text:
    Richard H. Wright, App’lt, v. James B. Duke et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed December 18, 1895.)

    1. Deceit—Partners.
    In tlieir dealings as between each other, partners must act with the utmost candor and good faith.
    3. Same.
    Where cigarette manufacturers purchase the interest of their partner, concealing from him the existence of a contract by which the patentee of a cigarette-making machine had granted the firm the use of his machines at a much lower rate than was given other manufacturers, thereby greatly increasing the profits of the firm, and knowledge of such contract cannot be acquired by an inspection of the firm’s books, the retiring partner can maintain an action for deceit.
    Appeal from a judgment dismissing complaint on the merits, entered after a trial by the court, without a jury.
    Edward B. Hill, for app’lt ; Joseph H. Choate, for resp’ts.
   O’BRIEN, J.

—This is an action to recover damages for deceit alleged to have been practiced by the defendants on the plaintiff at the time of and in connection with a sale made by him to them, bis copartners, of his interest in the assets and business of the firm of W. Duke, Sons & Co., manufacturers of tobacco and cigarettes. The sale was made on September 16, 1885, for the “lump sum” of $39,750, the plaintiff giving a deed of conveyance of such interest, as well as a release under seal of all claims and demands against his copartners. The office and principal factory of the firm was at Durham, N. 0. James B. Duke had general oversight of the operations of the firm. George Watts had charge of the office at Durham, and acted as cashier, secretary and treasurer in a general way, being assisted by B. N. Dulce. B. L. Duke took no active part in the business!. Plaintiffs duties were traveling, introducing the firm’s goods'and establishing agencies, in the course of1 which he traveled at different times over nearly all the world. He bad nothing to do with the office of the company and very little with the manufacturing. The articles of copartnership between plaintiff and defendants had expired by limitation on January 1,1884, and negotiations for a fuller term with increased capital were in progress from that time to the time of the sale, the affairs of the partuership meanwhile drifting along as if the firm was still in existence. During this time, from February to April, 1885, negotiations were pending between James B. Duke, on‘behalf of the firm, and a Mr. Strouse, representing the Bonsack Machine Company, for a more favorable license to the firm than the one then existing respecting' the use of machines for making cigarettes, the patents for which were owned by the Bonsack Company. It js undisputed that plaintiff was aware of and consulted concerning these negotiations, and was informed by James B. Duke of the proposition made by the Bonsack Company to reduce the royalty to twenty-four cents a thousand on cigarettes made upon the machines, and that plaintiff objected, and said he thought better terms ought to be obtained. The conditions of the contract, being determined upon in New York between James B. Duke and Mr. Strouse were communicated by the former in a general way by letter to Benjamin N. Duke at Durham, who went to Lynchburg, Va., on June 11th, for the purpose of meeting Mr. Strouse, and executing the contract. Accordingly, on that date, a writing was drawn up by Mr. Strouse purporting to contain all the provisions of the agreement arrived at between him and James B. Duke, and signed by Mr. Strouse and B. N. Duke on behalf of their respective companies. It was then taken to the office of the firm at Durham, and put in the safe. The rate therein stated was twenty-four cents a thousand. After the terms of this agreement had been arrived at between J. B. Duke and Mr. Strouse, exceedingly strained relations arose between plaintiff and his copartners, which were accentuated by an attempt to adjust a personal debt owing by plaintiff to W. Duke, the father of the defendants Duke. The outcome was a suit by plaintiff to dissolve the firm, and for a receiver, and a notice sent by the other members of the firm to the plaintiff and to all their customers on July 2,1885, that the firm was dissolved. Plaintiff’s interest was transferred on September 16th, after which he" had no connection with the firm. During none of the negotiations leading up to the purchase by defendants of plaintiff’s interest in the firm was this contract with the Bonsack Company mentioned or referred to between them, and it is upon the alleged concealment of its existence that he bases his right to recover.

The plaintiff admitted that in or about February, 1885, J. B. Duke told him that he was trying hard to get from Strouse a more favorable agreement than any other firm for the use of the Bonsack machines, and that the latter had made a proposition to reduce the royalty to twenty-four cents a thousand. But it is evident from the proofs that plaintiff was unaware of the execution of a contract such as was entered into. He himself so testifies. B. L. Duke says he did not know of its existence. B. H. Duke says he told no one of its execution, except, perhaps, his partner, Watts. Watts testified that he certainly believed that plaintiff knew nothing about it, because the written article had been in his possession since its execution, and that plaintiff never had asked for it, nor had it been shown to any one; and J. B. Duke does not say that he told plaintiff of its execution, but simply that some months prior to the contract being signed he informed plaintiff of the terms being agreed upon for which the contract afterwards provided. But, even had the plaintiff, prior to the transfer of his interest in firm, read or been told the contents of the written memorandum of agreement, he would not thereby have become aware of the vital feature of the contract between his firm and the Bonsack Company, which provided that the firm should always have twenty-five per cent, lower rate than anybody else; because, though it had been agreed upon between J. B. Duke and Mr.. Strouse before the contract was signed, it was not reduced to-writing until January, 1886, 'when this hitherto unexpressed condition was written in at the instance of J. B. Duke.

The learned judge below has found as a fact “ that the plaintiff was informed by James B. Duke, at the time of negotiating the said oral contract, as to what terms Mr. Strouse, the president of the Bonsack Machine Company, was willing to have provided in said contract.” Upon the question whether or not this finding is correct, the whole case turns. If the plaintiff, though ignorant of the execution of the contract, was informed at the time of its. negotiation, as claimed by J. B. Duke, of all the terms and conditions that were to be embraced therein, he could not hope to establish his cause of action, because, with the knowledge that such, an important arrangement was in progress, it would be as much his duty as that of the defendants, while discussing the subject of" the sale to them of his interest in the firm, to call attention to it as being of value in determining the amount he should receive; and plaintiff’s claim of a fraudulent and intentional concealment, would be unavailing, and the judgment should be affirmed. If? to our minds, an examination of the record shows that such finding was unwarranted, compelling the inference that, while plaintiff was informed of some of the terms of the agreement, he was kept in ignorance of its most important condition, and that this was done designedly, then the conclusion follows that such concealment was a fraud upon the plaintiff, requiring that the judgment dismissing the complaint upon the merits should be reversed. Upon this point we have on one side the unsupported statement of J. B. Duke that he told plaintiff at the time of his having agreed with Mr. Strouse for the twenty-five per cent, preference to his firm. On the other side we have, besides the denial of' the plaintiff, the whole course of circumstances and events prior and subsequent to the sale, as tending to discredit the accuracy of Mr. Duke’s recollection in this respect. The plaintiff had r&garded the use of the machines favorably, and was anxious to have them adopted by the firm. The reduced royalty proposed ■or agreed to be paid for their use, however, he did not regard as advantageous. If that had been all there was of the contract, and he had known it, during the negotations to buy out his interest in the firm, it undoubtedly would have had no influence upon him in fixing the value of his share at any higher figure then he was induced to accept. He stated at the time the rate was named td him that he thought better terms could be secured, expressing himself in vigorous language. That this statement was well founded, as well as the fact that, had he known of the provision of the contract giving his firm a preference of twenty-five per cent, ■over other users of the machines, lie would have regarded it as of great value, is shown by the events after the severing of his connection with the firm. In a short time it was seen that plaintiff’s ■advocacy of the Bonsack machines was justified. Their use revolutionized the business of making cigarettes, and the profits of thd ■defendants sprang up enormously, and increased from year to' year. Soon after the sale, and on September 30, 1885, plaintiff became general manager of the Lone Jack Cigarette Company. As a condition of his joining such company he insisted upon a contract with the Bonsack Machine Company, and he obtained one. at the rate of fifteen cents a thousand. After learning of the Lone Jack contract, defendants claimed a rate of 11-J- cents and a balance due them for excessive royalties paid of upwards of $239,000, which they sought to enforce by litigation. The result, therefore, of plaintiff’s efforts to get a low rate for his new ccompany, was to obtain still more fávorable terms for his competitors, his late partners; who, by reason of their contract, were beyond competition. These circumstances decidedly weaken the force of J. B. Duke’s testimony that he told plaintiff all the terms of his oral agreement with Mr. Strouse, for it is difficult to believe that plaintiff would have undertaken so hopeleás an enterprise as the building up of ■competition in the manufacture of machine-made cigarettes as against the defendants had he known they possessed such advantages. That the defendants were so oblivious of the value of the contract as they try to have it appear is also incredible. On September 5, 1885, the defendants made a proposition to plaintiff ■either to purchase his one-fifth interest in the firm for $36,000, they, to take the assets as inventoried July 2d, as if they had pur■chased the same on that day, or to sell their four-fifths interest at , $36,000 a share, the plaintiff to take the assets as shown by the "books and inventory of that date. The latter proposition did not include the good will of the business, nor the use of the firm name. Nor does it appear that they intended it to include the contract with the Bonsack Company, for on September 7th they wrote by Mr. Watts to Mr. Strouse, informing him that they were having trouble with the plaintiff, and that there was a possibility of the business being sold by order of the court, and of the plaintiff through a syndicate becoming the purchaser. The remainder of the letter is as follows:

“Should such an event take place, we would at once begin manufacturing cigarettes under the name of W. Duke, Sons & Go. with as much capital as we now have, and all the experience; so would give the new buyers a lively time, as we feel confident that within twelve .months any new cigarette business we might start would be as large as this one now is. We desire to know that, should we conclude not to purchase the present brands and business, but start as a new one, will you give us the use of the machines now in use here ? If we we get these machines as soon as we should want them, and under same arrangements as now (of which Mr. Wright knows nothing), we would endeavor not to employ any hands to roll cigtts. Advise use at once, as we are making all necessary arrangements looking to the possibility of such an event.”

This certainly looks as though the defendants fully appreciated the value of the machines in the manufacture of cigarettes, and that the experimental stage in their use was past, else why should they say, “We would endeavor not to employ any hands to roll cigtts.;” i. e. rely wholly on the machines for production? And with such faith in and reliance upon the machines, if they could have them under the same arrangements as then existed, whether known or unknown to plaintiff, they might well feel justified in saying they “would give the new buyers a lively time, as we feel confident that within twelve months any new cigarette business we might start would be as large as this one now is.” In addition we have the evidence of J. B. Duke on the trial of an action "brought by the Bonsack Machine Company against W. Duke, Sons & Go. after the dissolution of the firm, in which he stated that he had not told Mr. Wright about the contract. And it appears from the correspondence of the defendants with that company that, in order to avoid knowledge of the terms of the contract by persons who might open the mail of W. Duke, Sons & Co., the royalties were returned on the basis of the original contract, and rebate checks sent bv the Bonsack Company to correspond with the reduced rate of 24 cents per 1,000. Upon the same trial the defendant B. N. Duke testified that he never told plaintiff, nor ■anybody but defendant Watts, about the contract. We have, besides, the inventory, which was shown plaintiff during the final closing of the transaction, in which the cost of the machine-made cigarettes was put down at figures which were not correct; such cost being put down by the appraisers who made the inventory from information furnished by the defendant Watts, who gave no explanation as to why correct prices were not put down. It is true that the defendants offered and allowed the plaintiff every opportunity .to examine the books; but in view of the manner in which the rebates were made, not even an expert looking at the books could have told.the firm paid less than the standard rates of royalties. And an examination of this inventory and the books which plaintiff made, and which purported to show a payment of standard royalties of 30 and 33 cents a thousand, may account for the failure of plaintiff to inquire further, believing as he might have done, that the books and inventory correctly set forth the true relations of his firm with the Bonsack Company. Apart from this, however, it is evident that no examination that he could have made, not even an inspection of the written agreement, which was carefully put a way in the safe by defendant Watts, and never shown to the plaintiff, would have given him a knowledge of all the terms of the agreement, particularly of the crucial one which related to the 25 per cent, preference clause, which, as stated, was not put in writing until the January following the retirement of plaintiff from the firm. Another reason why the plaintiff could have assumed that the contract was not concluded was that, when J. B. Duke informed him of the terms that Strouse was willing to-accept, plaintiff told him to hold off, and he would get more favorable terms. Unless therefore, there is evidence to show that subsequent to that time plaintiff was informed that a contract had actually been entered into between the parties, and he was appraised of its terms, he might very well have thought that they were still • engaged in negotiating a contract; and this view is strengthened by the fact that, immediately upon retiring from the firm, the plaintiff sought to obtain for the Lone Jack Company, with which he then became connected, from the Bonsack Company, more favorable terms than those fixed by the original agreement, which appeared by the inventory and books shown to plaintiff as being the royalties that the firm of W. Duke, Sons & Co. was then paying. Regard being had, therefore, to the studied efforts to conceal from the plaintiff all knowledge of the real agreement between the firm and the Bonsack Company, we must conclude, notwithstanding the testimony of Mr. J. B. Duke on this trial to the contrary, that, at the time when plaintiff sold his interest in the firm he was ignorant of that feature of the contract which favored Duke, Sons & Co. over all other firms or competitors. Were this sale of plaintiff’s interest a negotiation between strangers, it may be that no obligation would rest upon the defendants to state fully and in good faith all the terms of the agreement; but this rule cannot prevail as between partners. In Mitchell v. Reed, 61 N. Y. 126, Earl, C. J., says:

“The relation of partners to each other is one of trust and confidence. Bach is the general agent of the firm, and is bound to act in entire good faith to the other. The functions, rights, and duties of the partners in a great measure comprehend those both of trustees and agents, and the general rules of law applicable to-such characters are applicable to them.”

In T. Pars. Partn. 225, it is said:

“ From the requirement of perfect good faith it follows that no-partner must deceive his copartners for his benefit and their injury-by false representations, or even by concealment. * * * So, if be proposes to buy of them the whole or any part of their share of the business, and by any false statement or intimation on his part, or any concealment or prevarication, influences them to enter into an arrangement to effect his wishes, it will not be obligatory on them.” ¡'

And in 1 Bigelow, Fraud (Fd. 1890) 311, 312, it is said:

“ Where a partner, intending to purchase the interest of his copartner, has had the special management of the business or the keeping of the accounts, * " * the intending purchaser must make a full disclosure of the extent and situation of the business; otherwise the purchase will be liable to be avoided by the other partner.”

And in the same work (pages 312, 313) it is said:

“ It is certainly the duty of partners towards each other to refrain from all concealment in the transaction of the partnership business. If a partner be guilty of any such concealment, and derive a benefit therefrom, he will be treated in equity as a trustee for the firm, and be compelled to account to his copartners. * & The burden is upon him to justify the transaction.”

There would be no advantage in multiplying authorities upon this subject, all tending to support the proposition that in their dealings as between each other partners must act with the utmost •candor and good faith. This duty or obligation was not lessened by the fact that during the negotiations the relations between the partners became strained, for until the relation was terminated the obligation remained. Where, therefore, the knowledge that the firm possessed a favorable contract was exclusively in the possession of the defendants, whicn did not appear in any writing or book kept by the firm, and could not, in all its terms, be ascertained from the written agreement, it is useless to argue “ that plaintiff was given a full opportunity to investigate the firm’s affairs,” and, against his right to complain, to insist that “by his own admissions it appears that he was invited to be present at the taking of the inventory ; that he did not come; that he knew there were many contracts of the firm, none of which were included in the inventory ” ; because, had he done what the defendants claim he should have done with respect to attending and examining, he could not have obtained, except from an admission of such of the defendants as knew, any knowledge of the existence of an agreement which gave the firm the preference they then had over all competitors, which, if the result of the use of the machines could have been foreseen, was a most valuable asset. This, we think, is an answer to the suggestion made by the learned trial judge that the plaintiff is not entitled to succeed because he might have ascertained the existence of the Bonsaok contract by inquiry. For, in view of the attitude and conduct of the defendants, there is a grave doubt whether any inquiry by plaintiff would have elicited the information, and there is no proof that we have been able to find that the plaintiff had reason to suppose that any such contract including the preference clause existed, everything being done to induce him to believe just the contrary,

The crucial point is that the most valuable part of the contract was verbal, and it was not known by or communicated to plaintiff, and seems to have been purposely concealed. The concealment of so much as was in writing is not, therefore, very material, •except as bearing on the question as to whether or not knowledge •of the existence of the contract was designedly withheld from plaintiff. It is begging the real question, then, to argue that plaintiff could have ascertained by inquiry the existence of the written portion, and upon demand could have seen it, or could have ascertained its conditions from the firm’s books. And in connection with the testimony showing that plaintiff’s expert was given full opportunity to examine the books, we must remember the testimony of Watts that “>no expert looking at our books could have told that we paid a royalty to the Bonsack Company of less than thirty and thirty-three cents, respectively.” It is contended, however, that, assuming that plaintiff sold his interest in the business in ignorance of the existence of this license, as he claims, he suffered no damage and can recover none. This proposition is claimed to be supported by the well-settled rule that the gravamen of the action for deceit is that plaintiff has been deceived to his hurt, and not that the defendant has gained an advantage. It may be that the measure of damages as to the value of the contract is its value on the 18th day of September, -1885 ; and it is claimed that the license was /then of no value to the plaintiff, and could not have been used in any way to his advantage whatsoever, for the reasons, as claimed, that the partnership had expired by limitation ; that the license could not have been sold or transferred or realized upon as an asset of the firm; that it could not have been used separably by any of the individuals theretoEore composing the firm ; and finally, for the reason that, if assignable, it was, as a matter of fact, a contract of no value at that time. This last reason we shall consider hereafter. With regard to the others assigned, they are based on what actually did occuj,’, and not what might have been the result had plaintiff known of the true state of facts. After the notice of July 2d, and when plaintiff had filed his bill for a dissolution, it could not be known what the ultimate mode of dissolution would be. It might be that the defendants would, as they actually did, buy out the plaintiff. It might be that the plaintiff would buy out the defendants. It might be that the assets of the firm would be sold under judicial decree in plaintiff’s suit. Whether the purchaser would secure the benefits of the contract, we do not regard as important. There is apparent authority .for the proposition, both in the federal and state courts,- that the validity of such a contract is not affected by change of the firm. Belding v. Turner, 8 Blatchf. 321, Fed. Cas. No. 1,243; Sizer v. Ray, 87 N. Y. 220. But, apart from this, it was, as a matter of fact, treated as assignable by both the parties, and its benefits were enjoyed, not only by the firm of W. Duke, Sons & Go. after plaintiff’s retirement, but also by the corporation of that name after the firm had been incorporated. We think, therefore, the appellant correctly argues that it is a matter of little consequence whether, as an abstract question of law, the defendants might or might not have been deprived of the contract if in fact they have enjoyed the benefits of it. And it is evident from Watts’ letter, already referred to, that the defendants believed that the rights of the Bonsack contract would pass to the purchaser of their establishment, and they were taking the precaution of opening negotiations for a new contract with that company.

This brings us to a consideration of the contention that, though the contract was assignable, the plaintiff was not injured, because, as a matter of fact,- the contract at the date of the sale had no value. If this question is to be determined by the evidence, there is sufficient to show, not only that the plaintiff would have regarded such a contract as of some value, but the efforts of the defendants in preventing his knowledge of its existence, and taking measures to secure an equally favorable one in the event of his having purchased their interest, have a tendency to show that they also regarded it as of some value.. Whether the value was more or less is beside the question presented for our consideration, and would be wandering into the regions of speculation. Its" only bearing could be upon the question of damages, and would go to the amount thereof. Of course, if it clearly appeared that it was of no value, this court would not put the parties to the expense and labor of a new trial merely for the purpose of determining a technical right. But, as we have said, there being evidence to show that even at the date of the sale it had some value, it is unnecessary for us to determine how much, because that concerns the amount of damages, and not the right to damages, which latter is the question we have to decide.

Our conclusions upon this record therefore are that, if the finding of fact made by the learned judge below to the effect that the plaintiff was informed as to what terms Mr. Strouse was willing to have provided in said contract is intended as covering plaintiff’s knowledge of the existence of the preference clause of twenty-five per cent., then we think that such finding is unsupported by evidence, which is preponderating in favor of a finding that the plaintiff was ignorant of any such clause; that its existence was deliberately concealed from him to his injury; and that, in view of the relation of the ■ parties, the concealment of such fact was a fraud on the plaintiff for which he is entitled to damages.

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

All concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David Money, App’lt, v. John Fisher, Jr., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1 Sale—Warranty.
    Any assertion made upon a sale by the vendor concerning the article sold, if relied upon by the purchaser, and understood by "the parties as an absolute assertion, will amount to a warranty.
    8. Trial—Disregarding evidence.
    Whore the evidence bearing upon a question is undisputed, not contradictory, unimpeached and not improbable, it is the duty of the jury to give credit to such testimony, and it cannot arbitrarily or capriciously disregard it.

      Appeal from a judgment of the county court, reversing the judgment of the justice in favor of plaintiff.
    S. M. Stevens, for app’lt; E. O. Worden, for resp’t.
   PER CURIAM.

—This action was to recover the purchase price of a bull sold by the plaintiff to the defendant. The answer set ■up both an. implied and an express warranty, its breach, and, that the animal was valueless. As a result of the trial in the justice’s court the plaintiff recovered a judgment for the agreedL price of the bull, with costs. On appeal, the county court reversed the judgment. As no opinion was written, we are unable to determine the particular ground upon which it was reversed. The appellant, however, now contends that the court erred in reversing this judgment because (1) there was no implied warranty; and (2) there was no express warranty. If this bull was sold as an article of food for domestic use, the law would imply a warranty that it was fit for that purpose. Whether the sale in this case falls within that principle is not wholly free from doubt, and with our views of the question of express warranty we deem it unnecessary to decide that question. We think the undisputed' evidence in the case shows conclusively that the plaintiff expressly warranted the bull to be fat and all right. John Fisher, Sr., who was the defendant’s agent, and acted for him, testified:

“ I bought the bull. Plaintiff came in one day and asked me if I wanted to buy a bull. I told him, ‘Yes,’ and made him an offer. I said I would pay two cents live weight, and four cents dressed, if the meat was fat and all right. He was satisfied, hnd brought him in alive.”

The plaintiff, who was sworn as a witness in his own behalf, on his cross-examination, testified:

“ I asked Mr. Beck what the price was. Fisher asked me if the bull was fat and all right. I said ‘ Yes.’ ”

From this evidence but one conclusion can be fairly reached, and that is that at the time of the sale the plaintiff positively asserted that the bull was fat and all right. The evidence of the defendant’s agent shows that the offer made by him was based soley upon the fact that the bull was in the condition represented. No particular phraseology was necessary to constitute a warranty.! Any assertion made by the plaintiff concerning this bull, if relied upon by the defendant, and understood by the parties as an absolute assertion, would amount to a warranty. That such was the character of the statements made by the plaintiff, and that they were relied upon by the defendant, is obvious, as the evidence shows that the defendant knew nothing of the animal purchased, and that the only offer made was upon the express provision that the animal was fat and all right. The- evidence bearing upon this question, both that given by the plaintiff and that introduced by the defendant, being undisputed, not contradictory, unimpeached, and not improbable, it was the duty of the jury to give credit to such testimony, and it could not arbitrarily or capriciously disregard it. Hence, we think, the county court was justified in reversing the judgment rendered in the justice’s court.

Judgment of the county court affirmed, with costs.


author: HARDIN, P. J.

text:
    Town of Windsor, Resp’t, v. The President, Managers and Company of the Delaware and Hudson Canal Company, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    a. Appeal—First instance.
    Where, during the progress oí a trial in an action hy highway commissioners to compel a railroad company to remove obstructions at an intersection of its road with a highway, the defendant does not take specific objections to the complaint on the ground that it did not allege an imperative duty on the part of the company to restore the road to its former condition, or so as not to unnecessarily impair its usefulness, such objection cannot be taken for the first time on appeal.
    S. Railroad—Intersection, with highway.
    For a failure of a company to restore a highway to its former state, or to such a state as to not unnessarily impair its usefulness, the commissioner of highways is authorized, hy chapter 255 of 1855 to maintain an action to enforce the performance, or for damages sustained by the town for nonperformance,
    3. Same.
    In order to maintain such action, it is not necessary that the commissioners should declare an encroachment and institute proceedings given hy the statute for the removal of an encroachment.
    4. Same—Statute of limitations.
    The duty, imposed upon a company to restore a highway to its former state or to such state as not to unnecessarily impair its usefulness, is a continuous one, and the action is not barred by any statute of limitations.
    Appeal from a judgment entered in fayor of plaintiff.
    From the referee’s report it appears that the plaintiff is a town situate in the county of Broome, and that Hoadley, as sole commissioner of highways of that town, on the 8th day of June, 1892, commenced this action ; that the defendant is a corporation incorporated under the laws of the state, operating a railroad from Nineveh Junction, in the state of New York, to Jefferson Junction in the state of Pennsylvania, “ which railroad passes through the town of Windsor aforesaid in a northerly and southerly direction, having been constructed in or about the year 1872, and- ever since used for railroad purposes; that for many years there has existed in said town of Windsor a public highway running from Ouaquaga, in the town of Colesville, in said county, through the town of Windsor, aforesaid, to and past the hamlet known as ‘East Windsor,’ in said town of Windsor; that said road has been located and used for move than twenty years as a public highway prior to the construction of said railroad.” It is also found that the defendant constructed its railroad tracks and “ crossed said highway at a point west of the East Windsor cemetery, by an overcrossing. Said crossing, which was built in or about the years 1871 and 1872, consists ol two stone abutments about sixteen feet long, where they are parallel and a wing to each abutment on either side, the wings on the east side being eleven feet in length, and the wings on the west side being sixteen feet in length, the main walls of said abutments running a distance of sixteen feet parallel to each other, and thirteen feet two inches apart, with embankments running up to said abutments and wings upon either side, upon which abutment stringers and the track of said railroad was laid about twelve feet from the surface of said highway below.” It is also found “ that the railroad constructed as above described materially and unnecessarily impairs the usefulness of said highway ; that no necessity exists requiring a passageway as narrow as that now maintained by the defendant, but the requirements and safety of the traveling public demand an enlargement of said passageway; that defendant did not upon constructing its railroad across said highway, nor has it since, restored said highway to its former state, or to such a state as not to unnecessarily impair its usefulness.” It is found that a passageway “under said railroad of twenty-five feet would be sufficient to accommodate the travel on said highway, and an enlargement of said passageway to that which would render it sufficient to restore said highway to such a state as not to unnecessarily impair its usefulness.’’ It was found as a conclusion of law that the railroad had a right to construct and maintain its railroad across said highway; “ but. it is the duty of said company to restore said highway to its former state, or to such a state, as not to unnecessarily impair the use of said highway; that, in constructing said railroad and maintaining the same, the defendant did not restore said highway to its former state, or to such a' state as to not unnecessarily impair its usefulness.” It was found that neither the town of Windsor, “nor the commissioner of highways of that town, has so far accepted or acquiesced in the action of the defendant as not to-be entitled to ’maintain this action.” Judgment was ordered and entered in accordance with the findings.
    Lewis E. Carr, for app’lt; H. S. Williams, for resp’t.
   HARDIN, P. J.

—Criticism is made upon the plaintiff’s complaint. Upon looking into it, we find that it contains all the essential facts found by the referee in his report, as well as some other allegations which could be construed, perhaps, to indicate that the pleader supposed the'plaintiff had some right of action by, reason of the “construction and encroachments” placed upon the highway, rendering it dangerous, by the defendant. In the prayer, however, for judgment, the plaintiff asks “ that the said defendant remove all the said obstructions, abutments, embankments, stone, iron, and material from the said highway, and within its bounds, and they be declared to be and impediment and obstruction to public travel, and the defendant, be compelled to remove each and all of said obstructions, and perpetually, as well as pending this action, it be enjoined from keeping or maintaining, using or repairing, the said abutments or embankments, abutments, or obstructions in the said highway, or any obstruction within its bounds.” During the progress of the trial, we do not find that the defendant took specific objections to the complaint on the ground that it did not allege an imperative duty on the part of the defendant to restore the road to its former condition, or so as not to unnecessarily impair its usefulness. ■ We think the criticism made to the complaint at this stage of the action must fail. Wademan v. Railroad Co., 51 N. Y. 572.

In chapter 568 of the Laws of 1890 it is provided in section 100 that:

“All lands which shall have been used by the public as a high» way for the period of twenty years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway; and the commissioners of highways shall order the overseers of highways to open all such highways to the width of at least two rods.”

That section fell under construction in Speir v. Town of Utrecht, 121 N. Y. 420 ; 31 St. Rep. 414, and in People ex rel. Cunningham v. Osborn, 65 St. Rep. 556.

We think the proof in the case before us is sufficient to indicate that the highway had been used by the public as a highway, and ■that, coupled with the proof of the survey of 1814 and the order accompanying the same, laying it out as a highway, the referee, upon all the evidence, was warranted in assuming that the site where the defendant’s embankments were placed was a part of the public highway. The evidence produced before the referee differs very much from the evidence disclosed in the cases to which reference has already been made.

In Barse v. Railroad Co., 13 St. Rep. 215, this court had occasion to examine the statute which authorized commissioners of highways “ to bring any action against any railroad' corporation that may be necessary or proper to sustain the rights of the public in and to any highway in such town, and to enforce the performance of any duty enjoined upon any railroad corporation in relation to any highway in the town of which they are commissioners.” In that case it appeared that the defendant had “failed to restore said highways to their former state of usefulness,” and we sustained uie action. In the course o? one of the opinions delivered in that case, the distinction between an action against a private individual and one against a corporation was pointed out, and the case of Rozell v. Andrews, 103 N. Y. 150; 3 St. Rep. 53, was stated not to apply to an action against a corporation. Since that decision was made, the legislature, in the highway act (section 15, c. 568, Laws 1890), has provided that commissioners of highways may bring an action in the name of the town “against any person or corporation, to sustain the right of the public in and to any highway in the town, and to enforce the performance of any duty enjoined upon any person or corporation in relation thereto,” etc.

In Hatch v. Syracuse, etc., Railroad Co., 24 St. Rep. 36, it was held that the duty imposed upon the corporation to restore a highway to its former state, or to such state as not necessarily to have impaired its usefulness, is a continuous one,, and that the action was not barred by any statute of limitations.

In the course of the opinion delivered in Post v. West Shore Railroad Co., 123 N. Y. 587 ; 34 St. Rep. 484, it is said that, while the highway commissioner cannot dictate how the work of restoration should be accomplished, the duty imposed on a railroad company whose road is located in a highway to restore it to its former state, or to such state as not unnecessarily to impair its usefulness, is “a corporate duty, which the company is bound to perform; and for any failure in its performance, in addition to other remedies, the commissioner of highways is authorized, by chapter 255 of the act of 1855, to maintain an action to enforce the performance, or for damages sustained by the town from nonperformance.”

Prior to the decision of that case, it had been intimated in New York, C. & H. R. R. Co. v. People, 12 Hun, 195, that the remedy for failure on the part of the railroad was by indictment. That case was modified to some extent when it reached the court of appeals, as appears by the report thereof as found in 74 N. Y. 302; and in the course of the opinion delivered by Church, C. J., in considering the duty of the corporation to restore the road, he said: “The duty thus imposed is an important one for the public, and it should be enforced, not oppressively, but reasonably, and fairly for the public benefit.”

And he added:

“It was the duty of the defendant not only to properly make these approaches, but to keep them in suitable repair. Having to this extent interfered with the highway, or, rather, having taken possession of the old highway, and substituted a new and different one, they must preserve it in a state, as far as practicable, of original usefulness;” citing Cott v. Railroad Co., 36 N. Y. 214.

.And it was also said in that case that the duty was a continuous one.

In People v. New York, N. H. & H. R. Co., 89 N. Y. 266, in the course of the opinion, it was intimated that it was a question of fact, in a somewhat similar case, “whether the defendant unnecessarily impaired the usefulness of the highway”; and it was intimated that, “by the growth of population, the first provision made might become inadequate for then public accommodation.” The doctrine last mentioned was approved in Hatch v. Syracuse, etc., Railroad Co., 50 Hun, 64; 24 St. Rep. 36, and in the course of the opinion delivered in that case it was said:

“If, by an increase of business on highways, the facilities first provided become inadequate, the corporation must make such changes as are reasonably necessary to provide for the needs of the public.”

Numerous cases are then cited. The opinion then adds:

“Whether the facilities afforded were sufficient was a question of fact for the court, and, under the evidence, its decision ought not to be disturbed by this court. The duty being a continuous one, the action was not barred by any statute of limitations.”

In order to maintain this action, we think it is not necessary that the commissioners should declare an encroachment, and institute, proceedings given by the statute for the removal of an encroachment. Nor do we think Cook v. Covil, 18 Hun, 288, has any application to the case in hand. We are of the opinion that the existence of the abutments for the period of upward of twenty years did not limit the public to the right of the space thirteen feet and two inches between them, and that it was a question of fact, upon all the evidence before the referee, as to whether the needs of the public were such that the aperture left was inadequate to serve the same. There was some evidence given tending to show that the abutments were placed in that portion of the highway which had been used by the public prior to their erection, and we are of the opinion that the evidence warrants a finding of fact that the public had acquired rights in the use of the highway which the defendant has interfered with.

We have looked into the"exceptions taken during the progress of the trial, and also to the omission of the referee to make certain additional findings, and we áre of the opinion that they do not present any error which requires us to interfere with the conclusion reached by the referee. v

Judgment affirmed, with costs.

All concur.


text:
    The People, Resp’t, v. Edward Hurlburt, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Evidence—Other crimes.
    On a trial for larceny by appropriating the money of another with intent to defraud him, the evidence that defendant at qfher times had committed other crimes of a similar character to the one charged in the indictment, is not admissible.
    Appeal from a judgment convicting defendant of grand larceny in the first degree.
    The larceny was alleged to have been committed in the city of Utica on the 14th day of December, 1893. The indictment charged that defendant wrongfully, unlawfully, and feloniously did then and there embezzle and appropriate to his own use, and did steal, take, and carry away, of said moneys, property, evidences of debt and contract, articles of value, things in action and possession, the sum of $1-,125. The defendant was sentenced to the Auburn State Prison for the term of four years and nine months. The appeal book contains all the evidence given upon ■the trial. On the 14th of April, 1888, Margaret 0. Lovett gave to Jane E. Ferguson a bond and mortgage conditioned for the payment of $1,425, payable five years from May 1, 1888, with interest at 6 per cent., payable semiannually, with payments of not less than $100 a year from May 1, 1888. The bond and mortgage after they were executed, were left with the defendant for about a year, and then they were taken by Mrs. Ferguson, and by her retained until about December, 1893, when they were again turned over to the defendant, and he collected principal and interest on the bond and mortgage as the payments came due, and during the first three years he sent $100 of principal and semiannual interest to Mrs. Ferguson. Thereafter, upon receiving payments of principal upon the bond, he retained the same under an alleged agreement with Mrs. Ferguson by which he was to pay her the interest 'upon the moneys until the spring of 1894, when a mortgage of $2,200 given by Mrs. Ferguson to one Mrs. Owen matured. Mrs. Ferguson executed several receipts for principal and interest down to the payment of May, 1892. At about that time the defendant was taken sick, and confined to his house, and in December, 1893, the defendant being sick, was called upon by Mrs. Ferguson. At the trial it was claimed that Hurlburt came into possession of the moneys legitimately, and a grave question was made" whether he had authority, under an agreement," either express or implied, with Mrs. Ferguson, to use the money by him received; and whether the relation between them was that of attorney and agent, or was, by her consent, changed to that of debtor and creditor. During the trial the people were allowed, against the objections and exceptions taken by the defendant, to introduce evidence of Louise Kilts and Charles H. Yates, tending to prove that the defendant at some other times had committed other crimes of a similar character to the one charged in the indictment. The evidence was received, andtfye trial judge, in the course of his charge to the jury, said of this evidence: “It was received for thp, purpose of showing criminal intent in appropriating it to his own use, if you find he did so appropriate it; and it is only as bearing upon that question that you have the right to consider this evidence.
    Jones & Townsend, for app’lt; George S. Klock, Dist. Atty., for resp’t.
   HARDIN, P. J.

—Defendant was charged with the crime of grand larceny, in that he had violated section 528 of the Penal Code. . That section provides that a person, with intent to deprive or defraud the true owner of his property, “or to appropriate the same to the use of the taker,” shall be guilty of larceny if, “ having in his possession, custody or control, as a bailee, servant, attorney, agent, clerk, trustee, or officer of any person, association or corporation, or as a public officer, or as a person authorized by agreement or by competent authority, to hold or take such possession, custody or control of any money, property, evidence of debt or contract, article of value of any nature, or thing in action or possession, appropriates the same to his own use, or that of any other person other than the true owner or person entitled to the benefit thereof.” That section was explained and construed in People v. Moore, 37 Hun, 84, and in People v. Civille ; 44 id. 498 ; 9 St. Rep. 104. Under that section the precise question for determination under the allegations of the indictment was whether the defendant had, with, intent to defraud Mrs. Ferguson of her money, appropriated the same to his own use. That was the specified crime charged in the indictment, and was the one he was called upon to meet at the trial thereof.

In People v. Sharp, 107 N. Y. 458 ; 12 St, Rep. 217, DANFORTH, J., said:

“ It is, indeed, elementary law that no evidence can be admitted which does not tend to prove the issue joined, and the reason, and necessity of the rule are much stronger in criminal than in civil cases for the observance of this rule, and of confining the evidence strictly to the issue. The indictment is all that the defendant is expected to dome prepared to answer. Therefore the introduction of evidence of another and extraneous crime is calculated to take the defendant by surprise, and to do him manifest injustice by creating a prejudice against his general characrer.”

The evidence of Mrs. Kilts and Mr. Yates was of acts and transactions not contemporaneous with the acts alleged in the indictment; nor did they have any connection with the transactions alleged in the indictment or discosed by the evidence of Mrs. Ferguson. The evidence related to independent transactions quite remote from the one alleged in the indictment We are of the opinion that the evidence of Yates and Kilts was prejudicial to the rights of the defendant, and that its reception and consideration by the jury was prej udicial to the defendant.

In People v. Drake, 47 St. Rep. 783, our views were expressed in respect to evidence of transactions in no way connected with the crime alleged in the indictment. The learned district attorney calls our attention to People v. Murphy, 135 N. Y. 451; 48 St. Rep. 426, which was a case where the defendant was convicted of the crime of arson in the third degree upon circumstantial evidence, and the evidence given that was the subject of criticism ■related to the injuries of personal property “upon the same night that the fire occurred, and by the incendiary, and as a part of the •same criminal scheme which resulted in the destruction of the b.arn.” In that case the court observed:

“Under such circumstances the evidence was competent. Hope v. People, 83 N. Y. 427. It very clearly tendered to prove that the fire was not accidental; that its origin was instigated by malice, and not from the desire of gain; that it was kindled by some person having the intimate knowledge of the defendant in regard to the situation of the property; and it was properly received, even though it may have tended to establish the defendant’s guilt of another crime than the one set forth in the indictment on trial.”

We think the case is quite unlike the one before us.

The learned district attorney also calls our attention to the case case of People v. Harris, 136 N. Y. 423; 49 St. Rep, 751. In that case the evidence that was the subject of criticism was given for the purpose of showing the defendant’s relations and feelings towards his wife, as evidenced by bis conduct on a given occasion. The evidence tended to show “that the defendant had ceased to hold his wife in such affection as the law presumes to exist from married relations.” We think it is distinguishable from the case in hand. Nor do we think anything found in the opinion in the case of People v. Wilson, 141 N. Y. 185; 56 St. Rep. 828, aids the district attorney. The transactions, detailed by Yates and Kilts are remote from the transactions mentioned in the indictment; nor have they any intimate relation to the transaction with Mrs. Ferguson. ' The evidence was received contrary to the rulo laid down in People v. Justices, 10 Hun, 158.

In Copperman v. People, 56 N. Y. 593, Church, C. J., observed: “It is a general rule, and one that should be strictly observed, that it is incompetent upon the trial for one offense to prove that the accused has committed another not connected with it.”

We ought not to say that the evidence thus improperly received was not prejudicial to the defendant. He was entitled to a trial of the precise offense alleged in the indictment, and the indictment did not call upon him to be ready to meet accusations remote in point of time or dissimilar in character to the one specifically charged in the indictment. People v. Wood, 126 N. Y. 254; 36 St. Rep. 952; People v. Altman, 147 N. Y. 477; 70 St. Rep. 66. The foregoing views lead to the conclusion that the conviction and judgment ought to be reversed, and a new trial granted.

Conviction and judgment of the court of sessions of Oneida county reversed, and a new trial- granted, and the clerk directed to enter judgment, and remit certified copy thereof, with the return and decision of the court, to the court»of sessions of Oneida county, pursuant to section 547 and 548 of the Code of Criminal Procedure.

All concur.


author: MERWIN, J.

text:
    Clarence E. McVee, by Guardian, etc., Resp’t, v. City of Watertown, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Evidence—Dedication.
    The filing of a plat indicating a street and acceptance by a resolution of common council, together with the construction of a sewer and the use of the street, was held, in this case, to present a question as to the dedication for the jury.
    2. Same.
    The act of a city in assuming authority to control the land _ as a street renders it chargeable with tlie same duties and imposes upon it the same’ liabilities, as though it had been lawfully laid out, and it is estopped from, questioning that it is a lawful road or street.
    3. Municipal corporations—Defective sidewalks.
    Where a defect in a sidewalk has existed for a period of five or six months, it is a question of fact whether the city authorities, in the exercise of reasonable care, should have discovered the defect and remedied it, though the sidewalk was constructed without the authority of the city.
    4. Same—Negligence.
    The fact .that the uncle of the child, in whose house the child_ was on the day of its injury, staying temporarily, built the defective sidewalk, does not deprive him of any legal remedy which he may have against the city.
    6. Same.
    It is not negligence, as matter of law, for a person in charge of a chilli four years old to permit him to be on it public street unattended.

      Appeal from a judgment entered on a verdict for plaintiff, and from an order denying a motion on the minutes for a new trial.
    Edward H. Smith for app’lt; G. S. & H. L. Hooker, for resp’t.
   MERWIN, J.

—On October 1,1894, the plaintiff then being an infant about four years old, fell upon a sidewalk on Grant street, so called, ip the city of Watertown, and received an injury, the damages arising from which he seeks in this action to recover of the defendant upon the ground of negligence. It is claimed by the-defendant (1) that Grant street, so called, is not a public highway; (2) that, if it- is, the defendant was -not negligent; and (3) that plaintiff or those who had the care of him were guilty of contributory negligence. All these questions were submitted to the jury,, and the verdict was adverse .to the defendant. On the 20th of October, 1886, the common council of the defendant adopted a. resolution a copy of which is as follows:

“Resolved, that the following named streets, Grant, Hancock, Tilden, Lincoln, and Seward, be, and they are hereby, accepted as-public highways in accordance with the map thereof heretofore filed by D. G. Griffin.”

It appears that, prior to the passage of this resolution, Mr. Griffin, then being the owner of a tract of land northerly of Main street in tire notherly part of the city of Watertown, filed in the office of the clerk of Jefferson county a map or plat of the property, laid out in lots, with streets, in regular form. The streets named in the resolution are those indicated and laid out on the map. Grant street, upon the map, extended in a direct line northerly from Main street about 1,200 feet. The house, opposite to which was the sidewalk in question, was owned by one Morrill, and was-built, in or prior to 1892, on the easterly side of Grant street, about 860 feet from main street. Beyond it, northerly, there was no other house on that side of the street. On the other side of the street there were two houses further north. Beyond that, on-the north, there was indication of a street for 150 or 200 feet, and beyond that point there was a fence across the street. Other houses had been built along the street southerly of the Morrill house. In 1893, the city authorities built in Grant street a sewer, running from Main street northerly about 700 feet. There was-evidence tending to show that, for several years before 1893, the street had been open and used as a street, by the public generally,, for walking and driving, and to some extent further north than Morrill’s.

A public highway may be created by dedication through offer and actual acceptance. City of Cohoes v. Delaware & H. Canal Co., 134 N. Y. 397; 47 St. Rep. 612. The question whether a public highway has been so created is ordinarily a question of fact,, as it involves the intent and acts of. the owner and acceptor. Flack v. Village of Green Island, 122 N. Y. 107; 33 St. Rep. 339. Where a plat is made and recorded, the requisite intention on the part of the owner is generally indisputable. 2 Dill. Mun. Corp. § 636. The dedication and acceptance may be proved by the acts of the parties and the circumstances of the case. Cook v. Harris, 61 N. Y. 448. In Sewell v. City of Cohoes, 75 N. Y. 45, which was an action for negligence in not keeping a street in safe condition, and it was claimed by the city that the street had never been ■legally laid out and was not a legal highway, it is said (page 53):

“ Having the power to lay out streets, the omission to do it . lawfully does not exonerate the corporation from liabilty from negligence, when its officers assume to hold out to public that a street is located within its limits, and they are invited to use it ■and to travel upon it. Such a rule would compel a traveler to ■determine for himself whether the street was lawfully laid out, and is not upheld by the case cited or supported by authority. Although the precise question discussed has never been directly presented in this state, the authorities are numerous which sustain -a contrary view, as will be seen by a reference to the cases. In Mayor v. Sheffield, 4 Wall. 189, it is held that, where the authorities of a city or town have treated a place as a public street, taking charge of it and regulating it as they do other streets, and the injury occurs by reason of, negligence, the corporation cannot, when sued for such injury, defend itself by alleging irregularity in the proceedings or a want of authority in establishing the street. The rule is well settled that the act of the city in assuming authority to control the land as a street renders it chargeable with the same duties, and imposes upon it the same liabilities, as if it had been lawfully laid out, and it is estopped from questioning that it was a lawful road or street. Houfe v. Town of Fulton, 34 Wis. 608 ; Stark v. Lancaster, 57 N. H. 88 ; City of Aurora v. Colshire, 55 Ind. 484 ; Phelps v. City of Mankato, 23 Minn. 276. In the case cited it was held that it was immaterial whether the street became such by formal acceptance and user by the public, so far as regards the duty of the city to keep it in safe condition.”

Applying these authorities to the facts of this case,- the defendant cannot, we think, complain because'the question of dedication and acceptance was left to the jury.

But the defendrnt urges that, if Grant street became a highway in 1886, it had ceased to be such, under the statute that provides that every highway that shall not have been opened and worked within six years from the time it shall have been dedicated to the use of the public or laid out, shall cease to be highway. Section 99, c. 568, Laws 1890 (Highway Law), re-enacting, in substance, section 99, tit. 1, c. 16, pt. 1, Rev. St., as amended by chapter 311, Laws 1861. There was evidence that the street in question had been opened beyond the locality in question within six years from 1886. It was shown to have been worked to some extent by the city authorities ’in 1896, but whether or not it had been •worked before 1894 does not appear, except, perhaps, by inference from the evidence that it.was passable for public travel, and had been used by the public for travel within the six years, beyond the Morrill premises. As said in Beckwith v. Whalen, 70 N. Y. 435 :

“ It must be opened as a highway over its entire route. It need not be worked in every part, but it must be worked sufficiently to be passable for public travel.”

The burden of proof was on the defendant to show that the road had not been worked within the six years. City of Cohoes v. Delaware & H. Canal Co., supra ; Horey v. Village of Haverstraw, 124 N. Y. 273 ; 35 St. Rep. 360. That being so, we have," I think, no right to say, as matter of law, that it was not worked within that time. So that, for .aught I see, we must accept the conclusion of the jury that, so far as this case is concerned, there was á public highway at the locality in question.

We then come to the question whether there was sufficient in the case to justify the finding of negligence on the part of the city. It is not claimed that the sidewalk was not defective, or that the defect then existing did not cause the injury. ' The sidewalk was not built by or under the direction of the city authorities, and they had no actual notice of the defect, and it is claimed that, under the circumstances, the city should not be chargeable with constructive notice. The defect had, however, existed for the period of five or six months, and it was a question of fact whether the city authorities, in the exercise of reasonable care, should have discovered the defect and remedied it. “Actual notice to the proper municipal authorities of a defect is not necessary in order to charge it with negligence. They owe to the public the duty of active vigilance; and where a street or sidewalk has been out of repair for any considerable length of time, so that by reasonable diligence they could have notice of the defect, such notice may be imputed to them.” Pomfrey v. Village of Saratoga Springs, 104 N. Y. 459; 5 St. Rep. 802. The fact that the sidewalk was constructed without the authority of the city does not change the rule. Saulsbury v. Village of Ithaca, 94 N. Y. 27 ; Seymour v. Village of Salamanca, 137 id. 364; 50 St. Rep. 799. We are referred by the dafendant to the case of Griffin v. Mayor, etc., 9 N. Y. 456, as laying down a different rule on the subject of notice. So far as that case holds that actual notice is necessary, it must be deemed to have been overruled by the later cases. See Requa v. City of Rochester, 45 N. Y. 135. The question of negligence was, we think properly submitted to the jury.

The question of contributory negligence on the part of those who had charge of the child is urged with a good deal of earnestness by the learned counsel for the defendant, but we find no good reason for taking the away from the jury. Stackus v. Railroad, Co., 79 N. Y. 464 ; Weil v. D. D., E. B. & B. Railroad Co., 119 id. 147, 158 ; 28 St. Rep. 944. If the aunt of the child, in whose charge he was upon the day of the injury, permitted him to be on the city street unattended, we cannot say, as matter of law, that she was negligent. Huerzeler v. Central Railroad Co., 139 N. Y. 490; 54 St. Rep. 836. The fact that the uncle of the child, in whose house the child was on that day staying temporarily, built the defective sidewalk, does not deprive the child of any legal remedy he may have against the city.

Oar attention is called to a number of exceptions to rulings upon evidence.' We find, however, no sufficient ground for reversal. The directions given by the aunt to the child were competent on the question of contributory negligence. The right of the superintendent of public works to the work which he did on the street appeared in progress of the case. The evidence that one "of the members of the common council knew of the locality in question was received conditionally, and no motion afterwards made to strike it out. It is not ¡clear that it was of any materiality as the case stood.

Judgment and order affirmed, with costa.

All concur.


text:
    Catharine A. D. Huber, Resp’t, v. Manchester Fire Insurance Company, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Insurance—Conditions—Vacant house.
    A house is not “vacant” within the conditions of a policy that it shall be void if the house becomes vacant, where the insured places practically all her furniture in one room up stairs, filling -it full and locking the room, taking the key away with her, and then left the rooms and went away, with the intention to return in four or five weeks.
    2. Same—Unoccupied.
    Iu such case, the house is “unoccupied” within a condition of the policy that it should be void if the house should become unoccupied.
    8. Same—Forfeiture.
    Where a policy, insuring furniture described as “all contained and while contained in a house occupied and to be occupied as a dwelling,” declares that the entire policy, unless otherwise provided by agreement endorsed on or added to it, should be void if the building becomes vacant or unoccupied, and so remains for ten days, the effect of allowing the building to be unoccupied more than ten days is to render the insurance void.
    /
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion on the minutes for a new trial. •
    W. S. Jenney, for app’lt; Hoyt & Farrington, for resp’t.
   MERWIN, J.

—This action is on a policy of insurance issued by the defendant on 6th June, 1892, insuring the plaintiff for one year, to an amount not exceeding $1,500, against loss or damage by fire to household furniture therein described, “all contained and while contained in the two story shingle-roof frame building and its additions, adjoining and communicating, occupied and to-be occupied as a dwelling house, and situate No. 445 on the east side of South Salina St., in Syracuse, New York." A fire occurred late in the in evening of September 17th, or early in the morning of September 18th, 1892, by which the property was destroyed or injured to the amount, as the jury have found, namely in the policy. In the policy there was the following provision:

“This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void * * . if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied and so remain for ten days.”

The defendant, as one of its defenses, claimed that the dwelling house in which the property was was for more than 10 days prior to the fire vacant or unoccupied. The trial court left to the jury to say whether or not within the meaning of the policy the house became or was vacant or unoccupied, and they found, in effect, that it was not. The defendant claims that upon the undisputed evidence it should have been held by the court that the clause in question was violated, and that the exception of the defendant to & refusal to so rule should be sustained. ■ The plaintiff rented the house of one Mrs. Dissell, and she had lived there for about ten years. She rented it from month to month at $80 a month. The house was fully furnished, and for some time before she left she had been living there alone. On the 24th August, she went to Perth Centre, FT. B., to visit her mother, and she did not return until after the five. It was her intention, when she went away, to stay five or six weeks. Before she left, as she testifies, she put all the furniture in the house, upstairs, in one large side room, and every room in the house was perfectly bare except that room, ■except that the sitting room stove was left in the sitting room downstairs; and there was an ice box, a jar, and a can that were not taken to the upstairs room. There was an arrangement between the -plaintiff and the agent of the owner by which the agent agreed during her absence to paper and paint every room excepting the one the furniture was in. This room was piled full of furniture, clear to the ceiling, so that, as plaintiff says, “ you ■could not walk a step in there.” This room the plaintiff locked up, and took the- key away with her, and left' no key with any one else. There were four doors into the houáe besides the front door. The plaintiff had two of the four doors nailed up. One of the others was locked, and the key placed in the room where the furniture was, and the key of the other was given to the paper hanger, so as to permit him to go in and do his work. The key of the front door the plaintiff gave to a Miss Bates, a friend of hers. Miss Bates, called as a witness by plaintiff, testifies as to instructions from plaintiff : “ She wanted I should go there every day, afternoon or evening, to see how things were, how the doors were locked and blinds were closed, after the painters left.” This witness, in pursuance of these instructions, went often into the house, but did not go every day. As to the situation after plaintiff left, it was at the trial “ agreed that the painting -was done on the 26th, 27th, and 29th days of August; and the paper hanging work at various times, twenty-fours in all, and the work finished on the 7th September, but the work might have been •done any time prior to the 7th for twenty-four hours. The last time anybody was in the house was before the 7th day of September. Ho mechanic was in the house after that date and before the fire.” The plaintiff, as she testifies, did not intend to give up the house, and the jury had a right to find that the plaintiff, when she left, intended to return and live at .the house as she had before done.

The foregoing are substantially the facts, as shown by the plaintiff or as agreed on at the trial. It is quite clear that the house in this case was not vacant. The more serious question is whether or not it was unoccupied, within the meaning of the policy. The description of the subject of the insurance is coupled with the clause, “ all contained and while contained ” in a certain building “occupied and to be occupied as a dwelling house.” The kind of occupancy, therefore, within the contemplation of the parties, was as a dwelling house.

In Herrman v. Insurance Co., 85 N. Y. 162, the plaintiff, in June, obtained from defendant á policy upon a dwelling house used by him for a summer residence, and upon furniture therein. The policy contained a clause declaring it void incase “the above-mentioned premises * * * become vacant or unoccupied, annso remain for more than thirty days, without notice, and consent of this company in writing.” The plaintiff' was then living in the house, but he left, with his family, in November following, and returned t.o his city residence, to remain for the winter, leaving, however, in the house insured, all his furniture, and the summer clothing of himself'and family. He also left the house in charge of his farmer, who occupied the farm house, and members1 of whose family visited and aired the dwelling once a week, and the plaintiff and wife also visited it once a fortnight. It was held that the dwelling house was not occupied withing the meaning of the policy. At page 169 it is said:

“ We have already said enougn to show our opinion that, for a dwelling house to be in a state of occupation there must be in it the presence of a human beings as at their customary place of abode; not absolutely and uninterruptedly continuous; but that must be the place of usual return and habitual stoppage. We think that a verdict of a jury would not have been allowed to stand that found that this dwelling house was occupied at the time of the fire within the terms of the policy.”

In Johnson v. Insurance Co., 39 Hun, 410, the provision of the policy was that it should be void, unless proper consent was obtained, “if the building herein described be or become vacant or unoccupied for the purposes indicated in this contract.” The policy was upon furniture. The plaintiff and her familjq a week or ten days before the fire, left on a visit, leaving no one in the house. During this time the husband of plaintiff came back, and stayed in the honse over night on two occasions, and he and and another man stayed there the night of the fire, and the plaintiff expected to return the next day. It was held that a verdict for plaintiff should not be disturbed. In Wait v. Insurance Co., 13 Hun, 371, the condition in the policy was that, if the dwelling house should cease to be occupied by the owner or occupant in the usual and ordinary manner in which dwelling houses are occupied as such, then the policy to be void until written consent be obtained. The dwelling was occupied by a tenant, who commenced to move out on the 15th of March, taking most of his furniture, and all his family. Ho one was left in the house, and on the night of the 16th it was destroyed by fire. There was some proof that the plaintiff had no notice of the removal of the tenant. It was held that the question whether or not the house was unoccupied at the time of the fire within the meaning of the policy was properly left with the jury. In Gibbs v. Insurance Co., 13 Hun, 612, the question was whether the premises “ became occupied.” The plaintiff slept in her daughter’s house, adjoining the premises insured, but her furniture and clothing were in her own house, and she spent the day there. It was held that the house was not unoccupied. In Kelley v. Insurance Co., 2 Wkly. Dig. 479, Fed. Cas. No. 7,658, there was no time named in the condition during which the building might remain unoccupied, and the question was held to be whether there was an abandonment of the premises as tenantable property, or a vacancy for an unreasonable time. In Woodruff v. Insurance Co., 83 N. Y. 133, the form of the condition was, “vacant and unoccupied," and it clearly appeared that the building was not vacant. In Vanderhoef v. Agri, Insurance Co., 46 Hun, 328 ; 12 St. Rep. 341, the form of the condition was the same as in the Wait Case, supra, and it was held that the question of occupancy was for the jury. In Stupetski v. Insurance Co., 43 Mich. 373, it was held that a clause avoiding a policy in case the premises should “become vacant or unoccupied” did not apply where a man and his family left home for twelve days, to visit a sick daughter, and engaged a person to go to the house daily to look after the house and feed the stock. In Insurance Co. v. Kepler, 95 Pa. St. 492, the only question that seems to have been decided was that the premises were not “vacated” by a temporary absence of four days. A similar question was considered in Insurance Co. v. McLimans, 28 Neb. 846. In Insurance Co. v. Tucker, 92 Ill. 64, the terms of the condition were, “be vacant or unoccupied or not in use,” no time being fixed. The non-occupancy, if any, occurred while a transfer of possession was being made to a tenant. It was held to be a question for the jury, the court saying that what is meant by the terms “vacant or unoccupied,” as used in the policy, is a question of law; but whether the house was at the time of the loss vacant and unoccupied was a question of fact for the jury. A similar view was taken in Insurance Co. v. Storig, 137 Ill. 646.

The cases we have thus referred to are cited on the part of the plaintiff as supporting her view of the case. They do not seem to be decisive in that direction. A dwelling house is unoccupied when no one lives therein. Herrman v. Insurance Co., 81 N. Y. 188. In Paine v. Insurance Co., 5 Thomp. & C. 620, it is said that “occupation of a dwelling house is living in it, not mere supervision over it.” In that case the condition wad that, in case the house shall be “left unoccupied" without giving immediate notice to the company, the policy should cease. The owner and occupant was absent for six weeks for medical treatment, visiting the htiuse, however, upon different occasions, and maintaining a general over■sight over the property therein contained. No notice was given to the defendant. It was held that finding in favor of plaintiff could, not be sustained. In Barry v. Insurance Co., 35 Hun, 601, the ' tenant of the plaintiff who' occupied the house at the time of the insurance left it, and gave the key to plantiff, who thereupon commenced to plaster and whitewash it, and to move her furniture into it, with a view of occupying it; and all her furniture had been moved in three days before the fire, but no person was living in it when it took fire. It was held that the house was unoccupied" within the meaning of the provision that, if the premises became vacant or unoccupied, and so remain, with the knowledge of the1 .assured, without notice to and.consent of the company in writing, the policy should be void. And it was said that under the Herrman Case, in 85 N. Y., a dwelling house is to be deemed unoccupied when, for the time being, it is not the place of abode of human beings, and used as such. A similar view was taken in Martin v. Rochester German Insurance Co., 86 Hun, 35 ; 67 St. Rep. 237. In 1 May, Ins. (3d Ed.) § 249c, it is said: “The mere presence of goods in the house, and a supervision over it, is not an ‘occupancy.’ That requires a living in it.” .

In the present case, when the plaintiff placed practically all her furniture in the room upstairs, filling it full, and locked the room, taking the key away with her, and then left the premises, and went to New Brunswick, the house ceased, for the time being, to be the place of her abode, and no one else was living in it. There was in it no inhabitant. The fact that her agent had a key, and had the ■supervision of the property, was not an occupation as a dwelling house. That was decided in the Herrman Case. After the plaintiff left, the house was"not inhabitable in the ordinary way, unless other furniture was moved in, as the plaintiff’s furniture was locked up. The intention of plaintiff to return. in four or five weeks did not make an-occupation during her absence, according to the doctrine of the Henman Case. There the plaintiff intended to return in the spring. Assume that, as between plaintiff and the owner, her tenancy continued, and she would be deemed to be in possession, that would not answer the requirement. The plaintiff in the Herrman Case had beyond doubt the legal possession and occupancy. And so it was in the Barry Case. In this case, as in the Herrman Case, there was a time fixed within which nonoccupancy might exist. The question, therefore, does not arise, as in ■some of the cases, whether the property was unoccupied for an unreasonable time. The parties contemplated that there might be a nonoccupancy "for a certain time, thereby presumptively covering the exigencies that might be likely to arise by reason of sickness or temporary emergencies, and sufficient opportunity was given to ■enable the parties to protect themselves. It was assumed there might be a temporary absence, but a limit was placed. The plaintiff left On the 24th August, and from that time to the time of the on the 17th or 18th September, no one was living in the house. The principle of the Herrman Case, in 85 N. Y., seems to us to be directly applicable to this case, and, following that case, we see no escape from the conclusion that upon the undisputed facts it ■should have been held that the dwelling house became and was unoccupied, and so remained for more than ten days.

But the plaintiff further contends that, if the house was unoccupied, it should not affect the insurance upon the personal property.. The provision was that the “entire policy” should be void in the contingency named. The insurance, in terms, was on certain property contained in the building, and “while contained” in it, “occupied and to be occupied as a dwelling house.” Clearly, the provision as to nonoccupancy must be construed to refer to the particular building that was specified as containing the property, and where it was to remain, and which was then occupied, and was to continue to be occupied, as a dwelling house; and necessarily was designed to affect the risk on the personal property insured. The case of Halpin v. Insurance Co., of N. America, 120 N. Y. 73 ; 30 St. Rep. 261, does not help the plaintiff; while the case of Halpin v. Insurance Co., of N. America, 120 N.Y.70; 30 St. Rep.261, lends to support the view of the defendent. The foregoing considerations lead to a reversal.

Judgment and order reversed, and new trial ordered, costs to ^ibide the event

HARDIN, P. J. concurs; MARTIN, J., not voting.


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    Harriet Babcock, Resp’t, v. Eugene A. Chase, as Executor, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Contracts—Consideration.
    Changing a child’s Christian name is a sufficient consideration to support a promise, made by a person, at whose request the name was changed, to leave the child a certain sum.

      % Same—Promise for the benefit of another.
    ' Such promise is made expressly for the child’s benefit, and, by reason of . the relationship between her and the promisee and also by reason of her connection with the consideration, there is such a privity between her and the promisee that she has a right to enforce the contract. So held, where a promise by a grandfather, made to his grandchild’s parents, to leave the child a certain sum if her Christian name was changed.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.
    Norman M. Allen, for app’lt; D. L. Atkyns, for resp’t.
   MERWIN, J.

—It is alleged in the complaint that the plaintiff was born on the 28th of October, 1875, and soon after her birth was by her parents named Catharine, and so christened; that she was called, and her name continued to be, Catharine Babcock, until February, 1876, when Christopher J. Babcock, the defendant’s testator, and the grandfather of the plaintiff, requested and ’urged her parents to change her name from Catharine to Harriet, which they were unwilling to do; that the decedent desired such change, as the name of Harriet was a favorite name with him, and he desired it should be kept in the family; that thereupon the decedent, in consideration that the parents of the plaintiff should change the name of the plaintiff from Catharine to Harriet, promised and agreed to and with the plaintiff, and with her parents for her use and benefit, that he would at his death, and in and by his last will and testament, pay to, leave for, and give to the plaintiff •the sum of $500; that the parents of plaintiff in consideration of such promises of' the decedent, agreed to make the proposed change, and thereupon immediately, in performance of their said promise, did change the name of plaintiff from Catharine Babcock to Harriet Babcock, and from that time to the present that has been her name; that the decedent did not perform the agreement on his part, and did not pay to, leave for, or give to plaintiff the sum of $500, or any sum, by his will, which has been duly admitted to probate, and letters issued to the defendant, the executor therein named; that the decedent, by his will, gave all bis property to other parties, and made no provision for plaintiff. Judgment is demanded for $500, and for such other relief as shall be just and equitable.

It is claimed by the appellant (1) that.there was no consideration for the promise with which it sought to charge the estate of _ the testator; and (2) that there was no privity of contract between the testator and plaintiff, and the plaintiff cannot, therefore, enforce the promise of the testator to plaintiff’s parents.

1. In Wolford v. Powers, 85 Ind. 294, it was held that a promissory note, executed in consideration of a parent naming a child after the maker of the note, and in pursuance of a promise made him that, if the child were so named, he would provide generously for its education and support in life, is based on a sufficient consideration. In that case it is said:

“The surrender, at the intestate’s request, of the right or privilege of naming the appellant’s child, was the yielding of a consideration. The right to give his child a name was one which the father possessed, and one which he could not be deprived of against bis consent. If the intestate chose to bargain for the exercise of this right, he should be bound, for by his bargain he limited and restrained the father’s right to bestow his own or some other name upon the child. We can perceive no solid reason for declaring that the right with which the father parted at the request was of no value. It is difficult, if not impossible, to invent even a plausible reason for affirming that such a right or privilege is absolutely worthless. The father is the natural guardian of his child, and entitled to its services during infancy; and within this natural right must fall the privilege of bestowing a. name upon it. In yielding to the intestate’s request, and in consideration of the promise accompanying it, the appellant certainly suffered some right. * * * It will not do say that a bestowal of a name is a valueless act, and, if once it be granted to be of some value, then, in the absence of fraud and oppression, it must be held to possess the value placed upon it by the contracting parties.’1

In Diffenderfer v. Scott, (Ind. App.) 32 N. E. 87, it was held, following the Wolford Case, that naming a child after the maker of a note is a sufficient consideration for the note given to the child.

In general, a waiver of any legal or equitable right at the reguest of another party is a sufficient consideration for a promise. 1 Pars. Cont. (8th Ed.) 444. “A valuable consideration, in the sense of the law, may consist either in some right or benefit accruing to the one party, or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.” Currie v. Misa, L. R. 10 Exch. 162, referred to in Hamer v. Sidway, 124 N. Y. 545; 36 St. Rep. 888, where it is also said that courts “will not ask whether the thing which forms the consideration does in fact benefit the promisee or a third party, or is of any substantial value to any one. It is enough that something is promised, done, forborne, or suffered by the party to whom the promise is made as consideration for the promise made to him.” It is also said, quoting, from Pol. Cont. 166, that “consideration means not so much that one party is profiting as that the other abandons some legal right in the present, or limits his legal freedom of action in the future as an inducement for the promise of the first.” In Hamer v. Sidway a promise to pay the promisee §5,000 if he would refrain from drinking liquor, using tobacco, swearing or playing cards or billiards for money until he should become twenty-one years of age, was held to be based on sufficient consideration. A similar view was taken in Lindell v. Rokes, 60 Mo. 249. In Earle v. Angell, 157 Mass. 294, it was held that a promise to pay the promisee $500 if he would attend the funeral of the promisor, was enforceable. In view of the doctrine of the Wolford Case, and the general principal enunciated or approved in the Hamer Case, we are of the opinion that a sufficient consideration is alleged for the promise of the decedent. There is no question "here about the adequacy. Earl v. Peck, 64 N. Y. 598. That has been fixed by the parties,

2. Can the plaintiff enforce the promise ? It was made expressly for her benefit, and by reason of the relationship between íer and the promisee, and also by reason of her connection with 'the consideration there was such a privity between her and the promisee that she had a right to enforce the contract. This view is sustained by authority. In 1 Com. Dig. (5th Ed.) 304, and note p, the rule stated:

When one for whose benefit a contract has been expressly made is nearly related to the party from whom its consideration moves, either may sue for the breach of it, though the pendency of cither’s suit will preclude the other’s action.”

This is based mainly on the case of Dutton v. Poole, 2 Lev. 210, where the right of the child to sue was asserted. The authority of that case has been often recognized. Shephard v. Shepard, 7 Johns. Ch. 63; Todd v. Weber, 95 N. Y. 193; Knowles v. Erwin, 43 Hun, 152; 5 St. Rep. 421 ; affirmed, 124 N. Y. 633 ; Sackett v. Sackett, 14 St. Rep. 253, The principle that relationship maybe the basis of a privity sufficient for the action is also recognized in Bogardus v. Young, 64 Hun, 404 ; 46 St. Rep. 780 ; Coleman v. Hiler, 85 Hun, 547 ; 67 St. Rep. 41. In Vrooman v. Turner, 69 N. Y. 283, 284, it is said:

“ To give a third party who may derive a benefit from the performance of the promise an action, there must be : First, an intent bj the promisee to secure some benefit to the third party ; and, second, some privity between the two, the promisee and the party to be benefited, and some obligation or duty owing from the former to the latter, which would give him a legal or equitable claim to the benefit of the promise, or an equivalent from him personally.”

The plaintiff here has certainly an equitable claim to the benefit of the promise. The parents acted for her as well as for themselves in the transaction. They owed her a duty in that regard, from which it may well be said a privity arose sufficient for the maintenance of the action.

The case of Townsend v. Rackham, 143 N. Y. 516; 62 St. Rep. 851, cited by the appellant, related to a matter widely different from the present, and the general rule there stated had no reference to the somewhat exceptional cases like the one now under review. We are of the opinion that upon the facts alleged the plaintiff had a right to sue.

It is suggested by the appellant that no damages are alleged. If there was a breach of the contract, there were, at least nominal damages. Besides, the allegation of the complaint is that the decedent would pay to the plaintiff the specified amount. We are of the opinion that a cause of action is alleged.

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

All concur. . .


text:
    In the Matter of a Petition by Larned K. Wilson for Letters of Admininistration.

      (,Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1, Executors—Appointment—Wipe."
    Under § 2660 of the Code, a surviving wife is entitled to letters, though, before her husband’s death, she had released her right to share in the distribution of the estate.
    2. Same—Renunciation. ' 1 •
    A written agreement between husband and wife, whereby the latter relinquishes all interest in her husband’s estate, is not a renunciation of her right to administer thereon, under § 2663 of the Code.
    Appeal from a decree warranting letters of administration to decedent’s widow.
    W. B. Bliss, for app’lt ; Sayles, Searle & Sayles, for resp’t.
   MERWIN, J.

—The question on this appeal is whether the respondent, as the surviving wife of the decedent, is entitled to letters of administration upon his estate. It is practically conceded that she is entitled, unless she is disqualified by reason of the effect to be given to the provisions of an agreement of separation made between the respondent and her husband and a trustee on the 14th September, 1894. , By this agreement the respondent, in consideration of the- payment of a certain sum of money to the trustee for her, in substance, agreed to receive the same in satisfaction of any right of dower she then had or m.ight thereafter have in any real estate of her husband, and in full payment and satisfaction of and for her distributive portion of all his personal property which he then had or might thereafter acquire, and in full satisfaction and payment of all statutory exemptions given by law to widows, to which she might at any time be entitled from his estate; and she thereby released all claims of dower or other interest in any of his property then or thereafter to be owned by him, and agreed that she would make no claim of dower or other interest in it. The argument of the appellant is that the respondent is not entitled to share in the distribution of the persbnal property, and is therefore not entitled to administer, as against the appellant, who is the father of the decedent, and his next of kin. The ground taken by the appellant in his petition to the surrogates’s court is “ that the said widow, Emma Wilson, has, by an instrument in writing, released, and assigned all of her right, title, and interest in the real and personal property of said deceased.” By Rev. St. pt. 2, c. 6, tit. 2, § 27, it was provided as follaws :

“Administration, in case of intestacy, shall be granted to the relatives of the deceased, who would be entitled to succeed to his personal estate, if they or any of them will accept the same, in the following order: First, to the widow; second, to the children; third, to the father; fourth, to the brothers; fifth, to the sisters; sixth, to the grandchildren ; seventh, to any other of the next of kin who would be entitled to share in the distribution of the estate. If any of the persons so entitled be minors, administration shall be granted to their guardians ; if none of the said relatives or guardians will accept the same, then to the creditors of the deceased; and the creditor first applying, if otherwise competent, shall be entitled to a preference; if no creditor apply, then to any other person legally competent.”

Under this statute it was held in Lathrop. v. Smith, 24 N. Y. 418, that it was not essential to the right of administration that the person administering should stand in a position to take a share or portion of the decedents personal estate; that, when the father who was entitled to the personal estate had renounced, the ■brother was entitled to administration before a creditor, although the brother had no interest in the estate. Apparently the order of preference stated in detail was deemed to control the expression, “who would be'entitled to succeed.” The statute upon-this subject now in force in section 2660 of the Code of Civil Procedure, which reads, so far as the question here is concerned, as follows: “ Administration in case of intestacy must be granted to the relatives of the deceased entitled to succeed to his personal property, who will accept the same in the following order: (1) To the surviving husband or wife. (2) To the children. (3) To the father. (4) To the mother. (5) To the brothers. (6) To the sisters. (7) To the grandchildren. (8) To any other next of kin entitled to share in the distribution of the estate. (9) To an exe ■ cutor or administrator of a sole legatee named in a will whereby the whole estate is devised to such deceased sole legatee. If the person entitled is a minor, administration must be granted to his guardian, if competent, in preference to creditors or other persons. If no relative, or gua'rdian of a minor relative, will accept the same, the letters must be granted to the creditors of the deceased; the creditor first applying, if otherwise competent, to be entitled to preference.”

It will be observed that the expression in.the Revised Statutes, “who will be entitled to succeed to his personal estate," is changed to, “entitled to succeed to his personal property.” It is argued that this change does away with the effect of the decision in the Lathrop Case. That, however, does not clearly appear. On the contrary, the reasoning of the Lathrop Case would practically apply with as much force to. the present section as to the former one. In effect, the two clauses of the section were deemed to be inconsistent, and the latter clause, being specific, was deemed to be controlling. See Redf. Sur. (5th Ed.) 290. It is to be observed that section 27 of.the Revised Statutes, above referred to, was amended by section 3 of chapter 362 of the Laws of 1863 by adding thereto the following:

This section shall not be construed to authorize the granting of letters to any relative not entitled to succeed to the personal estate of the deceased as his next of kin at the time of his decease.”

The section was again amended by section 6, c. 732, Laws 1867, and the words added by the amendment of 1863 were left out. Nor do they appear in the Code. The amendment of 1863 indicated a legislative intention to override the doctrine of the Lathrop Case, and the repeal of that amendment indicated an intention to leave the“law as the Lathrop Case put it.

The right of administration, as given to the surviving wife, was a personal one. She was, by the law, one of those entitled to succeed to the personal-property. The appellant claims that she had, in effect, renounced her right, or disqualified herself by the agreement with her husband. There was no renunciation effective under section 2663 of the Code. If there had been, there was a right of retraction. Casey v. Gardiner, 4 Bradf. Sur. 13. Nor was the respondent disqualified under section 2661. It has been held that the withholding of letters from a person who, if not by some cause incapacitated, would be entitled in priority, under the statute, is never justifiable, save in cases where such person is declared to disqualified by the statute itself. Coope v. Lowerre, 1 Barb. Ch. 46 ; O’Brien v. Neubert, 3 Dem. Sur. 156. It is not clear that the appellant, in this proceeding, had the right to call on the surrogate’s court for a construction and enforcement of the agreement. But if that could be done, and it is assumed that under the agreement the respondent had no right to a distributive share of the estate, still I am inclined to the opinion that under the Lathrop Case, there being no effective renunciation, the respondent was entitled to letters.

The decree or order appealed from should be affirmed. Decree affirmed, with costs.

All concar.