author: Peckham, J.

text:
    The Salt Springs National Bank of Syracuse, App’lt, v. George B. Sloan, Resp’t.

      (Court of Appeals,

      Filed October 11, 1892.)

    1. Guaranty—Release oe guarantor—Due diligence.
    Defendant executed and delivered to plaintiff his bond guaranteeing the payment of certain drafts discounted for the firm of B. & 0., in case plaintiff was unable, by due diligence, to collect the same within one year. In an action on said bond the evidence showed that plaintiff filed its claim upon said drafts with the assignee of B. & O., and after considerable delay in serving B., had brought an action against the firm, but had consented to extensions of time to answer, under threats of an answer being put in, for ninety-nine days; that execution was not issued against them for a month after it might have been. Held, that whether due diligence was used was a question for the jury under proper instructions from the court.
    2. Same.
    If the undisputed evidence shows a state of facts from which but one inference could properly and justly be drawn by any fair and intelligent man, then the question of due diligence is one for the court alone.
    Appeal from judgment of the supreme court, general term, fourth department, reversing judgment for plaintiff, entered on verdict, and granting new trial.

      Frank H. Eiscock, for app’lt; Elisha B. Powell, for resp’t.

       Reversing 39 St. Rep., 771.

   Peckham, J.

This action was tried at the Onondaga circuit before a jury. The bond upon which the suit was brought was ■executed by the defendant February 19,1887. For some time prior to that date there had been a firm doing business at Oswego under the name of Austin & Go., and such firm had at that time been insolvent for some months. There was another firm doing business in the city of New York, under the firm name of Baker & Clark, which firm some months prior to the above date had also become insolvent, and had made an assignment to an assignee for the benefit of creditors. The firm of Austin & Co. had ■drawn drafts to the amount of over $10,000 upon the firm' of Baker & Clark, which firm had duly accepted them and the drafts had been discounted for the Hew York firm by the plaintiff. They had all matured and been dishonored prior to the execution of the bond in suit, and the plaintiff still held and owned them. On the 19th of February, 1887, the defendant executed the bond and at the same time and as part of the same transaction the plaintiff by its president executed an agreement in writing and delivered it to the defendant.

The bond recited the drawing of the drafts, six in number, giving the names of their makers and acceptors, dates and amounts, and also stated that Baker & Clark had made an assignment for the benefit of their creditors before any of the drafts became due, and had preferred plaintiff in class “ B ” of creditors for the amount, then owing on the drafts, and being about $7,000, and that not one óf the drafts had been paid. The bond then continued with this language:

“Now, therefore, the condition of this obligation is such, that if the above bounden George B. Sloan, shall within one year from the date hereof pay the said Salt Springs National Bank of Syracuse any deficiency, up to the said sum of $5,000, remaining unpaid to said bank on said drafts, and which the said The Salt Springs National Bank of Syracuse after due diligence shall fail to collect within the time above limited, from the said Baker & Clark, or either of them, or from the said Clarence F. Birdseye, as assignee as aforesaid, or otherwise, then this obligation to become void, otherwise to remain in full force and virtue.”

The agreement made on the part of the plaintiff recited that,

“ Whereas, the Salt Springs National Bank of Syracuse has this day received from George B. Sloan, of the city of Oswego, N. Y., his bond for the sum of $5,000, dated February 19th, 1887, upon the following terms and conditions, and the terms and conditions in said bond set out. to wit: Said bank shall use due diligence to-collect the six drafts named, in said bond from Clarence F. Birdseye of New York city, as assignee of the Baker & Clark named in said bond, or from Baker & Clark, and out of the moneys obtained-from said assignee, the bank was to apply the same to the payment of the drafts, and if any surplus moneys had been paid by Sloan, they were to be returned him by the bank.

It also appeared in evidence that before the first of the drafts mentioned in the bond had become due the drawers had “ got into financial difficulties and transferred their property.” The first draft which became due was placed in the hands of the attorney for the plaintiff and judgment against the drawers was recovered and supplementary proceedings had been instituted against them and some negotiations had been entered upon for the giving of security by the drawers. It was at this stage of the matter that the bond and agreement above referred to were executed.

The understanding between the parties seems to have been that the plaintiff was to take no further proceedings against Austin & Co., but should go on and see what could be collected from the Hew York people. The amount of the drafts not having been collected from Baker & Clark, or their assignee, within the year, the plaintiff commenced this action against defendant and sought to recover the $5,000 which it alleged he was liable for by reason of the execution of the bond. The defendant set up in his answer as a defense that the plaintiff had not performed the condition precedent to a liability on his part on the bonds and he alleged that it had failed to proceed with due diligence to collect the amount due on the drafts from Baker & Clark or either of them, or from their assignee.

Upon the trial the sole substantial issue was whether the plaintiff had or had not used due diligence in its prosecution of the acceptors or their assignee. Evidence was given as to what it had done and the time and manner of doing it, and some evidence was given on the part of the defendant. The learned trial judge submitted the question as to the due diligence of the plaintiff to the jury; and a verdict for the plaintiff was rendered by it

The general term has held that the evidence in the case was undisputed and that it raised a question of law only, and upon that question it held that the plaintiff had not prosecuted its attempt to collect with due diligence and therefore was not entitled to recover, and it reversed the judgment and granted a new trial, and from the order granting a new trial the plaintiff has appealed here.

The general rule in regard to one who becomes the guarantor of the collection of a demand is that in so doing he undertakes that the claim is colléctible by due course of law, and the guarantor only promises to pay when it is ascertained that it cannot be collected by suit prosecuted to judgment and execution against the principal, and the endeavor to so collect is a condition precedent to a right of action against the guarantor. And the fact of insolvency is no excuse for the failure to prosecute. Craig v. Parkis, 40 N. Y., 181; Northern Ins. Co. v. Wright, 76 id., 445.

' The judgment must have been recovered and the execution issued thereon must have been returned unsatisfied in whole or in part before any liability is fastened upon the guarantor. And this judgment must have been recovered without unnecessary delay.

The guaranty in question is peculiar in its language. At the end of the year the guarantor promised to pay any deficiency up to the amount, of $5,000 remaining unpaid on the drafts after due diligence had been exercised by the bank to collect their amount within the time limited. It is plain that due diligence might be exercised in such case during that ‘time, and yet no judgment have been recovered, and of course no execution issued or returned unsatisfied If it had been thus exercised the liability of the guarantor would attach without the recovery of such judgment. In this respect there is a distinction between the guaranty contained in this bond and that of a general guaranty of collection. There is the further difference that the guarantor promises to pay the deficiency up to the stated amount which the plaintiff fails to collect within the year (after due diligence) from Baker & Clark, or either of them, or from their assignee. It was understood that Baker & Clark had made an assignment for the benefit of their creditors, and if the assignment was not fraudulent it was of course known that the property of Baker & Clark had become the property of the assignee as trustee, and for the purpose only of executing the provisions of that instrument. In that case the only recourse the plaintiff could have against the assignee would be to see to it that he faithfully and expeditiously carried out the directions contained in the assignment. This the assignee might and presumptively would do without any resort to compulsory process on the part of the plaintiff or any other party.

The due diligence that was required of the plaintiff did not, therefore, render it necessary that legal proceedings should at once be commenced against the assignee. If the latter was proceeding with proper celerity in the execution of his trust, and assuming the validity of the assignment, there was nothing for the plaintiff to do of a legal nature as .against him. If, however, the assignment was invalid and had been made for the purpose of hindering and delaying creditors, then an attack against the assignee as well as against the assignors for the purpose of setting aside the assignment might be necessary. In order to determine the question of the validity or the invalidity of the assignment, knowledge of the facts'which caused its execution and some evidence of the motives accompanying it would obviously be necessary.

If plaintiff entered upon and prosecuted the examination of this question with due diligence and discovered there were no grounds upon which to base an attack upon the good faith and validity of the assignment, and if the assignee duly performed his duties under the assignment while the year lasted, it would seem that under such facts it could not be determined as matter of law that the plaintiff had not done all which could be expected of it, - or that due diligence required as against the assignee to fulfil the conditions of the bond in question. The duty to use due diligence in attempting to collect from Baker & Clark was also incumbent upon the plaintiff. It was not an alternative duty which existed only in case the assignee were not proceeded against. The condition of the bond called, as I think, for the exercise of due diligence as against both, but the fact (if it were a fact) that examinations and investigations regarding the validity of the assignment itself were in progress might properly be taken into consideration upon the question whether due diligence were being used in reference to Baker & Clark. Again, it might under some circumstances be quite an important question to determine as to the character of the legal proceedings to be taken against the principals.

Should such proceedings be the simple action- upon the drafts, as upon instruments for the payment of money only, or should the action be one in tort, as arising out of a fraudulent creation of the debt, and thus give to the plaintiff the right to arrest on mesne process, and to take the person upon the judgment to be obtained? The answer would depend upon the facts to be learned, and if there were suspicious circumstances which might ' fairly justify the resort to a more prolonged investigation made in good faith, and for the honest purpose of obtaining information upon which to act, it could not be said as a matter of law that in such case, and pending the investigation, due diligence was not exercised in attempting to collect the amount of the drafts by action.

With this review of the situation, and of the meaning of the bond in suit, it is proper in a very general way to advert to the evidence given on the trial on the part of plaintiff as to what the plaintiff actually did in the way of using due diligence to collect the amount of these drafts.

Almost immediately after the execution of the bond, the supplementary proceedings against Austin & Co., which had been commenced in Oswego, were resumed for the purpose of obtaining from them, and in a manner which would not appear to be voluntary, certain letters in their possession, which it was thought might be of importance upon the proceedings which might be commenced against Baker & Clark in Hew York, and under the cover of these proceedings the attorney for the plaintiff obtained the letters. It is to be gathered there was some importance attached to them relative to the question of the liability of Baker & Clark as for a fraudulent debt in obtaining the discount of the drafts by the plaintiff. Then the attorney for the plaintiff went to Hew Yoi'k, and entered upon what he claimed was a most thorough investigation of all the facts attending the execution of the assignment, for the purpose of discovering, if possible, some means of attacking its Iona fides. ■ He went to different creditors, put himself in communication with their attorneys to ascertain if they knew of any facts which would aid in such an attack, and in brief he did, as he claims, everything that one could be expected to do who, acting in good faith, was endeavoring to find out if any facts existed which would justify an attack upon the assignment, or an action of tort against the acceptors of the drafts.

Finally he became convinced there was no chance of success in such an endeavor. He also endeavored to find if there was any property of the firm which had not been turned over to the assignee, but did not succeed in finding any. All these investigations took some time before it was finally determined that the assignment could not be successfully attacked. In the meantime, and within a week from the signing of the bond, the attorney for plaintiff commenced to investigate the whereabouts of Baker, one of the firm of Baker & Clark, and the evidence is quite minute as to what he did towards finding Baker for the purpose of serving process upon him. Mr. Baker was in Brooklyn but a very short time after the execution of the bond, and it was claimed he was endeavoring to avoid the service of process. He soon left the state and did not return until the middle of August. The plaintiff did not succeed in serving him before he left the state, and the defendant charges that no fair effort was -made, and that from plaintiff’s own showing service could have been made on Baker frequently while he was within the state.

Ho service of process was made on Clark, the other member of the firm, until after Baker's return, and some time in September, although he could have been served at any time during the period. The plaintiff says the reason for the omission was that Clark could be served any time, and if served during Baker’s absence it was feared the latter might not return, and it was not thought wise to sue Clark separately.

Negotiations were also pending by which it was sought to obtain some security from a brother of Baker, and finally the brother, who was a preferred creditor of Baker & Clark of the first class, assigned the balance due him under the assignment as security for the payment of the drafts, or some portion thereof. It was feared these negotiations would be broken off if suit was commenced against Clark while Baker was away, and that in such case Baker would remain away. The defendant charges these negotiations with Baker were only for the payment of the amount over the $5,000 claimed from defendant, and that there was no good faith in the matter of these negotiations or in the excuse for the- alleged failure to press with due diligence the case against Baker & Clark.

Process was finally served on Baker August 27, 1887, he having returned to the state on the 15th of that month, and on Clark on the 7th of September, following.

. They appeared by attorney and under a threat on the part of the latter to putin an answer unless time for an investigation into the matter was given, the attorney for plaintiff gave various extensions of time to answer, aggregating some ninety odd days, when a default occurred and judgment was entered January 4, 1888, and a transcript filed in New York county January 5, 1888. After the date of the service of the process on Baker and Clark, the first circuit held in Onondaga was appointed for the fourth Monday, the 26th, of September, 1887. An answer would have prevented the case going on at that circuit. The next circuit was held in that county January 9, 1888. Before that date judgment had been obtained. It was claimed by the plaintiff that by the course pursued, which it is urged was guided to some extent by the threat of Baker & Clark’s attorney to put in an answer and defend at any rate if time was not given, the extensions of time actually given operated to plaintiff’s advantage by finally enabling it to obtain judgment at an earlier day than it would have been enabled to do if the extensions had been refused and the defendants in that action driven to the serving of an answer. The defendant here claims the extensions were wholly voluntary, totally unnecessary, not given under a bona fide effort to prosecute with due diligence, and hence they constituted and inexcusable delay in prosecuting the action and a defense to this action on the bond. After the entry of the judgment and the filing of a transcript thereof in New York county, there was a delay of over a month in the issuing of an execution thereon. The attorney for the plaintiff swore he intended that an execution to the sheriff of New York should accompany the transcript and he supposed that it did, but in fact it did not and in fact it was not issued for more than a month. The attorney says he can only explain the omission by a mistake or his absence from home during the time.

Ro claim is made that the defendants Baker and Clark had any property which might have been reached by an execution if one had been issued at once upon the entry of the judgment; and there is no fact found in the evidence which would lend any color to the suspicion that the assignment was not a bona fide one which transferred all the property of Baker & Clark to the assignee in trust It also appears that the plaintiff was in the second class of preferred creditors in that assignment, and that there was not enough _ property to pay in full the creditors in the first class, and it is not charged that the assignee was guilty of any want of diligence in any matter pertaining to his trust. This in substance is the case • as it appeared for the plaintiff upon the trial, and it is this case which the learned general term holds presents a question of law only. It is undoubtedly true that in many, perhaps in most cases the question of what constitutes due diligence, where it arises upon undisputed evidence, is one of law only. . What shall constitute a reasonable time in which to do an act is also generally held to be a question of law. So is the question of what constitutes probable cause in an action for a malicious prosecution. So, also, is the question of negligence in certain contingencies. In none of these instances is there, however, an unyielding rule that upon undisputed evidence the quéstion is universally one of law. It depends frequently upon the character of the evidence itself whether it is of such a nature that but one inference could be drawn from it by reasonable and intelgent men.

In such a case as this, for instance, the due diligence of the plaintiff is not a fact that could be testified to directly and in terms. • A witness for the plaintiff would not be permitted to swear that due diligence was observed in the prosecution of Baker & Clark. In order to prove due diligence, all the material existing facts surrounding the case should be shown and a statement in detail of all the things actually done in the way of prosecuting the matter would have to be proven, and then from all these things thus proved the resultant fact of due diligence, or its absence, would have to, be found-either by the court or a jury. If this resultant fact to be found from all the evidence in the case, uncontradicted though that evidence may be, were of so doubtful a nature that different and equally intelligent and unbiased men might fairly differ in opinion as to its character, then the jury, -under proper instructions from the court, should examine the evidence and find the fact which is properly to be inferred therefrom.

It was at one time thought • that where the evidence was uncontradicted or undisputed the question of negligence was one of law only, but that claim has long since been abandoned. There may be cases, of course, where the evidence being undisputed, a dear question of law only arises, and the court thereupon decides that no negligence is shown, or the reverse. If the uncontradicted evidence shows a case where different inferences might be drawn from undisputed facts as to the existence or non-existence of negligence, it has been the law for many years that such inferences are to be drawn by the jury under proper instructions from the court. Hart v. Hudson R. Bridge Co., 80 N. Y., 622.

The same may be said of the want of probable cause in actions for malicious prosecution. Generally it is a question of law, yet frequently upon undisputed evidence it is made a mixed question of law and fact. The jury draws the inferences, if they might fairly be the subject of difference in different minds of equal intelligence, and the court gives the proper instructions to the jury. This principle was thus asserted in the case of Mead v. Parker, 111 N. Y., 259; 19 St. Rep., 368, although perhaps it was not directly and necessarily involved in the point actually there decided. See also Sullivan v. N. Y. & Rosendale Cement Co., 119 N. Y., 348; 29 State Rep., 747; Reilly v. Dodge, 131 id., 153, 159; 42 St. Rep., 703. The principle is, however, correct.

If the undisputed evidence shows a state of facts from which but one inference could properly and justly be drawn by any fair and intelligent man, then the question of due diligence is one for the court alone.

Upon the evidence already detailed in this case, we are clearly of the opinion that the question presented was one for the jury under proper instructions from the court. The court charged that the plaintiff was bound to use due diligence up to the time it commenced this action, although beyond the period of the year specified in the bond. The jury was charged with the duty of considering the question whether upon all the evidence in the case the plaintiff used due diligence in prosecuting Baker and Clark, and also against the assigned estate.

The court also said to the jury that if the extensions of time to answer were given voluntarily, of which they were to judge upon the evidence, then more time was given to the defendants than due process of law entitled them to. The defendant here makes several claims as proved by this evidence. He urges, first, that the failure to serve Baker with process before he left the state in March or April, 1887, was a failure to exercise due diligence, and that the efforts to serve him, as stated on the part of the plaintiff, were not made in good faith, and were not, under all the circumstances, sufficiently persistent to show due diligence. This question of good faith was peculiarly proper upon the evidence for a jury to decide. It is also claimed the excuse for the failure to serve Clark until after Baker had been served was unjustifiable. The evidence upon that subject, though not disputed, leaves a question as to the bona fides of the excuse actually given, whether the fact stated was really and in good faith the motive and cause of plaintiff’s conduct. This, also, upon the evidence, was a question for the jury. The negotiations for security from Baker’s brother arc also attacked as not having been made in good faith and for the purpose of collecting as much as possible upon these drafts, and consequently it is urged that they furnish no excuse or justification for failing to serve Clark, even though Baker was out of the state. The excuse offered for this failure has been stated above, and here again we think it was a fair question for the jury to say whether the excuse was a bona fide one, and had really caused the delay spoken of. Other questions of good faith on the part of the plaintiff arose in the progress of the case. Enough has been said to show that the question whether the plaintiff acted with due diligence depended upon the construction to be given quite a number of different acts of the plaintiff, and upon the motives which accompanied them; whether those acts were in reality performed in good faith and for the purpose of honestly fulfilling the duty owed by plaintiff to defendant, or were simply actions intended as a mere cover or blind to excuse the failure to prosecute, while, at the same time, affording ground for the pretense that the plaintiff had done all it could to collect the drafts from the assignee of the estate, or from the firm of Baker & Clark. These matters were peculiarly of a nature for a jury to decide upon, and it would appear that the question was submitted to that tribunal with great fairness by the learned trial judge, and upon proper instructions as to the law governing the case.

One other objection to this recovery is made by the defendant. The plaintiff failed to prosecute Baker & Clark by action upon one of the six drafts mentioned in the bond. It commenced its action and obtained its judgment upon the remaining five only. The defendant claims the prosecution should have been upon all of them and that the failure constitutes a defense to the bond.

The draft upon which no suit was brought was put in evidence and the plaintiff maintained it was paid, although it was not so marked. The court charged it might be considered a due prosecution of the draft when the plaintiff acknowledged that it got the money on it and made no demand upon the defendant therefor.

The plaintiff in truth made no claim for or on account of that draft, and we think the trial court committed no error in the disposition of the case with regard to it.

We have looked through the case with respect to the exceptions taken upon the decisions of the court as to the admission or rejection of evidence, and we are unable to see that any error to the prejudice of the defendant occurred in their disposition.

Upon the whole case we think the court properly left the question of due diligence to the jury.

The order of the general term granting a new trial should, therefore, be reversed and the judgment entered upon the verdict of the jury should be affirmed, with costs.

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


source: Caselaw Access Project

license: Public Domain

text:
    The Chatham Nat. Bank of New York, Resp’t, v. James H. Pratt, App’lt.

      (Court of Appeals,

      Filed October 11, 1892.)

    Guaranty—Of collection—Loches.
    In April, 1885, defendant gave to plaintiff a written guaranty of collection of a certain note for §10,000 discounted by it, endorsed by William T. Pratt and dated January 28, 1881, which said endorser failed to pay. In the latter part of 1885, defendant had approved of plaintiff’s delay in pressing matters, and of its endeavor to collect the indebtedness without bringing suit, but in July, 1886, the bank notified the endorser by mail that unless the note was attended to that day it should notify the guarantor and proceed to measures for collection, but no action was begun until the November following, and an answer being interposed in January 7, 1887. Plaintiff, in-April, moved for judgment upon it as frivolous and it was withdrawn. The trial judge left the question to the jury to say whether upon the whole evidence there had been a due and reasonable prosecution of the debtor. Held, error; that there was plainly no due diligence exhibited at any time prior to April, 1887.
    Appeal from judgment of the supreme court, general term, first department, affirming a judgment entered upon a verdict in favor of the plaintiff and an order denying a motion for a new trial.

      E. Ellery Anderson, for app’lt; Daniel P. Hays, for resp’t.

       Reversing 40 St. Rep., 789.

   Peckham, J.

This action is brought on the following guaranty signed by the defendant:

“New York, April 25, 1885.
“ For value received and for the purpose of giving William T. Pratt credit at the Chatham National Bank of New York, I hereby guaranty the collection of all checks, drafts and promissory notes upon which said William T. Pratt is now or hereafter shall be liable to said bank as maker, endorser, drawer or acceptor, to an amount not exceeding ten thousand dollars, hereby waiving dedemand and notice of non-payment thereof.
“James H. Pratt.”

At the time when this guaranty was executed there was in the possession of and owned by the plaintiff a promissory note made by the Keystone School & Church Furniture Company for $10,-000, payable on demand to the order of William T. Pratt and. endorsed by him and by a firm of Baker, Pratt & Co., and delivered to plaintiff. The note was dated January 28, 1881, and had been discounted by plaintiff at the request of William T. Pratt.

The guaranty was delivered by James H. Pratt at about the time it bears date and while the promissory note above described was held and owned by plaintiff. The William T. Pratt above spoken of was a member of the firm of Baker, Pratt & Co., which firm was also largely indebted to the plaintiff at this time and so continued to be for some period subsequent to July, 1886. It is not material in our view to enter upon an examination of the subject of the indebtedness of this firm or to refer particularly to the guaranty against loss which the plaintiff had for that indebtedness. This action is not brought upon any guaranty in connection with the firm indebtedness, but is brought solely by reason of the demand note above alluded to and because of its non-payment by the endorser, William T. Pratt

The plaintiff did not commence an action against William T. Pratt on that note until the 29th of November, 1886, more than a year and a half after the execution of the guaranty, and obtained judgment against him April 15, 1887. Execution upon the judgment was issued upon the last named day and returned wholly unsatisfied.

Did it proceed with due and reasonable diligence?

As this guaranty was executed for the express purpose of giving William T. Pratt credit at the bank, and as it referred to notes upon which he was already liable as well as those upon which he might thereafter become liable, we may assume that the guaranty was intended to be of some benefit to William as to liabilities already incurred, and that in order to hold the guarantor it was not-necessary that plaintiff should at once commence legal proceeding® to collect the amount of this ten thousand dollar note from William.

The period, however, which did elapse before any proceedings were taken, if unexplained, went far beyond the utmost limit, which a very liberal construction of the obligation of plaintiff would permit. The plaintiff endeavored to discharge the burden of explaining this long delay. The president of the bank was-sworn as a witness upon the trial, and testified to an interview which he allege'd he had with the defendant some time in the latter part of 1885, and in which he informed the defendant that the-hank was taking no proceedings towards collecting the note in question, but was endeavoring to obtain from William and his firm payments on their indebtedness as fast as possible, and that it would probably take a long time, and that it would be injudicious and unwise in the interest of the defendant, as well as the others, if the bank should do any more than was being done towards pressing payment. The president further testified that the defendant approved the course taken by the bank and said it was the correct one and in the interest of all parties concerned. The defendant denied absolutely any such conversation, but in the light in which the case was sent to the jury and of the verdict rendered, we must take it that this evidence of the president, was adopted as the truth of the case.

During the following winter and spring (of 1886) the position. ' continued about the same, the bank continuing to press the claim against William and his firm, but not succeeding in obtaining payment, so far as the demand note was concerned. At length it appeared that the bank itself recognized the fact that all reasonable time had elapsed in which efforts to obtain payment of this note other than by suit had expired. We entirely agree with that opinion. On the 17th day of July, 1886, fifteen months almost from the time when the guaranty was given, the president of the bank sent this letter to William T. Pratt:

“ Dear Sir :

“ I am without any response to call made on you to pay your loan of $10,000. Unless attended to to-day before 8 P. M., we shall notify the guarantor and proceed to measures for collection.

“ Respectfully,

“ G. M. Hard, Pt.”

It is not denied this letter referred to the demand note, and that the guarantor was the defendant. The endorser of the note, William T. Pratt, was in New York and could have been served at any time with process. None was served upon him until November 29, following, and from plaintiff’s evidence it does not appear that Mr. Pratt took any special notice of the letter addressed to-him by the president, although the latter says he undoubtedly saw William between July and September.

There is an absolute and total failure to furnish any reason or explanation for this omission to commence suit against William from July 17 to November 29. It was known, of course, that William was in financial difficulties, and that he was not paying-his liabilities punctually and as they.matured. The letter of the president above set forth shows that he then thought summary measures were needful to collect the note, yet no reason is given, no explanation vouchsafed for this strange and, under the circumstances, most unusual and improper delay.

After process was at length served on William, an answer was interposed for his co-defendant by an attorney on the 7th of January, 1887. From that time until April 8, not a step appears to have been taken, but on that day the attorney for the plaintiff awoke to. the fact that the answer was frivolous and therefore-noticed a motion for judgment, and before the motion was heard the answer was withdrawn and on the same day, April 15, 1887, judgment was entered. Nine months were thus consumed after the plaintiff by its own admission assumed there was a necessity for legal proceedings in obtaining judgment upon a promissory note to which there was no defense; four months before the commencement of the action and nearly five months thereafter. No-explanation or excuse is even suggested for this omission to make-any move in the suit after the service of the answer, January 7,, until April 8, 1887.

A frivolous answer has been stated to be one which upon mere inspection and without argument the court can see sets up no defense. If it require argument and some examination to detect its insufficiency, it is not frivolous, although it might be held bad on demurrer. The attorney for the defendant who put in the answer confessed by his action there was no defense to a motion for judgment on account of the frivolousness of his pleading.

The learned trial judge left the question to the jury to say whether upon the whole evidence there had been a due and reasonable prosecution of the debtor. The counsel for the defendant excepted to this course and duly moved for a nonsuit, which was denied and an exception taken. If upon the evidence-in the case this question were one for the jury, the defendant is. concluded by the verdict, but if it were one for the court, we-have the right to review the decision of the learned courts upon the question. At this very term we have had occasion to examine the point as to when a question of this nature is one for the court and when it is for the jury to decide under instructions from the court. Salt Springs National Bank of Syracuse v. Sloan, ante, 470.

It is unnecessary to again go over that ground. It is enough. to say that in this case we think the question was solely one of law. The case is barren of any fact occurring subsequent to July 17, 1886, up to the entry of judgment in April, 1887, upon which any justification or excuse can be founded for the otherwise plain failure to commence an action with due- diligence or to prosecute it therewith after it was commenced. While we do not say that after an action has been commenced ■each step in the prosecution thereof must be taken with the greatest possible diligence and that the attorney who has charge ■of it must resort to all the known means by which its prose•cution might in any event be quickened, we do say that this ■case is plainly one where no due diligence was exhibited at any time before the 8th of April, 1887.

In the absence of any explanation it is not due diligence to permit a frivolous answer to an ordinary action on a promissory note against a debtor in failing circumstances to remain on the record for three months, during which time not a step of any nature is taken in the action. And unexplained it is not due «diligence in the commencement of an action to wait over four months after the time when the necessity for its commencement has arisen, before issuing process against, and serving it ■upon a failing debtor in the same city, whose whereabouts are known and who is not concealing himself to avoid process.

Such facts being given the inference of a lack of diligence is ■one which ought as matter of law to flow therefrom, and no jury should be permitted in that case to absolve a plaintiff from the effect of his own unexplained and unexcused neglect. The difference between the facts of this case and those which are set forth •in the case above cited is so great that the most careless can see and appreciate it and can therefore account for the difference in the results arrived at.

In this case we think the courts below erred in leaving the ■■question of due diligence to the jury, and the judgment must therefore be reversed, and a new trial ordered, costs to abide the ■«event.

All concur.


author: Earl, Ch. J.

text:
    Mary Curry, App’lt, v. The City of Buffalo, Resp’t.

      (Court of Appeals,

      Filed October 11, 1892.)

    Municipal cobpobations—Negligence—Notice.
    The presentation to the common council of the city of Buffalo of a claim for personal injuries and of the time and place of the accident, in pursuance of the charier requirement, is not a compliance within § 1 of chap. 573 of the Laws of 1886, requiring notice of intention to bring such action to be served on the corporation counsel.
    Appeal from judgment of the supreme court, general term, second department, denying motion for new trial and ordering judgment for defendant on nonsuit

      Adelbert Moot, for app’lt; Philip A. Laing, for resp’t

       Affirming 31 St. Rep., 745.

   Earl, Ch. J.

The plaintiff brought this action to recover damages for personal injuries received by her from falling upon a sidewalk, in reference to which she charged the defendant with negligence.

The plaintiff was nonsuited at the trial, solely upon the ground that she had not complied with § 1 of chapter 572 of the Laws of 1886, passed January 4th of that year, by giving the notice-there required of her intention to commence the action.

She received her injuries on the 18th day of December, 1887, and on the 29th day of May thereafter she delivered to the city clerk and the comptroller a petition addressed to the common council, in which she stated the nature of her injuries, and when, where and how they were received; that they were caused by the bad condition of a sidewalk negligently left by the city out of repair and in a dangerous condition, and that her damages were $5,000, and she prayed for an order for that sum. The presentation of her claim to the common council by her petition was a-compliance with § 7 of title 3 of chapter 519 of the Laws of 1870, as amended by § 8 of chapter 479 of the Laws of 1886, passed May 27th of that year, which section is as follows: “It (the common council) shall audit all claims against the city, but no unliquidated claims shall be received for audit unless made out in detail, specifying if for labor or services, the time when, the place • where, by whom and under whose direction and by what authority performed; if for merchandise, material or other articles fur-, nished, the items thereof, by whom ordered, and when and to' whom delivered; and if for damages for wrong or injury, when, where and how occasioned; nor unless accompanied by an affidavit that the claim and the items and specifications thereof are in all respects just and correct, and that no payments have been made, and that no set-offs exist except those stated Mo action or proceeding to recover or enforce any such claim against the-city shall be brought until the expiration of forty days after the-claim shall have been presented to the common council for audit-in the manner and form aforesaid.

“ The common council before auditing any such claim shall refer it to the auditor. If such claim shall not be made out or verified as above required, the common council may within thirty days after its presentation refuse on that ground to audit it. All actions brought against the city to recover damages for personal injuries caused by negligence shall be commenced within one year from the time of receiving the injuries.” The action was commenced -J uly 23, 1888, and after that § 7 was again amended, and re-enacted as amended in chapter 318 of the Laws of 1889. The amendment required claims for a wrong or injury to be presented within six months after the wrong or injury occurred. As the amendment was after the commencement of this action, it is in no way material to be now considered.

The purpose of § 7 was to regulate the powers and duties of the common council in the audit, allowance and payment of claims against the city, and the main features of the section, with-more or less similarity, are found in the charters of many o£ tlie cities of this state. The provisions of the section are not inconsistent with the provisions of § 1 of chapter 572 of the Laws of 1886, and both sections can stand together and have full operation. The provisions of § 7 are not in all city charters, and are not precisely the same in any of them, and hence § 1 was intended as a general provision applicable to all cities of the prescribed size. It is as follows: “ No action against the mayor, aldermen and commonalty of any city in this state having fifty thousand inhabitants or over, for damages for personal injuries alleged to have been sustained by reason of the negligence of such mayor, aldermen and commonalty, or of any department, board, -officer, agent or employee of said corporation, shall be maintained, unless the same shall be commenced within one year after the •cause of action therefor shall have accrued, nor unless notice of the intention to commence such action, and of the time and place at which the injuries were received, shall have been filed with the ■counsel to the corporation, or other proper law officer thereof, within six months after such cause of action shall have accrued.”

The learned counsel for the plaintiff contends that this section applies only to the city of New York, as that is the only city whose corporate name is the “ Mayor, Aldermen and Commonalty." But it was clearly intended to apply to all cities of the prescribed size, and so it was held in Merz v. City of Brooklyn, 33 St. Rep. 577, affirmed in this court in 128 N. Y., 617; 38 St. Rep., 1014, The section is imperative. The action cannot be maintained unless notice of the intention to commence it and of the time and place of the injury “ shall have been filed with the counsel to the •corporation,7 and a failure to file the notice furnishes a defense to the action. The filing of the notice is a condition precedent to "the maintenance of the action. Reining v. City of Buffalo, 102 N. Y., 308; 2 St. Rep., 10; Merz v. City of Buffalo, supra ; Dawson v. City of Troy, 49 Hun, 322; 17 St. Rep., 559.

The commencement of the action cannot be considered as a notice of intention to commence the action, because the notice must be filed before the commencement of the action, and as a condition to the maintenance thereof.

The whole matter of the maintenance of this class of actions was within the control of the legislature. It could refuse a right •of action against municipalities for such injuries, and it could impose any conditions precedent to the maintenance of such actions. It could require notice of the intention to commence them to be served both upon the common council and upon the corporation •counsel, and an act requiring the one notice would not be inconsistent with an act requiring the other. Here the legislature required the presentation of the claim to the common council for its notion thereon, and the notice to the corporation counsel for his information and to govern and influence his official conduct. These actions against cities are numerous, and the legislature seems to have been solicitous to protect them so far as possible .against unjust or excessive claims and also against the improvident or collusive allowance of such claims by municipal officers.

The prevailing opinion in the court below contains a very satisfactory discussion of the questions involved upon this appeal, audit) ut for the zeal of the learned counsel for the plaintiff and the alleged importance of our decision as bearing upon other pending actions, we should not have deemed it important to do more than, to refer to that opinion for the grounds of our affirmance of the judgment.

Our conclusion is that the judgment should be affirmed, with •costs.

All concur.


author: Per Curiam.

text:
    Elizabeth A. Culliford, Resp't, v. Montgomery Gadd, App’lt.

      (Court of Appeals,

      Filed October 11, 1892.)

    Appeal—Undertaking.
    A stipulation of the parties recited that the undertaking given to perfect an appeal had been cancelled and annulled in the superior court, and an order was entered by consent granting plaintiff leave to file another “ undertaking to perfect appeal ” within five days and to have the same force and effect when filed as if it had been filed and served when the first undertaking was given; and the order provided that if not filed and served within that time that the appeal should be dismissed, which was done. Meld, that this was the same as if no undertaking had been given, and appellant had the right within the statutory time to take and perfect another appeal.
    Motion to strike cause from calendar.

      F. Spiegelberg, for motion; Sidney Harris, opposed.

       See 44 St. Rep., 222.

   Per Curiam.

The plaintiff is concluded by the order of this court, entered April 9, 1892, upon the stipulation of the parties, which recites that the undertaking given to perfect the appeal had been cancelled and annulled in the superior court, which, it appears from the papers, was also done by consent, and which granted the plaintiff leave to file another “ undertaking to perfect the appeal ” within five days, and to have, when filed, the same force and effect as if it had been filed and served when the first undertaking was given; and the order provided that if not filed and served within that time, that the appeal should be dismissed, with costs, which was,subsequently done.

The case was thus placed by the act of the parties upon the same footing as if no undertaking had been given to perfect the appeal, and the appellant had the right, within the statutory time for appealing, to take and perfect another appeal, as his first attempt to avail himself of this right had proved ineffectual. Langley v. Warner, 1 N. Y., 606; Blake v. Lyons & Fellows Man. Co., 75 id, 611; Good v. Daland, 119 id., 153; 28 St. Rep., 935.

The motion must be denied, with ten dollars costs.

All concur.


text:
    Edwin Beardsley et al., Resp’ts, v. The Lehigh Valley Railway Co., App’lt.

      (Supreme Court, General Term,, Fifth Deportment,

      Filed October 21, 1892.)

    Railroad—Farm crossings.
    Plaintiff’s farm is cut in two parts by defendant’s road. On the north side is a spring, while on the south side, which is used for pasturing cattle and sheep, there is no water. The road runs through a cut, except at a point where there is a depression, which has been customarily used as a passageway for teams and to water the cattle. This depression is to be filled and the road run about twelve feet above the surface. Defendant offered grade crossings at two points, but either of them would require plaintiffs^ to overcome a steep grade in order to use them. Held, that under the circumstances the railroad company should be required to furnish an undergrade crossing at the point of the depression.
    Appeal from a judgment in favor of the plaintiffs, entered on the findings and decision of the court, at the Ontario special term.
    The following opinion was delivered by Mr. Justice Adams, who tried the case :
    Adams, J.—The evidence in this case establishes with reasonable certainty that the plaintiffs are the owners of a farm in the town of Phelps, Ontario county, containing about one hundred acres of land; that the defendant is a railroad corporation organized under chapter 140 of the Laws of 1850, and that by condemnation proceedings it has acquired title, for the use of the railroad, to a strip of land about 2,300 feet in length, running through the plaintiffs’ farm m an easterly and westerly direction, dividing the farm into twomearly equal parts ; that such strip is about ninety-nine feet in width at the east end, and continues through the greater portion of the farm at that width; but, as it approaches the west line, the width increases to nearly one hundred and filiv feet; that the entire strip contains about six acres of laud; aim the compensation awarded the plaintiffs therefor, and for the damage to the remaining . premises, in such condemnation proceedings, was the sum of $3,590 ; that the plaintiffs’ barns and other farm buildings are on the north side of the line of the railroad, and there is also on the same side an inexhaustable spring of water; that the lands upon -the south side are in a state of cultivation, and are often used for pasturing large numbers of sheep and cattle, after the crops are removed; but in the latter part of the season there is no supply of water upon these lands, and the sheep and cattle there pastured are watered at the spring upon the north side.
    That for a distance of about 1,800 feet the defendant’s railroad,, when completed, will be in a cut or excavation of from two to thirteen feet below the surface, which for most of the way will be impassable for teams and cattle, by reason of the depth ; that at a point a few hundred feet east of the west line of the farm there is a natural depression or hollow, that is crossed by the railroad; and the plaintiffs have been accustomed to use "this depression as an easy and direct passage-way for teams in going to and from the north and south parts oí the farm, in their farming operations, and also for the use of their cattle, pastured upon the south side, in going to and from the spring upon the north side; that the defendant’s road is being constructed across this depression at a grade of about twelve feet above the surface of the ground; and the defendant intends to fill in such depression to that depth in order io carry its tracks over the same, and that when this is accomplished, there will be an impassable barrier to the passage of teams or cattle through this depression.
    In the construction of its road over the plaintiffs’ farm upon the proposed route, the defendant has offered to provide two crossings at grade for the use of the plaintiffs, one of them being about three hundred feet west of the depression and the other about two hundred feet east; or in lieu of either one of these, one at the extreme eastern end of the farm; but either of the proposed crossings in the vicinity of the depression will involve the necessity of overcoming a considerable grade in the use of the same; and there is some doubt whether they could be used, when ■constructed, without great inconvenience to the plaintiffs.
    Before this action was commenced, the plaintiffs requested of the defendant that they be allowed an under-grade crossing through the depression, which request was refused ; the principal reason assigned for such refusal being that there was not sufficient room therefor; and thereupon the defendant proceeded to fill in such depression, but had not finished the same when this action was brought, restraining it from so doing.
    Upon these facts it must be assumed, I think, that the depression referred to has afforded to the plaintiffs the natural and most convenient means of passing to and from the north and south portions of their farm; and that it has been generally, though not always, used for that purpose. It may likewise be assumed that when the defendant’s road is constructed across such depression there will be ample room for an undergrade crossing which cau be easily provided, although, as is testified to by the defendant’s engineer, this will involve an additional cost of about $2,600. The question, therefore, which fairly presents itself to the court is, shall the defendant be required to incur this expense in order to provide the plaintiffs with a convenient means of crossing its tracks ? That this court has the power to compel a railroad corporation to construct such farm crossings as it deems proper and necessary in a given case has been frequently held, and I do not understand that the proposition is now questioned by the defendant. Jones v. Seligman, 16 Hun, 230; aff’d, 81 N. Y., 190; Wademan v. A. & S. R. R. Co., 51 id., 568; Post v. W. S. & B. R. Co., 123 id., 580, 591; 34 St. Rep., 484.
    On the other hand, it is equally well settled that under the provisions of the act of 1850, requiring corporations organized under that act to erect and maintain suitable farm crossings for the use of the proprietors of lands adjoining the railroad, it is the right of the corporation in the first instance to locate the crossings. Wademan v. A. & S. R. R. Co., supra. But, in the exercise of this right, it is nevertheless the duty of the corporation to consult the convenience of both parties ; and it will not be permitted to locate such a crossing as will subject the proprietor to needless and unreasonable injury or inconvenience.
    In reaching a conclusion upon the question which presents itself for consideration, it will be necessary, therefore, to determine whether or not the defendant has made right use of its discretionary powers, and this, of course, depends entirely upon the circumstances peculiar to the case in hand. Ordinarily, grade crossings, are all that can be reasonably required of a railroad corporation; for farm, purposes, and, unless there is something to take this case-out of the ordinary rule, they are all that ought to be required of the defendant.
    What, then, are the extraordinary features of the- case under consideration? Not the fact that the defendant’s railroad cuts the plaintiffs’ farm in twain, for it is the doing of this very thing which the statute contemplates, in requiring that suitable crossings shall be constructed, which requirement is, as has been said, ordinarily fulfilled by providing crossings at grade.
    Nor do I think that the fact that an undergrade crossing would prove more convenient to the plaintiffs in their farming operations, or in watering their stock, would of itself furnish a sufficient reason for departing from the rule generally adopted in these cases ; but such a reason is furnished, if at all, by the combination of these facts with the further fact'that a grade crossing at either of the two places near the depression selected and proposed by the defendant can not be used without compelling plaintiffs to overcome a steep grade, which would necessarily be attended not only with great inconvenience, but likewise with greatly increased labor to themselves and their teams; and that it would also involve the necessity of either drawing small loads or incurring the risk of tipping over, to say nothing of the danger to be apprehended from passing trains.
    None of these objections operate against the undergrade crossing. As has already been shown, this is the natural and customary route taken by the plaintiffs; its use is attended by none of the dangers or disadvantages above mentioned, and it is likewise much more convenient and accessible; but over and above all these considerations, it would seem as though it were the one means of communication between the two portions of the plaintiffs’ farm which would suggest itself to any person or tribunal which was endeavoring to consult the convenience and interest of both these parties; for here is a depression to be crossed by a track twelve feet above the surface of the ground, and this elevation the defendant designs filling in so as to make a solid embankment ; but, if, instead of doing this, an aperture should be left sufficient in size to permit teams and wagons to pass through, which could easily be accomplished .without very great additional expense, how incomparably better it would be for all concerned. To the plaintiffs it would prove convenient and easy as a driveway, and it is equally clear that to the defendant it would in the end be much less expensive than a crossing at grade, where the danger to be apprehended from collissions with cattle and teams is certainly much greater than that which counsel imagines would attend the passage of cars over a bridge fourteen feet in length.
    It is a fact which, I believe appears in this case, but if it does not the court will take judicial notice of it, that the defendant in constructing its line of road through this state has adopted an overhead or underground grade crossing as the best means of getting over every public highway, where such means was found practicable.
    In adopting this course, which was purely voluntary, it is to be commended; and all that the plaintiffs seek by this action is to require that the same policy be pursued towards them as individuals, which the defendant, by its own acts, concedes is proper towards the public at large; and while it is not designed by this decision to establish a precedent for undergrade farm crossings as a rule, it does seem as though, for the reasons here given, it would be the only suitable crossing in this particular case.
    In reaching this conclusion the court has not been unmindful of the contention made by the defendant’s counsel that the inconveniences and disadvantages of a grade crossing were considered in the condemnation proceedings, and that they constituted an important element of the damages awarded the plaintiffs in that proceeding.
    This contention would, at first glance, seem to possess some weight, for it certainly does appear that several of the witnesses sworn for the landowners did, to some extent at least, base their estimate of damage upon the fact that the south part of the farm, was to be cut off from the spring upon the north part; but a careful analysis of the whole testimony will show that the witnesses who appeared to take this fact into consideration placed the damages at a sum lower than did others who did not mention this as an element of damages; while the average estimate made by all the witnesses on both sides was nearly a thousand dollars in excess ■of the award.
    It cannot be assumed that the award was made in contemplation of the inconvenience or damage to be apprehended from one or more crossings, Smith v. N. Y. & O. M. R. R. Co., 63 N.Y., 58, and in the case of Jones v. Seligman, heretofore cited, it was said by Miller, J.: “We think such an item is not' a proper subject of consideration in estimating damages for land taken for railroad purposes, and that they have once been made cannot affect the right of the owner to additional ones, where these are insufficient.” It follows, therefore, that this contention of defendant’s counsel is not sustained by either the facts or the law of the ■case.
    I am consequently of the opinion that the plaintiffs are entitled to the relief sought in this action, with costs.

      A. P. Rose, for app’lt; J. C. Smith, for resp’t.
   Per Curiam.

The judge who tried this case had, by consent ■of the parties, the advantage of a personal view and inspection of the premises; it is impossible, therefore, to characterize any of his findings of fact as unwarranted by the evidence. His opinion, given above, seems to us to justify the 'conclusions of law drawn from those findings.

The only exception taken on the trial, which is argued here, relates to the admission in evidence of the opinions of witnesses in regard to the damage to the farm which would result from the want of an underground crossing proposed. The evidence was, no doubt, offered for the purpose of a comparison between ther loss to be sustained on the one hand, if the crossing were not constructed, and the expense to be incurred on the other hand, in its construction, as bearing upon the question of the form of the relief to be granted. But there were no findings or request to find on that subject; so that the evidence, if not strictly admissible, was not to the prejudice of the defendant

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., Macomber and Lewis, JJ., concur.


text:
    Hannah Bradley, App’lt, v. George H. Bradley, Ex’r, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Decedents’ estates—Claim fob boabd.
    After testator had lived some years with his son, plaintiff’s husband, he-went to live with his daughters, but returned, as he stated, because they wanted him to pay more board than he could afford, and remained with plaintiff until his death. While there was never any express agreement as to payment for board, the referee found that testator expected to pay and plaintiff to receive payment. Testator left his property to his daughters, to the exclusion of his son. Held, that the referee properly allowed for board from the time of his return.
    2. Same.
    Prior to his leaving to go to his daughters, testator allowed his son to-buy in a farm on foreclosure of a mortgage in which he held an interest. This farm was afterwards sold, and the proceeds given to plaintiff, who purchased in the remaining interests of certain property in which she was-interested. The son had remained with testator until after he was thirty-two years of age without compensation. Held, that the concession by testator should be regarded as compensation for services already rendered, and not as payment in advance for testator’s care and maintenance in the future.
    3. Same—Amendment of claim.
    Where the claim has been amended without opposition and no appeal was taken from the order, but the parties proceeded to trial on the claim as amended, it is too late to object to the amendment on appeal from the referee’s decision
    Appeal by the plaintiff from an order of Brie special term, entered in Orleans county, April 4, 1892, setting aside the report, of a referee, order of confirmation and judgment entered thereon, and granting a new trial, in the case of a reference under the statute.

      J. H. White, for app’lt; L. M. Sherwood, for resp’t.
   Dwight, P. J.

The claim referred was for eight years board,, lodging, etc., of the defendant’s testator, Gyrus Glark, deceased, from April, 1882, until his death in June, 1890; also for the-keeping of horses of the deceased during a portion of that time.

The plaintiff was the wife of the testator’s son, Milton Glark, who married her in the year 1870, when he was thirty-three years of age. He had up to that time always lived at home, rendering-service to his father on his farm, without other compensation than-his support Immediately upon his marriage he took his wife home to his father’s house on a farm belonging to the latter, known as the Bates farm, in the town of Ridgway, where they lived as members of the father’s family, rendering service, and receiving support, as such, without expectation of giving or receiving compensation for either, until the farm was sold in the spring of 1882. At that time Milton hired a house in the same town, to which he removed with his wife, and went to housekeeping; his father went with him, and remained a member of his family, at that place, until the spring of 1883.

In the spring of 1883, the plaintiff bought the interest of the other heirs of her father in a farm which they had inherited in common with her, paying therefor, or thereon, the sum of $3,299, which she had received from her husband under the following circumstances: In the spring of 1869 Cyrus Clark, the deceased, sold a farm in the town of Yates, taking back a purchase money mortgage of $14,000, payable in fourteen annual instalments of $1,000 each. He assigned his interest in this mortgage to the extent of $12,000. Default was made in the payment of some of the-later instalments of the $12,000, and an action of foreclosure was instituted, in 1879, by the owner of those instalments, to which Cyrus Clark, as the owner of the remaining $2,000, was made a party. When the sale took place Cyrus Clark was sick, and he sent Milton to bid in the property, directing him to do so in his own name. This Milton did and took a referee’s deed of the farm, paying the amount of his bid by giving a mortgage on the same property, and his father afterwards gave him a quitclaim deed of the farm for a nominal consideration. Milton sold the farm in 1881, subject to the mortgage he had given, and realized therefrom the sum of $3,299, which was the same money he gave to his wife and which she paid on the farm known as the Whitaker farm, purchased by her. She took and retained the title to that farm in her own name, went on to it in the spring of 1883 with her husband, and managed it as her separate property, receiving its proceeds and defraying the expenses of the family therefrom. Cyrus Clark also accompanied his son and daughter-in-law in their removal to the Whitaker farm, and continued with them as a member of their family until May, 1884, when he went to Chicago to live with a daughter, Mrs. Rolfe, at that place.

It was at about this time that the plaintiff gave to the deceased her promissory note for $130, payable in one year, for borrowed money, which remained unpaid at the time of his death, and which the referee allows, with interest, as an offset to the plaintiff’s claim.

In respect to the period of two years and upwards next following the sale of the Bates farm, embracing the year when the family lived on the place hired by Milton, and the first year, and more, on the Whitaker farm, the referee finds that no agreement or understanding existed between the father and either Milton or his wife that the former should pay for his board, and that portion of the plaintiff’s claim was not allowed by the referee.

The old gentleman seems not to have been encouraged to remain with his daughter at Chicago; he afterwards reported that she declined to keep him unless he would pay her a dollar a day for his hoard, and he remained with her only until the last of September of the same year. He had, some years later, even less success-in the attempt to find a home with another daughter, Mrs. Sherwood, who lived in Niagara county. He remained with her only a few days, and reported that she proposed to charge him five dollars a week and was unwilling to keep him at all.

It was on the 30th day of September, 1884, that the deceased returned from Chicago to his former home and again took up his residence with his son and daughter-in-law on the Whitaker farm ; and there he remained as a member of their family, with few and brief intermissions, until his death, in June, 1890. It is for his-board, lodging, washing and care, during this period of two hundred and ninety-three weeks, at the price of three dollars per week, that the principal item of the plaintiff’s claim was allowed by the referee. That allowance is based upon findings which embrace the facts above stated, and further facts, among others,, as follows : “ That there never was any express agreement between him [the deceased] and the plaintiff in regard to said board, washing and care. * * * That upon his return from Chicago-to the plaintiff’s house in September, 1884, and resuming his residence in her family, he expected to pay plaintiff for his board and care a reasonable sum, provided she saw fit to charge him for the-same, but expected it to be less than that charged by his daughters, and from the time he so returned to live with her, the plaintiff expected to charge him such reasonable sum for his said board and care, and to be compensated therefor by will or otherwise and at some time during the period he so lived with her she notified him of such intention, and of her expectation to receive compensation for the same, and he continued to live with her and receive such board, services and care after having been so notified. * * * That in consequence of his age, his infirmities and his-untidy habits, it was unpleasant to care for him, and these conditions caused extra labor and attention. * * * That Cyrus Clark left a will by which he gave no part of his property to-Milton, or to his wife, the plaintiff, but gave the whole of it to his daughters, Mrs. Eolfe and Mrs. Sherwood, and to two grandchildren, to be equally divided .between them.”

A very careful review of the record before us on this appeal inclines us to the opinion that the disposition made of the case by the referee wa§ just and permissible under the law applicable to-this class of cases. There was evidence tending to show a mutual understanding between the plaintiff and the deceased, that at-some time and in some way, by testamentary provision or otherwise, she, or her husband, should be reasonably compensated for the expense of time and money to which they were subjecting-themselves in his behalf during the period of nearly six years of his old age and final helplessness. It was during that period that he had successively made the experiment of living with his two-daughters and found it a failure because they exacted from him more compensation than he could afford to pay. He could not reasonably expect that his daughter-in-law would do for him from motives of filial duty more than his own daughters were willing; to do. But the suggestion is, and that we think is the real ground of opposition to the plaintiff's claim, that she had already been paid in advance for services rendered and expenses incurred in and about the care and maintenance of the deceased. The reference is, of course, to the concession, on the father’s part, by means of which Milton was enabled to realize, out of property which belonged to his father, and, so, to present to his wife the sum of money which she paid for the interest in the Whitaker farm purchased by her.

But we do not regard the suggestion as controlling upon the-main question of fact in this case. Granting that the arrangement was a concession by the old man to Milton, and of the value-of the sum realized by the latter in the transaction, is there any presumption, under the circumstances of this case, that this was-to be regarded as payment in advance for the care and maintenance of the father during the remainder of his life ? Or is it not more reasonable to suppose that it was in recognition and, in a manner, as compensation for services already rendered by Milton and his wife to him. .Milton became of age in 1858, and for twenty-two years after that time and before his marriage he-served his father without compensation beyond his board and clothes and scanty spending money. He was married in 1870 and for twelve years after that time not only he but his wife, also, rendered similar services for similar compensation only.

It is not contended that either Milton or his wife could have-recovered, at law, compensation for these thirty-four years of service, but it may well be suggested that when, at the end of that time, the father puts his son in the way of realizing a little over $3,000 and permits him to .put it into property for the benefit of his wife, it is quite as likely to have been intended in recognition: of the past as in provision for the future. In this view of the transaction there was nothing in it which deprives the plaintiff of the benefit of the ordinary presumption of a contract on the part of the deceased to pay for the services rendered and expenses-incurred by her in his behalf.

The allowance to the plaintiff of her claim for the keeping of horses of the deceased on her farm rests upon the same principles as that for the board and care of the deceased; but a question of practice is involved in the consideration of one of the items of this claim which requires to be noticed. The claim as .originally presented to the executor, while it specified the raising of three colts, did not include a charge for the keeping of the brood mare from which they were raised. After the claim as presented had been referred, the plaintiff applied to the court at special term, on notice to the executor, for leave to amend her claim in the respect mentioned. The order was granted without opposition, and notice of its entry was duly served on the attorneys of the defendant.

Ho appeal was ever taken from the order nor was any motion made to set it aside, but the parties went to trial on the claim, as amended thereby.

It seems to be now too late to object that the amendment was irregular or without jurisdiction.

We think the report of the referee is well sustained, and that the plaintiff was entitled to its confirmation and to judgment thereon.

The order setting aside the report, order of confirmation and judgment, and granting a new trial, should be reversed.

Order appealed from reversed, with costs.

Macomber and Lewis, JJ., concur.


author: Dwight, P. J.

text:
    The People ex rel. Lott Farnsworth, Resp’t, v. The Board of Supervisors of Orleans County, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Towns—Division into districts fob town meetings—Laws 1875, chap, 482.
    Chapter 482, Laws 1875, empowering boards of supervisors to authorize the annual town meetings in a town to be held by election districts and prescribe the manner in which the town business shall be conducted in such districts, intends that the whole of the town business shall be transacted in the district meetings, and that the results in each shall be ascertained and recorded so as to exhibit the united action of the whole body of electors of the town; and does not authorize an ordinance by the supervisors providing for town elections by districts; that officers required to be elected by ballot shall be elected in the several districts, and for the election of the other officers and the transaction of all other business of the town only in one of said districts.
    Appeal from an order of Brie special term, entered in Orleans county, December 17, 1891, granting a peremptory writ of mandamus.

      J. N. Thompson, for app’lt; I. S. Signor, for resp’t.
   Dwight, P. J.

The writ commanded the defendant to reconsider and rescind action taken at its annual meeting in the year of 1891, by which there was included in the tax levy of the town of Murray, for the year 1891, the sum of $1,200 for the purchase of a site for, and the erection of a town house in that town, and to Strike that sum from the tax levy.

The action in question, on the part of the board of supervisors, was in compliance with supposed action of the town of Murray, taken by resolútion at a supposed town meeting held in one of fche election districts of the town on the 7th day of April, 1891, whereby the sum named was .alleged to have been appropriated for the purpose above mentioned. The contention of the relator, who is a taxpayer of the town of Murray, is that the alleged town meeting was not legally held; that the action mentioned as taken thereat was not legally taken, and that it furnished no ground for the action of the board of supervisors which is brought in question by this proceeding.

Previous to the year 1875 the town meeting in every town in this state was held as a single convocation of the electors of the town, at one place in the town appointed therefor, and all the business of the town which called for the action of the electors, including the election of all town officers, whether by ballot oi otherwise, was transacted at that meeting. In the year 1875, the legislature, by chap. 482 of the laws of that year, conferred upon the boards of supervisors of the several counties of the state, the power “ upon the application of any town duly made, * * *" to authorize the annual town meetings and all special town meetings in such town to be held by election districts, and to prescribe the manner in which the town business shall be conducted in such districts, and the results ascertained and recorded.” Section 26 of the act above cited.

In the year 1877 the board of supervisors of Orleans county, on the application of the town of Murray, passed an act entitled An act to enable the electors of the town of Murray, Orleans county, N. Y., to hold their town elections in the separate election, districts of said town.” And the act, true to its title, provided not, for holding the town meetings by election districts, nor prescribed the manner in which the town business should be conducted in such districts, but provided for holding the town elections only, and of officers required to be elected by ballot in the several election districts, and for the election of all other town officers, and the transaction of all other business of the town, at one town meeting to be held only in district number two.

We think this attempt at local legislation by the board of supervisors of Orleans county was nugatory and void, because it was not within the power conferred by the act of legislature upon which, alone, it depended for its validity.

The board of supervisors is a body of strictly limited powers. It has no power of legislation except as expressly conferred by statute, Constitution, art. III, § 23; People v. Lawrence, 6 Hill, 244, and any attempt by it to legislate outside the limit prescribed by the legislature is necessarily void.

The power conferred upon the board of supervisors by the act of 1875 was, as we have seen, to authorize the annual town meetings to be held by election districts, and to prescribe the manner in which the town business should be conducted in such districts. The attempted legislation of the Orleans county board did not purport, even by its title, to conform to the power thus conferred upon it The term “ town elections ” is not synonymous with “ town meetings.” The election of the town officers is only a portion and, it may be, a comparatively unimportant portion, of the business to be done at the town meeting. When the legislature empowers the board of supervisors to authorize the holding of the town meetings by election districts, it intends the town meetings and not the town elections, merely; and when the statute provides that the board of supervisors shall “ prescribe the manner in which the town business shall be conducted in such districts, and the result ascertained and recorded,” it intends that the whole of the town business shall be transacted in the district meetings, and that the results in each of them shall be so ascertained and recorded as that they may be collated and combined in such manner as to exhibit the result of the united action of the whole body of electors of the town.

By no other construction of the statute could its evident object and. purpose be attained. The only possible object of election •districts is the same in the case of town meetings as in that of general elections, viz. : the convenience of the electors. But the construction put upon the statute by the board of supervisors not only defeats this purpose, but lays a heavy and unequal burden of inconvenience upon a large portion of the electors of the town. In this case the electors of district number one, if they would .avail themselves of the rights and discharge the duties of electors of the town, must, necessarily, attend two town meetings on the same day; travelling, perhaps, half the length of the town in one direction to reach the polls of the election in the district in which "they reside, and where alone they are permitted to vote for officers to be elected by ballot, and perhaps twice the distance in the opposite direction to vote for other town officers and take part in the business of the town. The unjust discrimination against the ■electors of district number one, involved in such an arrangement, is sufficient to condemn it It must result in the practical disfranchisement of many of their number. Of course, nothing -could be further from the intention of the enabling act, and, as we have seen, the scheme is equally in violation of its terms. The enabling act authorizes provision for holding the town meetings and transacting the town business in both the election districts; the act of the supervisors purports to provide only for holding the elections of one class of town officers in both districts, and for the transaction of all other business of the town meeting in ■one of the districts alone.

The attempted legislation of the board of supervisors seems to us to be plainly without the authority of law, and therefore to .be invalid and of no effect.

Such being the case, the alleged town meeting held in election ■district number two of' the town of Murray, in the year 1891, was not a legal town meeting, and the action of those electors' •present, in voting an appropriation for a town house, was not legally binding upon the town, and furnished no legal ground for the action of the board of supervisors in levying the tax in ■question. This conclusion is so radical that we think it unnecessary to consider Other grounds of objection to the action of the board of supervisors.

The order for a peremptory writ of mandamus requiring the ■defendant to reconsider and rescind the action, and to strike the ■gum in question from the tax levied upon the town of Murray, must be affirmed.

Order appealed from affirmed, with costs.

Macomber and Lewis, JJ., concur.


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    In the Matter of the Proof of the Will of Joseph Perego, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Will—Probate—Deaf and dumb persons.
    A deaf and dumb person may make a will if only the formalities prescribed by the statute are observed in their spirit and intent, and in such manner as is practicable under the conditions existing.
    3. Same.
    The will of testator, who was deaf and dumb and could read to some extent, was executed in the presence of the scrivener and three witnesses, who all signed as such. The scrivener testified to the signs by which he asked the questions of testator, and to the affirmative answers, and one witness testified to the dumb show by which testator invited the witnesses to sign and thanked them. The other' two witnesses testified that they failed to observe or remember these things. Held, that there was serious doubt whether a finding that there was not a sufficient execution was in accordance with the weight of the evidence, and that the question should be submitted to a jury.
    Appeal by proponents from a decree of the surrogate of Ontario county, denying probate to the alleged last will and testament of Joseph Perego, deceased.

      T. M. Howell, for app’lts; S. Gooding and J. P. Faurot, for resp’ts.
   Dwight, P. J.

No question was made of the testamentary •capacity of the decedent, nor that the alleged will was duly executed by him. The questions of fact upon which there was some conflict of evidence, and in respect to which the evidence was held by the learned surrogate to be insufficient to warrant the granting •of probate to the will, related (1) to the due publication thereof by the deceased as his. will, and (2) to the request by the deceased that the witnesses should attach their names as subscribing witnesses thereto.

The decedent was an unmarried man of upwards of sixty years ■of age, and had been deaf and substantially dumb from early childhood. He had been accustomed to communicate his ideas mainly by signs and gestures, constituting a species of pantomime, and sometimes by writing on a slate or pieces of paper, and he was able to understand, to some extent, communications made to him by the motion of the lips of persons who spoke to him. The scrivener who drew his will, a schoolmaster hy profession, and, as his testimony taken on commission indicates, a man of intelligence, had known him for several years, and had frequently conversed with him by means of signs, previous to the interviews in reference to his will. He was able to read print and some writing, and to write himself to some extent. Shortly before drawing his will the scrivener had received information from the sister of the testator that the latter desired to have him •draw his will, and he visited him at his sister’s house, where he had been living for a number of years, taking with him a printed form of a will which he exhibited to the testator and was informed by him, by means of intelligible signs, that he wished him to draw his will, and that he desired to give his property to the sister with whom he was living. The scrivener went away and filled out the printed form accordingly, inserting an additional provision for the contingency of his sister’s not surviving him; and when he came again exhibited the draft of the will to ■the testator, who examined it closely for several minutes, apparently reading it with care, and plainly indicated by signs that it was as he desired his will to be.

The scrivener showed him where his name should be signed, and called his attention to the attestation clause, which was printed on the same page with the will, of all of which the testator signified his understanding. The will was executed the next day by the testator signing his full name thereto, in presence of the scrivener and three other witnesses, all four of whom signed the attestation clause in his presence and in presence of each other. The scrivener testifies to the signs by means of which he put the question to the testator whether the paper thus executed was his will, and the affirmative response thereto; and another of the subscribing witnesses describes the unmistakable dumb show by which the testator invited the witnésses to subscribe their names as such to the will, and thanked them for the service after it was performed. -The evidence in both of these respects was in a manner contradicted by the other two subscribing witnesses, but mainly to the effect that they either failed to observe and comprehend, or else to remember the matters referred to.

A man is not to be denied the right to make a testamentary disposition of his property on account of defect of speech and hearing. And a deaf and dumb man may make a will if only the formalities prescribed by the statute are observed in their spirit and intent, and in such manner as is practicable under the conditions existing. Matter of Beckett, 103 N. Y., 167, 174; 2 St. Rep., 764; Matter of Stillman, 29 St. Rep., 213, and the cases cited.

We desire not to dwell upon the facts in this case in such a way as to prejudice their future consideration, and we, therefore, state without further discussion that the result of our examination of the case is to raise serious doubt whether the questions of fact above mentioned were determined in accordance with the due weight" of the evidence as it appears in the record.

There was undoubtedly a conflict of evidence, and we are unable to concur with the learned surrogate in his findings of fact thereupon. This brings the case within the provisions of § 2588 of the Code, and calls for a submission of the questions of fact to a jury.

The decree of the surrogate should be reversed on the facts, and a trial by jury ordered of the material questions of fact arising upon the issues between the parties; such trial to be had in the circuit court in Ontario county.

Issues to be settled, if required, by the presiding justice of this court; costs of this appeal to abide the final award of costs.

Macomber and Lewis, JJ., concur.


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    The People, Resp’ts, v. Columbus Wiley, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    1. Larceny—Jurisdiction.
    Defendant, who lived adjacent to a stream which formed the county line, proposed to a boy who had escaped from prison that he should steal a horse in the other county, and gave him an envelope on which was marked the route he was to take. The boy took the horse and was met by defendant a short distance from the barn, who gave him a bridle and helped him to mount. Meld, that defendant was guilty as a principal, and that the grand jury of the county in which the theft took place had jurisdiction to find the indictment.
    2. Same—Corroboration op accomplice.
    The principal testimony against the defendant was that of the boy; but there was proof that he was at defendant’s house; that defendant told the boy’s cousin to tell him to come; that the envelope was found after the boy’s departure, and that the writing on it was the defendant’s. Skid, sufficient to corroborate the boy’s testimony.
    Appeal by the defendant from a judgment of the court of sessions of Cattaraugus county, convicting him.of the crime of grand larceny in the second degree.

      C. Z. Lincoln, for app’lt; J. H. Waring, for resp’ts.
   Dwight, P. J.

The defendant was indicted by the grand jury of Cattaraugus county of the crime of grand larceny, in stealing a horse of one Perkins, in the town of Ashford, in that county. The defendant lived in Springville, in Erie county, near the Cattaraugus creek, which separates the two towns and counties, and the barn of Perkins, from which the horse was taken, was near the creek on the other, side. A boy of sixteen years of age, who had lately escaped from the State Industrial School in Rochester, had come, in his flight, to the house of a relative who lived in Spring-ville, and his presence there, and the fact that he was a fugitive from justice, had come to the knowledge of Wiley, the defendant The boy testifies that he went on Saturday night to the house of Wiley, who lived entirely alone, to ask for the loan of a horse to ride to his home in Wyoming county, when, as he testifies,Wiley proposed to him to steal Perkins’ horse, offered to give him five dollars if he would do it, and threatened that if he would not he would give him up to the authorities at Rochester.

He testifies that Wiley at that time traced, on an old envelope, the direction of the road which led from that place to Java Lake, in Wyoming county, indicating the location of two cross roads, one at the forks of the Cattaraugus creek, and one at Yorkshire Corners, and also of the village of Arcade, all of which points he must pass on his route, and that Wiley wrote the words “Porks” and “ Yorkshire ” at the appropriate points ■on the little map, as those words appeared on the paper which was in evidence on the trial. He testifies that he took the envelope with him when he returned to his aunt’s house that flight, after he had promised Wiley that he would come the next night (Sunday) and take the horse. He testifies that he failed to keep that appointment for a reason stated, and that on Tuesday his cousin, a little daughter of the aunt with whom he was staying, brought him word from Wiley that the latter wanted to see him that night; that he went to Wiley’s house Tuesday night in response to that message, and under Wiley’s directions went over the creek to Perkins’ barn, took out the horse, led him across a field to a highway on the Cattaraugus side of the creek, where he was met by Wiley, who took the halter from the horse, pat on a bridle of his own, helped the boy to mount, and sent him on his way.

This statement plainly meets the objection of the defendant to the jurisdiction of the grand jury of Cattaraugus county to find the indictment, and of the court of sessions of that county to try the indictment. Even if the participation of the defendant in the crime had been confined to the fact of counseling and inducing its commission, that made Mm by express definition of the present statute a principal in the crime. Penal Code, § 29. So that, although the counseling and inducing to the crime were done in Erie county, yet the overt, act being committed in Cattaraugus county, the defendant as a0 principal in the crime, was properly indicted and tried in the-latter county. But the statement shows that the defendant was-also personally present- aiding and abetting in the commission-of the crime in Cattaraugus county. The act of larceny was-•not ended when the horse was taken from the barn, but continued at every step of his removal therefrom, and in this the defendant, was an active participant on the Cattaraugus side of the line.

' The testimony so far stated was all from the mouth of an accomplice in the crime. It was necessary to the conviction of the-defendant that this testimony should be “corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” Code of Criminal Procedure, § 399.. The corroborative evidence in this case seems to us ample to meet this requirement of the statute.

. It was mainly as follows: One witness testified that he called at Wiley’s house on the Saturday night mentioned by the principal witness and found him and the defendant alone together, and saw a paper lying on the table between them which he believed to be the one in evidence on which the route of the boy was-traced. Several witnesses gave evidence tending to show that the words “Porks” and “Yorkshire" on that paper were in the defendant’s handwriting. The young girl mentioned by the principal witness testifies that on Tuesday afternoon the defendant: met her on her way home from school and told her to tell that little fellow,-her cousin, to come up to his house that night, that he wanted him; that she delivered the message and the boy went-away that evening after supper. The aunt of the principal witness testified that after he went away from her house she found the envelope on which the little map was drawn, in the room in which he had slept. And there was evidence that the fresh tracks-of two persons, apparently a man and a boy, with those of a horse, were found the same evening that the horse was taken, at. the point where the principal witness testified Wiley met him and helped him on to the horse’s back.

The probative force of the corroborative testimony is not in question; it is only necessary that it should tend, in any degree, to connect the defendant with the commission of the crime ; and it then becomes a question for the jury whether, with such corroboration, the testimony of the accomplice is entitled to credit- and establishes the guilt of the accused.

It seems very clear that neither of the objections to the judgment, which have been discussed, ate tenable, and no others are presented in the argument in support of this appeal. The judgment should be affirmed.

Judgment and conviction appealed from affirmed, and the case remitted to the court of sessions of Cattaraugus county to proceed, thereon.

Macomber and Lewis, JJ., concur.