author: MERWIN, J.

text:
    Benjamin F. Wilber v. New York Cent. & H. R. R. R. Co.
    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    Accnyp/NTS AT RAILROAD OUOSSmeS—NEGLIGENCE—QUESTION FOR JURY.
    Plaintiff was struck by defendant’s locomotive at a hivhwav crossing-. No warning was given by the flagman of the approach of the. train. Plaintiff testified that he stopped, looked, and listened before going on the track, but that he did not see or hear any train; that no whistle was blown, or bell rung; and that the flagman did not say anything to him as he went on the track. Held, mat the question wnether plaintiff was gmlty oí contributory negligence siLOuld have been submitted to the jury.
    Appeal from circuit court, Schenectady county.
    Action by Benjamin E. Wilber against the New York Central & Hudson Elver liailroad Company ior personal injuries. Plaintiff was nonsuited, and appeals.
    P. C. Dugan and I. H. Maynard, for app’lt; S. W. Jackson, for resp’t.
   MERWIN, J.

December 80, 1894, between one and two o’clock in the afternoon, the plaintiff, as he was walking westerly along the northerly side of State street, in the city of Schenectady, and across the tracks of defendant, was struck and injured by the last mail train of defendant, coming from Albany, and not stopping at Schenectady. It was running at the usual rate' of speed. There was no warning by flagman, as required by the ordinances of the city. Eor the injuries received by the plaintiff, he sought to recover of the defendant damages, upon the ground that it ivas negligent in not giving proper signals or warning of the approach of the train. A nonsuit was granted on the ground that the plaintiff did not show himself free from negligence.

At that crossing the defendant had five tracks; and the Delaware & Hudson Canal Company, two tracks. A traveler, coming in the direction plaintiff did, first reached the two tracks of the Delaware & Hudson Canal Company; then the two freight tracks of defendant; then the Troy track, so-callod, of defendant; then track No. 2, upon which the train in question was running. There was a flagman’s shanty or station between the Delaware & Hudson tracks and the defendant’s freight tracks, and also between the Troy track and No. 2. The defendant’s tracks, according to the may in evidence, as they leave State street going towards Albany, curve westwardlv, so that the trains, as they come in, come from a southwesterly direction. The defendant had for several years kept a flagman at the crossing, whose duty it was to give warning of the approach of the trains by waving a flag. The custom was for the flagman to be out in the street, in the center of the roadway, waving his flag, on the approach of trains, and this custom was known to the plaintiff. The street between the curbing was about sixty feet wide, and the sidewalk on each side was about twenty feet wide.. The weather was cold,—below freezing point,-^-and there had been on the 27th December a fall of snow, to the extent of fifteen inches, as measured at Albany, and the temperature was then, and to and including the ^30th, abnormally low,—not at any time above freezing. The wind at Alhanv on the 30th, between one and two o’clock, was moving from the south at a velocity of thirteen miles an hour.

The plaintiff testifies that as he came down the street, and reached the Delaware & Hudson tracks, he stopped and looked up and down.

"T did not see any train, nor hear any, but I stopped and looked. Then I went on, and came past the Troy track, and then halted, and looked up and down, and saw nothing, and started on. I heard nothing. I went on to go over the tracks. There was a little girl just ahead of me. She went on. I got onto the track a little piece, and heard something, and undertook to jump back, and 1 was struck. After I got past the Troy track I halted, and looked down towards Albany and up towards the depot. I did not see or hear any trains. There was no whistle blown or any bell rung. I proceeded on, and got on the track. Then the train hit me. It was right onto me.. I kind-a jumped back, or tried to jump back, and it struck me. I jumped to get out of the way, and was hit. Before I got down to the Troy track I passed the flagman who stood there; stood right there—stood right on— in about that first shanty, or flagman’s station. He stood there with his flag and his hand down, and I passed right by him, — I would say, about within two feet of him. "When I came towards him we were face to face. He did not say anything to me about the train coming. He did' not wave any flag. * * * In coming down that afternoon there was quite a considerable wind blowing, and snow flying. As 1 was coming across this crossing I could not see more than twenty-five or thirty feat. I don’t think, at the utmost, towards Albany. * * * My eyesight has not been first rate for a number of years. I w7as about two or three feet, I think, part of the Troy track before I looked towards Albany an 1 towards the depot. Hext to the Troy track was the track upon which I was hit. A little girl passed on ahead of mo there. Towards Albany, I could not see across the street. I looked there for the flagman, and there was none there,—only the flagman I saw on the street when I passed him on, the street. * * * There was from twelve to fifteen inches of loose snow on the ground at that time. The wind was blowing strong. When I crossed the Troy track I halted and listened, and heard no bell or whistle.”

McDonald, a witness for plaintiff, saw the train after plaintiff was hit, and when the train was about half past the crossing. The witness was in a store eighty to one hundred feet distant from the train. Another witness for the plaintiff, upon his cross-examination, testified that he was going down State street, on the oanal bridge, at the time of the accident, and from that point could see the cars as the train passed across the street, and that he was about 250 feet distant.

The distance between the Troy track and track Ho. 2, where the foot passengers walk, is a distance of fifteen and one-half feet. 5n the widest part. According to the map, it was about twelve and one-half feet in the narrowest part. The plaintiff testifies that he thinks he was about two or three feet past the Troy track when he looked. The defendant claims that the plaintiff was, as mater of law, negligent in not looking again before he started to cross No. 2. To support this proposition the case of Fowler v. Railroad Co., 74 Hun, 141; 56 St. Rep. 307 (affirmed without opinion in 147 N. Y. 717), is cited. That case involved an accident at this same crossing, but on the other side of the highway, and to a person coming eastwardly. At the corner there was a building caled the “Express Office,” then a spur track running beside the building southerly from State street, and upon this there was at the night of the accident a car standing which obstructed the view southerly. Then came track No. 1, and then No. 2, upon which the train was coming. The only evidence on the part of the plaintiff as to looking and listening was that when the express building was reached, and when yet some feet distant from the first track, he looked both ways. He made no additional attempt to gain a view of the tracks after passing the obstruction to his vision caused by che presence of the standing car. In the present case the plaintiff looked at a point where, aside from the flying snow, there was no obstruction, and after-arriving in the space just preceding the track upon which' he was hit. In this respect, as well as the surrounding circumstances, the Fowler Case seems to be materially different from the case in hand. The fact that a party who looked did not look at the precise place and time where and when looking would have been of the most advantage does not necessarily, as matter of law, bar a recovery. Andrews, J., in Rodrian v. Railroad Co., 125 N. Y. 526; 26 N. E. 741. It is usually a question for the jury, inasmuch as the surrounding circumstances are to be considered, and their effect upon men reasonably prudent. Greany v. Railroad Co., 101 N. Y. 419, 427; Gushling v. Sharp, 96 id. 677; Parsons v. Railroad Co., 113 id. 355, 364; Sherry v. Railroad Co., 104 id. 652. In such cases, as said in the Parsons Case (page 364,113 N. Y.):

“The question is whether the injured party, under all the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances. This rule must, in all cases, except those marked by gross inexcusable negligence, render the question involved one of fact for the jury.”

In the Glushing Case it is said:

“He looked both ways, and whether, under all the circumstances, he should have looked again, or continued to look, was1 for the jury to determine.”

The party was bound to make all reasonable effort to see that a careful, prudent man would make under like circumstances. He was not bound to provide against any certain result. Shaw v.

Jewett, 86 N. Y. 617. The fact that witnesses for plaintiff testified to their ability to see the train, as it crossed the street, at a greater distance than plaintiff, as he testified, could see, by reason of the blowing of the snow, does not necessarily show that plaintiff might have seen the train when he looked, or even that in his position he could see further than he said he could. The absence of any warning from the flagman is a material element on the question of the contributory negligence of the plaintiff. McNamara v. Railroad Co., 136 N. Y. 650; 49 St. Rep. 395; Dolan v. Canal Co., 71 N. Y. 285; Wilbur v. Railroad Co., 85 Hun, 155; 65 St. Rep. 664. In the McNamara Case it is said of the care required from the party injured:

“She had the right to rely upon the presence of the flagman to warn her of any danger, and she had a right to assume that trains would not be operated at such a place with such an unusual rate of speed, and that proper signals would be given to persons using the street of the approach of a train, by ringing the bell and sounding the whistle.”

The same principle is applicable as in cases where the crossing is guarded by gates.

“A traveler approaching a railroad crossing guarded by gates is not required to exercise the same vigilance in looking ana listening as where the approaches are not so guarded.” Kane v. Railroad Co., 132 N. Y. 160; 30 N. E. 256.

An open gate is said to be a direct and especial assurance to the traveler that the way is safe. Danforth, J., in Palmer v. Railroad Co., 112 N. Y. 234, 241; 20 St. Rep. 904; 19 N. E. 678. Whether, in the present case, the plaintiff relied on the absence of the flagman as an assurance of safety, was for the jury to say:

Giving—as we must on the consideration of the propriety of the nonsuit—that construction to the evidence that is most favorable to the plaintiff, a case was, I think, presented for the jury to decide. It should not be said, as matter of law, that the plaintiff did not sufficiently look. He had a right, as the jury may find, to suppose, from the absence of the flagman, and hearing no bell or whistle, that the crossing was safe. The train was a fast one, and whether, by the exercise of reasonable care, he could have avoided the injury, was, as in the McNamara Case, a question for the jury to answer. In the McNamara Cast the view was obscured by a volume of smoke from a passing'engine. Here the vision was obscured by the flying snow.

Judgment reversed and new trial granted; costs to abide event.

All concur.


source: Caselaw Access Project

author: MERWIN, J. HERRICK, J.

license: Public Domain

text:
    John Kratzer v. Village of Saratoga Springs.
    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    Trespass—Plead in g-.
    A complaint alleged that defendant quarried stone from its premises adjoining plaintiff’s dwelling house, using powerful explosives in a careless and negligent manner, and carelessly and negligently blasted rock on the premises, making deafening reports, and shaking plaintiff’s dwelling house, and terrifying- plaintiff’s family; that rocks were thrown on plaintiff’s lot so that he could not cultivate it or inhabit his house without continual danger; and that rocks thrown by blasts broke the. roof and windows of plaintiff’s house, and injured one of plaintiff’s family. Held, that the complaint stated a cause of action for trespass. Herrick, J., dissenting.
    Appeal from circuit court, Saratoga county.
    Action by John Kratzer against the village of Saratoga Springs for injuries to plaintiff’s property alleged to have been causes by negligent blasting on premises owned by defendant. The complaint was dismissed, and plaintiff appeals.
    The complaint alleged, on information and belief, that defendant is a domestic corporation; that, at the several times hereinafter mentioned, plaintiff resided in, and was the owner of, a house on the northwesterly side of Maple avenue, in said village, known as 271 Maple avenue;” that defendant has since June 1, 1892, occupied premises adjacent to the plaintiff’s dwelling house, from which it has quarried large amounts of stone for use on the streets of said village, and for other municipal purposes; that defendant and its officers, agents, and servants used gunpowder, dynamite, and other explosives of high character, in a careless and negligent manner, and carelessly and negligently blasted the rock on the premises occupied by said village, at different times since said 1st day of June, 1892, and every day, during long periods of time, have discharged heavy blasts of dynamite and other explosives on said premises, which have made deafening reports, and shaken plaintiff’s dwelling house and other buildings, and alarmed and terrified plaintiff and his family, and thrown rocks and stones, many of which were of great size and-very heavy, over on plaintiff’s .premises, to such an extent that he has been unable to cultivate his premises,' or to inhabit bis dwelling, without continual danger and annoyance and fear, and the stones and rocks thrown hv said blasts have repeatedly struck his said dwelling house and buildings; that during- the summer of 1892 a rock struck the roof of his ham and injured it, another rock struck a grapevine belonging to plaintiff, and injured it, and on July 4, 1892, a large rock broke a hole in the roof of his dwelling house, and broke glass out of the windows; that on May 16, -1893, a large rock struck the roof of the piazza, of plaintiff’s dwelling, and went entirely through it, breaking the shingles and roof hoards, and damaging one of the posts which supported the piazza, and terrifying plaintiff’s wife and children, who were in the house at the time; that on June 10, 1893, a large rock was thrown as aforesaid through one of the outside doors of plaintiff’s said residence, and another rock through one of the windows, one of which said rocks struck a cupboard, and partly demolished it, and broke a pitcher, and at the same time another large rock struck plaintiff’s daughter, Minnie Elizabeth Kr&tzer, in the right side, and inflicted a severe injury upon her, by bruising the flesh of her side, inflicting a wound upon her arm, and breaking two of her ribs, so that she was •confined to her bed for two weeks, during which period she required medical attendance, which plaintiff was compelled to furnish to her, and so that she has not since been able to render the services in and about plaintiff’s household which she had been previously accustomed to render, and has ever since been, and no-w is, in consequence of such injury, often in pain, and without her accustomed strength and ability to labor. The complaint further alleged that in consequence of said wrongful and negligent acts of defendant, its officers, agents, and servants, plaintiff’s dwelling has been less valuable for occupancy as a residence since Junt 1, 1892, and the occupation thereof has been attended with great hazard and discomfort, and that plaintiff has sustained damages in consequence of the matters herein mentioned to the amount of $1,000. The complaint further alleged that plaintiff’s claim for damages had been presented, and notice of the time and place at which said injuries were received had been filed with the village clerk of defendant, and that said claim was so presented and said notice was so filed within one year1 after the cause of action herein set forth accrued. Judgment was demanded against •defendant for $1,000 and costs.
    C. S. & C. C. Lester, for app’lt; A. W. Shepherd, for resp’t.
   MERWIN, J.

I am inclined to the opinion that in the complaint, disregarding the allegations of negligence, a cause of action in the nature of a trespass is stated, and that the plaintiff should have been permitted to give his evidence on that subject. The acts of t'he defendant are charged.as wrongful. There was alleged a physical invasion of plaintiff’s premises. The cases of Hay v. Cohoes Co., 2 N. Y. 159, is recognized as good authority in St. Peter v. Denison, 58 id. 416, 421; Benner v. Dredging Co., 134 id. 156,162; 45 St. Rep, 774; Booth v. Railroad Co., 140 N. Y. 267, 278; 55 St. Rep. 656. I therefore advise a reversal.

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

PARKER, P. J., and LANDON, J., concur.

HERRICK, J.

(dissenting). The complaint, in form, is one for negligence. But the rJaintiff asserts that the allegations of negligence are unnecessary and harmless, and without, them the tacts set forth constitute an action for trespass upon real estate,, and that, therefore, it is unnecessary for him to allege the facts required by section 82 of chapter 289 of the Laws of 1890. As a general rule, a party coming into court and asserting one cause of action cannot recover upon" another and different one. Reed v. McConnell, 133 N. Y. 425, 434; 45 St. Rep. 227. But assuming that, in the furtherance of justice, a complaint may be stripped of some of the allegations which render it a complaint in one form of action, and thereby leave it a sufficient complaint under another form of action, I doubt even o then whether this plaintiff can sustain his complaint. It may be that under the cases of Hay v. Cohoes Co., 2 N. Y. 159, and Tremain v. Cohoes Co., Id. 163, the plaintiff is entitled to recover upon merely showing that quarrying has been carried on by means of blasting, and thereby stones have been thrown upon his premises, although I think the later cases of Booth v. Railroad Co., 140 N. Y. 267; 65 St. Rep. 656, and French v. Vix, 143 N. Y. 90; 60 St. Rep. 469, cast some doubt upon that question. But in this case we cannot assume from the complaint such a state of facts as warranted a recovery in the cases of Hay and Tremain. While we may disregard the allegations of carelessness and negligence in the complaint, in so far as they are supposed to render the action one for negligence, yet the language still remains to characterize the transactions complained of. Quarrying, per se, is not a nuisance. In the complaint it is charged that gunpowder, dynamite, and other explosives of a high character, were employed by the defendant, its officers, agents, and servants, in a careless and negligent manner, and that they carelessly and negligently-blasted the rock on the premises occupied by said village. So that we may infer from the language of the complaint that the injuries would not have happened if the .explosives had not been carelessly and negligently used, or the blasting carelessly and negligently done, rather than that the injuries would have resulted from the quarrying, from the nature of the business itself. And, again, it is alleged in the complaint that the dwelling and property of the plaintiff have been injured and rendered less valuable in consequence of the wrongful and negligent acts of the defendant, 'its officers, agents, and servants. Whether we consider the action as one of negligence, of nuisance, or of trespass to real estate, the fact remains that the plaintiff alleges that the injuries complained of have been caused by the negligence of the defendant, its officers, agents, and servants. The section of the law referred to does not require the notice to he given merely in an action of negligence, but where the injury done' to person or property is “alleged to have been sustained by reason of the negligence of the village or of any officer, agent'or employee Y Laws 1890, chap. 289, § 82. The plaintiff, in his complaint,. alleges that the injuries sustained were by reason of the negligence of the village, its officers, agents, and servants; so that he is brought distinctly within the provision of the law requiring notice.

Judgment should therefore he affirmed, with costs.

PUTNAM, J., concurs.


text:
    Elizabeth Kelly v. Cohoes Knitting Co.
    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    1. Negligence—Throwing goods from door of building
    .Where plaintiff was injured by a box thrown from the door of defendant’s mill to a truck on a sidewalk, defendant’s liability is not affected by the fact that he had nothing to do with the transportation of g-oods from its mill door.
    3. Evidence—Expressions of suffering.
    Where plaintiff’s mother testified that on the night following the accident she was with plaintiff all night, she may testify, in answer to a question as to how plaintiff was affected, that “she (plaintiff) cried; went from one sleep to another, would wake up and cry, and say her head pained her.”
    3. Trial—Objections to evidence.
    An objection to evidence after it was given is not available on appeal, where no motion was made to strike it out.
    Appeal from Albany county court.
    Action by an infant, by her guardian ad litem, against the Co-hoes Knitting Company for personal injuries. From a judgment of $675, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes, defendant appeals-. Affirmed.
    Doyle & Fitts, for app’lt; J. F. Crawford, for resp’t.
   MERWIN, J.

The plaintiff in this case claims to have been injured on the 14th of April, 1891, by reason of the negligence of the defendant in throwing from a door of its mill on the northerly side of Ontario street in the city of Cohoes, a case or box of goods onto a truck that was backed up partially across the sidewalk. The plaintiff was then between ten and eleven years old, and was going home from school between three and four o’clock in the afternoon. She claims that as she, with other children from the school, passed along the sidewalk, and came to the defendant’s building, there was a space of from eighteen inches to two feet between the end of the tail board of the truck and the side of the building,—sufficient to allow one to pass; that others passed along ahead of her, and that as she started to pass the case of goods suddenly and without warning came from the door above her, hitting her upon the side of the head, and producing the injury complained of. There have been two trials of the case. Upon the first trial there wTas a recovery by the plaintiff, and an appeal taken by the defendant. In considering that appeal, it was said by the court (84 Hun, 154; 65 St. Rep. 664):

“We are of the opinion that whether defendant’s servants were negligent in shoving a box of goods into the street'in the manner they did, whether plaintiff was struck and injured by the box, and whether plaintiff’s negligence did or did not contribute to the injury, were all questions of fact, which the trial court properly submitted to the jury, and as to which the verdict is conclusive.”

It was, however, considered that the trial court erred in its charge and its action upon requests to charge, and upon that ground a new trial was granted. The plaintiff has again recovered a verdict, and the defendant, among other things, claims that the evidence is not sufficient to sustain the findings that the defendant was negligent, and the plaintiff free from negligence. In a general way it is suggested by the appellant that the evidence on these subjects on the last trial is different from what it was on the first. No particulars are specified, except that the plaintiff on the first trial stated that the space between the wagon and the mill was three feet, and that defendant on this tidal shows that it had nothing to do with the transportation of the goods from the south door of the mill. The width of the space had reference only to the negligence of plaintiff in attempting to pass. If, as plaintiff now testifies, it was eighteen inches to two feet,—room enough for her to pass,—and others were passing, it should not, so far as the width of space is concerned, be said, as matter of law, that plaintiff was negligent. Nor would the fact that the defendant had nothing to do with the transportation of the goods from its mill door affect its liability for the acts of its employees within the scope their employment (Cosgrove v. Ogden, 49 N. Y. 255; Mott v. Ice Co., 73 id. 543) upon the defendant’s premises.

It is specially argued that there is no evidence except that of the plaintiff herself that the box struck her as it came out of the mill. The evidence of the plaintiff, together with the surrounding circumstances, were, I think, sufficient to make that a question of fact. There was evidence tending to show, and from which the jury had, I think, a right to find, that the plaintiff, as she passed along, had no reason to believe that anything would he thrown from the mill without warning. No sufficient reason is, I think, apparent for us to disturb the verdict on the questions of negligence and contributory negligence.

The mother of the plaintiff was called as a witness on her behalf, and, among other things, testified that on the night following the accident she was up and down with her daughter all the night, and she was then asked the question, “How was she affected?” to which the witness replied, “She cried; went from one sleep to another; would wake up and cry, and say her head pained her.” The defendant then objected to what the girl said as incompetent, and no part of the res gestae, and moved to strike it out. The -motion was denied, erroneously, as the defendant claims. Exclamations which are the natural concomitants and manifestations of pain and suffering are admissible in evidence. Hagenlocher v. Railroad Co., 99 N. Y. 136; Kennedy v. Railroad Co., 130 id. 654, 656; 41 St. Rep. 329; Roche v. Railroad Co., 105 N. Y. 297; 16 St. Rep. 863. In Lewke v. Railroad Co.,46 Hun, 283, this rule was deemed applicable to a c^ise where complaints and statements of pain were made shortly after the accident. In the present case it is apparent from the evidence given on the part of the defendant that the girl received a severe wound, dressed, the cut sewed up, and then she was carried home, dressed, and thee ut sewed up, and then she was carried home. The statements complained of would not add much to what would be naturally inferred from this undisputed evidence. The denial of the court to strike out what the girl said does not, I think, present any good ground for reversal. The same witness testified that the girl complained of having a headache quite often. This was objected to after it was given, but no motion was made to strike it out. The obj ection is not available. Link v. Sheldon, 136 N. Y. 1; 48 St. Rep. 820.

Error is also claimed in allowing Mrs. Kelly to testify that Mr. Simmons, the driver of the wagon, told her the night after the accident that he was at the head of the horses when the box came out of the mill. He had previously testified upon his direct examination, as a witness for the defendant, that he stayed in the wagon until the fourth box, being the one in question, was tipped over far enough outside of the mill to hit the- last box in position in the wagon, and that after that he got down, and went to the head of the horses, and drew them out, so as to admit of the fourth box falling down into position. Upon his cross-examination he was asked if he had not stated to Mrs. Kelly that he was at the head of the horses when the box came out of the mill, and he replied that he had no recollection of saying so. The evidence complained of was, in one view, contradictory of the evidence given by Simmons on the direct, and was, therefore, competent by way of contradiction, and evidently it was so offered. The fact that Simmons did not deny that he said so, but only said that he did not recollect so saying, would not prevent the proof being given that he in fact did say as claimed. Weeks v. Fox, 3 Thomp. & C. 354, 357; Palmeri v. Railway Co. (Sup), 14 N. Y. Supp. 468.

Error is claimed in the action of the court in regard to some of the requests. A large number were presented, and, taking the answers thereto, in connection with the charge proper, the defendant has no good ground for complaint. Ids rights were fully protected. It does not seem necessary to consider the requests in detail.

The defendant claims the damages are excessive. We, however, do not see any fair basis for this court to interfere on that subject.

J udgment and order affirmed, with costs.

All concur.


text:
    Barrington King v. Holland Trust Co. et ln

    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    Fraudulent conveyances—Purchaser for value—Notice of Fraud.
    A purchaser for value is not chargeable with constructive notice that the conveyance to him was made with intent to defraud creditors, but actual notice of fraud is required to affect his title.
    Appeal from special term, Albany county.
    Action by Barrington King, as receiver in supplementary proceedings of Samuel Schuyler, against the Holland Trust Company and others, to have set aside, as fraudulent, certain transfers of steamboats made by Samuel Schuyler to the Schuyler Steam Towboat Company, and a trust deed mortgage, and the bonds secured thereby, executed by the Schuyler’s Steam Towboat Company to the Holland Trust Company as trustee. The complaint was dismissed on the merits, and plaintiff appeals. Affirmed.
    Lewis E. Carr and C. D. Hudson, for app’lt; George M. Van Hoesen, for resp’ts.
   MERWIN, J.

This action is in the nature of a creditors’ hill, and was commenced on the 2th of March, 1892, by the plaintiff, as representing several judgment creditors of Samuel Schuyler; all the judgments being based upon debts against Schuyler existing on and prior to December 8, 1890. In the complaint, divers transfers of property by Schuyler are set out, and alleged to have been made in fraud of creditors. Among other things, it is-alleged that on and prior to December 8", 1890, Schuyler was the owner of five steamboats, known as the “Vanderbilt,” “Syracuse,” “Carrie,” “Leonard,” and “Wynants;” that on the 8th December, 1890, Schuyler, with intent to defraud his creditors, and without consideration, transferred these boats by bills of sale to the defendant the Schuyler Steam Towboat Company, a corporation organized under the law of this state, on or about December 8,1890; that on the 24th December. 1890, and as a part, of the scheme to defraud the creditors of Schuyler, the defendant the Schuyler Steam Towboat Company) gave to the defendant the Holland Trust Company a mortgage on the five boats above named to secure the payment of certain bonds issued by the towboat company; and “that by reason of said mortgage the said defendant, the Holland Trust Company, pretended to loan to the Schuyler Steam Towboat Company the •sum of $65,000, but no such sum, as matter of fact, was loaned •or advanced to the Schuyler Steam Towboat Company. And, further, that said loan was fraudulent and void by reason of the receipt of a higher rate of interest thereon than that prescribed by law, and that said mortgage was given without consideration, and that the consideration that purported to have passed between said parties was inadequate, and that the fraudulent character of said transfer was known to the defendant, the Holland Trust Company, and that the defendant, the Holland Trust Company, participated in said fraudulent transactions.” It is also alleged that in August, 1891, Schuyler made a general assignment to the defendant Kirchway, which is alleged to be fraudulent and void as to creditors. Hone of the defendants defended, except the Holland Trust Company and Kirchway. By the judgment appealed from, the general assignment is set aside, and Kirchway does not appeal. As to the Holland Trust Company, the court decided that it was a mortgage in good faith and for a va] uable consideration, and that the cause of action alleged against it had not been established.

It appears that for many years prior to December, 1890, there had existed a corporation known as the Schuyler Steam Towboat Line. Its capital stock was $100,000, divided into shares of $100 ©ach; and Schuyler was the owner of about 700 of the 1,000 shares, and he was the president of the company. It was engaged in the business of towing boate on the Hudson river, and its property consisted mainly of four steamboats and the good will of the business. Schuyler was himself the owner of five other boats, being those referred to in the complaint; and they bad for many years been used in the business of the .towboat line, and their earnings credited to Schuyler. Prior to December, 1890, the towboat line had become and was then indebted to •divers parties other than Schuyler to the amount of about $125,-O00, which it was unable to meet and pay in the ordinary course of business, and its property was not sufficient to enable it to borrow sufficient money to meet and discharge its then pressing obligations. It was also indebted—in form, at least—to Schuyler to a considerable amount. It is not clear how much in fact this debt was. It was thereupon agreed between the officers of the towboat line and Mr. Schuyler that the latter should transfer to the line the steamboats owned by him, to enable it to borrow thereon, and on its own property, $150,000, to he used in the rovmpnt of the indebtedness of the line, other than that_ to Schuyler. In order to carry out this arrangement,—there being some difficulty in the way of the towboat line mortgaging its. property, and its term of existence being soon to expire,—a new corporation, the Schuyler Steam Towboat Company, was formed,, with practically the same stockholders and same directors; the stock in the old being surrendered for stock in the new company,, and all of the property of the old company being transferred to the new. Schuyler transferred to the new company his five boats, and subsequently surrendered or canceled the evidences of his debt against the old company. The new company assumed the payment of the debts of the old, and the indebtedness for the steamboats transferred to it by Schuyler, the amount of which does not appear, and subsequently, from money borrowed by it of the Holland Trust Company, paid $15,000, .which Schuyler-owed the trust company. Ho other consideration was paid to Schuyler by the new company for the transfer of the boats. Schuyler was at the time in debt or liable to an amount exceeding $80,000, and the property remaining to him after the transfer of the boats and the cancellation of his claims against the towboat line was insufficient to pay his indebtedness. It was not found that the transfer was made with intent to defraud creditors. He seems to have continued on in business until he made the general assignment -to Kirchway, on August 4, 1891. On the 24th December, 1890, the towboat company, with the required consent of its stockholders, executed a mortgage on all the steamboats and the franchises of the company, including the good will of the business, to the Holland Trust Company, as mortgagee, in trust, to secure the payment of $150,000 of bonds to be-issued by the company. The trust was accepted by the trust company, and the bonds were issued, and offered for sale. Three thousand dollars were sold, and $2,000 additional were turned out to creditors in payment of their debts; and the balance, so far as made use of, were pledged as collateral to then existing indebtedness of the company, or for the loan to the trust company, hereinafter specified. In January, 1891, the trust company loaned to the towboat company $55,000, taking as collateral security therefor $100,000 of the bonds secured by the mortgage. From this loan the trust company received the sum of $15,000, the amount of a loan made by it to Schuyler prior to December 8,1890, being thes ame hereinbefore referred to. The company continued its business in the usual way up to 31st July, 1891, when a receiver of its property was appointed. In August, 1891, under the terms of the loan, the bonds held by the trust company were sold at auction for $20,000, the trust company being the purchaser. It also appears that on May 28, 1892, in proceedings in the United States court, six of the boats covered by the mortgage were sold at auction, three of which were of those transferred by Schuyler,, and brought $26,000, and the other three brought $23,100. What has become of the other boats does not distinctly appear,. or what was their value at the time the company failed. The towboat company is a party defendant, hut does not defend. Its receiver is not a party, nor are any of the bondholders made parties, except the trust company. The claim of the plaintiff is that the transfer of the five boats from Schuyler to the towboat company was fraudulent as to Schuyler’s creditors, and that the trust company is not in the position of a purchaser for a valuable consideration without previous notice of the fraud.

Under the allegations of the complaint, and the course of the trial, the main, if not the only, question is over the transaction by which the bonds were taken by the trust company as collateral to its loan. The only rights that can he affected here are those of the trust company to the bonds it received. It is hardly claimed that the rights of other bondholders can he affected. Bo that if the trust company, as to the bonds it received, was entitled to-the protection of the mortgage, the judgment should he affirmed. The plaintiff is not in a position here to investigate the rights of other parties, or provide for the marshaling of securities. The-rights of the plaintiff in that respect will, we must assume, he fully protected elsewhere. It is not disputed that the loan was made-by the trust company, and the bonds delivered at the time as collateral. Whether, as between the directors and the stockholders,, the directors had a right to make the loan in exactly that form, is not material here to inquire. The plaintiff is not a stockholder or a creditor of the corporation, and seeks no rights as such. ' The corporation had the benefit of the loan, and in the payment of the $15,000 debt of Schuyler, which the trust company held, it may, upon the evidence, he assumed that' so much was paid toSchuyl-er towards the consideration of the transfer of the boats by him to the company. The trust company gave up Schuyler’s note and other collateral which it held, and at that time Schuyler was apparently solvent; at least, he was doing business. Murphy v. Briggs, 89 N. Y. 446. It seems to me very clear that the trust company was a purchaser for a valuable consideration. The burden then was on the plaintiff to1 show that the trust company had previous notice of the fraud, if any, of Schuyler in making the transfer to the towboat company. Starin v. Kelly, 88 N. Y. 418; 4 Rev. St. (8th Ed.) p. 2593, § 5. It is to he borne in mind' that Schuyler owned seventy per cent, of the stock of the towboat company. So that, although he transferred the boats to the-corporation, he still held a beneficial interest. He was also-largely an indorser on the outstanding paper of the company. When the trust company took the bonds, the towing company was going on with its business in the usual way, and so continued' to the following August. The officers of the trust companv who negotiated the loan had no knowledge of the insolvency of Schuyler, or of the arrangement under whieh the boats were transferred. Even if the knowledge of Mr. Van Allen, a trustee of the trust company, who lived at Albany, was chargeable-to the trust company, it falls short of notice of any intent by Schuyler to -defraud his creditors, or notice of Schuyler’s insolvency. But it is said that the trust company did not sufficiently inquire as to the title of the towboat company, and that it had constructive notice. It has, however, been held that a purchaser for a valuable consideration is not chargeable with constructive notice that the conveyance to him was made with intent to defraud creditors; that actual notice is required, to impair or affect his title. Stearns v. Gage, 79 N. Y. 102; Jacobs v. Morrison, 136 N. Y. 101; 48 St. Rep. 83. Applying this principle, we are of the opinion that the evidence fails to show notice to the trust company of any fraud in the transfer of the boats by Schuyler.

The plaintiff claims that the court erred, to his prejudice, in excluding as evidence generally in the case the judgment -entered in this action upon the default of the other defendants, including the towboat company and Schuyler. It appears that a judgment by default against all the defendants was entered on the 26th July, 1892. On the 20th August, 1892, a stipulation in the action was made .between the plaintiff’s attorney and the attorney for the trust company, that this judgment, “so far as it relates or affects the defendant, the Holland Trust Company, he reopened, and the default of said defendant” excused, with leave to answer on certain terms, “it being understood and agreed1 that nothing herein contained shall affect the rights of the plaintiff herein, as against any or all of the above-named defendants, except the defendant the Holland Trust Company, under and' by virtue of the judgment.” An order in accordance with the stipulation was duly entered. The point of the plaintiff is that the judgment was competent, as against the'trust company, to show prima facie the fraudulent character of the transfer by Schuyler. It is a lit-' tie difficult to see how this can he, in view of the stipulation and order that the judgment he reopened “so far at it relates to or affects the defendant the Holland Trust Company.” It was found, at the request of the plaintiff, that such a judgment had been entered. It also appears that before this suit was commenced a receiver of the corporation was appointed. We fail to see in the ruling any error that calls for reversal. In the view we take of the case, we asume that, as between the plaintiff and Schuyler and the towboat company, the transfer may be invalid.. That does not allow a recoverv against the trust company, it being in the position of a purchaser for a valuable consideration without previous notice of the fraud.

There are no other questions that need he specially considered. We find no good ground for reversal.

All concur.

Judgment affirmed, with costs.


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    John F. Hickey v. New York Cent. & H. R. R. Co.
    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    A CCIDENT AT RAILROAD CROSSING—QUESTION EOR JURY.
    Plaintiff, who was struck by a train while crossing defendant’s railroad track on a very dark nig'ht, while a dense fog- was pievailing, testified that before driving on the track he and his coinxianions looked and listened, but heard nothing-. There was evidence that the train was going very fast, that the fog was so dense that the headlight furnished practically no warning, and that the whistle, if blown, or the bell, if rung, could not be heard at the crossing. Held, that defendant’s negligence was a question for the jury.
    Appeal from circuit court, Benssel-aer county.
    Action for personal injuries. From a judgment entered on a. verdict in favor of plaintiff for $10,000 damages, and from an order denying a motion for a new trial, made on the minutes of the court, defendant appeals. Affirmed.
    R. A. Parmenter, for app’lt; Lewis E. Griffith, for resp’t.
   MERWIN, J.

On the 19th August, 1891, the plaintiff wag injured in a collision with a passenger train of defendant at a highway crossing in the village of Herkimer. The collision and consequent injury were due, as the plaintiff claims, to the negligence of defendant in runnig its train, without any contributory negligence on the part of plaintiff, and the jury have so found. The ground of negligence is the failure to give due warning of the Approach of the train. The plaintiff was a resident of Troy, and was attending a firemen’s convention at the village of Herkimer. He and another delegate, by the name of Mulligan, stopped at an hotel in the village of Mohawk, about a mile distant. The proceedings in the evening of August 18th continued to a late hour, and it was about one o’clock in the morning of the 19th before the plaintiff and his associate started for their hotel. It was very dark, and there was a dense fog, and they arranged with one Crosset to take them in a carriage to Mohawk. He sent Lawton, one of its employes, with a one-horse top buggy, the top being down. The three sat upon one seat; Lawton being in the middle, and driving. Lawton was familiar with that locality. They proceeded southerly down Main street, which crosses the railroad1 tracks at the stattion at about right angles. When they arrived near the railroad a freight train was passing eastwardly on thack No. 4. After it passes they proceeded along, but, as the plaintiff testifies, they stopped before passing over any of the tracks, and all looked and listened to ascertain whether any other train was coming; and, hearing or seeing nothing, they started across, and were struck by a west-hound passenger train on track No. 2, which is the second track beyond, or southerly of, the one the freight train was on. The plaintiff was severely injured, and the other two were killed. The defendant claims that upon the facts the judgment should be reversed; that upon the evidence the jury was not warranted in finding that the defendant was negligent, or the plaintiff free from negligence. There was evidence on the part of plaintiff tending to show that the train was going very fast; that the fog was so dense that the headlight furnished practically no warning; that the whistle, if blown, was blown so far away that it was not heard at the crossing; that no bell was rung, or, if rung, could not be heard at the crossing. It was the duty of the defendant to use reasonable care in the operation of its train, having in view the circumstances of the case, and the danger to be reasonably apprehended. It was bound to give reasonable warning of its approach to the crossing. Dyer v. Railway Co., 71 N. Y. 228; Weber v. Railroad Co., 58 id. 451; Vandewater v. Railroad Co., 135 id. 583, 588; 49 St. Rep. 55; Crawford v. Railroad Co., 13 St. Rep. 298. Whether or not the defendant performed its duty was, I think, a question for the jury, and its conclusion should not be disturbed. Whether or not the plaintiff was free from negligence depended largely upon the credit to be given to the testimony of the plaintiff himself. The jury had a right to believe Mm, and, if so, had the right to say that he was not careless. Wilcox v. Railroad Co., 88 Hun, 269; 34 N. Y. Supp. 744. The verdict should not, I think, be disturbed upon the facts.

Our attention is called to several exceptions to rulings upon evidence. Error is claimed in the refusal of the court to strike out certain evidence given hy Crossett, a witness for the plaintiff, on his redirect examination, as to the ability of the driver, Lawton. The evidence was proper as explanative of or in reply to the cross-examination. The witness Hall was allowed to give his opinion of the speed of the train. Presumptively, as the evidence then stood, he was oampeitent to give it, though not an expert. Salter v. Railroad Co., 59 N. Y. 632. A witness testified that the train was coming “at a very rapid rate of speed.” This the defendant moved to strike out, on the ground that the witness was not shown competent to speak. The refusal to strike but did not affect defendant’s rights, as it afterwards appeared that the witness was competent. The defendant objected to the evidence of plaintiff as to what was said between the three, in the buggy, just before they started to cross the track. The court limited the evidence “to whatever may have been said by any one of the three to the others, calling the attention of the driver to an approaching .train;” “to anything they may have said at that time as to whether or not they could hear or see any approaching train.” This was competent on the question of contributify negligence.

Hpon the question of damages, it was competent for the'plaintiff to describe his occupation prior to the accident, and his ability to earn money.

The defendant offered as evidence its rule No. 95, hut it is not apparent how it was material. The rule itself is not in the record.

Of the charge the defendant has no good ground to complain. The refusal to charge requests, the subject of which has been fully and sufficiently charged already, does not present error. Ho point is made as to the amount of the damages. Ho good ground for reversal is, I think, apparent in the case, and the judgment should therefore he affirmed.

All concur.

Judgment and order affirmed, with costs.


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    The People v. George W. Hess.
    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    1. Witness—Privileged communications—Attorney and client.
    The examining magistrate in a homicide case (one H.) had been counsel for defendant in all his legal matters, and at the time of the examination was his attorney in a pending action. When the examination began, defendant asked H. to be his attorney, to which H. replied that he could not be. Next day defendant sent for H., and said be wanted to talk with him about his case. H..said he could not and would not be his attorney. Defendant replied that he did not wish to consult him as counsel, but to talk to him as a person in whom he had confidence. Held, that the communications then made by defendant to H. were not privileged.
    2. Homicide—Evidence—Character of deceased.
    Where no evidence has been given to show that defendant was acting in self-defense, or had been attacked by deceased, it is proper to exclude evidence of the general character of deceased for quarrelsomeness and violence.
    Appeal from court of sessions, Greene county.
    George W. Hess was indicted for murder in the second degree, and from a judgment entered on a conviction of manslaughter in the first degree he appeals. Affirmed.
    Eugene Burlingame and Jacob H. Clute, for app’lt; Edward A. Gifford, Dist. Atty., for the People.
   MERWIN, J.

The defendant was charged with shooting with a revolver one Hezekiah Bedell, on the 16th day of October,' 1892, at the hotel of defendant, in West Coxsackie. Bedell died the same day from the effect of the wound. On the trial the defendant, in substance, admitted that he fired the shot, hut he claimed that he did it in self-defense, and that was the main issue at the trial. The defendant claimed that he had reasonable ground to apprehend a design on the part of Bedell to do him great personal injury, and that there was imminent danger of such design being accomplished. Pen. Code, § 205. The jury, by their verdict, said that this claim was not established by the evidence. The defendant had at his hotel a clambake on the evening of Saturday, October 15, 1892. This was closed shortly before midnight, and at about that time Bedell was in the barroom, which was in the basement of the hotel, smoking a cigarette, and talking with Brandow and W. H. Hallenbeck, two of defendant’s employes. There soon came in Delanoy arid Fancher, who were acquaintances of all the parties, and had been there before on that evening. After a little time, Delanoy, without and provocation, and claiming to be in fun, knocked the cigarette out of the mouth or hand of Bedell. This made Bedell angry, and he thereupon struck or slapped Delanoy on the side of the head. Then followed a struggle between Bedell and Delanoy, during which the defendant and Franklin, another employe, came downstairs into the barroom. Defendant told them to stop fighting or leave, and Bedell replied he would leave when he got ready. The fighting did not stop. Delanoy was down, or partially down, on the side of the room. Franklin and Hallenbeck were trying to restrain Bedell, who was struggling to get loose from them for the purpose, apparently, of either continuing his fight with Delanoy, or, as the defendant says, trying to reach and strike him. About this time defendant took a revolver which he bad in the bar, and, as he says, for the purpose of disabling Bedell, and protecting himself from great personal injury, which he believed was imminent, fired at the legs of Bedell. The hall entered the body of Bedell, in the chest, a little to the left of the median line, and passed downward though the abdomen, and was deposited near the lower end of the spine. Bedell was a young man, about twenty years old, strong, and weighing about 190 pounds. He had no weapon, and his fighting was with his hand or fist. Delanoy had a pistol, and it seems to have been thought at one time that he did the shooting, but that theory was abandoned.

Upon this appeal the defendant claims that material errors were made by the court in its rulings upon evidence, and in its charge, and also that the defendant should have the benefit of that provision of section 527 of the Code of Criminal Procedure which provides that “the appellate court may order a new trial if it he satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether an exception shall have been taken or not in the court below.”

Upon the trial, one Edwin C. Hallenbeck was called by the people as a witness. He was an attorney, and a justice of the peace. As a magistrate, he, on Sunday, conducted a preliminary examination as to the affray, the coroner being absent from town. Depositions were taken, and the defendant and also Delano were placed under arrest. They both asked for counsel, and the proceeding was thereupon adjourned to the following’ Tuesday, "both the parties charged being committed to the custody of the sheriff until that time. On Monday, Hallenbeck saw the defendant in the county jail, and had there a conversation with him, which he was allowed to state, improperly, as the defendant claims, by reason of t'he provision of the law (Code Civ. Proc. § 835; Code Cr. Proc. § 382), that an attorney “shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment.” It appears that Hallenbeck had been the counsel of defendant in all his legal matters from the time defendant came to Coxsackie, in December, 1891, and a.t the time of the affray was his attorney in relation to a matter against a railroad. At the time the examination began, on Sunday morning, defendant said to Hallenbeck that he wanted him te be his attorney in the case; and Hallenbeck replied that he was magistrate in the matter, and could not be his attorney in the case. The defendant thereupon sent for other counsel. On Monday, Hallenbeck was at Catskill, and, as he understood it, was sent for by defendant to- come and see him at the jail. He went, and defendant wanted to talk with him about his case. Hallenbeck told him he could not and would not be his attorney or counsel in the matter. Defendant replied that there was a matter he did not wish to talk to counsel about, but wished to talk with him (Hallenbeck) because he bad confidence in him by reason of his acquaintanceship, and he (Hallenbeck) was a member of the same order that Delanoy was, to whom he wanted to send a communication. Thereupon defendant told Hallenbeck certain things about the shooting which he wished him to tell Delanoy. Hallenbeck did the errand, and reported to defendant the reply of Delanoy. The communication sent to Delanoy, and the interview when the reply was reported to defendant, constitute the evidence claimed to have been improperly admitted. There is no doubt of t'he materiality of the evidence. Clearly, according to the evidence of Hallenbeck, the relation of attorney and client did not exist between the defendant and Hallenbeek as to the affair then under consideration, and the defendant was distinctly so informed. The fact that as to other matters the relation may have existed does not confer the privilege here, especially when the relation here is distinctly repudiated to the party. In 1 Greenl. Ev. § 244, it is said that the attorney may he examined “when the thing had no reference to the professional employment, though disclosed while the relation of attorney and client subsisted.” The Code only includes a communication “in the course of his professional employment.” The fact, simply, that the communication is confidential, is not enough. Renihan v. Dennin, 103 N. Y. 579; 4 St. Rep. 261; Haulenbeek v. McGibbon, 60 Hun, 26; 14 N. Y. Supp. 393; 1 Greenl. Ev. § 244. Communications to a friend are not covered by the statute. People v. Buchanan, 145 N. Y. 1; 39 N. E. 846. In Williams v. Fitch, 18 N. Y. 551, it is said that the communications must be made to the attorney in the course of the professional employment, and' relate to the subject of the employment. Whether the communication is privileged is a matter for the court to determine from the facts appearing. Bacon v. Frisbie, 80 N. Y. 394. We are of the opinion that the court did not err in receiving the evidence, or in the denial of the motion to strike it out, made after the evidence of the defendant on the subject was' given. It is very apparent that the communications of which evidence was received were not made in the course of any professional employment.

The defendant claims error in the remarks of the court in the charge of the subject of the credibility of the defendant. Speaking of the testimony of the defendant himself, the court said:

“But, of course, the credibility and the effect of the testimony-are very much weakened by the fact that Hr. Hess is charged Fere with a great crime,-—that his words constitute his defense.”

This, at the close of the charge, was excepted to, and the court then said:

“I will charge the jury that they may look at it as they will, viewing the whole testimony. It is liable to be weakened by it, bus the jury must satisfy themselves as to his credibility, the same as any other witness under charges of the kind-preferred against him. I charge that, so that there would he no misunderstanding.”

The court, also, at the request of the counsel for the defendant, in substance, said that the jury are to give1 the evidence of Hr. Hess such weight as any witness, under the circumstances of this case, would he entitled to. The court, at the commencement of the charge, had used the following language:

“Tire testimony in this case belongs to yon. The evidence— what is the truth of the testimony—belongs to you to decide. It belongs to you to say which of the witnesses are entitled to credit. It belongs to you to say what part of the testimony of the witnesses you will accept, and what part you will reject. You can receive a part of the testimony of the witness, and you can reject another part that seems to you incredible. You have ample yow-er in all this direction. You are not obliged to receive the testimony, as a whole, of any witness. You can receive that part which seems consistent with truth and the probabilities of the case and the surrounding circumstances, and you can reject that part which seems to be unreasonable, and not consistent with the facts and circumstances of the case. With all this class of work the court cannot materially aid you. We do not assume to judge on those points at all. The law reserves them exclusively for the jury, and I am thankful for it. If, in anything, I may proceed beyond my duty in that respect, I want you to distinctly understand at this point that you are not to be controlled nor influenced in any way by whatever I may say upon the subject of the testimony or the evidence in this case.”

“The credibility of any witness may be affected by his interest in the result of an issue, or his relation to the case on trial; and a court does not exceed its duty when it reminds a jury of such a circumstance, leaving its weight for their consideration.” People v. Crowley, 102 N. Y. 234, 238; 1 St. Rep. 388. This the court, in effect, did here. In Hart v. Ryan, 6 N. Y. Supp. 924, it is said, “It is competent for a trial judge to comment upon the evidence, and even express an- opinion in respect to the same, if he confides the question of its force and effect to the jury,”—citing Allis v. Leonard, 58 N. Y. 291; People v. O’Neill, 112 id. 355; 10 N. Y. Supp. 1. If the words excepted to in the present instance were too strong, the error, if any, was cured by what subsequently occurred, within the -principle laid down in Greenfield v. People, 85 N. Y. 75. The same may be said of any error in the charge as to the necessity of effort'on the part of the defendant to escape. At the request of the defendant the court charged that the defendant was not bound to retreat at all.

The defendant claims error in the court ruling out evidence offered by the defendant as to threats made by the deceased against defendant, and of the reputation of the deceased as a violent and dangerous man. This evidence was offered on the cross-examination of witnesses for the people. “The rule is that, after evidence has been given by a defendant tending to show that the homicide was committed in self-defense, he may follow it by proof of the general reputation of the deceased for quarrelsomeness and violence.” People v. Druise, 103 N. Y. 655; 3 St. Rep. 617; 8 N. E. 733, 734. So, as to threats, it is said: “They are, however, inadmissible, unless proof be first given that there was on overt act of attack, and that the defendant, at the time of the collision, was in apparent imminent danger.” Whart. Cr. Ev. § 757. When the evidence referred to was offered, the court was of the opinion that, as the case then stood, there was no evidence from which the jury bad a right to say that the defendant was acting in self-defense, or had been attacked by the deceased. We think the court did not err in sustaining the objection to the evidence at that stage of the case. The defendant had full opportunity afterwards to present the evidence.

We are referred in a general way to numerous other exceptions, and to some things that occurred where no exception was taken, as bearing upon the proposition that justice requires that a new trial be grantéd. We have examined the exceptions and statements to which our attention is called, and have considered' the suggestions presented by the learned counsel for the defendant. We fail to discern any error on the part of the court that calls for a reversal, or any good ground for ordering a new tiaL The charge, as a whole, preserved all the rights of the defendant, and called upon the jury to fairly express their judgment upon, the evidence.

Upon t'he facts, the case is stronger against the defendant. At-the time of the shooting there were five persons present, besides the defendant and the deceased. These five were all called as witnesses for the people. Three of them were employes of the defendant, and their credibility is not attacked. They were friendly to the defendant. The situation, according to the evidence, very clearly was that the deceased had then no controversy with the defendant; that his quarrel was solely with Delanoy; that he offered no violence to any other hut Franklin, and that only for the purpose of avoiding the restraint that Franklin was seeking to impose; that Delanoy was the only one in danger from the violence of the deceased, and the defendant did not claim he did the shooting for the purpose of defending Delanoy. Having in view the evidence of the defendant, and bearing in mind the evidence of the other five who were present, it is difficult to see how the jury could intelligently have found any other verdict than they did, upon the issue presented by the evidence of the defendant. It is our duty to give judgment “without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” Code Cr. Proc. § 542; People v. Dimick, 107 N. Y. 13; 11 St. Rep. 739.

The judgment should he affirmed.

All concur.

Judgment of conviction affirmed.


text:
    The People v. Doty Polhamus.
    (Supreme Court, Appellate Division, Third Department.
    July 7, 1896.)
    1. Intoxicating Liquors—Information—Statement of time.
    An information for unlawfully selling intoxicating liquors need not state the precise times at which the sales were made, hut it is sufficient to allege that they were made “at divers times between April 1,1895, and July 5th.”
    2. Same—Statement of place.
    An information which alleges that defendant unlawfully sold intoxicating liquors “at the town of Marlborough, Ulster county, N. Y.,” sufficiently states the place where the sale was made.
    t 3. Same—Joinder of several offenses.
    The rule existing before the Code of Criminal Procedure took effect, that several misdemeanors might be joined in one information, was not changed by section 278, providing that an indictment must charge but one crime, as section 62, which specifies what sections shall be applicable to the courts of special sessions, in. which misdemeanors are triable, does not mention section 278.

      4. Same—Naming person to whom sales were made.
    An information for unlawfully selling intoxicating liquors need not name the persons to whom the sales were made.
    Appeal from court of sessions, Ulster county.
    Doty Polhamus was convicted in a court of special sessions for violating Laws 1892, chap. 401, § 31, known as the “Excise Law,” and from a judgment of the court of sessions affirming the judgment of conviction the defendant appeals. Affirmed.
    E. Dayton, for app’lt; Charles F. Cantine, for the People.
   MERWIN, J.

It is claimed by the defendant that the information before the magistrate is insufficient, in that (1) it does not state the time and place of the1 alleged crime; (2) it charges the commission of more than one crime; (3) it should state the names of the persons to whom sales are alleged to have been made, or that their names are unknown; (4) it should be upon oath or affirmation, or it should state that it was based upon the sworn statements of persons therein named. These objections are substantially the same as those taken at the trial. The information is in form of an affidavit, sworn to before the magistrate on July 6, 1895, and states “that one Doty Polhamus did wrongfully, and in violation of section 31 of chapter 401 of the Laws of the state of ¡New York, passed in the year 1892, and the several acts amendatory thereto, at the town of Marlborough, Ulster county, N. Y., sell strong and spirituous liquors, wines, ale, or beer, in quantities of less than five gallons at a time, to be drunk on the premises, to divers persons, at divers times between April 1, 1895, and July 5th, inclusive, and particularly on July 3 and 4, 1895, without having a license therefor; that the grounds of deponent’s knowledge is derived from statements made to deponent by William Dewitt, Michael Kaley, and Richard Dowd, as to sales thereof, and divers other persons.” The affidavits of Dewitt, Kaley, and Dowd, named in the information, and of three other persons, were taken by the magistrate at the same date, and upon such information and affidavits the warrant was issued. ¡No point is made about the warrant. By section 145, Code Criminal Procedure, the information is defined as follows: “The information is the allegation made to a magistrate, that a person has been guilty of some designated crime.” Other sections (148 to 152) provide that, when an information is laid before a magistrate, he must examine on oath the informant or prosecutor, and any witnesses he may produce, and take their depositions, which must set forth the facts related by the prosecutor and his witnesses tending to establish the commission of the crime and the guilt of the defendant; and if the magistrate is satisfied therefrom that the crime complained of has been committed, and that there is reasonable ground to believe that the defendant has committed it, he must issue a warrant, which, among other things, must state the crime or offense alleged to have been committed. It was not necessary to state the precise time at which the crime was committed. That would not be necessary in an indictment (Code Cr. Proc. § 280), and certainly no stricter rule applies here. In People v. Olmstead, 74 Hun, 323; 56 St. Rep. 311, the allegations covered a period of two years; and, besides, ‘it is not alleged' that the sale was without a license. The case of Village of Cortland v. Howard, 1 App. Div. 131; 37 N. Y. Supp. 843, was a civil action for a penalty. Time is not of the essence of the crime. People v. Krank, 110 N. Y. 488; 12 St. Rep. 845. The information was sufficiently definite as to time to enable the defendant to have the benefit of the judgment as a plea in bar to a future prosecution (3 Greenl. Ev. § 36; 1 Archb. Cr. Pl. [8th Ed.] 343; 11 Am. & Eng. Enc. Law, 939, and cases cited; Burns v. People, 1 Park. Cr. R. 182); the general rule being that the conviction is a bar to a subsequent prosecution, covering- the same period, for acts provable- under the first prosecution. As to the place, it is not apparent how that was not sufficiently charged. The offense consisted in selling in quantities less than five gallons without a license.

_ But it is said that more than one crime was charged. The crime was a misdemeanor, and, under the law prior to the enactment of the Code of Criminal Procedure, the joinder of separate and distinct misdemeanors was allowable, followed as in this case by a single sentence. Polinsky v. People, 73 N. Y. 69. This is conceded, but it is said that the rule has been changed by the Code. It has, so far as indictments are concerned, by the provisions of section 278, but this is not made applicable to proceedings in courts of special sessions. The sections that are applicable to such proceedings are enumerated in section 62. The failure to include in that list section 278 calls upon us to assume that the former practice as to those proceedings was designed to be continued. Besides, under the rule laid down in People v. Adams, 17 Wend. 475, there is ground far saying that only one offense would be deemed to be charged. No motion was made by the defendant to require the people to elect, or to confine the proof to a single offense. The motion was to dismiss the complaint and discharge the defendant, upon the objections stated. The defendant, not having asked that the proof be confined to- a single offense cannot well say he has been prejudiced by the form of the allegations in the information. Only a single sentence was imposed, or was proper. Section 717.

It is further alleged that the information should state the names of the persons to whom sales were made, or that their names were unknown. The cases cited in support of this proposition (People v. Stone, 85 Hun, 130; 65 St. Rep. 673; People v. Burns, 53 Hun. 274; 25 St. Rep. 97; People v. Stark, 59 Hun, 51; 35 St. Rep. 150), had reference to -indictments, and were not under^ the excise law. The indictment must contain “a plain anil concise statement of 'the act constituting the crime.” Code Cr. Proc. § 275. The information is the allegation to a magistrate “that a person has been guilty of some designated crime.” In the one case, tire act constituting the crime must be stated; in the other, the crime must be designated. It seems to me to be very clear that the test of sufficiency in the one is very different from the test in the other. Before the Code it was held not to be necessary to specify the names of the persons to whom sales were made. People v. Adams, supra; Osgood v. People, 39 N. Y. 449. I think the crime was sufficiently designated. The information was on oath, and the grounds of the informant’s knowledge were stated. It was in that respect sufficient to authorize the magistrate to proceed to the taking of the depositions, about which no point is made. It is very evident that under the Code of Criminal Procedure it is expected that the proceedings before a justice, in a case like the present, will be informal. The provisions as to demurrer (sections 321-331) are not made applicable. It is also provided that upon an appeal “the court must give judgment, without regard to technical errors or defects, which have not prejudiced the substantial rights of the defendant.” Code Cr. Proc. § 764. In this view, no reversible error is, I think, apparent in the overruling of the defendant’s objections to the information.

The defendant claims that error was committed by the magistrate in allowing the attorney for the people to read to a witness, for the purpose of refreshing his recollection, an affidavit which he had previously made. It is not clear that the reading was objected to. Assuming that it was, it was a matter within the discretion of the justice.

The defendant claims that the verdict is against the evidence. An examination of the evidence leads us to the conclusion that it is sufficient to sustain the verdict.

Judgment affirmed, and proceedings remitted to the county court to carry the judgment into effect. Code Cr. Proc. § 769.

All concur, except HERRICK, J., dissenting.


author: INGRAHAM, J. VAN BRUNT, P. J.

text:
    In re Barnes' Estate. In re Dunn.
    (Supreme Court, Appellate Division, First Department.
    June 19, 1896.)
    Wills—Interest on legacy in lieu of dower.
    A legacy to testator’s widow in lieu of dower does not bear interest from the death of testator, where no trust was created by the will, and the bequest was not directly stated to be for her maintenance and support, and the will showed no intention that the legacy should bear interest from testator’s death. Patterson, J., dissenting.

      Appeal from surrogate’s court, New York county.
    Judicial settlement of the accounts of Charles B. Dunn, as executor of the will of Joseph C. Barnes, deceased. From the decree of the surrogate settling the accounts, the residuary legatees appeal. Modified.
    Henry B. Anderson, for app’lt; Robert L. Harrison, for resp’t; Carter & Ledyard, for executor.
   INGRAHAM, J.

The first question presented is whether or not the widow is entitled to interest on a legacy left to her by the will of the testator which she was to receive “in lieu of all other interest, dower, or distributive share of my estate.” No trust was created by the will, but the widow was given a legacy of $150,-000 absolutely, and the question is whether or not, in addition to this sum, she is entitled to the sum of upwards of $9,000, being the interest on this sum from the death of the testator until one year after the issue of letters testamentary. There seems to have been some confusion in tire cases, arising from a failure to observe the distinction between a legacy given to a wife in lieu of dower where a trust is created, the income of which is to be paid to the wife for her life, and the case of an absolute bequest of personal property which is not directly stated to be for her maintenance and support, but which is given in lieu of dower. In the first class of cases it is clear that the income would commence from the death of the testator, and that all the income received from the trust fund after his death would be payable to his wife, unless a contrary intention appeared. And the question presented in the cose of Williamson v. Williamson, 6 Paige, 298, would fall within this class. There the testator gave to his wife the use of the residue and remainder of his personal estate, during her .life or widowhood, which bequest to the wife was declared to be in lieu of dower. And the chancellor there held, after a review of the English authorities, that the income received from the legacy for the use of the wife from the death of the testator was to be paid to the wife. The chancellor states the result of his examination of the case as follows :

“The result of the English cases appears to be, and I have not been able to find any in this country establishing a different principle, that in the bequest of a life estate in a residuary fund, and where no time is prescribed in the will for the commencement of the interest or the enjoyment of the use or income of such residue, the legatee for life is entitled to the interest or income of the clear residue, as afterwards ascertained, to be computed from the time of the death of the testator.”

And in the case of Cooke v. Meeker, 36 N. Y. 22, the same rule is applied :

“That when a sum is left in trust, with a direction that the interest and income should be applied to the use of a person, such person is entitled to the interest thereof from the time of the testator’s death.”

This rule, however, has been extended in Massachusetts to a case where a legacy is given absolutely to a widow in lieu of dower. In Pollard v. Pollard, 1 Allen, 490, the testator bequeathed to the plaintiff, who was his widow, the sum of $3,800 in lieu of dower, or any distributive share in his estate, on the express condition that she should release all her right and title thereto. The court held that:

“When she accepts a provision in her husband’s will as a substitute for this existing legal right, the law regards her as standing in the light of a purchaser for a valuable consideration, and entitled to receive the whole of the sum given by the will, for which she has relinquished her life estate in one-third of the testator’s real estate, in preference to other legatees, who, being only objects of the bounty of the testator, and not having any legal claim -on his estate, are regarded as volunteers, and are not allowed to take until the widow has received the full amount of the bequest to her. * * * We think the plaintiff is entitled to interest on the sum given to her by the will from the death of the testator. The case falls within the principle of an exception to the original rule that interest is not to be paid on legacies until after the expiration of one year from the death of the testator.”

The same principle is reaffirmed in the case of Pollock v. Learned, 102 Mass. 54, and Towle v. Swasey, 106 id. 100. The rule, however, is otherwise in Pennsylvania (see Martin v. Martin, 6 Watts, 67, and Gill’s Appeal, 2 Pa. St. 222), and in New Jersey (see Dutch Church at Acquackanonk v. Executors of Ackerman, 1 N. J. Eq. 43). In England interest does not seem to Lave been allowed from the death of the testator, even where the legacy was left to the wife for life. See Lowndes v. Lowndes, 15 Ves. 301; Raven v. Waite, 1 Swants. 553. The cases determined by Surrogate Bradford, which are cited and relied upon by the learned surrogate, do not support the position taken by the court below. The first case was Hepburn v. Hepburn, 2 Bradf. Sur, 74, but that was a case where an undivided half of the residuary estate of the testator was given to tire executors in trust with a direction to pay one-half of the net income to the widow in lieu of dower, the surrogate placing his decision upon the ground that:

“Legacies, ordinarily, are not payable until the expiration of a year, and they carry interest only from the time they are payable. But the bequest of a life estate to a child, or to a widow iir', lieu of dower, are exceptions to the general rule; and in such cases the legatees take interest from the testator’s decease.”

The next case is Parkinson v. Parkinson, Id. 78. There was a legacy of a specific fund in the safe-keeping of a third person at lawful interest, and. in addition to that, a bequest of the annual interest, as it.should become due upon a sum of $2,000 loaned to the trustees of a ehurch during the lifetime of the widow. In determining this question the learned surrogate says:

“Legacies generally cany interest only from the time they become payable; that is, at the end of a year, when no other period. is fixed. There are exceptions to this rule, but they do not apply to the case of a wife unless the legacy is a gift of a life estate in the residue, or be given to her in lieu of dower. In the present instance the legacies are given with that object, and that circumstance entitled her to interest from the death of the testator, on the ground that the bequest is given as an equivalent for the relinquishment of a right, and the legatee has no other means of support from the bounty of the testator. It is analogous to a legacy in satisfaction of a debt, which always carries interest from the death of a testator. Besides, the first legacy being of one thousand dollars out of the money in the safe keeping of Mr. Robert. Stewart, at lawful interest, and the last being the one hundred and fifty dollars annual interest, as it shall become due on the two thousand dollars loaned, these .are in the nature of specific gifts; and specific legacies are considered as separated from the general estate, and appropriated at the time of the testator’s death, so that the accruing produce, dividends, or interest passes to the donee.”

Seymour v. Butler, 3 Bradf. Sur. 193, is also cited. There the application was for the payment to the widow of a portion of a legacy of $3,000 given in lieu of dower, and the only question before the court was whether a portion of that legacy should be pajd to her before the expiration of the year. The court held that the executors should make each distribution upon - requiring a satisfactory bond of indemnity. In neither of these cases was the question squarely presented as to whether or not a legacy for a gross sum given absolutely to a widow in lieu of dower is an exception to the general rule that legacies are only payable one year after the death of the testator. A case where a testator gives to his wife the income of a fund to be held in trust, or a life estate in property, the income only in either case being received by the-wife, is entirely distinct from a case where the gross sum is given to the wife in lieu of dower. In the one case the income is given evidently for the purpose of support, and, as the wife has no-power to appropriate the principal during the year, she would have no support, and the clear intention of the testator would be frustrated. On the other hand, where a gross sum is given to a wife in lieu of dower, over which she has the absolute right to disposition, such gross sum takes the place of the dower interest, and the wife has the right to appropriate it at once for her support. Interest on the legacy was not necessary to provide her with a support for the year after the death of the testator. At common law a legacy was payable one year after the death of the testator, and interest commenced upon the legacy only from the expiration of that period. And it has been held by a late case in the court of appeals (Thorn v. Garner, 113 N. Y. 202; 14 St. Rep. 433) that:

“The statute prohibits the payment of legacies until a year after the granting of letters testamentary, and the general principle is that interest upon legacies is not payable until the principal becomes due. If interest be allowed before that time, without a specific direction in the will, it constitutes an exception to the rule, and is founded generally upon certain facts which the courts have agreed are equivalent to an express direction in the will to pay interest, because, from such facts, the courts will presume an intention on the part of the testator to have it paid.”

In that case there was a bequest of a million dollars to the testator’s son. He, although over twenty-one years of age, was-in bad health, unable to support himself, and had always been supported by the testator prior to the testator’s death. The court, after a review of all the authorities, held:

“We think there is not enough in this case to show that the intention of the testator (which, as all agree, is the controlling-element) was that interest, from the time of his death, should be paid upon this legacy.”

And we think upon the facts of this case we must come to the same conclusion. The testator left an estate of about $342,000. Of that he bequeathed $150,000 to his widow, the respondent. Thus almost one-half of the testator’s estate was given absolutely to the widow; and it does not appear that the testator left any real estate, so that his widow could part with nothing by the acceptance of this legacy, and the principle upon which the Massachusetts cases were founded does not apply. There is absolutely nothing in this will, or the circumstances surrounding the parties, to show that the testator intended that, in addition to-the legacy of $150,000 which he gave to his wife, there should. also be taken from his estate the further sum of $9,000 as interest upon that legacy. The statute prohibits the payment of a-legacy until one year- from the death of the testator, unless a contrary intention is plainly expressed in the will; and we find no evidence of such an intention in the will in question. We think, therefore, that the decree should be modified by directing the payment of interest on the legacy to Frances M. Barnes from February 23,1896, the expiration of one year from the date of the issue of letters testamentary. We do not think that under the circumstances the amount allowed for a monument to the testator is excessive. The estate was quite a large one, and it is quite-proper that a suitable monument should be erected. The wishes of this widow should be consulted, as well as any wishes of the children, and there is nothing before us to show that the amount reserved ($2,000) was at all excessive.

The decree should be modified as hereinbefore provided, and, as modified, -affirmed, with costs.

RUMSEY and WILLIAMS, JJ., concur. PATTERSON, J., dissents.

VAN BRUNT, P. J.

I concur in the opinion of Mr. Justice Ingraham. The testator, by his will, gave to his wife a legacy of $150,000. He knew that this legacy could not be paid until one year after the issuance of letters testamentary; and he is presumed to have had this fact in mind in fixing the amount. The court has no authority to make this legacy $159,000, in opposition to the express direction of the testator that it should be $150,000. Interest is a penalty imposed upon default in the payment of money which is due, and there is no instance to be found in which interest can be charged where there is no default.


text:
    Edward R. Ladew et al. v. Joseph W. Hart et al.

    (Supreme Court, Appellate Division, Third Department,
    July 7, 1896.)
    i; Res judicata—Issues not involved in former action.
    After goods which plaintiff was induced to sell by the fraudulent representations of the buyer as to his financial condition had been levied on under judgments confessed by the buyer, plaintiff broug-ht replevin against the buyer and the sheriff who made the levy. Judgment was rendered ag-ainst plaintiff, awarding to the sheriff the amount of the executions which he had levied. The judgment was not rendered on the merits, but solely on the ground that, at the time of the levy, plaintiff had not rescinded the sale, and therefore could not maintain replevin. Held, that plaintiff was not precluded from afterwards suing- to cancel the judgment rendered in favor of the sheriff, and to procure an adjudication that the property replevied belonged to the plaintiff, and that his cause of action be set off against the judgment in favor of the sheriff, and that the. sheriff be enjoined from further prosecution of the judgment.
    3. Set-off—Enforcement by action in equity.
    In replevin_ by the seller of goods against the fraudulent buyer and the sheriff who had levied thereon under judgments against the buyer, judgment was rendered in favor of ihe sheriff for the amount of the executions levied by him. The judgment was. not rendered on the merits, but solely on the ground that at the time of the levy plaintiff had not rescinded the sale, and therefore could not maintain replevin. Held, that an action by plaintiff against the sheriff and the buyer, to procure an adjudication that the property belonged to plaintiff, that the sheriff be adjudged liable for conversion to the amount of the judgment rendered in his favor, and the plaintiff’s couse of action for conversion be set off against the judgment in favor of the sheriff, and that he he enjoined from further prosecution of the judgment, was maintainable on the ground of set-off.

      Appeal from special term, Albany county.
    Action by Edward It. Ladew and Joseph Ladew against John "W. Hart, late sheriff of Albany county, Charles D. Rathbun, and others, to recover a quantity of leather, and for other relief. From an interlocutory judgment overruling the demurrer to the complaint on the ground that it did not state facts sufficient to •constitute a cause of action, defendants appeal.
    Isaac Lawson, for app’lts; Hale, Bulkeley & Tennant, for resp’ts.
   MERWIN, J.

The main "facte, as alleged in the complaint, are as follows: On or about the 2d day of June, 1887, Fayer-weather and Ladew, relying upon certain false and fraudulent representations made by the defendant Rathbun, sold and delivered to him 1,000 sides of leather, of the value and at the price of $5,535.20. Rathbone was then insolvent, and intended to get the goods without paying anything therefor, and concealed his insolvency and impending failure. On the 17th August, 1887, several judgments were entered in Albany county against Rathbone upon offers of judgmentmade by him, and on the same day executions thereon were issued to the defendant Hart, who was then sheriff of the county, and he made a levy upon 905 sides of the said leather. On the 24th August, 1887, Fayerweather and Ladew, having learned of the fraud of Rathbone in the purchase of the goods, demanded from Hart the possession and delivery of the leather, but Hart refused to comply with the demand. Thereupon, on the same day, Fayerweather and Ladew commenced in the supreme court an action of replevin against Hart and Rathbone, and replevied and took into their possession the leather. Issue was joined in the action, and on the 6th February, 1891, the plaintiffs herein, having succeeded to the rights of Fayerweather and Ladew, were substituted therein as plaintiffs. The action was brought to trial on 8th October, 1894. Proof was given establishing the fraud, but the court directed a verdict awarding to the defendant Hart the property, and fixing the value of the then special interest of Hart as sheriff at the sum of $3,307.74, and for no cause of action against Rathbone. Thereafter, on the 10th July, 1895, judgment was accordingly entered, in and by which it was adjudged that there be awarded to Hart, sheriff, etc., the said sum of $3,307.74, and, if that is not collected, then the delivery of the property; and that Hart also recover his costs,—the amount being fixed,—and also the interest on the said $3,307.74 from the date of the rendition of the verdict, and that the complaint be dismissed as to the defendant Rathbone. The amount of $3,307.74 was made up of sums uncollected on the executions held by Hart, and he claimed no personal interest in the property or as sheriff, except the amount remaining due on the executions, which was conceded to be the above-named sum. The judgment in the replevin action was no-t rendered upon the merits, and did not involve the merits, but was made upon the authority of Wise v. Grant, 140 N. Y. 593; 56 St. Rep. 496, solely on the ground that at the time Hart made the levy the plaintiffs had not rescinded the sale, and so the plaintiffs could not maintain replevin. The value of the 905 sides of leather levied on by Hart was $4,106.57. The defendant Rathbone is insolvent, and Hart is of doubtful responsibility. Hart threatens to collect the judgment, and, if he does so, will apply the'proceeds in payment of the balances due upon the said executions. It is also alleged generally that the plaintiffs are the owners of the property, and have no adequate remedy at law. The costs of the replevin action have been paid. The plaintiffs are willing and offer to release and discharge Hart from all liability to plaintiffs for conversion of the property, provided the judgment of Hart against the plaintiffs be canceled or its enforcement perpetually enjoined. The owners of the judgment upon which the executions were issued are made parties defendant. Relief is demanded that the property be adjudged to belong to the plaintiffs; that the defendant Hart be adjudged liable for a conversion to the extent of $3,307.74 and interest; that the plaintiffs be allowed to retain the possession of the property, and their cause of action for-conversion be set off against the judgment in favor of Hart, and that Hart be enjoined from the further prosecution of the judgment. General equitable relief is aleo asked.

In the replevin action there was no adjudication that the plaintiffs did not own the property or its proceeds. It was only decided that the plaintiffs had no right to bring an action in that form, and, if so, no issue as to the property was triable. The judgwént was, in effect, oa nonsuit, although in form a verdict was directed for the defendants. Converse v. Sickles, 146 N. Y. 200, 207; 66 St. Rep. 586. The case being dismissed upon tire ground it was, the question of plaintiffs’ ownership was not tried, nor was the question whether the sheriff had any valid lien. The amount for which he claimed to hold the property was fied, but ther was no determination that, as against the plaintiffs, his claim was a valid one. The .plaintiffs claimed that the sheriff had no interest or lien whatever, good as against them, and the court, under the rule of the Wise Case, said to the plaintiffs that their rights could not be -determined in that action. I fail, therefore, to see how the plaintiffs had any opportunity in the replevin action to contest the sheriff’s claim. The proposition of the learned counsel for the defendants that the plaintiffs did have such a right, and therefore cannot maintain this action, is not, I tbi-nk. tenable.

It is further claimed by the defendants that this action oanot be maintained on the ground of of set-off. The case has peculiar features that place it on a different basis from any ordinary case of set-off; The property, as we must assume, belongs in fact to the plaintiffs. If it is delivered over to the sheriff under the judgment in the replevin case, it still belongs to the plaintiffs, and the sheriff, if he does not hand it back to the defendants, is liable in conversion for the value. In the Wise Case the liability for a conversion was conceded, although replevin was not maintainable. In conversion the measure of damages would be the value of the property. The owner of the property wrongfully converted may waive the tort, and sue for and recover its value as upon an implied contract of sale, although the property has not been disposed of by the wrongdoer. Terry v. Munger, 121 N. Y. 161; 30 St. Rep. 746. So that upon that basis the plaintiffs might have an action as upon contract for the value of the goods. If, instead of delivering back the property itself, the amount fixed in the judgment as the amount of the special interest of the sheriff was paid to the sheriff, then, according to the case of Converse v. Sickles, supra, the plaintiffs could treat that amount in the sheriff’s hands as the proceeds of their goods, and compel the sheriff to pay the same over to them. The sheriff could be charged as -trustee for the plaintiffs, the owners. But the defendants say the plaintiffs should deliver the property, or pay the money to the sheriff, and then assert any legal remedy they may have. In other words, the plaintiffs should part with their property, and take their chances on recovering it back. In Chauncey v. Lane, 3 How. Prac. 248, it was held by Judge Harris that, though goods have been wrongfully taken on a replevin, yet if the defendant, in case of success, would be bound to account to the plaintiff for the same, proceedings in the replevin suit will be enjoined, it being said that provision might be made for the costs, and for any damages the defendant may have sustained by the dispossession. In Parker v. Britt, 4 Heisk. 243, it was held that a judgment would not be enforced against a party who was in fact entitled to the proceeds if collected. The jurisdiction of a court of equity to grant injunctions to stay proceedings at law is a broad one. Belief of that kind is granted on the ground that from certain equitable circumstances, of which the court of equity has cognizance, it is against conscience that the party inhibited should proceed in the cause or enforce the judgment. 2 Story, Eq. Jur. §§ 874, 877. So, as to set-off, it is said that “courts of equity will extend the doctrine of set-off, and claims in the nature of set-off, beyond the law in all cases where peculiar equities intervene between the parties.” Id. § 1437b. A case for equitable relief is, I think, presented by the complaint. The subject-matter of the judgment belongs to the plaintiffs, and, if they pay, the money is held in trust for them, according to the Converse Case, and, if the property is delivered, the sheriff is liable for its value. Such being the situation, there would seem to be no good reason for allowing the judgment to be enforced, any more than there would be in case of a judgment in fact paid, and which the judgment creditor was seeking to enforce. 2 Story, Eq. Jur. § 876.

It is suggested on the part of the defendants that the plaintiffs are attempting to avoid the statute of limitations. A defense based on that statute is not raised by demurrer. Sands v. St. John, 36 Barb. 628. If the plaintiffs have been guilty of laches, that subject may arise in a future stage of the ease. Nor is there any question here as to the propriety of trying in this form of action the question of fraud. In the Converse Case it seems to have been assumed that it might be. The foregoing considerations lead to an affirmance of the judgment.

Interlocutory judgment affirmed, with costs, with leave to the defendants to answer in twenty days upon payment of the costs of the appeal and of the demurrer.

All concur.