author: Earl, J.

text:
    Anna Maria Doyle, Resp’t, v. The Manhattan R. Co. et al., App’lts.

      (Court of Appeals,

      Filed October 20, 1891.)

    1. Railroad—Elevated—Evidence—Damages—Expert testimony.
    It is improper to allow a real estate expert to testify, in an action'against an elevated railroad for damages to plaintiff’s premises, what in his judgment the property would be worth without the elevated railroad.
    2. Same.
    It is improper to allow the plaintiff to prove the effect of the operation of the road upon' the premises upon the corner opposite to that upon which her premises were situated after defendants had been prohibited upon plaintiff’s objections from giving similar evidence in relation to neighboring property.
    3. Same.
    It is proper for the defendants to show the general effect upon abutting premises, and as to the effect of the elevated road upon the business and traffic in the avenue upon which it was situated.
    Appeal from judgment of the general term of the New. York common pleas, affirming judgment in favor of plaintiff.

      Samuel Blythe Rogers, for app’lts; G. Willett Van Rest, for resp’t.

       Reversing 35. N. Y. State Rep., 373.

   Earl, J.

This action was commenced by the plaintiff, an abutting owner upon defendant’s railway, to recover damages to her abutting premises by the maintenance and operation of the railway and to restrain the defendants from maintaining and operating the same. Upon the trial she gave evidence tending to show the damage to both the rental and fee value of her premises, and the court found the rental damage to be $12,000 and the fee damage to be $16,000, and ordered judgment in her favor for the $12,000, and an injunction restraining the defendants from operating their railroad in front of her premises, the injunction, however, not to be issued for a period of sixty days after the entry of judgment, to enable the defendants to acquire her easements in the street by condemnation proceedings or by the payment of the sum of $16,000. The judgment thus rendered having been affirmed at the general term, the defendants have appealed to this court

According to our decision in the case of Galway v. These same defendants, 128 N. Y.; 40 N. Y. State Rep., 145, the plaintiff’s cause of action was not barred by the statute of limitations or by loches, and we need say nothing more in reference to these objections to her right to recover.

There was a serious controversy upon the trial as to the amount of plaintiff’s damages, and' the defendants claim that improper evidence was received upon that subject A real estate expert was produced as a witness on her behalf and asked this question: “What, in your judgment, would the property be worth without the elevated railroad ? ” This was objected to by the defendants, and each of them, as hypothetical, speculative and incompetent; and the court overruled the objection, and the witness answered: ■“ Think they would be worth $200,000 to $225,000.” He had previously testified that the present value of the premises was $150,000 to $175,000. We have just decided in the case of Roberts v. The Elevated Railroad Company, ante 454, that a similar question was incompetent and that it was erroneous to allow it to be answered, and we need say no more about it now. For this error the judgment must be reversed.

But there were other erroneous rulings upon questions of evidence. The plaintiff was permitted against the objection of the defendants to prove the effect of the operation of the road upon the premises upon the corner opposite to that upon which her premises were situated. It is probably true that the exposure of those premises to damage from the road was greater than that to the plaintiff’s premises. But we think it was competent to prove the effect upon those premises so that the trial judge could be informed generally of the effects produced by the operation of the road. But the defendants were prohibited upon her objections from giving similar evidence. Her premises, it must be "borne in mind, were at the southeast corner of Fifty-third street and Sixth avenue. Jackson, a witness for the defendants, who had been conducting a grocery business for six years at the corner of Fifty-first street and the avenue, and still earlier at the corner of Twenty-fourth street, was asked this question: “Will you state whether the elevated railroad has caused any material or substantial interference with light, air and access in any of the "buildings which you have occupied on Sixth avenue ? Plaintiff’s counsel objected to this as “ incompetent and immaterial, and because the witness had never occupied the Doyle buildings.”

Archer, another witness for the defendants, who for seven years had occupied a store on the southeast corner of Fifty-seventh street and Sixth avenue, was asked this question : “ State whether the railroad causes any interference with the light, air and access of the buildings which you occupy on Sixth avenue ?” This was objected to as incompetent and immaterial. He was also asked this question: “ State whether the elevated railroad, according to your observation, affects in any way the light, air or access of any of those buildings on the east side of Sixth avenue ?” This was objected to as too broad. The counsel for the defendants then said that he would qualify the question “ by putting it between Fifty-first street and Fifty-seventh street,” and plaintiff’s counsel again objected to the question on the “ ground that the question should refer to the Doyle property.”

Saltzseider, who owned and resided in a building on the southwest corner of Fifty-fourth street and Sixth avenue, was asked this question : “ State whether the passage of the trains caused any flickering of light in your rooms ? ” This was objected to as immaterial and incompetent. He was also asked this question: “ Did the existence of the elevated railroad cause any interference with the access to your premises ? ” This was objected to on the same grounds. Prigge, also a witness for the defendants, who had for many years occupied a building on the northwest corner of Fifty-ninth street and Sixth avenue for the grocery, business and as a residence, was asked this question: “ Has the elevated railroad affected the light, air or access of the premises which you occupied in any material or appreciable degree ? ” To this there was a general objection specifying no grounds. These objections to these questions were all sustained. These witnesses were asked to testify to facts within their knowledge. Sixth avenue is a broad avenue of uniform width, and while the premises occupied by the witnesses were not in their situation exactly like the plaintiff’s, they were similarly situated; and the questions would have elicited facts proper for the guidance and information of the court. It was proper for the defendants to show the general effects of the road upon abutting premises. Much of the damage which the plaintiff claimed was caused to her premises, if it was actually caused to the extent claimed by her, must have been, common along the avenue in the vicinity of her premises, and proof of the effects upon other premises, not too distant from hers, should have been received. The court may undoubtedly in such a case, in the exercise of its discretion, limit the number of witnesses to be called, and may confine the examination of the witnesses to premises in the vicinity, giving a reasonable range. But it cannot properly confine the examination to the particular premises in question, and exclude all proof offered as to the general effects upon other premises.

The defendants also offered evidence as to the effects of the elevated road upon the business and traffic in Sixth avenue, which was improperly excluded. The defendants put the following questions to several witnesses who had done business for several years upon Sixth avenue, in the vicinity of the plaintiff’s premises, and who appeared to be familiar with the avenue and its business and competent to speak in reference thereto: “What have you observed in respect of the effect of the elevated railroad upon property in this avenue?” “What has been the effect of the elevated railroad upon the business in Sixth avenue? ” “What has been the effect of the elevated railroad upon Sixth avenue as a business street? ” “What has been the course of business in that vicinity since the elevated railroad was built in that vicinity? ” “State whether, since the elevated railroad has been built in that street, business has increased over what it was before the Elevated?” “ What is the volume of business in Sixth avenue, in. that vicinity, since the elevated railroad, as compared with what it was before ? ” “ Has there been a change in Sixth avenue in regard to the amount and character of business done there since the elevated railroad from what there was before the road ? ”

These questions were all objected to by plaintiff’s counsel as incompetent and immaterial, and the court sustained the objections. The plaintiff’s premises consisted of five four-story flat houses, with stores under them occupied for business purposes. It was certainly competent for the defendants to show that the premises, so far as they were occupied for business purposes, were not damaged, but were actually benefited by the existence of the defendants’ road. These questions called not so much for the opinions of the witnesses as for facts open for their observation. In answering such questions the witnesses should be confined mainly to giving observed facts, and they should not be permitted to give mere speculative opinions. Similar evidence was held competent in the case of Drucker v. Manhattan Railway Company, 106 N. Y., 157; 8 N. Y. State Rep., 599. In that case the plaintiff, as a witness, was asked this question: “ What effect, if any, has it (the railway) had upon the business of that store ? ” The defendant’s counsel objected to “his stating the effect on the business ; the inquiry should be as to the effect on values. It is irrelevant, immaterial and incompetent.” The objection was overruled and the witness answered: “Customers don’t come there any more as they used to, on account of the smoke, dirt, noise and cinders what is there; and it is very dark in the stores. We can’t show the goods, and before we could stand at the counter and show them and now there is no light.”

He was also asked this question: “What was the condition of the property you owned and rented there; was business good before that ?” He answered, “ Certainly.” He was then asked this question : “ How is it now ?” This was objected to by defendant’s counsel as immaterial, incompetent and irrelevant; the objection was overruled, and he answered: “Nothing to what it has been.” He was then asked this question : Is there as much, traffic on the street now as before the construction of the road ?” This was objected to on the same grounds; the objection was overruled and he answered, “ No, sir.” The plaintiff’s wife was asked this question : “Was business ever before the construction of the road as bad as it was at the time of the commencement of this action, in December, 1882 ?” Objections on the same grounds were overruled, and she answered: “ It was not, and from what I have heard of others they say the same.” Another witness for the plaintiff was permitted to testify, against similar objections on behalf of the defendants, as follows: “I know business was changed materially in consequence of the elevated road. Falling off in business became first apparent when the road was first completed, when they first began talking about putting the road through that street.” It was of this evidence that Judge Finch in his opinion in that case pertinently said : “ Objection was made to the proof that since the building of the elevated road the trade and business of Division street has fallen off and the current of custom had largely lessened in volume and changed in character, and upon the ground that injury to the plaintiff and not to his neighbors was alone material. But to measure and appreciate that individual loss, the nature and extent of the general injury was necessarily to be considered. To ascertain how much the plaintiff was injured by the impairment of his easement required a survey of the general facts and a deduction from them of the particular and special damage to be estimated.”

In this class of cases it is quite improper to permit expert witnesses to speculate as to the facts and then base a speculative opinion upon the facts. Such witnesses may give opinions as to the present or past value of property based upon facts which they have observed, and they may give opinions on other matters which are the proper subject of expert evidence based upon facts known to them or proved by competent evidence, and thus there will be a sufficient range for expert evidence. So far as possible facts should be placed before the triers of fact and their unbiased, disinterested inferences from the facts, and opinions upon the facts, will serve the ends ef justice much better than the prejudiced opinions of hired experts.

For the errors mentioned the judgment should be reversed and a new trial granted, costs to abide event.

All concur, Peckham and Gray, JJ., in result.


source: Caselaw Access Project

license: Public Domain

text:
    John A. C. Gray, App’lt, v. The Manhattan R. Co. et al., Resp’ts.

      (Court of Appeals,

      Filed October 20, 1891.)

    1. Railroad—Elevated—Damase to fee—Expert witness.
    In an action against an elevated railroad for damage to the fee of abutting owners, it is improper to allow a real estate agent, called as an expert, to testify as to the value of the lots, if there were no interference with the light, air and access.
    2. Same.
    It is improper to ask an expert what, in his opinion, was the best use to which the property could have been put, if it had not been for the elevated railroad, and its interference with the light, air and access.
    8. Same—Appeal—Injunction.
    Where the court found no damages to rental value, and that the premises would not be worth as much had not the railroad been built, and yet found the plaintiff’s fee diminished by $8,000, and gave an injunction unless the railroad took his property at that figure, it leaves the injunction so dependent upon the damages that the general term could not reverse the judgment as to damages, and permit it to stand as to the injunction.
    Appeal from judgment of the general term of the New York •common pleas, reversing judgment in favor of plaintiff.
    The plaintiff was the owner of four vacant lots of land at the corner of Ninth avenue and Twenty-seventh street in the city of New York, and he brought this action as an abutting owner praying for an injunction restraining the defendants from maintaining and operating their road in front of his lots, and for damages caused to his lots, and for other relief.
    The trial court ordered judgment in his favor for the injunction prayed for, provided, however, that the injunction should not issue until after sixty days from the entry of judgment to enable the defendants to acquire his easements in the street by condemnation proceedings, or by the payment of the sum of $8,000, the amount found to be the full damages to the lots.
    The court found no damage to the rental value of the lots prior to the judgment, and found that “said premises would not be worth as much as they now are had the said railway and stations not been built,” and yet he found that the fee of plaintiff’s real estate is diminished in value by the maintenance and operation of the road by the sum of $8,000, and to this finding the defendants excepted. The defendants appealed to the general term, and there the judgment was reversed and a new trial ordered, as appears from the opinion there pronounced, without considering other alleged errors, on the ground that the findings of the court showed that the plaintiff’s real estate was not damaged by the defendants, and that the trial judge erred as to the damages. From the order of reversal the plaintiff appealed to this court

      Esek Cowen and George P. Smith, for app’lt; John F. Dillon and Julien T. Davies, for resp’.ts.

       Affirming 35 N. Y. State Rep., 32.

   Earl, J.

The main question argued before us and considered at the general term, is whether the plaintiff could maintain his judgment in the face of a finding that his “ premises would not be worth as much as they now are had the railway and stations not been built.” This is a very important question, and its determination may not only affect this case, but many others pending or to be commenced. We do not deem it important or proper now to determine it, as there are other grounds for the affirmance of the order appealed from. That question may remain undetermined in this court until it is presented for consideration in some case where its solution is required.

We may look into the record and affirm the order if any error is found there to the prejudice of the defendants.

The question of fee damage was closely contested upon the trial. The principal litigation between the parties related to that; and the defendants had the right to have it determined upon competent evidence.

Martine, an expert witness called by the plaintiff, was asked this question: “What would be the value of the four lots at present if there were no interference with the light, air and access which you have described ? ” 'The defendants sufficiently objected to this; the court overruled the objection and the witness answered: “Worth $112,000.” Curtis, another expert witness, was asked this question: “Will you state what, in your opinion, would the value of the property be were it not for the existence of this interference with light, air and access by the elevated road and its structures and its cars?” Defendants’ objections being overruled, the witness answered: “$110,000.” Henriques, also an expert witness for the plaintiff, was asked a similar question, and defendants’ objections being overruled, he answered: “In the neighborhood of $112,000 to $115,000.” We have just decided in Roberts v. The Elevated Railroad and Doyle v. The Same, that such questions were incompetent and that it is erroneous to permit them to be answered. The reasons for our decision are found in the opinion of Judge Peckham in the case first cited, and we need add nothing thereto.

The witness Henriques was also asked this question : “ What, in your opinion, is the best use to which this property (the four lots) could have been put if it had not been for the elevated railroad and this interference ? ” This was objected to on behalf of the defendants, “ as not within the issue, as hypothetical and conjectural, and as not bearing upon the value of the easements in question nor the true measure of damages, and as calling for the whole of the damage and not that resulting merely from a violation of the plaintiff’s easement, and as incompetent, irrelevant and immaterial.” The court overruled the objections and the witness answered: “First-class dwellings.” He was then asked: 41 What is its best available use now ? ” This was objected to on the same grounds and the witness was permitted to answer: Stores and flat houses.”

The first of these two questions was clearly incompetent for the same reasons which condemn the questions first above referred to. What would have been the state of things at and in the vicinity of plaintiff's lots if the elevated road had not been constructed, was mere matter of speculation and conjecture. No opinion in reference thereto could be based upon observed or proved facts. The conditions upon which the witness was asked to base his opinion never existed and could not exist Nor was it competent to prove by the opinions of witnesses the “ best use ” to which the lots could have been or could be put. The facts bearing upon the matter should be proved, and the inferences from them should be drawn by the triers of fact.

It is claimed, however, that the general term ought not to have reversed the whole judgment, and that it should have permitted that portion of the judgment to stand which awarded the injunction. The injunction was not absolutely awarded, but it was .awarded substantially upon the condition that if the defendant would pay the plaintiff the damage done to his lots by the taking of his easements, which was found to be $8,000, it should not issue. The amount of damage was thus quite material. Unless the court had found it to be substantial, it could, in the exercise of its discretion, have withheld the injunction and left the plaintiff to his remedy at law. An equity court is not bound to issue an injunction when it will produce great public or private mischief merely for the purpose of protecting a technical or unsubstantial right. McHenry v. Jewett, 90 N. Y., 58; Health Department v. Purdon, 99 id., 237; Jeffers v. Jeffers, 107 id., 650; 12 N. Y. State Rep., 483; Genet v. D.& H Canal Co., 122 N. Y., 505 ; 34 N. Y. State Rep., 246; Thomas v. Mutual Protective Union, 121 N. Y., 45 ; 30 N. Y. State Rep., 563; MacLaury v. Hart, 121 N. Y, 636; 31 N. Y. State Rep., 939. The injunction is so dependent upon the damages that the general term could not with propriety reverse the judgment as to damages and permit it to stand as to the injunction. But even if it could have reversed the judgment in part, it is at least generally in the discretion of the court when it finds error in part of a judgment requiring a reversal of such part, to reverse the whole judgment, and that discretion will not, certainly, except under peculiar circumstances, which do not exist here, be interfered with upon appeal to this court. For these views the case of Roberts v. The Elevated Railroad is also an authority.

For the errors mentioned the order appealed from should be affirmed and judgment absolute ordered for the defendants, with ■costs.

All concur, except Finch, J., absent, and Gray, J., not sitting.


author: Andrews, J.

text:
    The People, Resp’ts, v. Nicola Trezza, App’lt. The People ex rel. Nicola Trezza, App’lt, v. A, A. Brush, Agent and Warden, Resp’t.

      (Court of Appeals,

      Filed October 20, 1891.)

    1. Appeal—Hew trial—Criminal law.
    There is no statute provision authorizing an appeal from an order denying a new trial except as incident to an appeal from the judgment, and hence an appeal will not lie in a criminal case from an order denying a new trial made after the roll is made up and the final affirmance of the judgment.
    3. Homicide—Sentence.
    As there is but one mode of execution in this state, a sentence that the defendant be put to death “in the mode, manner and way, and at the place by law prescribed and provided,” is sufficiently definite and specific.
    3. Same—Appeal—Stay.
    An appeal from a conviction in a capital case stays the judgment of death only, and not that part of the judgment providing for the custody of the defendant between his removal to the state prison and his execution.
    Appeal from orders of the supreme court, general term, second -department, affirming orders denying stay of proceedings and dismissing writ of habeas corpus.

      A. H. Dailey, for app’lt; John F. Clarke, asst. dist. atty, for resp’t.

       Affirming 39 N. Y. State Rep., 879.

       Affirming 39 N. Y. State Rep., 877.

   Andrews, J.

The appeal in the case first entitled is from an ■order of the general term of the second department, affirming an order made by Justice Calvin B. Pratt, denying an application of Trezza for a stay of proceedings pending an appeal by him to the general term of the supreme court from an order of the court of .sessions of Kings county, denying his motion for a new trial on the ground of newly discovered evidence. Trezza was tried, convicted and sentenced at the court of sessions of Kings county for the crime of murder in the first degree. He appealed from the judgment to the court of appeals, under the statute, chap. 493 of the Laws of 1887, where the judgment was affirmed. The motion :for a new trial was made after judgment of affirmance had been rendered. The motion to stay proceedings was denied on the ground that there is no statute authorizing an appeal from an order denying a motion for a new trial, under the circumstances of this case. The refusal of the stay was plainly correct if no right to appeal from the order refusing a new trial in such case existed.

The right of appeal in criminal bases is statutory only, and in the absence of a statute authorizing an appeal in a given case, no appeal can be taken. The court in which the trial of an indictment is had has power to entertain a motion for a new trial on the ground of newly discovered evidence, Code of Grim. -Pro., §§ 463, 465, and may grant or refuse it. The Code of Criminal Procedure, title XI, defines and regulates the right of appeal in criminal cases. Section 517, as originally enacted, was as follows : “Section 517. An appeal to the supreme court may be taken by the defendant from the judgment on a conviction after indictment, and upon any appeal any actual decision of the court in an intermediate order or proceeding forming a part of the judgment, roll, as prescribed in § 485, may be reviewed.” By § 485, a copy of the minutes of any proceedings upon a motion for a new trial is required to be annexed to and forms a part of the judgment, roll. Section 517 was amended by chap. 493 of the Laws of 1887, by providing that when the judgment is of death, the appeal must be taken direct to the court of appeals, and that court was authorized to review any intermediate order or proceeding forming part of the judgment roll, as the supreme court was authorized to do by the original section.

It will be observed that the section only authorizes a review of intermediate orders and proceedings in connection with an appeal fi’om the judgment, and when they are embodied in the judgment roll. There is no statute provision authorizing an appeal from an order denying a new trial, except as incident to an appeal from the judgment. It is said that the legislature could not have intended to permit an appeal from such an order in that case, and to deny it where the application for a new trial is made after final judgment of affirmance, and denied, when it would be too late t» make the proceedings a part of the judgment roll. The legislature seemed to assume that such proceedings would in all cases be taken before an appeal from the judgment. It may be that the failure to provide for an appeal in such a case as this was casus omissus. But the courts must be guided by the law as it is, and cannot give an appeal where none is given by the statute, and there is no statute authorizing an appeal from an order denying a new trial made after the roll is made up, and the final affirmance of the judgment. The contention that the legislature in abolishing writs of error and certiorari, as was done by § 517, did not intend to take away any remedies formerly obtainable in those proceedings, has no force, for the reason that neither a writ of error nor certiorari would bring up for review an order denying a motion for a new trial made on the ground that the verdict was against the weight of evidence, or on the ground of newly discovered evidence. Shorter v. People, 2 N. Y., 193 ; Manke v. People, 74 id., 415 ; People v. Casey, 72 id., 393; Hunt v. People,, 76 id., 89 ; People ex rel. Folk v. Board of Police, etc., 69 id., 408 ; People ex rel. S. & U. H. R. R. Co. v. Betts, 55 id., 600.

There was no error in the order of the general term, affirming the order of Justice Pratt refusing a stay of proceedings, and it should, therefore, be affirmed.

The appeal in the second case above entitled is from an order of the general term, affirming an order of Mr. Justice Cullen dismissing a writ of habeas corpus granted upon the application of Trezza for his discharge from imprisonment in the state prison at Sing Sing, and remanding him to the custody of the agent and warden.

When the writ was granted Trezza was held by the agent and warden under a warrant issued by the court of sessions of Kings -county, dated March 6, 1891, reciting his conviction on an indictment charging him with the crime of murder of one Alexander Salvano in that county on the 6th day of April, 1890; his trial, conviction and sentence to the punishment of death, and that he be delivered by the sheriff within ten days from the date of his sentence to the said agent and warden of the state prison at Sing Sing, and that said agent and warden within the week beginning Monday the 21st of July, 1890, execute him, the said Trezza, by putting him to death in the mode, manner and way, and at the place by law prescribed and provided; ” that Trezza on the ,11th of June, 1890, appealed from the judgment to the court of appeals, which court affirmed the judgment February 24, 1891; that Trezza was re-sentenced by the court of sessions of Kings -county to be executed during the week beginning Monday, the 20th day of April, 1891. The warrant then proceeds to command the agent and warden, to whom it was addressed, to cause .the said judgment and sentence to be executed within the week last mentioned, “ by putting him, the said Nicola Trezza, to death in the mode, manner and way, and at the place by law prescribed and provided.”

It appears that after the appeal taken by Trezza, he was taken to Sing Sing prison and there detained in close confinement, where he remained until he was taken to Kings county for re-sen-tence, and was then remanded again to the custody of the agent and warden of the state prison.

There are two grounds urged for the discharge of Trezza:

First. That the sentence did not specify the mode in which the death should be inflicted, viz.: that provided by the statute of 1888, “ by causing to pass through the body of the convict a current of electricity of sufficient intensity to cause death, and the application of such current must be continued until such convict be dead.” We think there is no ground for this contention. The agent and warden was commanded to put the convict to death in the mode provided and prescribed by law. The recital in the warrant showed that the convict was convicted for murder, committed after the statute of 1888 was passed, and therefore was subject to that statute. The sentence was death. This was not left to inference, and the warrant commanded the punishment to be inflicted. The agent and warden was required to inflict it in the mode provided by law, ■and this law ha must be presumed to have known. The court presumably could not prescribe by any measurement the intensity -of the current of electricity required to produce death, or specify the exact time the current should be continued. These things must of necessity be left to the judgment of the agent or warden. We think the warrant was sufficiently definite and specific. It has undoubtedly been the practice when death by hanging was the-mode of punishment prescribed in cases of convictions for capital offenses to specify this in the sentence and judgment. This practice was derived from the common law which prescribed different modes of death in different cases and was adopted to distinguish this mode of execution from that in cases of conviction for high treason and other atrocious crimes, where the judgment directed. that the condemned person should be drawn to the place of execution, embowelled alive, and then be beheaded and quartered. 4Black. Com., 376; 2 Hale’s P. C., 412. But here, where but. one mode of execution exists, no greater particularity than that employed in the judgment in question seems tobe necessary. See. People v. Bork, 96 N. Y., 188 ; People ex rel. Van Houton v. Sadler, 97 id., 146; Weed v. People, 31 id., 465. The objection is, we think, untenable.

The second ground upon which the discharge of Trezza is' claimed is that he has been once punished. The argument is that, the appeal to the court of appeals after the first sentence stayed both the execution of the direction that Trezza should be kept in solitary confinement until the execution of the death penalty, as-well as the part of the sentence that he be put to death, but that, as his solitary confinement in the state prison was-continued pending the appeal, and that as was held in the case In re. Medley, 134 U. S., 160, the sentence to solitary confinement accompanying the death sentence is a part of the punishment, he has suffered that part once and coulcl not lawfully be resentenced to close confinement, to be followed by death.

If the counsel is right in respect 'to the operation of the appeal, as staying both a continuance of the close confinement and the execution of the death penalty, then it simply follows that Trezza ■was unlawfully imprisoned and the usual remedy for the illegal restraint was open to him. This restraint was in this view not the act of the law, but the illegal act of the agent or wr arden. The convict could not elect to submit to it and then treat it as a, satisfaction of the sentence. But we agree with the learned judge-before whom the proceeding "was taken, that by the true construction of § 528 of the Code of Criminal Procedure, as amended in 1887, an appeal to this court from a conviction in a capital case stays the judgment of death only, and not that- part of the judgment providing for the custody of the defendant between his removal to the state prison and his execution. This would seem to be all that a convicted criminal could of right demand, and an. opposite construction would occasion much inconvenience. Whether an appeal in a criminal case stays the execution of the sentence depends upon the statute. It not infrequently happens that the execution of a sentence to imprisonment continues, notwithstanding an appeal. The convict, if he obtains a reversal of the judgment, and is again convicted on a second trial, may be sentenced to a new term of imprisonment, and the court is not, •bound to regulate the second sentence in view of the fact that the convict has already suffered imprisonment under the first sentence. The resentence in the present case was rendered necessary by reason of the fact that Trezza, by his own act in his own interest, had by his appeal prevented the execution of the death penalty at the time fixed by the first sentence.

The construction of § 528 is not entirely clear, but the construction we have given is justified by the language and it probably accords with the intention of the legislature.

We think the order in this case should be affirmed.

All concur.


author: Haight, J.

text:
    James Albert Harris et al., Resp’ts, v. Monroe H. Oakley, App’lt.

      (Court of Appeals, Second Division,

      Filed October 20, 1891.)

    1. Deed—Boundabies.
    One H., being the owner of premises divided by a board fence, the land on one side of which he used as a garden, conveyed to defendant all the premises, excepting and reserving therefrom a certain number of feet front and rear from the line of an adjoining owner, “ being the piece of land occupied as a garden by said H,” and thereafter conveyed the premises to plaintiffs excepting the part sold to defendant. The line mentioned in the deed would extend beyond the fence, field, that the reservation of the garden lot expressed the intention of the parties, and that the putting of the defendant in possession of all of the lot north of the fence became a practical location of the boundary line.
    2. Same—Evidence.
    As the deed contained two conflicting descriptions of the land intended to be reserved, the declarations and acts of the grantor at the time of its delivery, in reference to the delivery of possession of the land, were admissible on the question of intent.
    Appeal from a judgment of the general term of the supreme court, fifth department, affirming a judgment entered upon a decision of the Monroe circuit on a trial without a jury.

      W. H. Whiting, for app’lt; Albert H. Harris and Horace McGuire. for resp’ts.

       Reversing 26 N. Y. State Rep., 824.

   Haight, J.

This action was brought to recover the possession of certain real estate situate in the city of Rochester.

It appears that one Truman Hulin -was the owner in fee of a parcel of land bounded on the north by Brooks avenue; on the east by what was formerly the Genesee Valley canal, now occupied by the Western Hew York & Pennsylvania railroad; on the south by land owned by George Harrison, and on the west by Genesee street. The lot was divided by a board fence running through to the canal nearly at right angles with Genesee street, which had existed for many years, and the land south thereof was used by Hulin for a garden. On the parcel north of the fence there was a hotel with sheds, barn, ice house, chicken house, etc. On the' 10th day of January, 1888, Hulin conveyed to the defendant. and his father by warranty deed all of the premises above described, “ excepting and reserving therefrom 137 feet, front and rear, measuring from George Harrison’s north line on Genesee street; and also 137 feet from George Harrison’s north line on the Genesee Valley canal, being the piece of land occupied as a garden by said Sulin." And on the 7th day of May thereafter he conveyed to the plaintiffs the whole of the premises first mentioned, excepting and reserving that portion thereof conveyed to the Oakleys. The fence forming the northern boundary of the garden lot upon Genesee street is 137 feet north of Harrison’s line, but in the rear, upon the line of the canal, 137 feet from Harrison’s line extends 19-¡- feet north of the fence. The triangular piece embraced within this description, north of the fence, is the parcel of land in controversy.

The trial court found as facts: “ Sixth. That at the time of the conveyance from said Hulin to the plaintiffs * * * said Hulin was not in possession of the triangular piece of land mentioned in the complaint, but the same was in the possession of the defendant, and had been since the 10th day of January, 1883, and the same has never been in the possession of the plaintiffs, but has always, since said 10th day of January, 1883, remained in the possession of the defendant.” And again: “Ninth. That at the time of the execution of said deed to defendant, said Hulin put defendant in possession of all that portion of said premises north of said fence, and defendant has ever since been, and still is, in possession of the same, and was so in possession of said premises at the time of the execution of said deed to the plaintiffs.”

It appears to us that upon these findings the conclusion of the trial court cannot be sustained. As we have seen, the fence formed the northern boundary of the garden lot. One of the reservations embraced in the deed was of the garden lot; and if, as found by the trial court, the grantor Hulin, at the time of delivering the deed to the defendant, put him into possession of all of the premises north of. the fence, it would seem to indicate that the reservation of the garden lot expressed the intent of the parties, and that the putting of the defendant into possession of all of .the lot north of the fence became a practical location of the boundary line between them.

In the record before us there appears to be some misapprehension on the part of the court below as to the competency of paroi evidence. We quite agree with the learned general term that the declarations of a grantor before the execution of a deed tending to establish a boundary other than that made by the deed is not competent. That the effect of such testimony might accomplish a conveyance of land by paroi in contravention of the statute of frauds. We will go even farther, and say that where in the description of premises in 'a deed courses, distances and monuments are given, the premises must be located according to the deed, and all paroi evidence of the declarations and acts of the parties of an intended different location is inadmissible as contradicting or varying the deed. But there is another rule to which we must call attention, and that is, that where the description contained in the deed is so vague, obscure or conflicting as to leave the intent of the parties uncertain, the declarations and acts of the parties may be shown by paroi. Clark v. Wethey, 19 Wend., 320 ; Vosburgh v. Teator, 32 N. Y, 561; Wood v. Lafayette, 46 id., 484; Stout v. Woodward, 5 Hun, 840 ; affirmed, 71 N. Y., 590 ; Donahue v. Case, 61 id., 631.

In the case before us we have two conflicting descriptions of the land intended to be reserved by Hulin from the defendant’s deed. One reserves 137 feet from the north line of Harrison’s land upon the canal. This as we have shown would extend nineteen and one-half feet north of the fence onto the lot previously occupied in connection with the hotel buildings, and the line so formed would pass diagonally through a barn or shed standing next to the fence used in connection with the hotel. The other description contained in the deed reserved only that part which was used by the grantor for a garden, which was bounded on the north by the fence to which allusion has already been made. The question is which of these lines was intended. The fence is not mentioned in the deed. Had it been it would perhaps have become a monument or object which would control the determination of the question, for the rule is that courses and distances ordinarily must yield to natural or artificial monuments or objects. But the word “ garden ” is used, and it appears that the garden is bounded by the fence, and whilst it may not indicate a definite line as accurately as would a fixed monument, it appears to us, taken in connection with the other facts, to be sufficient to raise a question of fact as to the intent of the parties, and that the declarations and acts of the grantor at the time of delivering the deed to the defendant in reference to the delivery to him of the possession of the land may be properly received in evidence.

The judgment of the general term and that of the trial court should be reversed and a new trial ordered, with costs to abide the event.

All concur.


author: Parker, J.

text:
    Joseph De Vau, Resp’t, v. The Pennsylvania & New York Canal & Railroad Co., App’lt.

      Court of Appeals, Second Division,

      Filed October 20, 1891.)

    Master and servant—Negligence—Charge.
    Plaintiff, while working for defendant alongside of gravel cars which were being unloaded by means of a heavy plow worked by the engine, was injured by the plow falling from the car upon him. In an action to recover for such injuries it appeared that the plow had fallen off several times before, but the evidence did not tend to show any reason for its doing so, nor did it show any defect in its original construction or want of proper repair, or that there was any known appliance better adapted for the purpose. The court charged that it was for the jury to determine whether the plow and appliances were properly constructed, reasonably proper, and would they ordinarily perform the duties which they were designed to perform without accidents of any character, and if they were not plaintiff was entitled to recover. Held, error; as the jury were thus permitted to find that the falling of the plow from the car was owing to the fault of defendant from the simple fact that an accident had occurred, without any evidence of negligent or unskillful construction or failure to keep in repair.
    Appeal from a judgment of the general term of the superior court of the city of Buffalo, rendered in favor of the plaintiff for $1,238.10 damages and costs, and overruling exceptions taken on the trial and ordered heard at the general term in the first instance.

      F. Brundage, for app’lt; Charles A. Pooley, for resp’t.

       Reversing 27 N. Y. State Rep., 573.

   Parker, J.

Whether at the close of the testimony a question was presented which the plaintiff was entitled to have submitted to the jury need not be considered, because error in the charge as made requires a reversal of the judgment. The plaintiff while in the employ of the defendant, and on the 22d day of October, 1887, was struck by a dirt plow as it fell off one of the cars from which earth and gravel were being removed by its use, resulting in very severe injuries.

It appears that the defendant was filling a trestle between Clinton and Seneca streets in the city of Buffalo with material brought from Cheektowaga, a few miles away. The cars were loaded with a steam shovel, and men were employed to remove from the material placed on the cars all large stones, for greater safety in unloading. The cars were then run to the trestle and unloaded with an iron machine called a plow. It was about twenty-four feet long and rested upon four wheels. A mould-board, jointed and flanged, from three to three and one-half feet high, made of boiler iron, was bolted to the beam of the plow. This beam was about twelve inches wide and eight inches thick, and ran its entire length; iron v braces ran across and it was bridged with boiler iron. At the bottom was an iron shoe, covered with a steel plate. This plow was located on the last car of the train, and when the trestle was reached six of the cars in fhe latter portion of the train were separated from the rest of the train and tied to the trestle. On one side of the cars, and extending the whole length, was bolted a piece of timber about eight inches square called a guard-rail, and after the cars had been fastened to the trestle the engine was hitched to the plow by a cable and the plow, which weighed from two to three tons, and in addition had piled upon it from four to five tons of railroad iron, was drawn along over the car, one side running next to the guard-rail of the car and the other, or mould-board side, crowding the dirt off the car. If any obstructions should cause the plow to be raised above the guardrail the pressure of the earth on the mould-board side woul d necessarily force the plow off the car onto the ground.

On the day of the accident the plow had been drawn over one car, and was either entering upon or was partially on the second cai’, when it was suddenly raised up over the guard-rail and thrown to the ground.

Plaintiff’s witnesses testified that the plow had fallen off on several occasions before this. • It does not appear from the evidence that there was at the time any known appliance better adapted for the purpose for which it was used than this plow, nor did the evidence of the plaintiff point out any defect in the original construction or suggest that it was not in perfect repair, nor did it tend to furnish any reason for the plow’s jumping from the car.

On the part of the defendant the evidence tended to show that it was occasioned by a large stone becoming wedged between the first and second cars so as to cause the plow to be raised up above the guard-rail, the pressure of the earth then forcing it over the side of the car. Clearly, then, the evidence did not authorize the j ury to find that the master, in the use which it attempted to make of this plow, failed to discharge its duty to the plaintiff in that it omitted to provide suitable machinery and appliances with which to perform the work. But the court nevertheless instructed the jury: “Mow, it is for you to determine, was this plow properly constructed, in your judgment? There is no proof in this case as to how other cars or other plows are constructed, or whether this is better or worse than other cars or other plows. You are somewhat in the dark, but you must determine it; was this plow and these appliances properly constructed, reasonably proper, and would they ordinarily perform the duties which they were designed to perform, without accidents of any character f If it was not of such a construction, then you will pass on to the question of damages, and the plaintiff is entitled to recover.”

The jury were thus permitted to find from the fact that an accident occurred, without any evidence whatever of negligent or unskillful construction, or a failure to keep that which was originally properly constructed in repair, that the falling of the plow from the car was owing to the fault of the defendant. Indeed, the jury must have so found, for the charge of the court was silent as to any other ground on which to found a liability on the part of the defendant.

As this portion of the charge was excepted to by the defendant, the judgment should be reversed.

Judgment reversed and new trial granted, costs to abide event

All concur.


author: Follett, Ch. J.

text:
    Michael Levy and Henry May, Resp’ts, v. Emanuel Newman, App’lt.

      (Court of Appeals, Second Division,

      Filed October 20, 1891.)

    Taxes—Sale—Infancy—Brooklyn.
    Section 9, of title 8, of chapter 803, Laws 1873, is not applicable to the sale and redemption of lands for taxes readjusted under chapter 114, Laws 1883. The title of persons owning the fee at the time of a sale under the statute of 1883, both infants and adults, is cut off by the sale, and by their failure to redeem within the time and in the manner provided by said statute.
    Appeal from a judgment of the general term, of the supreme court in the second judicial department, which affirmed a judgment entered on the decision of a circuit court without a jury.

      Ira Leo Bamberger, for resp’ts; Fernando Solinger, for app’lt
   Follett, Ch. J.

This action was brought to recover the purchaseThis price of land which, September 1, 1887, the plaintiffs contracted to sell, and the defendant to buy, by an executory contract to be performed October 17, 1887. The defense interposed is that the plaintiffs were unable to convey a perfect title. February 3, 1886, the registrar of arrears of the city of Brooklyn sold the lot in question to David J. Eisner (from whom the plaintiffs, through mesne conveyances, derived their title) for unpaid taxes pursuant to chapter 114 of the Laws of 1883. At this-time three infants owned five-ninths of the land as tenants in common with several adults, who owned four-ninths. The adults and infants were personally served with notice of the sale, but failed to redeem within the time prescribed by statute. Neither of the infants had a general guardian, and the defendant insists that their right of redemption has not been cut off.

By title 8 of chapter 863 of the Laws of 1873 (the late charter of the city of Brooklyn) a department of arrears was created and charged with the duty of selling property for unpaid taxes. By this title the procedure by which sales were to be made and redemptions effected was prescribed with particularity. Section 9 of this title provides:

Section 9. Whenever such registrar shall receive satisfactory information that the land as sold belongs to an idiot or insane person, for whose estate no committee shall have been appointed, or to an infant having no guardian, he shall not execute a conveyance of their lands until at least one month after he shall have legal evidence that such disability has been removed or a committee or guardian of the estate has been appointed. And until the expiration of said month such committee or guardian may redeem such land in the same manner as hereinbefore provided.”

On the 16th of March, 1883, the taxes in arrear in this city exceeded $10,000,000, and on that date chapter 114, Laws 1883, was passed, by which the board of assessors was authorized to determine the proportion of the taxes in arrear assessed prior to July 1, 1882, which ought to be paid. The amounts found to be equitably chargeable to each piece of property were to be a lien on the land, and a complete scheme was provided for collecting the readjusted taxes, and in case of their non-payment for the sale of the property against which they were assessed, and for the redemption of the property sold pursuant to the act. It is not asserted, and could not be successfully, that the readjusted taxes could be collected by the procedure prescribed by the charter of 1873, but they could only be by the mode provided by chapter 114, from which § 9, above quoted, is omitted. This section was not repealed by the act of 1883, but by the terms of the statute the section became wholly inapplicable to the sale and redemption of land for taxes readjusted under the statute of 1883.

The right to redeem lands sold to enforce the collection of taxes assessed against it is purely statutory, and statutes providing the procedure for assessing and collecting taxes, for the sale of land for their non-payment, and for the redemption of lands sold, are applicable to infants and persons under disabilities unless they are excepted from their operation. Metz v. Hipps, 96 Penn. St., 15; Smith v. Macon, 20 Ark., 17; 2 Black. Tax Titles (5th ed.), § 713; Cooley Tax. (2d ed.), 533, 534; Burroughs Tax., 362: Ang. Lim. (6th ed.), § 194.

It is a general rule that statutes limiting the time in which, and prescribing the procedure by which, rights shall be enforced, are applicable to persons under disabilities, and unless expressly excepted. Bucklin v. Ford, 5 Barb., 393; Bank of the State of Alabama v. Dalton, 9 How., U. S., 522; The Sam Slick, 2 Curtis C. C., 480; The U. S. v. Maillard, 4 Ben., 459; Howell v. Hair, 15 Ala., 194; Ang. Lim. (6th ed.), § 194.

The title of the persons owning the fee at the time of a tax sale, both infants and adults, was cut off by the sale, and by their failure to redeem within the time and in the manner provided by the statute under which the sale was made. It follows that the plaintiffs tendered to the defendant a good title, and they are entitled to recover the purchase price.

The judgment should be affirmed, with costs.

All concur.


author: Brown, J.

text:
    Henry Joy, Resp’t, v. John F. Diefendorf, App’lt.

      (Court of Appeals, Second Division,

      Filed October 20, 1891.)

    1. Fraud—Bona fide purchaser—Trial.
    In an action upon a promissory note, there was evidence on the part of the defendant that the same had been procured from him by fraud. The only evidence to show that plaintiff was a bona fide purchaser was given by the plaintiff himself as to the circumstances attending its purchase, and his knowledge of the person from whom he obtained it. Held, that the credibility of his testimony was for the jury to determine, and that it was error for the court to direct a verdict for plaintiff.
    2. Bills and notes—Usury.
    The note in suit was given on the fraudulent representation that the payees were members of a firm; that they could buy their partner out, and to enable defendant to become a partner in his stead. It was agreed that the notes were to be held by the firm, and were not to be disposed of or sold, but to be paid out of the proceeds of the business. Held, that it could not be said that the note had no legal inception, as it was intended to represent an obligation, and that the defense of usury in the discount thereof by plaintiff at a greater rate than legal interest was not available.
    Appeal from a judgment of the general term, third judicial department, which affirmed a judgment entered upon a verdict directed by the court

      Z. S. Westbrook, for app’lt; Henry Bacon, for resp’t
   Brown, J.

This action was brought to recover the amount claimed to be due upon a promissory note made by the defendant, whereby he promised to pay to H D. Henderson or bearer $1,000, with interest six months after date, at the Spraker National Bank at Canajoharie, and by said Henderson transferred for value to the plaintiff within a few days after its execution.

The principal defense relied upon to defeat a recovery was that the plaintiff was not a bona fide holder of the note.

The trial court directed a verdict for the plaintiff, thus disposing of this question as one of law, and refused a request by the defendant to submit it to the jury.

The evidence given upon the part of the defendant was sufficient to warrant the conclusion that the note had been obtained from him through a fraud practiced upon him by Henderson and Yan Yalkenburgh, and the burden was thus cast upon the plaintiff to show that he was a bona fide purchaser. Vosburgh v. Diefendorf, 119 N. Y., 357; 29 N. Y. State Rep., 448, and cases cited.

This burden the plaintiff met by his own evidence as to the circumstances attending the purchase and his knowledge of the party from whom he obtained it, and the credibility of his testimony was for the jury to determine.

That question was decided in Canajoharie National Bank v. Diefendorf, 123 N. Y., 191; 33 N. Y. State Rep., 389. That case was upon a note obtained by the same parties from this defendant and grew out of the same transaction as the note in suit, and was transferred to the bank by Henderson.

The question of the good faith of the bank’s purchase depended entirely upon the evidence of its cashier, and it was held that his relations to the bank and his interest in the transaction brought him within the rule that the credibility of a party or an interested witness is a question for the jury to determine. No.distinction in this respect is apparent between that case and the one under consideration. The court, therefore, erred in refusing to submit the case to the jury and the judgment must be reversed.

It was also claimed that the note was void for usury, in that before it had any legal inception it was transferred to the plaintiff at a discount much greater than the legal interest.

The question of usury was not raised at the trial in the Canajoharie Bank case and there was no ruling which presented it for consideration in this court, and we cannot therefore assume that the court decided it although it was incidentally referred to in the opinion.

We think that defense is not available in this case.

The substance of the defendant’s evidence was that Henderson and Yan Yalkenburgh represented that they with one Ackley were engaged in business as partners; that they could buy out Ackley for $8,000, and by these and other representations induced 1 defendant to agree to become a member of the firm in Ackley’s place and to execute and deliver his notes to them for $8,000. That the notes were to be held by the firm and were not to be sold or disposed of and were to be paid out of the proceeds of the business.

Although these representations were false it cannot be said that the notes had no legal inception. They were intended to represent an obligation.

The rule which renders void a note in the hands of a third party who has purchased at a discount greater than the legal interest applies to instruments that have no inception between the parties or which are not intended to be available until discounted. This note in suit does not.fall within that rule.

The judgment must be reversed and a new trial granted, costs to abide the event.

All concur, except Potter, J., not sitting.


author: Peckham, ,T.

text:
    The People ex rel. John Wilson Cochrane, Adm’r, Resp’t, v. Michael Coleman et al., Com’rs, App’lts.

      (Court of Appeals,

      Filed October 20, 1891.)

    Taxes—Exemption—Foreign capital—1 R. S., 389, § 5; Id., 419, § 3.
    S., a resident of Scotland, died in 1881, his widow, the executrix, residing there, but all the residuary legatees residing in this state, Ancillary letters were issued to relator in 1882, and he took property consisting of debts due S. by residents of New York, including bonds and mortgages given before testator’s death, which he held for eight years. Held, that such property was not exempt from taxation under the statutes exempting foreign capital sent here for investment or that exempting foreign demands sent here for collection.
    Appeal from order of the supreme court, general term, first ■department, affirming order of special term vacating assessment on personal estate on the ground that the property in relator’s hands was exempt from taxation.
    William Smith, a resident of Scotland, died there in the year 1881, leaving a will in which he appointed his widow, Margaret Smith, sole executrix. The widow has continued to reside in Scotland, but all the residuary legatees under the will were at the death of the testator and ever since have been residents of this .state. Letters testamentary were issued to the widow in Scotland. ' An exemplificátion of "the will was filed and recorded by direction of the surrogate in the county of New York, on the 12th day of July, 1882, and on the 21st day of September, 1882, ancillary letters of administration with the will annexed were issued by the surrogate to the relator herein, John Wilson Cochrane of the city and county of New York, who accepted the same, and has ever since continued to act as suph administrator.
    At the time, of the death of Mr. Smith he owned personal property, the situs of which was in fact in the city of New York, and ■such property consisted for the most part of debts owed to Smith by residents of New York city, including certain bonds secured by mortgages of real estate in that city, the investments in which bonds and mortgages were made by him in his lifetime, and these bonds and mortgages came into the hands of the relator as his ■administrator.
    The relator in these proceedings set forth in his petition that the bonds and mortgages as such came into his possession as administrator, and that they were never sent to' this state or deposited in this state by Mr. Smith as a non-resident for collection or otherwise, and that they did not belong to a non-resident of the ■state as owner, but belonged to the relator, as administrator, as ■owner. The relator’s petitipn contained a further statement that the larger part of the testator’s personal property, amounting to something less than $30,000, consisted of the proceeds of merchandise manufactured by him in Great Britain, and shipped by him to New York, for sale, and which had been sold here in his life time, and the moneys therefor paid and earned here, and at the time of his death the proceeds remained here uninvested, and subject to his order; that this asset was in form a debt of a resident of New York to him, on book account, which asset and the legal title thereto, upon the appointment of the relator as administrator, he alleges became vested in him as such,-and that no' part of the personal property of Smith represented moneys transmitted here for investment or otherwise, and that the bonds and mortgages, and the moneys represented thereby, and the moneys representing the proceeds of the merchandise, have never been out of the city of New York.
    The relator then further alleged in his petition that the taxing authorities had assessed this property against him, and had decided that it was not exempt. The relator, therefore, presented his petition for a certiorari to the supreme court to review the question, and now claims that the property is exempt from taxation. The special and general terms of the supreme court have decided in his favor, and have vacated and stricken from the assessment roll as illegal the assessment levied against the relator by reason of this property. The defendants, who are commissioners, etc., in New York, appeal to this court.

      D. J. Dean, for app’lts; Evarts, Choate & Beaman, for resp’t.

       Reversing 38 N. Y. State Rep., 118.

   Peckham, ,T.

There is no dispute as to the facts in this case. The allegations contained in the relator’s petition as to the property in question are uncontroverted, and the simple question is whether upon such facts the relator or the defendants are correct.

The claim of exemption is based upon two different sections of the Revised Statutes. They are as follows:

“ Sec. 5. Every person shall be assessed in the town or ward where he resides when the assessment is made, for all personal estate owned by him, including all personal estate in his possession or under his control as agent, trustee, guardian, executor or administrator, and in no case shall property so held under either of those trusts be assessed against any other person, and in case any person possessed of such personal estate shall reside during any year in which taxes may be levied in two or more counties, towns or wards, his residence for the purposes and within the meaning of this section shall be deemed and held to be in the county, town or ward in which his principal business shall have been' transacted, but the products of any state of the United States, consigned to agents in any town or ward of this state for sale on commission for the benefit of the owner thereof, shall not. be assessed to.such agents, nor shall such agents of moneyed corporations or capitalists be liable to taxation under this section for any moneys in their possession or under their control transmitted to them for the purpose of investment or otherwise.” 1 Rev. Stat.., 389, § 5.

Sec. 3. When any bond, mortgage, note, contract, account, or other demand, belonging to any person not being a resident of this state, shall be sent to this state for collection, or shall be deposited in this state for the same purpose, such property shall be exempt from taxation; and nothing contained in this chapter shall be construed to render any agent of such owner liable to be assessed or taxed for such property; but every such agent shall be entitled to have any such property deducted from his assessment, upon making affidavit before the assessors at the time appointed by them for reviewing their assessments that such property belongs to a non-resident owner, and therein specifying his name and residence.” 1 Rev. Stat., 419, § 3.

The administrator was not, after his appointment, the agent of the deceased testator, and hence he was entitled to no exemption as an agent having moneys in his possession or under his control transmitted to him for investment or otherwise, as provided in the first of above cited sections. The administrator says indeed that the moneys never were transmitted to him by testator for investment or otherwise. But if we assume that his statement in that respect was a conclusion of law and that he was mistaken, we find that the moneys were transmitted not later than 1881, and that in such.year the testator died, and since the year 1882 the funds or debts or bonds and mortgages have been in the hands of the relator as administrator as owner, and not as agent of any one. His duty in regard to such funds is to distribute them as ordered by the will, subject to the lawful orders of the surrogate of the county in which the letters issued, and also subject to whatever rights the creditors resident in this state might have in regard to them. He was to distribute or pay debts. Certainly from the time when these ancilliary letters were issued, which was in 1882, up to 1890, when this assessment was made, a sufficient period had elapsed to wholly change the original character of the funds, even assuming they were sent here for investment and were placed in the relator’s hands for that purpose and had been thus invested. If not, then a resident administrator, at the request of the distributees, could hold such funds permanently and pay the interest to the distributees, who might all be residents, and so in this manner such distributees could secure the exemption of the property from taxation while enjoying the protection of our laws and themselves residing here.

It does not seem that the case of Ferrer v. Com'rs of Taxes, 42 Hun, 560; 4 N. Y. State Rep., 471; aff’d in memoranda, 105 N. Y., 629; 7 N. Y. State Rep., 871, is at all like this. The funds in that case were originally sent by the testator from Cuba here ■for investment. The testator died, and the relator, a resident of ■Cuba, was appointed his executor. Such executor came here and took out letters for the sole purpose of obtaining the moneys and disposing of them under the terms of the will, which directed him to invest a large portion of them in bonds of the Hnited States. It was held that the funds were exempt, because, as the court said, they had been sent here for investment, and were still in the hands of the original agent, and the testator had not changed his purpose up to the time of his death. The ancillary administrator was himself a non-resident, not subject to taxation, and the cbari meter of the funds in the hands of the Hew York agent had not changed so as to become taxable, simply because of the death of "their former owner so short a time before. Here the administrator takes the funds, and as such has them in his possession, and has held them for eight years, and he is a resident, and the residuary legatees are residents. The Ferrer case is no authority for the decision herein appealed from.

Nor is the case of Williams v. Supervisors of Wayne Co., 78 N. Y., 661, at all like this.

The property there was assessed to the plaintiff as agent, and it consisted of bonds and mortgages, some of which had been sent him for collection by the owner, who was a non-resident of the state, and the balance had been left or deposited with him for collection by such owner. This court held the property was. exempt.

We think no exemption was made out under either of the above quoted sections of the statute, and for this reason the orders of the general and special terms should be reversed, the assessment, reinstated and the writ dismissed, with costs in all courts.

All concur.


author: Finch, J.

text:
    John J. Quinlan, Resp’t, v. Emily A. Stratton, App’lt.

      (Court of Appeals,

      Filed October 20, 1891.)

    1. Mortgage—Foreclosure—Subrogation.
    Where a second mortgage was executed and delivered for a loan which the mortgagor agreed to apply in extinguishment of the first mortgage, and a portion was so applied, and thereafter said first mortgage was assigned to one who paid therefor the amount remaining unpaid thereon, Held, that on foreclosure of the second mortgage the plaintiff was entitled to be subrogated to the rights of the holder of the first mortgage on paying the balance thereon in full.
    3. Trial.
    If a defendant is misled or deceived by the court so as to have deemed certain proofs needless, his remedy is an application to open the case and. be let in to make further proofs.
    Appeal from a judgment of the supreme court, general term,, second department, affirming judgment of foreclosure and sale.

      Samuel W. Judson, for app’lt; Frank N. O'Brien, for resp’t.,

       Affirming 32 N. Y. State Rep., 345.

   Finch, J.

The plaintiff established his cause of action so far as it asserted a right to judgment of foreclosure. That the defendant, Emily A. Stratton, borrowed $2,000 of her mother, Emily Stratton, and executed the bond and mortgage in controversy, as-security for the loan ; that it was assigned by the mortgagee to Mrs. Currie who assigned it to the present plaintiff; and that it. was due and payable at the date of the commencement of this action, are all facts fully proved and in no respect the subject of doubt or contradiction. So far the right of the plaintiff to a judgment of foreclosure was put beyond dispute.

But he sought additional and further relief, and made the defendant Judson a party for that purpose. There was a prior mortgage on the same premises executed by Emily A. Stratton to-one Hicks; by him assigned to Fitch, upon whose death it passed to his wife as executrix ; while in her ownership was sued and the action carried to a judgment of foreclosure; by her was assigned. to Joseph Fitch, Jr., by whom both were assigned to the defendant J udson. The amount then due upon the j udgment, and which Judson paid, was $2,015.33. He testified to that fact himself. This prior lien the plaintiff sought to destroy as such and postpone to his own mortgage by proof that the consideration of the latter was advanced to pay off the former under an agreement that pro tanto it should take the place of the prior lien. The proofs indicated that some of the money borrowed of the mother was applied by the daughter upon the Hicks mortgage under an agreement like that alleged, but before the purchase by Judson and without knowledge on his part.

The purchase by him was made with his own money, and so this effort of the plaintiff failed as against Judson. The court adjudged the validity and priority of his lien; awarded a foreclosure subject to that lien; and gave to the plaintiff aright of' subrogation only upon paying it in full. Of this result the plaintiff does not complain and Judson cannot, for he is protected and not harmed by its provisions. The priority of his lien for its full amount is recognized and preserved. The plaintiff’s foreclosure and sale can do him no harm, and the result is the same as if he had sold on his own judgment and the plaintiff as subsequent mortgagee had bid in the property for more than the amount of Judson’s lien in order to collect the second mortgage out of the surplus value. Judson has no possible ground of complaint unless he had other liens or rights which the judgment failed to recognize. He claims in his answer to have had them, but gave no proof of them on the trial, and the same thing is true of the other appellant, the mortgagor. Bach of them attempt to fasten a counterclaim upon the mortgage in controversy while in the hands of Mrs. Currie; alleging .a debt due from her to the mortgagor for moró than the amount of the mortgage, but there is not the least evidence of any such debt. Judson also claims in his answer to have had other prior rights and liens, but gave no proof of them.

The appellants seek to overcome this difficulty in two ways. They say that the answers are in evidence, and their allegations must be taken as true. They were not put in evidence at all. There is in the case no trace of any such fact,- nor of any use of admissions so connected with other allegations as to be inseparable.

But an explanation of this lack of proof is made on the part of Judson. Among the papers printed is what • purports to be an extract from the clerk’s minutes, which reads, “Judgment for plaintiff with costs and dismissing complaint as against defendant Judson.” This memorandum is dated March 14, 1887. It formed no proper part of the judgment roll and is not the decision actually made, for that bears date July 3, 1888, is signed with the initials of the trial judge, orders judgment of foreclosure and sale subject to the lien of Judson’s mortgage, is followed by the formal findings and the judgment in accordance therewith. If the appellant Judson was misled or deceived by the court so as to have '

' deemed his proofs needless, his remedy, I think, was an application to open the case and be let in to make his further proofs. Instead of that he seems to have proposed findings and filed exceptions with a perfect understanding that the action was not dis* missed as to him.

I can discover no error in the record which warrants a reversal, and the judgment should be affirmed, with costs.

All concur.