the first part ” (defendant) “ agrees to advance to the party of the second part, each month, the sum of $175 in addition to the foregoing commissions, such allowance to be charged against his commission account.” It was also agreed that at such time as the plaintiff might elect, he should receive, after paying the sums advanced on the contract, an additional commission on premiums, at certain rates specified in the contract. It was further provided that either party might cancel the contract at any time, by written notice to either party, after six months from its date.

The appellant’s counsel insists the advances were intended as a loan to be repaid by the plaintiff. For the respondent it is contended, that they were to be paid to the plaintiff absolutely, in addition to his commissions, as compensation for his services. We incline to the opinion that they were intended as a payment, conditionally ; that is to say, they were to belong to the plaintiff absolutely, unless he should elect to take a higher rate of commissions, as provided for by the contract, in which case he was to repay the advances. This construction seems reasonable; it gives effect to every part of the contract, and it accords with the practical interpretation put upon the contract by the parties themselves. The monthly payment was made regularly for five months and a-half, and charged by the defendants in the plaintiff’s account. No provision was made in the contract for its repayment, except in case the plaintiff should elect to take the higher rate of commission. The arrangement seems to have proceeded on the idea that, in time, the business would increase to such an extent that the commissions at the greater rate proposed, would be a larger compensation than was first provided. In fact, however, the plaintiff did not avail himself of his right to elect, preferring evidently the old rate of compensation. On the other hand., the defendants, unwilling to continue that rate, terminated the contract at the end of six months, and offered to enter into another, which discontinued the advance, but gave to the plaintiff commissions at rates equal in all respects to those which he had the privilege of electing to take under the first contract, and in one particular class of premiums, somewhat larger. The offer of the defendant to increase the rate of commissions is inconsistent with the idea that the advances under the first contract were a mere loan. The referee decided in accordance with the construction above indicated, and held correctly, that the plaintiff was entitled to recover the unpaid portion of the monthly stipend, accruing during the six months in which the original contract was in force.

The plaintiff also claimed and recovered for damages alleged to have been occasioned by the voluntary breach of the contract on the part of the defendant, in procuring policies obtained by the plaintiff to be transferred to other companies, or causing them to lapse, thus depriving the plaintiff of his right to commissions upon renewal premiums. The amount recovered on that ground, is $466.38. On a careful examination of the testimony, we do not find any evidence that the defendant was instrumental in procuring any policy procured by the plaintiff, to be transferred or to become lapsed, except the two policies of Bernard Browner. The value of the commissions which the plaintiff was entitled to receive on the premiums payable on those two policies, according to the testimony, was $159.50. The claim should be reduced to that amount. The result is, that after deducting the amount stipulated to be due to the defendant, the recovery should be only ninety-eight dollars and eighty four cents, with interest from the date of the report, July 26, 1876. If the plaintiff consents to reduce to that sum, the judgment so reduced is affirmed, with costs; otherwise it is reversed and a new trial ordered before another referee, costs to abide event.

Mullin, P. J., and Talcott, J., concurred.

Ordered aecordinglj


text:
    EDWIN D. BARBER, Appellant, v. MAURICE STETTHEIMER and others, Respondents.

      Appeal to County Court — Return hy justice — truthfulness of, cannot he questioned

    Upon an appeal to the County Court from a judgment of a justice of the peace, the truthfulness of the justice’s return, if it he fully .responsive to the notice of appeal, cannot he questioned nor controverted hy affidavits, nor can a further return, as to the truth of matters in respect to which the original return is controverted hy affidavits, he required.
    If the return he false, the remedy of the party aggrieved thereby is hy an action against the justice.
    Appeal from a judgment of the Monroe County Court, reversing a judgment rendered by a justice of the peace in favor of the plaintiff.
    The judgment was reversed by the County Court upon the ground that upon the day to which the cause had been adjourned, the justice held it open to the next morning indefinitely, in the absence of the defendant, the County Court holding that the action was thereby discontinued, and the justice lost jurisdiction.

      J. Van Voorhis, for the appellant.

      E. Hao-ris, for the respondents.
   Smith, J.:

The only ground of irregularity specified in the notice of appeal to the County Court, was that the judgment of the justice was irregular in that the action was discontinued by the non-appearance of the plaintiff on the last adjourned day, at or within one hour from the time appointed, and the absence of the justice from his office at and before the expiration of the hour allowed by law. The object of requiring a specification in the notice of appeal, of the errors alleged, is that the adverse party and the justice, may be fairly apprised of the ground on which a reversal of the judgment is sought. (Lee v. Schmidt, 6 Abb., 183; Williams v. Cunningham, 2 Sandf., 632; Thompson v. Hopper, 1 Code R., 103.) That is necessary to enable the justice to make a proper return ( Webster v. Hopkins, 11 How. Pr. R., 140), and the respondent to prepare for argument, or procure an amended return, if the original return is defective as to any ground of appeal. (Morton v. Clark, id., 498.) In the present case, the justice returned fully to the specification above referred to, by stating that on the last adjourned day prior to that on which the case was tried (which was the 20th November), at 4 p. m., the parties again appeared, and at the request of the defendants the case was again held open to 4 p. m., on the twenty-first November, the plaintiff consenting, and that on said twenty-first at 4 p. m., the plaintiff appeared by his attorney, Quincey Yan Yoorhis, and the defendants did not appear. That the cause was then tried and judgment rendered for the plaintiff. The return having been made, the defendant’s counsel filed affidavits controverting it in some particulars, and obtained an order of the County Court requiring the justice to amend his return by stating, sjaecifically, as to the truth of the facts stated in said affidavits, so far 'as they controvert the said return, and particularly to state who appeared for the parties respectively on twentieth November. To that order the justice returned by stating that on the twentieth November, at 4 p. m., the justice was at his office, and Mr. Yan Yoorhis appeared a few minutes before or after that time, and stated that he did not want to wait, and the case was held open till the next morning, to avoid taking judgment against defendants by default. That the next morning Mr. Yan Yoorhis appeared, and Mr. Harris having been notified, as the justice was informed, declined to appear, and the justice then heard the testimony and rendered judgment. The judgment of the County Court was based upon the statements in the last return. Thus the anomaly was presented of two conflicting returns, the first of which, fully responding to the specification of error in the notice of appeal, showed the. judgment before the justice to be regular, and the other, in the opinion of the County Court, showed the judgment to be irregular and void for want of jurisdiction. It appears from the opinion of the county judge, that he thought the amended return, so far as it was responsive to the order directing it, must be taken as true. Why the amended return, rather than the original return, which was responsive to the notice of appeal ? No reason is, or can be given. The truth is, the dilemma in which the County Court found- itself, was the result of a clear irregularity in that court. It was irregular to entertain affidavits controverting the original return, and to require the justice to make a further return respecting the matters so controverted as to which his original return was full. The original return should have been taken as conclusive and acted on as true. If false, the remedy was by action. It has been so held in respect to returns to a writ of certiorari, (Haines and ors. v. The Judges of Westchester, 20 Wend., 625.) In Rawson v. Adams (17 Johns., 130), the rule was applied to the return of a justice upon an appeal to the County Court, under the statute (Laws 1813, ch. 91), as to the particulars which by statute he was required to return. If the return is defective, that is, if it does not -fully respond to the specifications in the notice of appeal, it may be required to be amended. (Code, § 362.) But if it is fully responsive, its truthfulness cannot be questioned on the appeal. The contrary practice would lead to interminable controversy and confusion.

The order of the County Court directing an amended return, may be reviewed on this appeal. (Code, § 329.) ¥e think it was irregular, so far as it called for a return as to the truth of the matters in respect to which the original return was controverted by the affidavits; that the amended return, so far as it was in conflict with the original return, should not have been considered by the court; and that as the original return showed that the judgment of the justice was regular, the judgment of the County Court reversing it was erroneous and should be reversed, together with the order for an amended return, and that of the justice affirmed.

If the appellant is prejudiced by this result, he has his remedy by action against the justice, in case his original return was false.

hluLLiN, P. J., and Talcott, J., qoncurred.

Ordered accordingly.


text:
    LA MOTT THOMPSON v. LAURA S. TAYLOR, Executrix, etc., of JAMES B. TAYLOR, Deceased. In the Matter of the claim of ORSAMUS B. MATTESON, for services on sale of THE TIMES stock, and as Attorney for the Receiver, and for interest on interest paid for renewing note of said TAYLOR.

      Appeal from order — only one appeal therefrom, or from part thereof allowed,— Additional affidavits — cannot be read upon appeal.

    • By an order of the Special Term, made upon an application for the confirmation of the report of a referee, two claims presented by one M. to the referee, and allowed by him, were disallowed. M. appealed from so much of the order as disallowed one of the said claims. Subsequently and after the decision of the said appeal, he brought this appeal from the portion of the order disallowing the second claim.

      Held, that his right to appeal from the order was exhausted by the first appeal; and that the second appeal could not be maintained.
    Affidavits, made after the making of an order at the Special Term, cannot be read upon the hearing- at the General Term, even although all the parties to the appeal consent thereto.
    Appeal by Orsamtis B. Matteson from an order of the Oneida Special Term.

      John D. Hernán, for the appellant Matteson.

      Wcvrd Hunt, Jr., for Levy, trustee of Day.

      Thomas 8. Jones, for H. "W. Bentley, receiver.
   Smith, J.:

It appears from the papers submitted on this appeal, that at a Special Term held in Herkimer county, by Mr. Justice Hardin, 22d February, 1876, an order was made in this action, continuing the receiver theretofore appointed, of the personal estate of said James B. Taylor, deceased, and appointing a referee to take an account and report what sum was due and unpaid to the plaintiff, and to each of the other creditors of the said deceased, who should come in, etc. The referee acted under the order and made his report, which the plaintiff moved to confirm, at a Special Term in Oneida, before Mr. Justice Merwin. Tbe court made an order confirming said report in part, but disallowing. certain claims that had been presented by the appellant Matteson, to the referee, and by him allowed. One of said claims was for “ services on sale of the Times stock, and as attorney for the receiver, and for interest on interest paid for renewing notes of Taylor.” The other was for “ money paid and liability incurred in attempting to collect the notes of James B. Taylor, and by him indorsed, for his accommodation.” This appeal is from that part of the order of the Special Term, which disallowed the first of the claims above stated.

Previously to bringing the present appeal, the claimant appealed from that part of the order of the Special Term, which disallowed the second claim above mentioned. That appeal was taken in September, 18Y6, and was argued before us at the last April term, and decided in June.

The time when the present appeal was brought does not appear. The notice of appeal contained in the printed case has no date. The certificate of the clerk, appended to his transcript of the record, is dated 20th September, 18YY. The appeal is submitted to us upon what purports to be the evidence taken before the referee, and on which the Special Term acted, and in addition thereto, upon certain affidavits made since the order of the Special Term, and which were used, as is stated in the brief of the appellant’s counsel, upon a subsequent, application to modify that order. The brief also states that it is consented that the affidavits referred to may be used as a part of the testimony, and that this court may make additional findings based thereon.

Upon this state of facts, we think that the portion of the order now appealed from should be affirmed on several grounds :

1. We are of the.opinion that the claimant’s right to apjieal from the order of the Sjiecial Term was exhausted by his first appeal. ITe then had an opportunity to appeal from the entire order, or so much of it as he was dissatisfied with, and he should then have availed himself of it. A piecemeal appeal from an order or judgment will not be allowed. The like objections exist to it as to the breaking up of a single cause of action, and bringing a separate suit upon each fragment. Even if all the parties consent to it, the court should refuse to sanction the practice, in order to prevent the wasting of estates, in cases like this, in unnecessary litigation, as well as to relieve the calendars from appeals unnecessarily multiplied.

2. The counsel for the respective parties seem to have supposed that their consent would have the effect to bring before the court the affidavits made since the hearing at Special Term, and to call into exercise not only the appellate jurisdiction of the court, which is properly invoked by the apjieal, but also a sort of original jurisdiction to be employed in sifting the affidavits and finding what facts they tend to establish. That is a misapprehension. On the hearing of appeals, the court will exercise only a strictly ajipellate jurisdiction, unless otherwise provided by statute. Appeals are to be heard on the same papers as were used below. Such was the rule in the late Coiu’t of Chancery, in this State, on an appeal from the decree of a vice-chancellor. (Mitchell v. Lenox, 14 Wend., 662; Wendell v. Lewis, 6 Paige, 233; Studwell v. Palmer, 5 id., 166; Bloodgood v. Clark, 4 id., 574.) The rule was the same in the court for the correction of errors, with respect to appeals from the chancellor. (Deas v. Thorne, 3 Johns. R., 543.) We cannot, therefore, consider the affidavits; aside from them, we think the evidence furnishes no ground for reversing the decision of the judge at Special Term, upon the questions involved in this appeal. We are of the opinion that the evidence which was before him, warranted the conclusion stated in his opinion, that the claimant was a volunteer, acting largely for his own interest as a creditor of the estate, and without such an employment from the receiver as gave him a legal claim on the estate for his services, and that the claim was properly disallowed on that ground.

3. While we do not entertain the affidavits, we have looked into them sufficiently to see that an adherence to the salutary rules above laid down, does no injustice to the appellant. The affidavits on his part are cumulative mainly, and are met and controverted to a great extent by that of the receiver; while they amplify the claimant’s case, and present it more in detail than did the evidence taken before the referee, they do not materially vary it.

That part of the order appealed from should be affirmed, with costs to the respondent Levy, or his attorney.

Mullin, P. J., and Talcott, J., concurred.

Ordered accordingly.


text:
    SILAS W. SMITH, Appellant, v. JAMES H. LYKE, Respondent.

      Untieing wife from husband — right of action for — good faith of person receiving— when a defense.

    Upon the trial of an action brought by a husband against his wife’s father to recover damages for enticing away his wife, evidence was given tending to show that the wife, by reason of illness, was unable to leave her husband’s house without assistance, and that her father-, at her request, removed her to his own. The justice charged that, even if the husband’s treatment of his wife was not improper, in fact, yet if such complaints were made to the defendant, by the wife and' others, as induced him to believe that she was cruelly treated by her husband, and he acted in good faith.in taking her to his house, the plaintiff could not recover.

      Held, that the charge was correct.
    Appeal from a judgment in favor of the defendant, entered on the verdict of a jury, rendered at the Steuben Circuit before Mr. Justice Rumsey.
    The action was brought to recover damages for enticing away the plaintiff’s wife, who was the defendant’s daughter.

      W. Rumsey, for the appellant.

      Butler ds Secvrl, for the respondent.
   Smith, J.:

A husband may maintain an action for enticing away his wife, or inducing her to live apart from- him, even against the wife’s father. (Winsmore v. Greenback, Willes R., 577; Hutcheson v. Peck, 5 Johns., 196.) In the present case, the judge, after instructing the jury in accordance with the rule above stated, charged them, in substance, that if the plaintiff treated his wife in a cruel and inhuman manner, so that his home was unfit for her to live in, and the defendant took her to his own house, at her request, he was justified in doing so. He further charged them, that even if the husband’s treatment of his wife was not improper, in fact, yet if such complaints were made to the defendant, by the plaintiff’s wife and others, as induced him to believe that she was cruelly treated by her husband, and he acted in good faith, the plaintiff cannot recover. To the latter instruction an exception was taken, which raises the principal question in the case. It has been repeatedly held in actions for harboring the wife, that the material point of inquiry is the intent with which the defendant acted. (Hutchreson v. Peek, supra; Schuneman v. Palmer, 4 Barb., 227; Bennett v. Smith, 21 id., 439.) The counsel for the plaintiff suggests that in all the cases so holding, it appeared that the defendant’s wrongful conduct consisted merely in harboring the wife, or advising her to leave her husband, not in actively invading the plaintiff’s rights, by taking his wife from his house. But wherein do those cases differ in principle from the case at bar ? In the present case, the evidence warrants the conclusion that the wife, by reason of illness, was unable to leave her husband’s house without assistance, and that her father removed her to his own house,, at her request. If he believed from her statements that she was cruelly treated by her husband, was he not as fully justified in removing her from her husband’s house to his own, she not being able to get away without assistance, as he would have been in receiving and harboring her in his own house if she had gone there without his aid and sought shelter ? It is argued that the defendant should have investigated the complaints, and that not having done so, he acted on them at his peril. It is true he might have gone to the husband with the complaints and inquired as to their truth, but we do not think his omission to do so necessarily rendered him liable. At most, it was but a circumstance to be considered by the jury in determining the intent with which he acted.

¥e think the case was properly disposed of at the Circuit, and that the judgment should be affirmed.

Mullin, P. J., and Talcott, J., concurred.

Judgment affirmed.