text:
    In the Matter of an Attachment on the Petition of LESTER B. FAULKNER, Chairman, &c., Respondent and Appellant, v. JONATHAN B. MOREY and another, Respondents and Appellants.

      Power of bowrd of supervisors to authorize an inquiry into town matters — when its proceedings are void for want of jurisdiction over the subject matter — Oh. 190 of 1858, — a condition, not to sue for false imprisonment, cannot be imposed on vacat ing void process.

    On November 18, 1879, the board of supervisors of Livingston county-adopted a resolution appointing a committee to inquire who were railroad commissioners for the town of North Dansville, if any, with authority to-sen d for persons and papers, and take such proof of the subject-matter as to them might seem expedient, and if it appeared that any person or persons were reputed to be in occupation of such office, to notify him or them to appear before the committee and inquire when and by whom, and for what term of office, such reputed commissioners had been appointed. The relator, the supervisor of the said town, who was appointed chairman of the said committee, made an affidavit setting forth facts tending to show that no railroad commissioners had been lawfully appointed for the said town;, that a tax had been imposed upon it and collected, the proceeds of which it was his duty, as supervisor, to pay to such commissioners, to be applied upon the principal and interest of certain bonds issued by the town; that: certain persons claiming or reputed to act as such commissioners had beem duly notified and summoned to appear before the said committee and produce certain documents, and that they had neglected and refused so to do. Upon this affidavit a justice of the Supreme Court, acting under chapter 190 of 1858, granted an attachment for the arrest of the persons so summoned, and thereafter vacated the same on condition that no action for false imprisonment should be brought on account of the arrest.

      Held, that as the proposed inquiry was not instituted to enable the board of supervisors to discharge any duty imposed upon it -by law, or to enable them to look after the affairs of the county or protect its interests, and (he commissioners were not officers of the county, neither the said board nor the committee had jurisdiction of the subject-matter of the proposed inquiry, and that the attachment was properly vacated.
    That, as it was vacated for- a want of jurisdiction over the subject-matter, the court could not impose, as a condition thereof, a requirement that no-action of false imprisonment on account of the arrest should be brought.
    Cross appeals from, an order made by a justice of this court, vacating his former order, quashing the attachment issued by him herein, and also vacating the attachment on condition that no action be brought for false imprisonment on account of the arrest. The petitioner appeals from so much of the order as vacates the attachment. The defendants appeal from the other parts of the order, including that which imposes the condition above stated.

      Charles J. Bissell, for the petitioner.

      J. A. VcmderUp, for the defendants.
   Smith, J.:

This proceeding was had under the provisions of chapter 190 of the Laws of 1858, entitled An act to enlarge the power of the boards of supervisors.”

The first section of the act is as follows: — “ Section 1. Whenever the board of supervisors of any county shall deem it necessary or important to examine any person as a witness, upon any subject or matter .within the jurisdiction of such board, or to examine any officer of the county, in relation to the discharge of his official duties, or to the receipt or disbursement by him of any moneys, or concerning the possession or disposition by him of any property belonging to the county; or to use, inspect, examine any book account, voucher or document, in the possession' of such officer or other person, or under his control, relating to the affairs or interests of such county, the chairman or president of such board shall issue a subpoena in proper form, commanding such person or' officer to appear before such board at a time and place therein specified, to be examined as a witness, and such subpoena may contain a clause requiring such person or officer to produce on such examination all books, papers and documents in his possession, or under his control, relating to the affairs or interests of the county.”

The second section prescribes a mode of service of the subpoena.

The third section provides that whenever the board shall have appointed any member of their body a committee upon any subject or matter of which the board has jurisdiction, and shall have conferred upon such committee power to send for persons and papers, the chairman of such committee shall possess all the powers, and be liable to all the duties therein given to and imposed upon the chairman or president of the board.

By the fourth section it is provided that any person duly served with a subpoena and disobeying the same, shall be deemed in contempt, and it is made the duty of the chairman of the board or committee, as the case may be, to report the facts to the county judge, or a judge of the Supreme Court, who shall thereupon issue an attachment commanding the sheriff to attach such person and forthwith bring him before such judge.

The attachment in this case was issued upon the affidavit of the ■petitioner, Faulkner, which set forth, that he was a member .of the '.board of supervisors of the county of Livingston, and the supervisor of the town of North Dansville, in said county ; and that said board, at a regular annual session, on November 18, 1869, adopted a resolution containing certain recitals, and directing that a committee of three be appointed by the chairman to inquire who are railroad commissioners of said town of North Dansville, if any, by virtue of chapter 442, Laws of 1868, and that said committee have leave to report at any time to said board; and have power to send for persons and papers, and take such proof of the subject-matter as to them may seem expedient, and may convene at any time or place for such purpose as may seem to them expedient; and if it shall appear to such committee that any person or persons are reported to be in occupation of such office in and for the town of North Dansville, such reputed commissioners may be served with such notice as the committee may prescribe, to appear before said committee, and said committee shall inquire when, and by whom, and for what term of office, such reputed commissioners, if any, shall have been appointed.” The recitals contained in said resolution, as set out in the affidavit, were, in substance, that it is provided by chapter 442 of the Laws of 1868, that upon application to him in the manner therein prescribed, the sheriff of Livingston county shall appoint not more than three freeholders to be commissioners of certain towns in said county ; which commissioners may issue bonds in aid of the Erie and Genesee Yalley Railroad Company ; that it is provided by such law that said commissioners, when appointed, may borrow money on the credit of such towns; that it is provided that money raised by taxation in payment of such bonds shall be paid to such commissioners; that such commissioners are required to give bonds to the supervisor of the town for the faithful discharge of their duties; that the supervisor of North Dansville reports to said board that no such official bond of such officer-as is required by law has been in his possession; and that such supervisor has presented to the board a communication from the sheriff, stating that no such officers for said town have been appointed by him, or are shown by the records of his office to have been appointed by him or by any of his predecessors in office. The affidavit also alleged that the chairman of said board appointed the affiant, and two other members of the board, as such committee; that said committee duly met and organized, and after adopting a resolution reciting that the committee were informed that Alonzo Bradner, Jonathan B. Morey and George Ilyland, Jr., were reputed to be in occupation of the office of railroad commissioners of said town, and directing that the said persons be served with notice and forthwith subpoenaed to appear before said committee at a time and place named in said resolution, the committee adjourned to said time and place; and that the said persons were duly subpoenaed to appear before said committee at said time and place, and to produce certain documents named in said subpoena, all which they neglected and refused to do. The affidavit further alleged that said board, at their last annual session, ordered, levied and collected of the taxable property of said town the sum of 812,200, for the purpose of paying the principal and interest upon bonds issued in aid of the Erie and Genesee Yalley Railroad Company by said town ; that it is the duty of the said affiant, as supervisor, to pay over said moneys when collected and received by him to the railroad commissioners of said town; that deponent has no knowledge as to who are such railroad commissioners, and no information except that it is reported that said Bradner, Morey and Hyland claim that they have been appointed such commissioners ; that deponent has been unable to find, either in the office of the clerk of Livingston county, or in the office of the town clerk of said town of North Dansville, any appointment of any persons as railroad commissioners, and that deponent has been informed by the officers in charge of said offices, that no such appointment or oath was on file in their offices.

On that affidavit being presented to the judge, he granted an attachment, and afterwards, on the return of the attachment, all parties being before him, he vacated and quashed the same, on the ground, as appears from his opinion, that the board of supervisors and the committee had not jurisdiction of the subject matter of the proposed inquiry. We think his action in quashing the attachment should be affirmed. The proposed inquiry was not instituted to enable the board of supervisors to discharge any duty imposed upon them by law, or to enable them to look after the affairs of the county or protect its interests. The sole object of the inquiry was to inform the petitioner who were the proper persons to receive the money which it was his duty, as the supervisor of the town, to pay over. The paying over of the money was a matter in which the county had no interest whatever. It was purely an affair of the town. The commissioners were not officers of the county. ■ ■ The debt to be paid was the debt of the town, and the money was raised by a tax upon the town. It is true the agency of the comity had been employed to levy the tax, because the town had no taxing power, but the action of the county had been completed, the money, as the affidavit states, having been assessed, levied and collected. 'Whatever embarrassment the petitioner labored under, by reason of his lack of information as to whether there were any commissioners of the town, and if any, who they were, the board of supervisors had no authority to make inquisition for his relief.

But it is difficult to see what there was in the case to embarrass the petitioner. lie would have been protected by the law in paying over the money to commissioners defacto, especially if their claim to be such commissioners was not disputed. That there were persons who acted as commissioners is apparent, from the fact that the board of supervisors assessed and levied the tax. That, the board had no jurisdiction to do, except upon the report of the town commissioners. (Laws of 1868, ch. 442, §§ 4, Y, 8.) It is to be presumed, therefore, that the board had before them a report of persons assuming to act as commissioners of the town, and upon which report the board acted. For aught that appears, the persons so assuming to act were the defendants, who, as the petitioner was informed, were reputed to be in the occupation of the office ; and there is no evidence that there were any rival claimants.

But the scope of the inquiry set on foot by the board was not limited to the question whether the defendants were commissioners defacto j it included the question whether they were commissioners de jure. The resolution of the board directed the. committee to inquire when, by whom, and for what term of office the reputed commissioners were appointed, and the subpoena issued by the committee to the defendants directed them to produce their commission or letter of appointment, and such other documents in their control as might be required in the investigation of the subject. It is immaterial whether the object of' those requirements was to ascertain whether the appointments were valid, originally, or whether, being valid, the term of office created by them had expired ; in either case, the inquiry related to the right of the incumbents to the office. The title to the office, neither the board nor its committee had the right to try or determine for any purpose. The writ was properly quashed.

The only other question that need be considered is, whether the judge had power to impose as a condition of quashing the attachment, that the defendants should not bring an action for false imprisonment on account of the arrest. The cases are numerous in which a like condition has been imposed by the courts on setting aside process for irregularity. Many of them were cited by counsel on the argument. But when the vacatur is ordered as a matter of absolute right, it seems illogical and unjust to cut down the right by imposing conditions. See Cash v. Wells (1 Barn. & Ad., 375).

The counsel for the petitioner cites Rob v. Moffat (3 Johns., 257), Brown v. Treat (1 Hill, 225), McGovern v. Payn (32 Barb., 83), Smith v. Corbiere (3 Bosw., 634), and Edgerton v. Ford (11 Abb. Pr., 415), as cases in which a like condition was imposed, where the proceedings set aside were, as he contends, not irregular merely, but void. But in each of those cases the court had jurisdiction of the subject matter of the action and of the parties, and the defect complained of related to a matter of practice. In Rob v. Moffat, a judgment and execution were set aside, it appearing that the capias had never been served, notwithstanding the sheriffs return of service. The condition prohibited the defendant from suing for false imprisonment, but not from suing for a false return. In Brown v. Treat, the declaration contained two counts in assumpsit, a third for negligence of the defendants, as warehousemen, in not safely keeping and delivering to the plaintiff: certain goods, and a fourth count in trover for the same goods. Treat, one of the defendants, having been arrested on a ca. sa., issued on a judgment obtained in the cause, he was discharged on the ground that the suit was to recover damages for the non-performance of a contract. In McGovern v. Payn, and Smith v. Corbiere, it was held that an order of arrest was not authorized by the complaint on which it had been granted. The' same point of practice had previously been decided the other way, upon a similar complaint, in Crandall v. Bryan (15 How. Pr., 48). In Edgerton v. Ford, the plaintiff had waived his right to arrest the defendant, by taking a note for the debt, and bringing suit upon it. We have not been referred to a case, and we do not know of one,, in which a condition not to sue has been imposed on setting aside process as void for want of jurisdiction of the subject matter, and where, consequently, the entire proceeding was a nullity from beginning to end. In'such a case, we think the party, wrongfully arrested is entitled to an absolute and unconditional discharge. That portion of the order appealed from which imposes the condition should he reversed, and the remainder of the order affirmed.

The defendants are entitled to the usual costs of appeal and disbursements, to be paid by the petitioner.

Talcott, P. J., and Hardin, J., concurred.

Ordered accordingly.


source: Caselaw Access Project

author: Smith, J.:

license: Public Domain

text:
    ANN MURRAY, Respondent, v. WILLIAM JIBSON, Appellant.

      Settlement of action, in fraud of attorney's rights- — can only be mcat'dd on his application made in his own neme.

    The plaintiff, a married woman, having brought this action, under the civil damage act, to recover the damages resulting from the intoxication of her husband, alleged to have been caused by liquor sold to him by the defendant, the same was, after issue joined and before trial, settled by the parties, the defendant paying to the plaintiff $30, and each party agreeing to pay their own costs. The plaintiff executed to the defendant a release of the cause of action, under seal, and a stipulation, upon which an order discontinuing the action was entered. Thereafter, upon an application made in the name and behalf of the plaintiff, an order was made setting aside and vacating the settlement and discontinuance, upon the ground that it was made in fraud of the rights of the plaintiff’s attorneys.

      Held, that the settlement having been made in good faith between the parties, it was, as against the plaintiff, a bar to the further prosecution of the action by her, orto her suing again for the same cause of action.
    That so far as the rights of the plaintiff’s attorneys were concerned, they must be enforced in proceedings to be instituted by them and in their own name.
    That the order should be reversed.

      Appear from an order of the Oswego Special Term, vacating and setting aside a settlement, release, stipulation and order of discontinuance herein, and allowing the plaintiff to prosecute the action.

      A. Perry, for the appellant.

      J. A. <& I. B. Pathway, for the respondent.
   Smith, J.:

The plaintiff, a married woman, brought this action, under the statute known as the civil damage act, to recover damages resulting from the intoxication of her husband, alleged to have been caused by liquor sold to him by the defendant. After issue joined and before trial, the parties settled, the defendant paying to the plaintiff the sum of $30, and each party agreeing to pay his own costs. The plaintiff executed to the' defendant a release of the cause of action, under seal, and signed a stipulation allowing an order of discontinuance to be entered, on filing the stipulation, which was done. All this was without the knowledge of the plaintiff’s attorneys. The motion to set aside the settlement and the subsequent proceedings was made in the name of the plaintiff and in her behalf, on the ground that she was imposed upon and deceived by the defendant and his agents, and also upon the ground that the settlement was in fraud of her attorneys and ■without their consent. The court, at Special Term, held, upon satisfactory evidence, that the settlement was made in good faith, as between the parties, but the motion was granted upon the sole ground that the settlement was in fraud of the plaintiff’s attorneys.

We are of the opinion that, in granting the motion upon that ground, the Special Term erred. It does not appear that the attorneys complain of the settlement, as affecting their interests. The motion to set it aside was made in the name of the plaintiff and in her behalf. She cannot be relieved from her executed agreement simpl because it is prejudicial to her attorneys. To the extent of their lien, the attorneys are, in law, her assignees. (Martin v. Hawks, 15 Johns., 405; Wilkins v. Batterman, 4 Barb., 47.) Their rights- are not in her keeping. They might have moved to set aside the settlement on their account,, but -they have not done so. Where relief is sought solely on account of the attorney, he should be the actor. In Rooney v. Second Avenue R. R. Co. (18 N. Y., 368), the attorney was the respondent. In Marshall v. Meech (51 N. Y., 140), he was the moving party and the appellant. In Martin v. Hawks (supra), the attorney, as the assignee of his client, brought suit for his own benefit in the name of his assignor against the sheriff, for voluntarily permitting the escape of the defendant in the original action, who was in custody on a ca. sa., issued upon the judgment therein for damages and costs. So, also, in Wilkins v. Batterman (supra). For aught that appears in the present case the attorneys are content to let the settlement stand, and to look to their client for their costs, she having agreed to pay them as a condition of the settlement, and there being no evidence that she is not solvent and abundantly able to pay.

Again, the settlement having been made in good faith, as be: tween the parties^ there is no reason why it should not stand, as against the plaintiff, subject, doubtless, to the rights of her attorneys. So far as she is concerned, it is a bar to her further jrrosecuting the action, or suing again for the same cause, whatever remedy the attorneys may be entitled to in their own behalf. But the order appealed from,sets the compromise aside altogether,- and permits the plaintiff to prosecute her action, and that, too, without requiring her to restore the $30 which she received in consideration of the settlement. The only condition which the order imposes as to the money is, that if the plaintiff shall not repay it before trial, the defendant may set it-off against the damages which the plaintiff may recover in the action. If the defendant recovers, the order does not require restitution of the money.

■ If the views above expressed are correct, the question discussed by counsel, as to the construction to be given to the amendment of section 66 of the Code of' Civil Procedure, adopted in 1879 (Laws of 1879, ch. 542), is not in the case, and a consideration of it would be useless. Whatever the extent or nature of the attorney’s lien .upon the cause of action, before judgment, given by that. amendment, the court will not interfere to protect the lien except upon the application of the attorney, and it will not, upon such application, vacate or modify a settlement made by his client and the adverse party, in good faith, as between themselves, except so far as may be necessary to protect the attorney’s lien.

The order should be reversed and motion denied, with $10 costs, and disbursements.

Talcott, P. J., and Hardin, J., concurred.

So ordered.


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    MARGARET ROSE, Plaintiff, v. JOHN ADAMS, Defendant.

      Declcvrations of deceased owner of land — are admissible against those in privity with him — when declaration inadmissible as mere hearsay: ~ .

    In this action, brought by the plaintiff, as the widow and the grantee of the heirs at law of one Honness, to recover a lot of land owned by him, the defendant claimed that he had removed from New Jersey, and come to live upon the lot, and had improved and paid the taxes upon it, under a parol promise of the said Honness to couvey the lot to him if he would do so. Upon the trial the defendant was allowed, against the plaintiff’s objection and exception, to prove declarations made by Honness to the effect that he was going to give the lot to the defendant, and others to the effect that he had doue so.

      Held, that as the plaintiff was in privity with the party making the declarations, they were properly admitted against her..
    Subsequently the plaintiff gave evidence of declarations made by the defendant to the effect that he had agreed, by parol; to buy the lot of Honness for $1,100, and that he had paid part, but not all, of the purchase price. Thereafter the defendant was allowed, against the plaintiff’s objection'and' exception, to prove declarations of Honness to the effect that he had borrowed money of the defendant or was owing money to him.

      Held, that there was no identity of interest between the plaintiff and Honness, the deceased, as to the personal estate, and that-the declaration's of the latter that he, Honness, was owing money to the defendant were improperly admitted, being immaterial, and mere hearsay,
    ,■ Motion by tbe plaintiff for a new. trial on - exceptions taken at tlie Steuben Circuit, and ordered to be heard at the General Term in the first instance. . "' - '

      W. liumsey, for the plaintiff.

      tí-. B. Bradley, for the defendant.
   Smith, J.:

The action is ejectment, for a lot of land in Corning, Steuben county. One Conrad Iioriness is' the common source of title. The plaintiff is his widow (she having married again since his death), and she is also the grantee of his heirs at law. The defense is that Honness, who was the brother-in-law of the defendant, promised, by parol, to convey the land in question to the defendant, if he would remove from the State of New Jersey, where he then lived, and reside on the land, Honness wishing to have the defendant for a neighbor; and that the defendant did so x’emove, lived on the land, improved it, and paid the taxes on it.

At the trial; the defendant, to establish the defense, gave evidence of declarations made by Honness, some to the effect that he was going to give the lot to Adams if he would remove and live on it, and others to the effect that he had done so. The plaintiff objects that the-testimony was improperly l’eceived. We think the statements of Honness, to the effect above stated, were competent evidence, as against the plaintiff. This is upon the ground that as to the land, the plaintiff was in privity with the party making the declarations. (1 Greenl. Ev., § 189; Chadwick v. Fonner, 6 Hun, 543; S. C., reversed, but upon another point, 69 N. Y., 404; Spaulding v. Hallenbeck, 39 Barb., 79; S. C., affirmed, 35 N. Y., 204.)

After the defendant rested, the plaintiff gave evidence of the defendant’s declarations that he had made a parol contract to buy the land of Honness, at the price of $1,100, and that he had paid a part, but not all, of the price. In' reply to this, the defendant was permitted to show, under the plaintiff’s objection and exception, declarations of Honness, that he had borrowed money of the defendant, or was owing him money. The objection taken was, that the testimony was incompetent and immaterial, and that it was hearsay. We are inclined to think the objection good. The fact that Honness had borrowed money of Adams, and was owing, him therefor, liad no tendency to disprove the allegation that Adams had purchased the laud of Iionness at an agreed price, a part of which was still unpaid. There is no evidence, so far. as we can discover, that the money alleged to have been borrowed by Iionness, was the same money which the plaintiffs evidence tended to show, was paid to him on the contract. So far as-the proof goes, the alleged borrowing was a transaction outside of the contract and wholly independent of it, and as to such borrowing, there was no privity between Iionness and the plaintiff There being no identity of interest as to the personal estate, the testimony was inadmissible. (1 Greenl. Ev., § 189.) For.aught that we can see, such testimony may have led to the verdict, and its reception was error.

Several other exceptions were taken, which we have examined and do not find meritorious, but for the reason above stated, we are of the opinion that there should be a new trial, with costs to abide the event.

Talcott, P. J., and H'audin, J., concurred.

So ordered.


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    HARRISON GILMORE, Respondent, v. THE ONTARIO IRON COMPANY, Appellant.

      What imbi'ummt regarded as a lease — burden of proof.

    The plaintiff, by a written instrument, dated October 18, 1873, leased to the defendant twenty-five acres of land, upon which was a bed of iron ore, for the term of five years, and for such further time as he might require to mineallthe ore therein, he agreeing to pay to the plaintiff'twenty cents for each ton removed, and to remove, at least, eight thousand tons a year; the agreement binding him to remove all ore where the vein was oyer fifteen inches in thickness, and leaving it optional with him to do so or not where the vein was of less thickness. In an action brought, to recover the sum of $1,600, claimed to be due for the year ending October 18, 1877, it appeared that the defendant had been in possession of the premises, and uncovered between one and two acres thereof, and that he had paid the, sum of $1,600 for each of the preceding years.

      Held, that as the instrument transferred to the defendant the use and occupa- - tion of the premises, at a fixed compensation to be paid annually, it was a. lease.
    That to justify a recovery by the plaintiff, it was not incumbent upon him to show, by express testimony, that there continued to be ore upon the premises during the year for which it was sought to recover rent.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      J. O. Goohrune, for the appellant.

      A. O. Coxe, for the respondent.
   Smith, J.:

This is an action to recover the sum alleged to be due- upon an instrument in writing, dated October 18, 1872, by which the plaintiff leased to the defendants twenty-five acres of land in the town of Ontario,' Wayne county, upon which was a bed of iron ore, for the term of five years, and for such further time as the defendants might require, to mine all the ore thereon. The. defendants agreed tó mine at least eight thousand tons each year; and to pay therefor at the rate of twenty cents a ton. Up to the time of the trial, the defendants had uncovered between one and two acres-only. But they had paid the stipulated sum, amounting to $1,600 annually, until the year ending October 18, 1877, and the plaintiff’ seeks to recover the sum of $1,600, alleged to be due at that date.. The defendants agreed to mine all the - ore on said lot where the vein was fifteen inches in thickness, and when less, it was optional with them to mine it or not. There was no reservation of rent except as above stated.

At the trial the plaintiff proved the agreement and a demand of rent, and rested.

The defendants then moved for a nonsuit on the grounds that the instrument put in evidence was not a lease, and that by the terms of the instrument nothing was due unless ore was shown to-be on the premises. . The motion- was denied, and the. defendant’s counsel excepted. , •

' In that, we think, there was no error.. - The instrument was a lease, as it transferred to the defendants the use and occupation of the premises, at a fixed compensation, to be paid annually;. and we incline to the opinion that, under the circumstances, it was not incumbent on the plaintiff to show by express testimony that there continued to be ore on the premises. The defendants being in exclusive possession, had the best opportunity of knowing how the fact was in -that respect, and-their continuance in possession justified the presumption as against them, in view of the’ stipulations of the lease, that the- ore was not exhausted. Furthermore, the pleadings cast upon the defendants the burden of proof upon that issue. The -answer alleged affirmatively that .the vein of ore had ceased to be fifteen inches in thickness, while the complaint contained no averment on the subject.

After the motion for a nonsuit was denied, the defendants undertook to prove that the ore was exhausted, but their-evidence showed very clearly that there was ore on the lot, and that in some places it was over fifteen inches in thickness. It is true they proved that in parts of the area uncovered the ore was not over fourteen inches in thickness, but that fact did not constitute a defense, so long as the defendants retained possession of the premises, inasmuch as the contract gave them the option to mine the ore or not, when less than fifteen inches in thickness. And as they had no right to retain possession beyond the .time necessary to enable them to mine and remove the ore, according to the stipulations of the lease, their continuance in possession not only raised the presumption that the ore was not exhausted, but it also continued their obligation to pay to the lessor at the rate of twenty cents a ton upon eight thousand tons each year. That was the measure of compensation fixed by the parties, for the use and occupation of the ore bed.

The learned counsel for the appellant argues that the agreement is not equivalent to an undertaking to pay $1,600 a year rent; that as the ore, if not mined, would remain the property of the lessor, he would sustain no damages, if the ore was worth more than twenty cents per ton; and if worth less, his damages would only be the difference between the actual value and the price agreed to be paid. The argument leaves out of sight the fact that by the lease the defendants acquired from the plaintiff the possession of Ov hed and the exclusive right to mine and remove the orei The agreement was made upon the assumption by both parties that the defendants would be able to mine the stipulated quantity, unless the ore was exhausted, in which case it was incumbent on them to surrender possession.

The counter-claim interposed by the defendants arises upon a bond given by the plaintiff, to return to the defendants any over-payments made by them upon the lease, whenever the defendants should have exhausted the ore. As it .was not shown that the ore had failed, the bond cannot, as yet, be enforced.

Some other exceptions were taken at the trial, but they were not discussed on the argument, and are not of sufficient merit to require comment.

The judgment should be affirmed.

Talcott, P. J., and Hardin, J., concurred.

Judgment affirmed.


text:
    ARTHUR HENRY and others, Plaintiffs, v. MICHAEL REICHERT, Defendant.

      When one of two grantees under quit-claim deeds may, as against the other, dispute their grantor's title — In ejectment the plaintiff must recover on the strength of his own title.

    Where both the plaintiff and defendant in an action of ejectment claim under quit-claim deeds given by a common grantor, the defendant may show that such grantor had no title, and that nothing passed by either of the deeds executed by him.
    In an action of ejectment the plaintiff must recover upon the strength of his own title, and the defendant need not show title in himself until some right to disturb his possession has been shown by the plaintiff.
    Motion by the defendant for a new trial on exceptions taken at' the Cattaraugus Circuit, and ordered to be beard at tlie General Term.
    The action was one of ejectment, to recover a lot of land in Olean, Cattaraugus county.

      Bolles c& Moulton, for the plaintiffs.

      Gary <& Jewell, for the defendant.
   Smith, J.:

At the trial, each party showed a chain of conveyances from one Wright to himself. Of the two deeds executed by Wright, that under which the plaintiffs claimed was prior in date and registry to that on which the defendant relied. If nothing more had appeared, that state of the proof would have entitled the plaintiffs to recover, for as against the defendant it showed, prima facie, that Wright had the title at the date of his conveyance under which the plaintiffs claim. (Cox v. James, 45 N. Y., 557; 2 Greenl. Ev., § 307.) But the defendant was not thereby concluded. The deed from Wright under which the plaintiffs claimed was a mere quit-claim, and it does not appear that the deed to the defendant’s grantees was anything more. It was, therefore, competent for the defendant to show, if he could, that Wright had not the title, and that nothing passed by cither of the deeds which he executed. (Sparrow v. Kingman, 1 Comst., 248; Averill v. Wilson, 4 Barb., 180; Bigelow v. Finch, 11 Id., 498.) It appeared without dispute that the parties through whom the plaintiffs claimed to have derived title from Wright were never in possession of the premises.

David Iiall testified that he occupied the premises for about two years, commencing in 1840 or 1841, but never claimed to own them, and that Wright went in under an arrangement with him by which the witness transferred his possession to Wright. ' lie gave Wright no wilting at the time, and told him he was not the owner; but, after repeated requests from Wright, the witness gave him a quitclaim deed. The deed was executed and acknowledged on October 8, 1867, more than six years after Wright had executed the quitclaim deed under which the plaintiffs claim, but it was dated back to the year 1845. Wright made little or no improvement on the premises, and his occupation of them was not continuous. Lambert Whitney testified that in 1851 he became the agent of certain parties at the East who claimed to own the premises •, that Joseph Blount, of New York, was the agent for tho owners ; that David Day was tlie local agent before the witness took the agency ; that Wright occupied the land under Day as agent, Wright agreeing tO' pay the taxes; and that when witness took the agency, he agreed, with Wright that he might continue to occupy on the same terms,, and Wright continued in possession accordingly, “until,” as tho witness testified, “ the oil excitement came up, and then they began: to manufacture these deeds.” The testimony of TIall and Whitney was uucontradicted, and it showed very clearly that Wright never had any title to the premises.

The plaintiffs can only recover on the strength of their own title,, and the defendant need not show title in himself, until the plaintiffs have shown some right to disturb his possession. If Wright had no title, the plaintiffs have none. They have not even' a possessory right, for Wright’s possession was not under claim of title until 1867, and his grantees, under whom the plaintiffs claim, and thé plaintiffs themselves, have never been in possession.

There should be a new trial.

Hardin, J., concurred; Talcoit, P. J., not sitting.

New trial granted, costs to abide event.


author: Hardin, J.:

text:
    JAMES DOLAN, Respondent, v. THE ÆTNA INSURANCE COMPANY, Appellant.

      Policy of Reinsurance — when the question of the fraudulent intent of the assured should be left to the jury — when a verdict should not be set aside because the jury has had an unauthorised paper before it.

    This action was brought upon a policy issued by the defendant, insuring the . plaintiff’s barn, house, and the personal property, wearing apparel, &c., therein, against loss by fire. It contained a clause providing “that any fraud or attempt at fraud, on the part of the assured, shall cause a forfeiture of all claims under this policy.” Upon the trial, it was shown that there was included in the proofs of loss a-sealskin sacquc, valued at $75, given by some person other than the plaintiff, to his unmarried daughter Mary, who was twenty-seven years old, but. who had. always.resided with and been •provided for by him.- There was evidence to show that the agent of-, the •defendant the insurance company, with knowledge of the facts, had directed ¡the daughter to appraise the sacque, and that it had thereafter been included in the proofs of loss.

      Meld, that it was for the jury to say whether or not the plaintiff inserted the sacqne in the proofs of loss, with a willful intent to defraud the defend-ant, and that a verdict in the plaintiff’s favor would not- be disturbed.

      Meld,, further, that neither the fact that the plain tiff stated in his proofs of loss that the damage to the building amounted to $1,017.64, while it had been estimated by the appraisers at $694, nor the fact that ho had stated to the agent that the building was worth from $3,500 to $4,000, while it was, in fact, worth less than that amount, was conclusive evidence of an attempt to defraud the defendant, and that the question whether they were or not, was properly left to to the jury.
    The constable having allowed the jurors, after they had retired, to come into the court-room, they, while there, found upon the floor and took back to the jury room with them, a memorandum of the items of damages, made by the plaintiff’s attorney and used by him in summing up. The court, upon the jury subsequently applying to it for instructions, discovered that they had this memorandum, and, upon ascertaining how they had obtained it, took it from them, remarking that they had no right to it and must give no heed to it. The damages, as found by the jury, agreed with the directions contained in the charge of the court, in regard thereto.

      Meld, that a motion to set aside the verdict, based upon this irregularity, was properly denied. Mitchell v. Carter, 14 Hun, 448, distinguished.
    Appeal from a judgment in favor of tlie plaintiff, entered upon .a verdict rendered at the Cayuga Circuit, and also from an order ■denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried; also, from an order ■denying a motion to set aside the verdict for an alleged irregularity, in respect to the possession, by the jury, of a paper containing a ¡statement of the items of damages.
    The action was upon a policy of insurance issued by the defendant on July 15, 1876, insuring the plaintiff against loss by fire, •on his house in Auburn for $2,500; on the personal property, wearing apparel, &c. therein, for $1,500 ; and on his barn, for $500.
    A fire occurred on September 5, 1876, which partially consumed the house and personal property. Proofs of "loss were presented -on October 14, 1876. The jury rendered a verdict for $1,822.66. The defendant alleged that the fire was fraudulent and felonious, having been set by the plaintiff, or with his knowledge or connivance. And also that the plaintiff fraudulently misrepresented the value of the house at the time the policy was procured. One Mealier was defendant’s agent in Auburn, and had his place of business in the Auburn Savings Bank.

      E&wvn Hieles and H. V. Howland, for the appellant.
    The conduct of the jury on the trial, in obtaining the memoranda made by the plaintiffs counsel, was irregular, and their verdict should be set aside. {Drew v. Andrews, 8 Hun,' 23 ; Mitchell v. Canter, 14 Id., 448 ; Hiél v. Abel, 24 Wend., 185 ; Hancock v. Salmon, 8 Barb., 564, 566; Watertown, &c., v. Mix, 51 N. Y., 561; Schnapper v. Railroad Co., 55 Barb., 497; Sanders v. Bowen, 9 Iiun, 153.) It is not necessary for a party to show prejudice, where such irregularity and misconduct has taken place. Men’s minds will unconsciously be influenced by sxich statements, in writing, when put before them as jurors. (1 Hill, 211; 45 Barb., 98; 17 Mass., 218; 7 Com. L., 433 ; 29 Barb., 226; 51 Id., 346; 20 How. Pr., 384.) Dolan attempted, knowingly and fraudulently, in his proofs of loss, to obtain of the defendant, and to claim of them under oath, far more than his real damages and loss to his house, and for this reason his whole claim was forfeited. (Wood on Insurance, § 429, and cases there cited ; Hickman v. Long I. Ins. Co., Edm. Sel. Cas., 374; Wolf v. Goodhue F. Ins. Co., 43 Barb., 400 ; Unger v. People's Ins. Co., 4 Daly, 96.) The evidence shows that the plaintiff must have set these incendiary fires himself, and that the verdict in his favor ought not to be sustained. {Adsit v. Wilson, 7 How. Pr., 64; Clark v. Richards, 3 E. D. Smith, 89 ; Mwmford v. Smith, 1 Cai., 520 ; Vance v. Philips, 6 Hill, 433; Jackson v. Sternberg, 1 Cai., 162 ; Cohen v. Dupont, 1 Sandf., 260.)

      Frank D. Wright, for the respondent.
    The court properly denied the motion to set aside the verdict on account of the jury having taken the memorandum. {Lonsdale v. Brown, 4 Wash. C. Ct., 148; Rix v. Burdett, 1 L. & B., 148; 21 Yennont, 515; 1 Graham & Waterman on New Trials, 47; Anson v. Tinsley, 19 Geo., 303 ; Higgins v. Brown, 12 Iuv 277; Morris v. Howe, 36 Iowa, 494 ; Tracy v. Card, 2 Ohio [N. S.], 431.) ■
   Hardin, J.:

The policy of insurance provides, viz.: ■ And any fraud or attempt at fraud, on the part of the assured, shall cause a forfeiture of all claims under this policy.” The defendant insists that the plaintiff, in submitting proofs of loss, violated this provision of the policy, and therefore, ought not to recover. At the time of the fire, Mary Ann Dolan, a daughter of the plaintiff, was residing with him, and had continued so to do after she was twenty-one, as before, a member of his family; he provided for her as for his other children, though she was twenty-seven years of age. Several articles used by her and provided for her wearing apparel, were named in the proofs of loss. Among them was a set of fursj valued at $75, which were given her by a person not a member of the plaintiff’s family.

The trial judge instructed the jury. The plaintiff cannot recover for the sealskin sacque and furs, if the jury find that they were given to her by some other person than her father.” He submitted to the jury the question as to ownership of the other set of furs or sacque, and instructed the jury that the plaintiff “ is only entitled to recover for such wearing apparel as was his.” He also told the jury that if the father had given it to her out and out, he had no title to it.”

We think the ruling and instructions correct. But it is insisted that, by claiming, in the proofs of loss, these furs and other articles of wearing apparel, furnished by the father for the daughter, a forfeiture was caused of all claims under the policy. ¥e cannot so hold as a matter of law. The question of fraudulent intent in regard to the proofs of loss were submitted very fully to the jury, and we ought not to disturb their finding in that regard. (Wood on Insurance, § 429, p. 744; Wolf v. Goodhue Fire Insurance, 43 Barb., 400.)

There was evidence that the sacque was appraised by Mary Ann a few days after the fire, by the direction of Mr. Stowell, the agent of the company, and also to the effect that he was then informed as to the circumstances attending the plaintiff’s possession of it, and that it was given by some person to his daughter. This information the defendant’s agent had, at the time he told her to appraise it, which was prior to the formal proofs.

It was for the jmy to say whether there was any willful intent to defraud the defendant by inserting it, with the other articles appraised by the agent’s direction, in the proofs of loss subsequently submitted to the defendant. The defendant insisted that the fire was caused by the knowledge, act, or procurement of the plaintiff. There is no direct proof to sustain this allegation. Circumstances •and events are relied upon. It is said the house was over insured, and opinions of witnesses are introduced to establish that it was not worth more than $1,200 or $1,400.

The property was minutely described and all the facts relating to its age, its construction, its situation, were developed. The fact that for many years it had been insured for $2,000, and that this new policy was written for $2,500 ; that an estimate had just before been obtained as to the probable cost of changing it over, and that the house was set on fire in four places, and that kindling wood, or split boards were used to light the fire, and that three of the fires were set near plaintiff’s sleeping-room, and many other circumstances tending to give rise to the suspicion that the plaintiff caused his house to be fired, were given in evidence. Standing uncontradicted, they tend to lead the mind to condemn the plaintiff as the guilty author of the fire. But he took the ntand and contradicted the principal allegation, by giving evidence to the effect that he did not cause or procure the fire to be set.

lie had previously been examined before a sheriff’s jury, and upon a former trial of this action. Upon this trial he did not remember some things he had previously stated, and he varied his evidence in some particular points, and contradicted some evidence given, by other witnesses. Under such circumstances, the trial judge submitted all-the evidence very cautiously and clearly to the jury, with.instructions to find for the defendant, if they believed the plaintiff caused the' house to be burned. They have found, upon a full consideration of the evidence, that he was not the author of the. fire. Though we might have come to a different conclusion upon the case after reading the evidence, we cannot now say that the trial judge erred in holding that a fair question of fact was presented for the determination of the j7-

We do not see that the verdict is against the weight of the whole evidence upon the question involved, to such an extent as to justify our interference with the province of the jury. They are -the judges upon conflicting evidence. We must adopt their result. (Adsit v. Wilson, 7 How. Pr., 64.) Although Stout and Spring-stead, the chosen appraisers, estimated, the day after the fire, the •damages to the building at $694, and the assured, on October 14, 1876, submitted proofs of loss, in which he stated the damages at $1,017.64, we do not think it was error to submit to the jury, whether such proofs were fraudulent, or made with a willful intent to defraud the company. It was the opinion of the assured that his loss was greater than the estimate thereof made by the appraisers. The company knew of the appraisal, and it is difficult to see how any deception was intended ujDon the part of the assured.

Though, as a matter of law, as the trial judge properly held, he was bound by the appraisal, the claim may have been in the entire faith and honest belief that the damages were $1,017.64, instead of $694. The jury having found that there was no fraudulent and intentional over-valuation of the loss, we do not feel at liberty, under the evidence upon the question, to disturb their verdict. (Wood on Insurance, 429, § 220, and eases cited.)

There was evidence given tending to show that the assured represented the house to be worth $3,500 or $4,000. This was controverted, and the plaintiff claimed, as a witness, that he did not state its value over $2,500. The agent who wrote the policy had his place of business only a few streets from the insured prop•erty, and it is difficult to supjjose he was free from negligence if he wrote the policy, without personal knowledge of its situation and value. But suppose that he did, then it was a question of fact upon the evidence for the jury to determine whether the assured, in stating the value of the house, was guilty of “ an intentional and fraudulent over-valuation,” or whether it was an honest error of judgment, or a mistake. (Insurance Co. v. Weides, 14 Wall., 375; Franklin Ins. Co. v. Vaughan, 92 U. S., 516.)

It is urged that the court committed a fatal error in receiving tbe evidence of Yanderbascbe, tbat be bad made an estimate of tbe damages caused by tbe fire, and that the estimate was careful. Totbe proof of tbe amount of tbe estimate an objection was taken by tbe defendant, and tbe question was reserved. At a later stage of tbe case tbe evidence was again offered, and tbe court, upon tbe defendant’s objection, excluded it, and ruled that tbe parties were bound by tbe agent’s appraisal. It is now urged tbat where illegal evidence, properly excepted to, has been received during the trial, it must be shown tbat tbe verdict was not affected by it. If tbe evidence may Lave affected tbe verdict, the error cannot be disregarded. (Erben v. Lorillard, 19 N. Y., 299.)

Applying tbat rule to tbe rulings under review, we think no-fatal error was committed. Tbe amount of tbe estimate was excluded, and it therefore did not affect tbe verdict. Tbe fact that an estimate bad been carefully made by tbe witness could not affect tbe verdict. It did not affect tbe minds of tbe jury upon tbe question of damages, or any other question in tbe case. (Williams v. Fitch, 18 N. Y., 546; Clark v. Crandall, 3 Barb., 613.)

It is insisted tbat it was error to receive tbe evidence of Mary Ann Dolan, as to articles of personal property and their value. Tbe objection was “ tbat damages must be arrived at in tbe manner provided by tbe policy.” Tbat is tbe only ground of Objection which can now be considered. (Tooley v. Bacon, 70 N. Y., 34.)

Soon after tbe fire Mr. Stowell, as agent of tbe company, proceeded to investigate tbe fire and ascertain tbe loss. The witness, Mary Ann, testified tbat “ Mr. Stowell told her to appraise she then did so, with tbe aid of her mother. Certainly it was competent for tbe company to arrive at tbe damages in that mode, and after tbe estimate or appraisal was so made, it was competent for tbe plaintiff to give evidence thereof. It was not error to receive such appraisal in connection with tbe explanations given in connection with it.

It appeared by the evidence of Springstead, who was called by tbe defendant, tbat he and bis partner pulled down tbe old bouse after the fire, and built a new one “ a little larger and considerably higher than tbe old bouse.” Tbe defendant then asked, “Do you know what was tbe cost of tbat bouse.” Tbe plaintiff objected, and tbe court sustained tbe objection. Tbe knowledge of the witness upon that subject did not appear to be competent or material to any.issue before the court. (Gouge v. Roberts, 53 N. Y., 619.)

It is now argued that the evidence should have been received upon the question of motive. If there was any view in which such evidence could be pertinent upon the question of motive, the attention of the trial judge should have been directed to it. We think the ruling was correct. When F. M. Smith was giving evidence of the estimate and appraisal made by him, he spoke of his estimate as containing missing goods, and he said “ $6.57 would be the value of the goods that were missing, based upon what they showed me.”

This was objected to, and the objection sustained, as we read the case. Then the plaintiff offered the appraisal, Exhibit M. This was objected to and received, and the defendant took an exception. The exhibit contained items for goods missing, $6.57, and we do not see any predicate for their recovery in the evidence.

To the extent of $6.57, we think the appraisal was erroneously received. We must, therefore, allow the defendant the benefit of this erroneous ruling, which we may do by requiring a stipulation that it (with interest upon it) be stricken from the damages. (Birkbeck v. Burrows, 2 Hall, 51.)

II. The appeal from the order refusing to set aside the verdict for irregularity, brings before us an inquiry as to what the effect was, or might possibly have been, made upon the minds of the jury, by a summary of the items of damages, which was obtained accidentally by the jury. It had been used by counsel for the plaintiff, in the course of his address to the jury, and apparently left by mistake on the table or floor, where he stood when addressing the jury. While they were retired, they were allowed by the constable, during the night and Sunday, to return to the courtroom, and they picked up the summary. After they came in possession of it, they had occasion to go into court for instruction. While before the court, the judge discovered that they had the summary, and asked the jury where they obtained it. They explained, and he then took it from them, remarking to them that they had no right to the paper, and they must give no heed to it.

They retired, and subsequently agreed upon their verdict. Under such circumstances, it is fair to presume they obeyed the instruction that was given them by the judge. ’ But upon looking into the paper, we find nothing upon it that could, by any possibility, relate to any question in the case, except the one of damages, that was not the subject of contradicting evidence offered by the defendant; and under the proofs in the case, we have come to the conclusion that the amount of damages was clearly warranted by the evidence.

Our attention has been directed to our decision in Mitchell v. Carter (14 Hun, 448), where we sustained an order setting aside a verdict because the jury had the minutes of the trial judge. We think this case is unlike that in the important particulars we have stated, as we must presume that the jury obeyed the instructions of the trial judge to give no heed to the summary of the figures showing the amount for which the recovery should be had.

Besides the judge had instructed the jury, without exception, save as to the claim of $75 for the sacque, that the recovery should be for the sum which the jury gave. We ought, therefore, to apply the rule which requires us to disregard such irregularities as we can see did not influence the jury in reaching theif verdict. (Code Civ. Pro., 1003.) We think the Special Term properly denied the motion based upon the alleged irregularity. These views lead-us to reverse the judgment and orders, unless the plaintiff shall stipulate to strike out $6.57 and interest thereon, from the time when the loss became payable, in which ease the judgment, as modified, will be, with the orders appealed from, affirmed.

Judgment and .orders reversed, and a new trial ordered, with costs to abide the' event, unless the plaintiff shall stipulate to deduct the sum of $6.57 and interest thereon, from December 14, 1876, in which case tiie judgment, as so modified, and the orders, arc affirmed.

Talcott, P. J., and Smith, J., concurred.

Ordered accordingly.


text:
    JACOB F. HUMBERT, Respondent, v. JOHN WURSTER, Appellant.

      Mxemtor — when he cannot transfer assets until letters home been issued to him —2 H. 8., 71, § 16.
    Where it is apparent from the terms of a will, that the testator intended to invest his wife with the character of executrix thereof, though she is not expressly so named therein, she cannot, until letters of administration with the will annexed have been issued to her by the surrogate, transfer or sell any of the assets of the estate, unless such transfer or sale be necessary for the preservation of the estate, or to enable her to pay the funeral expenses.
    This is so although by the terms of the will the wife is given “full power and control to lease or sell ” the real or personal property.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought upon a due bill, which belonged- to one Christian Kiblee in his lifetime. He died; leaving a last will and testament, which contained, among others, the following provision, viz.: “ First, I give to my beloved wife, Fredrika Kiblee, full power and control to lease or sell, as she thinks best, for the benefit of my family, all my real estate and personal property during her lifetime.” It also provided that after certain sums were paid, “ the balance is to be divided equally among my children.” No person was in terms designated as executor. The will was proven, but no letters testamentary, or letters of administration, with the will annexed, were issued. The widow undertook to transfer the due bill to the plaintiff, who claimed title through her transfer, and made proof of no other title rqson the trial.
    Proper-objections and exceptions were taken to her title, and it was claimed that he was not the real party in interest, and was not entitled to maintain this action. These positions were overruled, and the case was at the Circuit disposed of upon other issues, which were not considered by the General Term.

      James 8. Gibbs, for the appellant.

      George Wing, for the respondent.
   Hardin, J.:

It must be conceded that the intention of the testator to invest his wife with the character of executor may be fully implied from the terms of the will. (Willard on Ex., 186; Exp. McDonnell, 2 Bradf., 32; Bayeaux v. Bayeaux, 8 Paige, 333; Hartnett v. Wandell, 60 N. Y., 354.) And as she was not named in the will expiessly as executrix, she might have been appointed administratrix with the will .annexed, upon a proper application therefor to the surrogate.

Upon such an appointment having been made, she would have had the legal title to the personal property, and been authorized to sell it in the execution of her duties, and also in virtue of the power given to her in the testator’s will. By section 6 of 2 Revised Statutes, 82, the due bill would pass as an asset to the hands of an administratrix. Prior to the Revised Statutes, an executor might, before probate, commence an action for injury, and an administrator only after letters of administration, and they related back to the time of the death. (Valentine v. Jackson, 9 Wend., 302.) But the Revised Statutes (2 R. S., 71, § 16), have changed the common law rule. That section provides “ no executor named in a will shall, before letters testamentary are granted, have any power to dispose of any part of the estate of the testator, except to pay funeral expenses, nor to interfere with such estate in any manner further than is necessary for its preservation.” This statute contains a limitation of the powers of an executor. (Thomas v. Cameron, 16 Wend., 579.)

It was not shown that the sale of the due bill was to enable the widow to pay the funeral expenses. It was not shown that the sale of the due bill was necessary for the preservation of the estate. The statute, therefore, if we assume that she was entitled to letters testamentary, restrained her disposition of the personal assets.

As a condition precedent to her right as executrix to sell, she should have taken out letters. We think she did not have the right to transfer the due bill. Consequently the plaintiff acquired no title thereto, and was not entitled to maintain an action upon it. (Heidenheimer v. Wilson, 31 Barb., 638; Ogden v. Smith, 2 Paige, 197.)

There is nothing in Judson v. Gibbons (5 Wend., 224) which aids the respondent, as that case arose before the Revised Statutes. Nor in Newton v. Bronson (13 N. Y., 593), as it was there assumed that a donee of a power might act under the power conferred by the will, provided he complied with conditions precedent hy qualifying as executor; nor is he aided by Dominick v. Michael (4 Sandf., 401).

Roome v. Phillips (27 N. Y., 357), assumes that an administrator with the will annexed is not authorised to execute a power to sell lands conferred by the testator upon his executor, and in that respect adopts Dominick v. Michael (supra), and Conklin v. Egerton (21 Wend., 430).

Taylor v. Morris (1 N. Y., 341), is an authority that one who •qualifies as executor may execute a naked power, though two others named as executors do not qualify or join in the execution of the power.

In Bolton v. Jacks (6 Robt., 228), Jones, J., intimates an opinion that a trustee, named as such and also as executor, may execute a naked power as to real estate, without qualifying as executor. He ■does not allude to the statute, forbidding an executor to interfere with the estate before letters testamentary are granted.

We do not regard that case as an authority adverse to the views we have expressed, as it was apparent the person named did not take the real estate as executor, but as the donee of a power in his ■character as trustee.

In the Special Term case of Williams v. Conrad (30 Barb., 530), no allusion is made to the statute, and the question here presented was not involved.

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

Talcott, P. J., concurred; Smith, J., not sitting.

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


text:
    IRA S. BENNETT, Appellant, v. HENRY BAGLEY and others, Respondents.

      Agreement that certain articles shall be sold under an execution, as personal property-—when the debtor is estopped from claiming they were part of the realty — A creditor redeeming from a sale under an execution also estopped — Who cannot object to a sale because made in bulls instead of in porreéis.

    After certain, property of one Paine had been levied upon under an execution,, issued upon a judgment recovered against him by one Bagley, and advertised for sale, a question arose as to whether an engine, boiler, and certain machinery so levied upon, were real or personal property. Thereupon it was-agreed by and between, Bagley, Paine and the sheriff, that the same should be, and the same were treated and sold as personal property; the judgment creditor buying tbe same, and also the real estate, relying upon the said agreement. Thereafter and before the expiration of the'time to redeem the real estate so sold, the plaintiff, who had recovered a judgment against Paine after the said sale, redeemed the said real estate from the same, and took a deed thereof from the sheriff. The said boiler and machinery were conveyed to the defendant by a purchaser from Bagley, to whom the same had been voluntarily surrendered by Paine before the recovery of the-second judgment.
    In an action by the plaintiff to recover the said articles, on the ground that-they formed part of the realty,

      Held, that Bagley having purchased the same in reliance upon the said agreement, Paine was estopped, as against him, from claiming that they were-part of the realty.
    That the plaintiff, by redeeming under his subsequently recovered judgment, acquired no greater rights than his debtor had.
    The plaintiff claimed that the sale of the personal property was void, because-it had been sold in bulk, instead of in parcels.

      Held,, that he could nbt in this action question the regularity of the sale on that ground.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe report of a referee, dismissing tbe complaint with costs.
    Lucien E. Paine was a judgment debtor against whom two judgments were, recovered on March 28, 1876, by Henry Bagley. Executions were issued on tbe judgments, and placed in tbe bands of tbe sheriff, who levied on tbe personal property of tbe said Paine, including an engine, boiler, and machinery described in the complaint herein and situated in a building upon tbe land of said Paine.

      The sheriff advertised the property, by virtue of the said executions, to be sold on the premises of Paine on July 8, 1876.
    The referee found that on the day so appointed for such sale, and previous to any sale being made, it was agreed, by and between Bagley, the judgment creditor, and Paine, the judgment debtor, and the sheriff, by his deputy then hblding the executions, for the then expressed purpose of realizing the largest amount of money upon such sale (there being some question raised as to whether such property was real or personal estate), that the said property so levied upon and advertised, being the property described in the complaint, should be treated as personal property, and put up and sold as personal property, by the license of the said Paine.
    That the said property was then and there, and in pursuance of such agreement, and in the presence of the said parties, put up and sold as aforesaid as personal property, at public auction, to the highest bidder. That the said Bagley was the highest bidder therefor, and that he bid relying upon the agreement aforesaid in relation thereto. “ That the said machinery . . was capable of being moved, without injury to the building remaining, or to itself, and that the same was turned out by the said Paine to the deputy sheriff, and was by him inventoried as personal property, after the agreement was so made to so treat it.” That the land was thereafter put up and sold, and bid in for $250 by Bagley. That Bagley, in bidding the price he did for the real estate, did so in good faith, and relied upon the said agreement. Thereafter Ira S. Bennett, the plaintiff in this action, and his partners, on November 13,1876, recovered a judgment against Paine for $687.34. On July 8,1876, the sheriff issued to Bagley a certificate of sale of the said real estate. In September, 1876, Paine, in pursuance of the sale of the personal property, voluntarily surrendered to the said Bagley the key to the said buildings, and the possession of the property mentioned in the complaint.
    In October, 1876, Bagley sold the machinery and property to one Miller, who thereafter sold one-half interest therein to the defendant Woodworth, and in April, 1877, the defendants removed the said machinery and property from the shop or place of sale to the premises of Miller and Woodworth. On October 3, 1877, Ira S. Bennett, the plaintiff herein, redeemed the real estate from the said sale, and took a deed thereof under such redemption from the sheriff. Bagley took the money paid upon such redemption. The plaintiff demanded a return of the personal property, and brought this action for it. The referee found, as a matter of law, that the plaintiff was not entitled to refcover.

      Osgoodby dk Moot, for appellant.

      F. O. Peck, for respondents.
   Hardin, J.:

"We think the conclusions of fact reached by the referee were sustained by the evidence.

The judgment debtor, by his agreement that the engine and machinery be sold as personal property, which agreement was acted upon, manifestly influenced the judgment creditor, in bidding upon the real estate, thus divested of the machinery. By the agreement, and the reliance placed upon it by the judgmeut creditor, the judgment debtor became estopped from claiming that the machinery was a part of the real estate as against the judgment creditor. (Sisson v. Hibbard, 75 N. Y., 542.) When the debtor subsequently allowed a judgment to be taken against him, upon which the redemption was had of the real estate, he had parted with the right to insist upon the machinery being treated and held as real estate. (Jones v. Graham, 77 N. Y., 628.) The redeeming creditor therefore acquired no rights or interests in the machinery, which had thus been severed from the real estate. The redeeming creditor acquired no greater rights than he would have, had he sold the interest upon execution, which Paine had in the real estate, after the agreement and sale of the personal property and its severance from the freehold. (Miller v. Lewis, 4 N. Y., 554.)

Section Í461 of the Code of Civil Procedure has no application to the case before us, as it was not in force at the time the agreement was made ; nor do we think the subsequent creditor, with a judgment subsequent to the agreement as to how the sale should be conducted, can question the regularity of the sale upon the ground that the property was sold in bulk, instead of in parcels.

It might be conceded that the debtor, upon motion, if he had not made the agreement, could have had a resale, and still the subsequent and redeeming creditor could not avail in this action of the supposed objection to the regularity of the sale. (Smith v. McGowan, 3 Barb., 405; Neilson v. Neilson, 5 Id., 565.)

. We are referred to Tugwell v. Bussing (48 How. Pr., 90), where Taxcott, J., states the general rule that it is the duty of a sheriff to sell in parcels; and that a person who sustains damages by its violation may have an action, but we find nothing in that case which trenches upon the conclusion stated above. It was held in Cunningham v. Cassidy (17 N. Y., 276), that a sale made in gross is irregular and voidable at the instance of the party aggrieved, but it is not void.

We find nothing in Mandeville v. Reynolds (68 N. Y., 528), inconsistent with the views already stated. That was a case where an action was brought upon a judgment, and it was held to be competent to show, that a satisfaction thereof had been fraudulently obtained and entered of record.

We have examined the exceptions in the rulings made by the referee. We are not able to say that any error was committed which was prejudicial to the plaintiff, upon the main questions which have been determined against the plaintiff.

We must therefore affirm the referee’s report and the judgment entered thereon.

Taxcott, P. J., and Smith, J., concurred.

Judgment affirmed.


author: Hardin, <T.:

text:
    OLIVER H. DAY, Respondent, v. THE NEW YORK CENTRAL RAILROAD COMPANY, Appellant.

      Oral agreement, not to be performed, within a year — no damages recoverable for breach of — lohen property parted with on the faith of may be recovered baclo— Interest — not allowed when the damages an'e unliquidated.'

    In 1855, the plaintiff and defendant entered into an oral agreement, by which-, the former conveyed to .the latter (a railroad company) certain lands, and a right of way over other real property, and the latter agreed to lay a separate track to the adjoining lands of the plaintiff, and to bring the cattle- and stock, which might come to it from the West, to the said plaintiff’s-lands, to be there fed and cared for. The plaintiff convoyed the land and right of way to the defendant, but the latter shortly thereafter repudiated the agreement, and failed and refused to bring the cattle to the plaintiff’s, yard.
    In this action, brought by the plaintiff in 1857, to recover the damages occasioned to him thereby, Held, that as the parol agreement was void, because it was not to be performed within one year, the plaintiff could not recover the damages occasioned by the breach thereof.
    That, as the defendant had repudiated the agreement after a partial performance thereof, the plaintiff was entitled to recover the value of the land and. right of way conveyed, after deducting therefrom the value of the partial performance of the agreement by the defendant, viz., the profits made by him from the business brought to him by the defendant.
    That, in determining the amount of the profits realized by him, the amount expended by him in the construction of the cattle yards and sheds, and the-rental value of the land covered by them, were properly submitted to the jury, for their consideration.
    That, as the value of the land and the right of way was iiotfixed by the agreement, and as it could not be ascertained by reference to any public market, or computed by reference to any well-ascertained mode, the damages were unliquidated, and that it was error to allow interest from the time of the commencement of the action upon the value, as determined by the jury.
    Appeal by the defendant from a judgment in favor. of tlio plaintiff, entered upon tbe verdict of a jury, and from an order denying a motion for a new trial, made upon a case and exceptions.
    This action was commenced November 30, 1857, to recover the damages caused by the failure of the defendant to carry out an oral agreement made with the plaintiff in 1855. By the agreement the plaintiff agreed to, and did convey to the defendant certain lands. .and a right of way over others, and the defendant agreed to lay a ¡separate track to adjoining lands of the plaintiff, and bring to sheds and a yard to be prepared by him all the cattle and stock that might come to it from the West. The defendant, thereafter, repudiated the agreement and refused to perform it. The suit was •originally instituted to recover the profits, alleged to have been lost before the commencement of the action. There was a general ■denial, and upon this issue the action was brought to trial November 16, 1858, and a verdict rendered for the plaintiff for §4,384. ;On an appeal to the General Term, taken by the defendant, a new trial was ordered upon the ground that the agreement between ■the parties, not being in writing, was void by the statute of frauds, because it was not to be performed within one year, and because it ■created an interest in the lands of the plaintiff. (31 Barb., 548.)
    The plaintiff then amended his complaint, by adding a second •count, being a common count for land and right of way sold; for use of lands and premises; and for work, labor and materials, and •expenses in constructing cattle yards, &c. Under the pleadings as .amended a second trial was had, and a verdict rendered for the plaintiff May 20, 1867, for §2,500. The defendant again appealed "to the General Term, and a new trial was granted by the General Term in November, 1867 (53 Barb., 250), upon the ground that 'the court, on the trial, erred in charging the jury that they might .allow the plaintiff damages for the diminished value of the use of the cattle yards and pens, occasioned by the refusal of the defend-ant to perforpn its contract, and that the recovery should have been limited to such damages as would compensate the plaintiff for •what the defendant had received from him under the contract. The cause was again tried on January 29, 1868, and a verdict was rendered for the plaintiff for §828.58. The defendant again •appealed to the General Term and thence to the Court of Appeals, .and in March, 1873, a new trial was granted by the Commission of Appeals ; Eael, O., delivering the opinion. (51 N. Y., 583.) The •court on the trial charged the jury that the plaintiff could recover for the value of the land and right of way; and the new trial was granted, upon the ground that this charge was wrong, and that the plaintiff could only recover the value of the land and right of way, deducting therefrom the profits realized by him from the business during the time of the performance of the agreement on the part of the defendant. A fourth trial was had in September, 1876, when the jury disagreed, and a fifth trial on February 6, 1877, when a verdict was rendered for the plaintiff for $500, as the value of the land and right of way, after deducting the profits and interest thereon, from November 30, 1857, amounting in all to $1,171.56.

      E. G. Sprague, for the appellant.

      Ellsworth c& Potter, for the respondent.
   Hardin, <T.:

When this case was before the Commission of Appeals, that court decided, viz.: “ When one conveys to another lands under a parol agreement not to be performed within one year, and so void under the statute of frauds, if after a partial performance, the grantee repudiates the agreement the grantor can recover the value of the lemds, deducting therefrom the value of the partial performance......In an action to recover the value of the land conveyed, the plaintiff was entitled to recover the value deducting therefrom the profits realized by him, from the business during the time of tli & performance of the agreement on the part of defendant. Also as the profits received were part of the consideration, plaintiff was not bound to tender them to defendant before bringing suit.” (Day v. N. Y. C. R. R., 51 N. Y., 583.) The learned commissioner, in delivering the opinion of the court, said : “ The agreement cannot be enforced. Neither party can, in this action, bo allowed any benefit from it, or any damage for its breach, the defendant having repudiated the agreement, the plaintiff can recover for his land as if there had been no agreement as to the amount of the consideration; but lie must allow so much of the consideration as has been paid, and if he has received more in the profits of the business which the defendant brought to him under the agreement, than the value of his land, he can recover nothing. If the profits are less than the value of the land, then he can recover the balance.”

¥e must accept the conclusions thus laid down as the law of this case, and in examining the trial now before us, apply them to the case. In Richards v. Allen (17 Maine, 296), quoted by the learned commissioner who delivered the opinion we have just quoted from, it was said : But the plaintiff’s claim must be limited to what is just and equitable under dll the eirenmstemees.” At the close of the evidence the defendant asked to have the court direct a verdict for the defendant and to grant a nonsuit. The court declined, and an exception was taken by the defendant. Among the grounds put forward in the motion, it was stated, “ that no profits were shown to exist, and that farther, no basis has been established for computing such profits, so that the plaintiff in any event is only entitled to nominal damages.”

And also upon the further ground that the contract alleged and sought to be proved in this action, was void by the statute, not being in writing, and also because it operated in the restraint of trade and was against public policy. We must assume, as was held by the Commission of Appeals, that the contract was void. As the defendant took the objection to the contract, and it being void, the plaintiff was entitled to recover the value of his land and right of way conveyed to the defendant in reliance upon such void agreement, it became a question of fact for the jury upon the evidence to determine what was the value of the land and right of way conveyed by the plaintiff. So, too, under the ruling of the Commission of Appeals, it was a question of fact for the jury to determine, what' if cmy profits the plaintiff received from “ the business which the defendant brought to him under the agreement.”

As there was a conflict in the evidence in respect to what profits, if any, the plaintiff received, we think the court properly refused to take that question from the jury, and there was no error in regard to it in overruling the defendant’s motion that a verdict be directed for the defendant. It was also a question of fact for the jury to determine what were the terms of the contract, and whether the defendant was justified in receding from it, or in re fusing to keep its terms, or whether it was justified in turning its business aw ay from the plaintiff, by reason of the terms of the agreement, or by any failure on tbe part of tbe plaintiff to observe tbe conditions and stipulations of the contract. It is urged upon ■ us that “the court erred in allowing the jury to ascertain what would have been made by the plaintiff upon the contract, if this business had been continued, and had not been terminated by the defendant, and whatever that may be, not, however, exceeding in any event what may have been the value of the lands.”

The language of the case in regard to the exception claimed to present error is, viz.: “ Defendant’s counsel excepted to the charge that the jury may find that the plaintiff would have received profit enough to reimburse him, ” and asked the court to charge the jury that the burden of proof lies upon the plaintiff to prove that this business would have been profitable. The court so charged.

"We do not think the exception as thus presented brings any error of which the defendant can complain. As already stated, the defendant by its request induced the court to put upon the plaintiff the burden of showing “that the business would have been profitable,” and then the defendant excepts to a consideration of the evidence as to the profitableness of the business after the commencement of the war. The court thereupon stated, viz.: “that I think I must allow the jury that liberty in the case, if they reach that point, &c.” "We think that was quite as favorable as the defendant was entitled to have the jury instructed. Nor do we think there was any prejudicial error in instructing the jury that they might find that there was an agreement by the defendant for a definite period of time.

It is claimed by the defendant that the court erred in admitting evidence of the cost of the construction of the cattle yards, and of the value of the irse of the lands. The objection to this evidence, was that “ it called for immaterial matter in reply.”

The witness then stated that the cost of the construction was $5,911.98, the yards occupied twenty acres of land, the rental value of the use of the twenty acres was $150 per year. The only question presented by the exception is whether the evidence was immaterial. As we have already seen, the inquiry before the jury was what profit, if any, has the plaintiff received out of the business which the defendant brought to him under the agreement. In determining what that profit was, we think it was proper to inquire how many cattle he had fed, what expense he had incurred to purchase or provide feed and accommodations for them, and in the providing suitable accommodations for carrying on the business contemplated by the contract. The yards, the sheds, the ground and the use thereof, seemed to be as essential to carry on the business contemplated by the contract as the produce for the cattle.

We do not see how the profits derived by the plaintiff in the business could fully and justly be ascertained, without considering the legitimate and necessary outlay for yards, sheds, and the use of the land required in the business contemplated by the contract, the profit of which was to be off-set or abated against the value of the land. The inquiry was at most one difficult to be made, one difficult of determining exactly and accurately at the time of the trial, so remote from the period when the business was transacted. No business mind would be satisfied in its inquiry for the profits derived by the plaintiff, without the two facts which were the subject of the exception we are coiisidering.

Standing alone these two facts would not solve the question, but in connection with the other facts disclosed, they were pertinent and material, to bring about an accurate solution of the question. As said by Woodruff, J., in Taylor v. Bradley (39 N. Y., 144) “ to reap the benefit of it (the business), he must incur expense, submit to labor and appropriation of his stock,” &c. A true deduction could not be arrived at, without taking all the facts attending legitimately the carrying forward of the business contemplated by the contract. We think the evidence was properly received and submitted to the jury upon the question of what profits the plaintiff had received from the business of the contract. It is apparent that with these two facts, coupled with all the other facts and circumstances,” it is difficult to determine what profits the plaintiff derived from the business taken to him by the defendant, and which naturally and legitimately sprung out of the events brought in review by the evidence. No such demonstration can be made from the evidence, as satisfies the mind beyond doubt of its accuracy.

The whole field of inquiry was open to the jury, and their verdict must be assumed to be the result of a fair consideration of all the evidence, after giving each circumstance its due weight. We do not feel at liberty to disturb the verdict as against the evidence. The case seems to be one of those cases, where, as the appellant states, “ it is problematical,” and we may add, where the solution is so difficult that we cannot set up our conclusions upon the evidence as superior and more accurate than the one reached by the jm'y-

We see no hardship upon the defendant in requiring it to pay the value of the land, and right of way received by it, less any profits that the plaintiff received through the business of arranging for and feeding cattle temporarily in the possession of the defendant as a common carrier. After applying such profits as part payment due for purchase of the lands, and right of way, the defendant has been found indebted to the plaintiff. Such indebtedness has been in arrear ever since the commencement of this action, November 30, 1857. We think the jury was not authorized to award interest from that date to the rendition of their verdict.

The value of the land and right of way had not been fixed in terms. It remained unliquidated; it could not be ascertained, by reference to any public market, or computed by reference to any well ascertained mode. (McMahon v. N. Y. & Erie Railway, 20 N. Y., 469; Smith v. Velie, 60 Id., 107; White v. Miller, 78 N. Y., 393; opinion of Earl, J.) Nor was the defendant in default in not furnishing a computation basis. We therefore think the case falls under the general rule of unliquidated damages, and that the exception is well taken in respect to the allowance of interest.

We must therefore reverse the judgment, and order a new trial, unless the plaintiff shall stipulate to modify the judgment by striking out the interest, to wit: $ , in which event the verdict will stand for $500, and interest from the date of its recovery. And as so modified, the judgment will be affirmed without costs. If such stipulation be not given, a new trial should be ordered, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

Judgment and order reversed, costs to abide event, unless tbe plaintiff stipulates to reduce tbe verdict to tbe sum of $500, ip wbicb case tbe judgment as so modified and tbe order are affirmed, ■without costs of this appeal. i


author: JIaedin, J.:

text:
    WILLIAM J. KING, Jr., Respondent, v. THOMAS LEIGHTON, Appellant.

      ■Settlement of partnership accounts — when it will be set aside because of the false and fraudulent statements of one partner — what allowance should be made for uncompleted contracts.

    In October, 1870, the plaintiff and defendant formed a copartnership for building and erecting iron bridges, the plaintiff furnishing the shops, engines, machinery, &c., and the defendant the cash capital. July 19, 1872, the plaintiff having been adjudged a bankrupt, the partnership was terminated, and the defendant paid to the plaintiff’s assignee, certain moneys on account of plaintiff’s interest in the business, and thereafter rented the shop and machinery, at first from him, and subsequently from the plaintiff, paying a stipulated rent therefor, up to November, 1873. Iu February, 1873, the bankruptcy proceedings havingbeen dismissed, the plaintiff had a settlement with the defendant, and, upon the receipt of a certain amount from the latter, executed a receipt in full for all claims against the firm.
    In this' action, brought by him to obtain a resettlement of the partnership affairs, it was claimed, and found by the referee, that he was induced to make the said settlement by false and fraudulent representations, made to ■ him by the defendant, as to the amount of the net earnings of the business.

      Held, that, even though the plaintiff might, at the time of the settlement, have ascertained the actual condition of the accounts, yet, as the defendant had volunteered to make statements in regard thereto, the plaintiff was entitled to rely upon them, and that their falsity relieved him from the effect of the receipts then given.
    By the copartnership agreement, the plaintiff was entitled to receive one-third of the net profits of the business. Upon the restatement of the' accounts by the referee, he was allowed to recover one-third of the net profits realized from the completion of the work on hand, and unfinished at the time of the dissolution of the firm in July; 1872.

      Meld. that this was error.

      Semble, that the allowance, if any, should have been based upon the value, if any, of the uncompleted contract at the time of the dissolution of the firm.

      Appeal from a judgment in favor of the plaintiff, entered upon, the report of a referee.
    The parties were, in October, 1870, copartners in the business-of building and erecting iron bridges, &c. The plaintiff furnished the shops, buildings, steam-engines, machinery and tools, known as King’s Iron Works, at Buffalo, and the steam power necessary to-' drive the said machinery, as his part of the capital.
    The defendant furnished the cash capital. The plaintiff became insolvent, and was adjudged a bankrupt July 19, 1872. Thereafter his assignee demanded a settlement by the defendant of the plaintiff’s interest in the copartnership. The defendant, on January 3, 1873, paid, on account of such matters, the sum of $5,187.73, and gave a receipt therefor February 17, 1873. Thereafter the proceedings in bankruptcy were dismissed, and the plaintiff was. restored to and resumed possession of his estate and effects, on February 2 or 3, 1873. He then sought an adjustment with the defendant. On February 28, 1873, such an adjustment was had, and the defendant paid to the plaintiff $5,018.28, which the plaintiff received in full of all claims and demands growing out of the copartnership business, and gave a receipt'in full for such demands and claims. This receipt stated the mode and particulars of the payment of said $5,018.28, aDd then proceeded, viz.: “ The above being in full for rent of works to date, as well as all claims against the firm of Leighton & Company.”
    Thereafter the defendant continued the business on his own account. The plaintiff withdrew all his capital contributed to the firm, and subsequently charged the defendant for, and. received rent for the shop, machinery, and power.
    The referee found : “ That at or about the time of, and before the transfer of the recepits of said iron company, and of the execution and delivery to the defendant of the sadd receipt of February-28, 1873, the defendant falsely and fraudulently stated and represented tó the plaintiff the net earnings and profits of said copartnership during the contimua/nce thereof ¡ did not exceed the sum of $19,000.”
    “ That the plaintiff, relying upon such statements and representations, and believing the same to be true, received cmd accepted the «aid receipts of said iron company in settlement of said claims and demands, as alleged in the answer, and executed and delivered to the defendant the said receipt of February 28, 1873.” He also found that the net earnings exceeded $19,0u0, and were about $49,000, and that the defendant made the said false statements to procure the said settlement, and the execution and delivery of said .receipt of February 28, 1873.
    It appeared by the evidence that the defendant had paid thirteen bills, for rent of shops and power, to the receiver of plaintiff, the ■assignee, and to plaintiff, covering the time between plaintiff’s bankruptcy and November 7, 1873. The rent was charged at $20 per day for part of the time, and at $35 per day for the residue thereof.
    In a former suit between these parties it was found that the defendant occupied the said shops, buildings and power, under an •agreement to pay rent, which agreement was made about July 12, 1872, and that such occupation continued up to November 7, 1873, ■and that the rent therefor was paid in full by the defendant, the last payment having been made on November 18,1873.

      W. F. Cogswell, for the appellant.

      Rogers loche, for the respondent.
   JIaedin, J.:

I think the evidence sufficient to uphold the finding of fact made by the referee, that the defendant falsely stated that the profits did not exceed about $19,000, and that the plaintiff relied thereon, whereas in truth the profits exceeded $49,000. It may be conceded that the plaintiff might, at the time he accounted with the defendant on the basis of $19,000 profits, have ascertained the actual situation of the accounts. Yet the defendant ought to have made time statements if he made any, and if he assumed to know what the profits actually were. The plaintiff was justified in reposing upon such statements, and the plaintiff ought not to be defeated by an imputation of negligence. (Mead v. Bunn, 32 N. Y., 275; Clark v. Rankin, 46 Barb., 578.)

Assuming that the settlement of February 28,1873, was not con-elusive upon the plaintiff, and that he was entitled to have and receive-the actual profits, which had been earned at the time of the dissolution of the copartnership by his bankruptcy in July, 1872, we come to the question as to wliat rights the plaintiff has in the contracts that were on hand at the time of the dissolution, and which contracts were subsequently carried out by the defendant.

The referee has allowed the plaintiff to recover one-third of the-profits, made by the defendant after the dissolution, upon contracts-then in existence, and has stated the profits to be some $02,650, and as the plaintiff by the original agreement was to have one-third of the profits, the defendant has been charged $21,000 and. upwards.

In that respect we think the referee has fallen into an error. The bankruptcy of the plaintiff in July, 1872, worked a dissolution of the copartnership. The defendant immediately treated the dissolution as accomplished, and agreed upon terms with the-plaintiff for the use of the shops and power. The fact is found by the referee in a former action between the parties. The defendant by that arrangement was to pay rent for what had thereto been the capital contributed to the copartnership by the plaintiff.

lie paid rent for the shop and machinery and power up to November 7, 1873, which was as long as he had the use of the same. The plaintiff claimed the rent and received the last of it as late as November 18, 1873. Tims we see the plaintiff had, himself, voluntarily withdrawn his original contribution to the capital of thecopartnership. Thus he treated it as dissolved.

His acts in regard to such withdrawal, and Iris countenancing the-payment of profits to his assignee on account, and his own negotiations for an adjustment, indicate an intention rrpon his part to-treat the copartnership as dissolved, and the unfinished business as transferred to the defendant, subject to a fair ascertainment of the actual profits and value of the assets of the firm at the time of its-dissolution. (Collender v. Phelan, 9 Weekly Dig., 571; opinion of Rapallo, J.; S. C., 79 N. Y., 366.)

Having withdrawn his capital and his own personal services, and become insolvent, so that his financial standing was impaired and his-credit gone, and having charged rent and received it, upon 'what. was his share of the capital stock, I think it would be inequitable to allow him to take the same share in the profits of the business, carried on by the defendant after the dissolution, as he was entitled to prior thereto. (Lindley on Partn., 830, etc.; Willett v. Blanford, 1 Hare 253; Simpson v. Chapman, 4 De G., Mac. & G., 154; Wedderburn v. Wedderburn, 22 Beav., 84.)

The dissolution, the withdrawal of capital, evinced such an intent to withdraw from the firm as to relieve the plaintiff from liability to pay subsequently contracted debts, as to the defendant, and as to creditors and dealers having notice thereof. And as to the defendant from liability to pay subsequently accruing losses. Under such circumstances the plaintiff ought not to receive the one-third of the profits which the defendant produced by his services and capital subsequent to the dissolution.

It may be that the defendant should upon a fair adjustment, between the parties, of the affairs at the time of the dissolution, and prior to the withdrawal of his capital, receive an allowance for the uncompleted contracts, if they then had 'an appreciable value.

But that question has not been discussed, so we have not the aid of the research of counsel and do not pass upon it, as it is not necessary to do so at this time. If we were to discuss it and reach a conclusion favorable to the plaintiff, we should still be obliged to send the case back for ascertainment of the value of such contracts at' the time of the dissolution.

Judgment reversed ' and a new trial ordered before another referee, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

Ordered accordingly.