text:
    SAMUEL W. NASH, Appellant, v. THE MANUFACTURERS AND TRADERS’ BANK OF BUFFALO, Respondent.

      Banking corporations — usury—person setting it up must allege pa/yment of usurious interest.

    Appeal from a judgment in favor of defendant, entered upon the report of a referee.
    This action was brought under the act of 18YO (chap. 163), amending the act, entitled “An act to authorize the business of banking,” passed April, 1838, to recover for money usuriously exacted and received upon the discount of plaintiff’s paper in the defendant’s bank..
    The statute provides that the knowingly taking,- receiving and reserving or charging a rate of interest greater than seven per cent per annum, “ shall be held and adjudged a forfeiture of the entire interest which the note, bill, or evidence of debt carries with it, or which has been agreed to be paid thereon; and in case a greater rate of interest has been paid, the person or persons paying the same, or their legal representatives, may recover back twice 'the amount of the interest thus paid from the association taking or receiving the same.”
    The referee found that the defendants discounted the plaintiff’s paper, as alleged in his complaint, and upon such discount charged a rate of interest upon the several notes, checks and drafts, exceeding seven per cent per annum in advance for the time such notes, checks and drafts had to run ; and that the same was so charged intentionally and for the purpose of obtaining such greater rate of interest on the discount of such paper. But he did not find that any of such paper had ever been paid by the plaintiff.
    The court held^ that the action was given to the person or persons paying such interest. That it was essential, to make out the cause of action given by this statute, that the plaintiff should have averred and proved, in fact, that such interest had been paid by him, and that upon this ground, for want of such proof, the referee might, and the court presumed he did, dismiss the plaintiff’s complaint.

      Joel L. Walker, for appellant. Sherman S. Rogers, for respondent.
    Present — E. D. Smith, P. J., Gtlbebt and Meewin, JJ.
   Judgment affirmed.


source: Caselaw Access Project

author: Gilbert, J.

license: Public Domain

text:
    HENRY J. SICKLES, Appellant, v. EUGENE SULLIVAN, Respondent.

      Attachment — statement as to defendant’s departure from the eoimty —must not he on information and, lelief.

    Appeal from a judgment of the Orleans County Court, reversing a judgment rendered by a justice of tbe peace in favor of tbe plaintiff,- in an action in wbicb an attaebment was issued against tbe defendant, under 2 Revised Statutes, 230, sections 26-28 (Laws of 1831, cbap. 300, § 35), on tbe ground that said defendant bad departed from tbe county with intent to defraud bis creditors.
    Tbe following is a copy of tbe affidavit on wbicb tbe attachment was issued :
    STATE OE NEW YORK, County oe Oeleans,
    Henry. J. Sickles, of Albion, being duly sworn doth depose and say, that Eugene Sullivan is justly indebted to tbe deponent, on a demand arising upon contract, in tbe sum of $200, over and above all discounts wbicb tbe said Eugene Sullivan may have against bim, as near as can estimate tbe same ; and this deponent further says that be applies for an attachment upon the following facts and circumstances:
    That on Monday last deponent, with Sullivan, at Lockport, called on Hon. James Jackson, canal commissioner, who paid Sullivan a claim be bad against tbe State of about $600 by cash and a draft of $500 ; that Sullivan and deponent thereupon came back to Albion, and said Sullivan there promised that be would get tbe draft cashed tbe next day, and then be would pay deponent in full, and would call on bim tbe next day; that said Sullivan did not call on deponent tbe next day; that deponent thereupon, on "Wednesday, called at Sullivan’s house in Albion, and Sullivan was not there, and deponent could not find him.
    And deponent further says that on Thursday last deponent went to Sullivan’s house three times and could not find him; he afterward found him walking on the railroad track in Albion, about eight o’clock p. m. Sullivan told deponent he had been at Rochester for two days past; that he would be at his house the next morning, and if deponent would come to his house in Albion between eight and nine o’clock a. M., he would certainly pay deponent in full his claim. Deponent called -at his house at the time stated. Sullivan’s wife told deponent Sullivan went awky at 'seven o’clock a. m., with Mr. Bacon, of the Five Corners, in Gaines. Deponent then saw Sullivan’s hired man, Cornelius Collins, who told deponent Sullivan had left for the Thousand'Islands, in the St. Lawrence river, on the cars.the night before, and deponent had learned at Bacon’s shop, on. inquiry, that Sullivan had not been with Bacon. Thereupon deponent called on Sullivan’s wife and told her what Collins had said, and that Sullivan had not been with Bacon ; she said she did not believe he had gone, for he stayed at his house the three last nights. That thereupon deponent inquired of the sheriff of Orleans county for Sullivan, who informed deponent he had executions against him, and had searched for and tried to find him, and could not. That deponent has made diligent inquiry of Sullivan’s brothers and a sister, who reside in Albion, to find Sullivan, and they could give deponent no information as to his whereabouts. That Sullivan has been a tenant of deponent for the last nine years in deponent’s house in Albion. That on Friday night last, after midnight, as deponent is informed and believes, the said Sullivan and his family removed out of the said house, with the household goods, to parts unknown to deponent; that deponent knows they have removed out of his house, and deponent has learned that said Sullivan has .absconded from the county of Orleans, with his family, to Canada, or Ireland, or elsewhere out of the said county, in a secret and clandestine manner, and, as deponent believes, with intent to defraud his creditors.
    And deponent further says that the said Sullivan is, and has been for some time past, largely indebted in Orleans county, and the judgments against him and executions in the hands of the sheriff of Orleans .county, and supplementary proceedings have been instituted against him on judgments, and he has failed to appear to answer, as deponent is informed and believes; that just before Sullivan absconded he was in possession of personal property worth $8,000 or $10,000; that a short time ago he transferred to a young man by the name of Cunneen, a lawyer at Albion, by bill of sale, a span of horses and harness, a lumber wagon and sleigh, a buggy wagon, and all the household furniture, for the consideration expressed of one dollar, and that Sullivan’s wife has been trying since to sell the same property, as deponent is informed and believes; that said property was transferred, as deponent believes, with intent to defraud his creditors. That Sullivan has not paid deponent said claim, or any part thereof; that said Sullivan has departed from said county, where he has lived, and has assigned and disposed of his property with intent, as deponent believes, from the foregoing facts, to defraud his creditors, and that this deponent will be in danger of-losing his debt unless an attachment issue against said Sullivan.
    H. J. SICKLES.
    Subscribed and sworn before me) this 1st day of March, 1875. j
    S. S. Spenoer, Justice of the Peace.

    The court at General Term held, that the facts stated in the affidavit on which the attachment was applied for and issued, were sufficient to' establish prima facie the fraudulent intent required by the statute, but that striking out the facts set forth therein on hearsay only, which were wholly inadmissible as evidence, there was a total defect of proof that the defendant had departed from the county • — • not a fact being sworn to positively to show such departure. The General Term held, that the justice did not, therefore, acquire jurisdiction to issue the attachment. (Miller v. Brinkerhoff, 4 Den., 120.)

      H. D. Tucker, for appellant. Jno. II. White, for respondent.
   Opinion by

Gilbert, J.

Present— Smith, P. J., Gilbert and Merwin, JJ.

Judgment of County Court affirmed.


author: BoaedmaN, J.: LeaeNed, P. J.

text:
    HARVEY R. MILLARD, Respondent, v. JOHN McMULLIN and others, Appellants.

      Gonti'act for sale of land — when no estate passes to mndee — Merg&)'—legal and equitable estates.

    An executory agreement to convey an estate in lands upon payments thereafter to be made, does not give to the vendee any estate in such lands.
    When equitable and legal estates unite in the same person, the equitable is merged in the legal estate and ceases to be recognized in equity, but in order to merge, the equitable must be coextensive with the legal estate, and in such cases the merger is largely a question of intention. ’ ■
    Appeal from a judgment rendered on tbe decision of the court at Special Term, establishing plaintiff’s title to lands in controversy, and declaring the rights and equities of defendant Bell, by way of liens thereon, and directing a sale to satisfy said liens, with remainder to the plaintiff.
    The court found, among other things, as follows:
    That Morgan Lewis, being the owner of the farm of land described in the complaint, on the 1st day of February, 1830, did, by an instrument in writing under his hand and seal, duly grant, demise and to farm let the said premises to Angus McMullin, subject to and reserving an annual rent of thirty-six bushels of wheat, to be delivered at Esopus landing, on the Hudson river, on the first day of February in each year (after the ten years of about half and three-fourths rent), also reserving the right to re-enter and take possession of the said premises, in case the said rent was not paid within thirty days after the time agreed upon. The said Angus entered upon and took possession of the said premises under the said instrument, and occupied the samo as a farm, and paid rent from time to time in pursuance of the said instrument, and up to the year 1843, when he died, leaving John and ■ Daniel, his two sons, known as John and Daniel McMullin, to whom he devised the said premises, and they thereby became the owners thereof, subject to the said annual rent. They continued in possession as tenants in common of said premises, paying the rent from time to time until 1847. In April, 1847, the said Daniel McMullin, by parol, agreed to sell his interest in said premises to his brother John, for the sum of $600, and at that time delivered the possession of the entire premises to him. The said John McMullin executed and delivered to Daniel a promissory note for the said $600 and interest, on which note said John paid interest, and,renewed the same three times, and the debt was so continued until the 19th day of February, 1872, at which time it was embraced in a mortgage on said premises, given by the said John to said Daniel, to the amount of $641.02
    The said John took possession of the entire farm, and occupied and claimed to own the same adversely under said sale, and continued to do so until May 1,1872. On the 1st of November, 1861, the rent in arrears on said farm, under the said lease, had been allowed, by the said John McMullin, to accumulate to the amount of $599.53. On that day, Kobert J. Livingston had succeeded to the landlord’s rights of the said Morgan Lewis, under the said lease to Angus McMullin, and owned the said landlord’s interest,; and on that day entered into a contract in writing with the said John McMullin, under their hands and seals, whereby the said Livingston agreed to sell to the said McMullin the said premises for the sum of $1,080, which the said John agreed to pay for the same, with interest from the 1st day of February, 1861, in six equal annual payments, on the first day of December in each year thereafter, the last being December 1, 1867.
    It was provided, in the said agreement, that in ease of failure on the part of the said John to perform his part thereof, the said Livingston should have the right to re-enter on the said premises, and the said John should forfeit all legal and equitable claim on said Livingston, and should be deemed a tenant at sufferance of the said Livingston, and the said Livingston should have the right to take immediate possession of said premises.
    It was further provided, that upon a fulfillment of the said agreement by the said John, the said Livingston should convey the said premises to the said John by a good and sufficient deed, with the usual covenants of warranty, except as against any person holding or claiming by virtue of any lease from Morgan Lewis or his representatives.
    The said John paid on said contract seventy dollars on the 4th day of January, 1864, and fifty dollars on the 1st day of December, 1867.
    On the 7th day of December, 1867, Harvey E. Millard and George M. Frisbee duly obtained a judgment against the said John McMullin for the sum of $276.90 damages and costs, which was on that day duly filed and docketed in the office of the clerk of Delaware county, wherein said premises were situated.
    On the 28th of April, 1871, Galvin H. Bell duly obtained a judgment in the Supreme Court against the said John McMullin for the sum of $125.99 damages and costs, which was'duly docketed in the office of the clerk of Delaware county.
    On the 12th day of July, 1871, Harvey E. Millard duly obtained a judgment against the said John McMullin for the sum of $91.50 damages and costs, ’and a transcript thereof was on that day duly filed and judgment docketed in the office of the clerk of said county; that an execution was duly issued on the said judgment of Millard and Frisbee, and delivered to the sheriff of said county, by virtue of which he duly levied upon, advertised and sold the said premises on the 14th day of June, 1872, as the property of the said John McMullin, and the same were struck off to the said Millard for the sum of $412.77, he being the highest bidder; the same not having been redeemed, the sheriff on the 24th day of September, 1873, duly executed and delivered to said Millard a sheriff’s deed of said premises, which was duly recorded in said county clerk’s office on the 26th day of September, 1873, reserving sixteen acres previously conveyed by the said John McMullin to James McOune, off from the easterly corner thereof.
    On the 19th day of February, 1872, the said John McMullin and wife duly executed and delivered to Daniel McMulliii a bond and mortgage on said premises to secure the sum of $1,125.43, payable .in installments, with interest, reserving the sixteen acres conveyed, to McOune.
    Afterward, about the 1st of March, 1873, as a security for said bond and mortgage, the said Daniel, in good faith, and without any fraudulent intent, and without any new consideration, and to secure no other debt, procured an assignment, in writing, of the said Livingston contract from the said John to him. The said , Daniel was advised to do so by the said Bell.
    On the. 11th day' of March, 1872, the said Daniel assigned the said bond and mortgage, for a good consideration, to Henry Irwin, of Delhi, and on or about the 22d of April, 1872, he also assigned for the same consideration the said Livingston contract to the said Irwin.
    The said John McMullin being indebted to the said Bell on the said judgment and other matters to the amount of $244, on the 22d day of March, 1872, assigned to said Bell said Livingston contract, as a security of the said indebtedness, subject to the interest in the same, which Daniel obtained by his assignment, and authorized the said Bell to perform the said contract in case it became necessary for him to do so, which Bell did in good faith and without any fraud whatever.
    On the 23d day of April, 1872, the said Irwin, for a good consideration, and without any fraudulent intent, duly assigned said bond and mortgage and said contract to said Bell, and the said Bell, with full knowledge of the judgment of Millard and Frisbee, and of Millard against said John McMullin, received and accepted of the assignment, but in good faith and without any fraudulent intent.
    On the 1st day of May, 1872, the said Bell formally turned the said John and his wife Juliette out of possession of said premises, and formally took possession thereof, and leased the said premises to the said Juliette for the term of one year from the 1st day of April, 1872, for the sum of $200 and she to pay the taxes. The said Bell did not, on the place or elsewhere, demand the payment of the rent on said lease, and thereby attempt to terminate said lease; neither did he attempt to re-enter upon said premises by reason of the non-fulfillment of the covenants of said lease.
    On the 6th day of May, 1872, the said Bell, as he was authorized by John to do, paid the said Livingston $1,716.94, the amount due and unpaid upon said contract for said premises, and took a deed of conveyance from said Livingston and wife of said premises, with covenants of warranty against all claims, except as against any person holding or claiming by virtue of any lease from Morgan Lewis or his representatives, as provided in said land contract, which was duly recorded in the office of the clerk of Delaware county, on the 14th day of May, 1872.
    On the 15th day of May, 1873, the said Bell contracted in writing to sell and convey said premises to the said Juliette for the sum of $3,500, which she agreed to pay for the same in annual installments of $400 each, the last one being $600, with interest, excepting the sixteen acres conveyed to McOune, and on the payment of the same the said Bell agreed to give her a warranty deed of said premises.
    On the 21st of Oetober, 1873, the said John duly assigned to said Bell his equitable cause of action against said Daniel to compel him to convey by deed in writing his interest in said premises, in pursuance of said parol agreement to sell.
    The said Juliette and John McMullin continue in possession of the premises and claim to own and hold the same under said contract from Bell.
    Before the commencement of this action, about the 1st of October, 1873, the said plaintiff went upon the premises and demanded possession thereof under his deed from the sheriff, from the said John and Juliette, and they refused to give up said possession, but claimed to own and hold the same under said contract with Bell.
    The said premises are now worth about the sum of $3,000. The annual use of them is worth about $200.
    Among other conclusions of law, the court held that there was no merger of one title or interest into the other by virtue of the contract of November 1, 1861, for the reason that the contract did not have the effect of granting and conveying title either way. It was only an executory contract to convey on the payment of the contract-price, with interest. It did not operate as a grant in prcesenti, so as to create merger.
    That by virtue of this contract McMullin did not release or extinguish his title or interest in said premises under the said lease m jpraesenti.

    That on the 7th of December, 1867, when Harvey R, Millard and George M. Frisbee perfected their said judgment against John McMullin, he was the owner in fee of the said premises, subject to said landlord’s rights and equities under said contract, and subject to the equities of said Daniel, and had such title in said premises that the said judgment became and was a lien thereon, subject to all the prior rights and equities that McMullin’s title, was subject to.
    That McMullin never did convey the title that lie held to said premises, as tenant, to Bell; and Bell having taken a deed from the landlord in pursuance of said contract, the landlord’s interest and tenant’s title is not merged. McMullin only assigned to Bell the landlord’s interest that he purchased of Livingston and the right of action against Daniel.
    That at the time of the sheriff’s sale, on the 14th day of June, 1872, of these premises by virtue of the Millard and Frisbee execution, the judgment still continued a valid and subsisting lien on said premises, and that by virtue of such sale and of the deed which was subsequently received from the sheriff, the said Millard acquired and became the owner of the title of John' McMullin as tenant under the said lease, subject to the equities prior thereto.
    That on the 7th day of December, 1867, ’when Millard and Frisbee obtained their judgment against-John McMullin, .Daniel had an equitable lien on an undivided half of the tenant’s title of the said premises.for the unpaid part of the purchase-price thereof, and the said judgment was a lien on the tenant’s interest in the said premises, subject to the equitable, lien of Daniel.
    That 'plaintiff was entitled to judgment, that he have and recover of the defendants the possession of the said premises, subject to said lien, with $225 as damages for the unlawful withholding from the time of the demand, with costs of this action.
    The defendant Bell was entitled to judgment, that the amount of $2,595.40 be declared a lien on said premises prior to plaintiff’s title, and that they be sold under a decree of this court, by the sheriff of Delaware county, to satisfy the amount of said lien, with interest thereon, and his costs according to the practice of this court, and that out of the proceeds of such sale he first pay his fees and the costs of defendant Bell, to be'taxed by the clerk of Delaware county, and then pay to the said Bell the amount of $2,595.40, with interest thereon, and the remainder to said plaintiff; and that the’sheriff give a deed to the purchaser of said premises, and the purchaser have possession of said premises under said deed.

      G. H. Bell, for the appellants.

      Wnn. Gleason, for the respondent.
   BoaedmaN, J.:

By reference to the findings of fact in the court below, it appears that the judgment under which plaintiff claims title, was recovered and docketed in December, 1867. At that time defendant John McMullin, as one of two heirs of Angus McMullin, and as equitable assignee or purchaser from the other heir, was the -owner of a durable léase of a farm in said county of Delaware, where said judgment was docketed. Prior to the last date, and in 1861, John McMullin made an executory contract with his landlord for the purchase of the landlord’s remaining interest in the soil and rents reserved. This contract was never performed by McMullin, nor did he ever receive any deed under it. Defendant Bell became the assignee of such contract, in 1871, and, upon full payment and performance by him, obtained a deed of the landlord’s interest. •

It is claimed by the appellants, that the plaintiff’s judgment never became a lien upon the land, for the reason that McMullin’s durable lease and his title under the same became merged, in 1861, in the contract which he then made with his landlord for the purchase of his remaining interest in the property. In other words, the appellants claim that McMnllin’s freehold estate under his lease in fee, was merged in his 'executory contract to purchase his landlord’s rents reserved and rights of forfeiture and re-entry for nonpayment of rent. The statement of the proposition would seem to be a sufficient answer. A greater estate is not merged in a smaller estate. (4 Kent Com., 99; James v. Morey, 2 Cow., 246.) The greater estate remains. If we concede that the contract gave McMullin an estate, it was not a greater estate than he before that possessed, and consequently could not drown it. But the contract did not give McMullin any estate. It was an executory agreement to convey upon payments to be made. McMullin, therefore, had but an equity. Where legal and equitable estates in land unite in the same person, the equitable is merged in the legal, and ceases to be recognized in equity. (James v. Morey, supra; Nicholson v. Halsey, 1 Johns. Ch., 417.) But the equitable interest in this case was not coextensive with the legal estate, and would not. therefore merge at all. In my opinion no merger could take place until an actual conveyance by the landlord of his remaining interest to the person owning the durable lease. That has never occurred.

Besides, merger is generally, if not always, a question of intention. The acts of McMullin do not indicate an intention that a merger should take place. He assigns the contract without assigning the lease. He mortgages his leasehold estate to. secure the debt due to Daniel for the purchase-price of his half. This he could not do if the legal estate had been merged in the contract, because by the contract he had no estate to mortgage. It would be extravagant to suppose McMullin intended to extinguish his legal estate under his lease, and accept, instead, a mere executory contract for the purchase of the fee.

If these conclusions are well founded, the judgment under which plaintiff claims title became a lien upon McMullin’s premises in 1867, and through such judgment and the sale thereunder the plaintiff became the owner of McMullin’s title and interest, subject to the equities of Bell, as assignee of the contract and of the mortgage given to Daniel, and as owner of the landlord’s interest. Such equitable interest of Bell is in the nature of a mortgage upon the estate, and was properly chargeable with the amounts realized by Bell from the estate while in his possession and leased by him. The sum of $322.60, realized by Bell from the property, was justly deducted from the amount found due Bell by the Special Term.

Daniel’s title and interest are not in issue in this case. In allowing Bell the amount of Daniel’s-equitable lien, the court went to the extreme limit in Bell’s favor. If Daniel still holds and owns Ms title, then such allowance should not have been made to Bell. As the plaintiff has not objected to such allowance, I do not. think Bell can be permitted to object to the finding of the court whereby the allowance becomes possible.

The findings and decision of the court appear to me quite too favorable to defendant Bell; notably in omitting to deduct the $120, paid by McMullin upon the contract of 1861, by way of interest.

.As no injustice has been done the appellants, and no error calling for a new trial, the judgment must be affirmed with costs.

LeaeNed, P. J.

(dissenting):

On November 1st, 1861, John McMullin, legally as to one half, equitably as to the other, was the owner of a peiqjetual lease of a farm from Morgan Lewis. Robert J. Livingston was the owner of the rents reserved. The rent was in arrear about $600.

Livingston and McMullin entered into a contract of sale that day. Livingston agreed to sell the farm to McMullin, for $1,080, in six equal annual payments, which McMullin agreed to pay. In case of failure to perform, Livingston was to have a right to re-enter, and McMullin was to forfeit all legal and eguitdble claim, and to be deemed a tenant at sufferance, and Livingston to have the right to immediate possession. On fulfillment of the contract, Livingston was to execute a deed with warranty, except as against persons holding a lease from Morgan Lewis.

The question is: "Whatwas McMullin’sinterest in the land, after the execution of that contract ? ILe made two payments thereon before the recovery of the Millard and Prisbee judgment, which was in December, 1867.

• There was no merger of the lease in the contract; for McMullin obtained no legal estate by the contract. There was not strictly a surrender of the lease to Livingston, for, in strict language, a surrender must be to a remainderman or reversioner. And Livingston liad no reversion or remainder.

But, by making that contract, did not the parties practically release and annul the lease, and substitute therefor a different agreement? And is not McMullin estopped from asserting the existence of the lease, after the contract is in force ? (Springstein v. Schemerhorn, 12 Johns., 351.)

After the contract was executed, Livingston could not have sued MeMullin on any of the covenants -in the old lease, for rent, etc. He could not have collected the rent in arrear, as rent.

The lease has a clause of re-entry and forfeiture, after non-payment of rent for thirty days. The new contract provides for re-entry and forfeiture, without any delay, on non-payment of installments. Clearly, then, the rent was at an end. If, then, McMullin’s estate remained as it‘was before, free from rent, he needed no deed from Livingston.

It seems to me .that, by this contract, the parties voluntarily changed their position' as they might then do, since no third party had any rights in the farm. Instead of landlord and tenant under a perpetual lease, they became vendor and purchaser, with possession in the purchaser. For the contract says, on non-payment of installments, MeMullin shall lose all claim, legal and equitable; shall be a mere tenant at sufferance; and Livingston shall be entitled to immediate possession. How is it possible, after this, that MeMullin could be a tenant in fee, subject only to the payment of rent. The parties might have contracted simply for the release, or quit-claim, of the rent. But that would have needed different language, and no agreement to warrant.

It may be said that Livingston had no estate to sell. But he had the right to enforce the forfeiture of the lease for non-payment of rent, long in arrear. And if the parties chose to act upon a practical or implied forfeiture, by entering into a contract for purchase, and by ceasing to stand as landlord and tenant, I think they could do so.

It seems to me, therefore, that after November 1,1861, MeMullin had no legal estate, and had only a contract. This is not subject to levy. (1 B. S., [m. p.] 744, § 4.)

Again. If, as the Special Term held, MeMullin had an estate, and, by levy under the judgment of 1867, it was sold and a deed given to plaintiff, he ought to bring ejectment to recover the land. He is not in possession. He asks that he be declared owner of the premises, and sundry other matters, and that he have possession. The Special Term adjudged that he was owner, subject to the landlord’s interest, which Bell now owns.

The court further adjudge that the property be sold to pay Bell’s lien. Bell never asked this, and now appeals from it. The plaintiff never asked it. And it is not a proper relief in an action of ejectment. 'If Bell stands as the assignee of the landlord’s (so to call him) rights under the contract, he has not any lien for which the property can be sold. Livingston did not have a Men, after the contract was made, in whatever light the contract be looked upon.

If the payment by Bell to Livingston be looked upon as a jpurchase by Bell (as the Special Term seems to have held), then Bell stands in Livingston’s place. His right to forfeit the land for non-payment of the installment, cannot be turned into a lien against his will.

If the payment by him be looked upon as a performance of the contract, then there is nothing for which a lien can exist.

Present — LeabNed, P. J., Boabdman and James, JJ.

Judgment affirmed, with costs.


author: BoabdmaN, J.:

text:
    EDWARD A. BROWN, Appellant, v. MICHAEL WELCH, Impleaded, etc., Respondent.

      Qha/p. 489, of 1873 — Mechanic’s lien — error in staling against whom lien is filed.

    This action was brought to foreclose a mechanic’s lien filed by the plaintiff for materials furnished by him to the defendant Daley, Sr., in pursuance of a contract with him. After the filing of the notice, plaintiff learned that a son of Daley, a minor, was jointly interested with him in the contract for the erection of the house. In the notice by which this action was commenced, Daley, Jr., was made a party, plaintiff alleging that he claimed to have some interest in the fund, but that in fact he had no title or interest therein. Daley, Jr., did not answer. Held, that it was error for the court to dismiss the proceeding, on the ground that the notice of lien named Daley, Sr., as the person against whom the claim was made, while in fact; Daley, Sr., and Daley, Jr., were the con- ' tractors and’persons by whom the materials were used.

      Held further, that it was competent for the plaintiff to show that prior to the filing of the lien, the defendant Welch, the owner of the property, and Daley, Sr., had both stated to him that Daley, Sr., was the sole contractor.

      Appeal by the plaintiff from a judgment entered upon the trial of this action by the court, without a jury.
    The action was brought to foreclose a lien, filed by the plaintiff, for brick used in the erection .of a building that the defendants; Patrick Daley and Patrick Daley, Jr., had contracted in writing to construct for the defendant Welch, the owner of the land upon which it was to be erected.
    The bricks were furnished to Patrick Daley,' Sr., the plaintiff having no knowledge that Daley’s son had any interest in the contract. In the notice of lien filed in clerk’s office, the plaintiff stated that he had “ a claim against Patrick Daley, who was the contractor with Michael Welch, for the construction of the building” in which the bricks were used. In the amended notice served to foreclose the lien, he stated that he had “ a claim against Patrick Daley and Patrick Daley, Jr., who were the contractors for the erection of the building.”

      Job G. Sherman, for the appellant.
    It is not necessary that the notice of lien filed in the office of the county clerk of the county where .the property is situated, shall state the name of the person with whom the contract was made. {Riley v. Watson, 3 S. C., 568; Gates v. Whitoomb, 6 N. T. S. C., 341, 342.) A lien attaches when work is done by permission of the owner. {Han't v. Wheeler, 1 N. Y. S. C., 403, 404; Hauptman v. Gatlin, 20 N. Y., 247,249.) It is sufficient, if it appear that the materials have been furnished under a contract by. which the owner is bound. {Hauptman v. Gatlin, 20 N. Y., 250 ; Dressell v. French, 7 Plow., 350.) Where there “ are several contractors, the notice is sufficient, if it name one of them.” (Phillips on Mech. Liens, 481, 482, 483 ; Davis v. Livingston, 29 Oal., 283 ; Tibbetts v. Moóre, 23 id., 208; Roach v. Chapin, 27 Ill., 194; Reals v. Gong. R’nai J., 1 E. D. Smith, 654; Dwtz v. Fy, 3 id., 621; Knabtfs Appeal, 10 Penn. [Barr], 186.) The court will order the contractor brought in. {Sullivcm v. Decker, 1 E. D. Smith, 699 ; Foster v. Skidmore, id., 719 yLowber v. Ohilds, 2 id., 577.) Nor can the proceedings be dismissed on such ground. {Lowber v. Ohilds, 2 E. D. Smith, 577.) Michael Welch is estopped from denying that Patrick Daley is the sole contractor. (Phillips on Mech. Liens, § 121, pp. 174, 175; id., § 75, p. 110; Haswell v.
      Goodrich, 12 Wend., 373; Phillips oh Mech. Liens, § 112, p. 162; Gaty v. Casey, 15 Ill., 189.)

      A. Pond, for. the respondent.
    The proceeding to enforce a mechanic’s lien is purely statutory, and not according to the common law, but an innovation thereon, and hence the statute must be strictly pursued, or no rights can be acquired under it. (Mushlitt v. Silverman, 50 N. Y., 360; Rollin v. Cross, 45 id., 766,769; Benton v. Wicjiwire, 54 id., 226, 228; Kelly v. Laws, 109 Mass., 395, 397; Hubbell v. Schreyer, 4 Daly, 376.) The plaintiff having, in his notice of lien, stated that his claim was against Patrick Daley only, cannot now maintain a suit to foreclose a lien, founded upon a claim in favor of Patrick Daley and Patrick Daley, Jr., jointly, against the owner; nor can he, by a proceeding to foreclose a lien, reach a fund in the owner’s hands belonging to them jointly. It is a fatal variance, and a departure from the case made in the notice of lien not authorized by the statute. •(LLubbell v. Schreyer, 4 Daly, 362, 376; Hauytma/n v. Halsey, 1 E. D. S., 668; Jennings v. Collins, 99 Mass., 29.)
   BoabdmaN, J.:

Welch, the owner of the premises, alone defends. The building was erected upon his lands. Brown furnished materials, which went into the structure. In due time Brown filed a notice of lien for such materials. In such notice it was alleged that the materials were furnished to defendant Patrick Daley, for thé construction of the building. In fact, as shown by the evidence, the contract to furnish such materials was made by Brown with Patrick Daley,, and Brown never knew that Patrick Daley, Jr., was a contractor, or had any interest in the contract for the building of the house, until the lien was filed.

Brown offered to prove that both Daley, Sr., and Welch told him, the former when the contract for materials was made, and the latter when the lien was filed, that Patrick Daley was the sole contractor. If this evidence was admissible, it must be treated upon this appeal as if it had been proved. It also appears from the evidence, that Daley, Jr., was under twenty-one years of age when the contracts were made. The contract for the building of tbe house was executed by the two Daleys, after the parol contract between Brown and Daley, Sr. Brown, under the amended notice by which these proceedings were commenced, for the purpose of obtaining judgment, makes Daley, Jr., a party defendant; alleges that he has or claims some interest, but that, in truth and in fact, he had no interest or title therein, and was, at the making of said contract, an infant. Daley, Jr., does not defend, but Welch pleads that Daley, Jr., is improperly made a party defendant.

Upon these facts the court dismissed the proceedings, “because the notice of lien filed names Patrick Daley as the person against whom the claim is made, whereas the evidence shows Patrick Daley and Patrick Daley, Jr., to have been the contractors and the persons to whom the materials were furnished.”

I think this decision is subject to criticism. It is not controverted, that plaintiff has furnished the materials; that they have gone into defendant Welch’s house; that Welch is still owing for the work of construction; and that plaintiff has not been paid for the materials. If those facts are conceded, as they must be for the purposes of this appeal, equity and justice support the plaintiff's claim, and nothing but strict rules of law should prevent his recovery.

By the fifteenth section of chapter 489, Laws of 1873, it would seem that these proceedings are of an equitable character, to ascertain, adjudge and decree the respective rights of all the parties ; to declare their priorities, and to secure the payment of the fund in the hands of the owner to the person or persons entitled thereto.

Por this purpose, if necessary, other persons than those named in the notice may and should be brought in. (Sullivan v. Decker, 1 E. D. Smith, 699; Foster v. Skidmore, id., 719; Lowber v. Childs, 2 id., 577.) It is a proceeding in rem to adjust equities. The real claim is against the owner. The contractor is only of importance as showing the origin of plaintiff’s claim. In this case the contract was made by plaintiff with defendant Daley, Sr.; the materials were delivered to and used by him in Welch’s house. As no contract was made or executed by plaintiff with the two Daleys, I think he was justified in law in filing his lien against Daley, Sr., alone. The plaintiff is not bound to recognize or litigate the conflicting rights of Daley, Sr., and Daley, Jr. Those are matters between themselves to be determined. Having done that, plaintiff afterward learns that Daley, Jr., has or claims some right or interest in the fund in controversy. Accordingly, when this action to enforce the lien is brought, he makes Daley, Jr., a party defendant; under section 6, as a person having or claiming an interest in the subject-matter of the claim; that is, in the fund in the owner’s hands. By the neglect of Daley, Jr., to answer, he admits thathe has no interest as against any other party in this action. I think such practice was correct. The proceedings against Welch were not affected by making Daley, Jr., a party; nor should the proceedings have been dismissed, whether he had or had not an interest in the fund. (Lowber v. Childs, supra.)

The court was required to ascertain and adjudge, to whom the fund in Weleh’s hands belonged. It was of no consequence to Welch what disposition was made of it, so long as he owed it, provided all possible claimants were made parties to the action; the judgment would protect him.

In another respect I think there was error in rejecting the offers to prove the declarations of Daley, Sr., and Welch, tending to show that Daley, Sr., was alone the contractor who bought these materials and built the defendant Welch’s house. Had this proof been given, I think Welch would have been estopped from asserting upon the trial, that the lien was defective in not naming Daley, Jr., as one of the purchasers of materials. Brown filed his notice of lien upon the presumed truth of Welch’s assurance. If he could be prejudiced thereby, Welch should be estopped from denying the truth of his assertion.

The remedy given by this law must necessarily be construed strictly; but its utility should not be destroyed by constructions hostile to its entire .object and purpose.

Courts of equity are not disposed to withhold action because too many or too few parties appear upon the record. If there be too few, the absent persons will be brought in. If there be too many, the plaintiff may be subjected to the payment of the costs of those who have been unnecessarily brought into court. But in either ease the court will retain the case and do justice. The law applicable to such proceedings as the suit at bar has not yet been well settled, and analogies may mislead.

But, for tbe reasons stated, I think a new trial should be granted, with costs to abide the event. .

Present — Learned, P. J., BoaRdmaN and JaMes, JJ.

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


author: BoaedMAn, J.:

text:
    ELIAS CROCKER, Plaintiff, v. LEVI CROCKER, Defendant.

      Bight of way — how location of may be determined — Patent ambiguity — pa/rol evidence not admissible to explain.

    In a conveyance of certain land, a right of way was reserved for a portion thereof “from the public highway along the side of suh-lot, No. to the river, not less than feet wide.” Held, that the reservation of the right of way was not void for uncertainty. The parties interested could locate it by agreement, or by acts, conduct and declarations indicating a practical location, accompanied by user from and after the date of the creation of the right of way.

      Held, further, that parol evidence of prior agreements between the parties, as tc the location of the right of way, was inadmissible, (1) because the ambiguity was patent and therefore could not be explained by parol evidence; (3) because all prior negotiations and contracts were merged in the deed.
    Motion for a new trial, upon exceptions ordered to be heard in the first instance at the General Term, after a verdict for the defendant.

      O. W. Chapman, for the plaintiff.

      G. W. Hotchkiss, for the defendant.
   BoaedMAn, J.:

Samuel Crocker owned a farm, comprising land on the north bank of the Susquehanna river, and part of an island south, out in the river. The river runs west, and a highway north of the river also runs west, through the farm. Samuel Crocker had four sons, Eli, Levi, Elias and Hiram. In 1852, he conveyed to all four of bis boys, by two deeds, this farm; to each the one equal undivided fourth part of the whole. In 1853, he and all the boys united in a deed by which they all agreed that the farm proper should be divided into three pieces by lines running southerly to the river; that Eli, Levi and Elias should have, each, one of these three pieces, and that Iliram should have the island, with a right of way for the owner of this portion of the island from the public highway along the side of sub-lot No. to the river, not less than feet wide.”

A survey and map were made, cutting the farm up into three pieces, numbered one, two and three. The map does not have the island upon it. Eli toot the west strip, running south to the river, and called in the deed No. 1. Levi took the middle strip called No. 2, also running south. Elias took the east strip called No. 3, also running south; and Levi, as trustee for Hiram, took the island called No. 4.

Defendant claimed the right, under the deed, to throw the right of way on the west side of No. 3, plaintiffs land. This claim plaintiff disputed. Defendant, as the representative of Hiram, proposed to go across there. Plaintiff forbade him. Defendant went across, and plaintiff sued him for trespass to settle the question.

Upon the trial the court held that the deed conveyed a right of way to the owner of No. 4, to which plaintiff excepted. Also that the location of such way could be fixed and determined by proof of conversations and agreements of the parties to such partition deed, prior to the execution of such deed, and at or prior to the survey made for the purpose of such partition. To the admission of such proof the plaintiff excepted. These two exceptions present the chief questions to be considered. By the pleadings the plaintiff claimed to own the premises on which the trespass was alleged to have been committed. The defendant, after a general denial, claimed to own a right of way over such premises, extending from the highway to the island along the west line of plaintiff’s land, and that the use of such right of way was the supposed trespass. The case was tried upon such issue.

The plaintiff insists that the deed of the right of way was void for uncertainty. In this I think the plaintiff errs. The location of such way is not given, but all the parties to this deed in partition, agree that the owner of the island farm shall have “ a right of way * * * from the public highway to the river.” By reference to the other language in the deed, and to the description of the farm and the comparative location of the several parts, it is an inevitable construction, that such way was given to the owner of the island farm over that portion of the farm lying between the river and the highway. It might be contended that such way, in the absence of a particular description, should follow the old way through lot No. 2, as the same had been used prior to such partition, and as an appurtenant or easement of the island farm. It might be claimed that the defendant could select a way over the shore farm, where it would least injure the owners, until such owners should set apart a suitable and convenient way; but these suggestions need not be considered. They illustrate possible consequences of a neglect to define the way by the instrument creating it.

If I am so far right, the blanks and uncertain words used to define the way, are meaningless and incapable of construction or use to settle this dispute. Ic would follow that a right of way exists, which the parties interested therein could locate by agreement, or by acts, conduct, declarations and acquiescence, indicating a practical location, accompanied by user from and after the date of the creation of such right of way. It is not, however, intended to assert that the defendant might not claim and hold the old way through lot No. 2, as the same was used before the partition. Much evidence was given upon the trial, of the ways used by the occupants of the island, after the date of the partition deed, in 1853.

Sometimes the old way through lot No. 2 was used, and sometimes a way along the west side of lot No. 3. The ways used seem to have depended much upon the convenience of the persons having occasion to use them. There is also evidence of the acts and declarations of plaintiff, after 1853, tending to establish the way on his west line, as is claimed to be right and just by the defendant. All this evidence was competent to establish a practical location of this way, by the parties to this action, on plaintiffs west line, if the jury should have so found. But another class of evidence was admitted, consisting of conversations and agreements made by parol, by and between the parties to the partition deed, before such deed was made or executed. The object of such evidence was to determine where the right of way was then to be located, for the purpose of supplying the defect in the deed, and with the purpose that the deed should be read as if it contained such prior- agreements and understandings. I do not understand such evidence was admissible under the facts of this case.

As we have seen, the deed conveyed a right of way without locating it. The only ambiguity, if one existed, was as to the location.' That was patent. Parol evidence is not admissible to explain a patent ambiguity. But there was no ambiguity in the deed. It was a simple neglect to define the location of the way. Proof of extrinsic facts could not make the deed define such way. The location, if established by proof, is not aided by the deed. The proof, therefore, of contracts prior to the deed, was not in aid of the deed, but rather to vary its terms, to enlarge its meaning, and to give specific rights and charge the land in a manner and to an extent not done by the deed. It was evidence at variance with the legal effect of the deed, and as such was inadmissible. But I think the evidence was inadmissible, for the further reason, that all prior negotiations and contracts were merged in the deed. The very fact that the deed did not fix the locality of the way, was evidence that the parties had not agreed thereon. The only way in which such evidence could have been proper, would have been in an action or defense seeking to reform the deed and correct the mistake by inserting therein the words and figures omitted. In such an action such evidence would have been admissible, in connection with evidence showing that the omissions in the deed were the result of mutual mistake and accident. But such was not the issue presented for trial, or tried. The parties rested upon their respective legal rights. The evidence of transactions prior to the partition deed, must have had a serious influence upon the deliberations of the iury. As such evideirce in my opinion was improper, a new trial must be granted, with costs to abide the result.

Present — LbaeNbd, P.'J., BoARdmaN and James, JJ.

Motion granted, costs to abide event.


author: Pee Cubiam :

text:
    ISAAC BRADT, Appellant, v. THE CITY OF ALBANY, Respondent.

      Demurrer — liability of municipal corporation for intrusion on private property.

    Where the complaint alleged that the defendant, a municipal corporation, constructed a drain to the plaintiff’s lot, upon which it discharged its contents, flooding the same and filling the cellar of his house, situated thereon, with sewage, and undermining and injuring its walls: held, that the complaint set forth an intrusion upon plaintiff’s premises and an infraction of his rights, which, in the absence of excuse or justification, was unlawful.
    In case of an intrusion upon private property there is no presumption of lawful authority arising from the commission of the act, simply because done or directed by a municipal corporation having general powers in respect to acts of the kind in question.
    Appeal from an order of the County Court of Albany county, sustaining a demurrer to the complaint.
    The plaintiff alleged in the complaint:
    . “ First. That he is the owner of lot No. 2 Park avenue, in said city of Albany.
    “ Second. That defendant constructed a drain leading from High street, through Johnson alley, to plaintiff’s lot, and that the filth and water through said drain is discharged upon plaintiff’s lot, flooding the same and filling the cellar of the dwelling-house on said lot, now occupied by one Thomas Ellison and family, with sewage from the same.
    “ Third. That the discharge of water and sewage through said drain upon plaintiff’s lot, has undermined the foundation of said house, causing the same to settle on one side.
    “ Fourth. That by reason of said accumulation of sewage and water from said drain upon plaintiff’s lot, the occupation of said house and premises has become dangerous to health.
    “ Fifth. That this defendant has been duly notified of the condition of said premises by reason of said drain, and that the authorities of said city some time ago passed an ordinance for the reconstruction of said drain, but no means have been taken by said defendant to relieve plaintiff from the nuisance and injury resulting from said drain.

      “ Sixth. That by reason hereof plaintiff has sustained damages in the sum of $1,000, for which he prays judgment.”

      “ For a further and separate cause of action the plaintiff complains and alleges:

      u First. That on or about the 1st day of November, 1874, this defendant constructed a plank-walk three feet high, having a hand railing three feet high, making together a height of six feet, along and in front of plaintiff’s said lot on Park avenue, whereby plaintiff is deprived of access to said lot from Park avenue.
    “ Second. That he has been assessed for the payment of the same, and that said walk is an injury to this plaintiff by depriving him of free access to his said lot from Park avenue.
    “ Third. That by the erection of the same this plaintiff has sustained damage to the amount of $250.”

      E. J. Bennett, for the appellant.

      Grenville Tremam, for the respondent.
   Pee Cubiam :

The complaint contains two counts. By the first it is charged that the defendant, a municipal corporation, constructed a drain to the plaintiff’s lot, on to which it discharged its contents, flooding the same, and filling the cellar of his house, situated thereon, with sewage, and undermining and injuring its walls; and that the accumulation of sewage on his lot, produced by such discharge, rendered the occupation of his house and lot unhealthful. These averments show a direct act of intrusion upon the plaintiff’s premises, and an infraction of his rights, which, in the absence of excuse or justification, is unlawful; as much so as would be the casting of stones thereon. Such act the defendant could not lawfully do, except under license or other valid authority. This was held in St Peter v. Denison. (58 N. Y., 416.) It was there said that the State, even, could not intrude on the lawful possession of a citizen, save in accordance with law; and further, that unless authorized by law so to do, the casting of stone from the bed of the canal upon the land of an adjoining proprietor, either by the State or an individual, was a trespass. The right to intrude upon private property, under municipal authority, with a view to carry out public improvements, could only be conferred under consitutional and legislative safeguards. Proceedings to secure that end must be lawful and regular, or the intrusion will be wrongful; and there is no presumption of lawful authority in such case, arising from the commission of the act, simply because done or directed by a municipal corporation, having general powers in that regard. So, if it be admitted that the defendant may, in the exercise of municipal authority, construct drains within the city limits, yet the injury to private property, here charged, must be shown to be justified by the lawful exercise of such authority, or liability therefor will follow. An act by which private property is directly injured or destroyed, is wrongful, as well when done by a municipal corporation as by an individual, in the absence of excuse or justification: and the excuse or justification, if it exists, must be averred and proved, in an action for the injury, as an affirmative defense. But, for any thing that appears in the complaint, the defendant constructed the drain for a private purpose, as there is no averment to the contrary. It is not alleged that the avenue and lane, along which the drain was constructed, were public highways; nor that the drain was constructed under municipal authority. The case comes before us on a question of pleading, and must be determined on the averments of the complaint. According to those averments, the defendant intruded upon the plaintiff’s premises; which act was wrongful, in the. absence of excuse or justification. It follows that a cause of action is well stated in the first count of the complaint.

The second count is manifestly insufficient. The plaintiff shows no right in Park avenue, nor any right to have access to it, or to his lot therefrom. There is no averment that Park avenue is a public street; non constat, but that it is private property. But the demurrer is interposed to the entire complaint; and it being found that it contains one good count, the demurrer must be overruled.

The order of the County Court sustaining the demurrer must be reversed, with ten dollars costs, and expenses^ of printing papers on the appeal; and judgment given for the plaintiff on the demurrer with costs; but with liberty to the defendant to withdraw the demurrer, and to answer on payment of costs of the demurrer and of the appeal.

Present’ — Learned, P. J., Booees and Boardman, JJ.

Ordered accordingly.


author: Per Curiam :

text:
    ENOCH ELLIOTT, Appellant, v. OREN WOOD, Respondent.
    2 B. B., 620, § 1 — Security for costs — when cannot be required.

    Where the plaintiff, in an action in a County Court, resides in a county other than that in which the action is brought, he cannot be compelled to give security for the costs, on the ground that he does not reside “ within the jurisdiction of the court.” (2 R. S., 620, § 1.)

      Bolton v. Taylor (18 Abb., 385) overruled; Bobby. Macdonald (12 Abb., 213) followed.
    Appeal from an order of the County Court of Fulton county, requiring the plaintiff to file security for costs.

      II. Olay Rail, for the appellant.

      James M. Dudley, for the respondent.
   Per Curiam :

This was an appeal from an order of a County Court, requiring the plaintiff to file security for costs. The ground on which the order was made was that the plaintiff was a non-resident of the county in which the action was brought. Hence, it was claimed that he did not reside “ within the jurisdiction of the court.” (2 R. S., [m. p.] 620, §1.) A doctrine analogous to that claimed by the defendant, has been laid down by the Superior Court of New York in respect to that court (Bolton v. Taylor, 18 Abb., 385, and cases there cited),- and a contrary doctrine by the New York Common Pleas. (Robb v. Macdonald, 12 Abb., 213.) We think the latter decision is correct as respects County Courts. Their judgments may be docketed in any county, and executions issued to any county. So far, then, as to the final costs, the defendant in an action in the County Court, is in the same position with a defendant in this court. The plaintiff is practically within the jurisdiction of the court.

It is suggested that an attachment for interlocutory costs could not be issued to another county. The cases where an attachment for interlocutory costs can be issued, are rare. (Laws of 1847, chap. 390.) Whether a precept for interlocutory costs corfid be issued to another county, we need not say. But the intention of the statute is to secure a liability for final costs; and for that purpose the defendant has all necessary security by his right to docket this judgment and issue execution to any county.

The order appealed from must be reversed, with ten dollars costs and printing disbursements.

Present— LeakNeb, P. J., BoabdMAN and Bookes, JJ.

Ordered accordingly.


author: LearNBD, P. J.: JaMes, J.

text:
    ANNA M. FULLER and ALMEDA FULLER, Respondents, v. EUGENE FULLER, Appellant.

      Improper joinder of parties plaintiff — remedy for — nonsuit cannot be granted.

    Where, upon the trial oí an action brought by two plaintiffs to recover for the conversion of a team of oxen, it appeared that each of the plaintiffs owned one of the oxen, held, that a motion for a nonsuit of both of the plaintiffs, on the ground that they had brought a joint action and shown a several interest, was properly denied.

      Simar v. Canaday (53 N. Y., 298) followed.
    Appeal from a judgment in favor of the plaintiffs, entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon a case and exceptions.

      E. W. Paige, for the appellant.

      Wm. Gleason, for the respondents.
   LearNBD, P. J.:

The two plaintiffs brought this action to recover for the taking of a yoke of oxen, alleged to have belonged to them, and to have been in their possession. On the trial the proof given showed, or tended to show, that each of the plaintiffs owned one of the oxen ; that they had agreed to put the two oxen together and to use them as a yoke, and with them to do the. separate work of each plaintiff; that each plaintiff should keep and feed the oxen half the time; that when the oxen should grow old, each plaintiff should sell her own. And there is evidence tending to show that they had acted upon this agreement.

When the plaintiffs rested, the defendant moved for a nonsuit, on the ground that the plaintiffs had brought a joint action, and had shown a several property and individual ownership. The motion was denied. The motion was renewed at the close of the case and was again denied. The court stated that the plaintiff had shown individual ownership, but joint possession.

The defendant asked the court to charge that the forbidding of the sale must be brought to the knowledge of- the officers. The court declined so to charge; but no point is made on that request.

The court charged that the jury were to determine: first, who was the owner; second, whether the plaintiffs possessed the property jointly; and if the jury found for the plaintiffs,, they were to find for the value of the property. No exception was made to this; and the only questions raised on this appeal are those on the motion for a nonsuit.

In Simar v. Canaday (53 N. Y., 298), the question was raised whether the plaintiffs could maintain a joint action, and the court say, in respect to a misjoinder of plaintiffs: It is not an objection which affords good ground for a motion to dismiss the complaint of both plaintiffs, if either of them has shown that he or she has a good cause of action.”

Now, let us suppose that on this trial, the only proof had been of one ox, and that ox the property of the plaintiff Anna; under the above decision a motion for a nonsuit could not have been granted against both plaintiffs. But the complaint might have been dismissed as against the plaintiff Almeda. And it cannot be, that, if the plaintiff Anna could not have been nonsuited after proof of ber ownership of one ox, the additional proof in respect to another ox would authorize such nonsuit. The only question before us is, whether the defendant was entitled to a nonsuit against both parties plaintiff. The question is not presented, whether there could have been a recovery by more than one plaintiff^ or for more than the value of one ox, if a proper motion had been made. (See Palmer v. Davis, 28 N. Y., 242; Code, § 144, sub. 6; §§ 148, 167, 274.) And nothing herein is to imply that when the objection is properly taken, two plaintiffs, separate owners, and with no joint interest, can have a joint recovery for injury to separate property. There might have been held by the jury to be, in this case, a joint right of possession, giving some joint right of recovery. But, on the ground above stated, we think that the judgment should be affirmed, with costs.

JaMes, J.

(dissenting):

I cannot concur in this; the motion for nonsuit should' be held as on the ground that plaintiffs, as joint plaintiffs, could not recover.

Present — LeabNed, P. J., BoaedMAN and JaMes, JJ.

Judgment affirmed, with costs.


author: Per Cueiam :

text:
    OLIVER PORTER, Respondent, v. AUGUSTUS W. KINGSBURY and another, Appellants.

      Complaint in action on undertaking — when defective — Code, § 348 — notice required ly.

    Where the complaint, in an action brought upon an undertaking given in pursuance of section 348 of the Code, fails to allege the service of a notice of the entry of the judgment of affirmance upon the adverse party ten days previous to the commencement of the action, it is defective; and a demurrer thereto, on the ground that it fails to state a cause of action, should he sustained.
    Appeal from an order made at the Special Term, overruling a demurrer to the complaint.
    The action was brought against the defendants, as sureties upon an undertaking given upon an appeal to the General Term. The General Term reversed the judgment, but upon a further appeal to the Court of Appeals the judgment at the- General Term was reversed, and that at the Circuit affirmed. The complaint in this action alleged-that judgment had been entered upon the filing of the remittitur’, and that an execution issued thereon had been returned unsatisfied. The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.

      M. M. Waters, for the appellant.

      O. Pdrter, for the respondent.
   Per Cueiam :

We have no doubt that the commencement of such an action as this, before the lapse of the ten days after notice (Code, § 348), is fatal to the recovery. The only question here, however, is one of pleading: whether the plaintiff must aver the notice and the lapse of ten days in his complaint. The liability 'of the defendants, in one sense, is perfected and fixed by the judgment in the appellate court. Only the time of commencing the action is restricted by this statutory provision. Under the old system, it would probably have been necessary to aver the notice and the lapse of ten days. And the present case seems to depend on the question whether section 162, in its language or spirit, makes such an averment unnecessaiy. That section allows a party, instead of pleading the facts showing a performance of -conditions precedent, to aver such performance generally. It also allows him to sue on an instrument for the payment of money only, by merely giving a'copy, and stating the amount due thereon. Probably, in accurate language, this undertaking is not an instrument for the payment of money only; nor this statutory i’estriction a condition precedent. At any rate this restriction does not appear in the instrument. A general averment of performance could not therefore be reasonably taken to include an averment of the service of the notice, and of'the lapse of the ten days. Further, it is just to the defendant that he should know whether the plaintiff relies upon the actual service of such notice or a waiver of such service, etc., or whether he claims that the notice is unnecessary. This last was a position taken on the present argument. The defendant should thus be notified, so that he may be ready to disprove, if he can, the alleged notice, or the alleged waiver, etc.

On the whole it is more fair to the parties, that the notice and lapse of time should be set forth in the complaint. And the order overruling the demurrer must be reversed, with costs, and the demurrer sustained, etc., with leave, etc.

Present — Leaened, P. J., Boáedman and Bockbs, JJ.

Ordered accordingly.


author: Learned, P. J.:

text:
    EBENEZER J. BENNETT, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

      Passenger — when obliged, to pay ext/ra forre — right of ca/rviev to select route over which passenger is to be carried.

    The plaintiff purchased from the defendant a ticket from Lockport to Troy. There are two routes on defendant’s road between_ Rochester and fciyracuse, one the direct route, and the other by Auburn, which is twenty-three miles longer. The defendant was accustomed to carry all through passengers over the direct route. Plaintiff having, at Bochester, taken a train upon the Auburn branch, was requested by the conductor to pay additional fare for the extra twenty-three miles, and upon his refusal so to do was put off the train. In an action brought by him for damages, held, that he had no right to insist upon passing over the longer route without paying additional fare, and that he should have been nonsuited.
    This ease came before the General Term upon exceptions by both parties and cross appeals, the plaintiff complaining that the verdict recovered by him (fifty dollars) was too small, and the defendant insisting, first, that the plaintiff was not entitled to recover at all; and, second, that if he had any cause of action, it was but for the recovery of forty-two cents and interest, and that the verdict was excessive.

      E. J. Bennett, plaintiff, in person.

      Matthew Hale, for the defendant.
   Learned, P. J.:

Tbe plaintiff purchased a ticket, issued by the defendants, reading thus: “ 2150. N. Y. C. E. E. Co. Lockport to Troy. Not good unless stamped by the ticket agent.” Between Rochester and Syracuse there are two routes; the direct by Palmyra ; the other, which we may call the indirect, by Auburn. The latter is twenty-three miles longer than the former. By the uniform custom of the defendants, all through trains go over the direct route. The plaintiff traveled by virtue of his. ticket from Lockport to Rochester. He then traveled to Canandaigua, and thence to .Auburn. He “ stopped over ” at Lockport, and at Seneca Palls. While on the cars, after leaving Auburn, the conductor called on him for his fare; and, upon his producing this ticket, the conductor required him to pay forty-two cents more. This was the legal rate of two cents per mile for the additional distance over the indirect route; or rather, was for the fare from Sennet, the first station east of Auburn, to Syracuse. The plaintiff declined to do this, insisting that his ticket authorized him to travel from Lockport to Troy over either of the two routes. The conductor told him that if he did not pay, he should put him off the cars. The plaintiff yielded to the conductor, without resistance, and got off the cars. He then got on again, and paid the additional fare under protest. No force was used on either side. Both plaintiff and conductor appear to have behaved in a very becoming manner, and so as to preserve the respective rights of the parties, without any unseemly controversy.

The plaintiff sued and recovered damages. And the question now here is, whether he, or the company, were in the right.

The contract, of which the ticket was the evidence, was a contract to carry the plaintiff from Rochester to Troy. If it had been a contract to carry freight, it would seem that the company might have selected which of the routes they chose, unless they should thereby cause unnecessary delay. And, by analogy, it would be reasonable that they might select such of these routes as they chose, over which to transport their passengers.

If there is any thing in this respect which is to be implied for the benefit of the passenger, it would seem to be that he should be carried over the usual route. So much, perhaps, he might claim was implied by their custom. But it is difficult to see what right be bas to insist on being carried over a longer route, and over one on wbicb tbe defendants are not accustomed to carry their through passengers.

If he had remained in the train on which he started, or on its regular connections, he would have been taken to Troy by the direct route, without difficulty. He chose to “stopover” once or twice, and to this the company practically consented. But, in doing this, he chose to take the indirect route; and thus he was traveling over a greater distance than was necessary in order to go from Bochester to Troy. He did this for his own convenience, and intentionally. There was no accidental getting upon the wrong train. There was nothing unreasonable, therefore, in requiring him to pay more; for the reason that the defendants were rendering him more service than it was necessary for them to do, in order to fulfill the contract to carry him from Bochester to Troy. They allowed him the benefit of his ticket for the same number of miles on the indirect route which it represented on the direct. And they asked pay for the excess. He was not wronged by this request.

If he had purchased, at Bochester, a ticket for the several points to which he went on the indirect route, he would have been required to pay the same amount as he was now required to pay. So that, even if he were in fact misled, when he bought his ticket, and thought it would carry him by the indirect route, still he has lost nothing by this mistake. Because it does not appear that he pays, or is asked to pay, more by reason of the mistake,- than he would have paid if he had inquired about the regulations when he bought his ticket, and had been informed fully in respect to them.

The plaintiff should have been nonsuited; and a new trial must be granted, costs to abide the event.

Present — Leaeked, P. J., Boaedmak and Bocees, -JJ.

New trial granted, costs to abide event.


text:
    LAWRENCE BYRNES, Plaintiff, v. THE CITY OF COHOES, Defendant.

      Direction of a verdict — effect of consent of parties to — Liability of municipal corporation for tn'espass upon private property.

    Although the failure of a party, against whose objection and exception evidence has been admitted, to object to the direction of a verdict by the court, subject to the opinion of the General Term, does not waive the irregularity thereby committed, yet, if he expressly consent to such disposition of the case, he cannot thereafter insist that there has been a mistrial.

      Purchase v. Matteson (25 N. Y., 211) distinguished.
    Where a municipal corporation, in order to carry off the water flowing in one of its streets, constructed gutters and curbs therein,' terminating opposite to the lot of a private individual, by which the water was discharged upon such lot (such water having formerly flowed through a natural water-course, away from the said lot), the corporation is liable to the owner of the lot for all damages occasioned by such discharge of water thereon.
    Motion for judgment on a verdict directed for the plaintiff, subject to the opinion of the court at General Term.
    The action was brought to recover damages occasioned by the discharge of water upon a lot qf the plaintiff from curbs and glitters constructed by the defendant.

      O. A. Martin, for the plaintiff.

      8. Hand, for the defendant.
   Learned, P. J.:

In this case the amount of damages was agreed upon. At the . conclusion of the trial, the court directed a verdict to be taken for the plaintiff,, subject to the opinion of the court at General Term. The defendant claims that this was a mistrial, for the reason that exceptions had been taken to the admission of evidence. (Purchase v. Matteson, 25 N. Y., 211.) The answer is, that it appears by the case that this was done by the consent of the counsel for the respective parties.

Now it is true, as is said in Purchase v. Matteson, that the failure to object to such a disposition of the case, does not waive its irregularity. And this must evidently be the rule, because the party has once objected to the admission of evidence, and, on his objection being overruled, bebas excepted. Unless, then, he does some affirmative act of waiver, he is entitled to the benefit of his exception. He need not repeat it, or call attention to it again. But he certainly may waive his exception if he chooses to do so. And if he openly and distinctly consents to such a disposition of the case by the court as is inconsistent with a claim to the benefit of his exception, he must have intended to waive his exception. In this present case, after a recital that there was no dispute as to the facts proved on the trial, the defendants consented that the court should direct a verdict, subject to the opinion of the General Term. It cannot be supposed that they intended to trick the court into a mistrial. The only fair understanding is, that they were willing to take the facts which had been proved, and to submit the question to the court upon those facts. The very agreement of the parties as to the amount of the damages, shows that they must have intended to submit the case to the decision of the General Term upon the facts which had been proved, irrespective of objections to the admissibility of evidence. It is inequitable now for the defendants to object to a disposition of the case which was made by their express consent. The case, then, comes before us on the facts proved; and the question is whether, on those facts, the plaintiff was entitled to judgment.

The defendants’ counsel, in addition to the point stated above, claims that there was error in the admission of evidence. Those exceptions, we consider that the defendants waived.

Another point is, that the court erred in refusing to dismiss the complaint, before any testimony was given, on the ground that it did not state facts sufficient to constitute a cause of action. • This we cannot hear. The defendants have consented to the hearing of this case on the facts proved. If the complaint be insufficient, it can be amended to conform to the facts.

The facts then, as proved, are, in brief, that the defendants made gutters and curbs in the street; and they conducted the water of the Fourth ward down Main street; that the curb and gutter ended opposite plaintiff’s lot; that before the curbing was made, there was a natural course which took off the water another way; that the curbing brought it to plaintiff’s lot; that the gutter was not complete in front of plaintiff’s place; that the water came down Main street, and down the gutter, and had no outlet, and flooded plaintiff’s house, and did the damage complained of; that the water flowed directly from the gutter on the premises ; that a drain could have been built so as to carry off the water; and that a well-hole was afterward fixed, so as to carry off the water.

' This case, then, is not one of those where the city has constructed a sewer or some similar structure, and is alleged to have done the work so negligently that damage has resulted indirectly. But it is a case where, according to the proof, the city has, by means of a curb and gutter, brought down water, which naturally ran in another direction, and has discharged it upon the plaintiff’s land. We think that they cannot lawfully do this. (Radcliff’s Exrs. v. Brooklyn, 4 N. Y., 199; Adams v. Walker, 34 Conn., 466.) It could hardly be claimed that a city could lawfully construct a sewer which should necessarily discharge its contents upon the land of a person, without his consent. (See case of Bradt v. City of Albany, just decided by this General Term, and the cases cited in the opinion in that case.) The s^me rule would apply to the construction of a curb and gutter. As said in a recent case, “ the defendant having no right to invade the premises, which were * * * the possession of the plaintiff, it matters not whether or not he made his invasion without negligence.” (St Peter v. Denison, 58 N. Y., 416.)

The plaintiff should have judgment on the verdict.

Present — LeabNED, P. J., BoaedmaN and BooKES, JJ.

Ordered accordingly.

       Reported at p. 591, ante. — [Rep.


author: Lkaened, P. J.:

text:
    NATIONAL BANK OF FORT EDWARD, Respondent, v. THE WASHINGTON COUNTY NATIONAL BANK, Appellant.

      Bank — 1/iábüüy of, for money deposited.

    An action cannot be maintained to recover money deposited in a bank, until a demand bas been made therefor.
    Where a bank issues a certificate of deposit, payable on its return properly indorsed, it is liable thereon to a bona fide holder to whom it was transferred seven years after its issue, notwithstanding '¿¿payment thereof to the original holder. Such certificate is not dishonored until presented.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    This action was brought to recover the amount of a certificate of deposit, of which the following is a copy:
    “ CERTIFICATE OF DEPOSIT.
    “No. 20,186. Washington County Bant, Hnion Tillage, N. Y., April 4, 1863.
    “ This certifies that J. K. Sanborn, agent of George Paige, has deposited in this bank five hundred dollars to the credit of said agent, payable on the return of this certificate properly indorsed.
    $500.
    “EDWIN ANDREWS, Cashier.”

    A payment of $215 had been made upon the certificate by the bank, on the 20th of September, 1864.
    The certificate was transferred for value by the said Sanborn to the plaintiff, on the 20th October, 1810, without any knowledge or notice of said payment on the part of the plaintiff.
    The only question litigated on the trial was, whether, as against the plaintiff, the defendant had a right to have said payment applied upon the certificate. The justice who tried the cause disallowed said claim of defendant.

      Boies c& Thomas, for the appellant.
    It is now settled in this State by the cases of Ilerrieh v. Woolverton (41 N. Y., 581) and
      Wheeler v. Warner (47 id., 519) that a note payable on demand, with or without interest, must be presented within a reasonable time or it will be deemed due and dishonored, so that a negligent transferee will take it subject to all equities existing between the original parties. (Himmelma/n v. Hotaling, 40 Gal., Ill; 6 Am., 600; Poorman v. Mills, 39 Gal., 345 ; 2 Am., 451; Chitty on Bills, 379;' Story on Prom. Notes, § 207, note 1;-Story on Bills of Exch., §§ 232, 335; 1 Pars, on Cont. [2d ed.], 217, note 1; Pars, on Notes and Bills, 264, 266.) The certificate was outlawed at the time it was transferred to the plaintiff. The Oourt of Appeals'has recently decided unanimously, without a dissenting voice, “that a promissory note payable on demand, whether with or without interest, is due forthwith, and an action thereon against the maker is barred by the statute qf limitations if not brought within six years after its date.” (Wheeler v. Warner, 47 N. Y., 519; Howland v. Edmonds, 24 id., 307; Herrick v. Woolverton, 41 id., 581; Payne v. Gardner, per MulliN, J., 29 id., 167; per Weight, J., 178.) The said certificate of deposit possesses all the requisites of a negotiable promissory note, payable on demand, and must be regarded and treated as such. (Barnes v. Ontario Bank, 19 N. Y., 152; Farmers a/nd Mechanics’ Bank v. Butchers and Drovers’ Bank, 14 id., 623; Bank of Orleans v. Merrill, President, etc., 2 ITill, 295 ; Poorman v. Mills cié Co., 39 Gal., 345; 2 Am., 451; Himmelma/n v. HotaUng, 40 Cal., Ill; 6 Am., 600.)

      A. D. Wait, for the respondent.
    In the ordinary case of a deposit with a bank or private person, the money is not due or payable until it is demanded. And when a certificate of deposit is issued like the one in question, which by its terms is dne and payable only on “ its return properly indorsed,” and not before, it1 is not to be regarded as dishonored or subject to equities between the original parties in the hands of a bona fide holder without notice. It is a continuing security and was not due or payable until it was, by plaintiff, presented for payment by plaintiff properly indorsed. (Payne v. Gardner, 29 N. Y., 167, 168, etc.) The delay in presenting it for payment is of no importance. It was only payable “ on its return properly indorsed.” (14 N. Y., 624, per DeNIo, J.)
   Lkaened, P. J.:

In the strict meaning of the word, borrowed from the civil law, deposit is the delivery of a thing for custody, to be redelivered on demand, without compensation. Such are deposits of securities or valuables, in a bank, for safe keeping. But ordinary money deposits in banks are clearly different, in this respect: the identical money deposited is not tobe returned — only its equivalent; and the money deposited becomes the money of the bank. The bank really becomes debtor to the depositor. Still, however, the bank is, in theory, supposed to have the money on hand, ready to deliver when called for; and hence it is that, as in the case of a true deposit, an actual demand must be made before the bank can be required to pay. This is the plain and undoubted understanding of all parties. The depositor puts his money in the bank for better secui’ity, instead of keeping it himself. And when he actually demands it the bank is to pay; not before. The bank may also give a certificate of deposit. When they do this, and when, as in this case, they make the certificate payable on- its return, properly indorsed, they have then added to their original undertaking as a depositary, an agreement that they will pay the deposit to the holder of that certificate, properly indorsed. They are, therefore, under a liability as depositary, to be ready to redeliver the money whenever demanded; and further, to deliver it to any holder of that certificate, properly indorsed. It follows, therefore, that they are liable to a bona fide holder of the certificate, notwithstanding a payment to the original depositor. It was urged by the defendants that the certificate was payable forthwith; that after the lapse of an unreasonable time (in this case seven years), it was presumed to be dishonored, and therefore, that the assignee took it subject to all equities. We think not. The very.nature of the instrument and the ordinary modes of business, show that a certificate of deposit, like a deposit credited in a pass-book, is intended to represent moneys actually left with the bank for safe keeping, which are to be retained until the depositor actually demands them. Such a certificate is not dishonored until presented. Our statutes recognize depositors as a distinct class from other creditors, and sometimes give them special privileges; and this is because, although in fact the bank is a debtor, yet it is supposed to be more, and to be a depositary, liable to redeliver, at any time, on demand.

We think, therefore, that the judgment should be affirmed, with costs.

Present — Leabned, P. J., Boabdman and Bocines, JJ.

Judgment affirmed, with costs.


author: James, J.:

text:
    HARRIET ARNOT, Executrix, and others, Executors, etc., Respondents, v. THE ERIE RAILWAY COMPANY, Appellant.

      Corporation —power of, to gum'antee bonds of (¡mother company — estoppel.

    Tlie defendant, in pursuance of an agreement made with the Boston, Hartford and Erie Railroad Company, guaranteed the payment of the interest of certain bonds issued by the latter company. Subsequently these bonds came into the possession of the defendant, and some of them were by it, for a valuable consideration, sold and transferred to the plaintiffs’ testator. In an action brought to recover interest falling due on such bonds, held, that the defendant, having itself transferred the bonds and received the avails thereof, was estopped from denying its liability upon its guarantee of the coupons.
    Appeal from a judgment in favor of the plaintiffs, entered on the findings of the court, in a case tried without a jury.

      D. G. Robinson, for the appellant.

      Murdoch & Stevens, for the respondents.
   James, J.:

This action is to recover interest coupons, due on bonds of the Boston, Hartford and Erie Railroad Company, guaranteed by the defendant. The action was commenced by the plaintiffs’ testator in his lifetime; on his death the plaintiffs, as executors, were substituted in his stead, and the action proceeded in their names. The answer to the complaint raises only the question of the validity of the guarantee, alleging it as unauthorized and void.

The facts, as they appear from the pleadings, the evidence and tbe findings, are as follows : The defendant is an existing railroad corporation, created by the laws of this State, owning and operating a railroad from the cities of New York and Newburgh, on the Hudson river, to Lake Erie. The Boston, Hartford and Erie Railroad Company was also a railroad corporation, which, under the laws of Connecticut, sanctioned by the laws of Massachusetts, owned and operated a railroad from Waterbury, Connecticut, to the city of Boston, and under authority of the laws of New York was authorized to construct and operate a railroad, to connect with said other railroad, terminating at Waterbury, to the Hudson river, at Eishkill, opposite to Newburgh.

On the 8th day of October, 1867, these two railroad corporations entered into an agreement, whereby the former agreed to guarantee the semi-annual payment of interest on a certain number of mortgage bonds, to be issued by the latter, in consideration that, as soon as any part of its road between Newburgh and Boston was completed and in operation, so as to afford a business connection, all business passing from one road to the other, should be done on joint account, receipts to be apportioned, etc. Upon the strength of said agreement, certain bonds were issued by the Boston Hartford and Erie corporation, as contemplated by said agreement, and the coupons attached to said bonds were guaranteed by the defendant. These bonds and coupons were negotiable. The defendant subsequently became possessed of all .the bosids, the coupons of which it had guaranteed; and the bonds with the coupons attached and guarantee thereon, now in suit, were, by the defendant transferred, for value, to the plaintiffs’ testator. Said coupons were regularly paid as they became due, by the defendant, up to July, 1869.

In the statement preceding defendant’s points, something is said as to the manner in which the findings of the Circuit judge were made up and obtained; but nothing of the kind appears in the case; the affidavit cited by counsel fails, to sustain the imputation; hence this court cannot, as requested, send the case back for retrial. If there was ground for the imputation, the matter should have been presented by affidavit and motion.

The one question presented by this case is the power of the defendant to guarantee the coupons attached to the bond of another railroad corporation. No question is made as to the form of the act, or whether the other corporation had power to enter into the contract, which formed the consideration of said act. Neither does the question whether the agreement was wise or unwise, enter into the consideration. The defendant’s counsel takes the broad ground that any contract or undertaking on the part of a corporation beyond the scope and limit of the express and implied powers conferred upon it by law, is illegal and void,” and that such an act as the one in question is not among the express or implied powers of the defendant.

The question then is, w'hat powers may be implied as belonging to the defendant corporation. As a railroad, it was authorized to contract for the transporting of freight and passengers; not alone to be taken up and set down upon its own road or within its termini, but to and from any point beyond its road. To that end it has been held that a railroad corporation, for the purpose of further, ing and promoting its business traffic, may, unless expressly forbidden or restricted in its charter, contract with other corporations for the use of each other’s road, or combine their business, so long as they do not form a copartnership. The English courts have held that an agreement between two railroad corporations, whereby one was given the use of the other’s road for a proportion of the rates and fares, allowing on^ company to fix the rates, is not void. (M. R. Co. v. G. W. R. Co., Law Rep. [8 Ch. App.], 841.) And so ah agreement between two companies to share the profits and expenses, so that the arrangement is not a partnership, is not uli/ra vires. (Brice on Ultra Vires, 282,291, and cases cited ; 9 Exchequer Reports, 642.)

In this State such, contracts were authorized as early as 1839. A statute of that year enacted that “ it should be lawful thereafter for any railroad corporation to contract with any other railroad corporation for the use of their respective roads, and thereafter to use the same in such manner as may be prescribed in such contract,” etc. This statute has not been repealed expressly or impliedly by any subsequent acts; on the contrary, all subsequent legislation has tended to promote and encourage business connections and interchanges of traffic between railroads, not only in this State, but with other States, when a continuous line can be formed by such connections. In fact, this principle was recognized by an act of Congress, passed in 1866. (See U. S. Revised Statutes, p. 1022.)

The contract between these two corporations must be regarded as made for the purpose, and with the intent of promoting interchanges of traffic and business. It is to be inferred as made in good faith and for the benefit of both. As such combinations are not against public policy, the authority in the defendant to make it should be regarded as among its implied powers.

Having the power to do the act, the manner or form of doing it is not made a question. Neither does the question of performance by the Boston, Hartford and Erie corporation arise. Having lawfully put its name to negotiablé instruments, and they having passed into the hands of third parties, for value, the defendant cannot shelter itself under a non-performance by the other party. Assuming the defendant had the power to make such contract, it might make its obligation to pay in any form it saw fit. (Curtis v. Leavitt, 15 N. Y., 9; 35 id., 506; 21 id., 560.)

Again, as there is nothing in the charter of defendant prohibiting it from entering into a contract like this with the Boston, Hartford and Erie Railroad Company, and no steps having been taken by the sovereign power for annulling its charter, it does not lie in its own mouth to say that the contract into which it had entered, was void as beyond its capacity.” (40 N. Y., 168; 4 Johns. Ch., 370; 22 N. Y., 226; 46 id., 644.)

There is another view of this case on which, it seems to me, this judgment should be sustained, irrespective of the question- whether the defendant was authorized to guarantee the coupons of another corporation or not. It appears from the case and the findings, that the bonds to which were attached the coupons in suit, with the guarantee thereon, were transferred by the defendant to the plaintiffs’ testator for value. Defendant had capacity to borrow money or purchase property, and give its obligations in payment, or guarantee obligations of others, held by it, in payment. The defendant, therefore, became liable to plaintiff as upon its own original obligations, irrespective of the origin of the bonds; and it cannot now repudiate that obligation. Having transferred the bonds itself, and received the avails thereof, the corporation must be held as estopped from denying its liability upon its guarantee of the coupons. (15 N. Y., 502, 95; Remsen v. Graves, 41 id., 471; Bissell v. M. S. and N. I. R. Companies, 22 id., 258; Parish v. Wheeler, id., 494; St. John v. Roberts, 31 id., 441.)

The judgment should be affirmed.

Learned, P. J., and Boardman, J., concurred on last ground, but expressed no opinion as to ñrst ground.

Judgment affirmed.