author: Dwight, P. J.

text:
    In the Matter of the Will of John McCarthy, Deceased.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Evidence—Probate—Code Civ. Pro., § 835.
    Evidence of the attorney who drew the will as to communications made to him by the testator, not in the presence of the subscribing witnesses or any third person, relating to the disposition of testator’s property, is inadmissible in proceedings to probate the will.
    Appeal, by contestants, from a decree of the surrogate of Ontario county, admitting the will to probate.

      D. B. Backenstose, for app’lts; J. B. Bean, for resp’ts.
   Dwight, P. J.

The only questions determined by the decision of the court on a former appeal in this case were (1) of the admissibility in evidence, by the testimony of the witness Nicholas, an attorney and counselor-at-law, who drew the will, of the conversation had by him with the deceased, at the time the will was executed, in the presence of the subscribing witnesses; and (2) of the admissibility of the answer by the same witness to the question : “ Where did you get your instructions from how to draw it (the will)?"

For the exclusion of these two items of evidence the former decree was reversed.

On the second hearing the learned surrogate, in supposed deference to certain intimations contained in the opinion delivered at general term, not necessary to the decision actually made, admitted the testimony of the witness Nicholas as to all the communications made to him by the testator, not in the presence of the subscribing witnesses or of any third person, relating to the disposition of the testator’s property. This ruling, which was excepted to by the contestants, was in apparent violation of the rule declared by the court of appeals in the two cases of In re Coleman, 111 N. Y., 220; 19 N. Y. State Rep., 501, and Loder v. Whelpley, 111 N. Y., 239; 19 N. Y. State Rep., 631. And it was, as the surrogate states in his opinion, upon the evidence so received that the second decree was based.

For the error of the reception of the evidence last mentioned, the decree now appealed from must be reversed.

Decree appealed from reversed and the proceeding remitted to the surrogate of Ontario county for a rehearing, with costs of this appeal to both parties, payable out of the estate.

Macomber and Corlett, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Henry N. Fults, App’lt, v. Wilbur Paul, Adm’r, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Appeal—Case.
    Where the case on appeal does not state that it contains all the evidence, the appellate court cannot review the referee’s finding on a question of fact.
    _ Appeal from a judgment entered on the report of a referee, dismissing the complaint as to the respondent

      J. F. Dorthy, for app’lt; J. W. Dinniny, for resp’t.
   Per Curiam.

This was a creditor’s bill to set aside a conveyance of land as in fraud of the plaintiff. The only question presented by this appeal is that of the fraudulent intent of the respondent’s intestate, and that question is, by statute, one of fact and not of law. 2 R. S., 137, § 4. The case on this appeal, which was submitted at the last term without oral argument, nowhere shows that it contains all the evidence given on the trial, and we cannot, therefore, review the referee’s finding on the question of fact.

The judgment must be affirmed.

Judgment appealed from affirmed, with costs.

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


author: Macomber, J.

text:
    Sophia Foels, App’lt, v. The Town of Tonawanda, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Negligence—Contributory—Mistake of judgment.
    Plaintiff sprained her ankle by stepping through a bridge maintained by defendant. The injury developed into synovitis. In an action for such injury she testified that she was advised by a physician to move about and take exercise on her feet, which was denied by the physician. Expert evidence showed that such exercise was injurious, but that the case was a blind and obscure one, giving no outward manifestation of its character, and it appeared that otherwise she was in a condition requiring exercise, and that she acted in good faith. Held, that it was not necessary for plaintiff to give evidence to discriminate between the actual injuries and their natural consequences, on the one hand, and the injuries and the consequences resulting from the use she made of her foot after the accident; that so long as she acted in good faith, defendant could not complain of her mistake of judgment, nor claim that no liability could attach to it because the amount of compensation which should be awarded for its wrong is difficult; or impossible of separation from the aggravations thereof accompanying an honest but mistaken treatment.
    Appeal from an order made the 30th day of December, 1889, on the minutes of the court at the Erie circuit, setting aside as excessive a verdict of $4,500 against the defendant for personal injuries inflicted upon the plaintiff.

      Daniel N. Lockwood, for app’lt; John K. Patten and C. H. Sickmon, for resp’t
   Macomber, J.

The plaintiff received personal injuries by stepping through a bridge maintained by the defendant across Tonawanda creek, in the village of Tonawanda, on the 6th day of August, 1888. The action was tried at the Erie circuit, and resulted in a verdict in favor of the plaintiff of $4,500, which the learned justice presiding at the trial has set aside as excessive. The plaintiff was married in June, 1888, and at the time of receiving the injury was twenty-three years of aga A defect in the bridge, being the absence of a plank- in the walk designed for pedestrians, caused the -injuries complained of. While passing along, exercising the usual care of persons of ordinary prudence under like circumstances, her foot and leg went through this hole down to a beam underneath, resulting in a very serious sprain of the ankla

The accident developed into a chronic inflammation of the synovial membrane or lining of the ankle joint, called synovitis. Shortly after the injury a physician was summoned, who prescribed for the injury, and, as the plaintiff testified, advised her to move about and take exercise upon her feet. The fact, however, that such advice was given was denied by this physician. The expert medical evidence establishes the fact, that exercise upon the foot, under the circumstances, was injurious to the patient and greatly retarded recovery, even if the same did not aggravate the nature of the injury. ít is very doubtful, however, if the amount of exercise which the plaintiff took upon her feet after this injury contributed in any material part to the serious nature of the trouble which existed up to the time of the trial and which, under the evidence, is likely to follow her through life.

The learned trial judge instructed the jury very fully upon this branch of the case. He told them that any aggravation of the injury by walking upon the foot or by not giving to it that degree of care and attention which persons ordinarily do under the same circumstances could not be charged against the defendant, and that all the defendant was bound to pay, if anything, was for the injury which immediately resulted from the accident itself, and that no recovery could b§ had for an improper use of the foot and ankle from time to time, if such use in any manner prevented its restoration, or increased or aggravated the extent of the injury itself. These were instructions which the defendant certainly could not complain of. They were probably quite as favorable to the defence as could be demanded in its behalf They, for aught that appears from the record, were closely observed by the jury.

The learned justice, in granting a motion for a new trial, has, it seems to us, fallen into an error. He says in his opinion: “Neither party upon the trial gave evidence to prove what would be the probable extent or duration of such an injury with proper treatment of it on the part of the person receiving it The jury were, therefore, left without substantial facts from which they could determine the probable duration or result of this injury. And in considering the case there is reason to believe, from the amount of their verdict, that they failed to discriminate, as they should be expected' to do, between the injury really resulting from the sprain of the ankle and that received by the plaintiff by her subsequent use of it Its condition, as it finally became, was shown to have been probably incurable. But whether that would result from the mere injury itself or only from that injury combined with an improper use of the ankle, was not stated by the witnesses. It is reasonable, however, to infer that the physicians did not intend to testify that the injury itself would have been permanent if this use of the ankle had not been made by the plaintiff.”

In our judgment there is nothing in the case which called upon the plaintiff to give evidence of the character indicated by this portion of the opinion of the learned justice, by which an attempt should be made, by means of expert testimony, to discriminate between the actual injuries and the natural consequences thereof, on the one hand, and such injuries and the consequences resulting from the use which the plaintiff actually made of her foot and ankle after receiving such injuries. It would probably be impossible, even in the realm of expert testimony, for a physician accurately to describe and apportion that part of the condition of the ankle which resulted necessarily from the injury, and that part of it which followed its injudicious use. The case contains no promise of the production of such evidence upon another trial.

No question of veracity between the plaintiff and the physician who was first called in her case can be of any moment in the consideration of the questions here involved. Under the uniform testimony of the physicians, it would seem to be the universal opinion of men stilled in the art that the best mode of treatment of any injury of this- description would be absolute rest. This certainly would be the case if the nature and extent of the injury had been accurately known, or discernible by any inspection which might have been made of the ankle. But, as one of the •doctors testified, it was a blind and obscure injury, giving no outward manifestations of its character, and hence difficult of treatment The plaintiff has evidently given her testimony, as to her medical advice, in perfect good faith. She may be, and probably is, mistaken in the full scope and meaning of the advice so given. The fact, however, that she was advised to take exercise at this time was undoubtedly true, for it is natural, under the circumstances, that she should be so advised, as she was pregnant, a child being born unto her March 15, 1889.

We cannot, therefore, accede to the proposition made by the learned counsel for the defendant, that there rested upon the plaintiff the absolute necessity of not using her ankle until such time as the same should be fully restored; nor that the defendant is in any position to claim that the bare possibility of such improper use of the ankle should redound to its benefit

There is no principle of law which supports such contention where the good faith of the party is not, but his ignorance alone is impugned. The duty rested upon the plaintiff to take proper care of the injured ankle, and not wantonly, carelessly or needlessly to do any act which would aggravate the injuries to it. Her duty towards that member, however, was not so great and exclusive as to require her, in the absence of competent and positive medical instructions, to ignore and openly disregard the welfare of the rest of her members and of her whole body. So long as she acted in good faith, and according to such lights as she had, the defendant, the party guilty of the wrong, cannot be permitted to complain of her mistake of judgment in the treatment of her ankle; nor successfully to claim that no liability should attach to itself because the amount of compensation which should be awarded against it for its wrong is difficult or impossible of separation from the aggravations thereof accompanying an honest but mistaken treatment. Hickinbottom v. D., L. & W. R. R. Co., 15 N. Y. State Rep., 15.

The negligence of the defendant was the proximate cause of the injury to the plaintiff, and it is liable for the actual damages which naturally followed thereon, where the party injured acted, in respect to the treatment, in good faith and without a conscious disregard of consequences. Lyons v. Erie Ry. Co., 57 N. Y., 489 ; Sauter v. N. Y. C. & H. R. R. R. Co., 66 id., 50; Radman v. Haberstro, 17 N. Y. State Rep., 497.

While, therefore, recognizing the power and duty of the court to grant a new trial for excessive damages, as was held in Houghkirk v. President, etc., D. & H. C. Co., 92 N. Y., 219, we think that the jury in this instance was guided by correct rules of law in the charge of the court; was guilty of no passion, prejudice or other unworthy motive in rendering its verdict, and that its conclusion was justified by the evidence.

It follows, therefore, that the order appealed from should be reversed, with costs, and judgment ordered for the plaintiff upon the verdict

Dwight, P. J., and Corlett, J., concur.


text:
    George R. Clark, Resp’t, v. Simon P. Swift, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Reference—Failure to bequest findings—Effect of.
    On appeal from a judgment entered upon the report of a referee the appellant cannot claim a reversal on the ground that the preponderance of evidence was in his favor where the evidence was conflicting and he did not request a finding in his favor.
    Appeal from a judgment entered in Erie county, February 28, 1889, on the report of a referee.

      H. J. Swift, for app’lt; Charles F. Whitcher, for resp’t.
   Macomber, J.

This action was brought to recover a balance of an account for labor and services rendered by the plaintiff to the defendant, beginning January 1, 1874, and ending May 1, 1887. The complaint sets forth such employment to be that of a traveling salesman between these dates. It contains also certain other allegations of an adjustment of accounts and a settlement thereof when a balance was found due to the plaintiff December 5, 1874. But these allegations, touching an adjustment of accounts, are unimportant, inasmuch as the referee has found against the plaintiff thereon. The answer does not deny the contract as it is set forth in the complaint; on the contrary it substantially admits that the plaintiff was entitled to a salary of forty dollars a month between August 4th and May 1st, 1887. There was an allegation in the complaint for additional services, amounting in all to sixty-five dollars per month, during four months when the defendant was absent attending to legislative duties at Albany.

The whole case presented á question of fact, and, with" the exception of a discrepancy between the dates of employment and the claim to additional services, there is no substantial dispute between the parties.

The appellant, however, now presents two questions on this appeal under which he claims there should be a new trial of the issues. One of them is, that the referee has failed to make allowances for lost time of the plaintiff while in such employment But to this it may be said, that there is no defence of the kind set forth in the answer, and that the evidence considered as a whole shows that such rebate is not warranted by the fact The other question \ presented relates to the allowance of $100 for extra compensation * of the plaintiff during the four months above mentioned. This allowance as made by the referee to the plaintiff is supported by the testimony of both the plaintiff and his wife; and while the defendant controverts it in his evidence, the decision of the case made by the referee was based upon what appears to us, as well as to him, to be a fair preponderance of the evidence. A further answer to the points thus presented upon the appeal is the fact that the appellant did not request the referee to find upon either of these matters in favor of the defendant, and that' consequently there is no exception in the case to the refusal or failure of the referee thus to hold. Under § 993 of the Code of Civ. Pro., it is the duty of a party, where there is conflicting evidence, to request a finding in accordance with the contention of the party, and in case of refusal of such request it would be the duty of the appellate court to look carefully into the evidence and determine whether or not the conclusion reached by the referee was correct. A refusal to find upon the fact one way or the other would be a ruling upon a question of law, and thus available to the appellant upon the appeal. The finding by the referee, or by the court on a trial without a jury, of a fact which was not supported by any evidence, would, of course, be an error of law, and available, upon appeal under the same provision of the Code ; but this is not such a case. The appellant has not placed himself in a position to claim that the preponderance of the evidence was in his favor because he has omitted to ask the referee to find in accordance with his contention. That there is some evidence in the case to support the finding of the referee is not even disputed by appellant’s counsel.

Under these circumstances it is our duty to affirm the judgment We have, however, looked into the testimony and do not. hesitate to say that the referee's conclusions were well supported by a preponderance of the evidence before him.

The judgment appealed from should be affirmed.

Dwight, P. J., and Corlett, J., concur!


author: Corlett, J.

text:
    In the Matter of the Application of George H. Brown, Adm’r, to Sell Real Estate to Pay Debts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Evidence—Code Civ. Pro., § 829.
    Evidence of witnesses that they heard a conversation between a decedent and another in which they took no part is admissible, although it be claimed that their testimony was prearranged so as to escape the statute, but that fact is to be considered in determining their credibility.
    2. Same.
    Evidence that the witness saw the deceased in a certain place on a day when it is claimed that he made a payment on the account in question, is. not within the prohibition of § 829 of the Code, where nothing personal is claimed to have occurred between them
    Appeal from that portion of the surrogate’s decree of Orleans * county which disallowed the claim of the appellant, Mary J. Malay.

      John H. White, for app’lt; Albert C. Burrows, for resp’i
   Corlett, J.

Isaac G. Brown died at Albion, intestate, in March, 1889, leaving real and personal property in that village. In December of the same year, George H. Brown was appointed administrator of his estate, and letters were issued to him. He filed an inventory showing personal property to the amount of $28.03, which was afterwards sold for $25.03. The above was all the personal property.

The intestate left some debts which the personal property was not sufficient to pay. The real estate owned by him was worth •about $1,000. The intestate left five children of whom the appellant was one. The administrator in June, 1890, filed a petition for the sale of the real estate to pay debts. On the return day of the petition, June 23, 1890, the appellant, Mary J. Malay, filed claims against the estate. The first was as follows:

“ 1865. To cash received of the N. Y. C. Railroad, $500.00. Interest from 1865 to be added."

The balance was for services in taking care of the deceased and his wife, for which claim she alleged she was to have a deed of the house and lot.

A trial was had before the surrogate; much evidence was taken, some of it conflicting. In October, 1890, the surrogate rejected all the items of the appellant’s claim, and made a decree directing a sale of the real estate to pay debts. The surrogate wrote an opinion, in which he stated, in substance, after a review of the testimony, that he is not convinced of the truth or justice of the appellant’s claim for the railroad money above quoted; and also finds on that subject that no payment was made upon it as claimed by the appellant, and it was, therefore, barred by the statute of limitations. The rest of the claims are rejected mainly upon the ground that whatever services were rendered were as a daughter, and that the evidence did not warrant a finding of the alleged contract upon which her claim rests.

The learned counsel for the appellant insists that the surrogate fell into an error in omitting to consider all the testimony. He then quotes that portion which he claims was overlooked, which consisted of alleged conversations between witnesses and the deceased. The opinion shows that the surrogate did consider the •statements made by the deceased, but he declined to find that those statements with the other evidence were sufficient to establish the appellant’s claim. The case fails to show that the learned surrogate did not consider all the evidence.

The learned counsel also contends that the surrogate erred in the admission of the evidence of several witnesses who testified to the effect that they heard a conversation between the deceased and another, in which they took no part. The objection was based upon the ground that such conversations amounted to a personal transaction between the deceased and the witnesses. While it may be true that the testimony of those witnesses was pre-arranged so as to escape the statute and render their testimony admissible, still that aspect of the question bore upon their credibility, and it' was the province of the surrogate, before whom they were examined, to decide what weight should be attached to the evidence. The evidence, within the rule, seems to be admissible. Cary v. White, 59 N. Y., 336; Holcomb v. Holcomb, 95 id., 316.

Exception was also taken to the refusal to allow the following question to be answered: “ What was the condition of your father’s-health several years before he died ? ”

It . is obvious that the evidence, if admitted, would simply have borne upon the question whether her father needed the care which, the- appellant claims she bestowed. The decision of the surrogate-did not turn upon the question of the appellant’s rendering the-services, but upon the existence of the alleged contract.

A son of the deceased was allowed to testify, under objection and exception, that he saw the deceased in Medina on a certain day when it is alleged that money was paid on the railroad claim which took it out of the statute of limitations.

No case has been cited going the length of holding that such testimony is within the prohibition contained in § 829 of the-Code of Civil Procedure. Nothing personal occurred between-them. It only bore upon the probability of the making of the-alleged ten dollar payment. But the surrogate’s decision is based, not only upon the ground that this payment was not proved, but-upon the other ground that the proof, as a whole, failed to establish the existence of the claim.

It is established that when the evidence is conflicting on questions of fact, the appellate court is not warranted in reversing upon the ground that in its opinion the trial court should have-reached a different conclusion. To justify a reversal it must appear that the proofs so clearly preponderated in favor of a contrary conclusion that it could be said with a reasonable degree of certainty that the trial court erred in its conclusions. Baird v. Mayor etc., of New York, 96 N. Y.. 567.

_ The surrogate, who saw the witnesses and heard them testify, was in a much better position to judge of their credibility than the appellate court. Boosav. Smith, 17 Hun, 138.

It follows that the decree of the surrogate must be affirmed.

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


author: Follett, Ch. J.

text:
    Alfred Colville, Resp’t, v. William J. Miles, App’lt.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    Landlord and tenant—When title to crops reserved to landlord.
    Plaintiff leased a farm to one Kane,‘with stock in which he_ and Kane-were jointly interested, for an annual rent of $960, payable in monthly installments. Kane, after four months, left, indebted to plaintiff in $100, and to others. The hay, oats and straw having been seized upon attachments, plaintiff replevined them. Upon the trial plaintiff did not testify that the title to the hay and grain was reserved by him, but that the tenant, agreed to feed enough of it on the farm to support the stock. Held, that plaintiff was not entitled to recover in a replevin action, as this did not amount to a reservation of title in the plaintiff, but was an executory contract, for a violation of which he could have recovered damages.
    Appeal from a judgment of the general term of the supreme court of the second judicial department, affirming a judgment entered on the verdict of a jury.
    This action, replevin, was begun October 18, 1886, to recover a quantity of hay, oats and straw grown in that year by a tenant on a farm owned by the plaintiff, which, in April, 1884, was leased, with stock in which the landlord and tenant were jointly interested, for an annual rent of $960, payable in monthly installments of eighty dollars each. The tenant, Patrick Kane, occupied the farm until the 1st of October, 1886, when he left, indebted to the plaintiff for $100 rent, and to various persons. On the 5th, 6th and 14th of that month the defendant, a constable, seized a part of the hay, oats and straw grown on the farm, by virtue of six warrants of attachment issued by a justice of the peace. The property was taken by the sheriff under the process issued in this action and was subsequently delivered to the plaintiff.
    From April, 1880, to April, 1884, Kane worked the farm on shares, he having one-third and the plaintiff two-thirds of its products, but in April, 1884, the farm, the stock owned by the landlord, as well as that in which both were interested, was let as above stated. On the trial the value of the property was assessed at $1,000 and the title was found to be in the plaintiff.

      M. M. Kane, for app’lt; John Vincent, for resp’t.

       Reversing 10 N. Y. State Rep., 353.

   Follett, Ch. J.

Frequently the title to the products of lands leased for agricultural purposes is reserved by the lessor, or a lien is created as security for the payment of rent, but no such claim is put forward in this case. It is not asserted that the landlord and tenant owned the products jointly, and title was in the one or the other in severalty.

This action was brought and maintained on the theory that the plaintiff held the legal title to the property in question. The only witness who gave evidence in support of the action was the plaintiff, who testified: “ As near as I can recollect he (Kane) was to take charge of the stock; he was to raise enough stuff on the place to feed the stock, and if there was not enough to carry them through the year he was to buy what was necessary to carry it out, which he has not been doing for the last two years; the stuff was not to be sold; there was forty odd head of cattle; you do not raise stuff to sell when you have cattle. * * * The hay and grain were not to be removed, 'it was not raised to sell; it belonged to the cattle.

“ Q. Did you have any interest in the farm after you made the lease to Mr. Kane, or the products of it in any way ? A. No, I gave that up with the lease of the cows; I leased the cows and leased everything; I gave him all that the ground produced ; I never received any of the products for the sale of young stock, or produce sold from said farm. I never gave any direction about working the farm, or made any inquiry of Kane as to what he was using on the farm or what he sold off the farm. I did not care so long as he raised the milk; I told him he could use anything he wanted except the stock. I was entitled to two-thirds of the stock when it was sold ; he sold it all and pocketed it, and I never got my two-thirds. * * * He put on seven cows ; he kept sheep on the farm. I do not know what he did with them. * * * When the farm was leased the hay and grain was not mentioned at all; he was to raise enough stuff on the farm to keep the cattle; if there was not enough raised on the place he was to buy what was requisite; what was raised on the place was to be fed to the cattle. * * * There was no conversation particularly in which anything was said about feeding the cattle from the products raised on the farm ; he was to raise the stuff and support the cattle ; if the place did not support the cattle he was to buy whatever was necessary; that was the agreement I cannot state what he said. I am stating what I said. I said it and he agreed to it”

This is all of the testimony given in behalf of the plaintiff which tends to show that he reserved the title to the products of the farm. The tenant, and a witness who heard the bargain, testified that it was not agreed that the crops were to be fed on the place, and that no reservation was made in respect to them.

The court instructed the jury, in effect, that if the plaintiff’s evidence was true, the title to the property was in him, and that he was entitled to recover, to which the defendant excepted. The court was also asked to dismiss the complaint upon the ground that the plaintiff had failed to establish title, which was refused, and an exception taken.

In this we think the court erred. If the plaintiff had the title to this property, it might have been taken in execution for his debts, or he could have sold it to a purchaser in good faith, and for value, to the exclusion of the tenant and all claiming under him. Such consequences do not flow from the contract testified to by the plaintiff. He did not testify that title to the hay and grain was reserved by him, but that the tenant agreed to feed -enough of it on the farm to support the stock. This did not amount to a reservation of title, but was an executory contract, for a violation of which the landlord could have recovered damages.

The question involved in this case has been several times considered by the supreme court of this state. In Johnson v. Crofoot, 53 Barb., 574; S. C., 37 How., 59, a farm was let by a written lease for an annual money rent The lease contained a stipulation that the tenant “ should feed out the hay and straw in a careful and farmer-like manner,” and it was further agreed that if sufficient hay and straw was not raised to keep the stock, the landlord was to supply the deficiency. It was also provided: “ The parties of 'the first part (landlords) are to have full title, with the privilege of taking possession at -any and all times of any and all products of the farm in payment of the balance due on the rent.” A judgment was recovered against the tenant during the existence of the lease, and an execution issued to the defendant, who levied upon and sold about sixty tons of hay raised on the farm by the tenant, and then being in his actual possession on the farm.

The plaintiff brought trover, claiming that under the lease the title to the hay never passed to or vested in the tenant, but that it was to remain on the farm for the purpose of feeding the stock. Verdict was directed for the defendant at the circuit, which direction was sustained at general term, the court saying: “ But it is argued by the counsel for the plaintiff that it (lease) was not a. mortgage, and that the title to such hay as should grow on the place did not pass to Tift (the tenant) because he stipulated in the lease that he would cut and get in in good order all the hay, and that he would feed out the hay and straw in a saving manner, and because it was further stipulated that he was to have the privilege of keeping a span of horses all the time, and a third horse during haying, which, it is claimed, is inconsistent with the idea that the title to the hay was to be in him.” In answer to this contention, the court said: “ The covenant on the part of Tift was to save all the hay and straw, and to carefully feed it to the stock, and to keep but two horses, except during haying time, was only an agreement binding on him at law, and if he chose to keep more horses, or to sell and improvidently use the hay, it did not authorize Miller and Rumble, the lessors, to interfere with him, either by taking possession of it (for they were entitled to possession only as security for the unpaid rent), or to restrain such use of it by injunction.” In McCombs v. Becker, 3 Hun, 342 ; S. C., 5 T. & C., 550, the defendant leased his farm, and forty cows for a money rent It was stipulated that the tenant should take good care of the cows, and in case the hay raised on the farm should be insufficient to winter them, the landlord should supply the deficiency at the rate of three dollars per ton, and if there should be a surplus, the landlord should have it and pay the tenant three dollars per ton for it A judgment was recovered against the tenant and an execution issued, under which part of the hay was purchased by the plaintiff, and afterwards the defendant (the landlord) converted it to his own use. In an action brought for the conversion, it was held that the plaintiff was entitled to recover, the court saying: “ True, the landlord was to have the surplus hay, and pay three dollars per ton for it, but this was an executory contract for its purchase, the breach of which would be compensated in damages. It follows that the hay was the tenant’s, and subject to sale upon execution against him.”

Hawkins v. Giles, 45 Hun, 318 ; 12 N. Y. State Rep., 426, arose over a lease of a farm and seven cows from April 1, 1883, to April 1, 1884, for $175 rent The lessee agreed “ to feed out all the fodder on said farm that is raised on said farm * * * and winter said stock, seven cows, through to grass in the spring of 1884 on hay.” In December, 1883, an execution creditor of the lessee levied upon about twenty-five tons of hay grown upon the farm during that year, which was sold to the plaintiff in the action. The owner of the farm prevented him from taking the hay, claiming: (1.) that the tenant left without fully paying the rent; (2.) that the hay was required to keep the cows through to grass of 1884; (3.) that he was entitled to the manure which would be made by the hay being fed on the farm. It was held that the title to the hay was in the tenant and was subject to sale under the execution, and the judgment entered in favor of the plaintiff was affirmed.

Steffin v. Lockwood, 4 Civ. Pro. Rep., 179; S. C., 17 N. Y. Wk. Dig., 418, arose over an agreement to cultivate a farm on shares, the occupant agreeing to deliver “ one-half of all the products of said farm to (the owner) Mary A. Lockwood.” An execution was issued against the occupant and levied upon grain grown on the farm. It was held that the title to the property was in the occupant, the owner having a lien.

In Turner v. Bachelder, 17 Me., 257, a farm, with tools, four .cows and other stock, was leased for a term of years, the landlord to have “ one-half of all the corn and grain and potatoes that shall grow on the farm, and half of the calves, and half of the lambs, and half of the wool. There was a clause in the lease that the lessor was to furnish four cows, one horse and .other stock sufficient to eat up all the hay that should grow on said farm.” The hay was levied upon and sold by a creditor of the lessee, who was held to have a leviable interest in it, and that the lessor had no title to it

In Symonds v. Hall, 37 Me., 354, a farm was worked upon shares. By one of the terms of the agreement “ one-half of the hay cut on the farm is to be eat by the stock kept on the farm, and the other half of the hay is to be divided equally between the contracting parties.” An execution creditor of the occupier seized and sold the hay. The owner of the land brought trover. It was held that the title to the hay, before division, was in the occupier and that the plaintiff was not entitled to recover for the undivided hay sold under the execution.

In Orcutt v. Moore, 134 Mass., 48, the principle decided in the three cases last cited was held to be the law in Massachusetts.

The case at bar was decided upon the authority of Heald v. Builders' Mutual Fire Ins. Co., 111 Mass., 38, in which it was held that a clause in a lease similar in effect to the agreement testified to by the plaintiff amounted to a reservation of the title to the owner of the land. This case seems to be in conflict with the cases decided by the supreme court of this state, and believing the rule declared by our courts rests upon well recognized principles, we must decline to follow the supreme court of Massachusetts, and overrule the judgments of our own courts.

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

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


author: Vann, J.

text:
    Charles Werner et al., Resp’ts, v. Minna G. Tuch et al, App’lts.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    Mortgage—Foreclosure—Tender.
    Where mortgagors, in an action of foreclosure, demand in their answer that part of the mortgaged premises be released pursuant to an agreement of the mortgagees contained in the mortgage, no effect will be given to a tender made by the mortgagors of a sum sufficient to obtain such release unless the tender is kept good by bringing the money into court.
    Appeal from a judgment of the general term of the supreme court, in the fourth' judicial department, affiming a judgment entered upon the decision of the court at special term.
    Action to foreclose a mortgage.

      The facts, so far as they are material, appear in the opinion.

      Frederick Collin, for. app’lts; A. J. Simpson, for resp’ts.

       Affirming 23 N. Y. State Rep., 680.

   Vann, J.

The mortgage in question, dated April 9, 1881, was given to the plaintiffs by the defendants Tuch to secure the payment of the sum of $5,260, being- part of the purchase price of the premises therein described. The principal was payable May 1, 1891, and the interest semi-annually, at the rate of five per cent per annum. There was an interest clause in the usual form, the period of grace being sixty days. The premises embraced three adjoining parcels of land in the city of Elmira, known as the Eastern, the Central and the Western, and also a house and lot in the village of Blossburg, Pennsylvania. The mortgage provided that if the mortgagors should sell either of the parcels, the mortgagees would release to the purchaser the portion so sold free and discharged from the lien of the mortgage, upon receipt of the sum of $2,500 for the release of the Blossburg parcel; $1,750 for the Eastern, and $850 each for the Central and Western parcels. It was further provided as follows: “ The said sums, when paid, shall be credited on the gross amount due hereunder and shall be in partial liquidation and exoneration hereof, but in no event shall the said mortgagees receive a greater sum than the said principal sum of $5,260, with the interest and accretions hereunder. In case the mortgagors shall exercise their privilege, as next hereinafter granted, of paying off any part of the principal at any time other than upon a sale of the premises heréin described, then the amount to be paid to secure the release of any of the parcels upon a sale shall abate proportionately. And it is hereby further understood and agreed that the mortgagors have the privilege of paying off any part of the principal sum during the term hereof, provided they shall not be otherwise in default, all payments of principal and interest to be evidenced by endorsements on the bond, and not otherwise.”

The mortgage was collateral to a bond, which, in addition to the usual stipulations, contained a provision that all the agreements mentioned in the mortgage “ in reference to releasing portions of the premises upon a sale of any of the parcels of land therein described and also in reference to any and all payments to be made on account of the principal or interest of this bond, or otherwise, shall be considered and shall be a part of this bond or obligation as if incorporated therein.”

June 11, 1883, the defendants Tuch paid to the plaintiffs the sum of $850, and thereupon the Westerly parcel was duly released from the lien of the mortgage. No other part of the principal has been paid and the interest due May 1, 1887, is still unpaid. July 11, 1887, or more than sixty days after said default, this action was commenced to foreclose said mortgage, and a Us pendens in the usual form was filed, the plaintiffs having elected to call the whole amount due. The defendants Tuch served an answer, and in November, 1887, an amended answer, and in December following, Theresa L. Hoppe, their daughter, purchased the Central and Easterly parcels and received separate conveyances of the same, recorded respectively December 3, 1887, and February 18, 1888.

January 3,1888, Mrs. Hoppe and the defendants Tuch tendered the plaintiffs the sum of $2,(300 of principal and $185 for interest and costs and demanded the release of the Central and Easterly lots. Releases, proper in form, were at the same time presented and a demand made that the plaintiffs execute the same as a condition of receiving the money. Notice was also given of the conveyance to Mrs. Hoppe. The plaintiffs refused to execute the releases, or to receive the money, upon the ground that they were entitled to the whole amount unpaid upon the mortgage. The money tendered was not subsequently kept good, nor paid into court, but the same was used, wholly or in part, by the person to whom it belonged and by whom the tender was made in behalf of the defendants Tuch and Hoppe.

The cause was tried in February, 1888, and, shortly before, a supplemental answer was served in behalf of Mr. and Mrs. Tuch, setting up said tender and demanding “ that by the judgment of the court * * * the said two parcels of land for the release of which, or to procure the release of which, the said sums were and still are tendered the said mortgagees, be released from the lien and effect of the said mortgage, and that any judgment of foreclosure which may be rendered herein be limited to the premises and parcels of land described in said mortgage other than those hereinbefore referred to and described and to procure the release of which from the said mortgagees such tender of said amount and amounts was and were and is made.”

The trial court held the tender insufficient and rendered judgment for the plaintiffs. The general term affirmed upon the grounds that, as the mortgagors were in default, they were not in a situation to enforce a release; that the tender, being conditional, was insufficient, and being made the basis of an affirmative claim, should have been kept good.

Without here considering the other grounds, we base our affirmance of the judgment upon the one last named.

Assuming that the conditional tender, although not sufficient to discharge the mortgage debt, was sufficient to call into action the covenant to release, still we are of the opinion that under the circumstances the sum tendered should have been kept good and brought or paid into court

The general rule is, as laid down in the noted case of Kortright v. Cady, 21 N. Y., 343, that when the entire sum secured by a mortgage is due, a tender of the amount unpaid, at any time before a sale in foreclosure, extinguishes the lien, and that, as it leaves the debt unaffected, it is not necessary to keep the tender good or pay the money into court. We do not think, however, that the facts of this case bring it within the general rule. The tender in question was not made under the covenant of the mortgagors to pay the debt, but under the covenant of the mortgagees to release the .land, because only the sum required to procure a release of part of the lands was tendered; not the amount required to pay the mortgage.

The object was not to discharge an obligation of the defendants but to compel the performance of a promise by the plaintiffs. This was so stated, in substance, by the agent of the mortgagors when he made the tender, was well understood by all who were present and is conceded by the learned counsel for the defendants in his points. This expressed purpose was followed by a supplemental answer alleging the tender and demanding judgment for the release of the two parcels “to procure the release of which the said sums were tendered." In other words, the tender was made for the purpose of basing a demand for affirmative relief upon it, and where that is the case the rule as stated above does not apply, but a different rule, founded on the principle that he who seeks equity must himself do equity, is called into action, and compels the mortgagor to keep the tender good before it will allow him to maintain an action to destroy the lien of the mortgage on account of a tender and refusal. As was said by this court in Tuthill v. Morris, 81 N. Y., 94, 99: “Although the authorities cited sustain the proposition that when a tender has been duly made of the full amount due it will discharge the lien and be a good defence against its enforcement, without the tender being kept good, yet we are clearly of the opinion that it should be kept good in order to entitle the mortgagor to the affirmative relief which he seeks in this action and which the judgment awards him, viz.: the extinguishment of the mortgage."

Where the mortgagors, although defendants, assume the position of plaintiffs and demand in their answer that part of the mortgaged premises be released pursuant to an agreement of the mortgagees contained' in the mortgage, no effect will be given to the tender unless the money is brought into court. It would be inequitable to extinguish the security in part, without giving to the holders of the mortgage the benefit of the proportionate payment for which they had contracted. A tender, in order to become the foundation of an action in equity, must be kept good, or it will be wholly ineffectual. Breunich v. Weselman, 100 N. Y, 609, 610: Halpin v. Phoenix Ins. Co., 118 id., 165, 178; 28 N. Y. State Rep., 788; Day v. Strong, 29 Hun, 505.

The position of the defendants, that they did not ask for affirmative relief, has no foundation in the record. While they did not demand in their supplemental answer that the plaintiffs be compelled to execute a release, they did demand that a release be decreed by the court, as appears from the quotation already made. At the beginning of the trial their counsel announced “that the only defense in this case made by the defendants was under the supplemental answer, and that they withdrew their amended answer and waived all rights thereunder.” That statement did not withdraw the counterclaim plainly set forth in the supplemental answer, nor relieve the defendants from the consequences of the position that they deliberately took when they asked for affirmative relief in the last of the three answers served by them and the one upon which they stood when they went to trial.

The judgment should be affirmed, with costs.

All concur.


author: Parker, J.

text:
    Jean Baron et al., Resp’ts, v. Isidore S. Korn, App’lt.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    Nuisance—When a private nuisance gives a right to relief in equity —Adverse possession.
    Upon one side of plaintiffs’ lot was an alleyway which had been used by plaintiffs for more than forty years, and since 1883 for the purpose of carrying barrels from the street to the rear of plaintiffs’ property. Defendant’s easterly wall formed the westerly boundary of the alleyway, and plaintiffs’ cistern extended to the west line of defendant’s house; the door of the alley on the street was locked, plaintiffs having the key. Held, that as these facts justified a finding that plaintiffs had acquired a title by adverse possession, the court in equity could interfere and prevent defendant from erecting new buildings, the foundation of which encroached upon the alley in such a way as to prevent the bringing in of barrels without requiring plaintiffs to first establish their title by an action at law.
    Appeal from an order of the general term of the supreme court, first department, reversing a judgment which dismissed plaintiffs’ complaint.

      Lewis Sanders, for app’lt; Carlisle Norwood, Jr., for resp’ts.

       Affirming 21 N. Y. State Rep., 62.

   Parker, J.

This is a suit in equity brought to restrain the defendant from erecting a portion of a building on lands to which plaintiffs asserted title; to compel the removal of so much of the foundation wall as had been constructed at the time of the commencement of the action; to cause the land to be restored to its former condition, and for damages occasioned by the action of the defendant.

The defendant challenged plaintiffs’ assertion of title, and alleged title in himself.

The locus in quo is a narrow strip of land nine inches in front on Bleecker street, by seventy-five feet deep, and constituted a part of an alleyway, two feet and eleven and one-half inches in width, occupied and used by the plaintiffs and their predecessors in title for many years prior to the commission of the acts by defendant of which plaintiffs complain.

The plaintiffs' lot and defendant’s lots were formerly a part of the Bayard farm, which was surveyed and laid out into lots prior to 1818. On Bleecker street, between MacDougal and Sullivan streets, there were eight lots, with a frontage on Bleecker street each of twenty-five feet, and a depth of 100 feet.

The record title established by plaintiffs commenced with a deed dated April 22, 1818, by which was conveyed four of such lots, commencing at MacDougal street, and being a plot 100 feet square. The trial court has found that this deed did not convey any portion of the nine inches in controversy.

The defendant is the owner of the four remaining lots, and derives his title through John Oothout, to whom they were eonveyed by deed, bearing date June 4, 1824, in which they were described as being bounded easterly by Sullivan, and southerly by Bleecker street, “ containing together 100 feet on each of the four sides thereof.”

Now, while it is found that the deed of 1818, through which plaintiffs derive title, did not convey the lands in dispute, it appears from the opinions both at special and general term that those courts regarded the facts as establishing title thereto in the plaintiffs by adverse possession, and with that view we concur.

As has already been stated, John Oothout acquired title to the lots, now owned by the defendant, in 1824. Thereafter, and on October 25, 1838, plaintiffs’ lot was conveyed to Leavina Post; the dimensions given were twenty-five feet front on Bleecker street, with a depth of seventy-five feet, and its easterly boundary was described as being a lot of ground of John Oothout This description was followed in the several succeeding conveyances, down to and including the deed to plaintiffs, which bears date March . 20, 1883. A two-story mansard roof, brick front house had for more than forty years stood on the lot, its width on Bleecker street being twenty-two feet and one-half inch; and the alleyway between it and the easterly wall of defendant’s building was two feet eleven and one-half inches in width, together constituting a frontage of twenty-five feet, which accords with the frontage of said lot on Bleecker street, as given in all the deeds, including and subsequent to the deed of 1838.

More than forty years prior to this action, five houses were erected on the plot of ground now belonging to the defendant, the most easterly wall thereof constituting during such period the westerly boundary of the alleyway, as maintained and used by the plaintiffs and their predecessors. Such boundary was further maintained by a fence, which was a continuation of the line of the wall extending from the house towards the rear of the lots, and to the easterly side of a shed, occupying the rear of the lot claimed by plaintiffs. Within the shed there was a partition wall built in line with the fence, commencing at a point inside the shed opposite the point where the fence met the shed on the outside. Back of the alleyway was a cistern on plaintiffs’ premises, which extended easterly up to the line of the wall of defendant’s house. There was a door at the entrance to the alleyway on Bleecker street, adjusted to a door frame; the westerly side of the door frame was a strip of wood fastened to the defendant’s house; the door had a lock, and when locked the bolt went 'into such strip of wood. When the plaintiffs took possession under their deed, the key of the alley-way door was given to them, and thereafter kept in their exclusive possession and control. The wall, fence and alley-way door left the defendant without means of access to any portion of the premises constituting the alley-way.

We have thus briefly alluded to some of the facts found by the trial court, which, as we think, are adequate to justify a finding that title to the alley-way had, prior to the commencement of this action, been acquired by adverse possession.

While the trial court entertained the same view, it found, as a conclusion of law, “ that this court, sitting in equity, has no j urisdiction of the cause of action sought to -be proved in this suit," and, therefore, directed judgment for the defendant.

Assuming plaintiffs’ title to be established, the authority of the court in a suit in equity to interfere and prevent an appropriation of their lands to the use of another for building purposes cannot be longer questioned, not only for the purpose of avoiding multiplicity of actions, but also because they were without adequate remedy at law.

The plaintiff, Jean Baron, was a wholesale wine merchant and im • porter of wines, which he purchased in casks, using the alleyway for the purpose of conveying the casks from the street to the rear of the yard, thence they were taken into his cellar for bottling, and this the erection of defendant’s wall would wholly prevent.

This special injury could not well be provided for by any rule of damages. Again, it would be impracticable, if not impossible, for the plaintiffs in ejectment to regain actual possession of that portion of the alleyway occupied by the wall.

The sheriff might not regard it as his duty to deliver possession by taking down the wall, which would burden him. with the risk of injury to other portions of defendant’s building not included within the nine inches. But in equity the obligation to remove can be placed directly on the party who caused the wall to be erected, and it frequently affords preventive relief against the commission of trespasses, such as the excavation of complainant’s soil by an adjoining owner, the destruction of his wall in building operations on adjacent premises, and the encroachment on his rights by the diversion of a stream of running water from its natural channel. Story’s Eq. Jur., §§ 928, 929; High, on Injunctions, §§ 704 and 707; Creely v. Bay State Brick Co., 103 Mass., 514; Corning v. Troy Iron & Nail Factory, 40 N. Y., 191; Fox v. Fitzsimons, 29 Hun, 574; Wheelock v. Noonan, 108 N. Y., 179; 13 N. Y. State Rep., 110; Avery v. N. Y. C. & H. R. R. R. Co., 106 N. Y, 142 ; 8 N. Y. State Rep., 612.

It appears to have been the view of the trial court that the circumstances of the case made it proper to refuse plaintiffs relief in equity until after their right to the locus in quo had been established at law. Such is the general rule in courts of equity, but it has exceptions. T. & B. R. R. Co. v. B., H. T. & W. R. R. Co., 86 N. Y., 128. Judge Finch, speaking for this court in Wheelock v. Noonan, supra, said that “the modern system of trying equity cases makes the rule, less important * * * Indeed, I am inclined to deem it more of a rule of discretion than of jurisdiction.”

If the question whether the plaintiff ought to have been required to establish his title in an action at law were properly reviewable here it need not be considered, because the defendant did not by his answer object that the plaintiffs had an adequate remedy at law. After parties have submitted to the jurisdiction of the court, the plaintiff will not be turned out to seek his remedy elsewhere, when the objection is taken for the first time at the trial. Grandin v. LeRoy, 2 Paige, 509; Wiswall v. Hall, 3 id.,, 313; Leroy v. Platt, 4 id., 77; Cox v. James, 45 N. Y., 557; Town of Menta v. Cook, 108 id., 504; 13 N. Y. State Rep., 845. The order should be affirmed.

All concur.


author: Bradley, J.

text:
    Edward H. Coffin et al., Resp’ts, v. Asa W. Parker et al., App’lts; Marie A. Maben et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

      1. Mortgage—Redemption—Contribution—Fraud.
    This action was brought to determine the amount due upon a $14,000 mortgage, given upon fourteen lots, with a view to redemption, and to require contribution by the several owners. There had been a prior mortgage upon each lot, and two subsequent blanket mortgages. The equities of twelve of the lots were equal. During the pendency of this action prior mortgages upon lots 13 and 14 were foreclosed at the instance of the mortgagee of the $14,000 mortgage. Held, that as there was evidence which justified the court in finding that the assignment and foreclosure of the first mortgages upon lots 13 and 14 were collusive and fraudulent on the part of the mortgagee of the $14,000 mortgage, there was no error in granting the equitable relief of deducting the amount chargeable upon said lots 13 and 14 from the $14,000, as effectually as if said mortgagee had voluntarily released the two lots from the lien of his mortgage.
    2. Same.
    Upon appeal, the general term modified the judgment so that each lot was decreed to be liable for the amount found chargeable upon it; that each owner be at liberty to pay such amount to the referee and be released; and if any owner neglected to pay, his house be sold. Held, error; that the whole amount of the mortgage debt must be paid, as the mortgagee cannot be compelled to take a less sum.
    Appeal from judgment entered upon order of the general term of the supreme court in the second judicial department, modifying and affirming, as. modified, interlocutory and final judgments entered upon decision of the special term in favor of the plaintiffs.
    The action was brought for the determination of the amount due upon a mortgage of date December 24, 1884, made by Still-man P. Lincoln to Asa W. Parker upon a certain parcel of land divided into fourteen lots in the city of Brooklyn for $14,000, with a view to redemption of the premises and to require contribution to that end by the several owners of the lots covered by the mortgage. There was a prior mortgage of date December 23, 1884, made by Lincoln upon each lot, twelve of them to the General Synod of the Reformed Church of America, and two to the Board of Education of the Reformed Church of America. There was a blanket mortgage of date February 10, 1885, made by Lincoln to John Hart for $6,000, and by him soon after assigned to Sophie G. Parker, and another blanket mortgage of date April 7, 1885, for $5,000 made by Lincoln to Asa W. Parker. It is unnecessary to refer to other mortgages on the property. After default in payment of the interest on the fourteen first mortgages, Asa W. Parker, as subsequent mortgagee, in proceedings taken for that purpose, obtained direction of the court for assignment of those mortgages, and assignments were made to his.appointee, Ralph G. Packard. He assigned the $14,000 mortgage to Josiah S. Packard, in which Ralph G. Packard also had an interest. Sophie G. Parker proceeded to foreclose her mortgage, and pursuant to decree for that purpose eleven of the lots were sold. One was purchased by the plaintiff Coffin, who conveyed an undivided half of it to the plaintiff Jones. One was-purchased by Maria B. Pundt, who conveyed to defendant Brown. One by defendant Maben, and the other eight by Asa W. Parker. Afterwards, on foreclosure by Asa W. Parker of his $5,000-mortgage, the three remaining lots were sold, and Sophie G. Parker was the purchaser. After the commencement of this action two of the first mortgages on lots so purchased by Asa W. Parker, and designated as 13 and 14, were assigned by Ralph G. Packard to Mary A. Sweezy, who proceeded to foreclose them, and obtained decree pursuant to which they were sold to one Doody at sums producing no surplus.
    Upon the facts found by the trial court it was determined that the defendants Packard were entitled to be paid the amount of the $14,000 mortgage less the proportionate share chargeable to lots 13 and 14, which should be deducted from such amount; that if the owners of the other parcels or any of them should fail to pay the shares which should be borne by them, such lots should be sold and their shares paid to the plaintiffs; and that a reference -be had to ascertain the amount with which each of the lots should be charged for that purpose. An interlocutory decree was entered accordingly. The referee made his report, which was confirmed and final judgment entered. The general term modified the judgment of the special term by directing that, on payment of the share chargeable upon any lot it be released from the lien of tho $14,000 mortgage.

      E. Countryman, for app’lts; Walter S. Logan, for the resp’ts, pl’ffs ; Bristow, Peet & Opdyke, for resp’ts Maben and Brown.

       See 17 N. Y. State Rep., 733.

   Bradley, J.

The plaintiffs as owners of one of the lots had the right to redeem the premises from the lien of the prior $14,-000 mortgage by paying the full amount of that mortgage to the party entitled to it. But such redemption was not the sole purpose of the action. The plaintiffs by it sought relief which would require all the owners of the several lots covered by the-mortgage to contribute to that end their proportionate shares of the burden. And the result given by the judgment of the-special term was that the plaintiffs be permitted to-redeem the land covered by the mortgage by paying the amount of it less the proportional sum with which the lots 13 and 14 were found chargeable; and upon such payment the other lots respectively should be charged with their proportionate shares, and such of them as default in payment by the-owners permitted, should be sold to realize the amount they respectively should' bear of the burden of such prior lien, and by way of reimbursement of the plaintiffs. Barring the charge made-upon lots 13 and 14 and the deduction of the amount of it from that of the mortgage, there is no reasonable opportunity for controversy about the determination and judgment of the special term. The redemption by the plaintiffs and their reimbursement by means of charging the due proportion upon the other lands covered by the mortgage, are well recognized rights to be afforded by a court of equity. Pom. Eq. Jur., § 411; Cooper v. Stevens, 1 Johns. Ch., 425; Salem v. Edgerly, 33 N. H., 46; Aiken v. Gale, 37 id., 501.

The equities of the owners of twelve of the lots covered by the mortgage were equal. The other two lots, 13 and 14, had, before the trial, been sold on foreclosure of prior mortgages, and the proceedings had for that purpose were apparently in due form; and unless such foreclosure and sale were collusive and in fraud of the plaintiffs, those two lots were not legally subject to the contribution charged upon them. The trial court found upon that subject that Asa W. Parker was the attorney for the Packards; that the assignment of the first mortgages were by his request made to Ralph Gr. Packard, as his appointee; .that the assignment of two of those mortgages, covering the lots 13 and 14, to Mary A Sweezy was made, the suit for the foreclosure of them was instituted ana perfected by sale after the commencement and during the pendency of this action, without notice to any of the respondents; and that such assignments and foreclosure were collusive and fraudulent, and done for the purpose of destroying the lien of the $14,000 mortgage on those lots, and of throwing the burden of it wholly upon the other twelve lots, and compelling the owners of them to pay it to save their property. There was some evidence tending to support the view of such purpose. While the defendants Packard do not appear personally to have taken part in the business relating to the mortgages, they seem to have been represented by Mr. Parker, who, in such relation to Ralph G. Packard, suggested to Mrs. Sweezy the subject of the purchase of those two mortgages, and it was upon his negotiation that the assignment of them was made by him, as such representative or attorney, and taken by her.

At that time Mr. Parker had the legal title to those two lots derived from his purchase on the sale of the foreclosure of the mortgage held by his wife, Sophie Gr., and next subsequent to the $14,000 The sale of the two lots on the foreclosure of the mortgages assigned to Sweezy had the apparent effect of divesting him of the title as well as relieving them from the lien of the mortgage in question, which he had assigned to Josiah S. Packard; and Parker and his wife had the legal title subject to that mortgage of eight more of those lots. He was cognizant of the sale of the lots 13 and 14 on the foreclosure of the mortgages, and attended it, and although those lots were worth much more than the amount secured by the first mortgages upon them, they were sold for sums little less than sufficient to satisfy those mortgages and expenses of the foreclosure. It is difficult to account for this action of Parker in seeking Mrs. Sweezy to take the assignments, making them to her and the speedy foreclosure and sale for the amount produced by entire in The inference from his evidence was permitted that he represented the Packards in the matter, and that the assignment was made with a view to the foreclosure, and to accomplish it without the knowledge of the owners of three of the lots who claim they had no notice of it until proved by the defendants at the trial, and thus cast the burden of the $14,000 mortgage on the other twelve. Neither Mrs. Sweezy or the purchaser Doody was called by the defendants to testify on the subject of the transaction, to repel any imputation which might arise out of it bearing upon the question of good faith of the defendant Parker in his relation to the sale and to the purchase by them. The defendants could not properly do indirectly that which they would not be permitted to do directly. After the commencement of this action, it would not have been fair for them without some notice to the defendants to have taken proceedings to relieve a portion of the land from the lien of the second mortgage to defeat contribution of such portion to the burden of redemption or reimbursement of the plaintiffs making it; and if through the assignment such was the purpose it should be equally ineffectual to accomplish it. The suit subsequently brought to foreclose the $14,000 mortgage was not necessarily the subject of any such imputation, because all the owners of the remaining lots were made parties defendant, and they had the means of protecting themselves.

Without referring here more specifically to the evidence tending in that direction, we think the inferences derivable from it were warranted as found by the court, that the assignment of the two of the first mortgages and the foreclosure of them were collusive and fraudulent as against the plaintiffs and the respondent defendants in such sense as to justify the equitable relief given as effectually as if the mortgagee had then voluntarily released the two lots from the lien of the $14,000 mortgage. In such case the amount of the mortgage in behalf of the owners of other lots for the purposes of the redemption would have been proportionally reduced. Cheesebrough v. Millard, 1 Johns. Ch., 409; James v. Hubbard, 1 Paige, 228; Guion v. Knapp, 6 id., 35; Stuyvesant v. Hall, 2 Barb. Ch., 151. It follows that there was no error in the direction of the interlocutory judgment And the value of the lots respectively in excess of the amounts secured by the first mortgages upon them,'and the proportionate amount upon that basis of the $14,000 mortgage chargeable upon each of them as found by the referee, was well supported by the evidence. The final judgment treated as due upon the mortgage the amount remaining after deduction of the proportionate sum found to have been so chargeable upon the lots 13 and 14. But the general term so modified the judgments as to direct that on payment of the declared proportionate share of any lot, it should be released from the lien of the mortgage. This modification was made upon the appeal and application of the defendants, Maben and Brown. And while it may be that, in view of the value of the several lots, such method of redemption would not result prejudicially to the mortgagee, it is not in accordance with the equitable rule applicable to such cases. The principle upon which rests the right of redemption, of mortgaged premises, requires that the whole amount of the mortgage debt be paid, and this is requisite to redemption by the owner of a portion only of the mortgaged premises. The mortgagee cannot, as a rule, be required upon the basis of an apportionment to take a sum less than the whole amount due him and release the lien of his mortgage upon any of such premises. The relief of such owner redeeming is in his remedy, founded upon the principle of subrogation to the rights of the mortgagee, against the other portions of the mortgaged premises and to thus seek or compel contribution. Smith v. Kelley, 27 Me., 237; Lyon v. Robbins, 45 Conn., 513 ; McCabe v. Bellows, 7 Gray, 148; Merritt v. Hosmer, 11 id., 276; Lamb v. Montague, 112 Mass., 352 ; Bell v. Mayor, 10 Paige, 49, 71.

In view of the facts as found by the court, the changed situation produced during the pendency of this action did not render the addition of any other parties necessary, and no supplemental pleading on the part of the plaintiffs was requisite to the relief awarded by the judgment. Ho other question requires consideration.

The judgment entered upon the order of the general term should be affirmed except so far as it modified the interlocutory and final judgments, and as to such modification reversed, and those judgments affirmed, with costs to the plaintiffs and without costs to any other party.

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


author: Potter, J.

text:
    John H. Dresler, Resp’t, v. George M. Hard et al., App’lts.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    Evidence—Expert testimony as to writing—Date of receipt.
    The testimony of an expert is admissible to show whether a certain receipt is dated “ Jany " or “ July.”
    This is an appeal from a judgment of the general term of the superior court of the city of Hew York, affirming a judgment upon the verdict of a jury in favor of plaintiff at the trial court.

      Hays & Greenbaum, for" app’lts; Isaac L. Egbert, for resp’t.

       Reversing 25 N. Y. State Rep., 808.

   Potter, J.

A statement of the facts which, it seems to me,, must control the decision of this appeal in this case may be very brief. The action was brought by plaintiff to recover of defendants the moneys paid by him to them from time to time towards the purchase price of 1,000 shares of the stock of The Manhattan Refining Company, but which the defendants refused or failed to deliver pursuant to their obligations.

The contract to purchase the particular block of stock in question was made about the first of November, 1880. It was not questioned upon the trial but that the plaintiff had contracted to purchase of defendants two other similar blocks of stock; one in September, 1880, and before, and one in March, 1881, and after the purchase in question. The practical contention of the plaintiff was that while the stocks purchased in September and March had been delivered, the stock purchased in November had not been delivered. The contention of the defendants was that the stock purchased in November had been delivered. Upon the trial the plaintiff introduced his own and other evidence tending to establish the contention upon his behalf. The defendants in support of their contention introduced a receipt, of which the following is a copy:

“New York Agency, Jay 22, 1881.
“ I have this day received from Jas. H. Blauvelt stock certificate No. 122 and 121 of the Manhattan Refining Company, which I have paid part cash and notes. John H. Dresler."

A dispute thereupon arose whether the date of the receipt was January or July (1881).

The force and pertinency of the date of the receipt was clearly recognized in the charge of the learned trial judge and in the opinion of the general term.

The receipt proves the delivery of two blocks of stock. The plaintiff, in his testimony, proves the delivery of two blocks of stock, but says the two blocks delivered were the purchases made in September and March.

The defendants contend that the two blocks, the delivery of which are evidenced by the receipt, were the blocks purchased in September and November. If, therefore, the date of the receipt is January, it must refer to the purchases made in September and November, for the third purchase was .not made till March succeeding January, 1881.

Various papers relating to the transactions between plaintiff and the defendant Blauvelt, in the handwriting of the latter, were put in evidence, and among others a note bearing the date or the word “Jany” (1886). It was conceded that the receipt in question was in the handwriting of the defendant Blauvelt

The defendant called an expert to show that the date of the receipt was “January” and not “July.” For that purpose the plaintiff asked this question: “ Q. Will you state from the examination which you have made of exhibit B, and of the comparison you have made between the handwriting on that and the handwriting on these other exhibits in Mr. Blauvelt’s handwriting, what your opinion is with reference to the date on that paper? ”

This question was objected to by the plaintiff, but not upon any specific ground. The court excluded the question, manifestly upon the ground that the question calls for the opinion of the witness as to what the word or characters mean.

To make the point of the proposed evidence and ruling more precise, the defendants’ counsel asked this question: “ Q. I ask you to compare it with the exhibit you have in your hand, and then I desire to ask the question again, whether, in your opinion, the word written at the beading of defendant’s exhibit B, m the place of the date, is January or July?” which, upon plaintiff’s objection, was also excluded. The defendants’ counsel excepted to the rulings.

We think the learned trial judge erred in excluding the evidence. We will assume, as stated in the language of the court, that the object of the proof was to show by the witness what the words and characters indicating the date of the receipt were.

The principle involved is, whether it may be shown what the word in a written instrument is. To a person or a juror, if we may suppose the latter case, who can neither read or write it is indispensable that some one who can should be allowed to testify what the words are. This course would be necessary in such case, however plainly written or printed the word might be.

Upon the same principle it is allowable for the jurymen, who are perhaps only moderately skilled in letters and words, to determine what the letters and charactérs are and what word they make. The jurors "may do this from the knowledge they already possess and such as they gain during the trial by the reading and comparison they make with other writings already introduced in evidence. Indeed, the court held in the opinion in this case at general term that the jury might compare the receipt in question with the dates and letters in the note and the other writings to determine the date of the receipt. If such comparison may be made by unskilled jurymen, why should they not be aided and enlightened, as they may be in analogous cases of the genuineness of handwriting, alterations and simulations, by men who have made the subject of handwriting a study and have obtained skill and proficiency in that branch of knowledge? As no objection was made that the witness was incompetent, it must be assumed that he was qualified as an expert to give his opinion and the grounds of it in aid of the jury. Van Wycklen v. The City of Brooklyn, 118 N. Y., 424-429; 29 N. Y. State Rep., 790, and the cases there cited; Masters v. Masters, 1 P. Williams, 425; Rogers on Expert Testimony, § 128.

If we analyze the practical processes which have to be gone through with in order to elicit and apply this kind of evidence, whether from experts or lay witnesses, we shall find that the witness is required to examine and determine what the letters and characters or even hieroglyphics are and what word they form in combination. The word thus formed may be in a native or foreign language, and if it is foreign then another process still is to be gone through with before it can reach the comprehension of the lay mind, and that is, to interpret its meaning into the native language of the juror.

The testimony of expert witnesses frequently exemplify one or both of these processes, and are of common use in the investigations carried on in courts of justice and in other avocations. It often becomes necessary and pertinent in judicial proceedings to introduce foreign laws and to interpret their meaning to the comprehension of the juror not familiar with the foreign language.

We think these views are abundantly supported by adjudicated cases. In Sheldon v. Benham, 4 Hill, 129, 131, a skilled bookkeeper was allowed to show the words indicated, and the meaning of certain characters and abbreviations of entries made by a deceased officer of the bank. In the opinion in that case Judge Bronson says: “ I see no objection to the testimony of the bookkeeper in relation to these memoranda. He was not called to give-a construction or to declare the legal effect of a written instrument ; but, as a person skilled in such matters, to tell the jury what words these short entries stood for. It is not unlike the case of an instrument written in a foreign tongue, where a translator may be called in to tell the jury how the instrument reads.”

“ Where the difficulty arises from the obscurity of the writing itself, e. g., if it be illegible from lapse of time, accident, etc., one skilled in deciphering may be called; as, for instance, .a clerk from the post office. Gresl. Eq. Ev., 198, 9; Cowen & Hill’s Notes to Phil. Ev., 1419.” “The very point arose in Armstrong v. Burrows, 6 Watts Rep., 266. There the parties on a trial in the common pleas differed about the date of a receipt, which had been rendered illegible; the one contending that it was dated 1823, and the other that the date was 1824.”

In Vinton v. Peck, 14 Mich., 287, 290, the question was whether the note had been altered from “ eight” to “ eighty.” An expert engraver was allowed to testify from comparison with the genuine writing, whether an “ 8 ” was altered from a “ 3.” In that case the court said : “ It is very true that the jury may examine a paper for themselves, and that opinions are not usually admissible where the jury form their own conclusions unaided. But we do not think it would be safe in this country to adopt a rule which assumes such a degree of knowledge and skill among jurors. Even reasonable expert writers may obtain valuable aid from experience in such questions, as neither law nor custom requires our jurors to meet any standard of education. We think to exclude such aid would lead to absurd results. The most enlightened courts have availed themselves of such assistance, and we deem it wise to use it in all cases where it is at hand. It can do no harm and at all events must often be indispensable to justice.”

In the case of Stone v. Hubbard, 61 Mass., 595, it was held that in a case where the date of a note was doubtful, it being uncertain as to whether the last figure was a 4 or a 2, the plaintiff was entitled to call experts and ask their opinion for the purpose of aiding the court and jury in arriving at a true reading of the document.

Expert testimony upon the same subject as in this case, as to whether the figure was an 8 or a 3, was admitted in the case of Norman v Morrell, 4 Vesey, 770.

Having reached the conclusion that a new trial must be granted for the error in excluding the testimony of the expert, we do not express any opinion upon the other questions raised -upon the appeal.

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

All concur.


text:
    Ormond G. Smith et al., App’lts, v John S. Ogilvie, Resp't.

      (Court of Appeals, Second Division,

      Filed June 2, 1891.)

    1. Contract—Fraud—Fiduciary relations—Burden of proof.
    Plaintiffs, a publishing firm, brought this ^action to set aside as fraudulent a certain settlement made between them and defendant as to royalties due from the latter for the exclusive publication and sale of certain stories under an agreement with plaintiffs’ predecessors. Plaintiffs claimed upon the trial that fiduciary relations were established between them, and that notwithstanding the settlement, the burden of proof was on defendant to show that it was a fair one. Held, that there was no feature of the agreement which established the relations of the parties thereto as fiduciary in character, and the burden of proof was on the plaintiff to show fraud.
    2. Same.
    One Street was a member of both firms to the royalty agreement, but he died previous to the settlement in question, so that his former connection with both firms could not be said to have caused the survivors, in making the settlement, to deal towards each other on the basis of trust and confidence.
    Appeal from judgment of general term of the supreme court, first department, affirming a judgment of the special term dismissing the complaint
    This action was brought by the plaintiffs as successors of the firm of Street & Smith, against the defendant as survivor of the firm of J. S. Ogilvie & Co., to set aside as fraudulent a certain settlement made between the plaintiffs and defendant in reference to royalties agreed to be paid by J. S. Ogilvie & Co., under an agreement with the predecessors of the plaintiffs.
    Prior to, and at the time of the agreement providing for the payment of royalties, Francis S. Street and Francis S. Smith formed the copartnership of Street & Smith, in publishing a newspaper known as The New York Weekly.

    Street was also a member of the firm of J. S. Ogilvie & Co. The agreement entered into was as follows:
    This agreement, made and entered into the 16th day of September, 1880, between Messrs. Street & Smith, of New York, parties of the first part, and J. S. Ogilvie & Co., of the same place, parties of the second part, by which the said parties of the first part agree to allow the said J. S. Ogilvie & Co. to publish and sell certain stories, which shall have been mutually agreed upon, in book form,
    In consideration of the privilege of the exclusive publication and sale of said books, the said J. S. Ogilvie & Co. agree to pay Messrs. Street & Smith a royalty of twenty cents per volume for all copies sold, the retail price of which shall be $1.50,' and the same amount in proportion for any books published under this agreement, the said price of which, shall be more or less than $1.50, provided that the cost of making the electrotype plates of said books shall be paid by Messrs. Street & Smith, in all other cases the royalties shall be ten per cent on the retail price. The payment of royalties to be made quarterly, unless by mutual consent.
    Street & Smith.
    J. S. Ogilvie & Co.
    Street died in April, 1888. The plaintiff, Ormond Gr. Smith, succeeding to his interest.
    Subsquent to July 2, 1888, Street & Smith demanded of the defendant a statement of the stories published under the agreement, and the royalties due thereunder, and in compliance therewith a statement was rendered, which bore date September lr 1883.
    On the 22d of September, 1883, Street & Smith and the defendant settled their accounts respecting the matters embraced within-such statement, the latter paying royalties up to July 1st, 1883, the firm of Street & Smith at the same time giving him a receipt in full.
    In the fall of 1883 Street & Smith made a claim of the defendant for royalties upon certain stories published in another series. This claim the defendant disputed, upon the ground that such publications were not books, and, therefore, not included in the royalty agreement, and the plaintiffs threatening to commence an action, it was agreed that the defendant should pay $1,600 in settlement, which was done; the plaintiffs at the same time executing a release therefor. No objection was made by Street & Smith to the settlement until the commencement of this action, nearly five years thereafter, and since that time the defendant has accounted to the firm of Street & Smith, as then existing, and to their successors under the royalty agreement semi-annually, and paid royalties shown to be due by such accounts, the payment being accepted without objection until the commencement of this suit.

      Edward C. James, for app’lts; A. W. Gleason, for resp’t.

       Affirming 85 N. Y. State Rep., 378.

   Parker, J.

The trial court found as a fact that after the settlement in the fall of 1883, and the execution and delivery of the release by the parties thereto, there remained no unsettled matters in connection with the publication of the stories mentioned in the complaint. In order to maintain the action, therefore, it became necessary for the plaintiffs to obtain an adjudication that the settlement was fraudulently procured and should, therefore, be set aside.

The trial court, however, upon the whole testimony found as a fact, that the defendant did not practice any fraud, or deceit, or make any false representations in procuring such settlement

And the conclusion of law that the settlements were valid transactions, and binding upon the parties thereto, necessarily followed the finding of fact made.

The general term having affirmed the findings of the trial court, they are necessarily controlling here. It is asserted,«however, that the plaintiffs are entitled to a reversal of the judgment, because of an alleged error, in refusing to hold that the burden of proof was on the defendant to show affirmatively that in the settlements evidenced by the receipts of September 22 and December, 7, 1883, no deception was practiced or undue influence used.

On the 'trial plaintiffs’ counsel, after offering in evidence a transfer by the executors of Francis S. Smith and by Ormond Gr. Smith, survivor of Francis S. Smith, to Street & Smith, of all the right, title and interest which the said Francis S. Smith had in the copartnership of Street & Smith, asked the court to “rule that the burden of proof is now on the defendant.” The court denied plaintiffs' request. This question was again presented by the plaintiffs in the form of a request to the court to hold as a matter of law that the burden of proof rested upon the defendant to show that the settlements were procured without fraud.

The court refused to so find, and the exceptions taken to such refusals present the only question requiring consideration. It is asserted that, notwithstanding the finding made by the court that the defendant did not practice any fraud, or deceit, or make false representations in connection with the accounts as presented, or in the course of the negotiation resulting in a settlement between the parties, that the result might have been quite otherwise, had the defendant been required on the trial to assume the burden of proving that in the making of the settlements the entire transaction was fair, open and well understood.

The appellants conceding the general rule, that the burden of proving fraud rests on him who asserts it, urge that this case constitutes an exception, because of the relations existing between the plaintiffs and defendant which bring it within the rule cited in Pomeroy’s Equity Jurisprudence (§951): “ where an antecedent fiduciary relation exists, a court of equity will presume confidence placed and influence exerted; where there is no such fiduciary relation, the confidence and influence must be proved by satisfactory extrinsic evidence.” Following this rule it has been frequently held in this state, that when such relation is shown to exist, it imposes the burden of proof upon the person taking securities, or making contracts, or procuring settlements inuring to his benefit, to show that the transaction was just and fair and no undue advantage obtained because of such fiduciary relation. Mason v. Ring, 2 Abb. Pr., N. S., 322; Brock v. Barnes, 40 Barb., 521; Fisher v. Bishop, 108 N. Y., 25; 13 N. Y. State Rep., 466. We are thus conducted to the inquiry whether the contract on its face suggests a fiduciary relation, and, if not, whether the fact that Street was a member of both firms, in view of the situation presented in other respects, requires a determination that such was the relation at the time of the settlement ? A general definition of the word fiduciary cannot well be given which is sufficiently comprehensive to embrace all cases.

Bouvier defines it as follows: “A contract by which we sell a thing to some one, on condition he will sell back to us. This term is derived from the civil law; may be defined in trust, in confidence, fiduciary contract, an agreement by which a person delivers a thing to another, on condition he will return it to him.” It embraces trust, confidence, and refers to the integrity, the fidelity of the party trusted rather than his credit or ability, and contemplates good faith rather than legal obligation. Stoll v. King, 8 How. Pr., 298. It includes all moneys received under one of the express trusts known to the law, such as that of an executor, trustee, etc., Smith v. Edmonds, 1 Code R, 86; money received under an understanding that it is to be invested in a specified manner. Noble v. Prescott, 4 E. D. Smith, 139; moneys received by an agent for his principal which he has no authority to disburse but is bound to pay over. Republic of Mexico v. Arangoiz, 5 Duer, 634.

The test in cases of agency is whether the specific moneys ought to have been kept and paid over or whether the agent had a right to use the money. Stoll v. King, supra. Partners occupy towards each other as to the parnership business a fiduciary relation, and in cases of quasi partnership the like relation had been held to exist. Marston v. Gould, 69 N. Y., 225.

Now upon the face of the agreement it appears that Street & Smith and J. S. Ogilvie & Co. agree that Ogilvie & Co. might have the exclusive right of publication of certain stories belonging to Street & Smith in book form, in consideration of their promise to pay twenty cents per volume for all copies sold, the retail price of which should be $1.50, and a proportionate amount for books retailing at more or less than $1.50, provided Street & Smith paid for making the electrotype plates; whether they should pay for the plates being made optional with Street & Smith. In the event that they should not, it was provided that they should receive a royalty of ten per cent on the retail price, payment of royalties to be made quarterly unless mutually agreed otherwise.

It will be observed that the agreement did not provide that a certain portion of the money received from the sale of the books should be paid over to Street & Smith. It fails to suggest in any manner that such moneys or any portion of them were to be deemed the moneys of Street & Smith, which the other party was bound to turn over, having no right to retain the specific moneys, received. There was in such respect, therefore, no fiduciary relation. Neither were the parties to the contract partners in the publication and sale of the books.

Street- & Smith furnished stories to be published in book form, but exercised no other or further control over their publication and sale. For that they received a specified sum for each book sold, but they did not share in the profits as such nor bear any part of the losses, if any there were. All of the risks of the business rested on J. S. Ogilvie & Go. If the publication of a book resulted in a loss, Street & Smith were nevertheless entitled to a fixed sum for each book sold. If it eventuated in a profit they could not share therein, but were entitled only to the sum agreed upon for each volume disposed of.

There is no feature of the agreement, as we think, which establishes the relations of the parties thereto towards each other as fiduciary in character, and it need not be examined further. So far we have considered whether the situation of the parties each to the other as indicated on the face of the agreement was one of trust and confidence, but appellants’ counsel on the argument having attached some importance to the fact that Street was a member of both firms, we shall consider briefly whether the situation is altered by reason of it.

It cannot be doubted that Street’s and Ogilvie’s connection with the firm of J. S. Ogilvie & Co. stamped their relations towards each other in the business of that firm as fiduciary, and in an action brought by Street, as a member thereof, against his partner relating to his conduct in the business of the firm, he would have been entitled to all the benefits derivable by reason thereof. Indeed it appears from the record before us that Street’s executor instituted a suit against the defendant as surviving partner, in which he recovered a large sum of money which was adjudged to be the share and interest which Street had in the firm assets at his death.

In that action therefore the rights of the deceased partner were ascertained and secured His representatives, or successors have no other or further interest in, or claim against the firm of J. S. Ogilvie & Co., except through his membership of the firm of Street & Smith on account of transactions growing out of the royalty contract, which constitutes the basis of this controversy.

This suit is not brought to set aside that contract It is not founded on a claim that in bringing about its making, and execution, Street did anything that he ought not to have done, as a partner of Smith. No misconduct is alleged against him.

On the contrary, the validity and binding force of the contract is recognized, and asserted by the plaintiffs. The acts of which they complain being that, after the death of Street, the defendant by means of misrepresentations fraudulently procured the settlement which the plaintiffs seek to set aside. The death of Street put an end to the partnership of both Street & Smith and J. S. Ogilvie & Co., and clearly the dead man's former connection with both firms cannot be said to havB caused the survivors in making the settlement to deal towards each other on the basis of trust and confidence.

There was, therefore, nothing in the relation of the parties at the time of the settlement which justified them in dealing with each other otherwise than at arms’ length, and the burden rested on the plaintiffs to affirmatively establish that the settlement was fraudulently procured. This they failed to do.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.