author: Follett, J.

text:
    The People ex rel Thomas J. Kelly, App’lt, v. George D. Scott et al., as Examining Board, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Plumbers—Licekse.
    When the determination of an examining board of plumbers as to the qualifications of an applicant, founded on answer to questions relating to the science or art of a profession, trade or business, is challenged by a writ of certiorami, the return of the board should show wherein the answers are incorrect or defective.
    2. Same.
    An applicant for a certificate, under the statute, is entitled to be examined as to his experience in the plumbing business, as well as to'his knowledge of the theory or science of the trade. A refusal by the board t» so examine him constitutes an error prejudicial to the applicant.

      3. Same—Certiorari.
    In making such examination and its final determination, the board acts, not ministerially, but judicially, and its determination may be reviewed by the courts by means of a writ of certiorari.

    4. Same—Petition.
    Undenied allegations in the petition are to be taken as true.
    5. Same—Rules.
    The board should adopt rules regulating the examination of applicants, prescribing the subjects on which they are to be examined and stating the percentage of questions which must be correctly answered to entitle the applicant to a certificate.
    6. Same—Book op records.
    It should, for its own protection and for the protection of the rights of applicants, and also for the reason that, in case the determination is reviewed, a full return may be made of all the facts and evidence on which the determination is founded, keep a record of its proceedings in every case.

      Certiorari to review the decision of the examining board of plumbers in relation to the application of relator for a certificate of competency to conduct the business of a master plumber in the city of New York.

      Bernard J. Kelly, for relator; Terence Farley, for resp’t.
   Follett, J.

By chapter 602, Laws of 1892, an “ examining-board of plumbers ” is created in the cities of New York, Brooklyn, and Albany, and an “ examining and supervising board of plumbers and plumbing ” in all other cities of the state. By the fourth section of the act the powers and the duties of such boards are defined:

“ Section 4. The several boards of examiners constituted under this act shall have power, and it shall be their duty: (1) Meetings. To meet at stated intervals in their respective cities; they shall also meet whenever the board of health of such city or the mayor thereof shall, in writing, request them to do so. (2) Examinations. To have jurisdiction over and to examine all persons desirous or intending to engage in the trade, business or calling of plumbing as employing plumbers in the city in which such board shall be appointed, with the power of examining all persons applying for certificates of competency, as such employing or master plumbers or as inspectors of plumbing, to determine their fitness and qualifications for conducting the business of master plumbers or to act as inspectors of plumbing, and to issue certificates of competency to all such persons who shall have submitted to and passed a satisfactory examination before such board, and shall be by it determined to be qualified for conducting the business as employing or master plumbers or competent to act as inspectors of plumbing. "* * *
“ Section 5. Any person desiring or intending to conduct the-trade, business or calling of a plumber or of plumbing, in any of the cities of this state as employing or master plumber, shall be required to submit to an examination before such board of examiners as to his experience and qualifications in such trade,"business or and after the first day of March, eighteen hundred and ninety-three, it shall not be lawful in any city of this state for any person to conduct such trade, business or calling, unless he shall have first obtained a certificate of competency from such board of the city in which he conducts or proposes to conduct such business.
“ Section 6. On and before the first day of March, eighteen hundred and ninety-three, every employing or master plumber carrying on his trade, business or calling in any of the cities of this state, shall register his name and address at the office of the board of health of the city in which he shall conduct such business under such rules and regulations as the respective boards of health of each of the cities of this state shall respectively prescribe, and thereupon he shall be entitled to receive a certificate of such registration, provided, however, that such employing or masterplumber shall, at the time of applying for registration, hold a certificate of competency from an examining board. * * * And after the first day of March, eigheeen hundred and ninety-three, it shall not be lawful for any person to engage in or carry on the trade, business or calling of an employing or master plumber in any of the -cities of this state, unless his name and address shall have been registered as above provided,”

By chapter 66 of the Laws of 1893, which- was passed and took effect February 28, 1893, the word “ September " was substituted for the word “ March,” in sections 5 and 6. Otherwise the sections are unchanged. On the 27th of February, 1893, the relator filed a written application with the examining board of plumbers of the city of New York for a certificate of competency to conduct the business of a master plumber in that city. This fact is alleged in the application, and is admitted by the return. Among other things, the respondents, in obedience to the writ, returned as follows:

“Third. That thereafter the above-named relator presented himself for examination to these respondents for a certificate of competency, under the provisions of the statute, and thereupon certain questions in writing were propounded to him, a copy whereof is hereto annexed marked ‘ B.’. Fourth. That to said questions in writing, so propounded as aforesaid, the said relator made answers in writing, a copy whereof is hereto annexed marked “0.” Fifth. That thereafter, and after a due consideration of the questions propounded and answers given as aforesaid, and the plan for the drainage of a building accompanying the same, which was a part of said examination, and pursuant to the power and authority conferred upon them by the aforesaid statute, these respondents determined, not arbitrarily or capriciously, as alleged by the relator, but in the exercise of their best judgment and discretion, and in the manner provided by said statute, that the relator herein was not qualified for conducting the business as -employing or master plumber, or competent to act as inspector of plumbing, and thereupon passed the following resolution: ‘ Resolved, that the application of Thomas J. Kelly for a certificate of competency be rejected.’ ”

It will be observed that neither the date of the relator’s examination nor the date of the determination by the board is returned, but it is alleged in the application, and not denied in the return, that an official notification in writing of the determination has never been furnished to the relator, though frequently demanded, and that four calendar months have not elapsed since the determination was made.

Twenty questions were propounded to the relator, which are annexed to the return and marked “B.” The relator answered all of the questions in writing, which answers are annexed to the return and. marked “ 0,” but it is not alleged in the return that any of the questions were incorrectly answered. The eighth and ninth questions relate to mensuration:

“ (8) How would you determine the area of a pipe 6 in. in diameter and one 3 in. in diameter? Answer of relator: To determine the area of 6 in. or a 3 in. pipe, you must square the diameter and multiply l,729x.”

If this question calls for the rule for determining the area of pipes the diameters of which are known, an incorrect answer was returned. The arithmetical rule is : Multiply half the diameter by half the circumference, and the product is the area ; or, which is the same thing, multiply the square of the diameter by .785398, and the product is the area.”

“(9) What are the cubic contents of a tank 6 ft. long, 4|- ft. wide, and 2\ ft. high ? How much water in gallons would said tank hold, and what would water weigh ? Answer of relator: Cubic contents of a tank 6ft. long, 4£ wide, 2-|- high. The tank will hold 504 72-77 gall. The tank will be 81 cubic feet. The weight of it is 5,062\ lbs.”

A tank of the dimensions given contains 67^-cubic feet, but it holds 504 72-77 gallons, as stated in the answer. The number of gallons being correctly stated, it may well be that the relator’s figures were misread. Under our statute, a wine gallon of distilled water contains 231 cubic inches, and weighs 8,355 pounds avoirdupois, which would make the total weight of 504 72-77 gallons 4,218.732 pounds. The weight of a gallon of Croton may be more. The question is indefinite, in not defining the kind of gallon referred to, whether imperial or statutory, or whether the weight is to be computed upon the basis of distilled or undistilled water. The answer given seems to be as accurate as the question is definite.

" (20) Why does a pump draw water, and how far can it be ■drawn ? Answer of relator: (20) Pumps draw water by the action of the piston, causing a vacuum, the vacuum causing a siphon, and the water runs through. A pump can draw 34 feet, but, for practical use, 24 or 25 ft. is enough."

We assume that the question relates to the common or suction pump, and, if it does, the answer is approximately correct. The height to which such a pump will raise water depends upon the altitude above the level of the sea at which it is operated, and it is stated in scientific works to be thirty-two feet (12 Ency, Britan. 8th Ed., 174), 33.8 feet (14 Am. Cyc. 82), and at not more than thirty-four feet (Wells, Nat. Ph. 182 ; Avery, Nat. Ph. 176).

The other questions relate to the mode of doing plumbing, and, as before stated, it is .not asserted that any of the answers are incorrect. When the determination of a board as to the qualifications-of an applicant, founded on answers to questions relating to the-science or art of a profession, trade, or business, is challenged by a writ of certiorari, the return of the board should show wherein the answers are incorrect or defective. It is alleged in the petition that the relator has been engaged in the business of plumbing for the past thirteen years at 406 Canal street, which is not denied. The relator certainly had had considerable experience in his trade. Section 5 of chapter 602, above quoted, requires the board to examine an applicant “ as to his experience and qualifications in. such trade, business, or calling.” Hone of the questions propounded relate to the experience of the relator, and it does not appear that he was examined in respect thereto. " An applicant for a certificate, under the statute, is entitled to be examined as to his experience in the plumbing business, as well as to his knowledge of the theory or science of the trade; and in case the board refuses so to examine him, and "fails to consider his experience, when it makes its final determination, the command of the statute is disobeyed, and an error prejudicial to the applicant is committed. The statute requires the board to act upon evidence relative to the experience and qualifications of the applicant, and in making its examination and determination it acts, not ministerially, but judicially, and its determination may be reviewed by the courts by means of a writ of certiorari.

Among other allegations, the relator’s petition contains the following :

“ (4) That said members, composing said board or a majority of them, did not exercise their judgment and discretion upon examination and evidence, but refused to exercise their discretion on deponent’s application, for the alleged reason that deponent had no place of business, which was contrary to the fact, and said members composing said board, or a majority of them, acting, not judicially, but arbitrarily, and upon illegal grounds and principles, to the prejudice of deponent, denied, without good and valid reasons therefor, deponent’s application for such certificate of competency. * * * (5) That deponent has never received an official notification in writing of said board’s determination in his case, although frequently demanded, and deponent has lost thousands of dollars by having been forced by said board to give up his plumbing business, and-has been boycotted by said board. (6) That Joseph O’Brien, one of the members composing said board,, told deponent, after deponent applied as aforesaid for said certificate : 'I will vote against your obtaining a certificate of competency, because you interfere with my plumbing business, and secure my customers for yourself. I know you are a qualified and competent plumber, but-1 will see to it that you do not obtain a. certificate from the board, and the supreme court has no power to interfere with the board’s action in refusing you or any other plumber a certificate, no matter how well qualified you or they may be.’ (7) That John McKenna, another of the members composing said board, told deponent: 'I will vote against you obtaining a certificate of competency, because you have refused to employ men from my society, the New York Journeymen Plumbers’ Benevolent and Protective Association, and because you have refused to join the Master Plumbers’ Association.’ (8) That George D. Scott, chairman of said board, told deponent: T know nothing ■about the merits of your application. I will leave Messrs. McKenna and O’Brien to decide whether the board will grant you a certificate. They can settle the matter as they please.’ ”

The board, in its return denies that it acted “ arbitrarily or capriciously, as was alleged by the relator,” and denies that a certificate was refused the applicant because he had no place of business, or because he would not join the Master Plumbers’ As.sociation, or employ men from the New York Journeymen Plumbers’ Benevolent and Protective Association" But the averments in paragraphs six, seven, and eight, that the action of O’Brien, McKenna, and Scott, was influenced by improper and illegal motives, are not denied, nor is it anywhere denied that these persons made the statements attributed to them, and, in the face of such specific and grave charges, undenied, the allegation in the return, that the board’s determination was based on “ their best judgment and discretion,” is entitled to little or no weight. Had the board been able to have denied truthfully these specific and highly incriminating statements, it would undoubtedly have done so. If these statements were made by three of the members of the board, it is presumptively shown that the plaintiff’s case was determined upon illegal, instead of upon valid and honest grounds. Undented allegations in the petition are to be taken as true. People ex rel. Peck v. Commissioners Dept. Fire & Bldg., 106 N. Y. 64; 8 St. Rep. 664. The examining board of plumbers of this city is an important body, created to protect the health of the public,-and if its great powers are wisely and impartially exercised, pursuant to fixed and proper regulations, it may be productive of good; but, on the other hand, if its duties are not so discharged, it will surely become a means of oppression, destructive of the rights of competent mechanics, and of all citizens who have occasion to employ them, and will end in building up a monopoly for the benefit of a few, and endangering, instead of promoting, the public welfare. It does not appear by the record before this court that rules regulating the examination of applicants, prescribing the subjects on which they are to be examined, and stating the percentage of questions which must be correctly answered to entitle the applicant to a certificate, have been adopted. This board, exercising, as it must, highly important judicial functions affecting the rights of persons and property, should, for its own protection and for the protection of the rights of applicants, keep a record of its proceedings in every case, and for the'further reason that, in case determinations are reviewed, a full return may be made of all the facts and evidence on which the determinations are founded. For the reasons given, the determination in this case must be annulled, and the board is directed to rehear the application of the relator. Fifty dollars costs and disbursements are awarded in favor of the relator and against the board. All concur.


source: Caselaw Access Project

author:
Parker, J. Van Brunt, P. J.
      O’Brien, J.

license: Public Domain

text:
    Horace Anderson, as Substituted Trustee, etc., Resp’t, v. Isabel M. Blood et al., Impleaded, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    1. Evidence—Judicial notice.
    The court may take judicial notice that it is not an uncommon occurrence for a party to make a contract for the purchase of real estate, excepting to resell the same at a profit before he is compelled to complete under his contract.
    2. Vendor and purchaser—Bona bide.
    The evidence in the case was held to be insufficient to sustain a finding that the vendee was not a bona fide prarchaser.
    Appeal from a judgment in favor of plaintiff.

      John E. Parsons, for app’lts; Alfred G. Reeves, for resp’t.
   Parker, J.

The opinion of the learned judge at special term, so well presents the questions involved that we would not be justified in a further discussion, were in not that the appellant cites authorities which, it is claimed, establish a different rule than that of Williamson v. Brown, 15 N. Y. 354, upon which the court relied as authority for the foundation proposition.

On the 29th day of November, 1887, the defendant Juan Ramon Martinez Hernandez (known also as John R. M. Hernz), acting as trustee of the estate of his father, Ramon Martinez Hernandez, deceased, exposed the premises No. 11 Bast Twenty-Ninth street, in the city of New York for sale at public auction at the exchange, and the same were struck down to Lloyd D. Waddell, on a bid of $32,500. The terms of sale were signed for Waddell by Alexander Melhado, attorney. Waddell paid nothing upon his purchase and never received any deed. He was a friend and business associate of the defendants Hernz and Melhado, and lived with Melhado on said premises, 11 East Twenty-Ninth street. On the day after the said auction sale November 30,1887, said premises were advertised by Melhado, in the New York Herald, for sale “ at a bargain, to a quick purchaser.” Melhado and Hernz were both lawyers; were then, and had been for many years previously, intimate friends and associates; bad had business transactions with each other; occupied the same suite of rooms for offices, to which one and the same door afforded a common entrance; Melhado had acted as attorney for beneficiaries of the estate of which Hernz was trustee, and also for the defendant Hernz, and at one time prior to the auction sale they had been associated in the active practice of law. Melhado was not required to pay anything, and paid nothing, te the trustee, until he himself had sold the property for $40,000, and himself received part payment from the defendant Blood on the 6th day of January, 1888. At the time of the auction sale, Melhado’s wife held a lease of the premises, which had nearly three years yet to run, and the existence of which, not unlikely, had a depressing effect upon the price of the property at the auction sale. At that time, also, she and her husmand, Alexander Melhado, lived in the house as tenants of Hernz. Before the sale by Melhado to Blood for $40,000, and before Melhado was required to pay anything upon the property, Hernz actively assisted Melhado in procuring a contract for a loan of $30,000 upon the property, in fixing adjournments of the closing of the title with Mrs. Blood, and in carrying through the negotiations for sale with Mrs. Blood and her agent and attorney. Hernz did not require Waddell to complete his contract according to its terms, and waited ■ for him and Melhado to advertise and effect a resale before demanding any payment whatever. Hernz accounted to the estate of which he was trustee for only $32,500, being the amount bid at the auction sale. These and other facts, which it is not necessary to allude to, induced the court to find “that the transactions between Hernz, Waddell, and Melhado relative to the premises in questions, were carried on pursuant to a collusive and fraudulent design and conspiracy to cheat and defraud the Hernandez estate. ” And his conclusion is amply supported by the evidence. The court properly held that she was chargeable with knowledge of whatever facts her agents learned of while negotiating the purchase and investigating the title. Holden v. Bank, 72 N. Y. 286; Constant v. University of Rochester, 111 id. 604; 20 St. Rep. 211. And, charging her with knowledge of the facts which were brought to her attention and that of her agents, he found that she had knowledge of certain facts, of which he made twenty-three specifications. They need not be quoted at length, for a summary of them will be sufficient to make it appear that the court was justified in holding that they bring this case within the rule in Williamson v. Brown. Such a summary is contained in the opinion of the special term, and we quote it:

“There was something more apparent to her than a mere sale at an advanced price by one who had himself purchased at public auction. She knew that the property had been owned by Hernz only as a trustee for others, and that, notwithstanding the public sale, he still held the title. It was apparent from the way the business was transacted with her that, although Waddell had bid off the property, neither he nor Melhado had made any payment on such purchase; that he expected to obtain the amount of the price so bid from the sale to herself; aud that the trustee was holding the title, and waiting for his pay until a resale could be made. She knew that as soon as the property was bid off the purchaser at once put it on the market for a resale, with the offer to sell at a bargain to a quick buyer, and that the price that it had been bid off for was but $32,500. She knew, therefore, that Wad-dell or Melhado would take $7,500 out of the property without advancing any money whatever. And she also knew that the trustee was not only aware of that fact, but was actually assisting them to do so. Morever, she knew that both Melhado and Wad-dell were personal friends of the trustee; that the property, when sold at public sale, was subject to an outstanding lease that was clearly calculated to lessen the price for which it could be so sold, and that such lease was promptly canceled in order to make a sale to her ; and that the property was really worth more than the sum she was giving for it. How concede that she did not know that Melhado was the attorney for trustee or beneficiaries, or that he and the trustee had agreed before the public sale that the property-should, if possible, be bid off by a friend of theirs • at a low bargain, and resold at an advanced price for their mutual benefit, and that Melhado acquired his title only in pursuance of, and for the purpose" of carrying out, such plan. Nevertheless the facts of which she did have knowledge suggest just such a scheme. A trustee does not ordinarily allow his friend to bid off trust property at $7,500 less than its value, and wait for the first payment until he can advertise and negotiate a resale at an advanced price. The sale to Waddell, and the conveyance subsequently to Melhado simultaneously with his conveyance to her, could not have appeared to Mrs. Blood and her agents as an ordinary business transaction, and certainly not one in which a trustee, acting in good faith, would be likely to join. It certainly suggests the query, for what reason does the trustee force upon the market, at a public sale, this property, upon which there is an outstanding lease for three years ? And why does he allow those interested in the lease to bid it in at so indadequate a price ? And why, instead of compelling them to perform their contract and close their bargain by December 30th, as, under his bid, Waddell was obliged to do, does he wait for him to make a resale at an advanced price? What are the necessities that require the trustee to sell the trust property in such a manner, and at such a sacrifice ? She made no inquiry whatever, but took the title offered her, and under such circumstances, in my judgment, she does not stand in the position of a purchaser in good, faith. ”

It seems to be apparent from this statement that the court was justified in holding that she had knowledge of such facts as to put her on inquiry as to the existence of some right or title in conflict with she was about to purchase. That being so Williamson v. Brown is authority for his further holding that she is presumed either to have made the inquiry, and ascertained the extent of such prior right, or to have been guilty of a degree of negligence equally fatal to her claim to be considered a bona fide purchaser. The appellant, however, insists that, as Mrs. Blood was a purchaser for value, her title can only be affected by proof of actual notice of an intent by Hernz and Melhado to defraud the trust estate,—in other words, that the numerous authorities when prior to and since Williamson v. Brown have asserted that presumptive notice will operate to deprive the grantee of a fraudulent vendor of his purchase have no application to a purchaser for value; that in such a case actual knowledge will alone suffice. The decisions, as we read them, with certain exceptions to which we shall advert, establish, on the contrary, the general rule that the application of the doctrine of presumptive notice is not prevented by a valuable consideration. The fact that a valuable consideration has been paid i's merely a circumstance tending to show that the purchaser did not have notice of the fraudulent intent of his grantor. And it constitutes a circumstance to which much weight should be given in considering all of the facts and circumstances surrounding an allegal fraudulent transaction, because it is difficult to conceive that an ordinarily prudent person will pay all that h property is worth when he has reason to suspect some wrongdoing on the part of his grantor which may involve him in litigation, and possibly lead to a loss of the property. But, while it is evidence bearing upon the question of notice, it in no wise affects the legal consequence of taking title from a fraudulent grantor, whether the purchaser had conscious cognizance of the fraud, or the established facts require the legal inference that he had notice; for, in contemplation of law, a purchaser has notice, not only of what is definitely communicated to him, but all that a proper use of that information would enable him to obtain, if of a character to attract the attention, and stimulate inquiry on the part of an ordinarily prudent man. Support for this general proposition maybe found in Williamson v. Brown, supra; Acer v. Westcott, 46 N. Y. 384; Balcer v. Bliss, 39 id. 70; Reed v. Gannon, 50 id. 345; Bennett v. Buchan, 76 id. 386; Kirsch v. Tozier, 143 id. 390; 62 St. Rep. 439. The principal case relied upon by the appellant in support of his proposition that a purchaser for value must have actual notice of the fraud of his grantor is Stearns v. Gage, 79 N. Y. 102, in which the rule of Williamson v. Brown is quoted with approval, as it has universally been by the courts of this state. The court, however, did say that, when a valuable consideration has been paid, actual notice is required; that circumstances to put the purchaser on inquiry, when full value has been paid, are not sufficient. The action was brought to set aside deeds of real estate made by an insolvent debtor, upon the ground that they were fraudulent as against creditors. And the court, after quoting the provision of the statute relating to fraudulent conveyances, asserted that:

“ This plainly means that actual notice shall be given of the fraudulent intent, or knowledge of circumstances which are equivalent to such notice. Circumstances to put the purchaser on inquiry, when full value has been paid, are not sufficient.”

This decision seems to have been induced by the wording of the statute, but, however that may be, it created an exception to the general rule asserted by Williamson v. Brown. That it was not intended to do more appears not only from the fact of the citation of the rule of Williamson v. Brown in the opinion, but, later on, that court, speaking through Judge Rapadlo, in Parker v. Conner, 93 N. Y. 118, discussed both cases. After citing the rule stated in Williamson v. Brown, and that case, among others, as authority for it, the court continued:

“ The questions in such cases are—First, whether the facts were sufficient to put the party on inquiry; and, second, did he fail to exercise due diligence in making the inquiry? An affirmative answer to these two questions charges the party with notice, as matter of law; but the notice, in all such cases, to be found in the books, relates to some actual outstanding title, lien, or equitable interest. Such outstanding rights of third parties, though prior in point of time to the title acquired by a purchaser, are often cut off by the operation of the recording acts; and the doctrine of constructive notice has been most frequently applied to that class of cases, so as to deprive the purchaser of the protection which those acts afford to purchasers in good faith and without, notice. We have not referred to any case where the doctrine of constructive notice has been applied so as to charge a purchaser of land, who has paid a valuable consideration, and was in fact innocent of any guilty knowledge, with notice that his grantor made the conveyance with intent to defraud creditors at large, having no special lien or equity.”

Thus the court distinctly marked out the limitations of Stearns v. Gage, and recognized Williamson v. Brown as authority for the general rule which includes cases like this, where an equitable interest is affected by the conveyance. Farley v. Carpenter, 27 Hun, 359, was within the exception, and therefore governed by Stearns v. Gage. Jacobs v. Morrison, 136 N. Y. 101; 49 St. Rep. 83, was an action to recover a deposit of purchase money, on the ground that the proposed vendor’s title was affected by fraud against the general creditors of his vendor. Naturally, therefore, Stearns v. Gage was invoked as authority for the legal proposition involved, with its' assertion that notice of fraud, to be effectual to avoid the title, must be actual. But the learned judge who delivered the opinion of the court was careful to make clear that he intended it to be understood that the term “actual notice” was used in a sense broad enough to include presumptive notice, for he said :

“As well under the statute as at common law, circumstances to put the purchaser on inquiry, who pays full value, are sufficient to affect the title unless they are equivalent to a notice of fraudulent intent.”

Bush v. Roberts, 111 N. Y. 278; 19 St. Rep. 122, is the only' other case cited by appellant where the controversy related to real property, and, as it was an action by a creditor to set aside a conveyance on the ground that it was made with intent to defraud the creditors, it was within the exception created by Stearns v. Gage. It follows that the special term did not err in invoking the rule of Williamson v. Brown.

It is suggested, rather than insisted upon, that the proceedings had on the compulsory accounting of the trustee are res judicata of the matter involved in the present issue. There are several reasons why that adjudication is not a bar to this action. It is true that objections were made on the accounting that Hernz, in violation of his duties as trustee, had permitted this property to be sold at much less than its actual value, and that they were subsequently, but after evidence had been taken, withdrawn. But the remaindermen were not represented on the accounting. -Neither of the defendants Blood or Koss was a party to the proceeding, nor in any way in privity, as to the matters therein adjudicated, with any of those who were, parties; and necessarily the effect of the alleged fraud upon the title of Mrs. Blood and her vendee was not adjudicated. Fannie K. Koss, the present holder of the legal title, is a daughter of Mrs. Blood; and as she did not pay any money for the property the court held that her title was no> better than that of her grantor, because not a purchaser for value.

The trial court, however, found, at the defendant’s request, “ that the consideration for the said conveyance was the consideration of blood relationship and the approaching marriage of her said daughter to Charles E. Koss.” If the record were otherwise silent upon this subject, an interesting question would be presented,—whether Mrs. Koss should not be held to be a purchaser for value. Marriage is a valuable consideration, and it has been held that a voluntary conveyance, intended as a settlement for a child of the grantor, which is, as against a subsequent purchaser, void, may be validated by a valuable consideration intervening, and that such consideration is furnished if a person be induced to marry her on account of the provisions made for her in the deed. Sterry v. Arden, 1 Johns. Ch. 261. An ante-nuptial settlement of lands, though made by the settler with the design of defrauding his creditors, will not be set aside in the absence of the clearest proof of his intended wife’s participation in the fraud. Prewit v. Wilson, 103 U. S. 22. Other cases illustrative of the general proposition that marriage constitutes a valuable consideration. Peck v. Vandemark, 99 N. Y. 29; and Wright v. Wright, 54 id. 437. But there stands in the way of consideration of this question the fact that this finding constitutes an exception to the general rule which requires appellate courts to be governed by the findings made, unless they are against the weight of evidence. ' The record discloses that in the early part of the trial certain questions relating to the admissibility of testimony were raised, which led to a discussion between court and counsel whether Mrs. Koss was a bona fide purchaser for value. And one of the results of that discussion was the following admission, which was placed upon the record:

“It is admitted that Mrs. Koss has the title by gift for a good consideration, she being the daughter, and the consideration one of blood instead of money.”

By this admission the element of marriage was entirely elininated from the question of consideration, and it was conceded that the only consideration was one of blood. This admission the plaintiff had a right to rely upon, and he did, offering no further evidence upon the subject. The defendants apparently had no thought of changing their position during the progress of the trial for we find no request to change the form of the admission which they had formally made in open court, nor do we find from the oral testimony of witnesses that any open effort- was made to inject into the record a further element of consideration. Under such circumstances the party making the admission is bound by it, and cannot thereafter contest it in the action. An appeal to findings of fact by the court which seem to contradict, qualify or limit the admission made will not avail him. Oliver v. Bennett, 65 N. Y. 559. As the judgment requires the plaintiff to reimburse the defendants Blood and Koss for the moneys invested by them, and to place them in statu quo, they have no just ground of complaint. I advise an affirmance of the judgment.

Van Brunt, P. J.

I cannot concur in the conclusion arrived at by Mr. Justice Parker in this case. Conceding the law as stated by him,—that actual notice to Mrs. Blood or her agents was not necessary, but only the existence of such facts as would put them upon inquiry,—it does not seem to me that such inquiry would have developed such a condition of affairs as would impeach her title. It seems to me that the learned judge below arrived at the conclusion reached by him by considering the property to be of a value which is not established by the testimony, and by holding Mrs. Blood responsible for knowledge which might possibly have been acquired by a person not her agent. It is expressly stated by the learned justice that Mr. Waddell, who examined the title of this property upon a loan by his client thereon, was the attorney and agent of Mrs. Blood. An examination of the record shows that Mr. Waddell held no such relation to Mrs. Blood. He did not examine the title for her. It is true that she paid him his expenses and commissions on the examination of 'that titla But in such examination he was representing his client the mortgagee, who proposed to loan the money upon the property, and not Mrs. Blood; and he did not become her agent by reason of the fact that she was satisfied to take the property without any further examination by a lawyer employed by herself.

It further appears that the learned trial justice found the value of this property at the time of this purchase by Mrs. Blood to have been the sum of $45,000; and that was considered a suspicious circumstance, in that it was bought below the market price, and should have induced inquiry and excited suspicion. I have examined the record in vain to find any proof of any such value. It is true that a witness by the name of Youman swore this property to be of the value of $52,500. But it is evident that- this witness was perfectly willing to fulfill his contract of swearing to the value Phis property with or without any information on the subject, and with or without any foundation for his opinion. He shows upon his cross-examination that he was ignorant of any transaction in respect to property in that neighborhood. He then testifies that he makes up his mind in regard to- the value of the- property because of his knowledge of the rental of the property and the taxes which were paid thereon,—not the taxes which were paid in 1887 and 1888, but the taxes which were paid at the time at which he was testifying. He testifies that he was- told that this property ■ was rented for $4,000 or $4,500, and that the taxes at the present • time were about $500, and that it was upon this basis that he made ■. Up his valuation. But when he ascertains that the rental of $4,000 , ov $4,500 was of a furnished house, and not of a house unfur.nished, he is entirely equal to the occasion. He says: “I was not -p-overned by the fact of the rental at all I made my valuation independent of that; not governed by anything that was told to me .in regard to the rent,”—exactly contrary to- that which he- had previously testified. And this witness, prevaricating as he evidently did, is considered to have established a foundation of value of this property, not of $52,500, but of $45,000,—a sortof halfway house between his estimate and that of a witness examined on the part of the defendant who had great experience- in the sale of real estate, as an auctioneer and real estate agent, and he testified that its value was $37,500, and that he had sold property equally good for that price. Now, if this plaintiff was seeking to impeach this sale on the ground of inadequacy of consideration, he was bound to establish it by at least credible testimony, and not by prevaricating witnesses. Interests of purchasers of real estate cannot be taken away from them by evidence of such a character. It may be that inadequacy of consideration cannot be made available in an action of this character. Truesdale v. Sarles, 104 N. Y. 164; 5 St. Rep. 565. But it must be borne in mind that the title of Mrs. Blood, in respect to this real property, cannot be impeached unless the evidence requires the finding of an unlawful combination between the former trustee and Melhado in respect to this sale. It is not enough that the trustee has acted improvidently, or has made a sale when the property was not in such condition that it would bring its largest price, because of leases thereon. But it must be found that there was an understanding—a fraudulent scheme— between the trustee and the purchasers at the auction sale that it should be bid in for their benefit. I have searched the record in vain for any evidence of any such scheme or understanding. The only possible particle of evidence is that the premises were struck off at the auction sale for $32,500, and were subsequently sold by the purchasers to Mrs. Blood for $40,000. It is in evidence that the auction sale wasffairly conducted. Publicity was given to the sale, but it is in evidence that parties who had their eye on this property were present, evidently desirous of acquiring it, but not yet exactly ready to purchase. In fact, the representative of the very purchasers who contract to purchase with Mrs. Blood has brought about this litigation was present at the sale, and says that it was fairly conducted ; that there was no secrecy, nothing in the world about it to excite suspicion, and the property was struck off in the usual way.

But it is said by the learned judge in the court below that it is evident that the purchasers at the auction sale never intended to take the title, and that they never did until they got a purchaser. As it has been held by the court of appeals in Frace v. Railroad Co., 143 N. Y. 182 ; 62 St. Rep. 166; that we may take judicial notice of the fact that certain spark arresters are in common use upon engines or locomotives, I think the court may also take judicial notice that it is not an uncommon occurrence, by any means, for a party to make a contract for the purchase of real estate, expecting to resell the same at a profit before he is compelled to complete under his contract. If such a circumstance, is to invalidate transactions in real estate by means of suits brought years thereafter, there will not be much speculating in real estate in the city of New York. The evidence shows that a reputable and careful attorney (Mr. Waddell), in the examination of this title, saw nothing suspicious in regard to'the circumstances attending it to call for special inquiry : and it should take no slight evidence to impeach the title of a purchaser who has paid a fair consideration for the property bought.

There is another feature in this case which seems to have been lost sight of. These suspicious circumstances, if any existed, in reference to this title, came to the knowledge of the agent of Mrs. Blood, if at all, at the moment of closing the title. They had no time to think about them, to cogitate over them, to come to conclusions after deliberations, and to study out the various suspicious points by means of which it is now sought to invalidate the title they then procured. They were first revealed then and there, and neither Mrs. Blood nor her agents had any. time to ponder over these things, and weigh them, and determine as to whether they may have been suspicious or not. And yet the mental processes of these people are judged by what we say they should have been, we having had the opportunity to deliberate and ponder over the transaction. The very statembnt of the learned trial judge shows conclusively that the plaintiff was not entitled to a judgment. He, sitting as a judge, says at the end of the'plaintiff’s case, “ It seems to me now, that there is hardly proof enough here to show that this woman had reason to believe that there was any fraud going on against the cestuis que trustent." Why should he expect these purchasers, in the haste of closing the title, to have come to the conclusion that such fraud existed? Hearing the evidence, having his attention called to the fact that fraud was claimed, yet he is not so impressed by the evidence but that he states that he does not think that there is any proof showing that Mrs. Blood had any reason to believe that there was any fraud going on against the cestuis que trustent. There was nothing developed on the defendants’ case which strengthened the proof upon the part of the plaintiff; and it is only upon reflection, and' turning over and considering the facts, that the judge comes to the conclusion that there was sufficient to put the purchaser upon inquiry. When did the purchaser have any time before closing this purchase to turn this over, to consider it, to place this and that fact together, and to form a conclusion ?

It seems to me also, that Mr. Justice Parker is in error in holding that, because of the stipulation contained in the case, the question as to whether the conveyance by Mrs. Blood to Mrs. Koss, her daughter, on her approaching marriage, was for a good consideration, was eliminated from the case. The learned judge below found that the consideration for said conveyance was the consideration of blood relationship, and the approaching marriage of her said daughter to Charles E. Koss. The stipulation did not impeach this statement contained in the deed. The learned trial judge, in making his findings, did not so think. All that the stipulation amounted to was that Mrs. Koss did not pay any money for the property. It in no way affected the question presented as to a marriage settlement. But it is not necessary to discuss this proposition, because the plaintiff entirely failed to make out a case. Indeed, the-whole ground for this action rests upon the fact that a purchaser desirious of procuring this property for a particular purpose was willing to pay an exorbitant price for the same, beyond all question far above its ordinary value. I do not .think that this should justify the impeaching of this title years after it has been taken. The judgment should be reversed, and a new trial granted, with costs to the appellants, to abide the event.

O’Brien, J.

While, in the proper action, the evidence might justify a recovery against the trustee or the purchaser at the auction sale for the profits realized upon the sale to Mrs. Blood, it is insufficient to warrant the conclusions that Mrs. Blood was not a purchaser in good faith, for value, or that the title of Mrs. Koss, her daughter, was invalid as against the beneficiaries. I therefore concur with the presiding justice for a reversal of the judgment.


author: Van Brunt, P. J.

text:
    Roman Catholic Church of the Transfiguration, Pl’ff, v. Nathaniel Niles, Def't.

      (Supreme Court, General Term, First Department,

      Filed April 11, 1895.)

    'Taxes—Transfer—Exemptions.
    Chapter 169 of 1892 exempts from the transfer tax a devise to a bishop, where the tax was due but had not been paid at the time said act was passed.
    Controversy submitted without action on an agreed statement of facts.

      F. J. McLoughlin, for pl’ff; Joseph N. Tuttle, for def't.
   Van Brunt, P. J.

The plaintiff in this action on the 20th of July, 1894, contracted with the defendant to sell to him certain premises in the city of New York. The defendant objected to the title, upon the ground that it was liable to an inheritance tax. The property in question belonged to John McCloskey, cardinal archbishop of New York, at the time of his death, on the 10th of October, 1885. By his will Cardinal McCloskey devised all his estate to Archbishop Corrigan, of the city of New York, Bishop Loughlin, of Brooklyn, and Bishop McNiernay, of Albany, as joint tenants, and not as tenants in common. On the 2d of January, 1886, Bishop McNiernay conveyed to Archbishop Corrigan all his interest in said real estate ; and on the 19th of January, 1886, Bishop Loughlin made a similar conveyance. On the 19th of February, 1886, Archbishop Corrigan conveyed the premises in question to the plaintiff. At the time of the death of Cardinal McCloskey the collateral inheritance act, passed on the 10th of June, 1885, was in operation, and the real estate bequeathed by him was liable, to such tax. No tax, however, was ever paid upon the same. On the 19th of March, 1892, an act of the legislature became a law (chapter 169, Laws 1892), whereby the section of the act of 1885 designating the property to be taxed was amended, and the following clause was inserted therein : “ Provided, further, that any property heretofore devised or bequeathed to any person who is a bishop or to any religious corporation shall be exempted from, and not be subject to the provisions of this act.“ It is claimed upon the part of the defendant that the act in question did not apply to those cases where the tax had become due, but had not been paid, but to those cases where no appraisement could be made, nor any tax imposed, immediately upon the death of the testator, because of the want of vesting of the estate so that its value could be ascertained. Upon the other hand, it is claimed that the act was intended to and did apply to-all cases falling within the exemption. The claim for the payment of this tax was one upon the part of the state, which the state had an undoubted right to release if it desired so to do ; and the only question which can be raised is, was there an intention to make an exemption as to property which had , passed to a devisee prior to the passage of the amendment ? It seems to us that the language of the statute is explicit on this point. It is, “ any property heretofore devised or bequeathed.” It is a familiar rule of law that a will speaks from the death of the testator. It has no legal effect or existence prior to that time ; and although in such a will property may be described, and may by its terms be bequeathed, it is entirely inoperative, and confers no rights, until the death of the testator, and such property cannot be, by any stretch of the imagination, said to be devised or bequeathed. It can only be said after the death of the testator that it is devised and bequeathed. The language of the act is that property which had theretofore been devised or bequeathed should be exempt. The claim upon the part of the defendant that this language was intended to apply only to those cases where it had been impossible to assess the tax, because no appraisement could be made, is not borne out by anything contained in the statute. It applies to all sorts of property in possession or in expectancy, and makes no distinction; and it was the evident intention of the legislature to release property which had been thus devised from the provisions of the inheritance tax act, whether such devise had become operative prior to the passage of the act or subsequent thereto. If our construction of the act is correct, then there is no power upon the. part of the state now to collect such tax, its right having been released by an effective .legislative act, and the plaintiff is entitled to judgment with costs.

All concur.


author: Ward, J.

text:
    William Guilford, Resp’t, v. Morris C. Mulkin, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

      Í. Payment—Note.
    The giving of the purchaser’s promissory note for the price of the property sold, at the time of the sale, is not a payment.
    • 2. Same.
    If the note is not paid when due, the creditor can sue on the original obligation.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      S. McArthur Norton, for pl’ff; Rufus Scott, for def’t.
   Ward, J.

This was an action tried at the Allegany circuit in' January, 1894. The plaintiff’s complaint alleged the sale and delivery by him to the defendant on the 13th of September, 1886, of a pair colts of the value and agreed price of $255, to be paid for in three months, with interest; that the same had not been paid ; and plaintiff demanded judgment. The answer of the defendant, contained no general denial, but alleged that at the time of the sale' of the colts the defendant made and delivered, in satisfaction of the purchase price of the colts, to the plaintiff, the defendant’s, promissory note, whereby he promised to pay in three months the $255, with interest, and denied that he had agreed to pay for the colts in any other way than by the note. Upon the trial the plaintiff brought the note into court, and offered to surrender it to the defendant, and have it canceled. No evidence was given on behalf of the plaintiff, but the defendant testified in his own behalf, substantially, that, at the time he bought the colts, he gave the note set forth in the answer, and that it had not been paid. It did not appear that the plaintiff had negotiated the note. The plaintiff asked for the direction of a verdict for himself, and the. defendant moved for the direction of a verdict for the defendant.. Neither party asked to go to the jury. No.agreement was proved, that the plaintiff was to take the note in payment for the colts. The court directed a verdict for the plaintiff. The defendant alleges that the error was committed by the trial court because the only contract of payment made by the defendant was to pay the-note, and that the action should have been brought on the note, which was the plaintiff’s only remedy. This contention cannot be sustained. The giving of the purchaser’s promissory note for the price or the property sold, at the time of the sale, is not a payment. If credit is given upon the sale, which is evidenced by the-promissory note, the seller’s remedy is suspended until the note becomes due. The note is but a written security for the debt, and. only extinguishes it upon payment. The debt is not merged in the note. If the note is not paid when due, the security is dishonored, and the suspended time of payment ended, and the debt still remains, and the creditor can sue on the original obligation. These considerations apply where, as in this case, the security is not negotiated by the creditor. If the debtor claims that his written promise to pay accomplished the payment, he must show that his" promise has been performed. He cannot pay his debts with a broken promise. Whatever may be the rule in other states, or the views expressed by elementary writers upon this subject, the foregoing undoubtedly gives the law in this state. Iron Co. v. Walker, 76 N. Y. 521, 524, and cases cited; Edw. Bills & N. (2d Ed.) 192, and note; Hughes v. Wheeler, 8 Cow. 77; Hill v. Beebe, 13 N. Y. 556; Muldon v. Whitlock, 1 Cow. 290; Coombs v. Bateman, 10 Barb. 573. Both parties having asked for a direction of a verdict, the court determined any question of fact in the case, upon the evidence in the place of the jury; and, if there were any questions of fact, they have been determined against the defendant, who was the sole witness in his own behalf, and is conclusive here. The motion for a new trial should be denied, with costs to be paid by the defendant; and the plaintiff have judgment on the verdict.

All concur.


text:
    In the Matter of the Judicial Settlement of the Accounts of John C. Spooner, as Administrator, etc.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Executors—Accounting.
    An allowance for counsel fees can in no event be made to the representative until lie has actually paid them.
    Appeal from a decree, rejecting certain counsel fees and charges.

      J. Rosencrans, for app’lt; J. F. Parkhurst, for resp’t.
   Ward, J.

Dan E. Spooner died about the 23d of July, 1871, leaving a last will and testament. John McDougall, of Hornellsville, was appointed executor of said will, and qualified as such, ■and discharged his duties until his death, which occurred on the 12th of November, 1888. Jane McDougall and Shirley E. Brown were appointed his administrators. Spooner left, him surviving, his mother, brother, who is the present administrator, and Cornelia Spooner, a widow, who is the respondent here. They were all legatees under the will. The executor paid the legacies to the mother and brother, and the interest on the legacy of the widow down to the time of his death. The widow, by the will, was given the interest on $6,000; the fund to go to appellant upon the death -of the widow. The administrator of McDougall paid the interest to the widow until November 1, 1890, when the appellant was appointed administrator with the will annexed. He then resided at Auburn, in this state. He retained counsel there in the matter (Mr. Rosencrans). .The administrators of the McDougall and the appellant adjusted the matter of the legacy, and agreed that $6,000 belonged to the estate of Dan E. Spooner. The appellant claimed the custody of the fund, and that it should be paid over to him, and he paid the widow the interest. The widow refused, and the matter was submitted to the surrogate’s court of Steuben county, ■and that court held that the appellant was not entitled to the custody of the fund. From that decision the appellant appealed to the general term, where the surrogate was sustained. The appelant further appealed to the court of appeals, where-the decision of surrogate and the general term was reversed, with costs in favor of the appellant, and the court of appeals directed the surrogate that, “if the administrator had made any disbursements or incurred any obligations for which the estate was properly chargeable, he should have the opportunity of proving the facts, and having a ■decree made for their payment out of the estate.” Rosencrans was the attorney who conducted the appeals for John 0. Spooner. After the entry of the court of appeals judgment, Mr. Rosencrans rendered bill against the administrator, commencing with Noverm ber 14, 1890, and ending with February 20, 1894, amounting to $1,023.35, general term and court of appeals, $150 of which was ■denominated “counsel fee at general term and court of appeals.” There was charged in this account for ten trips going from Auburn to Bath, and once to Horn ells vil le, for twenty-two days’ service, at $15 per day, amounting to $330. Twenty dollars is charged for making brief on settlement. Thirty dollars is charged for ‘‘making brief on accounting.” Fifty dollars is charged for “counsel.” Seventy-six dollars and sixty-seven cents is charged for expenses of this attorney in these various trips. There does not seem to have been any serious controversy until the question arose before the surrogate as to who wits entitled to the fund of $6,000. That controversy as before said, went through to the court of appeals, for which the said attorney collected the taxable costs, he being successful. What the $150 counsel fee or the $50 counsel fee was for does not distinctly appear, except, generally, that Mrs. Rosencrans claimed them, and they were allowed to him. After the decision of the court of appeals, evidence was taken before the surrogate as to these claims. The appellant and his attorney were sworn as witnesses. I cannot find from a close examination of the papers that the administrator had paid any of these claims to his attorney. The surrogate, after a careful examination of the claims, allowed $35 for going to Bath and Hornellsville on the first occasion, where the attorney had charged $60, and allowed $60 for the services of the attorney upon the accounting, and also allowed the $150 counsel fee, which should also cover certain items in the charge; allowed the $76.67 expenses that the attorney claimed he had incurred. A former decree of the surrogate’s court had allowed Rosencrans $50, which covered some of the services charged in the bill; so that altogether the attorney had received, besides his expenses of $76.67 and besides the costs on the appeals, $295, making a total of $586.68 besides expenses. The surrogate deemed this a sufficient compensation for all the services and expenses of the attorney, and rejected the rest of the claim. The surrogate also allowed the travelling fees and expenses of the administrator, himself, of $59.63, in and about this business.

The expenditures to be allowed in such cases by the surrogate must be reasonable and necessary, of which the surrogate must necessarily be, to a a great extent, the judge. He is familiar with the services rendered, their character, and the necessity for them. The rule is well settled that in no event can an allowance be made to a representative for an administrator’s expenses—e. g. counsel fees—until it is actually paid. Redf. Law & Frac. Sur. Cts. 444; In re Bailey's Estate, 47 Hun, 477 ; 14 St. Rep. 325 ; Shields v. Sullivan, 3 Dem. Sur. 296. Only the allowance that the surrogate makes under sections 2561 and 2562 of the Code of Civil Procedure can be allowed the administrator until he has actually paid the expenses for which he claims. It will be seen, therefore, that ■ all of this account, except upon judicial settlement, must have been paid by the administrator before he is entitled to be reimbursed ; but, waiving this question, we think, upon the proof before us, that the surrogate allowed all that was reasonable and just upon this bill.

The decree of the surrogate of Steuben county is affirmed, with costs to the respondent, to be taken out of the corpus of the fund owned by the administrator and appellant.

All concur.


text:
    Charles S. Ellis, Resp’t, v. Mart E. Filon et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.

    Witness—Section 829.
    Where, on the trial of a disputed claim against a decedent’s estate for preparing plans for a building, the claimant testified that he drew the-plans, that they were reasonably worth a certain sum and that he would, not have drawn them without being requested by some one, a further statement by him that he had conversations with decedent “about these-plans,” is inadmissible under section 829 of the Code.
    Appeal from a judgment in favor of plaintiff.

      Cassius C. Davy, for app’lts ; Eldridge L. Adams, for resp’t.
   Ward, J.

This appeal comes here under section 2718 of the Code as amended in 1893. The plaintiff, within the six months for presenting claims against the estate of the deceased, presented a claim of $300 for the plans prepared by the plaintiff at the request of the deceased for the construction of a building in Rochester. The claim was rejected by the appellants, and an order was made-referring it to a referee under this provision of the Code, who heard the evidence, and reported in favor of the plaintiff for the amount of his claim, upon, which judgment was perfected, the referee awarding costs to the plaintiff. Upon the trial the plaintiff was sworn in his own behalf. He testified that he was an architect doing business at Rochester; that he drew the plans; that he did not have them ; that the last he saw of them they were in the office with Mr. Filón (the deceased), in June, 1892 ; that the plans were reasonably worth one per cent, of the estimated cost of the building, which he specified. Then he stated as follows ;

“I made the preliminary sketches. Mr. Putnam, who was with me at the time, completed the details. No one else in the office, except myself and Mr. Putnam, to my knowledge, worked on these plans. I had a conversation with Mr. Filón about these plans. It was either in Mayor June, 1892. I had more than one conversation ; several; three or four, I should think. Q, Did you draw these plans without being requested to do so by any one? (Objected to by defendants as calling for a transaction or communication between the witness and Michael Filón, and as incompetent under section 829 of the Code, it appearing that the ■witness is interested in the event of the action, and also that the question is improper in form and leading. Overruled, and exception.) A. No, sir. (Defendants’ counsel moved to strike out the answer as incompetent under section 829 of the Code. Motion denied, and exception.)”

The witness further stated that none of his conversations with Mr. Filón were in the presence of any other person, except one instance. It was, after this conceded that Michael Filón died in July, 1893. The only other witness was Mrs. Putnam, the wife of the person who worked with the plaintiff on the plans. She says that she saw them at her house, and on the bottom of the plans there appeared the words, “Sketch for Mr. Michael Filón.” The plaintiff gave no other evidence, except the will of the deceased, which was objected to, the twentieth clause of which provided that the executors were authorized and directed to erect on Main street, in Rochester, a building costing not less than $1,000,-000, to be known as the “Filón Block.” The plaintiff rested, but, after resting, resumed the case,-and moved to amend his claim to -conform to the proof, thus opening his case. This was denied, and the defendants then moved to strike out evidence on the ground that it involved a personal transaction with the deceased: First, the plaintiff’s testimony as to the value of the services. No objection appears to have been made to this, but the motion was denied. Defendants excepted. ' Second. What the witness Ellis testified to in reference to his having conversation with deceased about the plans. Plaintiff objected to this, on the ground that no objection was made at the time, and the motion was made after the close of the plaintiff’s case. This was denied, and the defendants excepted.

The grounds on the defendants’ appeal are: First, that the evidence as a whole fails to show any cause of action against the defendants, or any request on the part of' the deceased to the plaintiff to make the plans, or facts from which such request might be inferred; and, second, that the referee erred in receiving evidence forbidden by section 829, and also in not striking out such evidence.

It clearly appears that much of the plaintiff’s evidence comes within the spirit, if not the letter, of the prohibition of section 829, and, if this judgment is sustained at all, it must be upon such evidence. From the opinion of the referee, and the proceedings on the trial, it is evident that the plaintiff was making a constant struggle to maintain his case by proving his personal transactions with the deceased, and he claims upon this appeal that enough of this forbidden evidence was obtained without proper objection to sustain the referee’s report. “Claims withheld during the life of .an alleged debtor, and sought to be enforced when death has silenced his knowledge and explanation, are always to be carefully scrutinized, and admitted only on very satisfactory proof." Kearney v McKeon, 85 N. Y. 139, 140 ; Ulrich v Ulrich, 42 St. Rep. 216, and cases cited. The referee finds that this work was done for the deceased by the plaintiff, and at the request of the deceased, and upon his promise to pay. We are to assume that the referee in reaching these conclusions attached importance to all the evidence given. At least, we cannot say that any of the evidence was not deemed by him material. The evidence that was •objected to in time was the question whether the plaintiff would have drawn the plans without' being requested to do so by any one. This, in connection with the evidence that had just before that been given, that the plaintiff had had conversations with the deceased “about these plans,” was intended to leave the inference to be conveyed by the witness that the request came from the deceased. The respondent claims that the proof of the fact of having had conversations, without showing what they were, was competent, and cites Hier v Grant, 47 N. Y. 278. That case does not aid the respondent, as appears by the syllabus : “That the simpie proof of the fact that a conversation was had with a deceased person without proof of the conversation itself is not obnoxious to * * * section 399, Old Gode, unless it may be a case where the mere fact of a conversation is a material thing to be proved.” It was very material for the plaintiff to show in some manner that the deceased recognized the service that the plaintiff claimed to be rendering him, and when, after stating that he had. conversations with the deceased about the plans, he then adds in effect that he would not have made the plans without being requested by some one to do it, it becomes important Standing by itself, it is a mere conclusion of the plaintiff’s mind, and is incompetent, and should have been rejected for that reason. In any aspect' of the case, the reception of this evidence was fatal. The motion to strike out the evidence as to these conversations should have prevailed, and while, perhaps, it was discretionary with the referee to have denied this motion, he should not have done so.

The referee seems to rely upon what the plaintiff testified to, that the plans were last seen by him in the office of the deceased. At no time does it appear that the deceased ever saw them. How they got there does not appear. If they were delivered to the deceased by the plaintiff, or through his agency, it was a personal transaction excluded by the Gode. Otherwise the evidence is of no importance as an admission by the deceased, or as an acceptance’ of the plans. If these plans were simply a “sketch,” as they were marked and submitted to the deceased for further eximination .or consideration, then the evidence does not aid the respondent. There was no motion to strike this evidence from the case, and it is there, although probably incompetent, with other incompetent evidence, for what it is worth; and we are confronted with the proposition that, in the face of the policy of the law as indicated in section 829, we must sustain this judgment upon this incompetent evidence. But assuming that full force is to be given to this evidence, as though it were competent, we do not think the findings of the referee are sustained by the evidence as to the plaintiff’s employment by the deceased, especially when judged with the scrutiny that such cases demand. Objection is also made to the referee’s direction that the plaintiff recover costs. We see no objection to this, if the judgment could otherwise be sustained. The referee found, as a matter of fact, that the payment of the claim has been unreasonably resisted by the defendants. This finding justified his conclusions as to the costs, under sections 1835, 1836, and 2718 of the Gode. The judgment must be reversed, and a new trial ordered before another referee, with costs to abide the event. All concur.


author: Bradley, J.

text:
    In the Matter of South St. Paul Street

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895).

    1. Condemnation frocbednos—County Court.
    Section 16, chap. 190 of 1892 does not give the county court power to set aside the appraisal and report of the commissioners for errors committed by them.

      2. Same—Award
    Commissioners, in a proceeding to condemn land for street purposes, cannot direct by tlieir report that all taxes on tie premises shall be deducted from the award.
    Appeal from the report of the commissioners, and from an order of the county court denying a motion to set aside the report.

      Joseph W. Taylor, for app’lts ; A. J. Rodenbeck, for resp’ts.
   Bradley, J.

The commissioners in the proceedings for appraisal awarded to the appellants for the land in question $1,800, deducting therefrom “ all taxes and assessments which may be a lien upon the lands.” The objection is to the charge so made of taxes upon the award. Upon the hearing before the commissioners there was no evidence of any tax liens upon the property, nor does anything to that effect appear in the papers here upon the appeal from the commissioners’ report. But in the affidavits upon which the motion to set aside their report was made, and which constitute a portion of the papers on the other appeal, it appears that there is a tax lien of $1,000 upon a portion of the land in question and other lands, and that on the part of the city it is required that the full amount of it be deducted from the award. The motion in the county court was not considered on the merits, but was denied, for the reason there given of want of power to entertain it. The city charter provides that the commissioners be appointed by the county court, and to it is given certain powers to amend defects or informalities in the proceedings, to make all necessary orders, and to give proper directions to carry into effect-the object and intent of the act, but this does not include power of that court to set aside the appraisal and report for error in its result. Laws 1892, c. 190, § 16. The commissioners are required to report to the common council, and it is vested with the power of confirmation of the report. Laws 1880, c. 14, § 178, as amended by Laws 1892, c. 190, § 18. The statutory method of review is by appeal from the report, within thirty days after its confirmation, to the supreme court. Laws 1880, c. 14, § 183. And the court shall thereupon consider the appeal, and examine all questions of law or fact, and confirm or annul the report as it shall deem just. Laws 1892, e. 190, § 21. It is urged that the motion in the present case was analogous to a like motion to set aside a report of commissioners under the general railroad act, and in support of that view is cited In re New York C. & H. R. R. Co., 64 N. Y. 60. But it may be observed that under that statute the commissioners’ report is made to the court, and the matter of its confirmation is for its determination. The court in that case is not only given jurisdiction over the appointment of the commissioners and their proceedings preliminary to their award, but their report is made the subject of consideration by the court. In the present case there is no charge of misconduct of the commissioners. ' The motion was founded upon an alleged error merely. The premises in question are described in the commissioners’ report as two adjoining parcels, to one of which the appellants have the legal title, and in the other they have an estate for years under a lease made by the city of Rochester, which lease will expire in April, 1969. The award was for the whole as an entirety; and it is said that the tax referred to is a lien upon only one of those parcels, and that such parcel constitutes but a very small portion of the land on which it is a lien. We think that the county court had no power to entertain a motion to set aside the report on the merits, and therefore it was properly disposed of by that court. The facts above mentioned in relation to the tax lien do not appear in the papers presented by the appeal from the commissioners’ report. The only question here is whether they properly inserted in it the provision to the effect that all taxes which are a lien upon the premises be deducted from the award.

It is said by the respondents’ counsel that, without regard to the provision to that effect in the report, the amount of the tax lien upon the premises is to be deducted from the amount of the award. That may be so, and in that view there would be no difficulty about it, if the tax lien covered only those premises. But ■suppose that it is only upon a small portion or a distinct parcel of them, and extended over other lands, how are they to be apportioned, so as to give the owner of the lands taken the benefit of the award, less the part of the tax properly chargeable upon it ? •Should the entire amount be deducted from his award, and he be compelled to seek his remedy against the persons who own the other premises, upon which the portion or the greater part of the tax is a lien, or should that be a matter to be adjusted by affirmative action on the part of the city? Our attention was called to no provision of the charter of any other statute on the subject. The tax lien, so far as appears, was not considered in the proceeding any further than to make it a provision in the report as before mentioned. Here were lands described in two parcels. Assuming that the tax lien was upon one of them only (and on that with other lands), it would seem to be a hardship to include the damages for taking both parcels in one award, and make it subject to the amount of the entire tax lien, and the injustice of it would be more palpable if the parcel upon which is the,tax lien were of but little value as compared with that of the other. Such might be the consequence when one only of two distinct parcels is subject to the tax lien, and the award a gross sum for both. The statute does not seem to render it necessary to subject the landowner to such embarrassment. The consequences of including the taking of both parcels in a single award is not upon the record necessarily the subject of consideration on this review. So far as appears, the commissioners did not deem it necessary to inquire whether or not any tax lien existed oil the premises. If there is any, the disposition of it had better be left for such application and adjustment as the rights of the parties may require, without direction in the report of the commissioners. It does not seem that a modification of it by striking such provision from the report will be unduly prejudicial to the city. The order of the county court should be affirmed, and the report of the commissioners should be annulled, unless the respondents stipulate to strike from the provision for the deduction of tax liens from the award, and in that event the report be so modified, and as modified confirmed.

All concur.


text:
    Joseph Schlitz Brewing Company, App'lt, v. Henry J. Ester et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    •1. Husband and wife—Creditors.
    Where the supplies for the wife’s business are partly furnished by her husband, she cannot claim the proceeds of such business to the exclusion of his creditors.
    3. Fraudulent transfer—Exempt property.
    Where some of the property, embraced in a bill of sale, is exempt from levy and a sale on execution, it as to such property is not fraudulent.
    3. Corporation—Foreign—Certificate.
    The statute requiring the production by a foreign corporation of a certificate is applicable only to actions on contract.
    Appeal from a judgment dismissing the complaint on the merits.
    The plaintiff, a judgment creditor of the defendant Henry J. Ester, charges that a conveyance by him through a third party to the other defendant, his wife, of certain premises known as “ Lot No. Ill,” in “ Beechwood Tract,” in the city of Rochester, was made in fraud of creditors ; also that a chattel mortgage and a bill of sale made by him to her of certain personal property were fraudulent as against his creditors ; and that the wife obtained and appropriated to her own use the sum of $600 belonging to her husband in fraud of his creditors. The relief sought is that conveyance, transfer and appropriation be adjudged fraudulent and void as against the plaintiff, etc.

      Henry M. Hill, for app’lt; Abraham Benedict, for resp’ts.
   Bradley, J.

The defendants became husband and wife upwards of twenty years ago. The deed of the lot in the Beechwood tract was made to both of them. There is evidence tending to prove and the court found that Mrs. Ester was then the sole beneficial owner of the premises, and that her husband was made a grantee in the deed without her consent or knowledge. It was made by the Beechwood Homestead Association, of which she was and her husband was not a member. The ,trial court found that the purpose of conveyance through the third person to her was made to correct the mistake in the first deed. This finding of the court has the support of evidence. The defendant Henry J. Ester was for some years the proprietor of the saloon and hotel, grocery and meat market, and on the same premises persons were entertained as boarders. The wife claims that the latter was her separate business. In August, 1890, Mr. Ester went abroad, and was absent about two months. During that time his wife had charge of his business, and received from the proceeds of it $600, more or less, which sum the plaintiff alleges she retained, and has not accounted for to the other defendant. While there is some confusion in the proof upon the subject, the evidence warranted the' conclusion that whatever amount Mrs. Ester did receive from the business of her husband during his absence was paid to and received by him from her after his return. The more substantial charge of fraudulent infirmity has relation to chattel mortgage of date April 7, 1892, made by Mr. Ester to his wife, and the bill of sale of the same personal property made by him to her on April 25,1892. The indebtedness upon which the plaintiff’s judgment was . recovered arose in 1889, and was against the defendant Henry J. Ester and Charles F. Schroeder, in the name of Charles F. Scliroeder & Co. The action was commenced against them in 1890. The defendant Ester appeared and answered the complaint. The other defendant, Schroder, did not appear therein. The action was reached upon the calendar in October, 1892. The defendant did not appeall, and judgment was then directed and entered for the plaintiff, and execution thereon against the property of both of the defendants was returned unsatisfied. The apparent, title to all of the personal property was then in Mrs. Ester, by reason of the bill of sale. The evidence tends to prove that at the time of the marriage of the defendants the wife had $1,300 or $1,400, and that she let her husband have a portion of the money; that after-wards to lots on Anderson avenue, in the city of Rochester, were purchased, and the deed was taken in the name of both of them as grantees, a building was erected upon the lots, and there were the meat market, grocery, saloon, and hotel and boarding bouse before mentioned. In 1884, through a third person, Mr. Ester made conveyance of his interest in those premises to bis wife, which was made to and taken by her in satisfaction of all claiine she then had against him.- Thereafter the husband carried on the business of the grocery, "meat market, saloon, and hotel until the bill of sale of April 25,.1892, was made. Since then the entire business has been conducted in the name of the wife. While for many years prior and up to that time the defendants assert by their testimony that the boarding was the separate business of the wife, supplies for the table came from the meat market and grocery as freely as required, and no account whatever between them was made or kept of such supplies, and the husband participated in the service of entertaining the boarders by waiting upon the table, etc. They severally had bank accounts, and by the consent of the wife her husband’s name was inserted in the books of the bank, so as to enable him to also draw against her account, which he did more or less. In fact they seem to have been working together in harmony, and their business transactions appear,,as between them, to have been in common. They did net deem it necessary to have entries or memorandum made of .any accounts between them. This was the situation until April, 1892, when the chattel mortgage and bill of sale in question were made, by which Mr. Ester transferred to his wife a quantity of property, consisting of cows, horses, wagons, furniture, tools, implements, liquors, and other personal property in and about the premises. About the same time he assigned to her a real estate mortgage held, by him, and transferred to his two sons of minor age certain certificates of stock in brewing companies. 'When those sales and transfers were made, he was left without title in his name to any property, as he testifies, nor had be any money. The testimony of the defendants was to the effect that the real estate mortgage to Mr. Ester was the product, to a considerable extent, of the money of the wife; that it was with her money that the brewing company stock was obtained by him; and that all the furniture included in the chattel mortgage and bill of sale was her property. When a husband and wife live and work together, the presumption is that her services are performed in her relation of wife, and that the business is that of the husband. Reynolds v. Robinson, 64 N. Y. 589; Coleman v. Burr, 93 id. 17; Porter v. Dunn, 131 id, 314; 43 St. Rep. 193. She may, however, engage in a busi ness separate from that of her husband, conduct it on her own account, and have the benefit of it. This, it is claimed, she did in keeping boarders, and it may be that she was permitted to treat it as her separate business. But the facts fairly derivable, and which may be inferred from the evidence, are that notwithstanding the supplies for that business were largely furnished by him, and the debts contracted in that behalf were mainly treated as his, the defendants seek to treat the proceeds derived from it as her money. This is well enough as between themselves, but it is hardly consistent with the rights of his creditors to thus permit the appropriation of his property and services by his wife to their exclusion. The trial court found that a portion only of the property included in the chattel mortgage and bill of sale belonged to the husband, and that the transfer of it to his wife “was made in consideration of her agreement to pay all of his indebtedness existing at that time. If the debt in question of Charles F. Schroeder & Co. to the plaintiff came within such indebtedness, it may be that the consideration would make the sale effectual and valid as against his creditors, as she must be deemed responsible and able to pay. Therasson v. McSpedon, 2 Hilt. 1; Barker v. Bucklin, 2 Denio, 45 ; Seaman v. Hasbrouck, 35 Barb. 151. But it may be that such expression of indebtedness would be construed to"embrace only the individual debts of the defendant Henry J. Ester, and not to include the partnership debt due to the plaintiff. At all events, Mrs. Ester has, so far as appears, indicated no purpose to pay it. It is suggested that some of the property embraced in the bill of sale was exempt from levy and sale on execution. As to such property the sale is not fraudulent, because it would not have been available to the plaintiff if it had not been transferred by the defendants. If, as the court found, the title of Mrs. Ester to the property of that character was not dependent upon the bill of sale, no question as to its exemption will arise. In view of all the circumstances, as represented by the weight of evidence, the conclusion is fairly required that the chattel mortgage and bill of sale were made and taken by the defendants with the intent to hinder and delay the plaintiff in the collection of its debt.

The charge against the validity, as against the creditors of Mr. Ester, of the deed from him, through another, to Mrs. Ester, of the lot in the Beechwood tract, and the charge that the money received by her from his business during his absence was retained by her in fraud of his creditors, are not sustained by the evidence. They are alleged in the complaint as causes of action distinct from that relating to the chattel mortgage and bill of sale, and, as this is an equity action, no reason appears why a new trial may not be confined to the latter cause of action alone. The statute requiring the production by a foreign corporation of a certificate is applicable only to actions upon contract. Laws 1892, ch. 687, § 15. This is not such an action. The judgment, so far as it relates to the issue arising out of the alleged cause of action-founded upon the charge that the chattel mortgage and bill of sale of the same property were made in fraud of the defendant Henry J. Ester, should be reversed, and a new trial granted, costs to abide the final award of costs, and in other respects the judgment should be affirmed.

All concur.


text:
    Charles B. Cartwright, Resp’t, v. Rome, Watertown and Ogdensburg Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Carriers—Loss of perishable goods.
    A carrier is liable for loss of perishable goods caused by delay in transporting them, where it receives them from a connecting line and detains them in the same cars in which they are received, until repairs ordered by its inspector are made.
    Appeal from a judgment of the county court, affirming a judgment of the justice’s court in favor of plaintiff.

      George L. Walker, for app'lt; Hugh McKay, for resp’t.
   Ward, J.

The trial was held in a justice’s court of Monroe county on the 20th of July, 1893, before the justice without a jury. Judgment was rendered against the defendants (now appellants) for $84.02. The complaint alleged that on the 13th of October, 1892, the defendants ’received from the Buffalo, Rochester and Pittsburgh Railway Company, for the plaintiff, 114 sacks of milkweed pods, of the value of $85.50, property of the plaintiff, which they, for a reasonable compensation to be paid to them, agreed to carry and deliver to Webster, N. Y., within a reasonable time after the receipt; that the defendants failed to so deliver, but had so negligently and carelessly treated the property, that it had become decayed and worthless, as well as the sacks containing the same, to the plaintiff’s damage, etc. All the allegations of the complaint were denied by the defendants, except the facts of their incorporation.

There was evidence before the justice tending to establish these facts: That the plaintiff resided at Webster, N. Y., which is upon a line of the defendant’s road, and was engaged in the manufacture of milkweed balls and artificial flowers from milkweed pods; that on the 12th of October, 1892, he caused to be delivered to the Buffalo, Rochester and Pittsburgh Railway Company, at their Pearl Creek station, and at a distance of about .fifty miles from Charlotte, seventy-five sacks of milkweed pods, containing three bushels in a sack, for which he took receipts of the company for shipment to Webster, hi. Y., over their line to Charlotte, and thence by the defendants’ road to Webster. The freight was in good order when delivered to this company, and on account of its being perishable the plaintiff was charged first-class freight; being an increase over ordinary freight not perishable. Forty of these sacks were shipped in one car to Charlotte, and thirty-five in another. These two cars reached Charlotte on the 14th of October, at three T. M., having been shipped on the 13th. The cars were placed upon the siding where deliveries are made from this Buffalo, Rochester and Pittsburgh Railroad to the defendants, the defendants connecting their road at that place with the Buffalo, Cochester and Pittsburgh. The conductors having charge of these cars immediately reported, on the 14th, to the proper officer of the defendants at Charlotte, and delivered what is called a “ through way bill ” of the freight of each car from Pearl Creek, N. Y, to Webster, 1ST. Y, stating the time of shipment from Pearl Creek; the time of arrival at Charlotte ; the name of consignee and point of destination; the weight of the articles; the rate of freight, which was first-class,—and described the articles as “ Sks. milkweed pods, 0. R,” and number of sacks, and gave the divisions of earnings between the Buffalo, Rochester and Pittsburgh Railway Company and the defendants for carrying this freight, which were equal. Without removing the freight from the cars, the defendants directed an employe, who was a car inspector, to examine these cars, which he did, and pronounced them in need of repairs, which, under the arrangement between the two companies, was to be done by the Buffalo, Rochester and Pittsburgh Railway Company. This it took from the 14th of October to the 19th of October to accomplish, and then the defendants passed those cars, with the freight, over their line, about eleven miles, to Webster, where they were delivered to the plaintiff on the 20th of October. The pods and the sacks in which they were contained were then found rotten and valueless. The plaintiff paid the freight $12, and recovered that, with the value of the pods in good order. Upon appeal the justice’s judgment was sustained by the county court, and the defendants again appealed, and are here with two objections: First, that the destruction of the freight was not due to the defendant’s negligence, but the delay was caused by the action of the initial company, the receiving company not being liable therefor; second, that the proof does not disclose that the freight decayed while in the possession of the defendants. The appeal, therefore, is purely upon questions of fact, which has rendered a somewhat extended statement of the facts and evidence necessary.

The justice’s court found as a fact that the loss was due to the negligence of the defendants; - and if the evidence, or the inferences therefrom, tend to support the conclusions of that court, they cannot be disturbed here. Assuming that the defendants became responsible in regard to this freight at the time that it reached Charlotte and the way-bill was passed to the defendants, and they took charge of the cars and inspected them, it is apparent that six of the eight days which occurred from the time of the delivery of the freight to the initial company to its receipt by the plaintiff from the receiving company occurred while the defendants were responsible for the freight, in whole or in part, and the justice’s court might very well infer that the injury to the freight occurred during the six days.

The serious question in the case, however, is raised by the first objection. What was the duty of the defendants, in this regard, upon the arrival of the freight at the siding at Charlotte ? By section 34 of chapter 676 of the Laws of 1892, it is provided that every railroad corporation “shall furnish sufficient accommodations for the transportation of all passengers. and property which shall be offered for transportation at the place of starting within a reasonable time previously thereto, and at the junctions with other railroads, and at the usual stopping places established for receiving and discharging way passengers and freight,” etc. The defendants are common carriers. They had a traffic arrangement with the initial road in regard to the carrying of freight. They shared with this road in the profits of such carriage. They had notice of the arrival of this freight at the place where it was their duty to receive it, and from the nature of the freight specified in the “ through waybill,” and the rate charged, the justice’s court had a right to find that they knew it was perishable. They also knew that they were sharing in the profits of carrying this perishable freight at advanced rates. They had the right to take this freight, and transport it in other cars. It was their duty to do so, rather than let it remain five or six days, until the cars were repaired in which it came, and during which time, from the nature of the freight, it was liable to be destroyed. The defendants cannot shelter themselves from the responsibility, under the arrangement with the initial company that it should repair the cars when their inspector pronounced them defective. Arailroad company receiving perishable property for transportation. is bound to forward it immediately "to its destination. This was their obligation at common law. Tierney v. Railroad Co., 76 N. Y. 308. At the time of the decision in this case, there was a statute in force imposing that duty (chapter 140, section 36, Laws 1850), which was repealed by the railroad act of 1892, but the common-law obligation still remains. In Insurance Co. v. Wheeler, 49 N. Y. 616, the defendants were operating a railroad running east" from Ogdensburg. The Northern Transportation Company, operating a line of propellers on the G-reat Lakes, and connecting with the defendants’ road at Ogdensburg, and having a traffic arrangement with the defendants, delivered a quantity of flour ata warehouse in Ogdensburg used in common by the two concerns, the expense of handling being paid in common. Held, that a delivery to this warehouse by the transportation company, with notice of the arrival of the flour, placed it in the possession of the defendants, and imposed upon them the duties and liabilities of a common carrier with reference thereto. A stronger case in this direction is Mills v. Railroad Co., 45 N. Y. 622. In Livingston v. Railroad Co., 76 N. Y. 631, 632, the court ■sustain the submission to the jury, by the trial court, whether the .sending of the waybills to the defendant, in a case very much like this in its leading features, did not put upon the defendant the responsibility of taking care of the goods and seeing that they were forwarded, and whether there was unreasonable delay on the part of the defendant—the same question of fact submitted to the justice’s court in this instance. The through waybill was the history of the transit of the freight, made up for both railroad companies, governing the transit, and defining the rights of the connecting corporations with reference to this freight; and upon its receipt by the defendants, it being at the place of connection, and subject to the defendants’ control, the duty-wasimposed upon them to receive and transport the freight within reasonable time, considering its character, to the place of destination; and, the trial ■court having found the defendants negligent in this regard, the judgment should be affirmed, with costs.

All concur.