text:
    The People, Resp’ts, v. Charles Harris, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Disorderly persons—Offer of support.
    Defendant was convicted as a disorderly person for failing to support Ms family. On the trial he introduced in evidence a letter written by him to his wife to‘the effect that he would support his wife and child and furnish them transportation to the point where he was then at work. The letter did not state the place where he required her to go. Held, that it was a question for the magistrate to determine whether the letter was written in good faith and with intention to carry out the offer, and that under the circumstances a conviction, based on a belief that it was not, would not be interfered with.
    Appeal from a judgment of the sessions of Cattaraugus county, affirming a judgment of a justice of the peace, convicting the defendant of the offense of being a disorderly person, under subdivision 1 of § 899 of the Code of Criminal Procedure.

      George W. Cole, for app’lt; J. H. Waring, for resp’ts.
   Macomber, J.

Upon proceedings properly instituted before a magistrate in the town of Salamanca, the defendant was convicted as a disorderly person within the definition of sub-division 1 of § 899 of the Code of Criminal Procedure, which is as follows:

“ The following are disorderly persons:
“ 1. Persons who actually abandon their wives or children, without adequate support, or leave them in danger of becoming a burden upon the public, or who neglect to provide for them according to their means.”

The defendant was required in pursuance of § 901 of the same Code to give security by a written undertaking with one or more sureties, approved by the magistrate, to the effect that he would support his wife and child and indemnify the county and town against their becoming within one year a charge upon the public.

The main defense urged before the county court and before us is that there was no evidence showing that the defendant had abandoned his family; but that, on the contrary, as it is urged, he had offered to support them and provide for them a home of his own seeking according to his means. This evidence consisted mainly of a letter written by the defendant, in his own behalf, to his wife, to the effect that he would support his wife and child and furnish them transportation to the point where he was then at work. As the learned county judge remarks, the letter is silent as to the place where he required his wife to go. From this letter and from all the attending circumstances, it appears to have been fairly a question for the magistrate to determine whether the letter was written in good faith and with the intention to carry out the offer made, or whether it was written with a plan in view to bring himself within the rule laid down in the case of Lutes v. Shelley, 40 Hun, 197. That was a case in which the husband had offered to support and maintain his family, "with necessary medical attendance, in the house of one Aldrich in Orleans county, and offered to attend her there whenever she was ready, he claiming that he was not able to support her in any other place.

The wife declined such proposition and offer. The court held that she was not justified in so doing, because the husband had a right to select a home for her, and his judgment, when fairly exercised, should govern, in so far as to relieve him from the charge of being a disorderly person.

In the case cited there seems to have been no question of the good faith of the husband. . In this case the conclusion of the justice of the peace and of the court of sessions on appeal is manifestly based, upon their belief from the evidence that the defense was insincere and not supported by trustworthy evidence, and in this conclusion we agree with them.

It follows that the judgment appealed from should be affirmed.

Dwight, P. J., concurs.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    The People, Resp’ts, v. James J. Thompson, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1‘. Dairy law—Keeping unwholesome milk.
    The keeping of skimmed milk is not made an offense under the statutes relating to the sale of impure milk, when it is for use in the county where the same is produced.
    2. Same.
    At the time of inspection of defendant’s milk there were four cans standing in his store, one containing cream, one skimmed milk, one butter-milk and the other pure milk. It was not shown on the trial that the samples taken by the state agents, of which the analysis was made, were not taken from the can of skimmed milk Held, that a conviction could not be sustained.

      Appeal from a judgment of the sessions of Monroe county, convicting the defendant of the crime of selling, or offering to sell, adulterated milk; also, from an order of the same court denying the defendant's motion for a new trial made upon the minutes of the court; also, from an order overruling the defendant’s demurrer to the indictment; also, from an order denying the defendant’s motion in arrest of judgment, all made December 10, 1890.

      W. Henry Davis, for app’lt; Joseph W. Taylor, for resp’ts.
   Macomber, J.

The defendant was convicted at the Monroe sessions of the offence of having on hand and offering for sale, on the 3d day of January, 1890, impure, unhealthy, adulterated and unwholesome milk. The indictment of the defendant was found in pursuance of chap. 183 of the Laws of 1885, as amended by chap. 458 of the Laws of 1885. Section 1 of the former act declares that, “ No person or persons shall sell or exchange, or expose for sale or exchange, any unclean, impure, unhealthy, adulterated or unwholesome milk, etc.”

The previous statute, chap. 202 of the Laws of 1884, § 13, provides as follows: “ In all prosecutions under this act relating to the sale” * * * “of unclean, impure, unhealthy, adulterated or unwholesome milk, if the milk be shown to contain more than eighty-eight per centum of water or fluids, or less than twelve per centum of milk solids, which shall contain not less than three per centum of fat,-it shall be declared to be adulterated.”

Under this act, as we held in the case of the People v. Eddy, 12 N. Y. Supp., 628; 35 N. Y. State Rep., 146, guilty knowledge or criminal intent need not be shown in order to charge the defendant. The chemical analysis is deemed to be conclusive evidence of guilt, provided it shows that the ratio of fluids to solids is contrary to that which is prescribed by the terms of the statute.

So that, the only question before us is, whether there is any evidence to show that the defendant was guilty of selling or offering to sell, on the day named, milk which contained more than eighty-eight per cent of fluids. The evidence of the chemical analyzer showed that the milk in question fell below the statutory requirement, and the jury was' probably correct in arriving at its conclusion that this evidence of the expert was more reliable and convincing than that of other persons not skilled in making chemical analysis.

It appears that the defendant had been engaged in handling milk and cream for many years in the city of Rochester, and that for four years prior to this charge he had received milk from one Wadt Two milk inspectors called on the defendant for the purpose of examining the quality of the milk kept and sold by him. There were standing together in defendant’s store, at the time that these men made kfiown their errand, four cans, one containing cream, another skimmed milk, the third butter milk, and the fourth pure milk.

Under the statutes above referred to, the keeping of skimmed milk is not made an offense when it is for use in the county where the same is produced. The defendant had a right not only to have on hand skimmed milk, but he had also the right to give it away, because the legislature had expressly exempted skimmed milk from the operation of its penalties, so long as the same is not sold or used as pure milk.

An examination of the evidence in this case does not show that the milk which the state agents took into their possession, •and of which the chemical analysis was made, was not taken from the can containing skimmed milk. The evidence is, in substance, that after making their errand known the defendant told them to step back to the place where the milk was kept and help "themselves. There is no evidence that the defendant offered or exposed for sale the milk which was the subject of this chemical analysis, and upon which the defendant was convicted, as wholesome and pure milk, and not as skimmed milk; and for this reason we think the conviction was erroneous, and the judgment "thereon should be reversed.

Other questions- are raised in the record, but as most of them may not arise again, we do not deem it necessary to express our views thereon. The judgment and conviction should be reversed .and new trial granted.

Dwight, P. J., concurs.


text:
    William Armstrong, Resp’t, v. Harvey Sanford, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Justice’s court—Appeal — County court cannot open reversal on AFFIDAVITS.
    The county court has no power after having reversed the judgment of a justice of the peace, by a judgment duly entered, to open the same upon affidavits relating to the legal questions involved.
    Appeal from a judgment of the county court of Niagara county, entered December 81, 1889, setting aside its previous decision and judgment, and affirming a judgment of a justice of the peace.

      Adelbert Moot, for app’lt; George Wing, for resp’t.
   Macomber, J.

This action was originally brought before a .justice of the peace to recover the sum of seventy-five cents, being the amount of three trips at twenty-five cents each, taken by the defendant in a vehicle owned by the plaintiff, who claimed to be a common carrier, between the railroad station on the Rome, Watertown & Ogdensburg railroad, in Lewiston, and the village of Lewiston in Niagara county.

The answer consists of a general denial and an allegation to the effect that the defendant “ brought a cause of action against this plaintiff to recover damages upon or for breach of a contract; that this plaintiff then neglected to interpose any counterclaim and no counterclaim was, in fact, pleaded to said cause of action.”

Upon the trial proof was offered to the effect that in the month cf July, 1888, a year after the alleged indebtedness accrued to the plaintiff, a summons was issued in favor of this defendant against this plaintiff, and that the same was served, but under objection made by the plaintiff’s counsel each proposition was excluded, and the offer of proof seems to have gone no farther.

Whether this answer so made and such offer of proof would justify the county court in reversing the judgment, is not before-us, for upon appeal by the defendant to that tribunal such judgment was reversed. Upon a rehearing, which appears to have been had upon affidavits tending to show that the answer and offer of evidence in the justice’s court was not sincere, but a sham, the learned county judge has reversed his former judgment and affirmed the judgment of the justice of the peace.

In our opinion the county judge had no power, in disposing of the questions before him, to hear and act upon affidavits explaining away and defeating the purpose for which t\e evidence before the justice of the peace was offered. Accordingly, the argument addressed to us by the learned counsel for the respondent to the effect that the answer and the proofs offered thereunder, before the magistrate, were not competent, cannot be taken into the account. Had the present respondent appealed from the original judgment of the county court reversing the determination of the j ustice of the peace, this argument would be entitled to much consideration, and would require an. expression of our views thereon; but at the present time we do not deem it opportune, and therefore content ourselves with de.termining the question solely as to the power of the county judge, having once reversed the justice of the peace by a judgment duly entered in the county court, to open the same upon affidavits relating to the legal questions involved, and denying the existence of that power.

The judgment appealed from should be reversed, but without prejudice to any appeal which the plaintiff may prosecute from the original judgment of the county court, provided the same may yet be timely taken.

Dwight, P. J., concurs.


author: Barnard, P. J.

text:
    William Romer, Resp’t, v. James C. Mix, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Bills and notes—Consideration.
    In an action upon a promissory note brought by a bona fide holder, where the answer admits the giving of the note, but alleges that it was given to renew another note, but that the old note vas not delivered up, and there is no proof that the old note was not paid thereby, the defense of want of consideration fails and a judgment in favor of the plaintiff will, be sustained.
    Appeal from judgment in favor of plaintiff, entered on the decision of the trial justice, a jury trial having been waived.
    Action upon a promissory note made by defendant Romer.

      Edgar A. Montfort, for app’lt; William Romer, resp’t in person.
   Barnard, P. J.

This action is brought to recover upon a note of fifty dollars dated 22d April, 1890, and given to run two-months, with interest. The note was given to the defendant Carpenter, and by him transferred before maturity to the plaintiff for value, which was protested when it became due. The answer of defendant Mix admits the giving of the note; that it was given to renew another note for the same amount, but that the old note was not delivered up. The answer further avers as a defense that the first note was one of a series given by Mix to one Hub-bell under an agreement as to a patent right, and that Hubbell cheated him, Mix, in the transaction, and that the defendant Carpenter knew of Hubbell’s fraudulent representation in respect to the patent agreement. When the case came to trial it appeared that the note was $49.75. It appeared that it was given to renew another note held by Carpenter for $48.49. There was no proof given that the first note was not paid thereby. There is only an inference that it was not returned. That fact is stated in the answer, and the evidence is silent on the subject. The evidence as to representations made by Carpenter to defendant Mix was properly rejected. The note and its consideration and delivery were admitted. The agreement between Mix and Hubbell was admitted, but there was no attempt to connect Carpenter with it; no proof that Hubbell made fraudulent representations or that Carpenter knew of such representations being made. Ho defense was proven against Carpenter if he had been the plaintiff. The plaintiff Bomer proved that he paid the full face of the note, before it matured, in cash, and there was no contradiction made to this proof. The defense of want of consideration against Carpenter failed on the trial.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


author: Pratt, J.

text:
    Joseph Perry, App’lt, v. Euphemia W. Bedell et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Fraudulent conveyance.
    In 1870,.one B., who had sufficient property to pay alibis debts, conveyed certain property through a third person to his wife. The deeds were written on blanks bearing the imprint of the publisher at 168 Nassau street, and it appeared that such publisher was then at 158, and did not remove until 1873. The grantor remained in possession until 1877, when he died. Held, that a finding that there was no intent to defraud, and that no credit was obtained by such continued possession and failure to record the deeds, would not be disturbed.
    Appeal from judgment dismissing" the complaint.
    Action to set aside two deeds purporting to have been executed by James W. Bedell to Thomas B. Berdell, and by the latter and his wife to Euphemia W. Bedell. The deeds purported to have been made September 14, 1870, but were not recorded until 1888. They were both executed on blanks bearing the imprint, “ W. Reid Gould, Law Blank Publisher and Stationer, 168 Nassau street, N. Y.’’ At that time Gould had his place of business at 158 Nassau street, and removed from there to 168 on May 1. 1873.

      E. C. Neil, for app’lt; Frost & Manser, for resp’ts.
   Pratt, J.

This case involves little but a question of fact. The vital issue was whether the conveyance in question was made to hinder, delay and defraud creditors, and the judge who tried the case and saw and heard the witnesses testify was in a better position to judge of their credibility than the court at general term.

We cannot say that this finding is so clearly against the weight of evidence as to require a reversal; indeed, the judge might well have found that the conveyance had a sufficient consideration to support it in the acknowledged debt due from the' defendant to his wife.

The point that the deed could not have been made at the time it bears date is rightfully disposed of upon the evidence. The defendant and his wife and son each swear positively that it was made in 1870, and that is supported by the fact that it was then acknowledged. The recollection of the before named witnesses seems clear, specific and reasonable, and it is a matter upon which they could not be honestly mistaken; besides, the notary, who, so far as appears, was a stranger to all the parties, could not have dated the acknowledgment back without committing the crime of forgery.

We think it much more reasonable that by some mistake the figure 6 was inserted in the imprint instead of the figure 5, or that there was a mistake in the removal of Gould from 158 to 168 Nassau street

That the deed was not recently made is proved by the fact that Thomas Berdell died in 1877. The defendant, however, seems to concede that the conveyance was voluntary, and the court has so found, and such must now be assumed to be the fact; but that does not render the conveyance void unless it was made with fraudulent intent. Carr v. Breese, 81 N. Y., 584; Van Wyck v. Seward, 6 Paige, 62; Babcock v. Eckler, 24 N. Y., 623.

It is unnecessary to quote cases upon this point, as it is too well settled to require citation or comment.

The judge who tried the case has found that at the time of the said conveyance the defendant had ample property to pay all his debts, and from the proof we cannot see how he could have found in any other way.

It is claimed that the defendant remained in the possession of the property after the sale. That might be regarded as a badge of fraud were it not for the fact that his wife was the owner. '

It is also claimed that the deed was not recorded, and that defendant Bedell remained as the ostensible owner, and gained credit thereby; but the trial court has held, under all the circumstances, that there was no intent to defraud, and that no credit was fraudulently obtained thereby.

We think the case was decided correctly, but as the plaintiff had sufficient apparent grounds to bring "his action, and there are some features of hardship in the case, the affirmance must be without costs.

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


author: D. Dougherty, Referee. Dykman, J.

text:
    T. Mitchell Tyng, App’lt, v. Samuel R. Good, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Contract—Agreement to convey share in real estate—Conditions PRECEDENT.
    Where one party agrees to give to another an interest in real estate which he is about to improve, in consideration of an agreement on the-part of the other party to advance a certain sum and such sums as might be required to proceed with the work and introduce the first party to some bank and furnish security to enable him to obtain discounts, Held, that the performance of these things were conditions precedent to the acquisition of such interest in the realty, and in case of a failure to perform on his part he has no cause of action upon the agreement.
    Appeal from judgment entered upon the report of a referee dismissing the complaint.
    Action to establish a partnership between plaintiff and defendant in the purchase, improvement and sale of certain real estate, for an accounting in relation thereto, and a recovery of a half interest in the profits.
    The facts appear fully in the opinion of the referee, which is as follows:
   D. Dougherty, Referee.

The plaintiff, T. Mitchell Tyng, attorney-at-law, practicing in the city of New York, an expert business man, methodical and exact when disposed, with a knowledge of bookkeeping, became about July, 1888, the attorney and financial disbursing agent of J. & T. Charlton, engaged in the lumber and sash, door and general planing business, located at Tonawanda in the state of New York. The said J. & T. Charlton were, about the time mentioned, engaged in completing ten new buildings nearly finished, and erecting and completing eleven other houses, all on the same plot of ground in the city of Brooklyn. The Charltons were also furnishing “ trim ” for various buildings in process of erection in different parts of that city. Large sums of money were from time to time sent by the Charltons to their disbursing agent, the plaintiff, and by him deposited in the bank in his own name and not as agent or trustee of the Charltons. The said moneys were to be used in paying for the erection and completion of said buildings, and paying charges and expenses connected with their extensive business as dealers in timber and “ trim.”

The defendant, Samuel R Good, was a carpenter, and had been the foreman of one John G. Porter, who had commenced the erection of the buildings before referred to, but after erecting some ten of them, had financially failed; and by an agreement between the said Porter and the said Charltons, title was conveyed to the Charltons, who proceeded to the completion of the first ten and the erection of the remaining eleven, employing the said Good as superintendent; the said Good being furnished with checks drawn by the said Tyng, the plaintiff, from the money appropriated by the Charltons.

The defendant Good had no knowledge of bookkeeping, but roughly kept an account book of moneys received, on one side, and paid out on the other. He kept no bank account, and had no-acquaintance with bank officers or bank business. He was without money, and without credit except such as he may have acquired while acting as superintendent for the Charltons.

The business intercourse continued between Tyng and Good after the completion of the Charlton buildings. While Good ceased to be superintendent from about December 1, 1888, and ceased to receive four dollars per day, he still remained connected with the business of the Charltons and was employed by them in a variety of ways, mostly under the direction of Tyng, up to the month of May, 1889, though he does not seem to have entirely ended his connection with the Charltons until late in the same year.

On and prior to the 19th day of January, 1889, one Jacob G. Dettmer, of the city of Brooklyn, was the owner in fee of the premises mentioned in the complaint herein, and on that day the said Dettmer contracted in writing under seal to sell the said premises to the defendant in two parcels at the price of $14,900 for one parcel, and $10,950 for the other; said parcels of land to be thereafter conveyed by the said Dettmer to the defendant, to be paid for, at the time of such conveyance, by the defendant’s bonds and mortgages thereon to the amount of the entire purchase price thereof. On the same day the said Dettmer entered into a “building loan agreement,” in writing, under seal, with the defendant; whereby the defendant agreed to erect eighteen houses upon said premises, as specified in said agreement, and the said Dettmer agreed to advance to the defendant, in aid of the construction of said buildings, the sum of $40,700, by instalments, at the times and in the manner specified, of which $21,800 was to be advanced upon the first nine of the said houses, the balance upon the remainder; the said houses being built in two parcels, the first parcel of nine houses to be completed before the second parcel was commenced.

About the month of January, 1889, the said plaintiff and defendant had occasional conversations concerning the proposed purchase by Good of said premises from the said Dettmer and of the proposed erection of buildings on said premises, and of the amount of money necessary to “ start the enterprise ” and complete the building in excess of the “building loan.” At some date in January, not specified in evidence, but agreed on by plaintiff and defendant as the 20th of January, 1889, in the office of the plaintiff, the plaintiff spoke of being about to receive certain moneys and of his willingness to join in said undertaking, and the defendant manifested an equal willingness that the plaintiff should do so. There was no agreement in writing, no written memorandum of agreement; there is not a single word in black and white offered in evidence that expresses such an agreement; the terms of the agreement, as stated by the plaintiff in his testimony in chief, are widely different from those stated by the defendant in his answer to the plaintiff’s complaint and in defendant’s testimony, nevertheless, the parties, plaintiff and defendant, have agreed to the following as the verbal agreement entered into as of January 20, 1889:

(1.) That he, said plaintiff, would advance and pay over to the defendant the sum of $1,000 in cash, to be used by the defendant in the construction of said buildings.

(2.) That he, said plaintiff, would introdnce the said defendant to the officers of some suitable bank in Brooklyn where the defendant might open an account.

(3.) That he, said plaintiff, would further furnish to the defendant, to be deposited and held in and by such bank, in the name and for the account of the said defendant, mortgages to the value of §5,200, by means of which securities the defendant might secure the discounting of his notes by said bank And

(4.) That he, the said plaintiff, would advance to the defendant, from time to time upon demand, such sums of money as might be required by defendant to proceed with the erection and completion of the said premises.

As I will have most to say concerning the first stipulation, I will reserve that until the last. The plaintiff never introduced defendant to the officers of some suitable bank in Brooklyn, nor did he ever offer to do so, nor did he make any effort to do so. He gave defendant a note of introduction to Bichard Ingraham, Esq., a lawyer of Brooklyn who had business relations with the Charltons; but it is not pretended that Mr. Ingraham was a bank officer, and there is nothing to show that plaintiff knew Ingraham except in his capacity as agent for the Charltons. At least such is my interpretation of the words, “ he (Good), is measurably connected with us.” In fact the letter of introduction admits that plaintiff did not know any banks in Brooklyn, for he writes to Mr. Ingraham: Perhaps you would introduce him at your bank, as I do not know any of your banks or I would introduce him.” This note of introduction was in no way a compliance with the agreement, and was never presented to Mr. Ingraham, and defendant does not appear to have ever opened a bank account.

The plaintiff failed to comply with the third stipulation. He did not furnish the defendant, to be deposited and held in and by said bank in the name of the defendant, mortgages to the amount of $5,200, by means of which securities the defendant might secure the discounting of his notes by said bank. There is not a particle of evidence that the plaintiff ever had any mortgages of his own. There is evidence that plaintiff had in his custody second mortgages belonging to said Charltons, to the amount of §5,200, but there is not a particle of evidence that the said plaintiff had any authority to assign said mortgages to defendant, nor the slightest proof that plaintiff ever took a single step to do so,

Plaintiff failed to comply with the fourth stipulation, namely, that he would advance to the defendant from time to time, upon demand, such sums of money as might be required by the defendant to proceed with the erection and completion of said premises.

The plaintiff and defendant, in their proposed findings, agree that about the middle of June, 1889, on Monday or Tuesday, the defendant went to the office of plaintiff, and told plaintiff that he pvould have to loan $600 the following Saturday, to pay off the mechanics and laborers that worked upon the buildings mentioned in the complaint. The plaintiff told the defendant that he (plaintiff) was very hard up, but that he would have some money about July, and then he would help him (defendant) right out. The defendant went to the plaintiff’s office again on Monday or Tuesday about the last week of June, and the plaintiff told him that he (defendant), would have to carry him (plaintiff), along until about the 1st of July, and then he (plaintiff) -would have some money. The defendant went to the plaintiff’s office again about the last week in June; the plaintiff was sitting in his office with the door open, and when he Saw the defendant coming up the stairs he, the plaintiff, said, “ I have no time to talk to you today.” Defendant then went away, and never thereafter received any communication or visit from the plaintiff in reference to the premises in question, until this action was about to be commenced. The referee further states that the plaintiff never tendered the $600, or any other sum to the defendant, nor is there any proof that he ever had any such sum; nor did the plaintiff ever make any effort to raise the $500, or any other amount, and in fact he entirely abandoned the enterprise. From the last mentioned interview in plaintiff’s office about the end of June, 1889, the plaintiff never called on defendant, never communicated with him in writing or otherwise, never visited the buildings, knew nothing of their condition except as he learned them once or twice in chance meetings with third parties, and was not heard of until on the 1st of the following November, full four months afterwards, when, learning that the houses were nearly completed, plaintiff addressed a note on that date to defendant, asking that his one-half interest in the enterprise-should be secured or adjusted in some way.

Returning to the first clause of the agreement, namely, that the plaintiff would advance and pay over to defendant the sum of $1,000 in cash, to be used by said defendant in the construction of said buildings, the plaintiff does not pretend that he advanced and paid over to the defendant that sum. His contention is that he was only to advance and pay over about $200 to start the enterprise, and that the remaining $800 was to be furnished to complete the buildings, to “ clean up,” after the building loan “ had been exhausted.” The referee cannot accede to such a construction of the terms of the agreement; it is not in conformity with a reasonable interpretation of the intention of the parties. It is the opinion of the referee that the whole sura of $1,000 was to be advanced and paid over at the beginning of the enterprise, and therefore the plaintiff failed to comply with the first stipulation of the agreement.

The plaintiff testified that four several checks, dated February 1, 1889, for seventy-five dollars, the 6th of February, 1889, for fifty dollars, February 11, 1889, for fifty dollars, and February 20, 1889, for twenty-five dollars, were given for and by reason of said agreement, and he, plaintiff, stated in his testimony that these were all the moneys paid him, defendant, on the contract in question. See plaintiff's testimony, page 9. Plaintiff afterward-," at the close of the testimony, did not claim to have paid on the agreement more than the sum of $156.82. While the plaintiff asserts his right to the clear one-half of the profits of the enterprise, and asserts that he has complied with all its stipulations, the referee has already decided against him on all these points, and will now proceed to discuss the alleged payments, amounting in all to $156.82.

Whatever difficulty there may be in reaching a correct conclusion, whatever doubt may linger in the mind of the referee as to those particular payments, the same is entirely the fault of the plaintiff. As already observed, the agreement was never reduced to writing, a most reasonable thing to be expected when an attorney was a party. Had he, the plaintiff, taken receipts, orders, bills, or any written acknowledgment, specifying that the said several checks were given in compliance with said agreement, had he opened the account in his account book in conformity with said agreement, had he kept the moneys of the Charltons separate and apart, and signed the said checks as trustee or agent, had he kept a bank account of his own private funds and drawn these checks on the same," had he proved to the referee that a portion of the deposits were his own separate property, if he had made a memorandum that could reasonably be regarded as evidence against the defendant, all or some of which at least, as a methodical business man and as an attorney of ability (both of which he really is) and a gentleman by no means indifferent to his own interests (as he surely is not), it might be expected he would do, there would be no difficulty in deciding as to these particular checks. As it is, the referee is compelled, if not to grope in the dark, at least to balance the evidence on both sides, and give his decision where the weight is the heaviest. Both sides agree that the said sums were given by Tyng to G-ood, but G-ood swears that they were not given under the agreement, but that they were, with many others, given to pay claims against the Charltons, or to reimburse him for moneys paid out for them and for services rendered to them.

While G-ood ceased to be the superintendent of the Charltons about December 1, 1888, and ceased to receive the four dollars a day, it is equally clear that G-ood, though engaged in building under the contract with Dettmer, was still rendering services to the Charltons in a variety of ways; keeping clean the Charlton buildings, advertising them for sale, directing the finishing of the carpenter work, going for mill work, taking charge of car loads of lumber and trim shipped to customers in Brooklyn, paying freight charges and hauling charges, getting measurements, serving notices now and then on parties, information from public officers, filing papers in Brooklyn court offices, and other services, most of all these done under direction of Tyng as attorney and agent of the Charltons. These services continued up to the month of May, 1889, and, i'ndeéd, if reliance can be placed on hurried loose receipts in pencil for advertising, there is one as late as November. From December, 1888, which was a week after G-ood ceased to be superintendent, up to March, 1889, Tyng gave as many as seventeen checks to Good, in sums ranging from $700 to $25, all drawn by T. M. Tyng to S. E. Good, and amounting in all to over $2,000. It is not undisputed by plaintiff that thirteen of these checks were given defendant for and on account of Charlton’s business, and drawn on Charlton funds standing in the name of the plaintiff.

How, as to the special checks. The plaintiff, in his evidence in chief, says that the check dated February 1st for $75 was given-in pursuance of the contract.

‘‘It was not given for any disbursement on account of the Charltons.’’ On the contrary, Good distinctly specifies the Charlton disbursements for which this check was given, leaving a balance of $23.54, which Good claims for services. On examination of plaintiff’s account book defendant’s evidence is confirmed, for the said disbursements are there enumerated, and the following is written on the next immediate lino: “ S. E. Good, assumed by T. M. T., $23.54,” written over an erasure. On the' argument the plaintiff withdrew his charge of $75 and reduced it to $23.54. This check for seventy-five dollars was drawn on Charlton funds for Charlton disbursements, and cannot in any sense be regarded as money paid under the agreement.

As to the check dated February 8, 1889, for fifty dollars, plaintiff testifies as follows: “ On February 6th, he (defendant) came to me and asked me for fifty dollars to pay for expense of a permit to open the street and get the water in these buildings, and I gave him fifty dollars on that date by the check which I now produce ” (see page 8 of testimony). The plaintiff with distinctness further testifies the same on page 31. On the other hand, defendant swears that the fifty dollars was given for advertising Charlton houses, and he produces twenty-two receipts in small sums, amounting in all to over fifty dollars, for advertising Charlton houses. Though some of the dates are only to be guessed at, yet they are most all after February 6th. The following are the entries on defendant’s rough account book: On page 44, “Charlton, Feby. 5, rec’d T. M. Tyng, $50 ; on opposite page 45, Feby. -9, advertisement $1.75,” and, in lead pencil, $49.92. On page"40 plaintiff says: “I told Mr. Good for him to keep an account of whatever advertising he did on these Charlton houses, and there were some other items he kept an account of, but I have never had any reckoning about them.” There was no offer to prove that plaintiff ever gave defendant any other check to pay for said advertising. The mind of the referee is not free from doubt, yet, as already said, it is the fault of the plaintiff, and the weight of the testimony is that the fifty dollars was paid for advertising houses. The referee clearly inclines to the belief that the check was given by plaintiff on moneys he had standing in his own name but belonging to the Charltons.

Mr. Tyng testifies on page 9: “I gave him fifty dollars on February 11th to pay his architect on the buildings for the plans by the check now produced.” On cross-examination, pages 31 and 32, “ I can’t state exactly which one was to pay for the permits on opening the street to get the water, and the other was to pay the architect for drawing the plans. These checks or either of them were not given to Mr. Good for the purpose of paying freight charges of the Charltons, nor for any other purpose except what I have stated.” This evidence of plaintiff is strengthened by the account book of Good, which is herewith transcribed:

For 45. S.- R Good, McDonough and Ralph ave.
Feb’y 11. Rec’d T. M. Tyng........................
“ “ Albert Sibley.......................
For 44. Opposite.
Feb’y 11. Water permits..........................
Plans for McDonough....................
W m. Hovey, loaned......................
Matthias & Kingsland....................
Brock.................................
$50 00 50 00
31 61 50 00 3 11 16 00 25 33

Defendant, with equal positiveness, swears that the check given by him on February 11 was to pay Charles 0. Seaman, a teamster, who had hauled late in the fall or early in the winter lumber and trim from two freight cars at Palmer’s dock to Reeve and Whalen’s buildings; that while there had been different sums paid for hauling different loads to the various buildings that the Charltons supplied, yet these two car loads of “ stuff ” had not been paid for; that Seaman had tried a number of times to get the money from Good, who had not got it from Tyng, and finally Good had promised the money to Seaman. Good says he got this check of February 11, fifty dollars, to pay Seaman, but he did not pay the identical money to Seaman, but on April 20 paid Seaman the amount due, forty dollars, and on May 17 returned to Tyng the balance, ten dollars. Good’s account book has the following entries : “ April 20th, Charles O. Seaman, for Charlton, forty dollars.” “May 17th, T. M. Tyng, ten dollars.” Mr. Tyng, the plaintiff, says on page 16, and again on page 40, “He (Good)gave me $10 once when I was in Brooklyn; I merely wanted ten dollars, and he gave it to me out of his pocket, for which he is entitled to credit by any report that may be made.” Mr. Tyng to some extent strengthens the statement of Good. “ I think I told Mr. Good I knew he could pay that forty dollars; I think it was for carting, and that he could charge it to me. Plaintiff did not point out any other check he gave the defendant in payment for this particular hauling of Seaman for two loads of stuff for Reeve and Whalen. Indeed, it may be fairly inferred that on page 283 plaintiff admits that on March 20, 1889, he charged in an account to the Charltons forty dollars, not for freight but hauling.

Defendant’s testimony is corroborated by Mr. Seaman that the forty dollars had been due him for some time, and was finally paid as promised by Good, and Sibley testified that about the time Good commenced operations, he came to him and said he required some money to pay for his plans and the survey and to pa) diggers, and he (Sibley) having confidence in Good, “ I made him advances amounting to $1,020, out of my own funds.” The referee cannot but reiterate that the trouble and anxiety in deciding flows from, the plaintiff’s fault, and on the whole the conclusion of the referee is that this fifty dollars was given by plaintiff to defendant to pay the hauling, and defendant applied the particular money to the uses and purposes connected with the buildings mentioned in the agreement. The referee decides that the said check, fifty dollars, February 11, was drawn on money in the name of the plaintiff, but belonged to the Charltons.

On page 9, plaintiff testifies: “ On the 22d of February the defendant came to me to get twenty-five dollars for some other purpose connected with the building, and I gave him the check I now produce. This was given him in pursuance of the contract." Good, on page 92, testifies: “ I went to Mr. Tyng’s office one day and told him, he wanted me to serve some papers around town,- I went in and said I was hard at work and wanted some money, and he said, ‘ How much do you want?’ I said $25, and he gave me that check;” and on page 98, Good says, “ That $25 was given to me by Mr. Tyng for serving and car fare, and expenses, and running overtime. It took me some time to serve these papers.” In January he served a summons. on Samuel McMillan that he (Good) says Tyng charged $10 for. “I knew Ii had a great time to get it, and was there some dozen times before I could get it. I cannot give the date. You have my sworn statement in your office when I served them; ” and on pages 245, 246, he says in answer to a question that he had been performing services for Tyng prior to the receipt of the $25 check: “ I filed all his papers in Brooklyn, fetched him information from records from time to time, served papers on different parties at different times, and was there nearly every day.” The referee cannot from such contradictory statements say with certainty one way or the other; but, all things considered, concludes that the weight of the testimony is in favor of defendant’s version. The referee does not hesitate to say that this check for $25, like the others, was drawn on moneys in the name of the plaintiff belonging to the Charltons.

Thus far the referee has treated of the four checks which plaintiff says were all the moneys paid him on the contract in question. The plaintiff in his rebutting testimony swears that on February 13, 1889, he gave defendant a check for $40 to pay freight on two car loads for Beeve & Whalen, and on the 16th February, 1889, Mr. Good came to him and brought him a freight bill amounting to $31.92, and “ the balance of that check,'$8.28. Mr. Good asked me to charge up to him on McDonough street and Balph avenue houses.” The referee does not see any specific denial on the part of the defendant as to this $8.28, but this check of $40 was given by plaintiff to defendant for and on account of Charlton business drawn on money standing in plaintiff’s name, but belonging to the Charltons.

It will be observed that the referee in .each instance decides that the checks were drawn on moneys belonging to the Charltons. There was not a particle of evidence offered in the case to show that the plaintiff had any money of his own. When he was applied to by the defendant for money under the agreement, according to his own testimony, he told defendant that when he wanted money, if he would let him (plaintiff) know a day or two in advance, he (plaintiff) would write up for some; “ write to Charlton to send me down more money.”

Edward F. O'Dwyer, for app’lt; Victor J. Dowling, for resp’t.

The referee may have been forced to decide adversely to plaintiff for reasons already assigned, and because the testimony of plaintiff in chief very widely differs from his cross-examination and his rebutting testimony, and because while plaintiff’s testimony for the most part stands alone, the defendant is sustained by other interviews.

The referee is further forced to say that, in his opinion, the plaintiff never attempted to carry the agreement into effect This was shown from the very beginning of the operation, for about the time of the digging of the cellars, when defendant consulted the plaintiff as to the purchase of the beams from the Charltons, the plaintiff told defendant that he, plaintiff, did not want the 'Charltons to know that he was connected with the thing, as he, plaintiff, might have to take an adverse position against the defendant. On the whole the referee is of the opinion that the plaintiff has no cause of action, and he therefore directs judgment to be entered in favor of the defendant, dismissing the complaint herein on the merits, with costs.

Dykman, J.

By an agreement between the parties to this action the plaintiff was to acquire an interest in certain real estate upon the performance of certain things which were conditions precedent to the acquisition of such interest, but he did nothing towards the execution of the agreement.

Now he has brought this action upon the theory that he has the legal right to share in the enterprise to the same extent as if he had fully performed his agreement. The trial was before a referee, who has found both the facts and the law against the defendant and his findings and conclusions are fully justified.

The referee has written a long and exhaustive opinion which fully explains the case, and demonstrates the entire absence of merit in the plaintiff’s action.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


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    Walter F. Taber, Resp’t, v. John Cruthers, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Trespass—Liability oe owner oe cattle.
    It is the duty of an owner of cattle to see that they are restrained upon his own land, and where he permits them to get upon a temporary road from which they enter upon the land of another at a point where it is the duty of a third person to fence, he is liable for the damage done thereby, although such third person’s negligence may have contributed to the iniury.
    2. Same.
    Where numerous trespasses by cattle are proved, the burden is upon their owner to show that he was not in fault.

      Appeal from judgment of county court, affirming judgment of a justice of the peace in favor of plaintiff.
    Action to recover damages caused by trespass by defendant’s cattle. A railroad company, in constructing its road through lands of plaintiff and one Haggerty, made a deep cutting which cut off a portion of their lands. To enable them to reach said portion the company gave them a right of way over its lands along the cutting, and fenced between a new roadway constructed by it and defendant’s land, leaving a gate therein which plaintiff and Haggerty used to cross defendants land in order to reach their own, an opening being left in the further corner of defendant’s fence for that purpose. Through this opening defendant’s cattle passed into the lane left by the railroad and so upon plaintiff’s land.

      Frank B. Lown, for app’lt; C. F. Cossum, for resp’t.
   Pratt, J.

There is but little in this case but questions of fact, and those were settled below by findings in favor of the plaintiff.

There is no evidence that the fence at the point where the defendant’s cattle got out of his lot was taken down or destroyed by the plaintiff; in fact it does not clearly appear where they did get out, although there is some proof that it was at parts of an old stone wall that had been torn down.

The fact that a gate had been placed in the fence for the convenience of the plaintiff constituted no defense without going further and showing that plaintiff left it open, there being no proof it was not sufficient and secure when it was put up.

When the plaintiff had proved a frequent trespassing upon his land by the defendant’s cattle, we think the burthen was cast upon the defendant to show he was not in fault, inasmuch as the defendant made no explanation, so far as appears, when notified of various trespasses.

Assuming, however, that the cattle went out of defendant’s land through the temporary road and in plaintiff’s land at a point where it was the duty of Haggerty to fence, the defendant would still be liable for permitting his cattle to get into the temporary roadi It was defendant’s duty to see that his cattle were restrained upon his own land, and, although Haggerty’s negligence may have contributed to the injury, yet the defendant is liable. .

These trespasses had continued for so long a time to the knowledge of defendant that the duty was cast upon him to either fence against this temporary road or close it entirely, no matter who made the road.

In any view we think the defendant failed to make any valid defence, and the judgment must be affirmed.

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


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    In the Matter of the Accounting of Abraham B. Valentine, Trustee.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Will—Construction—Direction to sell.
    Testator devised certain real estate to his executors to receive the rents and profits thereof during two designated lives, but not exceeding 16 years, subject to the right of his daughter in-law to occupy one of them for life or,while she remained the widow of his son, and at the end of that period or the earlier termination of the trust by the death of those named, to sell the real estate and divide the proceeds between certain legatees. Held, that the property occupied by the said daughter-in-law was not excepted, from the direction to sell, but the scheme required the sale of the remainder in that parcel as well as the rest at the end of the 16 year period.
    2. Same.
    By a subsequent clause testator devised half of the remaining land to his executors to be held and sold in the same manner and the proceeds to be divided between the grandchildren named, “ and the issue of such of them as may then be dead leaving such issue or descendants then surviving” in the same proportion as directed in the previous clause. Held, that the words “ then be dead” and “then surviving” referred to the end of the 16 year period if not shortened by the death of both lives before that time.
    3. Same.
    Bach grandson took a vested interest, or would if he survived the period, and in either case had an interest which was alienable and would pass under an assignment made before that period expired.
    4. Same—Record.
    The direction in the will constituted an equitable conversion, and hence the recording acts would not apply to an assignment of the beneficiary’s interest.
    Appeal from decree of the surrogate of Westchester county.
    The decedent executed his last will and testament, dated in July, 1853. By it he gave and devised in fee simple to his ex-cutors certain stores, buildings and lots in the city of New York ; “also my house and lot, now known as number 98, in Bast Nineteenth street, now occupied by Jane Valentine, the widow of Abraham G. Valentine, which last mentioned house and lot I will and order my executors to permit my daughter-in-law, Jane Valentine, to possess and enjoy and have the free use, occupation, rents and profits thereof, so long as she shall live and remain the widow .of my said son.”
    Out of the rents and profits of the other real estate, which they were directed to let out and rent during sixteen years from date of will, they were directed to pay to Jane Valentine an annuity of $2,000, so long as she lived- and remained his widow, to pay the taxes, insurance, repairs, etc., on all the property, and to divide the surplus income equally among the nine children of said Jane Valentine, for their support, etc. At the end of the sixteen years, which was in July, 1869, he ordered and directed his executors to sell at public auction “all the said houses, stores and lots herein-before devised ” to them, and to divide the proceeds among the said nine children, etc., among whom were John H. Valentine and George F. Valentine.
    At or about the expiration of the sixteen years (1869) all of the real- estate was sold except tlie Nineteenth street house, and in the year following an accounting was duly had before the then surrogate, all parties in interest having been duly cited, which resulted in a decree of distribution, etc., bearing date May 23, 1870, and disposing of about $180,000 belonging to the nine children. By that decree, among other things, it was- directed that the trustee retain in his hands the sum of $50,511, and keep invested, “in ■order to pay the annunity of $2,000, yearly or oftener to the said Jane Valentine, the widow of the said Abraham G. Valentine, until her marriage or death, and to pay the taxes, insurance and repairs during the same period of said house and lot No. 138 (formerly 98) East Nineteenth street." Jane Valentine died in, 1888. The house and lot has since been sold for $19,200. The object of this accounting is to account for and make distribution of said $50,511 and the $19,200, with the increase.
    It appears that John H. Valentine assigned all his interest in the estate to his mother, Jane Valentine, in 1867; the assignment was produced on the accounting of 1870, and the execution of it was acknowledged before John W Mills, the then surrogate, and the assignment was recognized as valid by the decree.
    On the 13th day of November 1872, John II. Valentine again assigned his share to his brother, George F. Valentine. To the assignment to Jane Valentine was affixed no internal revenue stamp. Two days afterwards, on the 15th day of November, 1872, he made a like assignment to George H. McFadden. That to McFadden was recorded in the register’s office in New York, on the 6th of June, 1873; arid that to George F. Valentine on the 12th of the same month and year. Jane Valentinp assigned the interest conveyed to her by John H. to George F., on the 28th December, 1876, and the assignment was recorded in the same, office on the next day. John H. had died in November preceding, leaving an only son, John H. E. Valentine, to whom McFadden, on the 30th day of January last, assigned his interest.
    Coffin. S.—The chief question this court is called upon to determine is, who is the owner of and entitled to the share of John H. Valentine, deceased. It is claimed on the one hand by George F. Valentine, his brother, and on the other by John H. É. Valentine, his only child. The former asserts his right to' it by virtue of the assignment from his mother, and also under one to him direct: the latter, through that from McFadden. There can be no reasonable doubt but that John H. had an assignable interest when he made the assignment^ subject to the mortgage, to his mother. It was recognized as valid at the accounting in 1870, and his share, less the mortgage, decreed to be paid to the assignee. All in interest were personally or by representation present and appear to have acquiesced in the decree. The assignment was then acknowledged before Judge Mills, at that time surrogate, and was recorded December 21, 1876. The sixteen year period, at which time the real estate was directed, by the will, to be sold, had not elapsed at its date, but it had, when the accounting occurred and the Amlidity of the assignment aaus judicially recognized. At that time the surrogate had power to take the proof and acknowledgment of conveyances (Laws of 1851, chap. 175), although, in the view to be taken, it is regarded as immaterial
    By the will, all of the stores, houses and lots, etc., were devised to the executors, and were ordered to be sold in July, 1869. This operated at that date as an equitable conversion into personalty of the whole, including the Nineteenth street house, but in that the widow was to have an estate for her life. It was, therefore, to be sold with the rest, but subject to her life estate. The executors were ordered to permit her so to enjoy it. They were directed to sell, but in such manner as to preserve her rights. The fact that it was not so sold cannot destroy the effect of the rule relating to equitable conversion. Where a testator directs a sale of his real estate, it becomes legal assets at his death, whether it be actually converted at the end of one or ten years, or more. It seems quite apparent, from the language of the will, that this property was to be sold with the rest, subject, however, to the incumbrance. No other provision for its otherwise ultimate disposal can be found in the will, and the testator’s intention to dispose of his whole estate is entirely clear.
    It is claimed, however, that, inasmuch as the decree of 1870 recites that the executors had then sold and conveyed all the ¿ands and real estate of the deceased ordered to be sold, when in fact the Nineteenth street house had not been sold, it operated as a judicial construction of the will to the effect that it was not included in the property directed to be sold, and is therefore res adjudícala upon that subject. This position does not seem to be tenable. In the first place, it is a mere recital. Nothing can be found in the decree adjudging any such fact; and beside that, no such question could be involved in that accounting. The executor was merely rendering his account of moneys received and disbursements made. Had the question in any way arisen, as, fox-instance, had some one asked the executor to account for the value of that house, he could only say, “I have not sold the remainder following the life estate,” and on his then asking the surrogate to compel him to sell it and distribute the proceeds, he must have x-eplied that he had no power to so order, that he must apply to some other forum. • It is perfectly apparent that no such question was raised on that accounting, See Miller v. Maniac, 6 Hill, 114; and it is equally clear that had there been, the court had no power to make any decree on the subject capable of execution.
    The fund set apart to produce the widow’s annuity añd the payment of taxes, insurances and repairs, was so adjudged by the court, on consent of all the parties, and those matters must be regarded as res adjudícala.

    The affixing of an internal revenue stamp was not essential to the validity of the assignment to Mrs. Valentine when offered in evidence in, and submitted to, the courts of this state. People ex rel. Barbour v. Gates, 43 N. Y., 40 ; Moore v. Moore, 47 id., 467.
    It does not seem to be necessax-y to determine what effect, if any, is produced by the neglect of Jane Valentine to have her assignment from John H. recorded. He had an interest at its date m the unsold real estate, and the assignment was made subject to a mortgage he had given for $10,000. In July, 1869, as has been seen, he ceased to have any interest in the real estate, by reason of its equitable conversion. When that occurred, the assignment took effect on the assignor’s interest as legal assets and did not thereafter require recording to give it precedence over any subsequent conveyance of the share, and any assignments thereafter affecting his interest in the estate were not covered by the recording act. Hence, his assignment to George F. Valentine, being prior in date to that to McFadden, takes precedence of it, having been given, as appears, for value. What the equities were between him and his mother, growing out of his assignment to her, is not shown. At all events, John PI. had as much interest to assign to George F. as he had to McFadden. The latter, taking nothing by virtue of the assignment to him, had nothing to assign to John H. E. Valentine, the present claimant of the .share. Whatever interest Jane Valentine may have had was also conveyed to George F in 1876. Under the circumstances, it is determined that George F. Valentine is legally entitled to whatever may be the amount of the share in controversy.
    The testator, among other things, directed the proceeds of the sales, to be made in 1869, to be paid to the nine children of his deceased son, Abraham G. Valentine, and that if any of them had. then died leaving lawful issue or descendants, it should be paid to such issue or descendants. One of the nine, Mary Jane, died in 1877 without issue or descendants. She was entitled to her share in possession in 1869, and her share belongs to her estate, and should be decreed to be paid to her executors or administrators, if any have been appointed.
    The legatees who received payments on account of their several shares are not chargeable with interest thereon, because they were then due and payable to them; but the interest received by the trustee since all of the shares became payable should be so apportioned as to equalize it among all as far as practicable.
    This, it is believed, disposes of all of the questions submitted. Should anything have been overlooked, it will be determined on the settlement of the decree.

      Thomas M. Wheeler, for app’lt; Israel Minor, Jr., for resp’t.
   Barnard, P. J.

Abraham Valentine died leaving a will admitted to probate June 7, 1858. By the ninth clause of this will, which is very long, the testator devised certain real property to his executors to receive the rents and profits and apply them as directed by this clause for the lives of two persons named therein, not exceeding sixteen years if these lives or either of them survived that period. The property was then, at the end of the sixteen years, to be sold and the proceeds divided. There was included in this property a house and lot in the city of New York. By the ninth clause in question a gift of a life estate in this house was given to Jane Valentine so long as • she remained the widow of testator’s son Abraham Valentine. The direction at the end of the sixteen years did not exempt this house and lot from sale, only providing that the devise to the executor was “ subject to the right of the said Jane Valentine.” Both of the lives survived the sixteen years and all the property was sold except the house and lot The scheme required the sale of the remainder in this parcel as well as of the rest of the property contained in that clause. John H. Valentine was one of the distributees of the moneys under this clause and he survived the sixteen year period. He therefore had a vested estate with a right to immediate possession when that period arrived, and this embraced the house and lot as well as the other property.

By the tenth clause of the will the testator gave certain property therein described, one-half to Samuel M. Valentine and the other half to his executor to be managed and rented by his executor and the proceeds applied to the use of the same children of Abraham G. Valentine who were the distributees of a portion of the property in the ninth clause. The property in the tenth clause was subject to charges particularly specified therein. .The executors were authorized to sell and apply proceeds as directed, and “ to divide and pay to the aforesaid children of the said Abraham G. Valentine, deceased, and the issue of such of them as may then be dead leaving such issue or descendants then surviving in the same proportion as I have hereinbefore directed my executors to pay to them the moneys arising from the sale of the ■said stone house and lot in the ninth article of this my will.”

John H. Valentine, one of the children of Abraham G. Valentine, died in November, 1876. The life estate expired in November, 1888. I think the words “ then be dead ” and “ then surviving ” refer to the end of the sixteen year period if not shortened by the death of both lives before that time. The testator evidently intended to dispose of all his property in the 9th and 10th clauses in the same way. The trust could not exceed sixteen years, and at the end of that time the property was given absolutely to the persons then entitled. A postponement of the time of sale of the New York house until after one of the beneficiaries died would not deprive him of the estate if such beneficiary survived to be entitled to take immediate distribution if one was practicable. The assignment of John H. Valentine before the sixteen year period had expired was good. He had either a vested interest or would have if he survived until a specified event happened which caused the vesting of the estate. In either case he had an interest which was alienable to the same extent as if in possession. Ham v. Van Orden, 84 N. Y., 257.

The absolute direction to convert the land into money operates as an equitable conversion. The recording acts did not therefore apply to the assignment from John H. Valentine and his successors in title.

The decree should, therefore, be affirmed, with costs.

Dyicman and Pratt, JJ., concur.


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    Josiah J. White, Resp’t, v. George C. Wood et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891)

    Injunction—Railroad—Reorganization.
    Defendants were a reorganization and purchasing committee who were authorized hy the agreement of the bondholders of a railroad to organize a new company and divide the stock among such bondholders in proportion to the number of their bonds. They organized a new company and transferred the property to it, but only required the transfer of less than half its stock for distribution, leaving the balance to be disposed of by the directors of the new company, and took a note to themselves. Held, that, this was a breach of duty on their part which gave plaintiff as one of the bondholders a right of action irrespective of whether they acted in good faith; that as the transfer was made before an injunction was obtained and plaintiff’s bonds and the stock offered him are of small value he could only be indemnified in money, and that he was entitled to prevent the payment, of said note to the defendants until he is paid the value of his bonds..
    Appeal from judgment enjoining defendants from transferring the property of the Ohattaroi Railway Co. to the Ohio & Big Sandy Railroad Co., and from collecting a promissory note for $56,800.
    The following is the opinion of Judge Bartlett referred to in the opinion:
    Bartlett, J.—The trust agreement between the bondholders of the Ohattaroi Railway Company and the defendants, as a reorganization and purchasing committee, empowers the defendants to form a new company to take possession of the railroad and operate it The agreement further distinctly provides that the stock of the new company shall be issued to the bondholders of the old one in proportion to the number of their bonds. Under the power thus conferred upon them the defendants have organized a new corporation called the Ohio & Big Sandy Railroad Company, with a capital stock of $2,000,000; but, instead of requiring that the whole of this stock shall be turned over to themselves, as a reorganization and purchasing committee, for distribution pro rata among the Ohattaroi bondholders, they have required only $994,000 of the stock thus to be turned over, and have provided that the balance may be disposed of from time to time by the board of directors of the new company, at its discretion, and shall be paid in from time to time upon calls by the board.
    The plaintiff, as a bondholder of the Ohattaroi Railroad Company entitled to the benefits of the trust agreement with the defendants, brings this suit to restrain them from transferring the property of the Ohattaroi to the Ohio & Big Sandy Railroad Company, except upon the issue of its entire $2,000,000 of stock for distribution among the Ohattaroi bondholders
    As to this part of the case, the defendants say that they actually made the transfer before the injunction was granted.
    It appears, however, by the deed of transfer, that the defendants received from the Ohio & Big Sandy Railroad Company, in addition to the $994,000 of stock, a promissory note of that corporation, payable on demand, for $56,800. The plaintiff alleges that the- money represented by this note is really a payment by Oollis P. Huntington to the defendants for services in obtaining for him. a controlling interest in the bonds of the Chattaroi Railway Company; but the affidavits in opposition tend strongly to show that the note is intended to repay to the reorganization and .purchasing committee moneys necessarily expended, or to provide lor expenses necessarily incurred in the administration of their trust. The injunction restrains them from receiving the money secured by this note, and to that extent is operative, even if it be true that it cannot operate to prevent a transfer of the property ¡because such transfer had been effected prior to this injunction.
    It seems to me that the scheme of reorganization adopted by the defendants, although apparently in good faith, is a departure from that which is provided for by the trust agreement. The scheme may be modified, however, so as tó be unobjectionable. If the capital stock of the new company be reduced to $994,000 (leaving any subsequent increase, if necessary, to be made pursuant to the articles of incorporation or the statutes of Kentucky), and the plaintiff be given his pro rata share, he will then have no cause for complaint. But, as the transaction now stands, the $56,800 note appears to have been given as part of the consideration of a contract differing from that contemplated by the trust agreement and the plaintiff, therefore, may well insist that the defendants shall not realize upon the note until they make their scheme conform to the requirements of that agreement. When that is done the defendants may apply for a dissolution of the injunction.
    Meantime, however, it ought to remain in force. But, inasmuch as the interest on $56,800, during the pendency of the action, may amount to a considerable sum, wdiich the plaintiff will be liable to pay in case of ultimate defeat upon the trial, the security given by him should be increased.
    The preliminary injunction granted herein by Presiding Justice Barnard will be continued, with costs to plaintiff to abide the event, provided the plaintiff give an additional undertaking in the sum of $1,000, within five days after service of the order to be entered upon this decision.

      Anson Maltby, for app’lts; W. J. Gaynor, for resp’t.
   Pratt, J.

The opinion of Mr. Justice Bartlett, filed with his decision upon the motion for injunction, so fully and fairly states the case that, although it was rendered before the case had been tried, it seems unnecessary to write at length at this time.

There can be no doubt whatever, as found by the judge who tried the case, that the second organization mentioned in the case was not in accordance with the trust agreement, and the trustees had no rightful power to materially depart from the terms of that agreement That each bondholder had a right to his pro rata share of the stock of any new organization is beyond question, and such provision was an essential part of the trust agreement, and beyond the power of the trustees to change or modify.

The clause in the trust agreement giving power to the trustees to modify had reference solely to incidental powers necessary to carry out the essential part of the agreement. Their conduct was a breach of duty and gave the plaintiff a right of action irrespective of the question whether or not they acted in good faith.

Neither is it material to inquire whether all the conclusions off fact are supported by the evidence in the case, as enough are supported by the proofs to warrant the judgment.

It does not seem exactly logical that the plaintiff shall be permitted to impound a debt due the trustees in order to force the trustees to indemnify the plaintiff for what he has lost by their failure to perform their duty. But this is rendered illogical only by the fact that the trustees succeeded in conveying the title to a bona fide purchaser before the plaintiff obtained his injunction. To stop the transfer and prevent the payment of the money was appropriate relief upon the facts from the plaintiff’s standpoint of observation, and inasmuch as a part of the relief cannot now be-given on account of the unlawful acts of the trustees, I think he may have such part of the relief as remains, upon the facts proved.

ít would seem unjust that a meritorious suit should be dismissed from a court of equity because a part of the relief asked had been rendered impossible by a wrongful act of a defendant. The judgment must, therefore, be affirmed.

But a court of equity will not permit a suitor to use its machinery for the pui’pose of injury or blackmail.

The plaintiff had a perfect right to use his own judgment, whether or not he would accept anything less than the amount of stock stipulated that he should have when he signed the trust agreement and delivered up his bonds.

The counsel for the defendants, in his brief, has asked the-court to “ suggest how captious objections, urged by the plaintiff alone, can be obviated.”

The court cannot make agreements for the parties, but it can refuse relief when it is plain that its mandates are to be used for the purpose of oppression and wrong.

It is impossible now to get back the property from Huntington,, and it is plain that plaintiff’s bonds or the stock offered to him are of small value. Under all the circumstances, therefore, indemnity can only be had by the plaintiff in money.

As before stated, it would be unjust to turn him over to a suit at law to recover damages for a breach of duty, and it would also be unjust to allow him to take advantage of the situation to mulct the defendants in exorbitant damages.

It appears that at one time the parties, including the plaintiff,, valued the bonds at the rate of seventy-two dollars per hundred, and it seems to us that sum, in any event, ought to be regarded as an outside limit of their value.

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


text:
    Alonzo Wicks et al, App’lts, v. Albert D. Thompson, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Highways—Dedication.
    The common source of title of the parties hereto devised lands to his sons. S. and J., that to the latter being ten feet east of a lane. Before his death, however, he widened the road to the line of J.'s land, and such road was used to gain access to said lands for over fifty years. A fence was built a few feet from said line by S., which was afterwards removed, and S. advised persons to purchase from J. and to build up to the line of the road. Plaintiffs built a fence shutting off defendant from the road, which defendant removed. Held, that there was a practical location of the line and a dedication of the road up to J.’s line; that the fence, when erected, was a nuisance, which defendant had a right to abate.
    Appeal from, judgment in favor of defendant
    Action for trespass in tearing down a fence claimed to be upon plaintiffs’ land.
    One Joshua Wicks, who was the common source of title, devised adjoining lands to his sons Selah and James, the land devised to James being described as lying ten feet east of a lane. It was shown, however, that he widened said lane so as to extend to James’ land, and used the same for access to both portions. Selah fenced in said road, but subsequently widened it to sixty feet and took down the fences. The road has been used for access to said land for over fifty years, and Selah advised persons to purchase land of James. Plaintiffs are devisees of Selah and defendant a grantee of James. Plaintiffs built a fence on the east side of the road, leaving a small strip between it and defendant’s land, and defendant took it down, which is the trespass complained of.

      Wm. G. Nicoll, for app’lts; Wilmot M. Smith, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered upon the verdict of a jury and from an order upon the minutes of the judge denying a new trial.

The record shows that the case was submitted to the jury under a charge as favorable to the plaintiff as he was able to ask, and upon the issue as so made a verdict was rendered for the defendant

It is, I think, perfectly clear that Joshua Wicks, when the road was laid out through the land, intended to make the west line of the road the east line of the land devised to James Wicks, the prior owner of defendant’s land.

The proof shows that for the space of about fifty years the west side of the lane was the east side of said James Wicks’ land.

This was a practical location and the possession and user by each party of the land upon their respective sides of this lane must be presumptive evidence of title.

I think it is also clear that when, in 1879, Selah Wicks opened Maple avenue, he intended to and did open it up to James Wicks' land, so that if the plaintiff has any title as a basis for his suit it is a varying strip about six inches wide upon which the fence stands.

But the verdict was right, even, upon this contention of the plaintiff.

It is plain that Selah Wicks made the west side of Maple avenue which he dedicated to public use so as to take in the whole lane as it existed at that time. It is absurd to suppose that he intended to reserve six inches on the west side of the avenue, as no good purpose can be attributed to such an intention, and his whole conduct afterwards refutes any such claim. His declaration at the time of opening the avenue that he did not intend to leave any land between the avenue and the land of his brother, and after-wards advising parties to build upon the west side of the avenue, makes it incredible that he did not intend to dedicate Maple avenue up to his brother’s land.

If such is the fact, then Maple avenue, for its whole length, was a public street, and the plaintiff had no right to erect a fence on the west side, and the same, when erected, was a nuisance and the defendant had a right to abate it.

But assuming that the fence stood upon the land of the plaintiff, and that Maple avenue did not include the land upon which the fence stood, we think, under the proofs, the jury were justified in finding a verdict for the defendant.

The trespass consisted in a use of the land as a right of way as it had been uninterruptedly used for over fifty years.

It was a use that the common owner had made before it was devised to James Wicks, and by the latter for over forty years. We think, therefore, the defendant had a right to use the whole roadway and to enter upon it as he and his father before him had been in the habit of doing for more than fifty years.

Judgment affirmed, with costs.

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


author: Dykman, J.

text:
    Oscar W. Hommert, Pl’ff, v. Patrick J. Gleason, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    1. Demurrer—Judgment.
    An interlocutory judgment sustaining demurrer to complaint, with leave to amend, may provide that in case of failure to so amend the complaint be dismissed “ on the merits.” The final judgment in such a case would he conclusive on the merits, and the defendant is entitled to have it so entered.
    2. False imprisonment—Liability op judge por his acts as such.
    Plaintiff was arrested and brought before defendant, who is the mayor of Long Island City, who refused to proceed with the examination at that time, hut adjourned the case for twenty-four hours, and held plaintiff to hail. He also refused tó release the plaintiff on his furnishing a bondsman or to accept any hail until after twenty-four hours, and directed that he he locked up until the following day. Held, that as the defendant acted in a judicial capacity, he could not he held liable for his acts.
    Appeal by plaintiff from a judgment sustaining a demurrer to the complaint, and an appeal by defendant from order striking out the words “ on the merits ” from the interlocutory judgment.

      George A. Stearns, for pl’ff; George W. Stephens, for def’t.
   Dykman, J.

The complaint in this action states that the defendant is the mayor of Long Island City, that the plaintiff was arrested by a police officer, charged with a violation of the excise law, and brought before the defendant for examination, and requested to have such examination at once, which the defendant refused, and refused to hear any evidence, and forthwith adjourned the hearing until twenty-four hours thereafter, and held plaintiff to bail in the sum of $100 for his appearance before the defendant on the following day. That thereupon the plaintiff procured a bondsman, who duly executed a proper bond, but the defendant refused to release the plaintiff, and stated that he would take twenty-four hours to determine the sufficiency of such bail. That the plaintiff then offered to furnish another bondsman, but the defendant stated he would refuse to accept any bail until after twenty-four hours, and left the room, after having directed that the plaintiff be locked up until the following day. The complaint charges the conduct of the defendant to have been willful and malicious, and with a purpose to injure the plaintiff.

The defendant demurred to the complaint upon the ground that it failed to state a cause of action, and the demurrer was sustained in the county court of Queens county, where the action was commenced, and now the case comes to us on appéal by the plaintiff from the judgment.

It also appears from the record that the interlocutory judgment entered upon the decision sustaining the demurrer provided for a dismissal of the complaint on the merits, provided the plaintiff failed to file and serve an amended complaint and pay the costs within twenty days after the service of a copy of the first judgment. That provision being unsatisfactory to the plaintiff he made a motion to strike out the words “on the merits,” and the motion was granted, and the defendant appeals from that order.

This last order is erroneous. If the plaintiff failed to avail himself of the privilege extended to him and final judgment was entered upon the demurrer in favor of the defendant it was final and conclusive upon the merits, and it was the legal right of the defendant to have it so entered.

Upon the main question our conclusion is in favor of the judgment.

The defendant, as mayor of Long Island City, was by virtue of his office a magistrate, Code of Criminal Procedure, § 147, subd. 7, and as such was clothed with judicial authority to conduct examinations upon criminal charges. Same Code, § 188. When, therefore, the plaintiff was brought before the defendant upon an arrest, he acquired jurisdiction of the person and the subject matter, and what he did was done in the discharge of his judicial functions, and it is elementary law that no judge or magistrate can be held responsible in a civil action for a judicial determination, however erroneous. Weaver v. Devendorf, 3 Denio, 117; East River Gas Light Go. v. Donnelly, 93 N. Y., 557.

It appears therefore upon the face of the complaint that the defendant acted in a judicial capacity in what he did; he is entitled to the protection which the law affords to all judicial officers in the performance of the duties of their office, and cannot be made liable in this action.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to amend the interlocutory judgment by striking out the words “on the merits ” should be denied, with ten dollars costs, and the judgment appealed from should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    In the Matter of the Probate of the Will of Peter Paul Mahoney, Deceased.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Will—Probate—Jury trial.
    The surrogate rejected the will on account of the mental incapacity of the testator, hut did not decide the question of undue influence. Held, that on reversal it was proper to direct a jury trial without first requiring the surrogate to pass upon the question of undue influence.
    Motion for reargument. For former opinion see 34 N, Y. State Rep., 183.

      Patrick Keady, for motion; Frederick Smyth, opposed.
   Dykman, J.

This matter came to the general term upon an appeal from the decree of the surrogate, which rejected the will of Mahoney, and the decree was reversed.

At the present term of the court the counsel for the contestants applied for a reargument and the counsel for the proponent called the attention of the court to a possible irregularity in the disposition of the ease by the general term.

There is no basis for the application for a reargument, and it must be denied. There was no oversight of law or fact, and the case received full and careful consideration, and the re-examination which we have now made confirms our conviction that the objections raised against the will of Mahoney are destitute of any foundation.

There is a question, however, to which our attention has been now for the first time directed by the counsel for the proponent, which requires examination.

When the matter was before the surrogate he rejected the will for the mental incapacity of the testator, and did not decide the question of undue influence, which was also raised by the contestants. Now, the counsel for the proponent fears that our direction for a jury trial is premature and that we should first remit the case to the surrogate, with directions to him to pass upon the question of undue influence, and we are referred to the case of Dack v. Dack, 84 N. Y., 663, as an authority.

In that case the codicil to a will was contested for want of due execution and on the ground of undue influence, and the surrogate refused to admit the codicil to probate upon the first ground and failed to pass upon the latter. The general term upon appeal reversed the decree of the surrogate and directed him to admit the codicil to probate.

The court of appeals, upon appeal to that court, held the disposition of the case to be erroneous, because the directions to admit the will to probate foreclosed all controversy and afforded no opportunity for the decision of the question of undue influence, which the contestants had a right to litigate. The judgment in effect excluded the defense of undue influence, upon which the contestants had the right to insist and were entitled to have decided.

In this case, however, the case was not remitted to the surrogate, but was sent to a jury, where every question involved will be open for litigation and determination, and, therefore, the reason upon which the decision in the case of Dack v. Dack was based has no application here.

The motion for a re-argument will, therefore, be denied, and the decision made at the December term will remain without modification.

Barnard, P. J., and Pratt, J., concur.


text:
    The People ex rel. George J. Penfield, App’lt, v. Robert George, Com’r of Highways, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Towns—Highway moneys.
    At a town meeting certain moneys were voted for the purpose of working an unpaved street or highway. The moneys were expended in the general repair of the highways of the. town and nothing was done as to said road, which is now embraced within the limits of a village which is given exclusive control of its streets. Defendant’s accounts have been audited and allowed. Held, that the moneys were subject to the general direction of the commissioner of highways, notwithstanding the vote of the town meeting, and that a taxpayer of the town could not compel the commissioner to expend such money upon the road in such village.
    Appeal from judgment of special term, denying application for a mandamus.

    Application by relator as a taxpayer of the town of Eastcbester for a mandamus to compel defendant as commissioner of highways of said town to expend certain moneys in working a highway in the village of South Mount Vernon in said town.

      John F. Brennan, for app’lt; Pelham L. McClellan, for resp’t.
   Barnard, P. J.

On the 23d day of December, 1887, the commissioners of highways of Eastchester laid out a road, being an extension of Third street, in the village of Mt. Vernon, from the village limits to the westerly boundary of the town. At the town meeting preceding, held in March, 1887, there was raised for general highway purposes the sum of $1,700, and $900 for working this then unpaved street or highway. The tax was all collected out of the taxable property of Eastchester, outside of Mt. Vernon village. After the road was opened in December following, the damages for land taken were assessed, but nothing was ever done in respect to opening or working the road. The moneys in question' have been expended in the general repair of highways in the town of Eastchester. The road in question is now entirely embraced within the corporate limits of South Mt Vernon, which was incorporated in 1889 under the general act in relation to formation of villages. By the charter the village has exclusive control of its streets within the corporate limits. The defendant received the $900 from his predecessor in office. Mr. Fisher, with full knowledge that it was raised for a specific purpose, in the spring of 1889. The defendant expended all the money in general highway and bridge repairs in the town, and his accounts were audited according to law; and there was left eighty dollars on hand unexpended only. These repairs were necessarily made. I am of the opinion that the relator has no right to compel the commissioners of highways to expend the $900 upon the road in South Mt. Yernon. First, the moneys were subject to the general direction of the commissioners of highways notwithstanding the vote of the town meeting. Second, the moneys have been necessarily expended in the performance of the general duty of the commissioners of highways in respect to the town roads and bridges. Third, the expenditure has been audited and allowed by the town auditors, all of which happened before South Mt Yernon was incorporated, and possibly this section had its proportion of benefit.

Lastly, it is now too late to compel the commissioners to go into the corporate limits of South Mt. Yernon and repair one of its roads. Chapter 377, Laws of 1878. Chapter 67, Laws of 1860.

These laws require the expenditure to be made in the town.

The judgment should, therefore, be affirmed with costs.

Dykman and Pratt, JJ., concur.


text:
    In the Matter of the Application to Widen Washington Street in the City of Poughkeepsie.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    1. Municipal corporations—Opening streets—Laws 1883, chap. 523.
    The word “ section ” in the charter of Poughkeepsie is qualified by the words “ proposed to be improved,” so that a petition by a majority of the owners of the frontage proposed to be improved is a sufficient compliance with the charter to confer jurisdiction.
    2. Same—Waiver of objections.
    Objections to the form of the petition are waived by appearance before the commissioners and a trial of the case on the merits.
    Appeal by a property owner from an award made to him for land taken to widen the street and the assessment made upon his remaining land for benefits.

      Horace D. Hufcut, for app’lt; C. B. Herrick, for resp’t
   Pratt, J.

This appeal is taken by the owner of a portion óf the property taken to widen a street from the award made to him for the land taken and from the assessment made upon his remaining land for the benefits arising from such widening and improvement.

The word section,” as used in the charter, must be given a practical meaning in order to carry out the purposes of the law.

In the connection in which the word occurs, it must be held to be qualified by the words “ proposed to be improved,” so that a petition by the majority of the owners on the frontage proposed to be improved is sufficient compliance with the charter to confer, jurisdiction. “ Section cannot mean any arbitrary and uniform length of street, like a block or one-half a mile, but it must refer to a portion of a street proposed to be improved, and when that portion is described it is a section of a street.

The petition herein was signed by a majority of the owners on the frontage proposed to be improved.

Bat if there was any doubt about the sufficiency of the petition it was waived by the appellant’s appearing before the commissioners and trying the case upon the merits. The only object of the notice was to get the party duly in court, and having appeared we think all objections to the form of the petition were waived. Grunberg v. Blumenlahl, 66 How., 62.

We fail to see any irregularity in the proceedings of the common council or in the appointment of commissioners.

The fact that two of the petitioners attempted to withdraw their names from the petition after the commissioners had been appointed was immaterial. Town of Springport v. Teutonia Savings Bank, 84 N. Y., 403 ; People v. Sawyer, 52 id., 296.

The award both as to damages for the land taken and for benefits to the remaining land seems to be supported by the evidence; besides the personal examinations made by the commissioners must be given some weight upon these questions. Lewis on Eminent Domain, § 524.

The record fails to show that in making the award the commissioners acted upon any erroneous principle.

We are constrained to think that the decision of the commissioners was not only right in form and substance, but was made upon correct principles.

Order affirmed.

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