text:
    Lewis H. Livingston, Resp’t, v. The New York Life Insurance & Trust Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 16, 1891.)

    1. Trust—Suspension of absolute ownership.
    Certain property was held hy defendant in trust for the life of plaintiff’s mother in case she died before her husband, with remainder to plaintiff and his brother. Plaintiff and his brother executed an instrument hy which each conveyed to defendant his portion of said trust property in trust to pay the income thereof to the other for life, and distribute the principal on his death among his descendants; or in case he died without issue, to pay the income to the settlor for life and on his death to distribute the fund among his heirs. On the death of their mother they ratified the agreement and conveyed property to defendant to carry it into effect. Held, that the interest of each in the trust estate was a future estate which could, be aliened by them as if in their possession; that they had no power to continue the trust; that the trust created by them sprang into existence by the instrument which they executed and had no connection with the prior trust, and being limited to their two lives was not in contravention of the statute.
    3. Same—Consideration.
    The instrument executed by the brothers was a mutual agreement, although such mutuality was not expressed in terms; each trust was the consideration for the other, and not merely the voluntary act of the settlor.
    3. Same—Rescission—Mistake.
    His brother having died, the plaintiff now seeks to rescind the agreement on the ground that it was not drawn according to instructions, and that he never intended to make a trust of the nature expressed therein. Held, that his brother having completely executed the agreement, plaintiff could not rescind in the absence of proof that the mistake was mutual, or that it was procured with fraudulent knowledge on the part of his brother.
    Appeal from judgment in favor of plaintiff entered after trial at special term.

      B. K Bobinson, for app’lts; Delos McCurdy, for resp’t.
   Van Brunt, P. J.

In the year 1876 the defendant, the New York Life Ins. & Trust Company, held as trustee under the will of one Jas. Boggs certain real and personal property. The beneficiary for life was Julia A. Livingston, the mother of the plaintiff and one James B. Livingston, now deceased. The terms of the trust were, in substance, that it should continue during the joint lives of Julia A. Livingston and Lewis Livingston, her husband. In case Lewis Livingston should die first, then the trust was to cease and Julia A. Livingston was to take absolutely the whole property. In case Julia A. Livingston should die first, the trust was to cease and her issue were to take absolutely the whole property. At the time mentioned both Julia A Livingston and Lewis Livingston were living; and there were also then living the only issue of said Julia A. Livingston, her two children, the said Lewis H. Livingston and James B. Livingston, now deceased. On the 16th of December, 1876, the said two children, James B. Livingston and Lewis EL Livingston, by an instrument dated on that date, after reciting the judgment fixing the terms of the trust then existing under the Boggs will, and that they were the only children of said Julia A. Livingston and her only present descendants, and being desirous to continue the aforesaid trust in the New York Life Ins. & Trust Co. as to a part of said property in case they or either of them should survive the said Julia A Livingston, and in the event of the death of the said Julia A Livingston in the life of her said husband, from and after the death of said Julia A. Livingston to the extent in said deed particularly set forth, conveyed to the defendant, the New York Life Ins. & Trust Company interests in said trust funds in the following language:

“ That the said James B. Livingston, one of the parties of the first part, doth hereby grant, transfer and assign to the said New York Life Insurance & Trust Company the sum of $100,000, parcel of the aforesaid trust property to which he is now or shall hereafter be entitled according to the terms and conditions of the aforesaid judgment and now in the possession of said New York Life Insurance & Trust Co., subject to the life estate of said Julia A. Livingston and subject to be divested in the event of the death , of said Lewis Livingston, the husband of said Julia A. Livingston during her life, and subject to the further conditions hereinafter set forth, upon the trusts and conditions as follows: to invest said sum of $100,000, and keep the same invested during the life of said Lewis H. Livingston, Jr., to receive the income thereof and pay over the net proceeds of the same to the said Lewis H. Livingston, Jr., during his life and upon his death to distribute the said sum of $100,000 with its accumulations, if any, equally among the children of said Lewis II. Livingston and the descendants of his deceased children per stirpes. If the said Lewis H. Livingston die without issue living, then to pay the income to the said James B. Livingston for his life and upon his death to distribute the same equally among the children and the descendants of the deceased children of said James B. Livingston in equal shares per stirpes.”

The deed then contained a precisely similar grant from Lewis H. Livingston to the Trust Company of $100,000 for the benefit of James B. Livingston and his issue if he should die leaving issue with remainder over to Lewis H. Livingston, Jr., and his children if James B. Livingston should die without issue.

Thus these two brothers attempted to create a trust which might continue as to some portion of the trust at least during their lives. Thereafter in November, 1884, Julia A. Livingston died, leaving her husband Lewis Livingston and her said two children surviving ; whereupon the trust under the Boggs will ceased and the ■ entire property held thereunder vested in her children subject to the trust above recited, created by the instrument of the 16th of December, 1876.

On the 21st of February, 1885, Lewis H. and James B. Livingston and the Trust Company entered into an' agreement dated on that day, whereby certain specific property was set out to make up the respective funds of $100,000 as called for by the instrument of 1876, which instrument contained clauses formally ratifying the trust created by said instrument of 1876; and expressly granted, transferred and assigned to said Trust Company, the said property to be held by said company upon the trusts set forth in the deed of December 16, 1876. Thereafter in October, 1887, James B. Livingston died leaving a last will and testament which has been proved and letters testamentary thereon granted to one of the executors therein named. By this will James B. Livingston devised all his estate after the payment of his debts to his brother Lewis EL Livingston and to his heirs absolutely and forever.

This action was brought by the survivor, Lewis H. Livingston, to break the trust, principally upon the ground that the trust was not originally drawn according to the instructions given, and secondly upon the ground that the trust attempted to be created was in violation of the provisions of the statute prohibiting the suspension of the absolute ownership of property beyond the term of two lives in being at the date of the instrument containing such limitation or condition. The court held with the defendants upon the first claim ; and with the plaintiff upon the second; and from the judgment thereupon entered this appeal is taken.

It is urged in support of the judgment that as the absolute ownership of the trust estate was suspended during the life of Julia A. Livingston by the express terms of the instrument under consideration, that disability was continued for two additional lives, because by its terms the trust as made embraced every existing trust estate and continued the same trust in the same trustee for the two additional lives. And we are cited to the case of Genet v. Hunt, 113 N. Y., 158; 22 N. Y. State Rep., 774, as an authority that such a suspension is void.

In determining this claim it will be necessary to consider for a moment the precise situation of the parties in respect to this particular trust. The foundation of the claim of the plaintiff depends as far as this point of the case is concerned upon the fact that the deed of December, 1876, was a continuation of an existing trust. If this was not the fact then the case of Genet v. Hunt has no application, and the claim has no foundation.

Now what was the interest of James B. and Lewis H. Livingston in the estate in which their mother had only a life interest if she did not survive her husband ?

The Revised Statutes provide, vol. 1, p. 723, marg. paging, that estates, as respects the time of their enjoyment, are divided into estates in possession and estates in expectancy; that an estate in possession is where the owner has an immediate right to the possession of the land (and it may be said here that these propositions are applicable to personal property), and that an estate in expectancy is where the right of possession is postponed to a future period.

Now, therefore, James B. and Lewis H. Livingston had an estate in expectancy in this property which was involved in the trust created by the Boggs will.

The statute then proceeds as follows: “ Estates in expectancy are divided into estates commencing at a future day, denominated future estates, and reversions. A future estate is an estate limited to commence at a future day either without the intervention of a precedent estate, or on the determination, by lapse of time or otherwise, of a precedent estate created at the same time. A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of a particular estate granted or devised.”

It will thus be seen that the interest which James B. and Lewis H. Livingston had in this fund was a future estate, it being limited upon the termination of the particular estate during the lifetime of their father.

The statute further states that future estates are either vested or contingent. They are vested when there is a person in being who would have an immediate right to the possession of the lands upon the ceasing of the intermediate or precedent estate. They are contingent whilst the person to whom, or the event upon which, they are limited to take effect remains uncertain.”

Therefore, Julia A. Livingston, under the Boggs will, was not only a life tenant but held a contingent future estate, and so did her sons, James B. and Lewis H. Livingston hold a contingent future estate in the trust funds.

The Revised Statutes, by the provisions to which attention has been called, have thrown under one head all future estates, whether vested or contingent, and whether formerly known as vested remainders, contingent remainders, executory devises or by any other name.

By § 35 the statute provides as follows: “ Expectant estates are descendible, devisable and alienable in the same manner as estates in possession.”

Therefore, the person in whom an expectant estate is vested has the same control over the interest which he thus possesses as though he were in actual possession of the property representing the estate. He may deal with it in precisely the same manner. And this is all that James B. and Lewis H. Livingston did by the deed of trust under consideration.

It is true that they speak of continuing the trust contained in the Boggs will. But they had no power to continue that trust; they could add nothing to that will. Whatever trust they could create sprang into existence by the instrument which they executed. It there had its origin and it had no relation whatever to the trust created by the Boggs will. It was the complete creation of a trust if the Boggs will had never been mentioned in it; and the mere fact of the mention of that will and the fact that the settlors have recited in the instrument that they were going to do a thing which was improper cannot invalidate that which they legally did. The recital of the instrument does not control. They recited that they were going to continue that trust, which was an impossibility. All that they did was to create another trust, affecting, it is true, a portion of the same property. But it was in the exercise of the power of alienation conferred upon them by the statute that they executed this trust deed. There is no question but that, had they the property in possession, they could have erected this trust in respect to the same property. Now as they could alien their estate in the property, although held in trust during the joint lives of their father and mother, precisely the same as though they had it in possession, we fail to see any reason why they might not create a trust in respect to that property.

The difficulty about the position of the plaintiff in this respect is that he has confounded the case of the alienation of an expectant estate with a case where the power to act is derived from the instrument which originally created the estate.

In the case of Genet v. Hunt, it was held that the exercise of the power derived its validity from the original instrument and related back to the original instrument It is the exercise of a power conferred by the original instrument and, therefore, whatever is done is deemed to be done by the original instrument And this is all that was decided by that case. The court say that an estate created by the execution of a power takes effect in the same manner as if it had been created by the deed which raised the power; that the power of disposition (referring to the facts of that particular case) “ reserved by Mrs. Eiggs in the trust deed was not an absolute power equivalent to absolute ownership. It was restricted to a disposition by will.”

In the case cited the power to act was derived from the instrument creating the trust. In the case at bar the power to act arose from the ownership of the estate, and such ownership was absolute, although it was an expectant estate, because, as already stated, the owner of an expectant estate has as much right to alien as the owner of an estate in possession.

This brings us to the next proposition, viz.: that the plaintiff never intended to make a trust of the nature expressed in the written instrument. It is claimed that if this is the fact he has a right to maintain this action for a rescission and cancellation of the trust; and the distinction between actions to reform an instrument and an action to rescind and cancel the same is called to the attention of the court, and it is urged that the mistake of the plaintiff alone is sufficient ground for its rescission and cancellation.

Whatever may be the rule in that regard, and we express no opinion about it in respect to executory contracts, it is certainly not the rule in respect to executed contracts. In the case at bar one of the contracting parties has completely executed his share of the contract. The other party, he being dead, proposes to break the trust upon the statement that the instrument was not of the character that he intended. Was it of the character that the other party intended ? There is no pretense but that it was of the character which James B. Livingston intended. Where is the authority, in the case of a contract of that description, where one party has completely executed it, for the position that the other can rescind and cancel it upon the pretext that he did not intend to make such a contract?

There is only one condition of affairs, as we understand it, which will permit the rescission of a contract under such circumstances, and that is, either the mistake must be common to both parties, or through the mistake of the plaintiff, accompanied by the fraudulent knowledge and procurement of the other party, the written instrument fails to express the real agreement or transaction.

It would be a strange condition of the law to hold that any one party to an agreement, after having received all the possible benefits or chances of benefit from the agreement which the other party could give him, should, because the other party has died, be allowed to rescind and cancel the agreement upon the pretext that he did not intend to execute such a contract.

But it is urged that the trust agreement is not a mutual agreement ; that there is no expression of mutuality; that they did not by the terms of the contract as written mutually agree, nor are they made to say that they were moved by any consideration •of that character, and that upon the face of the trust deed, the •creation of the trust ^as the voluntary act of each.

Upon a reading of this instrument, it bears every evidence of mutuality. It is true that they did not in express terms say that they mutually agreed, but it is just as apparent that the one trust depended upon the other. It needs no argument to show that Lewis H. Livingston would not have made the trust which he did if Jas. B. Livingston had not made the trust which he did. One was the consideration for the other, and therefore it was not merely the voluntary act of each. The consideration ran from each to the other. We are cited to a long list of authorities going to show that a court of equity will at the request of the settlor set aside and cancel a deed of trust unless it is proved to be the voluntary, intended and well understood act of the settlor. These authorities have no application to the case at bar. This instrument was not unilateral. It was a mutual agreement between James B. and Lewis H. Livingston. The creation of the one trust was dependent upon the creation of the other; and as already stated, after Lewis H. Livingston has obtained all the benefits of this trust, to allow him to break it because James B. Livingston is dead, and as a will has been made in his favor he runs no danger in so doing, would seem to violate every principle of law.

We have not considered it necessary to discuss at length the many authorities cited to show that a voluntary deed of trust may under certain circumstances be recalled by the settlor. But this agreement, being between two parties, is to be so construed that it protects the rights of each. We think that if James B. Livingston had made a will leaving his property in another direction, the plaintiff would never have brought this action to set aside this trust. He never would have dreamed that that instrument did not express the true intent of the parties; and we think that the learned judge in the court below was right when he decided as matter of fact that Lewis H. Livingston had established no such proposition.

In fact, it is doubtful whether the evidence introduced by Lewis H. Livingston, for the purpose of showing what he understood, was at all admissible. James B. Livingston, the other party, was dead. The testimony of Lewis is that he and his brother went to the lawyer, who is also dead, to have this trust deed executed; and that he told the lawyer what his brother and himself wanted, and the instrument was drawn, read over to him, and executed.

Now, is not that giving evidence of a transaction between himself and his deceased brother ? It seems to be so. It is certainly within the evils arrived at by the prohibition of the Code.

But even if the finding of the learned court in this respect cannot be sustained, which we do not for a moment admit, there was subsequently and after the death of Julia A. Livingston a ratification of this deed, or if the acts done did not amount to a ratification, a creation of the trust. We are cited to a large number of authorities every one of which is to the effect that a principal cannot ratify the acts of his agent unless he knows what his agent has done. That seems to be elementary law and to be involved in the very act of ratification. It may be claimed that the case of Adair v. Brimmer, 74 N. Y., 539, does not fall within that category. But it clearly does. In that case it is held that where a trastee seeks to avail himself of the ratification by a cestui que trust he must show that .the, cestui que trust was fully acquainted with the facts.

In addition there is another principle applicable to that case, and that is, in dealings between a trustee and a cestui que trust, they are presumably fraudulent and the trustee must justify them, which he can only do by showing that his cestui que trust was fully advised.

After the death of Julia A. Livingston, Lewis H. and James B. Livingston, both knowing what they had done, expressly ratified it and set apart the property to be conveyed to the trustee; and not only ratified, but in order that there should be no mistake about it, if there was no act to ratify, they made a new conveyance to the trustee of the property to be held upon the trusts named in the original instrument; and yet again Lewis H. Livingston is doing something he did not intend to do.

It seems to be difficult to see how it was possible for these men to make a stronger declaration of trust than they have done by these proceedings.

It is not necessary to cite authorities to show that the terms of a trust may be contained in an instrument separate from the deed creating the trust

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

Daniels and Brady, JJ., concur.


source: Caselaw Access Project

author: Merwin, J.

license: Public Domain

text:
    In the Matter of the Application of Peter McFarland for a writ of habeas corpus.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Criminal law—Jurisdiction—Recorder op Oswego.
    The recorder of the city of Oswego has jurisdiction to hear and act upon a charge of larceny based upon a wrongful appropriation of property by a bailee, although he resides in another county, where the bailment was made in Oswego county and the goods were to be returned there.

      2. Same—Larceny.
    A person who intentionally appropriates to his own use property held by him as a bailee, is guilty of larceny.
    Appeal by the People, by the district attorney of Oswego county, from an order of the special surrogate of Oswego county, made in the above entitled matter, dated June 23, 1890, and entered in Oswego county June 25, 1890. The order discharged McFarland from the custody of the sheriff of Oswego county, who •held him under a commitment, made by the recorder of Oswego city, to await the action of the grand jury of the county.
    On the 24th March, 1890, the recorder, upon information upon oath, issued a warrant for the arrest of McFarland for the crime of grand larceny in the second degree. The arrest was made and a hearing had before the recorder, evidence being given on behalf of the People and also on behalf of the defendant therein. The recorder was satisfied that the crime charged had been committed, and that there was sufficient ground to believe the defendant guilty thereof, and ordered that he be held to answer in the sum of $300, and be committed to the sheriff of Oswego county until he give such bail. The recorder accordingly issued a warrant of commitment to the sheriff, who thereupon took the defendant. The latter then applied to the special surrogate of Oswego county for a writ of habeas corpus, alleging that the commitment was illegal for the reason that no evidence was given before the recorder tending to show the defendant guilty, and also that the recorder had no jurisdiction territorially to make the order of commitment Upon the hearing before the special surrogate, the evidence taken before the recorder was read. The grounds upon which the order of discharge was made, as recited in it, are, “it appearing upon such examination that the said Peter McFarland is unlawfully imprisoned and restrained of his liberty by reason of want of jurisdiction on the part of the committing magistrate to make the order of commitment on which said Peter McFarland is held upon the evidence and facts, and of evidence to sustain the same.”

      George T. Clark, Ass’t Dist. Att’y, for app’lts; Peter McFarland, resp’t in person.
   Merwin, J.

The questions on this appeal are (1) whether the recorder of Oswego city had jurisdiction territorially to make the commitment, and (2) whether there was such a lack of evidence before him as to the guilt of the defendant that his discharge upon habeas corpus was proper.

Upon the first proposition, the claim of the respondent here is that he lived in Cayuga county, and that the crime, if any, was committed outside of the county of Oswego. The recorder of the city of Oswego has in criminal matters the powers of a justice of the peace. Chap. 134 of 1849, § 2. He is a magistrate, under § 147 of Code of Crim. Pro. The substance of the crime charged was the wrongful appropriation of property by a bailee. The bailment, if there was one, was made in Oswego county, and the property was to be returned there. If we take the view most favorable to the respondent, it was a case within § 134 of Code Crim. Pro., which provides that “when a crime is committed partly in one county and partly in another, or the acts or effects thereof, constituting or requisite to the consummation of the offense, occur in two or more counties, the jurisdiction is in either county.” It follows that the recorder had jurisdiction territorially.

Upon the second proposition, the claim of the respondent is that the evidence before the recorder did not tend to establish the commission of any crime. Under § 528 of the Penal Code, a person who intentionally appropriates to his own use property held by him as a bailee is guilty of larceny. Within this definition there was before the recorder evidence, given on the part of the complainant, which the recorder had a right to believe, which tended to show the commission by respondent of the crime of larceny. There was conflicting evidence, but the -weight of that was for the magistrate to determine and should not be rejudged, in any ordinary case at least, in habeas corpus proceedings.

We think the contention of the respondent is not sustained, and that the order of discharge was improperly made.

Order reversed.

Hardin, P. J., and Martin, J., concur.


text:
    Robert Croasdale, Resp’t, v. Daniel M. Lanigan, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Adjoining owners—Lateral support of land—Basement.
    Plaintiff and defendant were adjoining owners. In grading his land for building, defendant removed soil along plaintiff’s line to a depth of several feet, and negotiations were opened as to the construction of a retaining wall. Defendant refused to construct it, hut finally agreed to give plaintiff two feet of his land on which to build it. The wall was accordingly built without complaint on the part of defendant. Held, that defendant could not afterwards withdraw his license or consent and remove the wall.
    Appeal from a judgment entered in Onondaga county on the 23d June, 1890, upon the decision of the Onondaga special term February, 1890, restraining the defendant from taking down or interfering with a retaining wall, built by plaintiff between the premises of plaintiff and defendant

      Jones & McGowan, for app’lt; Waters, McLennan & Waters, for resp’t.
   Merwin, J.

On the 2d of October, 1885, the plaintiff became the owner of a lot on Genesee street, in the village of Geddes, now city of Syracuse, and on the 28th of December, 1885, the defendant became the owner of a lot adjoining the plaintiff on the east. The land then sloped considerably from the west to the east, and- the plaintiff, prior to defendant’s purchase, commenced to grade his lot and to build a dwelling house thereon. In 1886 the defendant commenced to grade his land preparatory to building, and in so doing cut away and removed the soil up to and along the plaintiff’s east line to the depth of several feet, about four feet as the defendant testified, thereby removing the natural support to the plaintiff’s land, and, in order to prevent the bank from giving way and the soil on plaintiff’s lot from being precipitated upon the defendant’s land, negotiations were opened between the parties looking to the construction of a retaining wall. The plaintiff then claimed, as the defendant testifies, that he, the defendant, would be obliged to build a wall there to support the bank.

The defendant claimed he would not, but he would leave sufficient earth to support the land as it naturally lay there, and that he was not obliged to furnish support for new earth that plaintiff had placed there in grading. The plaintiff then wanted to buy of defendant two feet upon which to build a wall, but defendant declined to sell. After this, and on April 13, 1887, the defendant wrote the plaintiff a letter, in which, among other things, he said he had decided “ to give you the two feet you asked for to build your wall on.” The plaintiff ' immediately thereafter went on and constructed on the premises of defendant, along the western boundary thereof, a wall of stone, without mortar, of about ninety feet in length, and of height varying from four to six feet above defendant’s grade. In doing this a trench was dug some two feet below the then existing surface, and in it a footing course was laid, upon which the wall was built. The cost of the work to the plaintiff was about $100. Twenty-two inches of the wall was upon the defendant’s land, and it served to prevent the lands of plaintiff from falling upon the defendant’s land.

The defendant claims that the wall was not built in the manner that plaintiff proposed to do it in the interviews before the letter of defendant was written. This, however, the plaintiff denies, and the court below declined to so find. To the refusal to so find the defendant excepted, and now urges that this refusal was error. We cannot, however, say that this refusal was against the weight of evidence. The defendant made no complaint about the wall while it was being built, although he had opportunity to see it.

In the fall of 1889 the defendant threatened to remove the wall, and this action was then brought.

We must, I think, assume that the wall as built was substantially in accordance with the object and design of the parties when the consent of defendant was given in his letter of April 13,1887.

■ That being so, can the consent or license now be withdrawn and the wall be removed by the defendant. The theory of the defendant is that the plaintiff, in order to maintain the wall on defendant’s premises, must have an easement in them, and that the .license or consent or gift in this case did not give such easement.

The defendant seems to rely mainly on the case of Wiseman v. Lucksinger, 84 N. Y., 31. In that case the parties owned adjoining city lots fronting on a street in which there was no sewer. Defendant built an underground drain or sewer of plank from his house to a sewer in another street, and gave to plaintiff for the consideration of seven dollars a writing stating that the money was received “ for the right to drain through my premises,” and thereupon plaintiff built a similar drain of plank connecting with defendant’s drain. After the lapse of over twenty years the plaintiff took up his drain and replaced it with one of tile of larger capacity than defendant’s, and this operated to throw the sewerage back upon defendant. It was held that the license given by defendant was revocable, that it should be regarded as a temporary arrangement, and that the twenty years user did not give plaintiff a prescriptive right to the easement, as the possession was not adverse. In the opinion, page 41, it is said: “ There are no doubt many cases in which courts recognize an equitable right to an easement without a deed, but there will be found in them either an express agreement for an easement, or an acquiescence or consent by conduct which has led to the erecting of permanent' works or valuable and lasting improvements, or some other fact which would make the assertion of a legal title operate as a fraud upon the persons setting up the equitable right. But here there is no agreement for an easement, and no circumstances which render it inequitable in the defendant to insist upon the application of the statute.”

In Cronkhite v. Cronkhite, 94 N. Y., 323, the principle of the Wiseman case was applied to the case of a parol agreement, giving the right to take in pipes from a spring the surplus water. It was held to be revocable, though a consideration was paid and there had been an user for over twenty years, it being said that the agreement was not sufficiently specific and definite for enforcement in equity.

In neither of those cases was there any duty or obligation upon the licensor to the licensee, the performance of which was accomplished by the license or agreement in controversy. In that respect those cases differ from the present. Here there was an obligation upon the defendant not to interfere with the lateral support which the plaintiff was entitled to have to his land. As said in Losee v. Buchanan, 51 N. Y., 479, “ every man has the natural right to the use of his land in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lots. He has the right to the support of the adjacent soil, and to that extent has an easement in his neighbor’s soil, and when the soil is removed his easement is directly interfered with.” This right or easement will be protected by injunction. Farrand v. Marshall, 21 Barb., 409; Trowbridge v. True, 52 Conn., 190; High on Injunctions (2d ed.), § 753.

This right was to a certain extent acknowledged by the defendant in his negotiations with the plaintiff. The plaintiff claimed more than the defendant thought he was entitled to. As a result, by way of compromise, the defendant furnished the foundation and the plaintiff built the wall. The principle laid down in Newman v. Nellis, 97 N. Y., 285, is somewhat pertinent “A person morally bound to fulfill a promise to do a certain act or thing may not, after the act or thing has been done, recall it to the prejudice of the promisee, on the plea that the promise was invalid under the statute of frauds, and while executory performance could not have been enforced by action.”

This case is somewhat analogous to the settlement by the parties of an uncertain boundary line, and one party has acted on the faith of such settlement and made improvements. The other cannot then repudiate the settlement. Vosburgh v. Teator, 32 N. Y., 561.

We think it was correctly held by the special term that the defendant had no right to remove the wall.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


text:
    The People, Pl’ffs, v. E. Remington & Sons. In the Matter of the Claim of The Ilion National Bank.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Insolvency—Interest on deferred dividends.
    When the payment of a dividend is deferred by reason of an unsuccessful contest of a claim, the creditor so delayed should be allowed interest on the dividend. But he is not entitled to interest for the time payment is.' delayed by his own failure to perform a condition of the order requiring the application of collaterals before payment could be demanded.
    Appeal by the receivers of E. Remington & Sons, an insolvent corporation, from an order of the Jefferson special term, made October 25, 1890, and entered in Herkimer county prior fe> November 8, 1890, by which it is ordered and adjudged “ that the said Ilion National Bank is, as matter of law, entitled to have allowed and paid to it interest upon the sum of $48,851.82 at the rate of six per cent, per annum, from March 10, 1889 to July 10, 1890, being the interest upon the amount of the dividend of twenty-five per cent, upon the claim of the said Ilion National Bank, as allowed in this action, which dividend was withheld and the payment thereof delayed during the said time,” and the receivers are authorized and directed to pay the same out of the funds in their hands as receivers applicable thereto.

      W. & N. E. Kernan, for rec’rs and app’lts; A. M. Mills, for Ilion Nat. Bank, resp’t.
   Merwin, J.

The Ilion National Bank was a creditor of E. Remington & Sons and its debt was established and allowed by and before the referee appointed to hear and establish the claims of creditors, at the sum of $195,525.56. The report and findings, of the referee were filed January 2,. 1889. The bank held some collaterals and it was claimed by the receivers before the referee that these should be exhausted and the proceeds applied on the debt and the balance only be allowed as the claim upon which dividends would be made. The bank claimed that it had the right to prove its entire debt without reference to the collaterals and receive dividends on the amount so proved. The referee so held and allowed the entire debt. The receivers excepted, but their exceptions were overruled at a special term held February 12, 1889, and the report of the referee confirmed. The order of confirmation was entered July 1, 1889, and it contained a provision that no dividends upon the claim of the bank should be paid until the collaterals held by it should be exhausted and the proceeds applied and that then only so much of the dividends going to said bank should be paid as would with the proceeds of the collaterals fully satisfy the claim of the bank.

The receivers appealed to the general term from so much of the order as overruled their exceptions. The general term affirmed the order, 54 Hun, 505; 28 N. Y. State Rep., 427, as did also the court of appeals upon a further appeal. 121 N. Y., 328; 31 N. Y. State Rep., 289.

In February, 1889, and while the said exceptions were pending, the receivers presented to the court at special term their petition, in which they stated, among other things, the amount of funds they had on hand and the amount of debts established by the referee, and that a part of the claims, among which was that of the Hion Bank, were being contested as tó their amount, and they suggested that a dividend of twenty-five per cent be declared, and that such dividend so far as it applied to the contested claims be delayed and withheld until the exceptions were disposed of. Thereupon the court, without notice to the Ilion Bank, by order entered on or about March 1, 1889, authorized and instructed the receivers to declare and pay a dividend of twenty-five per cent upon the claims mentioned and set forth in the petition, “ except that the said receivers are hereby authorized and instructed to delay and withhold the payment for the present of any dividend upon the said disputed claims mentioned in the said petition now before the court on exceptions to the referee’s report as set forth in the said petition, until the exceptions shall have been disposed of by the court, and then only on such amount as shall be allowed by the court at special term, or in case of appeal by the appellate court or courts.” Thereafter from the 7th to the 10th March, 1889, the receivers paid to the various creditors the dividend, but paid none to the Ilion Bank.

The order and decision of the court of appeals were entered in Herkimer county on the 20th June, 1890. On or about the 15th July, 1890, the receivers and the bank agreed upon the amount of the value of the collaterals to be applied on the debt at the sum of $20,777.13, and on the 16th July, 1890, the receivers paid to the bank the dividend upon its claim, being the sum of $48,351.82. At this time the bank claimed interest on the dividend from March 10, 1889, but the receivers declined to pay it. The question of the right to interest was reserved, and the payment of the face of the dividend was agreed to be without prejudice. Thereupon a motion was made by the bank to the court which resulted in the order appealed from.

When the payment of a dividend is deferred by reason of an unsuccessful contest of a claim, the creditor so delayed should be allowed interest on the dividend. Armstrong v. American Exchange Bank, 133 U. S., 433, 470. In that case it is said that the allowance of interest is necessary to put the delayed creditor on an equality with the other creditors.

But it is suggested by the appellants that, as the bank could not obtain its dividend until the collaterals were adjusted, and as this was not done till July 15, 1890, and the dividend was in fact paid. July 16,1890, the receivers were not in default and the bankwasnot entitled to interest. Under the provision of the order obtained by the receivers, the dividend in effect was to be withheld until the final disposition of the contest. Any .adjustment therefore of. the collaterals would be futile until after such disposition. The order upon the final adjudication was entered in Herkimer county on the 20th June, 1890. Up to that point of time very evidently the delay was by reason of the unsuccessful contest by the receivers, and furnishes no good reason for refusing to pay interest. The further delay from the 20th June to the 15th July may very properly be attributed to the failure of the bank to perform the condition of the order requiring it to exhaust and apply its col-laterals before it would be in a position to demand payment This would call for a modification of the order appealed from, so that interest would only be allowed to June 20, 1890.

But it is urged by the appellants that equitably the Hion Bank is not entitled to interest by reason of the fact that it was one of the banks in which the receivers kept their funds on deposit, and that during all this time it had on such deposit an amount of the funds of the receivers largely in excess of the dividend coming to it. It appears that on the 29th March, 1888, the receivers, being about to receive the sum of $200,000 upon the sale of certain property, applied to the court and obtained an order that one-half of this sum might be deposited in the Ilion Bank upon its giving as security therefor a bond with sufficient sureties in the sum of $200,000. The bond was given, and the deposit made, and about the 1st July, 1888, it was agreed between the bank and the receivers that interest on this deposit should be paid by the bank at the rate of two and one-half per cent per annum. After this time, and to July, 1890, the bank had on such deposit the sum of about $98,000, and allowed interest at the agreed rate. This deposit was' at all times subject to be drawn out upon the check of the receivers with the order of the court. The cashier of the bank testifies it was held and treated as a regular deposit, was subject to the provision of the national banking law requiring fifteen per cent, of deposits to be kept on hand, and in reserve, and that the bank was not then paying interest on any other deposits.

The arrangement between the bank and the receivers was one of mutual convenience and benefit. Whether one received more benefit than the other we cannot here inquire. It was satisfactory to each, and was entirely distinct from the matter here in controversy. It was in the nature of a contract between the parties, and we have no right to interfere with it. It should not be considered in this controversy.

Order modified so that it will allow interest from March 10, 1889, to June 20, 1890, and, as modified, affirmed, without costs upon this appeal.

Martin and Kennedy, JJ., concur.


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    James Van Camp, for himself and other legatees under the will of Ann Jennette Van Camp, App’lt, v. Albert Fowler, Ex’r, et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Will—Construction.
    By the will of defendant’s testator, the residue was devised to the executor in trust for the natural life of the widow, to pay to her so long as she remained his widow the income for the support of herself and son, and after her death, unless it should occur before the son was twenty-one years of age,and in that event, when the son arrived at majority, the whole estate was given to said son. The son died before the widow, and under twenty-one. Held, that under the will the son took an interest that vested at the testator’s death, and that upon his death under age the interest passed to his heir and next of kin.
    3. Same—Action by beneficiary.
    A beneficiary has a right, somewhat in the discretion of the court, to bring an action for the benefit of the estate where the executor refuses to bring it.

      Appeal from certain portions of a judgment entered in Onondaga county on the 8th October, 1890, upon the decision of the Onondaga special term, October, 1889.
    The action is brought for the construction of the will of Oliver H. Perry, who died at Truxton, Cortland county, 1ST. Y., on the 21th January, 1861, leaving real and personal estate, and leaving a widow, Ann Jennette Perry, and as his sole heir and next of kin a son, Walter T. Perry, then about three years old. In his will, after providing for debts and funeral expenses, he gave and devised “ all the rest, residue and remainder of both my real and personal estates unto Albert Fowler, my executor hereinafter named and appointed, in trust for and during the natural lifetime of my wife Ann Jennette Perry, for the uses and purposes hereinafter specified; ” and he then provided that his executor should pay annually to his wife, as long as she remained his widow, the clear uses, profits and increase of the trust estates for the support and maintenance of herself and his son, and in case that was not sufficient for that purpose, then he directed his executor to make up the deficiency out of the trust estate. In case his wife remarried, he directed his executor, during the minority of the son, to pay annually to his wife out of .the trust estate or the uses and profits thereof sufficient to provide for the support and maintenance of the son. In case his wife after her remarriage should not have any other legal source from which to derive a comfortable support, he directed his executor to pay to her from time to time out of the trust estates or the uses and profits thereof sufficient to supply such deficiencies. Incase his wife died before his son arrived at twenty-one, he directed his executor to provide for his support and maintenance during minority. Then came- the following provision:
    “And from and immediately after the decease of my said wife, unless such decease shall occur before my said son arrives at the full age of twenty-one years, and >sn such case when he, my said son, shall arrive at such age of majority, I give, bequeath and devise all that shall then remain of said trust estates and the uses and profits thereof unto my said son Walter T. Perry, his heirs and assigns forever ; and I further order that my said wife receive the payments hereinbefore ordered to be made to her in lieu of dower."
    He then appointed Albert Fowler sole executor, giving him full power to sell and convey any of the real estate at such time or times and in such manner as to him should seem best.
    The will was duly proved on February 5, 1864, and letters testamentary issued to the defendant Albert Fowler. He afterwards sold and converted the real and personal estate into money. Prior to August 22, 1866, the widow married the plaintiff James Van Camp. On 22d August, 1866, the son Walter T. Perry died, leaving his mother Mrs. Van Gamp his only heir and next of kin. She took out letters of administration on his estate on the 14th October, 1867. Soon after this, Mrs. Van Camp brought an action in the supreme court in her own name as plaintiff against Albert Fowler as executor, setting forth in her complaint the foregoing facts, and that the executor had in his hands about $3,000, and she alleged that the executor had no right to the possession of this, but that upon the death of Walter T. Perry the estate passed to her as his heir at law and personal representative and that she as such was entitled to the same. She'also alleged that she had no other legal source of support and that the executor had neglected to provide for her. She asked for an accounting and for a construction of the will to the end that it might be determined what were the rights of herself and of the executor, and that the executor be adjudged to pay her the amount of the estate or such part thereof as she might be adjudged to be entitled to annually or otherwise. The defendant therein put in a general denial.
    The case was tried at special term February, 1868, and the decision, after fixing the amount in the defendant’s hands, decreed that the plaintiff therein was legally entitled to be paid the accumulations of interest on the balance of the fund as the same' become due and to have the principal applied to her comfortable support whenever she should be unable to derive such support from any other legal source, and directed the defendant to safely invest the fund and pay the interest to the plaintiff, and under the order of the court apply the principal whenever necessary. It was not decided as to who was the owner of the balance of the fund. After this and down to the time of her death on .March 28, 1889, Mrs. Van Camp received from the executor the interest on the fund. The executor now has in his hands $2,711.63 besides some interest. Mrs. Van Camp left a will which was proved on 3d June, 1889, and letters testamentary issued to the defendant Levi Fowler. In this will the plaintiff is given a legacy of $1,000 and is also residuary legatee of the personal estate. Mrs. Van Camp left no property except her interest as heir at law and next of kin of Walter T. Perry in the estate of Oliver H. Perry. Upon application of the plaintiff, the defendant Levi Fowler as executor of Mrs. Van Camp declined to bring an action for the construction of the will of Oliver H. Perry, and the defendant Albert Fowler as executor, etc., also declined. Thereupon the plaintiff brought the action.
    The defendants, other than Levi Fowler and Albert Fowler, are the present heirs and next of kin of Oliver H. Perry, being his brothers and sisters or their representatives, and they claim to be entitled to the fund in controversy.
    Upon the trial it was decided that under the will of Oliver H. Perry no estate in the fund and no legacy vested in Walter T. Perry during his minority and the life time of the widow, and that during such minority the whole of the estate was in the trustee and that Walter T. had no vested estate therein; that upon the death of Walter T. before attaining his majority and upon the death of Mrs. Van Camp, the fund belonged to and was still vested in the estate of Oliver H. Perry as undisposed of and not bequeathed under his will; that the fund now in the hands of the executor, the defendant Albert Fowler, is to be distributed among the defendants as next of kin of Oliver H. Perry as property undisposed of by the will; that the judgment in the action brought by Mrs. Van Camp is not a bar to this action and the plaintiff is not bound thereby; that the complaint be dismissed, with costs. The plaintiff appeals from the judgment except as to the provision in regard to the judgment in the action brought by Mrs. Van Camp.

      Wm. M. Boss, for app’lt; Lewis & Wilson, for resp’ts.
   Merwin, J.

It was apparently assumed by both parties at the trial, and is here, that if the legacy or devise to Walter T. Perry vested, so that upon his death it went to his heirs or representatives, then the estate of Mrs. Van Camp, represented by her executor, the defendant, Levi Fowler, would be entitled to the fund. The controversy was between the representatives of the estate of Mrs. Van Camp holding the vested rights, if any, of Walter T. Perry upon the .one hand, and the defendants, the present heirs and next of kin of Oliver H. Perry, upon the other.

The claim of the plaintiff is that the bequest and devise to Walter T. Perry passed an interest that vested at the time of the death of the testator. We think that this position is sustained by authority. There is here a direct gift to Walter T. Perry, his heirs and assigns, and it is within the rule laid down in Matter of Accounts of Mahan, 98 N. Y., 376, that, if there be a direct gift to legatees, a direction for payment at the happening of a certain event should not prevent its vesting and, therefore, the personal representatives of a legatee dying before the event happened shall be entitled to receive it when payable. In that case, as also in Goebel v. Wolf, 113 N. Y., 405; 23 N. Y. State Rep., 176, there was an intervening trust for the support of the widow and of children until majority. This did not prevent the vesting. The use of the expression “ when he, my said son, shall arrive at such age of majority," did not prevent the vesting. 1 Jarman on Wills, 5th ed., 806; 4 Kent Com., 232. Mor did the expression "from and after the decease of my said wife.” Livingston v. Greene, 52 N. Y., 118; Bedell v. Guyon, 12 Hun, 396. The bequest was residuary. The circumstance that the principal might be reduced in the operation of the trust does not change the result Mitchell v. Knapp, 54 Hun, 500; 27 N. Y. State Rep., 604, and cases there referred to.

But suppose, as is claimed by defendants, the gift did not vest, but passed as undisposed of property, it would not go to the defendants, the present so-called heirs and next of kin. It would go to and vest in the heir and next of kin, according to the situation at the time of the death of the testator. Rose v. Clark, 8 Paige, 574; 2 Wms. Exrs., 6th Am. ed., 1591, note. The fact that the distributee died before the time of distribution would not affect the rights of his representatives.

It follows that the heirs or representatives of Walter T. Perry are entitled to the fund. .

But it is urged by the defendants that the plaintiff is not in a position to maintain this action. The court below passed upon the merits and did not, in terms, consider this question.

The claim of the defendants is, that if any one could bring the action, it must be the personal representative of Mrs. Yan Camp. Still her executor refused to bring it, and in such a case the beneficiary has a right, somewhat within the discretion of the court, to bring an action for the benefit of the estate. This discretion, so far as it was exercised by the trial court, was in favor of the maintenance of the action. This result should not be here disturbed. Assuming then the plaintiff has the same standing that the executor of Mrs. Yan Camp would have, the case of Wager v Wager, 89 N. Y., 161, 166, is authority for the maintenance of the action. This is on the assumption that Mrs Yan Camp succeeded to all the rights of her son. No point was made at the trial and is not here that there was any occasion for the appointment of an administrator de bonis non of the estate of the son in order to fully vest in the mother’s estate the rights of the son. She was the sole beneficiary of his estate.

The defendants further claim that the judgment obtained by Mrs. Yan Camp in 1868 is a bar. The court, at special term, held otherwise, and the defendants did not appeal. The plaintiff, in his notice of appeal, expressly excepted that provision in the judgment. We do not consider that question. The pendency of proceedings in surrogate’s court was not pleaded as a defense and is-not available here to the defendants.

It follows that the judgment should be reversed.

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

Hardin, P. J., and Martin, J., concur.


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    The Bank of Syracuse, Resp’t, v. The Wisconsin Marine & Fire Insurance Company Bank, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Banks—Collections—Bona tide holdeb.
    Plaintiff sent to the Fidelity Bank a check for collection, which the latter hank, with knowledge of its insolvency and with intent to defraud plaintiff, forwarded to defendant, its collecting agent. Defendant collected the check and credited the amount thereof on the indebtedness of the Fidelity Bank to it, and subsequently refused plaintiff’s demand for-said proceeds. Held, that defendant, under the circumstances, was not a bona fide holder for value of the check and was liable to plaintiff.
    Appeal from a judgment entered in Onondaga county May 9, 1890, upon the decision of the Onondaga special term, February, 1890, in favor of the plaintiff for $363.31, with interest from June 15, 1887.

      G. W. Andrews, for app’lt; J. William Wilson, for resp’t.
   Merwin, J.

The facts of this case are substantially as follows: The plaintiff is a state bank doing business at Syracuse. The defendant is a banking association organized under the laws of the state of Wisconsin and doing business at Milwaukee in that state. The Fidelity National Bank of Cincinnati was on the 20th June, 1887, and had been for more than a year previous, a banking association duly organized under the national bank act and doing business at Cincinnati, Ohio. It suspended business on the 20th June, 1887, and on the next day it was taken possession of by the national authorities and a receiver afterwards appointed and its franchises forfeited.

About November, 1886, there were negotiations between the plaintiff and the Fidelity Bank, with reference to collections to be made for each by the other, which resulted in an agreement between them to the effect that the plaintiff would make collections in Syracuse and vicinity of paper held by the Fidelity Bank and the latter would make collections in the United States west of Pennsylvania of paper held by the plaintiff, and that each would remit the total amount so collected to the other every ten days. The course of 'the business under this arrangement down to the time of the suspension of the Fidelity Bank was as follows: Each bank opened an account with the other debtor and credit in form, in which each was credited with all paper received for collection from the other at its par value, and upon its receipt, the one receiving proceeded to make the collection, and at the end of each ten days the amount collected up to that time was remitted by draft on New York and the amounts of the remittances so made were charged in the account. These remittances were made the 1st, 11th and 21st of each month. No specific collection was thus sent, but the aggregate of collections made up to the time of each remittance was forwarded. The monies so collected were mingled indiscriminately with the other funds of the bank. The plaintiff during the continuance of this business, sent to the Fidelity Bank for collection several hundred items, and upon its part made collections for the Fidelity Bank and conducted business in the same manner.

On the 11th June, 1887, the plaintiff was the owner of a check for $363.31, dated at Milwaukee June 8, 1887, drawn by J. Gr. Wightman on Marshall & Illsey to order of and endorsed by W. S. Peck, Bro. & Co., and duly transferred for value to plaintiff. On the 11th June the plaintiff endorsed the check “for collection and remittance of proceeds to the Bank of Syracuse, Syracuse, N. Y., F.C. Eddy cashier,” and mailed it to the Fidelity Bank, by which it was received on the 13th June, 1887. Upon that day the Fidelity Bank endorsed the check, “ for collection for account of the Fidelity National Bank, June 13, 1887, Cincinnati, 0., Ammi Baldwin, cash.,” and forwarded it by mail to the defendant, by which it was received on the 15th June, 1887, and its amount collected on the same day.

The defendant was collecting agent at Milwaukee for the Fidelity Bank, and the-check was credited by the defendant to the Fidelity Bank in its account with it on receipt, pursuant to an arrangement that negotiable paper forwarded by one to the other for collection was to be treated as cash and credited by each bank to the other when received. The defendant on the same day notified the Fidelity Bank that tbe check had .been collected and the amount credited to its account, and this notification was received by the Fidelity Bank on June 17, 1887. Upon and before the 15th June, 1887, and from that time till the failure of the Fidelity Bank, it owed the defendant considerable more than the amount of the check. The defendant has not remitted the proceeds of the check to the Fidelity Bank or to its receiver or to plaintiff. Ho advance was made by defendant on the check. On the 24th August, 1887, the plaintiff demanded of the defendant the check or the money, and this demand not being complied with this suit was commenced.

From the 1st June, 1887, to its suspension, the Fidelity Bank was insolvent, and its assets on the 1st June and until its dissolution were about three millions of dollars, and its liabilities during the same time were about six million one hundred thousand dollars. E. L. Harper was its vice-president 'and general manager, and directed its affairs, and the condition of the bank was well known to him, and he, between the 1st and 20th June, 1887, converted over nine hundred thousand dollars of the moneys of the bank to his own use. Hone of the facts as to the condition of the Fidelity Bank and the conversion of its assets were known to either of the parties hereto prior to June 21, 1887. It is found by the court below that the Fidelity Bank at the time it received the check in question was insolvent, and well knew it was insolvent, and received the check with the fraudulent intent and purpose of depriving the plaintiff of the same and its proceeds. This finding is challenged by the appellant, but we think it is sustained by the'evidence. Cragie v. Hadley, 99 N. Y., 131; Anonymous, 67 id., 598.

The court below decided as matter of law that the title to the check remained in the plaintiff, and the Fidelity Bank held it as collecting agent; that under the agreements the proceeds upon receipt would have become the property of the defendant but for the fraud ; that by leason of the fraud, the defendant, not being a bona fide owner for value, acquired no title to the proceeds, and that plaintiff was the owner of the proceeds.

Assuming, as I think we must, that the plaintiff, by reason of the fraud, had the right to rescind the contractual relation between it and the Fidelity Bank, and follow its property, the only question is whether the defendant, by reason of the application of the moneys on a precedent debt, is such a holder for value that it is not liable to plaintiff. The claim of the defendant is that the case is analogous to the case of payment out of money obtained by fraud, when a party who receives it in good faith and in the ordinary course of business upon an antecedent debt will be protected. Stephens v. Board of Education, 79 N. Y., 183. That case, however, recognizes the principle that an antecedent debt is not such a consideration as will cut off the equities of third parties in respect to negotiable securities obtained by fraud. Here the property obtained from plaintiff and that reached defendant’s hands was a negotiable security. The defendant is presumed to have known from the restrictive endorsement that it belonged to the plaintiff. Had the plaintiff discovered the fraud in time to have reached the defendant before the payment of the check, there would be no question about the plaintiff’s ownership. Does the fact of payment, no other act intervening, change the situation ? The check was credited by defendant to the Fidelity Bank on its receipt It obtained no title by that act. The defendant was the agent of the Fidelity Bank, and had no better title to the check or the proceeds than its principal had. The principal had no title to either by reason of the fraud.

In McBride v. The Farmers' Bank, 26 N. Y., 450, it is said: A bank receiving from another notes for collection obtains no better title to them, or the proceeds, than the remitting bank had, unless it becomes a purchaser for value without notice of any defect of title. It is not a purchaser for value by reason of its having a balance against the remitting bank for which it had refrained from drawing, in reliance upon a course of dealing between the banks to collect notes for each other, each keeping an open account of such collection, treating all the paper sent for collection as the property of the other, and drawing for balances at pleasure.”

We think the court below did not err in holding the defendant liable.

Interest was directed from June 15, 1887. It should have been only from the time of the demand, August 24, 1887. In this respect the judgment should be modified. This, however, is not material enough to affect the question of costs.

Judgment modified by striking out the interest allowed from. June 15, 1887, to August 24, 1887, and as modified affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


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    Jennie R. Sherman, Resp’t, v. The Village of Oneonta, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    Municipal corporations—Negligence—Evidence.
    In driving over an elevation of earth left in one of defendant’s streets after repairs, some part of plaintiff’s carriage broke, the horse became frightened and ran away, and she was thrown out and injured. In an action to recover for such injuries, the court admitted evidence of declarations of defendant’s street commissioner to a workman a few days after the accident, that there was a high mound there and that it must be picked off and cleaned up before somebody else got hurt. Held, error; that such declarations were not competent evidence to bind defendant, and that their admission was liable to affect materially the minds of the jury.
    Appeal from a judgment entered in Otsego county on the 21st July, 1890, upon a verdict rendered at Otsego circuit, January, 1889, in favor of plaintiff for $4,000 ; also appeal from an order denying a motion upon a case and exceptions for a new trial.

      Wm. H. Johnson, for app’lt; Mr. Andrus, for resp’t
   Merwin, J.

This action is brought to recover damages for personal injuries sustained by plaintiff by reason of the negligence, as the plaintiff claims, of the defendant On the 23d April, 1886, the plaintiff, with two other persons, was riding in a carriage westerly along Centre street in the village of Oneonta. At the intersection of that street with Elm street there was a gutter which crossed Centre street on the easterly line of Elm street, and on the. westerly side of this gutter there was, as claimed by plaintiff, a ridge, or an elevation of the surface of the street, which had been left there the fall or summer before upon the filling up of a trench or ditch made for the purpose of laying a water pipe. As the horse and carriage of the plaintiff passed over this gutter and elevation, something-about the carriage was broken, the horse was frightened and ran away, and the plaintiff was thrown out and injured. The condition of the gutter and of the elevation or ridge upon the 23d April, 1886, were matters of controversy at the trial.

The main question here relates to certain declarations of the street commissioner of the defendant made some time after the accident.

Carson Emmons was street commissioner of the village for the year commencing April 1, 1886. The plaintiff called as a witness Cornelius Denny, who testified that he was employed by the street commissioner, Mr. Emmons, to do some work upon Centre street a short time after the twenty-third of April. The following then took place, as the record shows:

“ Question: What did he say to you as to what work it was he wanted you to do ? ”

Objected to as incompetent and improper; that it appears to be at a time subsequent to this alleged injury and that the statement of the street commissioner in no way affects the liability of the village of Oneonta; that the village is not bound by anything said by one of its officers when not associated with the others.

The Court: Objection overruled.

Exception taken.

Answer: We were at work cleaning up some of the streets, and I think we were on Centre street or Church street or off that way, and he told us, some one or more with me, he said: go on Centre street to such a place and clean up that dirt there, there was a high mound there, he said, before somebody else got hurt.

Defendant’s Counsel: We move to strike out the latter part of the answer wherein the witness said the street commissioner said, “ Before somebody else got hurt,” as improper and incompetent; that the statement of the street commissioner in no way tends to bind the village, as h§ was not authorized to speak for the defendant

The Court: Reserve the motion at present.

That is all; he said go to such a place on Centre street on the corner where Elm street comes up there, and then pick off the dirt; he said he wanted to go there and pick that mound off there; I think he said he would send a team soon to draw it away; I don’t recollect that he said anything further; that is all he said; he said, go to that place and pick that dirt off and he would send a team there; we would take it off before somebody else got hurt there; that is all I recollect; I don’t think he said in that conüection that one lady had already been injured there and he wanted us to go and take it off before somebody got hurt; my recollection is he said before somebody else got hurt.

Defendant’s counsel: To each one of those separate questions we desire the stenographer to enter an objection to the statement of the witness, on the ground that it is improper and incompetent, and that any statement made by the street commissioner is not binding upon the defendant.

The Court: Do I understand this place was the corner of Centre and Elm street ? A. Yes, sir.

The Court—The stenographer may enter an objection and an exception to the ruling of the court admitting the evidence to each one of the questions, viz., on the ground that the street commissioner had ho authority to make an admission for the city.

Defendant's counsel—And also that it was after this accident in question.

The Court—I think it appears there, you have your objection and exception.

Defendant’s counsel—We ask to strike out from the testimony of this witness that part of the statement referred to, what the street commissioner said in reference to some one else getting hurt.

The Court—No; I think it may stand.

Exception taken.

The witness then testified that he went and did some work at the intersection of Centre and Elm streets. The question was then asked: “ Now, tell the jury what you done and who helped you do it ?”

Defendant’s counsel—We object to any evidence relating to the removal of this mound, on the ground that it is not covered by the pleadings, and what repairs they made are incompetent and improper and immaterial.

The Court—He may answer.

Exception taken.

The witness then stated that he and another laborer picked off the dirt from the mound; that one load was drawn away, and they picked off more.

Among other things, the defendant’s counsel asked the court to charge “ that the declarations of defendant’s commissioner made subsequent to the accident are not competent evidence against the defendant, and the jury have no right to consider the same in determining whether the defendant was or was not guilty of negligence.”

The court declined to so charge and the defendant’s counsel excepted. The defendant’s counsel then asked the court to charge, “that the fact, if it be a fact, that the defendant caused the ridge to be removed after the accident occurred, is not proper to be considered on the question of negligence,” and the court so charged.

It is now claimed that the court erred in admitting the declara' "tions of the street commissioner made after the happening of the injury, and in refusing to charge as requested in regard to such declarations.

It is quite apparent from the case that the declarations referred k> in the request are those above set out. They were made several days at least after the accident.

There is no doubt about the general proposition that the declarations of an agent, like the street commissioner in this case, are not admissible to bind the corporation except when they are part of the transaction which gives rise to the controversy. Cortland County v. Herkimer County, 44 N. Y., 22, 24: Stone v. Town of Poland, 11 N. Y. Supp., 498; 33 N. Y. State Rep., 437. In this case, however, their admission is sought to be justified upon the theory that, at the time of their admission in evidence, it was proper for the plaintiff to show that the ridge or elevation in controversy had been lowered or changed since the accident, and that for the purpose of showing this change, it was proper to show not only what the street commissioner and his employees did, but, also, what the street commissioner said while so engaged.

It may be assumed that the fact of the change after the accident was properly shown, not, however, as bearing on the negligence of the defendant, but by way of explanation of evidence previously given in regard^ to the height of the ridge. And the court held and charged that the fact that the defendant may have caused the ridge to be removed after the accident should not be considered on the question of negligence.

The court, however, refused to charge that the declarations should not be considered on that question. The fact of the change, whether brought about by the defendant or some other party, was the only thing competent. It was not a question whether the street commissioner was then engaged in the line of his duty. His duty at that point of time was wholly immaterial and was not an issue in the case. It was not a part of the transaction in controversy. The liability of the defendant, if there was one, was perfect and complete before that time. In no sense were the subsequent declarations or the act of changing or removing the ridge a part of the res gestae.

The declarations were received generally in the case. Their effect was not limited. We think they were not competent. But it is urged that they were not of sufficient materiality to affect the case. The height of the ridge, and whether or not it was of a dangerous character, were vital questions in the case. The evidence was conflicting and both sides were very much in earnest. The plaintiff claimed there was a high ridge and a dangerous place. The defendant claimed the contrary. If, therefore, as the witness Denny in substance testified, the defendant’s street commissioner said there was a high mound there, and directed the dirt to be picked off and cleaned up before somebody else got hurt, the jury might well infer that the commissioner thought the situation a dangerous one and that the ridge was a dangerous obstruction. Such a declaration from the officer managing the streets of the village would be liable to affect materially the minds of the jury.

We cannot fairly say that this evidence did not affect the result or prejudice the defendant. Carroll v. Deimel, 95 N. Y., 252, 256; Burst v. Second Avenue R. R. Co., 72 id., 542, 547.

We are, therefore, of the opinion that, in the admission of the declarations and the refusal to charge the request referred to, error was committed that requires the reversal of the judgment. .

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

Hardin, P. J., and Martin, J., concur.


text:
    John A. Collins, Resp’t, v. George K. Collins et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Tenants in common—Fraud — Determination of claims to real PROPERTY.
    The father of the parties hereto died possessed of certain real estate subject to mortgage, all the children then being minors. Thereafter' the defendant George purchased adjoining premises which he caused to be conveyed to himself and his brothers. All the parties, with their mother, occupied the premises until George was married, when he removed therefrom. The mortgage was foreclosed in 1862 by its holder, in whose office George was a student, and notice of sale was served on his mother by George, and no notice was served on any other person. George purchased the premises on the sale for the amount of the mortgage and interest and gave back a mortgage for the amount of the original one. Plaintiff was ignorant of these facts until a few months before he commenced this action to determine the ownership and for a partition and sale, when George, having purchased the other brother’s share, claimed to own the whole to the exclusion of plaintiff. Plaintiff: was a minor at the time of said foreclosure. Held, that George should be deemed to have purchased for the benefit of his co-heirs as well as himself, and that he only nominally held the title to plaintiff’s one-third.
    2. Same—Limitation.
    The statute of limitations did not run against plaintiff’s right to have the cloud on the title removed until the time when claim of absolute title was made in 1887.
    Appeal from an interlocutory judgment entered in Onondaga county on June 14, 1890, upon the decision of the Onondaga special term, May, 1889; also, motion for a new trial under § 1001 of the Code Civil Procedure.

      W. 0. Tracy, for app’lts; T E. Hancock and M. M. Waters, for resp’t.
   Merwin, J.

The subject of this' action is a piece or lot of on street, Syracuse, being fifty feet upon the street, and running back 102 feet, and upon which there is now a brick block called Collins block, the lower part of which is used for business purposes, and all above for offices and living rooms, and is so circumstanced that a partition thereof cannot be made without great prejudice to the respective owners. The object of the action is to determine the ownership of the property and obtain partition or sale. The judgment appealed from adjudges that the plaintiff is the owner of one undivided third, and the defendant George K. of two undivided thirds, subject to certain dower rights. A sale is ordered, and an accounting by the defendant George K. of the rents and profits as between tenants in common.

It appears that on the 15th August, 1853, John Collins died intestate, leaving a widow, the defendant Mary A. Collins, and as his only heirs at law three children, the plaintiff, the defendant George K. and Frank Collins. At that time the plaintiff was about eight years old, George K. about sixteen, and Frank about three. On or about September 1, 1853, Mary A. Collins was duly appointed administratrix of the estate of John Collins, but no general guardian was ever appointed for either of the children. John Collins was at his death the owner of the front portion of the premises above referred to, such portion being fifty feet on the street, and running back eighty-eight feet, upon which had been erected a brick block known as the Collins block. The property was incumbered by a mortgage of $2,400. Upon this mortgage there was due and unpaid on the 27th February, 1862, the sum of $2,400, with interest from May 1, 1861. Immediately after the death of John Collins, his widow with the children moved into the block, and she with the assistance of her children managed the same until 1862.

In 1861 and 1862 the rents were about a thousand dollars a year. The plaintiff occupied rooms in the block down to February, 1862, when he was married and left the same and went to live with his wife’s family, where he continued to reside for about a year, and he then returned to the block with his wife and has since resided there with his family, occupying five or six rooms. The defendant George K. lived with his mother until 1858, when .he was married, and then he occupied rooms in the block until September, 1862. The widow has continued to live in the block to the present time.

On the 4th June, 1860, the defendant George K. purchased of Abner Bates a strip of land of the same width as said block and fourteen feet deep, directly adjoining it in rear, for the sum of $100, and caused the same to be conveyed to himself and his two brothers Frank and John A. This constitutes the balance of the lands in question.

Prior to 27th February, 1862, the mortgage above referred to had been assigned to Mr. Gott, and he at that date commenced a foreclosure by advertisement. It does not appear that there was any immediate or pressing necessity to pay the mortgage or take care of it or any threats of foreclosure. The defendant George K. was at that time and had been since 1856 a student in Mr. Gott’s law office. The notice of sale was published in a country newspaper that had little or no circulation in Syracuse. The notice of sale was served on the widow and administratrix by George 3L, but she apparently paid no attention to it, but left the matter entirely with George K. Uo other person was served. Upon the sale, on 31st May, 1862, George K. bid in the property at $2,610, , that being the amount unpaid and costs, and took title in his own name. Upon this bid he paid $210, and for the balance gave a mortgage back to Mr. Gott upon the same premises. At this time, as the court finds, the property was of the value of at least $18,-000, and the yearly rental value at least $1,300. After the sale the rents of such portions as were leased were collected by George K. or by his mother for him.

On the 26th day of September, 1873, George K. obtained from his brother Frank a quit claim deed of the entire premises, and the rents, issues and profits accrued or to accrue from the same, paying therefor the sum of $8,000, and in 1876 he extended the block so that it covered the greater part of the Bates purchase.

The court found, as it was authorized by the evidence to do, that George K. omitted to disclose to his co-tenants the fact that the premises had been sold and bid in by him, and concealed from them that fact until within a few months of the commencement of this action in December, 1887, and that up to that time the plaintiff did not know of the foreclosure sale, but supposed and believed that his title as tenant in common existed and remained, according to his right by descent from his father; that from time to time George K. negotiated with the plaintiff for the purchase of his interest in the property at the time of the deed from Frank Collins and afterwards, until a short time before this suit was commenced, when George K. for the first time claimed the whole to the exclusion of any right or interest in the plaintiff. As matter of law the court held, among other things, that the defendant George KL purchased at the foreclosure sale and took title in his own name in fraud of the rights of the plaintiff as owner of an undivided third, and that he holds the title of such one-third impressed with a trust in favor of, and as trustee for, plaintiff, who is the equitable owner, chargeable, however, with one-third of the mortgage.

In Knolls v. Barnhart, 71 N. Y., 480, it is said to be the general rule that one tenant in common cannot purchase in an outstanding claim or title to the exclusion of his co-tenant. This principle is recognized in many cases. Van Horne v. Fonda, 5 Johns. Ch., 388; Peck v. Peck, 110 N. Y., 73; 16 N. Y. State Rep., 638; Rothwell v. Dewees, 2 Black, U. S., 613; Lloyd v. Lynch, 28 Penn. St., 419. In the Lloyd case it is said that the deed so obtained by a co-tenant can only be used as a security to enforce contribution for the money paid for it. If the tenants in common come into joint possession as co-heirs or co-devisees, special obligations are said to exist forbidding either to do any act which would be unlawful or improper if done by a trustee charged with the care and preservation of a trust estate. Freeman on ■Co-Tenancy, § 151.

In the present case the plaintiff was a minor at the time of the foreclosure, and his mother, being his guardian in socage, paid no attention to it. She left the matter entirely to George EL, assuming very likely that he would see that the rights of his brothers would be preserved. There seems to have been no real occasion for any foreclosure. Less than a year's interest was unpaid. The interest had been kept up previously, as it may be inferred, from the rents, and these were improving. The holder of the mortgage did not desire the principal, for he took back a new mortgage for that. The property that was bid in for $2,610 was worth $18,000.

We think the court below did not err in holding that the purchaser on foreclosure should be deemed to have purchased for the benefit of his co-heirs as well as himself and that he only nominally held the title of plaintiff’s third.

Mor should the delay of plaintiff to assert his right be deemed prejudicial to him. He was ignorant of the foreclosure sale. He continued to occupy a portion of the property, paid no rent and. none was asked of him. His brother made no claim of exclusive ownership till just before the suit was commenced. On the contrary he recognized plaintiff’s rights in his repeated negotiations, and his purchase from Frank Collins was inconsistent with any claim of title in himself. True, George K. in association with his mother managed the renting and collected the rents, but the business of George K. as an attorney was such that he would naturally look after that and the business of plaintiff took him away from home most of the time. George K. claims to have had adverse possession but that the court declined to find. Such possession as George K. did have was not exclusive. The conveyance to him was not necessarily hostile. Culver v. Rhodes, 87 N. Y., 348.

It is claimed by th,e appellants that the cause of action of the plaintiff with reference to the foreclosure is barred by the statute of limitations, more than twenty years having elapsed after plaintiff became of age before the commencement of this action. The view of the court below was that the case was within sub. 5 of § 382 of the Code of Civil Procedure, which provides that in an action to procure a judgment other than for a sum of money, on the ground of fraud, in a case which, on the 31st day of December, 1846, was cognizable by the court of chancery, the cause of action is not deemed to have accrued until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud. The claim of the appellants is that this does not apply to a case of constructive fraud and that fraud in fact is not alleged in the complaint or found by the court. Facts, however, were found, within the scope of the complaint, which in effect, as it may be argued with considerable force, amounted to more than constructive fraud. Be this as it may, another view may, I think, be taken of the case which will reach the same result. The purchase by George K. was subservient to the title of the co-tenants. He took the nominal title and could hold it only as security for what he paid. In substance he had a mortgage and received rents more than sufficient to pay it. The plaintiff remained in possession and his rights there were recognized. The right of plaintiff to have this mortgage cancelled and the cloud on the title removed would not be affected by the statute of limitations until a hostile claim was made by the holder. Such claim was made only a short time before the suit was commenced. Treating it as a cloud, the statute would not apply. Schoener v. Lissauer, 107 N. Y., 111; 11 N. Y. State Rep., 368. If as against the plaintiff there was no entry under claim of absolute title until 1887, the statute should not be deemed to commence to run until that time. Reitz v. Reitz, 80 N. Y., 538; Miner v. Beekman, 50 id.. 337.

The defendants claim that their right of trial by jury has been infringed upon. The complaint contained two counts. In the first one the facts with regard to that part of the premises that descended from John Collins and in regard to the mortgage thereon were stated, and it among other things contained an allegation of the present ownership by plaintiff' of an undivided third. In the second count the facts as to the Bates piece were stated. Upon the opening of the trial the right of trial by jury as to the second count was expressly waived, and it seems to have been conceded that the first count presented equitable features that were properly triable without a jury. It appears that both sides noticed the case for the special term. Ho issues had been stated. I don’t think the appellants have any good ground for complaint as to the form of the trial.

A point is made as to misjoinder of causes of actions. That matter however was disposed of on a former appeal from an interlocutory judgment overruling a demurrer, and is not now here. It may however be suggested that both causes of action relate to the same subject, namely, the Collins block as now situated, and the rights of the parties require the entire matter to' be disposed of in one action. Any title subservient to the rights of the real owners must necessarily be determined, and if a cloud it must be dispelled, in order to a complete determination of the matter. Under § 1543 of the Code “the title or interest,” of the plaintiff as well as that of the defendants .can be controverted and determined in an action of partition. The design of that section was to allow the whole controversy to be settled in one action. See Throop’s notes to that section and to article second- of chap. 14 of the Code. Shannon v. Pickell, 2 N. Y. State Rep., 160; 3 Rumsey’s Pr., 31. The plaintiff had a right to bring an equitable action. Story Eq., § 658; Haywood v. Judson, 4 Barb., 228; Freeman on Co-Tenancy and Par., § 425.

. Several points are presented as to refusals to find requests made by the appellants. They need not be specially considered. Ho error prejudicial to the appellants is disclosed.

It follows that the judgment should be affirmed.

Motion for a new trial denied and judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


author: Merwin, J

text:
    Orville M. Knox, Resp’t, v. Max Schoenthal, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 20, 1891.)

    1. Sale—Defense.
    Plaintiff having contracted to purchase hops of one D., the contract providing that the bales -were to weigh from 180 to 200 pounds each, defendant bought the contract of him but upon delivery of the hops refused to accept them on the ground that they were slack dried and unmerchantable. Plaintiff paid the contract price to D., and resold the hops. In an action for a deficiency, Held, that the fact that some of the bales weighed less than 180 pounds, although the aggregate weight was correct, was not available to defendant.
    2. Same—Notice of resale.
    Plaintiff gave notice of the resale to an agent of defendant who was duly authorized to make contracts in relation to purchasing, receiving and paying for hops, and who made the contract with plaintiff. The agency-had then terminated, but of this plaintiff had no knowledge. Held, that plaintiff was justified in giving notice to such agent and that it was binding on defendant.

      Appeal from a judgment entered in Madison county on 18th. February, 1890, upon the report of a referee in favor of the-plaintiff for $188.50, with interest from November 16, 1888, and. costs. The evidence is not returned.

      K P. Hashell, for app’lt; J. Munroe, for resp’t.
   Merwin, J

The facts as found by the referee are substantially as follows:

On the 6th February, 1888, the plaintiff made a contract in writing with Munroe Dodge, whereby Dodge agreed to sell and deliver to the plaintiff or his agent, at the purchaser’s option, on or before November 1st each year, at the depot at Oneida, his whole crop of hops of the growth of 1888, 1889 and 1890, five-acres, at sixteen cents per pound, seven pounds tare per bale. Dodge agreed “ to pick and cure the same in a clean and proper manner, and properly press and bale the same in good new sacking, in bales weighing from 180 to 200 pounds each. The plaintiff agreed “ to receive and pay for said hops at the time of delivery the price of sixteen'cents per pound, upon the conditions mentioned above, hops to be weighed at the time and place of delivery.”

On the 7th September, 1888, the defendant, by his agent, entered into a contract with plaintiff whereby he bought of plaintiff the Dodge contract, with others, so far as it applied to the crop of 1888, at the price of twenty-five cents per pound, subject to the terms contained therein. Thereafter the defendant notified Dodge to deliver his hops of 1888 on the 27th October, and Dodge did so at the place fixed by the contract and duly tendered them to the defendant. The defendant then and there, by his agent, inspected the hops and rejected them on the ground only that they were slack dried and unmerchantable for the reason that they were damp, and upon that ground he refused to pay the agreed price. There were twenty-one bales, weighing in the aggregate-3,923 pounds. Three of them, however, weighed less than 180 pounds each, the weight being 173, 170 and 179, respectively. The referee finds that the hops were not slack dried, but were good and merchantable hops. He also finds that the hops were rejected before they were weighed and that neither the defendant or his agent then knew the weight of the said bales and did not so know till long afterwards.

The hops remained at the place of delivery until they were resold by the plaintiff on the 12th November, 1888, at twenty cents-a pound, that being then the highest market price. After the re-fusal by defendant to take the hops, the plaintiff paid Dodge the amount going to him, and prior to the resale he notified the agent of the defendant of his intention to resell and hold the defendant liable for any deficiency. After the resale the plaintiff demanded of the defendant the deficiency, being five cents a pound, and, upon defendant’s refusal to pay, brought this action and recovered the deficiency named.

The defendant, upon this appeal, necessarily accepts the finding of the referee that the hops were, in fact, in good order and merchantable and that his objection, which he then took, was not good. He, however, claims that the plaintiff should not recover because the bales did not all weigh from 180 to 200 pounds each, three being less than 180.

He, however, absolutely refused to take and pay, giving only the reason that they were not in good order. The weighing, under the contract, was to be at the time and place of delivery and the refusal was before the hops were weighed. After the refusal there was no occasion to weigh the hops. The bales, upon an average, weighed over 180 pounds each, and the small deficiency in the three could have been remedied had the objection then been taken. The referee finds that the contract was substantially complied with.

Waiver of a condition precedent may be implied from the acts and conduct of a party. Benjamin on Sales, ed. of 1888, § 742. In Johnson v. Oppenheim, 55 N. Y., 291, it is said: “When a single objection to the performance is taken and the party is silent as to all others, they - are deemed to be waived. The rule rests upon the ground that the party, by his silence, has misled his adversary, and not having spoken when he ought, shall not be permitted to speak when he would.” But the defendant says he didn’t know as to the weight and, therefore, didn’t waive. He, however, ended the matter by his refusal before reaching the subject of the weight. He knew that by the contract the weighing was to be at the time and place of delivery. He, in effect, said, we will not go into that subject; it is a matter of no importance. See Smith v. Pettee, 70 N. Y., 17; Matter of New York, W. S. & B. R. Co., 35 Hun, 578. In Newbery v. Furnival, 56 N. Y., 638, cited by the defendant’s counsel, there was an inability on the part of plaintiff to perform. Here, if objection to the weight had been taken, it might have been remedied. In that respect it is more like the case of Smith v. Pettee, above cited.

We are of the opinion that the variance in the weight of bales is not available here as a defense.

It is further claimed by the defendant that he was not notified of the intention of plaintiff to sell the hops and hold him for the deficiency, and that therefore.the measure of damages adopted by the referee was not correct. Notice was given to Steinkampf, the agent of defendant, who made the contract with plaintiff and who inspected and rejected the hops. The referee finds, upon the request of the defendant, that the agency terminated on the 31st October, 1888. The notice was given after this date, but it does not appear that the plaintiff knew of the termination of the agency. We must assume that he did not. It is alleged in the complaint and admitted by the answer that Steinkampf “ was the regular, constituted and appointed agent of the defendant, duly authorized and empowered by the defendant to make bargains, contracts and agreements for and in behalf of said defendant in and about purchasing, contracting for, accepting, receiving and paying for hops purchased in behalf of said defendant and to do all acts and things necessary to carry into full force and effect such agency.” Steinkampf lived in Oneida, the defendant lived in New York. The defendant received the benefit of the highest market value at the time of the sale, and it does not appear that hops were any higher at the time of delivery. We a»e of the opinion that plaintiff was justified in giving notice to the agent, and defendant has no ground for complaint.

The defendant further claims a settlement, but that is not made to appear.

Judgment affirmed, with costs.

Hardin, P. J., and Martin, J., concur.