author: Learned, P. J.: Boardman, J.:

text:
    ELIZABETH HAWKS, Appellant, v. GEORGE W. SWETT AND OTHERS, RESPONDENTS.

      Decree — when parties to, bound by—Assignees of patent—effect of invalidity of patent on agreement entered into by—Letters patent— what conferred by.

    In 1867 the plaintiff, to whom letters patent for an improvement in the manufacturing of stoves had been issued, assigned them to defendants, who agreed to pay her a certain sum for each stove manufactured thereunder, she agreeing to protect them in the exclusive enjoyment of the privileges thereby conferred. In 1869 she surrendered these letters, and obtained a reissue, which was subsequently assigned to the defendants, subject to the agreement for compensation. Subsequently one Goodfellow, claiming to be the first inventor, procured letters to be issued to him, which he afterward assigned to the defendants, who sold the rights acquired under the assignment from the plaintiff, to one Burtis. Subsequently a suit was commenced by the defendants against the plaintiff and Burtis, in which a decree was entered deciding that the letters patent issued to the plaintiff were void, and of no effect. This action was brought to obtain the compensation agreed to be paid by the defendants to this plaintiff upon her assignment to them of the said letters. Held (1), that the decree in the suit brought in the United States court established conclusively, as between the parties to this action, that the letters patent were void, and that defendants weze not estopped from setting up such invalidity ; (2), that the letters patent being void, there was no consideration for the promise of the defendants to pay for stoves znanufactured thereunder; (3), that the assignment by the defendants of their lights thereunder, did not estop them from setting up this failure of consideration as against the plaintiff.

      Saxton v. Dodge (57 Barb., 84) followed; Thomas v. Quintard, (5 Duer, 80) distinguished.
    Letters patent for an invention confer nothing, except a right to bring actions, and thereby prevent persons from doing what they might otherwise lawfully do.
    Appeal from a judgment in favor of the defendants, entered upon an order dismissing the plaintiff’s complaint.
    This action was brought to recover certain royalties or license fees, claimed to be due the plaintiff by virtue of a written agreement. The defense was, that the covenant to pay royalties was void for want of consideration.

      James Lansing, for the appellant.
    The defense of fraud is not available in this case, because it is not alleged in the answer that the defendants offered to restore the plaintiff to her former condition on the discovery of the alleged fraud, which is indispensable to the defense. (Devendorf v. Beardsley, 23 Barb., 656.) Their own assignment precludes the defendants from saying that what they sold was valueless, and therefore unnecessary to return. (Thomas v. Quintard, 5 Duer, 80.) So long as the defendants elected to keep the contract on foot they are bound by it, and can only avail themselves of a breach by way of recoupment. (Pitts v. James, 15 Barb., 310.) In order to defend for breach of warranty of title, there must be an eviction, either a recovery by or an enforced surrender to the true owner. This applies to personal as well as real property. (Case v. Hall, 24 Wend., 102; Burt v. Dewey, 40 N. Y., 283; Bordwell v. Collie, 45 id., 494.) The defense of failure of consideration is not available, since the defendants, by parting with the patent for a valuable consideration, are precluded from setting up want of value in the patent, and have disabled themselves from restoring the plaintiff to her former condition. (Thomas v. Quintard, 5 Duer, 80; Winslow v. Buel, 1 How., 373; Parley v. Balch, 23 Pick., 283.) The decree was improperly admitted in evidence, because, being, new matter which confessed and avoided the plaintiff’s title, it should have been set up in the answer. (O'Toole v. Garvin, 1 Hun, 92; Brazill v. Isham, 12 N. Y., 9.) It is not admissible as evidence to prove the fact that the plaintiff’s patent is valueless: First, because no such defense is set up in the answer; second, if it were, the statute which authorizes the action in the United States court, limits the effect of the decree so that the patent may, under certain circumstances, still be of value. (Rev. Patent Laws, approved July 8, 1870; see appendix to Patent Laws, p. 17, § 58; Johnson v. Titus, 2 Hill, 606.) The conveyance of the patent to the defendants being made upon a nominal consideration, with the real consideration to be paid by the defendants from working the patent, it became a joint venture, and the plaintiff and defendants are partners in the benefits of the investment. (Taylor v. Hare, 4 Bos. & Pull., 260.) And the defendants, when called upon to account, having received the benefit, are estopped from denying the plaintiff’s title or retaining the profits to their own use. (Kinsman v. Parkhurst, 18 How. [U. S.], 289.)

      Esek Cowen, for the respondents.
    A promise or note given in consideration of an assignment of the whole or a part of letter's patent which are void for want of novelty, is given without consideration and cannot be enforced. That is clearly so in this State. (Cross v. Huntly, 13 Wend., 385; Head v. Stevens, 19 id., 411; McDougall v. Fogg, 2 Bosw., 387; Saxton v. Dodge, 57 Barb., 84, 114; Dickinson v. Hall, 14 Pick., 220; Earl v. Page, 6 N. H., 480; Davis v. Bell, 8 id., 503; Dunbar v. Marden, 13 id., 317; Geiger v. Cook, 3 Watts & Serg., 270; Durst v. Brockway, 11 Ohio, 471; Fallis v. Griffith, Wright, 303; Mulliken v. Latchem, 7 Blackf., 138; McClure v. Jeffrey, 8 Ind., 82.) A complete answer to the claim that the defendants were estopped by the assignment to them, or the assignment from them, is that the judgment between the same parties was conclusive upon that point. (LeGuen v. Gooverneur, 1 Johns. Cas., 436 ; Embury v. Conner, 3 N. Y., 511, 522; Haire v. Baker, 5 id., 357; Davis v. Tallcot, 12 id., 184.)
   Learned, P. J.:

The .first question is, whether the decree of the United States court was admissible under the pleadings. The answer is not well drawn, but it sets up want of consideration and worthlessness of the patent. There could be no doubt as to the intended defense. This decree between the same parties was good evidence of these facts. If necessary to amend the answer so as to set up the decree by way of supplement, this could have been done at the trial by the permission of the court; for the plaintiff could not be misled. She was a party to the action in which the decree was taken, and appeared therein.

Another, objection taken to the admission of the decree was, that the plaintiff and defendants were jointly interested in the invention, and the defendants are therefore estopped from setting up an adverse title. The bill of complaint in which that decree was obtained, to state it briefly, set forth that Elizabeth Hawks, the present plaintiff, having fraudulently obtained letters patent, assigned the same to Swett and others, the present defendants; that they assigned them to one Burtis; that one' Groodfellow was the real inventor of the alleged improvement, and had obtained letters patent therefor. Swett and others, these present defendants, therefore brought that action against Elizabeth Hawks, the said Burtis and one Marston, to have the letters patent issued to this present plaintiff declared void, etc.

How, if it be so, that the present defendants, having taken an assignment from this present plaintiff, could not legally maintain that action, such defense should have been interposed there. Here, it is too late. That decree is a decision that the plaintiffs therein, the present defendants, were not estopped from setting up the adverse title; that is, I mean they were not estopped in that action.

The most important point, however, is the objection taken on the ground of the immateriality of that decree. That objection substantially raises the real question of the case, which also came up on the exception to the nonsuit.

The facts are briefly these: In 1867, letters patent for an invention were issued to the plaintiff. In the same year she entered into an agreement by which she assigned them to Swett, Perry, Huttall and Marston. Huttall has since assigned his interest to Marston ; and Swett and Perry have assigned an interest to Quimby. By that agreement, the assignees were to pay her fifty cents on every stove, etc., manufactured and sold under said letters patent. She guarantied the validity and priority of the letters patent; agreed to protect the assignees in the exclusive enjoyment of all rights and privileges conferred; failing to do which all payments were to cease. In 1869, she surrendered the letters and obtained a re-issue; and in 1870, she assigned to these defendants, Marston, Swett, Quimby and Perry, the said reissue, subject to the aforesaid agreement for compensation.

In 1869, one Goodfellow applied for letters patent on this invention, alleging himself to have been the first inventor, and to have shown the invention to the plaintiff. An interference was declared ; testimony was taken on the part of Goodfellow and of the plaintiff; a decision was rendered in favor of Goodfellow, by the examiners, which was affirmed by the examiners-in-chief, and by the commissioner of patents. The defendants acquired, by assignment, Goodfellow’s right in the patent, and then commenced the' action in the United States Circuit Court against the present plaintiff, one Burtis, and Marston. This plaintiff was duly served with process and appeared, and a decree was taken pro confesso, January 21, 1873. This adjudges that the letters patent issued to the plaintiff are wholly void, invalid, and of no effect, and that she was not the original and first inventor.

Now, this decree is conclusive between the parties, as to the matters in controversy — the facts necessary to sustain it. The invalidity of the plaintiff’s letters patent, and the fact that she was not the first inventor, are settled, as between these parties. The only question is, as to the effect which these established facts have on the present action.

In order that we should not be misled by any false analogy, it should be noticed that letters patent for an invention confer nothing except a right to bring actions, and thereby to prevent persons from doing what they might otherwise lawfully do. Mrs. Hawks, under her letters patent, had a right to sue any one who made stoves in a particular manner; and that was all that she had. If the patent was valid she could succeed in the action. The first agreement above mentioned was, in its real substance, an agreement that she would not sue the assignees if they would pay her fifty cents for each stove; and they agreed to pay her this sum in consideration that she would not sue. The whole basis of the agreement, therefore, is her right to maintain successfully an action against them. When it is decided that she has no such right, all the consideration of the agreement is gone; for, if she has no cause of action by reason of their manufacture of the stoves, an' agreement not to bring such an action is of no value.

The counsel for the plaintiff have compared the transaction to the sale of property, real or personal. They insist that in order to defend an action for purchase-money, on the ground of a breach of warranty of title, there must be an eviction. But the difference in the case is, that there is no thing which passed to the defendants by this agreement; there is no thing of which they have had possession, or of which they could be evicted. In a loose sense, these patent rights are sometimes called property; but it will not answer to apply to them, without discrimination, the rules which apply to things. If the plaintiff had sold land to the defendants, with warranty, they might have enjoyed it until evicted. So, if she had sold them a chattel. But in this present case she has only agreed not to prevent them from manufacturing certain stoves; and, by the decision of the United States court, it appears that she could not have prevented them, if she had tried. Her assignment to them, if the patent were valid, gave them only a right to sue others. If it were invalid, it gave no right of action against any one.

It is said that the defendants have had the enjoyment of the patent, and have manufactured under it. But there was nothing to enjoy; and it cannot be said that they manufactured under a right, which, in fact, did not exist.

When certain defendants took a license from a patentee, on an agreement to pay certain license fees, so called, and gave a note therefor, the invalidity of the patent was held a good defense to the note. In harmony with that decision are the cases of Cross v. Huntly, Head v. Stevens, and McDougall v. Foss. If the case of Thomas v. Quintard be contrary to these, it must be considered as overruled. But an examination of that case will show -that there was no attempt to prove that the patent was invalid. The offer was to show that the article manufactured under the same was of no value. That offer presented a question very different from that involved in this case. The defendants do not here offer to show that the stoves which they made were of no value; hut they show that the plaintiff had no right to prevent the manufacture of these stoves by her pretended invention. Why, then, should they pay her for not doing what she could not do ?

It is insisted further, by the plaintiff', that, as the defendants assigned their interest in this patent to Burtis, they are precluded from alleging its invalidity. It is not necessary to inquire whether such a rule would apply to the case of a patent utterly invalid. It is enough that, in an action where that objection, if valid, might have been urged — that is, the action in the United States court — the plaintiff’s patent was adjudged invalid at the suit ‘ of these defendants.

The judge was right in directing a verdict for the defendant, and the judgment and order denying a new trial should be affirmed.

Boardman, J.:

The English decisions seem to hold, in cases like this, where the contract has been executed, and the defendants have had the benefit contracted for, they may not set up that the patent was void, and that there was no consideration to uphold it, since the contract gave no exclusive right; that in the absence of fraud or eviction, the defendants, having enjoyed the benefits contracted for, are bound to pay in accordance with their contract, though the patent he void, or the plaintiff not the inventor. From the case of Bartlett v. Holbrook, it would appear that the same rule obtains in Massachusetts.

The authorities cited by my brother Learned in his opinion, show the existence of a different rule of law within this State, and sustain the ruling of the Circuit, dismissing the plaintiff’s complaint on the ground of a want of consideration. I therefore concur in affirming the judgment.

Present—Learned, P. J., Boardman and Potter, JJ.

Judgment affirmed.

       Gates v. Preston, 41 N. Y., 113.

      See, also, Rinchey v. Stryker, 28 N. Y., 45.

       The People v. Johnson, 38 N. Y., 63; Marsh v. Pice, 4 Rawle, 273; Hopkins v Lea, 6 Wheat., 109; Gates v. Preston, ut supra.

       Saxton v. Dodge, 57 Barb., 84.

       13 Wend., 385.

       19 Wend., 411.

       2 Bosw., 387.

       5 Duer, 80.

       Davis v. Tallcot, 12 N. Y., 184.

       Taylor v. Hare, 1 Mod. R., 260; Hayne v. Maltby, 3 T. R., 438; Bowman v. Taylor, 2 Adol. & El., 278 (29 E. C. L., 90); Cutler v. Bower, 11 Q. B. (63 E. C. L.), 972; Laws v. Purser, 38 Eng. L. and Eq., 48.

       1 Gray, 114.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    WILLIAM E. MARSTON, Appellant, v. GEORGE W. SWETT AND OTHERS, RESPONDENTS.

      Letters patent—invalidity of—effect of, on agreement made Try assignees—Defeats in pleading.

    An agreement was entered into between the plaintiff and defendants, the plaintiff and defendants being assignees of a patent for the manufacture of stoves, by which the plaintiff agreed that the defendants should have the exclusive right to manufacture thereunder, upon payment to him of a certain sum for each stove. Subsequently a suit was brought, in the United States court, by the defendants, against the plaintiff and others, in which it was decided that the letters patent were void. This action was brought to recover the sum agreed to be paid by the defendants. Held, (1), that the joint interest of the parties, plaintiff and defendants, did not prevent the defendants from showing the invalidity of the letters patent; (2), that the decree in the former suit was conclusive as to the invalidity of the letters patent, and as to the right of the defendants to set up such invalidity as against the plaintiff; (S), that the patent being void, there was no consideration for the agreement to pay royalties to the plaintiff. Cutler v. Bower (11 Q. B., 973) distinguished.
    Defects in pleading must be urged in the court below where amendments may be permitted.
    Appeal from a judgment in favor of the defendants, entered on a nonsuit, from an order directing judgment for defendants upon their counter-claim, and from an order denying a motion for a new trial.
    This action was brought to recover certain “ royalties ” or license fees for the privilege of making and selling stoves under certain letters patent, of which the plaintiff was one-half owner at the time of making the contract to pay such royalties. The defense was, that the contract to license was void because not in writing, and that the patentee and assignor of the plaintiff, one Elizabeth Hawks, was not the first and original inventor of the patented device, but that the same was invented by one John H. Goodfellow, to whom, after a litigation, the priority had been awarded by the patent office. The answer also set forth a counter-claim for $1,208.49, for which the defendants claimed judgment.

      James Lansing, for the appellant.
    The contract alleged in the complaint is not within the statute of frauds. The contract was not one “ that by its terms was not to be performed within a year from the making thereof.” (2 R. S., 135, § 2, sub. 1; Van Woert v. Albany and Susquehanna R. R. Co., 1 N. Y. S. C., 256.) The agreement was executed. (Talmadge v. Rensselaer and Saratoga R. R., 13 Barb., 493; Dodge v. Crandell, 30 N. Y., 294; McGlucky v. Butler, 1 E. D. Smith, 618.) If a writing were necessary, it is not necessary that the pleading should allege that fact affirmatively. (Livingston v. Smith, 14 How., 492.) Where the agreement is admitted by failure to deny, no evidence to prove its existence is necessary. (West v. American Exchange Bank, 44 Barb., 178.) The judgment or decree of the United States Circuit Court, read in evidence in this case, if available as a defense, is new matter avoiding the plaintiff’s demand, and must be alleged as well as proven. (O’Toole v. Garvin, 1 Hun, 92; McCormick v. Pickering, 4 Comst., 376 ; Code, § 149; Brazill v. Isham, 12 N. Y., 9; 2 Whit. Pr., 112.) But if the pleadings permitted the introduction of said decree, it is immaterial as evidence in the case. The parties being tenants in common of the patent, and the defendants, by virtue of the contract, being entitled to the exclusive use of said patent, the relation of lessor and lessee will arise. (Mumford v. Brown, 1 Wend., 52; Cowper v. Fletcher, 118 E. C. L., 462.) The relation of lessor and lessee of a patent right, is analogous to the relation of landlord and tenant. (Bowman v. Taylor, 2 Alderson & Ellis, 278; Cutter v. Brown, 11 Q. B., 140; Laws v. Purser, 38 Eng. L. and E., 48.) The defendants, having used and enjoyed the invention, are estopped from denying the title of the lessor during that time. (Same cases; also, Bartlett v. Holbrook, 1 Gray, 114; Prevot v. Lawrence, 51 N. Y., 219.) So long as the lessee is not disturbed he is' bound to pay, even though the lessor’s title be defective, or he be even without title. (Herman’s Law Estop., 368; George v. Putney, 4 Cush., 354; Prevot v. Lawrence, 51 N. Y., 219.) Even an eviction is no defense as to accrued rent. (Giles v. Comstock, 4 N. Y., 270; McKewen v. Whitney, 3 Denio, 452.) When there is a common source of title, one of the tenants in common cannot, as against a joint owner, show that the common title is. defective. (Clark v. Crego,
      47 Barb., 600; Jackson v. Streeter, 5 Cow., 529; Murphy v. Barnett, 2 Murph., 25.) A lessor cannot avoid liability for rent by purchasing a paramount outstanding title. (Herman’s Law Estop., § 360; Sharpe v. Kelly, 5 Denio, 431.) Neither can one tenant in common buy in an adverse title, so as to defeat the right of his co-tenant, but such purchase will inure to the benefit of his co-tenant. (Phelan v. Kelly, 25 Wend., 389; Herman’s Law Estop., pp. 377, 558, 559.)

      Esek Cowen, for the respondents.
    The contract set forth in the complaint not being in writing, it was void within the clause of the statute of frauds, which avoids contracts not to he performed within one year. (Doyle v. Dixon, 97 Mass., 208.) Neither part performance nor complete execution on one side, will take the case out of the statute. (Lockwood v. Barnes, 3 Hill, 128; Bartlett v. Wheeler, 44 Barb., 162.) Under section 11 of the patent act of 1836, which was in force at the time of the contract, every assignment of the exclusive right to make and use the thing patented, must be in writing in order to have any validity. (Gibson v. Cook, 2 Blatchf., 148.) The judgment, being conclusive between these parties, was evidence that the patent under which the pretended license was given never had any validity, and that there was no consideration for the promise of the defendants to pay royalties. (Cross v. Huntly, 13 Wend., 385 ; Head v. Stevens, 19 id., 411; McDougall v. Fogg, 2 Bosw., 387; Saxton v. Dodge, 57 Barb., 84, 114; Clum v. Brewer, 2 Curtis, 524.)
   Learned, P. J.:

This case is like that of Hawks against the same defendants, argued at this term, in many respects. The additional facts which are important are, that Marston, the plaintiff, and Swett and others, the defendants, were the assignees of the alleged patent right of Elizabeth Hawks, by virtue of the assignment made by her in 1867, and of the second assignment made by her in 1870, after the surrender and re-issue. Being such owners in common, the defendants agreed with Marston that they should have the exclusive right, and that he should not license others.

In consideration of this, they agreed to pay him fifty cents for each stove manufactured, containing said invention. It appears that this agreement was not in writing, and the answer (the admissions in which are the only proof of the agreement) qualifies the admission by the averment that the condition of the verbal agree ment was, that the plaintiff should execute a written agreement to the same effect, which he has refused to do.

It is not denied that the defendants have made stoves, to a certain number, which would be under the patent, if the patent were valid. The same questions as to the effect of the invalidity of the patent are raised, which were in the other case.

A question was made, whether this verbal contract was valid under the statute of frauds; and a similar question, whether it was valid under the patent laws; the contract being, as was claimed, in effect, an assignment of the patent, and not being in writing.

But without passing, upon these, I come to the important point,' which is, whether the plaintiff can recover these fees, when the letters patent have been declared void.

Most of what was said in the former opinion is applicable here. Marston was a defendant in the suit brought in the United States court by these defendants, in which the letters patent were declared to be void, and Mrs. Hawks was adjudged not to be the inventor. He had an opportunity there to contest the question of invalidity, and to urge that, as to himself, these defendants were estopped. He might have claimed (with what success it is unnecessary to say), that the decree should be so qualified as to preserve any rights between him and these defendants, arising out of their contract. But that was not done, and the decree must be conclusive.

The plaintiff in this action made some offers tending to show collusion by the defendants with Gloodfellow. But so far as these offers were of any weight, they were only an indirect attack on the decree in the United States court. If that alleged collusion was a good defense, it could have been shown in that suit.

It is urged by the plaintiff’s counsel that the ownership in common of the alleged patent right, prevents the defendants from averring its invalidity as a defense.

And the case of Kinsman v. Parkhurst, is relied upon. In that case a patentee and an assignee of a part interest entered into the joint business of manufacturing the patented machines. The business was to be carried on by the parties on joint account, and a division of the profits was to be made according to a certain ratio. After the business had been carried on for a time, a bill was filed for an accounting. The defense was, the invalidity' of the patent. The court held this no defense. The defendant had made and sold' the machines under the complainant’s title, and for his aecomvtP “ The invalidity of the patent does not render the sales of the machines illegal.” Where money has been received, either by an agent or a joint owner, by force of a contract which was illegal, the agent or joint owner cannot protect himself from accounting for what was so received.” That does not apply ' to this case. If Marston had been in partnership with the defendants in the manufacture of these stoves, he might have been entitled to his share in the profits as should have been agreed. But there was no joint ownership of the business. The defendants were only his licensees under a patent which proves to have been void. And this case falls under that of Saxton v. Dodge and others like it in this State. Kinsman v. Parkhurst was not an action for license fees, or for purchase of a patent right. It was for the accounting and settlement of a joint venture. And the only important question was, how much was made by the venture, and not whether it was made with or without a valid patent right. Another case relied on by the plaintiff is that of Cutler v. Bower. It is worth while to examine this case briefly, as it is supposed to be important in both of these actions. The facts are these: In July, 1842, the plaintiff, Cutler, had granted the defendant, Bower, the sole license to make certain patented machines, on payment of a royalty. In October, 1842, the plaintiff, in consideration of a certain sum, sold one-half of the patent to the defendant, the defendant to" have the benefit of one-half of the royalty reserved by the previous agreement. The plaintiff sued for this sum, the consideration of the sale. There was a plea, replication and demurrer. The court held: First, that the consideration did not fail by reason of the alleged invalidity of the patent; for the defendant, at all events, was bound, by the agreement of July, to pay the royalty, whether the patent was valid or not, ás he would be estopped, in an action on that deed, from denying the validity. Second, that the proposed defense would be available only if the covenants (referring to the covenant of warranty in the deed of October) were dependent; that in fact they were independent, and each party might sue for a breach of the respective covenants. How, the second reason would not be good here, where a counter-claim can be made on a cause of action arising upon the same instrument. And the first reason is directly overruled in the case of Saxton v. Dodge, and in the similar cases mentioned in the opinion in the other action.' On a question which seems to be settled in this State, it is not necessary to refer to the decisions of other States sustaining the same view. Such, too, seems to be the doctrine of a late case in England, in which Lord Oottoítham says: “From the time of the last payment, if the manufacturer can successfully resist the patent right of the party claiming the rent, he may do so in an action for the rent for the usé of the patent for that year. The mere taking the license does not estop the licensee from denying the validity of the patent.” And certainly, when it has been decided, that, in an action for the consideration of a sale of a patent right, the invalidity of the right may be shown, fit necessarily follows that the same rule must apply in an action for royalties, so called, or license fees. The contrary decision in Cutler v. Bower may very possibly have been controlled by the conclusive effect then given to a sealed instrument. I think, therefore, that the court correctly held that the plaintiff had no claim against the defendants.

The only remaining question is ón the verdict directed for the. defendants on their counter-claim. The answer sets up that the plaintiff was indebted to the defendants for goods, wares and merchandise, sold and deliveréd, etc., since a certain date, in a certain sum, and asked judgment. The reply denied that the plaintiff was indebted to the defendants' for goods, wares and merchandise sold and ' delivered, etc., since that. date, in that sum, but admitted that there was a small sum due to the défendants, for goods, wares and merchandise, sold and delivered, etc., the amount of which the plaintiff does not know. It was claimed by the defendants that this was no denial. In strictness, this seems to be correct. To deny that one is indebted in the sum of $100, without more, is not a denial that one is indebted in the sum of ninety-nine. And a denial of indebtedness, followed by an admission that there is a small sum due ” for the same cause, leaves it very uncertain what the party considers to be a small sum; especially when he avers that he does not know its amount. But in any such case, if the party were surprised or misled, the court would permit an amendment, or grant some relief on the trial. Upon looking at the case however, although something was said about the condition of the pleadings in respect to the counterclaim, it would seem that the plaintiff did not urge this point, or show that he was misled.

The important matter evidently was the plaintiff’s claim, and this counter-claim was secondary. On the whole, therefore,' there is no reason to disturb the course which the case took on the trial.

The judgment and order appealed from should be affirmed.

Present — Learned, P. J., Boardman and Potter, JJ.

Judgment affirmed.

       18 How. (U. S.), 289.

       57 Barb., 84.

       11 Q. B., 973.

       Code, § 150, sub. 1.

       Nelson v. Fothergill, 1 Webster Patent Cases, 290.


text:
    JACOB OMINGER, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Contributory negligence — not looking in loth directions — when not negligence — Provisions of agreementbetween railroad company and contractor—who bound by.

    Although, as to travelers about to cross a railroad track, it is negligence, as matter of law, not to look in both directions, in order to see whether a train is approaching, such rule cannot be applied to persons employed in performing certain work in and upon the tracks and road-bed.
    H. and M. agreed with the defendant to perform certain work for it, the contract providing that the defendant should not be liable for any injury sustained by the contractor, his sub-contractor, workmen or laborers, by reason of the negligence of the defendant, its agents or servants, in operating the railroad. The plaintiff, an employe of H. and M., was injured while working upon the track, and this action was brought by him to recover damages therefor.

      Held, that as the plaintiff was not a party to the contract, and was not shown to have had knowledge thereof, he was not bound by The provisions contained therein, and that defendant was liable for the injuries sustained by him.

      Appeal from a judgment .in favor of the defendant, entered upon the trial of this action at the Circuit.
    Holler & McEncroe entered into an agreement with the defendant for the construction of a certain part of its road, the contract containing among others the following provisions:
    “ No claim of any kind shall accrue against the company from any loss of life or injury to the person, or from injury to any animals or other property used by the contractor, or by any person who, as sub-contractor, workman, laborer, or otherwise, shall perform any work, labor or services, or furnish any materials herein contracted for, which may arise by reason of the operating of said railroad, or by means of its engines, cars or machinery, or by the acts of its agents or servants, whether the same occur by accident, negligence or otherwise. And should any such claim be legally made against the company, by reason of the aforesaid premises, the contractor shall pay and discharge the same, together with all the costs and expenses, and shall indemnify the company against all liability on account thereof.”
    The plaintiff, an employe of the contractor, having been injured, brought this action to recover damages therefor.

      E. W. Paige, for the appellant.
    Whether plaintiff’s negligence contributed to the accident, was a question of fact. (Am. Law Reg. [N. S.], May, 1874; Westchester and Phil. R. R. v. McElwel, 67 Penn., 311, 315; Davis v. N. Y. C. and H. R. R. R., 47 N. Y., 400; Haekford v. N. Y. C., 6 Lans., 381; Gonzales v. N. Y. and H. R. R., 39 How., 407 ; B. and O. R. R. v. State, 36 Md., 366; Mayo v. B. and M. R. R., 104 Mass., 137; Barton v. N. Y. C. and H. R. R. R. Co., 1 N. Y. S. C. [T. & C.], 297, affirmed in Court of Appeals upon the opinion of this court, April 30th 1874 ; Goodfellow v. B. H. and E. R. R., 106 Mass., 461; Ernst v. H. R. R. R., 35 N.Y., 9.) The provision in the contract presents no obstacle to the plaintiff ’s recovery. (Cole v. Hughes, 54 N. Y., 444, 448.) Defendant was guilty of negligence. The benefits of the statute requiring signals to be given when approaching a crossing, are not restricted by its terms to travelers, and it would make no difference if they were. (Directors of N. E. R. Co. v. Wanless, L. R. [7 H. L.], 12; 6 Q. B., 481; Cook v. N. Y. C. R. R., 5 Lans., 401.) Besides, plaintiff had a right to rely on defendant’s custom of giving the signals there. (Barton v. N. Y. C. and H. R. R. R., 1 N. Y. S. C. [T. & C.], 297; Ernst v. H. R. R. R., 35 N. Y., 9; S. C., 39 id., 61.) The proof of the omission to give the signals was sufficient to go to the jury. (McGrath v. N. Y. C. and H. R. R. R., 1 N. Y. S. C. [T. & C.], 243; Renwick v. N. Y. C. R. R., 36 N. Y., 132.)

      S. W. Jackson, for the respondent.
    The plaintiff is barred of his right of action by the provisions of the contract between his employers and the defendant. (Chap. 140, Laws of 1850, § 44.) A railroad company is not liable for injuries caused by its own gross negligence, to persons who are at the time" trespassing upon its track. (Nicholson v. Erie R. Co., 41 N. Y., 525; Terry v. N. Y. C. R. R. Co., 22 Barb., 574; Tonawanda R. R. Co. v. Munger, 5 Denio, 255 ; S. C., 4 Com., 349; Clark v. S. and U. R. R. Co., 11 Barb., 112; Matze v. N. Y. C. and H. R. R. R. Co., 1 Hun, 417; Bush v. Brainard, 1 Cow., 78.) There is also no liability for such injuries where the person injured is upon the track by the license of the railroad company. (Nicholson v. Erie R. Co., 41 N. Y., 525; Matze v. N. Y. C. and H. R. R. R. Co., 1 Hun, 417; Hounzell v. Smythe, 97 Eng. Com. Law, 731; Southcote v. Stanley, 1 Hurlst. & Norm., 246; Bolch v. Smith, 7 id., 732; Gautrel v. Egerton, L. R. [2 C. P.], 370.)
   Learned, P. J.:

The plaintiff was a workman in the employ of a contractor who had a contract with the defendants to do certain work on their railroad. The place where some of the work was to be done, was at a highway crossing called Phillips’. While the plaintiff was there, engaged in this work, he was struck by an engine, passing on the track, and injured. For the injury he brings this action. At the trial he was nonsuited.

He testifies that he was building a culvert or cow-trap at Phillips’ crossing; that that is a place where the highway crosses the railroad track; that while he was measuring a stone, one train went to Albany; that he wanted to go over on the other side; that while he did that another train came along and struck him; that he stood looking at the stone when the train struck him ; that he was measuring it for the place ;-that the bell was not ringing on the train that struck him; that he was listening for it; that the whistle did not blow; that he was at'work on the cow-trap on the west side; that at the time he was struck he was measuring a stone which lay, maybe, two feet from the track; that the whistle did not blow and he did not look.

It appeared that the north track, on which this engine was, could be seen for a mile and a half from the crossing. I do not see how the plaintiff could in any way be called a trespasser. First, he was on a highway crossing; so I understand the evidence, which is not altogether clear; second, he was a workman in the employ of a contractor engaged to do work at that place.

As to the question of the defendant’s negligence, the testimony is conflicting. . The plaintiff testifies that the bell did not ring; another witness testifies that he did not hear it j while the engineer supposes he rang the bell, and the fireman testifies positively that he did. I do not-think that we can say that there was nothing for the jury on this point.

A point more strongly insisted on, however, is the alleged contributory negligence of the plaintiff. Ordinarily, this is a question for the jury.

As to travelers about to cross a track, it'is held negligence, as matter of law, not to look in both directions, in order to see whether, at that time, a train is approaching. But it is hardly possible to apply that rule, in its strictness, to a workman engaged on the track. The traveler looks once, and crosses; the workman remains. If it is the workman’s duty, as a matter of law, to look in both directions, he must do this as often as it is possible for a train to come in sight. The length of the track in sight from the crossing, was about a mile and a half. A train might pass over this in, perhaps, five minutes. He ought, therefore, under this rule, to look in this direction as frequently as every five minutes, and in the other direction, probably, as often. Such an obligation would be inconsistent with his proper attention to his work. I do not think, therefore, that the rule which has been applied to travelers crossing the track, is applicable to workmen whose employment requires them to remain on or about it. Such seems to be the doctrine of Barton v. N. Y. C. and H. R. R. R. Co., above cited. So, in Goodfellow v. B., H. and E. R. R., the plaintiff was in the employ of a contractor, at work for defendants. He was holding the guy of a derrick; an engine backed down and injured him. At the trial a verdict was directed for the defendants; but in the higher courts this ruling was reversed. The court said that “there was evidence that he was rightfully where be was, and was not in fault in being engrossed in his work and unaware of the approach of the engine until it was too late to avoid it.” It seems to me, therefore, that the question of the plaintiff’s negligence in this case, was one of fact, which should have been passed upon by the jury.

It is further urged by the defendants, that they are not liable for the reason that, by the terms of their contract with the contractor, they agreed that they would not be liable. The plaintiff was not a party to this contract. It is not even in evidence that he knew anything of it. I do not think that the defendants can contract with one man for the privilege of doing a wrongful act to another without his consent.

Assuming even that the accident occurred a few feet from the highway, still, the plaintiff was on the defendant’s land, not by a mere license. He was there to fulfill a contract; he was not a mere stranger roaming over the property, but he was a person on lawful business — like the workman sent to repair gas fixtures, This view is confirmed by the decision of the Court of Appeals in Coughtry v. Globe Woolen Company.

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

Present — Learned, P. J., and Boardman, J.

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

       Filer v. N. Y. C. Railroad Co., 49 N. Y., 47, 50; Barton v. N. Y. C. and H. R. R. R. Co., 1 N. Y. S. C. (T. & C.), 297.

       106 Mass., 461.

       Indermaur v. Dames, L. R. (2 C. P.), 311; see Smith v. Dock Company, 3 id., 326.

         56 N. Y., 124.


text:
    ISAAC W. THOMPSON, Appellant, v. MERRITT W. CLARK, Respondent.

      Judgment in action of ejectment—who not hound, hy—notice of lie pendens—who affected hy — Bent.

    The plaintiff herein recovered a judgment against one Nancy Bull, in an action of ejectment brought against her, and by virtue thereof was put into possession of the premises. Subsequently this action was brought to recover the rents and profits of the land which had been occupied by the defendant during the pendency of the ejectment suit, under a lease from a person not claiming under Nancy Bull. Held (1), that the former judgment was not evidence of plaintiff’s title as against the defendant; (2), that the defendant was not bound by the filing of a notice of lis pendens in the ejectment suit, as he did not acquire his title from the defendant therein.
    Appeal from a judgment in favor of the defendant, entered upon an order made at the Circuit, dismissing the complaint herein. In November, 1862, the plaintiff commenced an action of ejectment against one Nancy Bull, to recover the possession of the premises described in the complaint in this action, filed a notice of lis pendens, and, in July, 1870, recovered judgment therein. After the commencement' of the action, and while it was pending, the defendant in this action leased of one Neher, an administrator of Henry Bull, deceased, the premises in question, and occupied them for two years; and it is for the use and occupation of the premises for those two years that this action, was brought.

      Isaac W. Thompson, appellant, in person.

      Esek Cowen, for the respondent.
   Learned, P. J.:

The plaintiff had recovered in ejectment against Mrs. Bull, and had been put into possession of the premises. He then sued the defendant, Clark, for rents and profits accruing before the plaintiff recovered. It appeared on the trial, that Clark rented the premises from one Neher, and not from Mrs. Bull. The plaintiff claimed however, that he was entitled to recover on proof of the judgment against Mrs. Bull, and of the filing of notice of lis pendens in the action against her, without other proof of his title. The plaintiff was nonsuited at the Circuit, and now appeals.

It is a well known general rule, that judgments are binding only on parties and privies. Proceedings in rem (or, in the language of the civil law, real actions) constitute the exception. Probably the ancient writ of right was of that nature. But the action of ejectment, in its origin, decided only .possession, not title. It was not strictly a real action. It concluded only the parties. As it was modified and retained by the Revised Statutes, the judgment was conclusive upon the party against whom the same is rendered, and against all persons claiming from, through or under such party, by title accruing after the commencement of the action.”

It therefore bound no others than parties or privies. The same idea is more definitely stated ■ in 2 Revised Statutes (marginal paging), 342, section 19. There it is enacted, that, if the defendant alien pending the action, and shall have no property of which the damages for rents and profits can be recovered, the alienee shall be liable for the time he possessed the premises. There the ground of liability is the acquiring title from the defendant. The same provisions are continued under the Code of Procedure.

The plaintiff, however, insists that by filing a notice of lis pen-dens, he has given notice to all the world, and that, therefore, the defendant occupied the land with notice of his claim. But the object of requiring or authorizing the filing of such a notice is not to make the judgment affect persons other than the defendant and those claiming under him. It is only to give notice to those who obtain title under the defendant. The person who is about to take a conveyance or a lease of land, and who examines the records for notices of “ Ms pendens ” need look only at the name of his proposed grantor or lessor. In the present case, the notice of lis pendens against Mrs. Bull gave Mr. Clark no notice that he could not safely take a lease from Mr. Neher. The plaintiff, however, relies on a remark of Nelson, C. J., in Leland v. Tousey, that “ the record of the recovery in the ejectment suit is no evidence of title against them [*. e., third persons], unless it appears that * * * they entered into possession afterwards.” If “ afterwards ” means after the recovery,” the remark is of no avail to the plaintiff. But he claims that it means that the judgment is conclusive evidence of the plaintiff’s title against all who entered into the possession of the land after the ejectment suit was commenced. This is not sustained by the authorities cited in that case, and is contrary to settled principles. I cannot think that the court intended to assert such a doctrine.

The judgment should be affirmed.

Present — Learned, P. J., and Boardman, J.

Judgment affirmed.

       Aslin v. Parkin, 2 Burr., p. 668.

       2 R. S. (m. p.), 309, § 29 (28).

         See, also, Cleirac v. Reincker, 11 Wheat., at 296.

       Sec. 455.

       Code, § 132.

       6 Hill, 328.

       Ainslie v. Mayor, 1 Barb., 168.


text:
    JOHN R. PUTNAM, Executor, Respondent, v. LUCINDA W. SCHUYLER, Appellant.

      Guarantor—may prove fraud in principal as a defense to his liability—rule otherwise as to incompetency of principal to contract.

    The defendant guaranteed the payment of notes given to the plaintiff’s testator by a person to whom the testator was accustomed to give advice, and over whom he had considerable influence. The defendant offered evidence to show that the notes were obtained by fraud, and that they were without consideration, which evidence was excluded. Held, that the evidence should have been received, and that proof that the notes had been obtained by fraud would have been a defense to the guarantor.
    A party who assigns a note or bond for value, and guarantees its payment, cannot offer as a defense to its payment proof of its invalidity. The guarantor is also liable in cases in which the debt is justly owing, although from some defect or incapacity the principal is not liable on the instrument of which the payment is guaranteed.
    Appeal from a judgment entered on the decision of the court. The action was brought to recover upon two promissory notes made by Katherine S. Henri ques and guaranteed by the defendant.

      Matthew Hale, for the appellant.
    Where such confidential relations exist, as were offered to be proved in this case to have existed between the plaintiff’s testator and Mrs. Henriques, the rule is well established, in this State, as well as in England, that the presumption is against the fairness of the transaction, and the burden of proof to repel the presumption is on the party holding the position of confidence. (Brock v. Barnes, 40 Barb., 521; Evans v. Ellis, 5 Denio, 640; Sears v. Shafer, 2 Seld., 268; Howell v. Ransom, 11 Paige, 538; Savery v. King, 39 Eng. L. and Eq., 569; Whelan v. Whelan, 3 Cow., 572; Gibson v. Jeyes, 6 Ves., 278; Brand v. Brand, 39 How. Pr., 193.) Although this rule has more frequently been applied to the relation of attorney and client it is equally applicable where the relation is that of physician and patient. (Gridley, J., in Sears v. Shafer, 2 Seld., 272; Romilly, M. R., in Cooke v. Lamont, 13 Beav., 234; Kerr on Fraud, 192; Billage v. Southee, 9 Hare, 534; see, also, Dent v. Bennett, 4 Myl. & Cr. [18 Eng. Ch.], 269; Gibson v. Russell, 2 Y. & Coll. [21 Eng. Ch.], 104; see, also, the opinion of Lord Sugden in Aherne v. Hogan, Drury, 311, cited in note to Gibson v. Russell, 21 Eng. Ch., 120, 122.) This contract was not, in the strict sense of the word, a guarantee. (Leonard v. Vredenburgh, 8 Johns., 29, 40.) A guarantee is a promise to answer for the payment of some debt in case of the failure of the person first liable for such payment. (Bouvier’s Dict.) Here the note was long past due; the person first liable .had failed to pay the debt, and was dead. The contract, if it had any validity, was to pay to Dr. Allen the debt due him from Mrs. Henriques on the notes. To this extent the defendant bound herself and no further, and to this extent and no further the answer admits her liability. (Thomas v. Williams, 10 B. & C., 664, 669.) A surety may set up duress of his principal as a defense. (Osborn v. Robbins, 36 N. Y., 365, 372; Strong v. Grannis, 26 Barb., 122, 127.) And may plead usury. (9 Paige, 197.) It is also settled that forbearance is a valid consideration for a promise to pay the debt of another, only to the extent of the right of the party forbearing. (Jones v. Ashburnham, 4 East, 435; Thomas v. Williams, 10 B. & C., 664, 669.)

      John R. Putnam, respondent, in person.
    If this action was against the personal representatives of Mrs. Henriques, such a defense might he available; but it is insisted that the defendant, as guarantor of the notes in suit, and in an action on her special contract of guarantee, has no right to set up such a defense. She cannot show any fraud, illegality, error or mistake in the inception of the notes. (Mann v. Eckford's Executors, 15 Wend., 502; Remsen v. Graves, 41 N. Y., 475; Lewis v. McMillen, 41 Barb., 420, 431, 432 ; Gillespie v. Torrance, 25 N. Y., 306; Sterns v. Marks, 35 Barb., 565; McLaughlin v. McGovern, 34 id., 208, 211; Erwin v. Downs, 15 N. Y., 576.) That the notes in suit were obtained by fraud, was a personal defense to Mrs. Henriques or her personal representatives. (Willard’s Eq. Jur., 607; 14 Johns., 407; 2 Cow., 195, 238; 2 Johns. Ch., 252.) The defendant was not a party to the notes ; she was a guarantor of their payment, and the action was on the guarantees; and the guarantees were special contracts separate from the notes. (4 Seld., 215; 20 N. Y., 337 ; 6 Barb., 285; 22 id., 516.) By the contract, defendant, for a valuable consideration, agreed that the notes should be paid. The words “ value received ” admit a good consideration for the guarantee. (22 Barb., 516; 24 Wend., 35; 23 N. Y., 495; 19 Wend., 557.) Hence, by the terms of the written contract, entered into by the defendant for a valuable consideration, she became liable to pay the notes, and to allow her to show that the notes were invalid in whole or in part, as a defense in an action on her guarantees, would violate the terms of the written contract.
   Learned, P. J.:

Mrs. Henriques, in her lifetime, made two notes to Dr. Allen, the plaintiff’s testator. After her death the defendant guarantied them, by writing under each, as follows:

“For value received I hereby guarantee the payment of the above note.

“L. W. SCHUYLER.”

On the trial the defendant offered to prove that Dr. Allen was the medical attendant of Mrs. Henriques; was in the habit of advising her as to financial and other matters; that sh% reposed ¿onfidence in him in relation to her affairs; together with certain other matters tending to show that the notes were obtained by fraud, and that they were without consideration. The evidence was objected to on the ground that, by executing the guaranty, the defendant had admitted the notes, and was estopped; that the defense of fraud was personal to Mrs. Henriques and her representatives; that the defendant could not impeach the settlement between maker and payee. The evidence was excluded, and the defendant excepted.

I assume, from the manner in which the case is presented, that it was not really claimed on the trial that these matters would not have been competent in behalf of the representatives of Mrs. Henriques. Their exclusion was on the ground that they were not competent in behalf of the guarantor. On this subject, of the right of a guarantor to set up defenses which would undoubtedly be valid in favor of the principal, there is an apparent conflict. But a little discrimination will show that the conflict is only apparent.

First. There is a class of cases in which the owner of a note or bond has assigned it, with a guaranty. In these, it has been held that the guarantor could not show that the instrument was invalid. It would be unjust to permit him to assign an invalid instrument; to guaranty its payment or collection; to receive the value, and then, when sued on his guaranty, to assert that the original instrument was invalid. He is estopped. The case of Mann v. Eckford’s Executors, is of this character. The Life and Fire Company, of which Eckford was president, assigned to the Western Insurance Company a bond and mortgage. Eckford guarantied the bond and mortgage, and the money paid for it, expressing the amount. The defendants, his executors, were not allowed to set up usury in the bond and mortgage, against the plaintiff, the receiver of the Insurance Company.

Second. The guarantor is held liable in those cases in which the debt is justly owing, although, from some defect or incapacity, the principal is not liable in an action. Thus, where the makers of a note were married women, incapable (then), of making a note, the accommodation indorser was still held hable, The guarantor of a lease is liable, although only one of the two lessees executed the lease. In that case, Judge Baooít speaks of this' class of cases, mentioning,- among others, the guaranty of goods sold to an infant. So the guarantor of a note purporting to be made by two, where the signature of one is unauthorized, is liable. In all these cases the debt is justly owing to the plaintiff; and through no fault of his, he is unable to recover against the principal, or one of the principals.

Third. A guarantor cannot set up, by way' of set-off, a claim distinct from that on which he is sued. The right of set-off (that is, as distinguished from a defense arising upon the claim itself) belongs only to the principal debtor, and can. be used only at his option. Such is the doctrine of Gillespie v. Torrance, and this ' is all which that case decides on this point. By indirection, however', it implies that a defense to thé claim (as distinguished from a set-off), is available to the guarantor. To the same effect is Lewis v. McMillen.

Fourth. But there are still other cases which are not embraced within either of these three preceding classes: cases where the plaintiff is the original party to the contract, and therefore has not received it by assignment from the guarantor; where the proposed defense is not the in competency of the principal to contract; and where it arises out of the contract itself, and not by way of set-off. In these the guarantor has been permitted to make, the defense.

He has thus, as to the original contract, been allowed to set up usury; duress of his principal; partial failure of consideration. And I find no case which intimates that when a person has obtained an obligation from a principal by fraud, he can wipe out the fraud by obtaining a surety to the obligation. Assuming that, in justice and equity, the obligee, by reason of fraudulent acts on his part, has either no claim, or a less claim, against the principal, I see no reason why he should stand in a better position against the guarantor.

The distinction which has been pointed out, viz., that inability on the part of the principal to contract is no defense to the guarantor, while-fraud in the contract is, may be found in the civil law. This says that personal defenses do not pass to others, but that defenses, inherent in the thing, such as, among others, fraud and duress, are available to sureties. “ If, in the principal obligation, there is any essential vice which may annul it, as if it has been contracted by force, if it is contrary to law, or to good manners, if it be founded only on a fraud, or on some error which may suffice to annul it; in all these cases the obligation of the surety is likewise annulled.”

The defendant offered to prove acts of the plaintiff’s testator, tending to show that he obtained the notes improperly from the maker; that he took advantage of her confidence in him, and that she did not owe him. If these facts be true, he ought neither to recover of her representatives on the notes, nor of the defendant on her guaranties.

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

Present — Learned, P. J., Boardman and James, JJ.

Judgment reversed, and new trial'ordered, costs to abide event.

       Remsen v. Graves, 41 N. Y., 475 ; Zabriskie v. C., C. and C. R. R. Co., 23 How. (U. S.), 399.

       15 Wend., 503.

         Erwin v. Downs, 15 N. Y., 576 ; see Kimball v. Newell, 7 Hill, 116.

       McLaughlin v. McGovern, 34 Barb., 208.

       Sterns v. Marks, 35 Barb., 565.

         25 N. Y., 306.

       41 Barb., 420.

       Morse v. Hovey, 9 Paige, 197; Parshall v. Lamoureaux, 37 Barb., 189.

       Osborn v. Robbins, 36 N. Y., 365; Strong v. Grannis, 26 Barb., 122.

       Sawyer v. Chambers, 43 Barb., 622.

        Dig., 44,1, de exeeptionibus, c. 7, § 1 ; Cod. 3, 24 (23) de fdejuss, 2.

       Strahan's Domat, bk. 3, tit. 4, § 5, art. 2; id., bk. 3, tit. 4, § 1, art. 10.


author: Learned, P. J.: Boardman, J.

text:
    LUCY BEAU, Appellant, v. ANTOINE KIAH, Respondent.

      Married woman — services of, performed at request of and, for others — who entitled to sue for.

    The plaintiff, a married woman, living with and keeping house for her husband, took care of her mother and sister, who were sick at the house of defendant, who promised to pay her for her services. Meld, in an action brought by her to recover for such services, that she was properly nonsuited; as her services belonged to her husband, he alone could maintain the action. (Boardman, J., dissenting.)

      This is an appeal by plaintiff from a judgment of nonsuit in a County Court, and from an order of said court denying a motion for a new trial.
    The plaintiff is and was a married woman, living with and keeping house for her husband. Defendant s her father. In 1867 and 1868, plaintiff’s mother and sisters were sick at defendant’s house. Defendant came for plaintiff to get her to go to his house and take care of her mother and sisters, and said he would pay her well. She went -and took care of them for six months. After their deaths plaintiff returned home. Plaintiff never carried on any business on her own account. Upon this evidence the plaintiff was non-suited, upon the ground that her services belonged to her husband, and he only could maintain the action.

      J. H. Magone, for the appellant.
    A married woman may maintain an action to recover for her labor or services under a contract made with her therefor, without showing that she carried on business on her own account beyond that out of which the claim in suit arose. (Adams v. Curtis, impld., etc., 4 Lans., 164.) It is enough that a separate contract is made with her for her labor or services, to entitle her to recover, without the necessity of holding out to the world that she is transacting business on her separate account, as a feme sole, with the permission of her husband. The statutes of 1860 and 1862, necessarily include the right on the part of a married woman to make valid bargains for her labor or services before they are performed. (Adams v. Honness and others, 62 Barb., 326.) If a married woman can make valid bargains for her services, it follows that she can enforce them. (Brooks v. Schwerin, 54 N. Y., 343.)

      J. MacNaughton, for the respondent.
    At common law, the wife’s services and earnings belonged to her husband. (Reeve’s Dom. Rel. [Parker’s ed.], 138, and cases cited; Filer v. N. Y. C. R. R., 40 N. Y., 56 ; 1 Chit. Pl., 84.) It is the wife’s capacity as trader or laborer, on her “ sole and separate account,” that gives her a property in her earnings. The cases recognize, pointedly^ the • different capacities in which a married woman may trade and labor, and uniformly assert the “ sole and separate ” capacity of the wife as the only foundation of her right to contract, and of her right to her earnings. (Filer v. N. Y. C. R. R., 49 N. Y., 48; Brooks v. Schwerin, 54 id., 343; Kinne v. Kinne [Fourth Dep., Gen. Term, 1873], 45 How. Pr., 68 ; Hansee v. De Witt, 63 Barb., 53; Perkins v. Perkins, 7 Lans., 71; 4 id., 166.) Adams v. Curtis, recognizes a “ sole and separate capacity as an essential ground of right, although the case stands alone in an attempt to apply no other or wider test of it than the particular labor sought to be recovered for. (Filer v. N. Y. C. R. R., 49 N. Y., 47; 8 S. C. [1 Hun], 542.) The statutes conferring privileges upon married women are in derogation of the common law, and to be strictly construed. (7 Lans., 22; 6 Hill, 382; 5 N. Y., 383; 14 Barb., 531, 532; 4 Sandf., 236.) If their terms admit of two interpretations, that should be adopted which most nearly conforms to the rule of the common law. There is no evidence in the case to show that the plaintiff did the service in her sole and separate (“ independent ”) capacity.
   Learned, P. J.:

I suppose the husband is still entitled to the services of the wife. This must be so, because on the husband only lies the obligation to support the family. If not entitled to her services, while bound to support her and the children, he cannot require her to aid him, or claim to receive the value of her services, when she works for others. She may perform labor and services, as she may carry on business on her separate account. But not all labor performed by her is necessarily separate. A wife cannot recover for loss of ability to work. If her earnings were her own, then she could recover, although not actually engaged in work. A man recovers for damages by reason of inability to work, when injured. Whether he was actually working or not, is important only as a test of the value of his work, not as a ground of recovery. Therefore, if a married woman were entitled to her earnings in all cases, the decision in Filer v. N. Y. C. R. R. Co. would be wrong. Brooks v. Schwerin seems to be an overruling by the Commission of Appeals of Filer v. N. Y. C. R. R. Co., decided by the Court of Appeals.

Adams v. Curtis only holds that the earnings in that case might he separate, although there had been no other separate work. The contract in that case was between the wife and a firm of which the husband was a partner. That fact made the earnings, or might make them, separate property. .In the present case there is no evidence that the husband knew anything about the services. If we reverse the judgment, we must hold unqualifiedly that every time when a married woman does any work for a person, other than her husband, her earnings are separate. If this be so, I do not see why she is not entitled to be paid by her husband when she does work for him'—-nurses him in sickness, or sews on his buttons in health. If we are to take the statute literally: The earnings of any married woman from her * * * labor and services shall be her sole and separate property,” why not her earnings in the work of the household? The section must be read as a whole. “A married woman may, etc., perform- any labor and services on her sole and separate account, and her earnings * * * from [such] her * * * labor and services shall,” etc. That is, she may carry on business, and she may perform labor, on her separate account. But not necessarily all business carried on, or labor performed by her, is on her separate account.

The judgment should be affirmed.-

Boardman, J.

(dissenting):

By the statutes of 1860, it is enacted that the property which a married woman acquires by her trade, business, labor or services, carried on or performed, on her sole or separate account * * * shall, notwithstanding her marriage, be and remain her sole and separate property, and may * * * ' be collected * * * by her in her own name, and shall not be subject to the interference or control of her husband, or liable for his debts.”

By the second section of that act it is provided that a married woman may * * * perform any labor or services on her sole and separate account; and the earnings of any married woman from her * , * * labor or services, shall be her sole and separate property.”

Undoubtedly, the object of this and other similar laws, was to protect married women from the incompetency, the rascality and dissipated habits of husbands. It is the duty of the husband to provide for and support the wife; experience, however, has often shown that husbands have failed in this duty, and that the wife has supported the husband and his family. Where he was wasteful, dissipated and reckless, he would often spend all his own earnings and the property and earnings of his wife, and, under the common law she had no protection. Even if living separate from him and supporting herself, his creditors could, for his debts, seize her prudent accumulations and leave her destitute. He was as absolutely entitled to her industry and earnings as though she were his slave. These laws were passed to emancipate the wife. Such has been the view taken by the courts. How, it is held that the ordinary domestic services of the wife are not carried on for her own account, but for the joint benefit of the family, as a duty to the husband. But, when she goes outside of the family and performs services not due to her husband, such services do not, of right, belong to the husband, and her earnings are her own, as if she were a feme sole.

The reasoning of Lott, Ch. C., in the dissenting opinion in this case, would lead to most unhappy results. The security of the wife’s natural rights would lead to a separation of families. The wife, instead of struggling to preserve the family circle, would be rewarded only upon condition of its abandonment. The ease of Filer v. N. Y. C. R. R. Co., which is cited as an authority for such a doctrine, in fact decides only that the wife could not recover for the loss of ability to labor and earn money, by reason of an injury, because she' was not actually engaged in some service in which, but for the injury, she would have earned something for her separate benefit. There was no claim in that case that she had ever done any but household labor and domestic service in the family of her husband. But if the case were doubtful upon principle, it is res adgudicata in this court. The very point was decided in Adams v. Curtis, in which Miller, P. J., says: “ Hor is it essential, for the purpose of maintaining an action to recover for her labor and services, to show that she carried on business on her own account, beyond the claim for which an action is brought. It is enough that a separate contract is made with her for her services, to entitle her to recover, without the necessity of holding out to the world that she is transacting business on 'her separate account, as a feme sole, with the permission of her husband.”

This is decisive of the present case. The case. of Adams v. Curtis, so far as its principles apply to the one under discussion, has been approved in Perkins v. Perkins.

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

Present—Learned, P. J., Boardman and James, JJ.

Judgment affirmed.

       Filer v. N. Y. C. R. R. Co., 49 N. Y., 47.

       54 N. Y., 343.

         See dissenting opinion of Lott, Ch. C.

       4 Lans., 164.

      Page 157.

       Brooks v. Schwerin, 54 N. Y., 343, 348.

       49 N. Y., 47.

         4 Lans., 164.

      62 Barb., 531, 540.


author: Boardman, J. : James, J.:

text:
    NORMAN COX, as Executor, etc., of HENRY PECK, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Stipulation that action should not abate by death of plaintiff— power of counsel to make—Code, section 121—meaningcf verdict in—Exemplary damages—inwhat cases they may be given.

    Where an application was made by defendant’s counsel to put a case over a term of the court, and, as a condition of the cause going over, the defendant’s counsel stipulated that in case of the death of the plaintiff before final judgment, the cause of action should survive, and not abate by his death; held, that an authority in the counsel to make such stipulation could not be inferred from his employment, but must be established as a fact. (James, J., dissenting.)
    As to whether the stipulation, if authorized by the defendant, would be validi guare.

    After a verdict is set aside, it is as if no verdict had ever been rendered, and a verdict which is afterward set aside will not be sufficient, under the second paragraph of section 121 of the Code, to prevent an action from abating by the death of a party.
    The essence of a wrong’s justifying exemplary damages is, that it shall be an intentional violation of another’s rights, or that a proper act shall be done with an excess of force and violence, or with malicious intent to injure another in his person or property.

      Appeal from a judgment for the plaintiff, of $4,000 damages besides costs, entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes.
    The plaintiff’s testator, having purchased tickets upon the defendant’s road, entered a drawing-room car and took a seat there. Upon being applied to for extra pay for seats in that car, he declined to pay or give up the seats for the reason that there were no vacant seats in the ordinary coaches. Thereupon the conductor forcibly removed him from the cars at Palatine Bridge, returning his passenger tickets. The testator brought this action against the defendant for the wrong and injury done him, and, upon the first trial, recovered a verdict of $8,000. The damages claimed in the complaint being only $5,000, the excess was remitted, and judgment entered for $5,000 damages. On appeal to the Supreme Court, third department, such judgment was set aside and a new trial granted, because the damages were excessive.
    On a subsequent application of the defendant to put the cause over a Circuit at which it was noticed by the plaintiff for trial, the counsel for the defendant, as a condition for the cause going over the term, stipulated that in case of the death of the then plaintiff before final judgment, the cause of action should» survive, and not abate by his death. Before the case came on for trial, the then plaintiff died, and the present plaintiff was substituted.
    Upon the last trial a recovery was had for $4,000, and a motion for a new trial upon the minutes was denied. From such order, and from the judgment entered upon this verdict, this appeal is taken.

      Isaac S. Newton, for the appellant.

      Robert A. Stanton, for the respondent.
   Boardman, J. :

Three reasons are urged why this j udgment should be reversed and a new trial granted, or judgment ordered for the defendant.

First. That the action abated by the death of the testator, Henry Peck, and the cause of action does not survive.

Second. That there is no evidence of malice, as was adjudged upon the former appeal in this court, or other misconduct on the part of the conductor, which can justify the charge of the court allowing exemplary damages, and that the charge in that respect was erroneous.

Third. That the damages are excessive in any point of view, and vastly exceed the law of compensation to which plaintiff or his testator was entitled.

But for the stipulation, I am satisfied this cause of action would have died with the plaintiff’s testator. The final clause of section 121 of the Code takes the place, in my judgment, of section 4, 2 Revised Statutes, 387. The verdict therein referred to, is the verdict upon which the case shall thereafter proceed. When such verdict is set aside, it is as though no verdict had ever been rendered in the case. The judges of the Court of Appeals have acted upon this belief in at least two cases. Such a recognition by that court should guide us, notwithstanding the suggestion that it was inconsiderate.

Does the stipulation, if authorized, wipe out the law, and make, by virtue of its own intrinsic power, a new law directly hostile to the old ? I think not. It is a stipulation that the court may do what the law says it cannot do. It creates a right in the plaintiff outside of and in hostility to the law. In many cases, rights are given to parties for their benefit, which they may waive. Here, an absolute right is attempted to be created by the parties, the law denying its existence. It is an extreme view to suppose that an attorney or counsel may impose such an obligation upon his client. It is not within the ordinary conduct of a cause. Ordinarily, what relates to the remedy only, may be controlled by the attorney, if within the fair scope of his authority as an attorney, in the progress of litigation. But when he attempts to deprive his client of an abstract right, given by the law, and in no way related to the conduct of the litigation intrusted to him, he acts in excess of any real or implied power intrusted to him. The courts have gone far in some instances to justify counsel in the use or waiver of remedial processes, used for the protection of rights or the prevention of wrongs, but such conduct has been adjudged, in the respective cases, to be within the scope of the'apparent,' if not real, authority conferred by the client. Such a presumption cannot be indulged in this case. The act done was so far from the ordinary conduct of the case, so novel in its character, and so extraordinary in its consequences, that an authority should not be presumed from employment, but must be established as a fact. It follows that this action cannot be maintained as for a tort since the death of Henry Peck.

It is suggested that this action might be sustained, by virtue of the stipulation, as an action for a breach of contract. That may be true. As such an action seeks only compensation for an actual loss sustained, this judgment could not stand; it would be excessive in amount. Besides, the charge of the court in that view is erroneous in the many respects to which exceptions were taken by defendant, and especially in the rule of damages laid down.

Upon the hearing of the former appeal in this case, Mr. Justice Daniels, delivering the opinion of the court, held, in substance, that there was no evidence in the case that would justify the allowance of exemplary, or vindictive damages, and that as a consequence the former judgment of $5,000 was entirely beyond what was justified by the circumstances of this case, even if it be one which would justify punitory or exemplary damages.

The case has been retried upon the sainé evidence, in substance (and in fact, as to Henry Peek and Moody), and the jury have now rendered a verdict of $4,000. Is not this verdict condemned by the former decision as excessive ? The essence of a wrong justifying exemplary damages is, that it shall be an intentional violation of another’s rights, or that a proper act shall be done with an excess of force and violence, or with malicious intent to injure another in his person or property. “ It can make no difference whether the action be one nominally ex contractu or ex delicto. * * * In either case, if no evil motive be imputed, the amount of compensation is as much a matter of law as the right itself, and can with no greater safety be submitted to the vague and fluctuating discretion of a jury.” In this case the plaintiff’s testator was notified that he must vacate the seat or pay for it. He refused to do either. It was optional with him to leave a train in which he could not procure a seat Without extra pay, or to pay for such seat. On his refusal to do either, the conductor removed him with such slight force as was necessary. There is no evidence of an intent to do more than was necessary to accomplish that purpose. There is no evidence of malice or of any preconceived intent to injure the deceased. There is little, if any, personal injury to the deceased; the loss of time ivas of no moment. What is there, then, in the case that calls for a verdict of $1,000? Little, indeed, Besides the mortification and humiliation to which the testator was exposed by being put out. There is nothing in the case to show that defendant did not run sufficient trains to accommodate the public at 'the ordinary fare. In fact, the testator was so accommodated within two hours after being put off. If it be conceded that some exemplary damages might have been justly allowed, yet they should be in proportion to the aggravation. Here we have seen that the aggravation, if existing at all, was very slight, yet the defendant is punished to nearly the extent of $1,000 beyond actual compensation for such slight or doubtful aggravation. We are disposed to concur in the views of Mr. Justice Daniels, and to hold with him that the damages in this case are so excessive as to show prejudice, passion, or an incorrect appreciation of the law applicable to the case.

For the reasons first herein given, the judgment and order appealed from must be reversed. But, since the cause of action did not survive the death of Henry Peck, the trial thereafter was a nullity, and no new trial should be ordered. Following the precedents in 13 Howard, 91, and 51 New York, 536, no costs are allowed.

James, J.:

This was an action by Henry Peck, to recover damages for his forcible removal from one of the cars running on defendant’s road. Since the first trial of the cause, the plaintiff, Peck, has died, and the plaintiff, as executor, has been substituted as plaintiff in his stead.

It appeared that the deceased bought three tickets for himself, wife and daughter, from a lateral road, entitling the holders to a passage on defendant’s road from Utica to Albany. At Utica, these persons went on hoard of a train standing on the track, and took seats in a palace car. After the train started, they were called upon for their passage tickets, which were presented, accepted and taken up by the train conductor. A few minutes after, the drawing-room. car conductor called upon them to pay for the seats occupied in said car. This the deceased refused. He was informed of the rules of the cars, and of the duty of the conductor to collect pay or require their removal from that car; and that, unless complied with, he should be compelled to cause their removal therefrom. The train was a special train, running in competition with a Pennsylvania road, without reference to lateral roads in this State, and was made up of all drawing-room cars, except one common car in the rear. On being again required to pay for seats, deceased was notified of the car in the rear, but, as all the seats in that car were occupied, he refused to remove or pay for the seats in the drawing-room car. On arriving at Palatine Bridge, a regular stopping place, about forty miles distant from Utica, the deceased was removed from the car with no more force than necessary to overcome the resistance offered, his wife and daughter following of their own volition, the passage tickets being handed back. Within a short time thereafter, a regular train on the defendant’s road came along; the deceased, his wife and daughter got on board, and were carried to their destination- on said tickets.

In the charge, the court told the jury, if they believed that the conductor, in the performance of his duty, acted maliciously, recklessly, or violently, or was guilty of misconduct, they had a right to add what is termed exemplary damages,” etc. The jury found a verdict for $4,000.

This action had before been tried, and on that trial plaintiff had a verdict; a new trial was granted, and on such new trial the present verdict was obtained. Before the first trial, the cause being on the Circuit calendar for trial, the defendant sought to have the same go over the term, on account of the absence of a material witness, and on defendant’s stipulating that in case of the death of the plaintiff before final judgment, the cause of action alleged should survive, etc.; on these terms the cause was allowed to go over the Circuit. Before the present trial the plaintiff died, the present plaintiff was substituted, and the present verdict obtained.

So long as the defendant furnished a sufficient number of trains, with a sufficient number of proper cars, to accommodate the traveling public on the line and route of its road, it had the right to run extra or special trains, with palace or drawing-room cars, charging for seats or rooms therein, and to exclude from such cars all persons refusing to pay the extra price for seats therein. But every such train should in some way be so marked, designated or guarded, as that no passenger could get upon it without notice of its special character. In this case it was not so guarded ; the deceased and his family were permitted to enter without notice, and, under such circumstances, the defendant was bound to furnish them seats in a common car, or allow them to remain in the palace car, freed from the extra charge, to their destination.. Therefore, while the conductor was simply discharging his duty in their removal, and not liable for damages for its performance in a proper manner, the company itself was liable in damages, not for the acts of the conductor, but for not furnishing seats in a proper car according to the provisions of their contract, as implied from their purchased tickets.

It was the duty of the deceased, on being informed of the situation, either to pay the extra charge or leave the car, and look to the corporation for redress; but refusing to do so, he placed the conductor in a position where he had to disobey his orders or remove the deceased from the car. If, in the discharge of that duty, he used no more force than was necessary to overcome the resistance offered, no action could be sustained against him, and, consequently, none against his principal for that act.

The gravamen of this action, as I have shown, was the forcible ejection of the deceased from the car by the conductor, not for refusing to carry him in another car provided for passengers with similar tickets, or for a refusal to carry him in the drawing-room car, as that was offered if he would pay tor seats.

The court assumed, on the trial that, in putting the deceased off, the conductor was in the performance of his duty. It said: If the jury believed that the conductor, in the performance of his duty, acted maliciously, recklessly or violently, or was guilty of misconduct, they had the right to add exemplary damages,” etc. As an abstract proposition, this part of the charge may be unobjectionable, but it was not applicable to this case, and was improper, as implying that there was evidence from which the jury might find malice, recklessness, violence and misconduct, when in fact there was no such evidence. It was clear that there was no more force used than was actually necessary to overcome the resistance offered, and was not resorted to until after repeated notice, long forbearance, and after traveling a distance of over forty miles. The amount of the verdict shows that this feature of the charge was seized upon by the jury to punish the defendant for an act of its servant in performing his duty ■— for doing what he had the right to do. But if it were conceded that the conductor was guilty of an excess of force, of malice, recklessness, etc., in the discharge of his duty, and that it was a case proper for exemplary damages, the verdict was out of all proportion to the force used, or the injury inflicted, as appears by the case; and demonstrates that the jury must have been influenced by prejudice, passion, or something outside the case itself.

The next question is: Did the action abate by the death of the plaintiff? No question is made that, by common law, such would be the result of Peck’s death. But it is claimed that this rule of the common law has been changed by the Code; if not, that said result in this case has been saved by stipulation. The Code provides that, “ after a verdict shall be rendered in any action for a wrong, such action shall not abate by the death of any party, but the case shall proceed thereafter in the same manner as in cases where the cause of action now survives by law.” This subdivision of said section received a very careful consideration in Wood v. Phillips, although the precise question now presented was not passed upon. But it may be said in.this case, as was said in that, there is nothing in the language of section 121 inconsistent with holding that, after a verdict has once been obtained in an action of tort, the action does not abate, although the verdict be set aside, a new trial granted, and the plaintiff afterward die. Such would seem to be an equitable construction and application in cases where the verdict was set aside for excess of damages, as in this case. The Code is much broader in its provisions than the Revised Statutes, and, liberally construed, would reach this case, and place such causes of action, after verdict once obtained, as to liability to abate on the death of a party, on the same basis as a chose in action, and would be a construction not inconsistent with the progressive tendency of the age, seeking more exact justice. These views would seem, at first blush, inconsistent with the cases of Comstock v. Dodge, and Spooner v. Kelly, but in neither case was the effect of the Code upon the question even alluded to.

The stipulation in the case was, “that in case of Peck’s death before final determination and judgment, the alleged cause of action should survive,” etc. It is claimed that defendant is not bound by this stipulation, because the counsel had not authority, as such, to so bind liis client. It has been repeatedly held that the court, on application to put a cause over the Circuit, has power to impose, as a condition, that the party shall stipulate that the cause shall not abate in case of plaintiff’s death, It appears that in this case the stipulation was given as a condition of allowing the cause to go over the term, and whether imposed by the court, or given by the attorney, knowing the power of the court to impose it, makes no difference, having accepted it and availed itself of the benefit, the defendant is estopped from denying the power of its agent to make it.

Por the reasons first above stated, the judgment should be set aside and a new trial granted, costs to abide the event.

Learned, P. J., concurred in the opinion of Boardman, J.

Judgment and order reversed, without costs.

       Edmonds’ edition, 402.

       Comstock v. Dodge, 43 How., 97, and Spooner v. Keeler, 51 N. Y., 536.

       Sedg. on Dams., 472, 522, 528, 545, 617 ; Edwards v. Beebe, 48 Barb., 106; Wallace v. Mayor N. Y., 9 Abb., 40.

       See Townsend v. N. Y. C. and H. R. R. R. Co., 56 N. Y., 295; Cleghorn v. Same. id., 44.

      Sec. 121.

       11 Abb. (N. S.), 1.

      43 How. Pr., 97.

       51 N. Y., 536.

       Ames v. Webber, 10 Wend., 575.


author: Boardman, J.: James, J.:

text:
    CASPER CLOW, Respondent, v. JOHN J. VAN LOAN, Appellant.

      Chap. 347, Laws of 1855—penalties for running a toll gate — in whose name action to he brought— Conveyance of corporate property and franchises by company— validity of— Title to land — when brought in question.

    In pursuance of chapter 347, Laws of 1855, the eastern branch of the Schoharie Turnpike Company conveyed all its corporate property and franchises to one Nichols, who entered into possession of the road and collected tolls until 1867, when he conveyed all his right, title and interest therein to the plaintiff. Held (1), that the act of 1855 was constitutional and valid; (3), that the plaintiff was entitled to maintain an action in his own name, against the defendant for running a toll gate on the said road.
    Where, in an action, a deed is put in evidence for a collateral purpose, it does not bring in question the title to land.
    Appeal from a judgment in favor of plaintiff, entered in the Greene County Court.
    The action was brought in a Justice’s Court, to recover penalties for running a toll gate on a turnpike. The plaintiff claimed the right to bring suit through a conveyance by the turnpike company of its corporate property and franchises. The answer was a general denial; payment; that the action was not properly brought in the name of plaintiff; that defendant was exempt from paying toll; that plaintiff was not entitled to maintain the action, and that no cause of action existed. A judgment was rendered in favor of the plaintiff for $34.35, and was affirmed upon appeal to the County Court.

      James B. Olney, for the appellant.

      John Sanderson, for the respondent.
   Boardman, J.:

The act of 1855 was valid and constitutional; the legislature had the power to create the turnpike company. By the same power it could authorize such company to sell or transfer its corporate rights and franchises. The various acts of the legislature in evidence, show the existence of a legal company. Under the act of 1855, such company, by a deed, good upon its face, conveyed to Nichols the turnpike and all the company’s rights, franchises, etc., under its charter. This was in 1855. From that time until 1867, Nichols remained in the possession and use of said turnpike, collecting tolls thereon. I can see no rational principle upon which a doubt can be raised, either as to the power of the legislature to authorize such a sale to an individual, or the right of an individual to take and enjoy under such a sale. If it be conceded that the deed was informal, or that the requisite number of stockholders did not consent, it will not benefit the defendant. A sale was made, possession was given, and Nichols used and enjoyed the property sold, under a color of title, claiming to own, for over ten years. The defendant is not in a. position to attack such an ownership, or do violence to such a possession and user. If anybody could do so, it would be the stockholders of the company; but their laches and neglect would estop them.

If Nichols acquired any title to the turnpike property and franchises, he could convey them to the plaintiff just as the individual owner of a ferry franchise can sell it to another. Eights of this character may be obtained by prescription, and become property in the owners. Whatever property a man possesses, he may sell and convey, unless by his tenure it is forbidden,

It results from these considerations, if just, that Nichols acquired the right from the turnpike company, to demand, sue for, and receive tolls, and that he had a right to sell and convey to plaintiff such turnpike, and all the rights, privileges and franchises incident to its-ownership. When the company parted with the property, it had no longer any right to receive tolls or bring actions therefor. Such actions must be brought in the name of the real party in interest, Nor is it of the slightest consequence in this case, whether the turnpike company has been dissolved or still exists. It is sufficient if it appears to have divested itself of all interest in this action. So far as a forfeiture is urged, it is sufficient to say that the franchise must be forfeited by judicial proceedings, before an individual can avail himself of its misuser or omissions. It is further urged by the appellant, that the justice erred in not dismissing this action, because the title to land came in question. This claim is not sustained by the evidence. Plaintiff produced his deed, under which he claimed possession, and to connect himself with the charter whereby the right to tolls is given. The defendant did not dispute plaintiff’s title by proof. When a deed is put in evidence for a collateral purpose, it does not bring in question the title to land.

All that the plaintiff was required to do was to establish Ms possession of the turnpike, and the right derived from the company to collect tolls. The controversy was not over title to lands,-for it stands conceded that this turnpike had been occupied and used for such purpose for more than twenty years, and that for all that time tolls had been collected upon it. No one pretends it was not a turnpike upon which tolls were and had long been collected. But it is denied that plaintiff has shown himself in a position to sue for and collect penalties for non-payment of tolls. Showing himself in possession of the turnpike, is presumptive evidence of ownership for the purposes of this action. The deed or transfer of the company’s rights is then given in evidence to show, not a title to the highway, but a right to pursue such remedies as by statute were given to the company for interference with his possession and presumptive title.

If the foregoing reasoning is correct, the judgment of the Greene County Court should be affirmed, with costs.

James, J.:

I fully concur. The title to land did not come in question.

Present—Learned, P. J., Boardman and James, JJ.

Judgment affirmed.

       Chap. 347.

       Wiswall v. Wandell, 3 Barb. Ch., 315.

       Adams v. Beach, 6 Hill, 271.

         Code, § 111.

       Thompson v. N. Y. and Har. R. R. Co., 3 Sandf. Ch., 625; Adams v. Beach, 6 Hill, 271.