text:
    In the Matter of the Petition of Walter J. Eaton, as assignee of James Moir.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    1. Assignment for creditors—Preferences.
    An assignment for benefit of creditors directed the assignee “first to pay ‘ the expenses,'” etc.; “second, to pay "the N. Y. State Hat. Bank certain drafts; ‘ ‘ third, to pay ” said bank upon another account; “ fourth, to pay "George Moir, a creditor, and “fifth, to pay” all other debts. Held, that this language indicated a preference to each class and that said classes must be paid in their order.
    3. Same.
    Where the preferred debts amount to more than one-third of the assets (Chap. 503 of Laws of 1887), the pro rata payment directed by the statute cited must be made as follows: All the debts of the first preferred class (after payment of expenses, etc., which are absolutely preferred), must be paid first, although nothing be left to pay the debts in the subsequently preferred classes.
    Appeal from an order construing an assignment upon the application of the assignee and upon notice to George Moir, a creditor, who appeals from the order.

      Townsend, Dyett & Einstein (A. R. Dyett, of counsel), for app’lt; Matthew Hale, for resp’t; M. T. Hun, for petitioner.
   Learned, P. J.

This is an appeal from an order giving construction to the assignment, made on application of the assignee and on notice to George Moir, preferred creditor, who is the present appellant.

The appellant’s first position is that, by the terms of the assignment itself, there is no preference created among the several classes of preferred creditors, designated as first, second, third .and fourth, but that all of those classes stand on an equality by the terms of the assignment.

The assignment in the usual form directs the assignee to convert the assets into money, and with and out of the proceeds: “ First, to pay and discharge the just and reasonable expenses,” the lawful commissions and the payments required by chapter 328, Laws of 1884, as amended by chapter 283, Laws of 1886. Now it is very evident that the payments provided for by this clause are to be made in preference to those of the second clause. Expenses and commissions must clearly be paid before any preferred creditors.

In like manner the employes protected by the statutes named as above in the assignment are to be paid before other creditors. It therefore necessarily follows that the payments provided for in this first clause must have a preference over all those named in succeeding clauses.

The assignment proceeds: “ Second. To pay New York State National Bank, Albany,” and specifies two drafts drawn by J. K. Post& Go., accepted'by the assignor and discounted by said bank, and a draft drawn by the assignor on said J. K. Post <& Go., protested.

It then proceeds: “Third. To pay the said New York State National Bank, Albany, any and all loss and damage ” which said bank may sustain by the nonpayment of certain promissory notes.

It then proceeds: “ Fourth. To pay to George Moir the sum of nine thousand dollars; ” and to other persons certain sums mentioned.

The fifth clause is for the payment of all other debts.

Now, if the contention of the appellant were correct, there would have been no reason for making two clauses, such as the second and third. The payee was the same in both, and if, as the appellant urges, the numbering of the clauses did not indicate the order of preference, all the debts payable to the New York State .National Bank would have been included in one clause. There could be no other reason for making two clauses except the wish of the assignee that the Post drafts should have a preference even over other draffs held by that bank. It seems to us that the meaning of the assignment is unquestionable, and that the preferred creditors were intended to have preference among each other according to the order of these respective clauses.

The language of the court in Greenfield's Estate, 24 Pa. St., 232, cited by the appellant, “ that it is believed that no case can be found where it has been held that the prefix of a numeral alone gives priority,” hardly applies here. There is more than the prefix of a numeral. There is a direction to pay first such and such debts, second such and such. When one is directed first to do a certain thing, and se d another, it is not a forced construction to understand that the first is to be done in full before the second is attempted.

The case of Colgin v. Redman, 20 Ala., 651, cited by appellant, held that debts in the first class were to be paid before those in the second class; only that all in such class were to share pro rata. That, in our view, is this case. Moir, the appellant, although his name is the first mentioned in the fourth clause, has no preference over others in that clause. But the creditors in the first, second and third clauses have respectively preference, according to their clauses and all of them, before those of the fourth clause. No doubt would probably ever have risen as to this, were it not for the question we now come to consider.

Chapter 503, of the Laws of 1887, provides that any preference, other than for wages of employes, shall not be valid except to the amount of one-third in value of the assigned estate, and should said one-third be “ insufficient to pay in full the preferred claims to which under the provisions of this section the same are applicable, said assets shall be applied to the payment of the same pro rata to the amount of each of said preferred claims.”

The assignee has in his hands applicable to debts about $25,000. The amounts preferred in the second clause are about $6,100; the amount in the third clause does not appear; the amount in the fourth is about $12,000. The appellant insists that the one-third of the assets shall be applied pro rata to all of the claims named in the second, third and fourth clauses. The learned court below held that such one-third should be applied first pro rata to the creditors in the second clause, and the balance pro rata to the claims in the other clauses successively. We think the construction of the learned justice was correct. This statute was not intended to interfere with anything but the amount which might be given to preferred creditors. It did not intend to limit or control the power of the assignor, to the extent of one-third of the assigned estate, to dispose of it as he chose, giving preference as it might please him. The doctrine of this state has been and is, except as modified by that statute, that an insolvent debtor may make any preference which he may choose. As to one-third of his property, the debtor may do this still. In this present case, according to the estimate of the assignee, the one-third is sufficient at least to pay in full the first and the second class. If the assignor had made no third or fourth class, then the persons qamed in those classes would have been among the creditors not preferred, and the first and second would have been paid in full. Now,, when the assignor has directed that these creditors of the third and fourth classes shall be paid after the first and second, but. before all others, can it be supposed that he intended that in case of an insufficiency of assets those of the third and fourth should be paid pro rata with the second ? Certainly the addition of more classes after the second was not intended, under any circumstances, to put such added classes on an equality with the second.

The provision in the statute is to pay pro rata when the one-third is insufficient to pay in full the preferred claims to which such one-third is applicable, and the question is to what claims is it. applicable The one-third is applicable just as the assignor directed, and in the order in which he directed. He may be presumed to have known the law, and, perhaps, to have known something of the extent of the estate. In giving a preference to the second and third classes over the fourth, he must have anticipated that it was possible that there would not be enough for all the preferred creditors. And he did not say that, in case of such deficiency, all the preferred classes, except the first, should share pro rata. He practically said the contrary. There is no analogy between this case and that of legacies, for the reason that in this assignment a preference is expressed; in a will there is usually no preference expressed. But when in a will a priority is given, either by principles of law or by express language, effect is given to it.

In the present case priority is given by express language. It is not taken away' by the statute. The statute interfered only with the extent of the debtor’s right of preference; not with the manner in which he should exercise that right. The words pro rata apply when there is not enough of the one-tliird to pay all the creditors in some certain class, and not to the right of preference between several classes.

The order is affirmed, with costs.

Landon and Mayham, JJ., concur.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    William V. Oothout et al., App’lts, v. Mary Rogers et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    1. Will—Limitation of devise by subsequent clause.
    Where the words of a will in the first instance clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate absolutely to the donee, it will not he restricted or cut down to any less estate by subsequent or ambiguous words inferential in their intent.
    3. Same.
    A testator gave to his daughter Sarah a house and lot to her own proper use and behoof forever; he also made her a money bequest payable in annual instalments. He gave to another daughter in a similar manner a house and a money bequest payable in the same manner. Later in the will he said that it was understood that “ the devises and bequests ” to his daughters were for life and then to their children, " as the said annual sums, devises and bequests may remain in the hands or under the control of either of my executors, at the free election of either of my daughters and upon such terms as either of my daughters may make with such executors.” Held, that these latter expressions must he taken to refer to the money bequests and did not refer to the house and lot given absolutely to the daughter Sarah.
    Appeal from a judgment in favor of defendants dismissing the complaint.

      L. W. Baxter, for app’lts; W. B. Edwards, for resp’ts.
   Learned, P. J.

This is an action of and was tried before the court. The court decided in favor of the defendants and the plaintiffs appeal.

The question involved arises solely on the construction to be given to the will of Samuel Hodson, who died in 1853, seized in. fee of the premises; and especially on the construction to be given to the fourth and sixth clauses.

By the third clause the testator gave to his daughter Elizabeth a house “to her own proper use and behoof forever,” and also $1,400 to be paid in several instalments of $100, and interest on the unpaid sum, until the whole of the bequest is extinguished.

By the fourth he gave to his daughter Sarah the house and lot in question “ to her own proper use and behoof forever,” and also a similar bequest of $1,400, payable in the same manner above specified.

By the sixth he gave to his daughter Louisa $1,385, payable in two annual instalments, and the interest. The clause then continues : “ It is hereby understood that the devises and bequests made respectively to my daughters Elizabeth, Sarah and Louisa, are made and are for the absolute use and control of each of them during their natural lives, and after the decease of either of them then to their surviving children according to law, as the said annual sums, devises and bequests may remain in the hands and under the control of either of my executors, at the free election of either of my said daughters, and upon such terms as ■either of my daughters may make with such executors.”

Sarah Oothout, the devisee named in the fourth. clause, went into possession of the premises at the death of her father. Subsequently she conveyed the premises, and the defendants are in possession under that conveyance and under subsequent conveyances and wills. She and her grantees have been in possession ever since her father’s death.

She died in 1879. The plaintiffs are her only children; and they commenced this action in 1889. They claim that by the will Sarah Oothout took only a life estate, and that the fee in the remainder went to them on her death.

It will be seen that the question is what effect the sixth clause had upon the fourth clause, which unquestionably gave Sarah a fee.

“ It is well settled by a long succession of well considered cases that when the words of a will in the first instance clearly indicate a disposition in the testator to give the entire interest, use and benefit of the estate absolutely to the donee, it will not be restricted or cut down to any less estate by subsequent or ambiguous words inferential in their intent.” Clark v. Leupp, 88 N. Y., 228. See, also, Campbell v. Beaumont, 91 N. Y., 464. It is unnecessary to cite other cases. But the principle is better and more concisely expressed in Lambe v. Eames, L. R., 10 Eq., 267. “ Whenever the will begins with an absolute gift, in order to cut it down, the latter part of the will must show as clear an intention to cut down the absolute gift as the prior part does to make it.” Nearly the same language is found in Byrnes v. Stilwell, 103 N. Y., 460; 4 N. Y. State Rep., 241.

In the present case we think it is plain to what the testator referred in this sixth clause. To Elizabeth and Sarah he had given respectively in fee a lot of land. To each of them and to Louisa he had given a pecuniary bequest. AH these bequests were payable in instalments. The testator considered the question to whom these instalments should go, in case either of the daughters should die before all of the instalments should have been paid.

Should they be a part of the estate of the deceased daughter; or should they go to her children ? To settle this, he provided that these unpaid instalments should go “to their surviving children respectively, according to law, as the said annual sums, devises and bequests may remain in the hands and under the control of either of my executors.”

When he spoke of annual sums, devises and bequests remaining in the hands of executors, he had no reference to land, notwithstanding the use of the word “devises.” He plainly had reference to the moneys which were in the hands of the executors, and which were to be paid annually by instalments. There were no annual devises, accurately speaking. This use of the word devises in the middle of the sentence shows what it means in the beginning of the same sentence, where he says: “ It is hereby understood that the devises and bequests made respectively to my daughters,” etc. The beginning of the sentence is not to be separated. from the end. We must look at the sentence as a whole, to-understand what was the testator’s meaning.

Of course it is well known that in accurate language the word devise applies to land only. It is,' however, sometimes inaccurately applied to personal property. Bouvier Law Diet., sub voce.

Mow it is plain that the third and fourth clauses gave an absolute fee in the respective lots of Elizabeth and Sarah. The question then must he, under the rule above cited, whether this sentence in the sixth clause shows as clear an intention to cut down those estates as the prior part of the wiH did to make them. It is evident that the subject of this sentence was some property which was not only under the control of the executors, but about which the daughters could make terms with the executors. This is intelligible if it applies to the bequests; but meaningless if it applies to land. And that the whole sentence refers to personal property is more apparent from the circumstance that the testator speaks of the devises and bequests made to Louisa as well as to Elizabeth and Sarah. There was no gift of land to Louisa. When, therefore, he spoke of her devises and bequests, he could have referred only to the bequests of personal property.

We have examined the cases cited by the plaintiffs in sup¡Dort of their construction of the will. It does not seem to us useful to comment upon them. In every case the peculiar language of the will in question is to be construed. And it is seldom, if ever, that the language is the same in two instances.

It seems to us, taking the whole of the sentence in the sixth clause, on which the plaintiffs rely, and construing it in connection with the rest of the will, that the testator did not intend to cut down the absolute devises of land contained in the third and fourth clauses. As to the misuse of the word “ devises ” in this sentence, we can only, in the language of the court of appeals, ‘.‘ascribe to the conveyancer inexactitude of expression.”

The judgment should be affirmed, with costs.

Landon and Mayham, JJ., concur.


text:
    John Hooper, Adm’r, Resp’t, v. The Johnstown, Gloversville & Kingsboro Horse Railroad Co, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    1. Bailroads—Negligence.
    The defendant, whose road was constructed along a highway, filled in, by permission of the owner, private property, and to straighten its track moved it upon the land filled in; farther on the track again returned to the highway proper. A creek ran along the road and at one point had formed a deep pool. At this point in the filling the defendant constructed a sort of docking which stood up perpendicular, and without any guard over the pool. The defendant neither invited nor forbid persons to pass over the filled land, and a path had been formed between the track and the water which was commonly used. This was at least five feet wide, and had an inclination towards the pool. Held, that defendant was not bound to protect the public from falling into the pool by the erection of a proper guard.
    3. Same—Contributory negligence.
    A little girl’s body was found in this pool. She fell in in the daytime, was eleven years old, familiar with the road, was on her way to school, and was last seen tossing a ball in the air near the dangerous place; this ball would not float and has never been seen since. No person saw her fall in. Held, that it could not be said as matter of law that the girl had been shown to have been free from contributory negligence.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      Baker & Burton (Matthew Hale, of counsel), for app’lts; Hayward & Pruyn (Barnwell Bhett Hayward, of counsel), for resp’t.
   Learned, P. J.

This is an appeal by defendant from a judgment on verdict and from an order denying a new trial. The action was brought by the administrator of Theresa Hooper, a child about twelve years old, to recover damages for her death, alleged to have been occasioned by the wrongful act of defendant.

The complaint alleged that the defendant in constructing its track wrongfully took possession of a part of the highway between Johnstown and Gloversville and maintained exclusive control thereof, the part being such as was used by foot passengers, and thus, that defendant interfered with the use of the highway and added to the danger of traveling thereon, especially at the point where the deceased came to her death; that the deceased fell over an embankment maintained by defendant and was drowned.

It appears by the evidence that under an order of the- court in 1879 the defendant was permitted to construct its road along and upon the public highway, and the court charged that the defendant was rightfully in possession.

This highway runs at one place not far from a creek running southward, and there is a point where a sharp bend in the creek brings it quite near to the highway on the east side. The plank road is built upon the west side of the highway, and the horse railroad in this part of the highway is east of the plank.

Previous to 1884 the defendant's track was upon the east side of the highway, and there was a beaten foot-path along the east side of the track. At the point in question the land adjacent to the highway belonged to Mr. Place, and this land between the creek and the highway was wet and swampy. The side of the highway sloped down to this swampy land. -

In that year the defendant filled in a piece of the land east of the highway, building up a docking with timbers close to the sharp bend of the creek. There had been an old fence at the side of the highway, which was greatly decayed. The remains of this were used in the filling. The filling was from four to six or seven feet; and the widest point, forty to fifty feet wide. The defendant then moved its rail eastward, in one place some five or six feet; and further along some twenty-five or thirty feet. At the south end of the embankment, which is near the tree, the space between the east rail and the edge is about eight feet. It widens going north, and fifteen feet north of the tree is sixteen feet, and it continues to widen beyond that place. This was done in order to straighten the road. Between the track and the perpendicular docking the distance, in some places, is five or six feet; at the widest about twelve. In doing this work a depression was left between the tracks and the plank road; and a box drain was-put under the tracks to carry off the water from this depression. There is still a beaten track of about two feet wide east of the car tracks, and the earth slopes gradually to the edge of the embankment.

The deceased left her father’s house a little before 1p.m., to go to school a quarter of a mile distant. Plaintiff’s house and the school house were west of the highway, so that it was not necessary for her to cross. On the same day, after 6 o’clock, her body was found in the creek about eight or ten feet from a tree which stood at the south end of the embankment. There was found a little fresh track on the bank, about twelve inches by six, some ten feet from a tree north of the tree or nearly opposite where the body was found, and some foot prints near by. No one saw her fall in. She was seen about 1 o’clock going along the foot-path a little north of the place where she probably fell in.

She was tossing a ball in the air and catching it, moving towards the school house. The ball was a solid rubber ball which would not float; and one witness testified that he had let her take it that day after dinner, and before she reached the place of the supposed accident; that she tossed it up in the air and that he had never had it since.

The defendant insisted that the filling in and docking were outside of the line of the highway and were on private property, where defendant had gone by consent of the owner. That therefore the defendant was under no liability to construct any barrier; and further that it was not shown that the deceased was not guilty of any contributory negligence.

The court held that if the present track of the defendant was outside of the highway, defendant owed no duty to the deceased, unless it would be found that defendant practically invited the public to use the place as a part of the highway, to which the defendant excepted.

H the defendant after laying its track for some distance upon the highway had then diverged therefrom and had not returned thereto, but had constructed an embankment of its own upon private property, it would hardly be claimed that defendant would have been under any obligation to erect a fence on such an embankment to prevent foot passengers from falling off. Even if defendant had not prevented foot passengers from walking along such supposed embankment, it would not have been bound to protect them. But they would go there at their own risk. The decision in Cusick v. Adams, 115 N. Y., 55; 23 N. Y. State Rep., 548, would decide this. And in the case supposed, even if the embankment thus erected for its own use by the defendant should have the appearance of a highway branching off from the real highway, yet we do not see that this would make the defendant bound to protect a foot passenger from falling off. In the Ousich case it was said that the question was not one of appearance, nor of what the plaintiff supposed, but of what was the defendant’s duty.

If again this defendant, without going at all upon the highway, had built alongside of the highway an embankment on which it had laid its track, and if the outer side of such embankment were perpendicular at some-- place, we cannot see that the defendant would have been bound to protect the place so that foot passengers could not fall off. We suppose that railroad companies owe to persons who walk along the side of - the track no obligation to guard them against falling off an embankment.

The present case differs from those which we have above supposed simply in this: that in the present case the defendant for much of its distance laid its track on the highway, and that at the place where the accident occurred, although the defendant’s track was not on the highway, yet the embankment was substantially on a level with the highway, and it might be thought to be a part thereof. But it is to be observed in this connection that there was a depression between the track and the plankroad, which in some degree separated one from the other. Even aside from that -circumstance, we do not see what obligation the defendant was under to a person going upon this land. It was not a part of the highway. It was occupied by defendant by the consent of the owner. The defendant was not bound to prevent persons from coming upon its land. It did not invite them.

The case of Beck v. Carter, 68 N. Y., 283, cited by the plaintiff, illustrates the doctrine applicable here, and in the opinion several cases are given showing the ground of liability, when any existed. Thus, it is said that, in the absence of special circumstances, if one person traveling on the highway deviates therefrom and falls into a pit or excavation on the adjoining land, the owner is not responsible for the resulting injury. But if the excavation is adjacent to the highway, or so near thereto as to make the of the the it will be answerable to a traveler who, while using ordinary care, falls into it and is injured. In Beck v. Carter, the land had by use long-continued been made, for the time being, a public place and part of the highway, and defendant made an excavation therein. The court said,where the owner of land, expressly or by implication, invites a person to come on his land he cannot permit anything in the nature of a snare to exist thereon. If he gives but a bare license, the licensee takes the risk.

How, if we compare the present case with that one, with the cases there cited, we shall see that, when the owner has been held liable, he has, at least by implication, invited the public to come on his land, or he has permitted something in the nature of a snare, such as an excavation or a pile of material, into or upon which the injured person has ignorantly gone. But nothing of that kind exists here There was no unseen snare; no excavation ; no pile of material. The public were not invited to walk over the premises. But if they did not walk, there was nothing to obstruct them. Ho dangerous place existed in the path where they were accustomed to go. If the defendant had piled up railroad ties or other materials upon the foot-path already described, and some person walking there at night had fallen upon such ties or material, then there would have been a case somewhat similar to that of Becky. Carter.

The defendant was not under the obligation, which might rest on the commissioner of highways or the owner of a turnpike road, to provide suitable fences at dangerous places. Though we need not decide whether even they would be liable to a foot passenger under circumstances like those of the present case. But certainly we are unable to say that the defendant was guilty of negligence. For while the defendant was, perhaps, not at liberty to put any dangerous obstruction in the foot-path which had been used, without taking some precaution to warn travelers of the same, we do not see that it was bound affirmatively to guard the surroundings of that foot-path so that no one could stray" therefrom to his injury.

Hor does it seem to us that the plaintiff showed that the deceased came to her death without negligence on her part. There is no-evidence to show what caused her to fall into the water. If she was walking in the path she could not have fallen off the embankment. Whether she carelessly ran to the edge in pursuit of her ball; whether she was pushed in by some unknown person; whether she was frightened, and thus ran to the edge and fell in; all these were matters entirely unknown. The accident happened in the clay time, and she could not have wandered unknowingly from the path. We may conjecture that her ball rolled to the edge and off, and that she followed it heedlessly. But this is conjecture. She was eleven years old and familiar with the way to school, where she had been five or six years. She was, therefore, capable of exercising some care and prudence. It seems to us that the decision in Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y., 248, and in Wendell v. N. Y. C. & N. R. R. R. Co., 91 id., 420, and the remarks of the court in Bond v. Smith, 113 N. Y., 385; 22 N. Y. State Rep., 666, apply forcibly to this case; and that the plaintiff failed to show that the deceased was free from contributory negligence.

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

Landon and Mayham, JJ., concur.


author: Learned, J.

text:
    Albert T. Brown, Resp’t, v. Sarah Teel et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Real pbopbbty—Action to dbtebmine claims to—Pleading.
    Where an action is brought under Code Civ. Pro., §1688, et seq., to compel the determina ion of a claim, adverse to that of plaintiff, in real property, the complaint must “ set forth facts showing” plaintiffs’ right to the land, and it must also state the facts which go to show that the defendant unjustly claims an estate in the land ; it is not enough to allege that defendant unjustly claims a fee.
    Appeal by defendants Teel and Hunn from a judgment in favor of plaintiff.

      George B. Lawrence, for app’lt, Sarah Teel; Young & Kellogg, for app’lt, Hunn; Lyman H. Northup, for resp’t.
   Learned, J.

This is an appeal by the defendants Teel and Hunn from a judgment against them in a proceeding to compel the determination of claims to real property.

Elisha Brown, now dead, on the 18th of December, 1875, entered into an agreement, under hand and seal, with his son, the plaintiff. By this the plaintiff agreed to support and to take care of Elisha during his life, and in consideration thereof Elisha agreed to give plaintiff the property in question. It was provided that if Elisha should become dissatisfied with his support by the plaintiff he might cancel the agreement, paying plaintiff a certain price for what he had done. Elisha was to have the use and the possession of the property during his life. It was also provided that, should the agreement be carried into effect during the natural life of Elisha, “ then this agreement shall be considered a good and sufficient title to the above described house and lot to the said plaintiff.”

This agreement was left with the' justice of the peace who drew it It was not witnessed or acknowledged. The justice died in 1877. Elisha died in 1878. On August 26, 1878, the administrator of Burbank, the justice, delivered the instrument to plaintiff. He acknowledged it December 17, 1879, and put it on record. Elisha, until his death, lived with the plaintiff. Since Elisha’s death the plaintiff has had the undisturbed possession and enjoyment of the premises. The defendants are children and grandchildren of Elisha, and with the plaintiff are the heirs-at-law.

The complaint alleges that they unjustly claim a fee in the premises. Against several of them judgment was taken by default. Two of them appeared. Mary A. Hunn denies the complaint generally. Sarah A. Teel, among other things, denies •that she has ever claimed any estate in the premises. She however avers that plaintiff took possession of 'all the real and personal property of Elisha, and she asks an accounting.

On the trial the court rendered judgment against all of the defendants, including appellants who had appeared, barring them of all claim and awarding costs against defendants Hunn and Teel. The action was commenced in January, 1889.

In February, 1889, defendant Teel offered to release all claims to the land and to have the action discontinued as to her without costs, but declined to pay costs. A similar offer was made by her in April, 1889. These offers were not accepted by the plaintiff.

On the trial, in order to show that defendants made claim to this property, the plaintiff gave in evidence a letter from him to Mrs. Teel, written in December, 1888, saying that his father left-him a little property, and as he was about to sell it he wanted the heirs to sign off. It did not appear what the reply was. And no such letter was shown to have been received by defendant Hunn.

On this appeal neither of the defendants urge that in equity they have any interest in the premises, nor do they rest upon their legal title. But they say that, never having made any claim to the premises, they have been wrongfully made parties to this-proceeding, and that they have been unjustly required to pay , costs. Therefore they rely on all the objections which may be shown to exist against plaintiff’s action.

This proceeding, like an action of interpleader, is brought by one who has no claim or demand against the defendants. Its object is to compel them to bring to trial claims which they are alleged to have against the plaintiff. Hence it is an important element in the plaintiff’s right to maintain the action that the defendants shall have unjustly claimed an estate in land of the plaintiff. The Code, § 1639, requires the complaint to “ set forth facts showing,” the plaintiff’s right to the land, etc. And showing that the defendant unjustly claimed an estate therein of the character specified in the last section.” The defendants insist that this complaint sets -forth no facts, but merely asserts that the defendants unjustly claim a fee in the premises. 'We think that the defendants are right. The case of Austin v. Goodrich, 49 N. Y., 266, is directly in point. There a demurrer to a similar complaint was sustained because, among other grounds, no facts were stated showing that defendants unjustly claimed title. And it hardly needs argument to show that when a statute requires the com: plaint to state facts showing that defendants unjustly claim a certain estate, it is not a- compliance with the statute simply to allege that the defendants unjustly claim an estate, without alleging any facts showing that.

As, however, the parties in this case went to trial, we ought to examine whether the defect in the complaint was supplied by proof. If it were, we might probably disregard the defect, or allow the complaint to be amended to conform to the proof.

But on examining the case we find no proof whatever that the defendants ever made, before the commencement of the action, ^ any claim to the premises in question. The only evidence tending in that direction is that the plaintiff wrote the letter above mentioned to Mrs. Teel asking the heirs to sign off. The letter does not distinctly state that plaintiff has the title, for he says that he wants the heirs to - sign off, because he is going to sell the land. No evidence was given as to what reply, if any, was made to the letter. And no evidence that the defendant Hunn ever received such a letter. We cannot hold that when one is asked to execute a deed to another of certain land and makes no reply, there is evidence that the party thus asked makes a claim to the land. We do not know of any obligation under which a person lies to execute a deed of land simply because the owner asks it.

It does not appear that these defendants prior to the commencement of the action had disturbed, or threatened to disturb, the plaintiff in possession or had asserted that they had any title.

The learned justice who tried the case found as a fact that the two defendants, Teel and Hunn, unjustly claimed an estate in fee in an undivided portion as heirs at law of Elisha. And that finding seems to be based on the fact that prior to the action plaintiff mailed a letter, as above stated, to defendant Hunn; and that defendant Teel received a similar letter and refused to execute the deed requested. There is no evidence of such refusal; and there is no evidence that defendant Hunn received the letter. We think that the evidence' fails to show that these defendants justly or unjustly made any claim to title to the premises before the commencement of the action.

We do not think it necessary in this view of the case to decide whether the written agreement between plaintiff and Elisha was an executory contract for the conveyance of the premises in case plaintiff should support Elisha; or whether it operated as a deed on the death of Elisha and on proof that plaintiff did thus support him. If the former, then if plaintiff wished to have a legal, and not merely an equitable title he should have brought an action for performance of the contract.

If the latter, then he cannot maintain the present proceeding until the defendants shall have laid claim to some estate in the premises, adverse to his.

Nor need we inquire, in the view we take, whether or not the proof was sufficient to show that the plaintiff had fulfilled his part of the agreement. It is enough for us to say that neither does the complaint aver, nor the proof show, that the defendants claimed an estate in the premises.

The claim which they must have made in order to permit plaintiff to bring this action must have been made before its commencement. We cannot look to the answers of the defendants as an assertion, of such claim, unless the answers admitted that defendants had claimed such an estate. And these answers deny that The plaintiff asked in his complaint for costs of the action and thus the defendants were compelled to litigate.

The judgment as to the defendants Teel and Hunn is reversed and a new trial granted, costs to abide the event.

Landon and Mayham, JJ., concur.


author: Pratt, J.

text:
    Cornelius E. Kene, Resp’t, v. William R. Bergholz, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    .Services—Employment of attorney by president op corporation.
    Plaintiff was employed by defendant, who was the president of a railroad, to commence an action in his name as such president. In an action to recover for services performed under such employment, the evidence was conflicting as to whether defendant acted for the company or individually in employing plaintiff. Reid, that this was a question of fact, and was settled by the verdict of the jury in plaintiff’s favor.
    ■ Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    Action to recover for professional services as attorney.
    Two rival companies, namely, the Yew Rochelle Horse Railway Company and the Yew Rochelle & Pelham Railway Company, were applicants before the trustees of the village of Yew Rochelle for the franchise of constructing and operating a horse railroad in the village. The trustees undertook to grant the franchise to the latter company. The defendant was the president of the former company. He employed the plaintiff as an attorney to begin and prosecute in his name as such president an action against the latter company and the village trustees, to prevent the consummation of the grant of the franchise, and to prevent the latter company from acting under it.
    The plaintiff, under such employment, proceeded, brought the action, obtained and served the injunction. After a time a compromise was effected by which the defendant became the president of the latter company, and the legal proceedings were, by his order, discontinued. The plaintiff’s charges for his services and disbursements were $219.50. Yo question is made but that the bill is very reasonable in amount.
    The defendant disclaimed any personal liability, alleging that he, as president of the railway company, authorized the services to be performed, and that the railway company, and not he individually, was liable for the payment of plaintiff’s bill.
    The testimony was conflicting; plaintiff testifying that defendant requested him to proceed “ on his accountand defendant that he employed plaintiff on behalf of the company, and so informed him, which was denied by plaintiff. It appeared that plaintiff presented a bill to the company, but this was explained by his uncontradicted testimony that he was told by the representative of the opposition company, in the presence of the defendant, to send his bill to the company, which, as a part of the compromise, would pay it. It also appeared that the defendant personally paid the costs of the attorney of the village upon discontinuance of this litigation.
    The jury rendered a verdict for the full amount of plaintiff’s biii.

      J. M. Ferguson, for app’lt; Isaac K Mills, for resp’t.
   Pratt, J.

There is nothing involved in this case but a question of fact which was fairly submitted to the jury and is settled by their verdict.

Judgment affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


author: Barnard, P. J.

text:
    Mary B. Briggs, Ex’rx, Resp’t, v. Amos S. Briggs, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Services—Accounting.
    In an action for an accounting of an alleged partnership between plaintiff’s deceased husband and defendant, it was found that there was no partnership, but that deceased was a clerk, and was to be paid by a share of the net profits, and an accounting from the date of the last settlement was ordered. The final report did not give the date of such settlement, apparently gave deceased credits on his compensation after his death, and for one-third, of the stock, charged plaintiff with a sum less than that admitted on the trial, and failed to show the expenses of running the business. Held, that the report was erroneously made up.
    Appeal from, judgment in favor of plaintiff, entered on the report of a referee.

      E. T. Lovatt, for app’lt; Wm. A. Woodworth, for resp’t.
   Barnard, P. J.

The plaintiff avers the existence of a partnership between her deceased husband and the defendant. The answer denied the partnership. The issues were referred to referee to hear and determine. The referee made a separate report that the deceased was not a partner, but a cleric only, who was to be paid one-third of the profits for his services. The referee ordered a judgment in favor of defendant against the plaintiff for disbursements, and that the plaintiff was entitled ah accounting, and that it be referred to him to take and state the accounts.

Properly, the court should have directed this judgment, but no one objected, and the result was one which was designed by the order of reference. The plaintiff was the only one hurt by the separate report, and she does not appeal. The referee found in favor of the plaintiff for $753.97. The defendant appeals. The report is based upon the previous report, but it goes beyond it. By the first report, the right to an accounting was only to be ordered from the date of the last settlement When this last settlement was is not stated either in the interlocutory or final report, and, therefore, no proper decision can be reached on appeal. There is no basis on which to apply the evidence. The report is very general. It may begin in February, 1884, and apparently continue to December 1, 1885, nearly three months after the death, of the plaintiff’s testator. The report seems to give the deceased compensation for his services even after December 1, 1885, as the report contains a credit for bills collected after that time. The report is erroneously made up if the deceased was not a partner. The stock in such a case belonged to the defendant, and should not have been considered in the account. The referee includes the amount in the assets, and gives one-third of it to the plaintiff. The sum charged against the plaintiff by the referee of $705.56 appears to have been much smaller than the true account as admitted on the trial, $2,893.59.

The evidence of the agreement was that the plaintiff’s third was to be one-third of net profits. The report fails to show what the expenses of running the business was during the periods he has selected as the periods for the accounting. The plaintiff’s appeal is from the interlocutory judgment and there is no evidence returned on which that was based.

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

Dykman and Pratt, JJ., concur.


author: Dykman, J.

text:
    Lewis H Carpenter et al., Resp’ts and App’lts, v. Coles A. Carpenter et al., App’lts and Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Fraud—Wrongs committed by persons sustaining trust relations.
    The ancestor of the parties hereto died, leaving real estate which he devised, after a life estate, to them. Some of the property was mortgaged, and one of the executors, who was an uncle of the plaintiffs, procured the mortgages to he foreclosed although there was sufficient money of the estate to pay them, and on the sale they were bought in hy one of the defendants, who conveyed undivided interests therein to the other defendants. The executor also brought an action to partition the remaining real estate, purchased it on the sale at an inadequate price and conveyed undivided inter,-sts to the other defendants. The plaintiffs, who were infant children of deceased brothers of the defendants, were thus deprived of their shares in such estate. Held, that the facts showed that a great fraud and wrong was perpetrated on plaintiffs by defendants, who sust- ined a trust relation towards them, and that defendants were liable as trustees to plaintiffs for their shares in said property.
    Cross appeals from judgment of special term.
    One James S. Carpenter died seized of three pieces of real estate, two of which were encumbered by mortgage, which he devised to his wife for life, and at her death to the parties hereto. The plaintiffs, are the children of a deceased son of said James S. Carpenter, and the widow and children of a son who died a short time after his death. The defendants are the remaining children of said James S. Carpenter, two of whom are the executors of his will.
    About four months after the death of James S. Carpenter, one of the eiecutors, Coles A. Carpenter, induced the mortgagee to foreclose his mortgage on the “ Homestead Farm” and the same was purchased on the sale by the defendant Sarah Jane Osborn .for $5,100, and she thereupon executed deeds giving a life estate to her mother and five-sixths of the property to her brothers and sisters, the defendants, in equal, undivided parts.
    The executor also induced the other mortgagee to foreclose her mortgage on the “ Downing Farm,” and the same was bought in by Mrs. Osborn for the amount of the mortgage, for which she gave a new mortgage to the mortgagee, and immediately executed a deed similar to that previously executed in relation to the other farm. The defendants who were executors then commenced an action to partition the remaining property, known as the “ Dock Property,” and on the sale the same was purchased by Coles A Carpenter for $800, and he immediately executed a deed to his brothers and sisters of an equal, undivided five-sixths thereof.

      The real property of testator was worth, at his death about $80,000,and was only encumbered by the two mortgages, amounting to $9,000, and his personal estate was $78,000. At the time of the sales the Homestead farm was worth from $25,000 to $30,000; the Downing farm about $48,000, and the Dock property about $5,000.
    The court below found that defendants conspired together to deprive plaintiffs of their interests or shares in all the real estate, except the Dock property, and that they held one-fourth of said property as trustees for plaintiffs, and should, when requested, transfer and convey the same to plaintiffs on payment of their share of the amount due on the mortgages, with interest, and that defendants are trustees of plaintiffs as to one-fourth of all the net rents, profits and income derived from all said real property sold under foreclosure, and should account for and pay over the sama
    Plaintiffs appeal from so much Of the judgment as dismisses their complaint as to the dock property, and the defendants from the balance of the judgment.

      Oscar Frisbie, for pl’ffs; Benjamin W. Downing (Josiah T. Marean, of counsel), for def’ts.
   Dykman, J.

The record. placed before us on this appeal discloses the perpetration of a great fraud and wrong upon the plaintiffs by the defendants, who sustained towards them a trust relation and who were under legal obligations to protect their interests and preserve their property.

Instead of performing the duty thus resting upon them, the evidence discloses a course of conduct which could have been dictated by no proper motives, and which resulted in the complete exclusion of these plaintiffs from all interest in their father’s large estate.

Instead of paying off the mortgages upon the Downing farm and the homestead, they procured their foreclosure and controlled the sales under them and the subsequent" disposition of the title by the nominal 'purchaser at such sales. The evidence before us leads inevitably to that conclusion and the findings of the trial judge upon those questions are all amply sustained by the evidence.

We concur with the trial judge fully in his conclusion respecting the foreclosure of the mortgages and the sales under the judgments, but we think the proceedings in relation to the partition and sale of the dock property fall under the same condemnation.

The same fraudulent design is visible and runs through the ‘whole transaction.

The defendants entered into a fraudulent conspiracy against these plaintiffs to deprive them of their interest in their father’s estate, and to benefit themselves by the scheme.

The judgment in favor of the plaintiffs should be affirmed, with costs, and the judgment dismissing the plaintiffs’ complaint in relation to the dock property should be reversed and a new trial granted, with costs to abide the event.

Pratt, J., concurs; Barnard, P. J., for affirmance as to both parcels.


author: Dykman, K.

text:
    Thomas J. Clute, App’lt, v. The Emigrant Industrial Savings Bank, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Restitution—Foreclosure—Subrogation.
    In 1867 certain premises were purchased by plaintiff’s wife, since deceased, on sale on an execution against-one Thomas Hall. One Thomas A. Hall had previously owned the property and had conveyed it subject to a mortgage given by him for the purchase price and which the grantee paid with the proceeds of a new mortgage, which was paid by a subsequent grantee, C.,with the proceeds of a mortgage given by him to defendant in 1871. The judgment on which the execution was issued was not discovered by or known to the several grantees or mortgagees. In an-action by defendant to foreclose its mortgage the property was sold, but the judgment was afterwards reversed, and on a new trial the court hold that this defendant was entitled to be subrogated to the rights of the first mortgagee, and the same should be revived and declared a lien superior to the rights: of plaintiff’s wife, and the land was again sold. In an action for restitution, Held, that the title of plaintiff and his wife being at all times subordinate to the lien of defendant’s mortgage, he could not maintain the. action.
    Appeal from judgment of the special term, dismissing the complaint upon the merits with costs, and $250 extra allowance, entered on the 14th day of April, 1890.
    The action is brought to recover restitution from the defendant for having sold the plaintiff’s property upon a judgment in foreclosure of a certain mortgage, subsequently set aside, and the judgment reversed as against plaintiff’s remote grantor, executed by Marks Cottrell and wife, on the 80th day of January, 1871, to. the defendant.
    Plaintiff seeks to recover as grantee and successor in interest of his deceased wife, Isabella B. Clute, who claimed title to the premises, under a deed from the sheriff and by virtue of a sale on execution on a judgment against one Thomas Hall entered February 4,1865.
    Tilomas Hall acquired title to the premises on the 20th day of November, 1863, by the name of Thomas A. Hall, and under the latter name, and on the same day, and previous to the entry of said judgment, executed a mortgage thereon to Moses Chamberlain, his grantor, for the sum of 6,000, to secure the payment, of that much of the purchase money thereof. On the 19th of. June, 1886, Hall conveyed the premises to Jane B. Hyde, subject, to said mortgage, which was in fact assumed by her as part of the purchase price. Jane B. Hyde paid off and discharged said mortgage on August 18th, 1886, using and applying for such purpose, in part, $5,500, obtained by her giving a mortgage on the premises for that amount.
    On the 22d day of August, 1866, Jane B. Hyde conveyed the < premises to Samuel Hyde, and after several intermediate conveyances the same were conveyed, on the 14th day of September,. 1867, to Marks Cottrell, subject to said Hyde mortgage and which he assumed to pay as part of the purchase money thereof. On. the 31st of January, 1871, Marks Cottrell paid off the Hydemortgage of $5,500, using and applying for that purpose $6,000 obtained by him of the Emigrant Industrial Savings Bank, defendant and respondent herein, and to secure which he and his wife executed to the said bank the mortgage for that amount set forth and described in the pleadings and judgment in this action.
    The searches made for the several grantees and mortgagees did not show the judgment against Thomas Hall, nor did they or defendant have actual knowledge thereof.
    At the time of the purchase by plaintiffs wife, Marks Cottrell was seized of and in possession of the land.
    In June, 1881, this defendant brought an action to foreclose its mortgage, to which plaintiff’s wife was made a party, and a judgment recovered. On appeal said judgment was reversed by the general,term and a new trial granted, that court, however, holding that defendant was equitably entitled to priority in the collection of its mortgage over any title of Isabella B. Clute.
    In October, 1884, said action came on for trial a second time at a special term of this court in the city of New York, and a judgment was had and entered therein, upon the same facts, to the effect that said mortgage of $6,000 of Marks Cottrell and wife to the defendant was good and valid for the amount thereof; that defendant be subrogated to the extent of such amount to the rights of Moses Chamberlain under said mortgage of Thomas A. Hall and wife to him; that the satisfaction piece thereof be can-celled, and that the same be revived and restored and declared to be a subsisting lien on said premises, prior and superior to any right, title or interest therein of said Isabella B. Clute, under or*' by virtue of said sheriff’s deed to her, or said judgment, execution and sale thereunder; that said Hall mortgage be foreclosed and said premises sold thereunder under the direction of Benjamin W. Pranklin, referee, in the usual way, and that this defendant should be paid the amount due on said Cottrell mortgage, which judgment was duly entered, and was affirmed by the general term and court of appeals.
    The premises were sold under the first judgment in December, 1882, to Richard Mahon, who went into possession, and they were again sold under the second judgment, in 1885, to Timothy Donovan, who assigned his bid to defendant, and the latter quit claimed to Mahon. •

      T. J. Clute, for app’lt; Bartholomew Skaats, for resp’t.
   Dykman, K.

There never was any merit in the plaintiff’s action, and that destitution of merit extends to this appeal.

The decision of the court of appeals in the cases of Clute v. Emmerich, 99 N. Y., 342, and The Emigrant Industrial Savings Bank v. Thomas J. Clute, 114 N. Y., 634; 24 N. Y. State Rep., 509, controls all the questions involved in this action.

The title of the plaintiff and his wife being at all times subordinate to the lien of the mortgage from Cottrell to the defendant, they can have no remedy in hostility thereto.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Ann Francis M. D. Darling, Pl’ff., v. Isabelle Townsend Littlejohn, Def't.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Judgment—Lien—Limitation.
    To save the lien of a judgment against bona fide purchasers and incumbrancers,not only must execution issue, hut the sale must take place within 1he ten years, unless restained. The mere levy of execution will not extend the lien beyond the ten years.
    Submission of controversy without action.
    On the 26th day of June, 1880, Samuel B. Parsons, together with the other owners of the lands in question, joined in the execution of a full covenant warranty deed of a gore of land about two feet wide at one end, and running nearly to a point at the other,, and about 180 feet in length, “ on the northerly side of Washington street, in the village of Flushing, between Bowne avenue and. Union street, bounded southerly by Washington street; westerly by land of James Valentine; northerly by land of Joseph F. Darling,” the party of the second part thereto, “ and easterly by land of Charles, B. Peet, being described on the Village Assessment Map as Block 152, Lot 14.” This-deed was recorded on the 29th day of July, 1880, in Queens county clerk’s office in liber 563 of deeds, at page 197.
    Joseph F. Darling, the grantee in said deed, died seized of the-said premises, having previously made his will, which has been ■'duly admitted to probate by the surrogate of Queens county,, wherein he devised the premises in question to this plaintiff, and named her as sole executrix thereof, and her accounts as suck executrix have been duly judicially settled before said surrogate.
    This plaintiff entered into an agreement with the defendant whereby she agreed to sell to her the above described lands, and a large tract adjoining the same on the north, which is accessible from the street only across the above described premises, for the aggregate sum of $4,500, and has offered to comply with that agreement by the delivery of a full covenant warranty deed for the premises covered by said agreement; but the defendant has-refused to accept the conveyance, claiming that the title is defective by reason of the following facts, and demands to be released' from her contract of purchase: On the 11th day of April, 1878, John Higgins and Alonzo Grarretson obtained a judgment in the supreme court in Queens county against Samuel B.. Parsons for $1,674.16, which judgment was docketed April 11, 1878, in Queens county, New York.
    At the date of docketing said judgment the said Samuel B. Parsons was the owner of one undivided twelfth part of the tract of land above described.
    On the 10th day of April, 1888, execution was issued on said judgment to the sheriff of Queens county two days before the lien of said judgment upon the interest of the said Samuel B. Parsons in said land expired by statutory limitation.
    On the 24th day of July, 1888, the said sheriff claims to have sold the interest of the said Samuel B. Parsons in said premises by virtue of said execution, and issued to Mary Higgins his certificate of such sale, and after the expiration of fifteen months from the day of said sale issued to her his deed, which are now matters of record in the Queens county clerk’s office. A printed copy of the sheriff’s notice of sale was affixed to the record of notices of mortgage sales by advertisement in the office of the clerk of Queens county oh the 9th day of June, 1888. Ho Us pendens or other notice of claim under said judgment was filed or recorded in said clerk’s office between the date of docketing said judgment and the recording of the sheriff’s certificate of sale made on the 24th day of July, 1888.
    The plaintiff claims that as the lien of the said judgment had expired by statutory limitation before the sale thereunder by the sheriff, said sale did not affect her title to the premises in question, and demands judgment requiring the defendant to complete her purchase and for a specific performance of said contract of purchase by the defendant.
   Pratt, J.

This is a submission of controversy, and the only question really involved is, whether the lien of a judgment can be extended for more than ten years by the levy of an execution within the ten years from docketing the judgment as against a purchaser for value.

To save the lien as against bona fide purchasers and incumbrancers, not only must execution issue, but the sale must take place within the ten years, unless restrained by injunction or writ of error. Little v. Harvey, 9 Wend., 157; Roe v. Swart, 5 Cowen, 294; Tufts, admr., v. Tufts, 18 Wend., 621; Scott v. Howard, 3 Barb., 319.

In this case the judgment was docketed April 11, 1878, execution issued on the 10th of April, 1888, and the sale made on July 24, 1888. Ho Us pendens or other notice of claim under the judgment was filed or recorded in the county clerk’s office between the date of docketing said judgment and the recording of the sheriff’s notice of sale on the 24th of July, 1888, except the sheriff’s notice of sale was affixed to the record of mortgage sales by advertisement on the 9th of June, 1888.

The property was sold by the judgment debtor on the 26th of June, 1880, to a bona fide purchaser for value, who afterwards died. The premises were devised to the plaintiff, who entered into an agreement to sell the property to the defendant herein, who objects to the title on the ground that the said sale on execution is a cloud upon the title.

The plaintiff claims that the lien of said judgment had expired by statutory limitation before the sale thereunder by the sheriff, and, therefore, the sale did not affect the title.

We think the contention of the plaintiff is right, and the defendant must, therefore, perform her contract for the purchase of the property.

Barnard, P. J., and Dykman, J., concur.


text:
    Milton F. Adams, Resp’t, v. The Lamson Consolidated Store Service Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    False impbisonment—Pleading—Cobpobation.
    In an action to recover damages for the false imprisonment of plaintiff, caused by defendant in Massachusetts, the complaint did not distinctly allege that the defendant was a corporation, nor did it state where plaintiff resides now. . On demurrer, under Code Civ. Pjo., § 1775, Held, that the complaint was good; that the allegation that defendant was a corporation was not a part of the cause of action and, if inserted, would have related only to the character and capacity of defendant.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      Wilmer & Canfield (George F. Canfield, of counsel), for app’lts; Chase & Delehanty (Norton Chase, of counsel), for resp’t.
   Learned, P. J.

This is an appeal from an interlocutory judgment overruling demurrer to plaintiff’s complaint.

The action is brought to recover damages for false imprisonment of .the plaintiff, caused by defendant in the state of Massachusetts. The complaint contains no distinct averment that the defendant is a corporation, nor does it contain any averment as to plaintiff’s present residence.

The grounds of demurrer are stated to be;

First. That the complaint does not state facts sufficient to constitute a cause of action.

Second. That it does not state facts sufficient to show that the court has jurisdiction of the defendant or of the subject of the action.

The demurrer is based on § 1775 of the Code, which states what must be averred in the complaint in an action by or against a corporation. But the difficulty is that the defendant requires us to assume that it is a corporation. Now, although we may naturally suppose from the name of the. defendant that it probably is a corporation, still there is no allegation to that effect in the complaint. The defendant may be a partnership or a joint stock association. True, if that were the case the plaintiff’s action.might have been improperly brought But that is not the question here. All we have to decide is whether the complaint is demurrable.

In Fox v. The Erie Preserving Co., 93 N. Y., 54, an action had been commenced in justice court, and in the complaint in that court there was no allegation that defendant was a corporation. The cause was removed to the supreme court after plea of title. And in the complaint in that court an allegation was inserted that defendant was a corporation. A motion was made to strike this allegation "out under § 2957. The court of appeals held it ought not to be stricken out, saying : “ The allegation that the defendant is a corporation is no part of the cause of action, but simply relates to the 'character and capacity of the defendant.” If this be correct, demurrer could not be sustained in this present case on the ground that the complaint does not state facts sufficient to constitute a cause of action. For if the allegation that the defendant is a corporation is no part of the cause of action, then the absence of that allegation cannot be ground of a demurrer for insufficiency. In harmony with this is a dictum in American Baptist Home Mission Society et al. v. Foote, 52 Hun, 307; 23 N. Y. State Rep., 462, and the decision in Irving National Bank v. Corbett, 10 Abb. N. C., 85. In Hafner & Schoen Furniture Company v. Grumme, 10 Civ. Pro., 176, the complaint alleged that plaintiff was a corporation, but did not allege whether it was foreign or domestic. The court held the complaint good on demurrer ; referring to the rule as being the same under the former Code. Phœnix Bank v. Donnell, 40 N. Y., 410. See, also, Rothchild et al. v. Grand Trunk Railway Co. of Canada, 30 N. Y. State Rep., 642, and 10 N. Y. Supp., 36.

We have not overlooked the decision cited by the defendant holding a different rule. It is not necessary to cite or comment on them.

As to the point of the demurrer that the court has not jurisdiction of the subject or of the person of the defendant, we do not see that this appears by the complaint.

Facts may perhaps appear on the trial which will show a want of jurisdiction.

We understand that the defendant relies on § 1780 of the Code.

It may be also that the defendant under § 546 may require the complaint to state the corporate existence of defendant (if defendant be a corporation) more fully. We have, however, only to pass on the question of the demurrer.

Judgment affirmed, with costs, with leave to defendant in twenty days after notice of judgment, on payment of costs below and of this court, to withdraw demurrer and answer over.

Landon and Mayham, JJ., concur.


author: Learned, P J.

text:
    Oliver B. Whitney, Resp’t, v. Lawrence E. Wardell, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Partnership—Evidence.
    Where the question whether defendant was a member of a firm was sharply contested, Skid, that it was error to allow plaintiff’s witness to testify that one of the firm had stated to the witness that defendant was his partner, the defendant not being present at the time of such statement.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion to set aside the verdict, and for a new trial.
    ' John Rush (A. T. Clearwater, of counsel), for app’lt; Fldorus Dayton (A. H. Van Burén, of counsel), for resp’t.
   Learned, P J.

This is an action to recover against defendant, as surviving partner of the firm of W. J. Caywood & Co., on a promissory note of $200 made by said firm. The action was commenced in a justice’s court, and after judgment there an appeal was taken to the county court, where it was re-tried. A judgment was recovered for the plaintiff, and from that judgment, and from an order denying a new trial, the defendant appeals.

The only question was whether the defendant was a member of that firm. There was evidence to go to the jury on that point; and though the evidence was conflicting the court properly refused, so far as we see, a new trial on the ground that the verdict was against the evidence. It was, however, a closely contested question of fact, and the defendant was entitled to have no other evidence admitted than such as legitimately bore on the issue.

The plaintiff asked one of his witnesses, Allerton: Did you ever hear Walter J. Caywood say anything about Wardell’s having an interest in the firm?” The defendant objected, on -the ground that the statement was not binding on him unless made in his presence. The objection was overruled and defendant excepted. The witness answered: “ I had no conversation, except to ask him who was his partner, and he said Lawrence B. Wardell.”

This statement was no evidence against the defendant. There was a sharp conflict between plaintiff’s evidence of defendant’s admission that he was a partner and defendant’s denial of such admission. Hence, it was most important that no hearsay or inadmissible evidence should be received. We do not see how that statement of Cay wood’s out of court and not in Wardell's presence could be evidence against Wardell.

Some other questions are raised on the appeal, which need not be discussed here.

But in a case where this question of fact was so sharply contested this improper evidence may have done harm to the defendant. A jury might very naturally think that Caywood’s statement that Wardell was his partner would bind the firm like the act of a partner, and that hence Wardell was by the weight of evidence shown to have been a partner.

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

Landon and Mayham, JJ., concur.


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    Sarah L. Woodward, App’lt, v. John M. Felts, Sheriff, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Conversion—Ownership oe personal property.
    The plaintiff testified that at the time a span of horses were bought by her husband, she loaned him $140.00; that this team was exchanged for another more valuable, and the difference in value was paid by him ; that he then said the second team was hers ; that she considered him still her debtor for the loan; also, that she'did not claim title to the horses through or under him. Held, that Hiere was no question for the jury as to plaintiff’s ownership; that it was inconsistent in her to claim that the husband was her agent in the purchase and also her debtor for the money loaned him to make the purchase.

      Appeal by plaintiff from a judgment dismissing the complaint

      Hawver & Cochrane (A. V. S. Cochrane, of counsel), for app’lt; Carrington & Emerson, for resp’t.
   Learned, P. J.

The defendant under execution against Perry Woodward, plaintiff’s husband, sold a mare February 21, 1889. The plaintiff claims that the mare was hers and sues to recover its value. She was nonsuited at her trial and appeals. The question is whether there was evidence of her ownership which should have been submitted to the jury.

She says her husband kept a store in 1885. That she furnished most of the money and considered that they were owners in common; and, as she afterwards states the matter, that she loaned him the money. The theory of a loan seems to be finally relied on. She says that she loaned him $150 to buy a span of horses, and then loaned him $140 more. She says that she considered him her debtor.

Her husband bought a horse of Myers and traded that horse with one Mink for a team, paying the balance in cash.

The mare in suit was obtained by trading the old team with Johnson, and getting a new team, of which the mare was one. Her husband paid something to boot. When Johnson came and left the team, plaintiff was present, and her husband said he wanted her to understand that this was now her team. She said she wanted it understood that this was her team.

She testifies that she never got title to the mare from her husband ; that she does not claim that her husband transferred it to her; that the only claim of title she has rests on the transaction above stated.

The plaintiff further testifies that, when the first team was bought, she advanced $140 and the difference between $140 and $225 was paid by her husband; that he said it was her team.

She further testifies that her husband owned the horse he got from Myers; that she loaned him at different times $150 in all, without any reference to her purchase of the horse; that when he got the team at the time she let him have $140, he continued to use it in his business.

It is plain from her testimony that she never owned the horse bought of Myers. The loan to her husband of $150 was made without any reference to that horse.

Subsequently she states that she loaned him the $140. If this be true, then he was not her agent in the purchase of the Link team. For in that case the money was his, and the purchase was not made as her agent

At the close of the case the plaintiff asl^ed to go to the jury on the question whether the husband was not acting as her agent in the purchase of the first team and in subsequent transactions. Bat there seems to be no evidence of such agency. She says she told her husband that he could have the money, $140, if she could have the team. But if he were her agent then she would have been the purchaser without such arrangement. And her testimony that there was such conversation contradicts the position that her husband was her agent.

Taking her testimony most favorably for her, it seems that before borrowing and before purchasing the Link team her husband promised verbally that the team should be hers. Then he bought and continued in possession.

Afterwards her husband traded the Link team with Johnson for another team ; and paid about -$45. The plaintiff says that when the team was delivered she told Johnson the team was hers.

This statement of course gave her no title. She says her husband told her it was her team. But it remained in her husband’s possession and use. Her husband remains indebted to her for the borrowed money, for she continually asserts that she loaned him the money. She states further that she does not claim that her husband ever transferred to her the horse in question. She does not claim it as security for the loans. And as she does not claim in her testimony that she paid Johnson for the team or that she bought the team of him, she fails to show any title. She cannot hold the inconsistent positions of having lent money to her husband and of thereby being the owner of the property taken by him in exchange for other .property partly paid for by such borrowed money.

While undoubtedly there may be dealings between husband and wife ; lending of money by her to him; purchases by him as her agent; possession by him of property belonging to her and the like; yet such transactions, for the protection of his creditors, should be clear and distinct in their character.

We think the judgment should be affirmed, with costs.

Mayham, J., concurs.


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    Eva M. Loop, Resp’t, v. James M. Northrup et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    Executors and administrators—Bond—Surety not liable for fine „ IMPOSED FOR CONTEMPT IN FAILING TO ACCOUNT.
    In an action.npon an administrator’s bond it appeared that no proof had been made in the surrogate’s court that any thing was due the respondent, one of the next of kin of the intestate, no accounting of the administrator had been had there and no decree of any kind against him had been made. All that had been done was that a special surrogate had by order fined the administrator for a contempt of court in refusing to account. Held, that there could be no recovery on the bond.
    Appeal by defendants from a judgment for plaintiff upon a verdict directed by the court. The respondent was a daughter of the intestate, Lydia M. Kilburn. The defendants are the sureties upon the bond of Almond S. Kilburn, her administrator; the penalty of the bond was $200, and the recovery was for the whole amount.

      L. Fraser, for app’lts; S. W. Russell, for resp’t.
   Learned, P. J.

This is an appeal from a judgment on verdict directed by the court. The action is against the sureties on an administrator’s bond; and the recovery is for the full penalty of the bond.

The plaintiff filed, a petition in the surrogate’s court for an accounting; and a citation was issued returnable May 1, 1888. No record appeal’s of that day, and it would seem that there was no appearance of any party. But in pursuance of a letter of the administrator the surrogate adjourned the matter to the 7th. On the 7th it was adjourned to the 6th of June, and was ordered to be continued before the special surrogate by reason of the incompetency of the surrogate. No record of the 6th of June appears; but in an order of June 27th it was recited that the parties appeared and adjourned to that day. On the 27th of June the administrator did not appear. The special surrogate made an order that the administrator show cause on the 25 th of July why he should not be punished for contempt, and ordered that such order might be served personally in the state of Vermont, where the administrator resided. An affidavit taken before a judge of probate in Vermont of the service in Vermont of this order was produced before the special surrogate.

This affidavit appears not to be valid. Code Civ. Pro., § 844; Laws 1848, chap. 195, § 2, as amended 1867.

On the 25th of July an order was made by the special surrogate, reciting these several proceedings, and the service of the last order in Vermont, and adjudging that the administrator had been guilty of contempt of court in disobeying its orders; ordering him to pay to the petitioner for her damages, costs and expenses, by reason of the contempt, $250, in not having faithfully discharged his trust, and not having obeyed the decree of the surrogate. And it was ordered that said sum be an allowance by way of damages, etc., to the petitioner, “enforceable in any court having jurisdiction,” and that an attachment issue.

On the 27th of March, 1889, on a petition of the plaintiff the special surrogate authorized the plaintiff to sue the bond.

It may be doubted whether proceedings to punish for contempt can be commenced by service of\ m order in another state. And it has been already pointed out that the proof of such service appears to be insufficient under the statutes.

There was also a question made .whether there was in fact any appearance of the administrator before the special surrogate, which appearance the defendants denied. But the court did not permit this question to go to the jury.

There are, however, other questions of more importance and therefore we pass those above suggested.

The plaintiff on the trial rested solely on the orders above set forth. She gave no evidence (other than those) that there was anything owing to her from the administrator. The defendants offered in evidence a receipt in full signed by her for her share in the estate. But the court excluded this, on the ground that it was a collateral attack on the decision of the surrogate. It seems to us that there are veyy plain reasons why' the plaintiff cannot recover in this action. Hood v. Hood, 85 N. Y., 561, after a careful examination of the subject, it was held that, before any action could be maintained against the sureties, there must be a decree against the executor, a refusal or neglect to perform it, or an execution returned unsatisfied. This rule was again recognized in Haight v. Brisbin, 100 N. Y., 219. Again in Perkins v. Stimmel, 114 N. Y., 359; 23 N. Y. State Rep., 657, the same rule was applied to an action on a bond of a general guardian.

There is nothing in § 45, 2 E. S., 91, which conflicts with this rule. That section authorizes the surrogate to direct a suit on the. bond for the payment of legacies if there be assets ; if there be not sufficient assets then an abatement is to be made. Now, this contemplates that the surrogate shall, by an accounting, ascertain whether there are assets, and whether the assets are sufficient, before he shall direct the payment of the legacies. It necessarily implies a decision of the surrogaté on those points and a direction to pay. It would be contrary to all sound principle that the surrogate should direct a suit on the bond to recover a legacy without first finding out and deciding whether there were assets applicable thereto. Hence, under this section, as under all those referred to in the cases above cited, there must be a determination by the surrogate before an action against the sureties will lie.

This is apparent for another reason. The bond is security for all persons interested in the estate. It is not the right of oné legatee alone to have the whole benefit. It may be urged that the proceedings before the special surrogate was an accounting and determination of the amount owing to the plaintiff. But this is not correct. The proceeding by the plaintiff was for an accounting; but the administrator did not appear at the time to which the matter was adjourned, and the special surrogate did not revoke the letters or issue an attachment, Code Civ. Pro., § 2727, nor did he proceed to take the account and hear the allegations and proof of the parties, § 2730, but he instituted a proceeding to punish the administrator for not appearing. For this the administrator was adjudged in contempt. Now, by § 2284, if an actual loss or injury has been produced to a party, then in certain cases a fine may be imposed sufficient to indemnify. Where it is not shown that such actual loss or injury has been produced, then there may be a fine of $250 and costs' and expenses.

There, is nothing in the order indicating that any actual loss or injury to the plaintiff was shown, and there is no determination by the special surrogate of any amount of such loss or injury, Swenarton v. Shupe, 40 Hun, 41; Clark v. Bininger, 75 N. Y., 352, and it does not appear, as it did in the last cited case, that any proof of actual loss or injury was given.

. That there was really no accounting or determination of the amount owing appears from the order itself, which continues the matter until the administrator shall be personally brought into court. The imposition of the fine, therefore, was like the fining of a witness for non-attendance; it did not in any way dispose of the issues in the case.

It is not necessary to question the validity of the order of the special surrogate, because the fine imposed, $250, was within the limit which, may be imposed where no actual loss or injury has been produced to any party; and, therefore, we have no reason to conclude from the order or from any of the proceedings that the special surrogate decided that the administrator was owing this plaintiff any sum of money. The special surrogate fined the administrator, for his failure to appear and account, a sum not exceeding $250. He even made this sum include the costs and expenses which might have been added. This the special surrogate could do, assuming that the proceedings were regular, without any proof that the plaintiff was a legatee, or that the administrator had any assets in his hands, or that the administrator owed her anything. If the special surrogate had gone further than this, and had imposed a fine sufficient to indemnify the plaintiffs, he would have been obliged to take proof and ascertain what her loss and injury were, it she had suffered any.

Certainly, she had suffered no loss, unless she were a legatee whose legacy had not been paid, and unless the administrator had assets in his hands applicable to her legacy.

In the court below, this order of the special surrogate was treated as an adjudication that the administrator had assets in his hands out of which he ought to pay the plaintiff $200. Unless that was so adjudicated, no right to recover was shown, because no proof of any claim of the plaintiff was made except by the production of the orders of the special surrogate. How, it is plain that nothing of that kind was adjudicated. The order shows no evidence upon that point and is entirely silent in respect thereto. The special surrogate vindicated the dignity of his court by fining the administrator for not obeying its order, and that was all. And it is noticeable that even the petition of the plaintiff, which was the beginning of all the proceedings in the special surrogate’s court, does not aver that there is any sum of money owing to her from the administrator.

It is not disputed that if on a proper proceeding the special surrogate had adjudged that the administrator owed the plaintiff a certain sum, such adjudication would have bound the sureties. But the difficulty is that he has done no such thing. He has fined the administrator for contempt, as he might have fined him for abusive conduct in the court room. And such a fine would not have been an order of the court,, touching the administration of the estate,” for which these defendants would be liable.

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

Mayham, J., concurs in result.


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    Katie Cook, Adm’rx, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed February 4, 1891.)

    ¡Railro ads— Negligence.
    At St. Joknsville the New York Central and the West Shore railroad tracks are on opposite sides of 1he Mohawk river and distant about an eighth of a mile. The accident in question happened on the West Shore road, which runs east and west, and has two tracks, the north track being for west hound trains. The deceased was approaching from a highway which comes in from the southwest at an obtuse angle, and was struck by a west bound train running at a high speed. He was driving very slowly. There were points at which he could have seen the train at a considerable distance, but the train was not near enough for him to see it when at those points. His general view as he got within 200 feet of the tracks' and from there on was much obstructed. It was difficult to tell by sound alone whether an approaching train was upon the New York Central or upon the West Shore. There was evidence that the statutory signals were not given at all, and it was certain that they were not given at eighty rods distance. Held, that it was a proper ‘case for a jury, and that a verdict for plaintiff Would not be disturbed.
    Appeal from a judgment in favor of plaintiff entered on verdict, and from an order denying a new trial. t

      Ashbel Green (J. D, Wendell, of counsel), for app’lt; George S. Klock, for resp’t
   Learned, P. J.

This is an appeal by the defendant from a judgment entered on a verdict in favor of plaintiff and from an order denying a new trial. The action was brought to recover damages for the killing of plaintiff’s intestate and husband as he was crossing the track of defendant on what is called Cox’ highway. The deceased was driving a horse and wagon northerly along this highway and was struck by the engine of a freight train going westerly on the north' track of the West Shore Railroad. The plaintiff claims that the train was running about thirty-five miles an hour; that the whistle was not blown or the bell rung at the proper distance; and that there were obstructions which hid the train from the deceased. The defendant insists that the whistle was blown and the bell rung and that the deceased might have seen the train if he had looked.

The case was submitted to the jury with great accuracy and clearness. A single exception was taken which was not urged in the appeal, and the requests of defendant were charged by the court. The questions here presented are those which are continually brought up .in such cases; whether the plaintiff should not have been nonsuited and whether the verdict should not be set aside as against the evidence.

The rules of law applicable are well settled and have been repeated hundreds of times, to the great waste of printer’s ink. And the only point to be decided in such a case as the present is whether the evidence justified the jury in their finding. A full discussion of that seems almost to require á statement at length of the whole of the testimony.

Courts have been so much disposed to assume that juries are prejudiced against, corporations in such actions as the present, that they have often taken it on themselves to determine whether the fact of negligence of each of the parties was shown by the circumstances.

The Cox highway approaches the crossing from the southwest at an obtuse angle; for several hundred feet descending at ten feet in 100; and within about nine feet of the south track substantially level. The Sanders’ road comes from the east and enters the Cox highway south of and close to the railroad crossing. A short distance to the east of the crossing and between the tracks and the Sanders’ road is the passenger station. Farther east are the tool house and shed.

About 550 feet east of the crossing the tracks begin to curve southward; at 637 feet they curve more rapidly and about 987 feet are out of sight. There was a lumber pile in the angle formed by the Cox highway and the Sanders’ road, which came up to the Cox highway. On the east side of the highway there was a bluff or ridge of hills, which had been cut away for the railroad. The appearance and situation are better understood from the photograph used on the trial than from mere description. There is a watering trough on the west side, of the Cox highway, often mentioned in the case, and opposite it on the east side five barns and buildings of Mr. Place. There was a vacant lot overgrown lying east of the depot.

To understand the relative positions of the train and of the wagon of the deceased we must notice that the testimony shows that the train was running some 30 miles per hour and the deceased was driving on a slow trot which a witness called two miles per hour. It was probably rather more, as the road was descending. Assuming that the whistle was blown when the train was on the curve, this would be at a place about 900 feet, east of the crossing, and therefore one-third of a minute before the accident. The deceased at that time would have been from sixty to ninety feet away from the crossing. Deceased would have been at the watering trough about a minute or a minute .and a quarter before he was struck. The train was then about from 2640 to 3300 feet from the crossing; some 3000 feet beyond the point where it was out of sight. It is very important to keep these relative positions in mind. For although there were places on the Cox road between the trough and the crossing where the track eastward could be seen, as witnesses testify ; yet, it will be found that owing to the slow movement of deceased and the rapid approach of the train, the train may have never been actually in sight of the deceased until just before the accident. Thus the defendant urges that a person at the watering trough could see a train as it rounded the curve. But when deceased was at the watering trough the train had not yet rounded the curve, but was far east of that place. And as the deceased drove along he passed over that part of the Cox highway from which the track was visible and came to a part where the view was obstructed. Unless we keep the movement of both parties in mind we shall fail to understand the facts of the case. Thus the train was first in sight from the crossing when about 1,000 feet •east, or one-fifth of a mile distant, and at say one-third of a minute prior to the collision, when deceased was some sixty to ninety feet from the crossing where he could see only a small part of the track, on account of the obstruction of the depot. Of course the foregoing statements as to the relative positions are not to be taken as absolutely correct, because the speed neither of the defendant nor ■of the train is known with certainty. They are intended to show that an unobstructed view of the track from a certain point in the highway was of no avail to the deceased unless he was at that part of the highway when the train was on that part of the track. And it seems, as far as we can judge, that in fact the obstructions concealed the train from him until he was close upon the place of danger. Certainly the jury were justified in coming to such a conclusion.

It is further to be noticed that there is evidence that on the day of the accident there was a pile of lumber running some fifteen feet north from the wagon house to the pile now shown in the photograph, which obstructed the view between the Place barns and the depot. And, further, that when a train was coming from the east it was difficult for a person on the Cox highway to determine by the sound whether the train was on the West Shore or on the Central. This is a circumstance to be taken into account in considering the question of the deceased’s negligence. If the noise of the train seemed to come from the Central railroad tracks the deceased would not have had his attention called to the West Shore road.

Whether the bell was rung or the whistle blown was a question of fact. There was conflicting evidence whether the bell was ringing at the time of the accident: and this was for the jury to decide. .And as to the time at which these signals were first given, the defendant’s brakeman, who was on the engine, says, two long and two short whistles were .blown just on the curve, and then he began ringing the bell. The fireman gives the same time for the blowing the whistle; and the conductor also, and other employes. The engineer says it was just before he rounded the curve in sight of the station. The distance of the curve from the crossing has been "above stated. Hence it appears that the-signals were not given at the required distance of eighty rods.

Some evidence as to the possibility that the deceased saw the train in time to escape the danger may be derived from the testimony of the defendant’s employes on the train in respect to the time when they saw the deceásed. One says the horse was on the south rail of the south track; another that he was thirty feet from that track; another two rods. They say that the engine was then at a point about 260 feet east of the crossing. This, then was the place where the employes first discovered the deceased ; and they were looking in his direction. It took only six seconds for the train to pass that distance, running at thirty miles an hour. If the deceased was driving three miles an hour he would have gone about twenty-five feet in that time. He must, then, have been quite close on the south track when he was first, seen. If the three or four employes of the defendant on and about the engine, looking along the track, did not discover him until he was so near to the point of actual collision, this is some evidence of the time when he could first have seen the train after-passing the obstruction of the defendant and other interfering objects. He was then close upon the point of danger, only the distance between the two tracks therefrom. Whether he could stop suddenly enough to avoid the danger or could push on and get beyond it was a question to be decided on the moment. He-should not he held negligent for an error, if it was an error, of judgment under those circumstances.

It is easy for a court sitting at ease and reading over the printed pages of a case to say that one in the situation of the deceased ought to have done this, that, or the other; ought to have looked towards the four points of the compass; ought to have listened to all the sounds which might come from any direction; that if he heard or saw a train he should have stopped; that if he did not see or hear it, then he ought to have seen or heard it, but the actual experience of the traveler is a different matter.

On an examination of the case we think that the evidence was such that it was for the jury to decide whether the defendant was negligent and also whether the deceased was guilty of contributory negligence.

Judgment and order affirmed, with costs.

Mayham, J., concurs.