source: Caselaw Access Project

author: BoardMAn, J.:

license: Public Domain

text:
    In the Matter of the Accounting of the Administrators of STOKES POTTER, Deceased.
    Administratrix— when she will he charged with holding assets of the estate, in favor of creditors thereof — when real estate conveyed to her will he treated as assets.

    One Morey, who held a contract for the purchase of certain land upon which there was unpaid about $300, assigned the same to one Potter to secure a debt of $300 due to the latter. In July, 1881, Potter assigned the contract to one Vine to secure a debt of $200 due from Potter to Vine’s wife. ¡September fourteenth or fifteenth, Vine obtained an assignment of Morey’s interest in the contract, paid the amount due upon it, and took a deed of the land in his own name. Five days thereafter Potter died. In October, Vine conveyed the land to Potter’s wife, who was also Potter’s administratrix, and took back from her a mortgage for the amount due to his (Vine’s) wife, and the amount paid by him to get his deed from the owner.
    Held, that the administratrix was properly held to have received the land as security for the amount due to the Potter estate from Morey, and was properly charged with holding assets of the estate, and directed to pay creditors of the estate therefrom.
    Appeal from a decree of the surrogate of Schuyler county, directing the payment of a claim of a creditor of Stokes Potter, deceased.

      O. P. Hurd, for Betsey M. Potter, administratrix, appellant.

      O. M. Woodwwrd, for Henry 0. Yan Duser, a creditor, respondent.
   BoardMAn, J.:

Henry C. Yan Duser, who as a creditor of Stokes Potter, obtained' the decree for the payment of his debt, now appealed from, is conceded to be a creditor, as stated in the decree. No objections are taken to the proceedings by which the widow and administratrix of Stokes Potter, deceased, was called to an account by Yan Duser. On such account, as rendered, no assets were admitted to exist for the payment of said debt, but the existence of any assets was denied. Yan Duser then contested such account and charged the administrators with certain assets received, but not embraced in the account. The charge was sustained as to the widow and admin-istratrix, and a decree made for the payment of Yan Duser’s debt, eighty-six dollars and ten cents, together with thirty dollars costs.

So far as tbe administratrix was charged with $1,000, as assets belonging to the estate, she claims she has been wronged, and asks for a reversal of the decree.

The facts out of which such $1,000 was realized are briefly as follows: In 1880 intestate owned a contract for the purchase of lands, on which about $800 was unpaid. In that year he sold said contract and all his interest 'therein to one Morey, subject to the payment by Morey of the balance of purchase-money, for the sum of $1,800. Morey and intestate went to the owners of the land, to whom Morey paid $500 of the $800 purchase-price then, xinpaid, surrendered the Potter contract and procured a new contract in lieu thereof, to be issued to Morey for balance of purchase-price, about $800. This new contract was assigned by Morey in March, 1880, to intestate, to secure him for the $1,300 which Morey had agreed to pay him. In July, 1881, intestate was owing the wife of John C. Yine (now one of the administrators) about $200, and this contract was assigned to John C. Yine, as the surrogate finds, as collateral security for that debt. About the 14th or 15th of September, 1881, John O. Yine had obtained an assignment of Morey’s interest in the contract, and on the last-named day he paid up the balance (about $347) due upon the Morey contract and took a deed of the land in his own name. Five days afterwards Stokes Potter died. In October, Yine conveyed the land to the widow of deceased, receiving therefor a mortgage for $600, which was intended to repay Yine the amount of his wife’s debts of $200, and. the amount paid by him, $347, to get his deed, together with interest thereon. Stokes Potter never received anything for the $1,300 owing him by Morey, nor anything for his assignment of Morey’s contract to Yine, except so far as his debt to Yine’s wife was paid by the $600 mortgage given after his death.

In short, Stokes Potter being the owner of Morey’s contract as collateral security for the payment of $1,300 due from Morey, assigned the same to Yine as collateral security for $200, due to Yine’s wife. Yine gets Morey’s remaining interest in the Morey contract, pays the balance due on it and takes the deed. Afterwards Yine is repaid by Mrs. Potter’s mortgage for all his advances, and deeds the property to her. It is not clear whether this deed was given before or after Stokes Potter’s death ; the surrogate finds it was before, while Yine thinks the deed was acknowledged in October, after the death.

On this state of facts Mrs. Potter clearly held the title to the land as Stokes Potter originally held it as security for the $1,300 Morey debt and for Stokes Potter’s benefit. The assignment to Yine had been canceled, as also the unpaid purchase-price by Mrs. Potter’s mortgage to Yine. His advances having been repaid to Yine, and Morey’s contract having been merged in the deed to Yine, the deed from Yine to Mrs. Potter was for the benefit of the estate of Stokes Potter. When it was sold in 1883, the assets were applicable to the payment of debts. The title to the property was taken by Mrs. Potter in payment of Morey’s debt, and she held it as trustee for the estate. It was not real property belonging to Potter’s estate, but a debt owing by the real property in Mrs. Potter’s hands due to the estate and payable when the land was sold.

Such a claim is within the jurisdiction of the Surrogate’s Court to hear and determine. (Code of Civil Pro., § 2739.) Indeed, it is 'the ordinary case of assets belonging to the estate coming into the hands of an administratrix for which she must account. She had paid nothing for this $1,000 thus acquired. The property by her mortgage had paid all advances. The residue represented Stokes Potter’s security for Morey’s debt, and that was the only plausible reason for her procuTing the deed from Yine.

The case of Richardson v. Root (19 Hun, 473) is not in point. That was a transfer by the husband to his wife. Here the transfer was made without the knowledge, so far as appears, of the husband, and very likely after his death. (Gardner v. Gardner, 7 Paige, 112 ; reversed in 22 Wend., 526, but not affecting the principle for which it is cited.) Boughton v. Flint (74 N. Y., 476); Shakespeare v. Markham (72 id., 400); Kyle v. Kyle (67 id., 400 and bottom of page 408); Kearney v. McKeon (85 id., 136); Baucus v. Stover (89 id., 1), sustain the jurisdiction of the surrogate in this case.

We conclude the surrogate had jurisdiction to hear and determine the issue between this creditor and the administratrix, and that the order was proper under the facts found.

A further question is presented by the respondent. No exception has been taken to the decree or to the -facts and law therein and thereby found, nor has any case been made or settled as is required by Code Civil Procedure (§§ 2545, 2576, 994-7, Laws of 1881, chap. 40.) In the absence of a case made and settled, as required by .above section 2576 and Laws of 1881, or of exceptions as required by the other sections cited, we think the decree cannot be reviewed unless upon the facts found by the surrogate (if at all). That is inferentially decided in Mills v. Hoffmam, (92 N. Y., 181); French v. Powers (80 id., 150 and 151).

The evidence called out from Yine, under appellant’s exception, if illegal, was afterwards proved by Nathan C. Rider without • objection or exception.

We think the decree just, and no reason is given why it should be reversed.

Decree affirmed, with costs against appellant.

LeáRNEd, P.. J., and Bocees, J., concurred.

Decree affirmed, with costs against appellant.


author: .LeaRNed, P. J.:

text:
    JULIUS P. MORGAN, Respondent, v. THE CITY OF BINGHAMTON and JOHN W. SULLIVAN, Appellants.
    . Sewers — when their construction hy a city will he enjoined, on the application of a party to he injured thereby — it is not necessary that the injury should result immediately after their construction — the person contracting to build t/ie sewer may he made a defendant.

    This action was brought to restrain the city of Binghamton from constructing a sewer in Carroll street, running into the Susquehanna river, upon the ground that the sewage would be deposited upon land lying in or near the stream, and be a nuisance to the adjoining land of the plaintiff. The court held that if the sewer was used only by the residents of Carroll street the discharge therefrom would be insufficient to injure the plaintiff, but that if it should be connected with other sewers, as was intended by the city, the discharge would in lime produce a nuisance. It allowed the sewer to be constructed for the use of the residents of Carroll street, but enjoined the city from connecting other sewers with it.

      Held, that this was a proper judgment to render.
    The court found that the injury to be occasioned by the deposit of the sewage would vary with the nature of the season, it being greater in dry and less in wet seasons, and that no injury might be occasioned until after the sewer had •been in full operation for a year or more.

      Held, that the fact that the injui-y had not actually been or would not immediately he sustained did not prevent the court from granting the injunction.
    That if the plaintiff had remained inactive and had permitted all the sewers to be constructed, knowing the damage which would result therefrom, and should thereafter apply for an injunction, it might he held that he was equitably estopped from claiming that kind of redress.
    ' The person having the contract to construct the -sewer was made a party defendant.

      Held, no error; that he was a proper, though perhaps not a necessary party defendant.
    Appeal from a judgment in favor of tbe plaintiff, entered upon, •the trial of tbis action by tbe court without a jury.

      W. M. Hand, for Sullivan, appellant.

      A. JD. Wales, for the City of Binghamton, appellant.

      G. L. Sessions, for the respondent.
   .LeaRNed, P. J.:

The plaintiff claims that a certain sewer, which the defendants were constructing at the commencement of the action, will injure him by creating a nuisance which will affect his land. The sewer discharges its contents into the Susquehanna river, above the land of plaintiff. And his claim is that thereby the offensive matter of the sewage will be deposited upon land lying in or near the stream, • sometimes covered with water and sometimes exposed; that these •deposits will be offensive, and will thus be a nuisance to land of the plaintiff adjacent or near.

Tiie construction of the sewer proceeded during the pendency of the action. The court held that, if this sewer, which is built in Carroll street, were used only by the inhabitants of that street, the discharge therefrom would be insufficient to injure; but that, if it should be connected with other sewers (as was intended by the city), this use would in time produce a nuisance. He therefore enjoined the use by the city of this sewer to receive the contents of other sewers.

The first position of the defendant, the city, is that the construction of sewers is committed to the discretion of the common council, and the courts cannot interfere. (Lynch v. Mayor, 76 N. Y., 63.) "We recognize the correctness of the rule. But nothing which has been held in that and similar cases- permits a city to turn its sewage upon the property of a person to his injury. (Byrnes v. Cohoes, 67 N. Y., 204; Van Woert street sewer cases in Albany, Noonan v. City of Albany, 79 id., 470.)

The neglect to put in a sewer is not a cause of action. But it is not lawful to build a sewer and to discharge its contents on private property.

In the next place, the defendant insists that the nuisance, if any, is public, and therefore the plaintiff has no right to complain. If the plaintiff and other persons similarly situated are injured by the nuisance in a way in which the whole public are not injured, then, though the public may also have a remedy, the plaintiff is not remediless. Offensive manufactures may be public nuisances. But if they specially annoy and injure several persons in respect to separate lands owned by them) these persons have a remedy. One of them may sue although others are also injured, and although the public might prosecute.

The court held that the pernicious effects of the depositing of sewer matter at the point where the plaintiff complains that he is injured, were dependent on various uncertain future events; that if the season was wet these effects would not be felt for a year after the sewer was in full operation; and generally, without repeating the findings, that if the second and third and future seasons were changeable from wet to dry and hot, the evil effects would be felt the second season and more thereafter. That the injurious effects were likely to occur within two years, and very sure to occur within three; ¡provided the sewer were used as a discharge for other sewers to any extent. That the danger would be imminent that the sewer would produce such nuisance if used to receive other sewers. It is urged by the defendant that the court should not interfere to prevent a merely apprehended injury. Now, we must observe that this is not a merely apprehended injury, with no reason to think that injury will happen. The city intended, before restrained, to construct a system of sewers which should drain into this Carroll street sewer. Hence this was but the beginning, and the rest of the enterprise was threatened. If the plaintiff had remained inactive and had permitted the construction of all these sewers, it might justly be said, when he should come into equity for relief, that he was equitably estopped from that kind of redress; that he had permitted the city to go on and expend a large amount of money, knowing that the sewer would be a nuisance to Mm and that he •ought to have interfered at once and stopped the construction if it were likely to injure him. And this position would have been of great force.

■ The plaintiff now says, you are beginning to build a system of sewers, all of which are to find their outlet in this one. You necessarily begin with this. Your completed system, at least, will create a nuisance on my land; even though the court hold that the Carroll street sewer alone is not enough to do harm. Therefore I complain at once and ask to be protected. If your plans are going to injure me, change them before more has been expended.” We think, therefore, that if there were in other respects a good cause of action,'the mere fact that the sewer, if used by the inhabitants of other streets, would not produce immediate injury does not prevent the recovery in this case. For the injury, as found by the court, will, under the ordinary course of things, come by the natural accumulation of the deposit. And though it may be delayed, or even prevented, by a wet season, yet this is no protection to the plaintiff against the danger to which he is exposed.

The defendant urges that the extent of the use of this sewer being in the discretion of the common council, it is not to be supposed that they will use it improperly. But the reply is that the plans contemplated the use of tMs sewer to receive the contents of other sewers. It is reasonable to believe that it would be so used. If there is no intention so to use it, the injunction is harmless.

The conclusions of the' learned court upon matters of fact are entitled to be almost conclusive in this case. A large amount of testimony was taken; and in addition the court, by consent of the parties, made a personal examination of the places where the questions arise. The question whether or not the solid matter of the sewage will be deposited on the river bed or bank near to the plaintiff’s land is one purely of fact. Little aid is given to us by arguments that the currents of water would sweep the sewage out into the stream and down below the point in question. Perhaps they ought to do so. But the question is, do they ? And on that the findings of the learned justice on the testimony and on his personal examination must be better than any judgment which we can give. There is certainly nothing strange that sewage should be-carried down a stream like the Susquehanna, at Binghamton, and deposited on or near the bank, upon land, sometimes covered and sometimes dry. Nor is it strange that such deposits should be offensive and malarious.

We are not unmindful of the importance to the city of having a. proper system of sewers. But this importance does not, we think, authorize the city to do an-act which shall discharge sewage so that the deposits will make the plaintiff’s land unhealthy. In order to-show that this was not an absolute necessity, the court seems to have considered the question whether the sewage could not be carried to some point where, owing to the increased volume of water and the stronger currents, no evil would arise. And the court has found that such a construction was possible. This is-important only in order to show that the system enjoined is not of absolute necessity; since it is not the business of courts to plan systems of sewerage.

We have looked at the exceptions to the exclusion of evidence and find no error.

Sullivan, the other defendant, was the contractor for building the-sewer. It was proper to include him as defendant in an action to-enjoin the construction, though it may not have been necessary to-do so.

Pending the action, the injunction was modified so. as to permit the construction of the sewer. At the end of the case the court adjudged that Sullivan should be discharged from all further connection with the action; but without cost. This was not, perhaps, a very formal manner of disposing of this defendant. But it practically did him no harm except as to damages on the undertaking-given for the injunction. He was a proper party defendant. He was restrained, it would seem, until the modification of the injunction November I, 1882, the injunction having been granted October 6, 1882. The court, by its final judgment, seems practically to-sustain the injunction as modified. And the court refused to hold, that the plaintiff was not entitled to the temporary injunction.

Sullivan’s contract was for the construction of the Carroll street-sewer. The court holds the construction of that sewer to be proper. It seems to us, therefore, that Sullivan was entitled to a final judgment in his favor deciding that there should be no injunction against him, but without costs of the action. This will place Sullivan in a condition, if he shall choose, to claim damages by reason of the injunction from the time it was served till it was modified. Sullivan also should have costs of this appeal.

Judgment affirmed against the city, with costs.

Judgment modified as to Sullivan as above stated, with costs of’ appeal to him.

Present — Leaened, P. J., Boabdmah and Bocees, JJ.

So ordered.


author: BocKEs, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN S. BURHANS and Others, Supervisors, etc., and the CITY OF KINGSTON, Appellants, v. THE BOARD OF SUPERVISORS OF ULSTER COUNTY, Respondent. THE PEOPLE OF THE STATE OF NEW YORK ex rel. LOUIS BEVIER, Supervisor, etc., and the TOWN OF MARBLETOWN, Appellants, v. THE BOARD OF SUPERVISORS OF ULSTER COUNTY, Respondent.

      Appeal by a town to the hom'd of State assessors — 1880, chap. 80 — power of the boa/rd of supervisors to audit the costs and expenses incurred on the appeal — an audit.' once made cannot be revoked. . .
    Section 15 of chapter 312 of 1859, as amended by chapter 80 of 1880, provides that whenever an appeal taken by a town, city of ward to the board of State assessors “shall not be sustained, the costs and expenses arising therefrom and connected therewith shall be a charge upon the town, city or ward so appealing, which shall ,be audited by the board of supervisors and levied upon the taxable-property of said town, city or ward.”

      Held, that as the right to audit was conferred upon the board of supervisors and not upon the court, the audit of the former was conclusive upon the latter.
    That the words “costs and expenses” were not to receive the same meaning as-ís given to them when used in reference to actions, but that they were intended to afford an indemnity and protection against all costs and expenses, of whatever nature they might be, which might be incurred by the board in taking, the appeal.
    That the mode of conducting the audit, as well as the time and place and the proof to be received, were all to be determined by the board, and its action thereon could not be reviewed by the court.

      That the law was not objectionable, as making the supervisors judges in their own case, in allowing them to audit the costs and expenses incurred by their directions.
    ’ The board cannot change or revoke an audit after it has been made.
    Ceetioeaei to tlie board of supervisors of Ulster county to review tbe action of that body in auditing certain bills and accounts pre•sented to it.

      John J. Linson, for tbe relators.

      Alton B. JPczrker, for tbe respondents.
   BocKEs, J.:

This case comes before the court on tbe return to a oertiora/ri directed to the board of supervisors of Ulster county, in which proceedings tbe relators demand a review and tbe correcting of the action of such board in auditing tbe costs and expenses incurred by that body in making defense to an appeal taken by them to the State assessors under and pursuant to tbe Law of 1859, entitled An act to equalize tbe State tax among tbe several counties in tbe 'State,” and tbe amendments thereof. The return shows that tbe •relators, in 1882, appealed to tbe State assessors, under the provisions of law referred to, from tbe decision of tbe board in the matter of tbe equalization and correction of tbe assessment-rolls of tbe several towns in tbe county, including those of the city of Kingston. The appeal was very sharply litigated, and great expense was incurred in its prosecution and defense. After full hearing tbe .appeal was dismissed on tbe merits, and in November, 1883, the •decision of tbe State assessors, so adjudging, was made and filed. Tbe bills for tbe expenses incurred by tbe board, itemized and duly ■ verified, were first presented to tbe assessors, and afterwards to the • supervisors-when in regular session for audit and due assessment, according to tbe provisions of law applicable to tbe subject. The bills so presented were examined and audited according to tbe ordinary and regular course of business observed by tbe board; and their amount, to the extent of $18,337.18, was by tbe board assessed and 'levied upon the city of Kingston, here represented by tbe relators, tbe supervisors of that city. Tbe authority for such action is conferred ■ by tbe clause of section 15 of tbe amendatory act of 1880 (Laws of 1880, chap. 80, p. 192), which reads as follows; “Whenever any appeal so made shall not be sustained, the costs "and expenses arising therefrom and connected therewith shall be a charge upon the town, city or ward so appealing, which shall be audited by the board of supervisors and levied upon the taxable property of said town, city or ward.” It is not disputed that this provision of law had application to the subject before the board for action. The' appeal taken in the case was not sustained. Costs and expenses had been incurred in its defense. Now, of what did those costs and expenses consist ? To be allowable under the law they should be costs and expenses arising from or out of the appeal, and connected therewith, and they were to be audited by the board. The bills therefor, duly itemized and verified, were presented for audit. It was now the duty of the board to take them up and pass upon them, item by item (People ex rel. Thurston v. Town Auditors, 82 N. Y., 80), and to allow such of them as were found right and proper to be allowed, according to the provision of the law cited, and to disallow and reject all others. Was this duty performed by the board in the due order and conduct of its business? The return to the writ gives answer in the affirmative. The bills were taken up for examination by the board in session, and, as is usual and indeed necessary when the auditing body consists of many individuals, the matter of examining the bills was referred to a committee — in this case of three members of the body — who, after considering it, reported to the board in writing, returning the itemized bills, abstracted as allowed and certified in their report, and recommending their audit according to the abstracts submitted with the report. Thereupon and in due time the report was considered in open session, and the bills were formally by resolution audited by the board to the several persons and parties, and in the amounts specified in the abstracts. It must be presumed that the board was conversant with the bills and with the items there given, and gave approval of them intentionally and understandingly. We are, therefore, of the opinion that such auditing of the bills was regular and orderly in every respect, and we are also of the opinion that such audit by the board is conclusive upon the court in this proceeding. The right to audit was conferred by law on the board of supervisors, not on the court. It was for tbat body to determine the right and justice of the claims which went to make up the sum to be allowed for costs and expenses. It was for that body to determine, in its discretion and judgment, whether the items set forth' in the bills were “ costs and expenses arising therefrom ” (from the appeal) “ and connected therewith,” and whether they were actually incurred and were right and proper to be allowed in view of the law and the circumstances of the case. There was no principle of allowance or of disallowance applicable to -the case that was violated by the audit in so far as we can see. "We cannot fix upon any item that was allowed which we can adjudge not to have been within the purview of the law — a law of most general and comprehensive scope, reaching and intended to reach and embrace all costs and expenses growing out of the appeal and its defense.

• It is urged that the terms costs and expenses ” employed in the law are synonymous with costs and disbursements in an action, and that such construction should be given them. We conclude otherwise. We are of the opinion that they should be construed with reference to the context and subject-matter to which they are intended to apply. We may the better get at the meaning of these words as here used by the inquiry, what has the appeal cost the board and what were the expenses incurred in defending against it ? The law was intended, as we think, to afford an indemnity and protection against this cost and those expenses, of whatever nature they might be, so be it, that they arose out of ■ or from and- were connected with the appeal, and were actually incurred and were fair and just in amount, and with a view to determine' these questions the bills of such costs - and expenses were to be audited by the board of supervisors. Thus the board was to exercise its judgment and discretion in allowing or disallowing items and their amounts the same as in any case of bills to be audited by it, where no specific amount is declared or fixed by law to control the audit. The court cannot overlook such audit. As before stated, the authority to audit in such case is conferred upon the board of supervisors, not upon the court.

It is suggested that the relators were denied a hearing before the supervisors on the matter of the audit. The application by the relators was for delay. The board, however, by vote proceeded to determine the matter. It does not appear that proof was offered to impeach the bills and rejected. What was asked for was further time to examine the bills, and the return states that the application was not regarded to have been made in good faith. But a complete answer to this subject of objection by the relators is that the mode of conducting the audit was in the discretion of the board as well as to time and place as also to the proof to be received by way of aid in the matter. These questions were all to be determined by the vote of the board, which vote must be conclusive as to any objection to such action which can be. here urged. It may be remarked here that any attempted change or revocation o,f the audit after it had been made and declared by resolution would be wholly unavailing. It was held in The People ex rel. Thomson v. Supervisors of Schenectady (35 Barb., 408) upon the strength of many decisions that inferior jurisdictions, such as boards of supervisors, which derive their powers from the statute, have not. the authority to reconsider, to review, reverse and annul their own judicial action when it has once been legally exercised.

It is further urged that the law is of no effect and void, because it makes, as is alleged, the supervisors, in the auditing of the bills for costs and expenses, judges in their own case. This point of objection is without force. The supervisors were not acting in a matter personal to themselves in making the audit: It was never so considered, nor is it so in point of fapt. From time immemorial, almost, the board of supervisors have been invested by law with the power to audit accounts and claims against the county. The only personal interest they have in such cases is because of their being taxpayers. This interest is too remote to bring them within the objection that they are acting as judges in their own cause in auditing such bills and accounts. There are not, as we think, any other subjects brought to our notice by the relators requiring particular comment, and it follows, from the conclusions above reached, that the writ or certiorari, and proceedings thereon, should be dismissed, with fifty dollars costs and disbursements against the relators, under section 2143 of the Code of Civil Procedure.

LeaeNed, P. J., and Boabdman, J., concurred.

Certiorari dismissed, with fifty dollars costs and disbursements in each case.


author: BoaedmaN, J.: Bocees, J.: LeaeNed, P. J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JOHN SWINBURNE, Respondent, v. MICHAEL N. NOLAN, Appellant.

      Action to determine title to office — right of the successful party to recover damages from the intruder — the salan‘y received is the measure of damages — a defense cannot he raised on appeal which was not taken helow.

    After the plaintiff had recovered a judgment herein, determining his title to the office of mayor of the city of Albany, he was allowed to file a supplemental complaint or suggestion showing that he had sustained damages to the amount of $4,005.43, by reason of the defendant having wrongfully usurped the office and received the salary thereof. The defendant filed an answer denying that the plaintiff had sustained damages to that amount, admitted that he had received as salary the amount claimed, but denied that any portion of it belonged to the plaintiff. Upon the trial the court held that there were no disputed questions of fact, and directed a judgment for the amount named: Held, no error; that in the case of the usurpation of a public office, the measure of the damages of the party excluded is the amount of salary received by the usurper. (Learned, P. J., dissents.)
    That even if the defendant was entitled to have any deduction made from the said amount, he waived his right thereto by his failure to state it in his pleading or raise-it upon the trial. (Per Bocees, J.)
    Appeal from a judgment rendered at tlie Albany Circuit in favor of the relator for the sum of $4,072.43 damages and $309.08 costs.
    The action was one of quo warranto to determine the title to the office of mayor of the city of Albany, the relator alleging that he was duly elected to the office, and that the defendant had illegally intruded into and usurped the same, and praying relief that the relator be adjudged entitled to the office, and for costs and the imposition of a fine of $2,000 upon the defendant.
    The defendant allowed a default at the trial, and a verdict was entered that the relator was duly elected to' the office, and judgment was rendered accordingly.
    Thereafter the relator presented a verified supplementary suggestion, setting forth a claim for damages “ to the amount of $4,005.43, by reason of the usurpation, by the said Michael N. Nolan, of the office of mayor of the city of Albany, in the judgment herein mentioned,” being “ the salary appertaining to said office,” and thereupon “ prayed judgment- for said damages according to the form of the statute in such case made and provided.”
    The defendant filed an answer thereto denying that the relator had sustained damages to the amount named, or to any amount; admitting that he had received the salary named, but denying that any portion thereof belonged to the relator.
    Upon the trial the court held, as a matter of law, that there were no disputed questions of fact upon the pleadings, and directed a judgment for the relator for the amount demanded.

      Parlrer dé Countryman, for the appellant..

      Henry Smith, for the relator, respondent.
   BoaedmaN, J.:

The proceedings in this case after judgment of ouster have been taken in accordance with our decision in 30 Hun, 484, it is, therefore, res adjudieata in those respects in this court.

Section 1953 of the Code of Civil Procedure gives the right to recover the damages sustained by the relator in the same action in which his right to the office was established The right to the damages given in this case is established by Dolan v. Mayor (68 N. Y., 274). Similar authorities under similar statutes exist in Michigan (People v. Miller, 24 Mich., 458), Indiana (Douglass v. State, 31 Ind., 429), and in California and Louisiana. In New Jersey there is no ■statute giving to the relator such damages, and so the case of Stuhr v. Connor (44 N. J. Law, 181) is not authority with us, as the opinion of that court expressly states.

We are satisfied the judgment given is in accordance of the laws of this State.

The judgment should be affirmed, with costs.

Bocees, J.:

The appeal herein brings up for review, by special reference thereto in the notice of appeal, the intermediate order following the judgment of ouster, giving the relator leave to make a claim against the defendant by suggestion or supplemental complaint for damages, because of his having received the salary pertaining to the office of mayor, during his unlawful incumbency of that office. Thus Ave are brought back to the question decided on the former appeal (30 Hun, 484) whether the relator was entitled to recover damages against the defendant on the complaint herein or by the proceeding following the judgment of ouster. The 'original complaint contains no averment that the defendant had received any moneys by way of salary as mayor, to which the relator was entitled by right, nor that any claim would be made in the action for such money thereafter to be received by the defendant ;• or in general terms that damages would be claimed therein because of his alleged unlawful intrusion into the office of mayor. The relief demanded was: (1.) Judgment of ouster against the defendant; and (2), that he “ be adjudged to pay to the plaintiffs” (the people) “ a fine of $2,000.” This relief by fine the trial court refused to grant on special application for that purpose, made by the relator (see opinion by "Westbkook, J.) and in such decision the parties acquiesced. Thus the relief by way of fine” demanded in the complaint, even if it existed on the facts, must be deemed eliminated from the case. The complaint then stood barren of any claim for damages. The relator thereupon applied for and obtained leave to file a suggestion or supplemental complaint making claim for the recovery of damages, charging that the defendant had received and retained moneys by way of salary during his unlawful incumbency, to which he, the relator, was entitled by right. To this practice and to the right thus to bring into the case a claim for damages the defendant objected ; but the ruling' of the court was against him at Special Term and also at General Term on appeal. (30 Hun, 484.)

Now, the relator might recover in this action against the defendant the damages sustained by him by reason of the alleged usurpation and. unlawful exercise of the office of mayor by the latter. It is now so provided by law. (Code of Civil Procedure, § 1953.) But can such recovery be had when the complaint in the action contains no averment or charge of damages, nor any prayer for relief in that regal’d ? Was not the defendant entitled to notice of such claim in the complaint, to the end that he might make defense thereto in his answer ? Should not the relator be held to stand at the trial on the matters stated in his complaint ? ' Could he inject into the action a claim for damages following the judgment of ouster? Could there be several and. separate trials in the same action 1 These were to me embarrassing questions when this case was before the court on a former appeal. (30 Hun, 484.) A conclusion was reached, however, by the court favorable to the right of the relator to assert his claim for damages in the way adopted, and certified to us in the record. To that conclusion I yielded my assent, not, however, without some hesitation. That decision must be deemed to have settled the law of this case in that regard, and it must be adhered to until overruled or reversed by the Court of Appeals. To it, of course, I now yield obedience. It, therefore, stands already decided by this court that the relator may recover, on his suggestion or supplemental complaint, his damages against the defendant because of the latter’s intrusion into and unlawful occupancy of the office of mayor, to which office the former was entitled; and the pleadings of the parties on this branch of the case are to be found in the suggestion by the relator, and the answer thereto by the defendant placed upon the record by permission or direction of the court. The damages charged to have been suffered by the relator and by him sought to be recovered, are the moneys received by the defendant as salary during his incumbency. The proceeding is now in the nature of an action for money had and received. (Douglas v. State, 31 Ind., 429, p. 436, and cases there cited.) The right to recover such moneys is declared in Dolan v. Mayor (68 N. Y., 282), where it is said that the person who has been wrongfully deprived of his office may recover his damages for the wrong against the usurper, and that the amount of salary, if not the fixed measure, may be considered in the assessment of the damages. If it be suggested that the amount of salary received in this case by the defendant is not the amount here to be recovered, the answer is ready and entirely conclusive of it. This was not made a question on the pleadings, or in any way at the trial. The relator, by his suggestion or supplemental complaint, charged, that the defendant had received, during his unlawful incumbency, as salary, $4,005.43, which sum of right belonged to him, the relator, and not to the defendant. The defendant, in his answer, admitted that he had received that sum as salary, but denied that any part of it belonged to the relator. It was not claimed in his pleading that any deduction from the amount admitted to have been received should be made or had for any cause whatsoever; nor on the trial was any sncb claim interposed by motion, offer of • proof, or in any other way. The ground was there taken, as is now urged on the appeal, that the claim to recover the salary had no foundation in the complaint in the action, and that the proceeding against the defendant, following the judgment of ouster, was irregular and wholly unauthorized in law. While admitting the reception of the’ salary by the defendant, no partial defense by way of diminution of damages was offered in any form. The defendant is therefore without ground of objection, to the effect that he has been deprived of a partial defense. Such objection cannot be raised on appeal when not raised either on the pleadings or at the trial. Nor, indeed, does the defendant’s counsel claim a new trial on this appeal, because of any partial defense, by way of reduction of damages. He insists, as was urged on the trial, that the relator showed no right of recovery on the record for any part of the salary received by the defendant. The defense tendered and now relied upon goes to the entire right of action.

But if the claim of a partial defense had been interposed it would have been untenable. This was held in Douglass v. State, above cited, on the authority of United States v. Addison (6 Wall. [U. S.], 291). In this latter case it was said by Field, J., that “the rule which measures the damages upon a breach of contract for wages or for freight or for the lease of buildings, has no application. In these cases the party aggrieved must seek other employment, or other articles for carriage, or other tenants. * * * But no such rule’can be applied to public offices of personal trust and confidence, the duties of which are not purely .ministerial or clerical.” In the former case (Douglass v. State) it was said: “We are not aware of any principle of the law that would entitle the appellant ” (the unlawful incumbent) “to claim a deduction from the amount of the fees received by him during the time he unlawfully held the office.” And further : “ Being a mere intruder the appellant can claim no benefit from his acts; he was not entitled to receive any compensation for the services rendered, either by himself or by those acting under him.” To the same effect is the decision in People v. Miller (24 Mich., 458). This point, therefore, seems to be authoritatively settled. It seems then (1) that diminution of damages was not qlaimed at all in this case, and (2) if it had been claimed it would have been inadmissible in law. The case then comes to this: that if the decision herein on the former appeal is to be adhered to, the recovery for the salary by the relator was right; and as above suggested, that can be now only questioned on appeal to the Court of Appeals. It should perhaps be noted that the case of Stuhr v. Curran (44 N. J., 181), cited by the appellants’ counsel, is not in point, because of the absence of a statute in that State giving to a relator in a case like this a right of recovery for damages.

Following the former decision in this case, the judgment appealed from must be affirmed, with costs.

LeaeNed, P. J.

(dissenting):

It seems to me that the case of Dolan v. Mayor (68 N. Y., 274) does not fix the amount of salary as the measure of damages. The opinion says, at páge 282: “ The amount of salary, if not the fixed measure, may be considered by the jury in assessing the damages.” Thus it leaves the question of damages to be determined by proof. Nor does the section of the Code state what damages should be recovered. And I do not see that the Revised Statutes, formerly in force, determined that the salary was the measure of damages. If a relator has been engaged in other business, from which he has derived a profit, it can hardly be said that he has suffered as damages the total salary which he would have received if he had discharged the duties of the office.

The defendant in this case received the evidence of his election to the office from the officers authorized to give it, the common council. He had, therefore, either to act in the office or to leave the office vacant. And he has discharged the duties. While then the statute, it must be admitted, makes him liable for damages to the relator, there seems to be no reason why he should be adjudged to pay anything more than the actual pecuniary loss which the relator has sustained. I think that the amount is open to proof and is not necessarily the salary of the office, and, therefore, that the court ought not to have held, as matter of law, that the relator should recover the entire salary received by defendant.

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

Judgment affirmed, with costs.


author: Boardman, J.:

text:
    In the Matter of the Final Accounting of STEPHEN T. HOPKINS and Another, as Administrators, etc., of SAMUEL HOPKINS, Deceased.

      Administrators — an agreement by them not to claim commissions is valid and will be enforced.

    Two of tlie heirs-at-law and next of kin of a deceased person agreed with the other heirs-at-law and next of kin, who were of equal degree with them, that they would take out letters of administration, give good bonds, make an immediate and equal distribution of all securities belonging to the estate, and make a full waiver in open court of all compensation for their services as administrators. The letters were issued, the securities divided and the accounts of the administrators settled, the filing of an inventory having been waived. Upon the settlement the administrators were allowed by the surrogate full' commissions upon the estate.

      Held, that this was error; that they were estopped by the agreement from claiming the commissions.
    Appeal from a decree of the surrogate of Greene county settling the account of the administrators of Samuel Hopkins, deceased.
    It was claimed by the appellants that the surrogate erred in allowing commissions to the administrators.

      J. T. db F. Werner, for L. G. and L. T. Hopkins, appellants
    , William T. Gibson-, for S. T. Hopkins and Phebe Y. Pinckney^ administrators; respondents.
   Boardman, J.:

By exhibit A, dated January 18, 1882, Stephen T. Hopkins and Phebe Y. Pinckney (two of the four heirs-at-law and next of kin of Samuel Hopkins, deceased) consent and agree with their brothers. L. Gardiner and Lawrence T. Hopkins, the other two children of deceased, that they will, in the taking out of letters of administration on the estate of their father; 1st. Give a good and sufficient, bond; 2d. Make immediate and equal distribution of all securities belonging to the estate,; 5th. “Make full waiver in open court, for all compensation for services as administrators; ” and by other clauses provide for the manner in which the assets of the estate shall be divided and administered. The said Stephen and Pbebe were thereupon and thereafter appointed administrator and administratrix, and within two days after their appointment the large mass of the estate was distributed among the four children, pursuant to the second clause of said agreement. No inventory was ever filed, because the same had been waived by the appellants. The accounts of the administrators were filed in September, 1883^ and no objection being made thereto, the same were allowed and settled as filed.

Upon the facts above stated, the administrators claimed to be allowed commissions upon the whole testate and full commissions to each, which, under objection and exception by the appellants, were allowed them. Such allowance is claimed by appellants to be error.

In the absence of all evidence touching commissions, the respondents would clearly have been entitled to them. If any reason existed why commissions should not be allowed, it was competent for the appellants to establish it by proof. There was no valid objection to the evidence produced before the surrogate, under which the legal question, now to be considered, arises. The exhibit A, was in effect a contract providing that the respondents, if permitted to take out letters of administration, would waive all compensation for services as administrators, and administer the property and divide it in the manner stated in said contract. The respond-' ents were appointed administrators, and under such contract immediately divided all the securities which constituted the bulk of the estate. By the consent of the appellants the making and filing of an inventory was waived and none was made. It was plainly an attempt to avoid expense by a summary disposition of the estate among the children, in which all took an equal part. As the appellants were equally entitled with respondents to take out letters,, the waiver of such right and the allowance to respondents of letters was the basis of the contract made by the latter. If all had taken out letters, all would have shared equally in the commissions. As the estate was to be promptly divided, all taking part therein and all sharing in the labor of examination into the assets as well as the partition thereof, no reason existed why the respondents should each receive full commissions against their brothers. Certainly the respondents so thought when they signed exhibit A.

The right to commissions may be waived by the party entitled thereto, and after such waiver he will be estopped from claiming the same. (In re Cooper 93 N. Y., 507, and cases cited.) This the respondents have done by their contract, exhibit A. The case shows that the estate has been settled in accordance with the provisions of that contract. Both parties have acted in reliance upon it. To allow the respondents to repudiate their contract would be to aid chicanery and dishonesty. The understanding that no commissions were to be allowed is as plain as day. All parties so understood. Courts will not permit justice and right to be thwarted by technicalities. The contract is ■ valid and binding in and of itself, and also because all the parties have acted upon and performed it. It is too late now for the respondents to repudiate it after taking all its benefits.

The respondents err in supposing commissions must always and in every event be allowed to administrators or executors. As has been said, a party may be estopped from claiming them by an agreement, express or implied, or in case of executors by the terms of the will. The allowance of commissions is not mandatory or compulsory. It is a question of right to be adjudged by the surrogate. To adopt the language of Surrogate Rollins, in Secor v. Sentis (5 Redf., 570, 573), these executors entered upon their task, as it seems to me, with an implied, it might almost be said, with a direct understanding that they would make no charge for their services. It is not apparent that they would have been selected upon any other terms than the testator specified in his will. They were not bound to accept the trust, but having done so, they are bound by its conditions.” This language applies with great force to the present case. The learned surrogate further says of the statute fixing executors’ commissions: It was not intended to restrict testators either from fixing compensations to the utter exclusion of statutory allowances or from forbidding any compensation whatever.” Whatever may be done by a testator in his will may, with equal effect, be done by all parties interested in an estate.

As to the settlement of the accounts of the administrators, they will stand as settled. No objection or exception thereto was taken by the appellants, nor is any now urged. The amount of $4,174.23, therefore, will stand as the balance in the hands of the administrators for, distribution. But so far as commissions were allowed to tbe administrators, or charged upon such balance, we think the learned surrogate erred. All parts of said decree allowing to the administrators commissions, or ordering the same paid out of the assets of said estate, are reversed, with costs of this appeal to. the appellants against these respondents personally, and the proceedings are remitted to the surrogate of Greene county for resettlement of the decree of distribution in accordance with this opinion.

LeaRNEd, P. J., and Bocees, J., concurred.

So ordered.


author: BoaedmaN, J.: Learned, P. J.

text:
    WARREN F. SPAULDING, Appellant, v. HENRY S. JARVIS, Respondent.

      Negligence — when one stopping too near a horse-can’ track is guilty of negligence contributing to a collision with a horse-can’, and cannot recover the damages occasioned thereby.

    The defendant runs horse cars upon tracks laid in Chenango street, in the city of Binghamton. The plaintiff, while driving a wagon with horses along the said street, was called by a friend on the opposite side of the street. He drove across the track and stopped, as he believed, entirely out of the way of the street cars, his horses feet being in the gutter. The side fender of a passing horse car struck and injured his wagon :

      Held, that he was guilty of contributory negligence and could not recover from the defendant the damages he had sustained. (Learned, P. J., dissenting.)
    Appeal from a judgment of the County Court of Broome county in favor of the defendant, dismissing the plaintiff’s complaint, and from an order denying a motion for a new trial made upon a case and exceptions.
    The action was brought into the County Court by an appeal from a judgment of a justice of the peace. A new trial was had before the County Court and a jury. The plaintiff claimed damages for injuries sustained by reason of a horse-car, owned and running upon tracks laid in Chenango street in the city of Binghamton by the-defendant, having run into and struck with the side fender of such car the wagon of the plaintiff, which had been stopped by him in the street for the purpose of enabling the plaintiff to speak to a friend standing upon the sidewalk who had called to him. The feet, of the plaintiff’s horse stood in the gutter.

      'Wales <£t Hand, for tbe appellant. .

      J>. S. Richards, for the respondent.
   BoaedmaN, J.:

We are content with the reasoning and conclusion of the learned county judge in this case. It is clearly a case of mutual negligence. The plaintiff supposed he had passed so far beyond the track of the street railroad that the passing car would not reach or touch his carriage. He was mistaken. The defendant’s driver supposed the plaintiff’s carriage was out of reach of the car he was driving. He also was mistaken. Each with greater care could have seen his mistake. But neither of them exercised the care and prudence required to avoid the collision. There is no evidence of -wanton injury by defendant’s driver of plaintiff’s carriage. It was not a willful injury done plaintiff. It was an accident, which happened in a way that neither party expected. Undoubtedly the driver, was guilty of negligence in not seeing-the danger.of collision and guarding against it. But the plaintiff was equally negligent in stopping so as to make the collision possible. But for his negligence the injury would not have been done. The accident was not wholly caused by the act of defendant’s agent. The plaintiff’s negligence contributed to and made it possible. The plaintiff has failed to prove that he was guiltless of any negligence approximately contributing to the injury. It shows directly the contrary. (Button v. Hudson River Railroad Co., 18 N. Y., 248; Moak’s Under-hill on Torts, 280, etc.) Both plaintiff and defendant’s agent believed the street car would pass without striking plaintiff’s wagon. Some of defendant’s cars would have done so. The one doing the mischief had á side rail or step which projected slightly "more than the other cars alluded to. This rail struck the wagon wheel and pushed it around until it passed. Such pushing of plaintiff’s wagon did the injury complained of. It was the duty of plaintiff to stop outside of defendant’s track a distance sufficient to allow the cars to pass. (Adolph v. Central Park, etc., Railroad, 16 N. Y., 530.) The driver thought he had done so. If plaintiff had stopped. upon the track the running into him by a car would have been actionable, because it would have been the grossest carelessness amounting to willfulness. But when both parties in good laitb believe there is no danger, though in mutual error, it cannot be said that the injury is due to one alone. The plaintiff cites a multitude of cases, of which Stackus v. New York Central (19 N. Y., 469), is an extreme example. The rule is there laid down that a nonsuit, upon the ground of contributory negligence, is only proper where it is so clear by the evidence that no construction or inference drawn from the facts would warrant a contrary conclusion, and that a verdict of the jury the other way would be set aside as against evidence. This is a rule which we have had frequent occasion to accept and apply. But it was negligent in the plaintiff to stop where a passing car might hit his wagon. But for such negligence his wagon would not have been hit or injured. Is there any lack of clearness in these facts ? Can any construction of the evidence, or any inference drawn from the facts, justify the conclusion that plaintiff was prudent or careful in leaving his wagon where it was hit ? The eases cited by plaintiff’s counsel seem to us to justify this nonsuit, and to show that a failure to nonsuit would have been error. The failure of the plaintiff to recover is not due to the want of negligence on the part of the defendant. It is conceded that defendant was negligent. But such negligence does not create a liability where the injury was due as well to plaintiff’s fault in the absence of willful, reckless and intentional wrong by the defendant. Were it true that the driver knew or had reason to suppose he would hit plaintiff’s wagon, the defendant would be liable for the damages if they could reasonably have been avoided. (Sutton v. N. Y. C., 66 N. Y., 249, opinion of Andrews, J.) But there is no proof of such facts nor any reason to believe them true. It would be as reasonable to suppose the plaintiff’s wagon was intentionally left in the way of the car as that the driver intentionally drove against it, or seeing the danger did not strive to avoid it.

We think the case was properly disposed of, and the judgment and order should be affirmed, with costs.

Bookes, J., concurred.

Learned, P. J.

(dissenting):

It is no defense to a suit for damages in a collision that the plaintiff was at the time in a place where he ought not to have been, if the collision could have been avoided by the defendants in the exercise of the ordinary prudence which belongs to a good business man in his particular sphere.” (Wharton Neg., § 329 ; Kenyon v. N. Y. C. and H. R. R. R. Co., 5 Hun, 479.)

If plaintiff’s wagon had been standing directly across the track, even though it ought not to have been there, the defendant would not have been justified in driving the car upon the wagon, if this could have been avoided by ordinary prudence.

Now it appeal's that plaintiff’s wagon was standing so near to the track that the car could not pass. 1 think it was a question for the jury to say whether the act of the driver was wanton, and whether, by ordinary prudence, the collision could have been avoided.

Judgment and order affirmed, with costs.


author: LeaRNed, P. J.:

text:
    WILLIAM YOUMANS v. MARCUS L. TERRY on Relation of ALEXANDER NEISH, Respondent, for a Peremptory Mandamus against JOHN CRAWFORD, Sheriff, THEODORE TERRY, Appellant, Impeaded, etc.

      Sale under execution— redemption by another judgment creditor — the whole amount of the fn'st bid must be paid.

    June 15, 1874, one Youmans recovered a judgment against Marcus L. Terry for $716.53, under which real estate belonging to Terry was on October 7, 1882, sold by the sheriff to Youmans. In 1879 Terry brought an action to have the said judgment set aside, in which action a judgment was rendered on August 7, 1883, affirming the former judgment and finding that there was then due thereon $768.53. January 7,1884, Youmans assigned the sheriffs certificate of sale to Theodore Terry, and also assigned to him the judgment for costs recovered in the last action.
    August 19,1874, one Griswold recovered a judgment against Marcus t. Terry, which in 1876 he assigned to Neish. January 7, 1884, Neish paid $832.07 to. the sheriff and claimed to redeem from the sale to Youmans.

      Held, that in order to entitle him to redeem he should have paid to the sheriff not only the amount due upon the judgment under which the sale was made, but. the amount bid by the purchaser thereat, with interest, even though the purchaser was the judgment creditor, and although the amount bid at the sale exceeded the amount due upon the judgment.
    Appeal from an order made at.a Special Term, granting a peremptory writ of mandcf/nus commanding tlie sheriff to execute and deliver to one Alexander Neisli tlie usual sheriff’s deed of certain premises sold by him under and by virtue of an éxecution against Marcus L. Terry and in favor of "William Youmans.

      William & J. B. Gleason, for the appellant.

      Youmans, Adee & Youmans, for the respondent.
   LeaRNed, P. J.:

The order appealed from is peculiar in its form. It is entitled as above. It was made upon the return of an order in this cause directing the sheriff to show cause why he should not execute a deed of land named in a certificate of sale. Put the form of the order is to direct a peremptory mandamus to issue out of the court and under its seal. There was then no notice of motion or order to show cause why a mandamus should not issue. (Sec. 2070). And a mandamus being what is now called a State writ, and issuing in the name of the people, should, as we think, have been applied for in a distinct and separate proceeding.. An order directing the sheriff to execute the deed might, we suppose, be made in this pending action if the moving party was entitled to it. Or if, on the other hand, the matter was not one as to which the court which issued the execution could properly control the sheriff, and mcmdamus was the proper remedy, then the proceeding should have been instituted specifically for that writ.

William Youmans recovered a judgment June 15, 1874, against Marcus L. Terry, for $716.53, and by virtue thereof the sheriff, on October 7, 1882, sold certain land to Youmans for $1,000, and gave him the certificate.

In 1879 Terry brought an action against Youmans to set aside the judgment. August 7, 1883, that action was decided and judgment rendered delaring the former judgment valid, and that there was still owing thereon $768.55, with interest from August 1, 1883'. January 7, 1884, Youmans assigned his certificate of sale to Theo». dore Terry, and also assigned to said Theodore Terry á judgment in favor of Youmans against Marcus L. Terry for $234.91 costs in the suit last mentioned.

August 19, 1874, one Griswold recovered a judgment against Marcus L. Terry for $495.53, and in 1876 assigned it to Alexander Neisli. January 7, 1884, being the last day for a judgment creditor to redeem from the Youmans sale, Neisli paid the sheriff $332.07 for the redemption and filed the necessary papers. The sheriff is ready to execute a deed, but does not know to whom it should 'be executed. Neisli claims the deed by virtue of this redemption. Theodore Terry claims it by virtue of the assignment of the certificate, and insists, among other things, that the amount paid to the sheriff was not enough.

It is- insisted that when Theodore Terry took the assignment from Youmans he said he was doing so for Marcus L. Terry. That is immaterial. If equitably Marcus L. Terry owned this certificate, his creditors must enforce their claim in some other way than this. The redemption of the land is a purely legal matter. And as the assignment of the certificate was to Theodore, we have nothing to do, in this proceeding, with the question for whom he was acting. He succeeded to Youmans’ rights as purchaser at j;he execution sale. He became entitled, therefore, to all the benefits which a purchaser at the sale would have enjoyed.

The judgment creditor, in order to redeem, must pay the sum of money which was paid on the sale, with interest. (Code, § 1450.) That sum was $1,000. Whether or not there was an actual payment is immaterial on this point. If the purchaser had actually paid the sheriff $1,000, the sheriff would have had to repay it to the judgment creditor, who was the purchaser, because the amount of ■■the judgment, with interest, then exceeded the bid of $1,000.

A piece of property, not divisible, might sell at such a sale for -more than the amount of the execution. But very plainly a judgment creditor who should seek to redeem from the purchaser would have to pay the whole bid and interest, not merely the'-amount of 4he judgment. This would be equally true whether the judgment (Creditor or some other person were the purchaser at the sale. Any ■other rule would work great injustice. The purchaser is entitled tto the benefit of his purchase, unless the owner or some judgment (Creditor redeems. This right of redemption is really a privilege to •the owner and judgment creditors to bid more if they choose to do •so. Youmans did not assign to Theodore Terry the judgment on which the sale was made. And Theodore Terry was therefore only the assignee of the purchaser at the sale.

But it is said that after the sale a judgment was rendered in favor of Marcus L. Terry against Yomnans, deciding that the amount owing on the judgment in this action was less than the recovery. We do not see that this should affect the present question. Marcus L. Terry in that action did not restrain the sale, as he probably might have done. When final judgment was rendered therein the sale had been made. lie did not have it set aside, nor did he claim that Youmans should refund to him the amount of the bid, less the amount due on the judgment, or in default of that relief that Youmans should surrender the certificate. The certificate then remained good in the hands of Youmans. It was issued on a sale upon a valid judgment, and when the sale was made there was nothing to pay upon the sale, because the bid was less than the amount of the judgment.

The assignment of the certificate to Theodore Terry carried with it all the rights which the purchaser acquired at the time of the bid. That right was to have a deed of the premises, unless within the proper time some person, having a legal right to do so, should redeem by paying the amount for which the property was sold, with interest. The certificate itself shows that the premises were sold for $1,000, and that that was the whole consideration paid.

Nor do we see that the rights of Neish were changed by anything said in the assignment of the certificate from Youmans to Theodore Terry. The duty of Neish was to pay the amount bid, with interest, and it was immaterial to him who owned the certificate or what were the terms of the transfer.

Nor was it of any consequence whether or not, at the time of the redemption by Neish, Theodore Terry had caused the assignment of the certificate to be recorded. It is true that before he could be entitled to the deed he must have his certificate recorded. (Sec. 1474.) And he had done so before the hearing of the motion. But the neglect to record the certificate in no way changed the amount which Neish, as a judgment creditor, was required to pay in order to redeem.

Another point made is that the affidavit presented by Neish to ' the sheriff, in order to redeem, did not give the true amount remaining unpaid on his judgment. (Sec. 1464.) The affidavit gives the judgment as $495.51, August 19, 1874; states that the whole prin'Cipal and interest ai-e unpaid and that there is due, January 7, 1884, $849.40. According to the computation of interest at seven per cent, the true amount would seem to be $820.98; at seven per cent to January 1, 1880, and six per cent after, $801.06. It seems, also, by a referee’s report, that about twenty-one dollars had been paid on this judgment. "We do not think it necessary to decide whether these errors vitiated the attempt to redeem. The other point seems to us sufficient.

We think, therefore, that the order should be reversed, with costs of appeal, under section 3240; that the motion of Neish should be denied, with -ten dollars costs, and that the sheriff should be ordered to execute and deliver the deed to Theodore Terry.

Present — Learned, P. J.; Booxes and Boardman, JJ.

Order reversed with costs of appeal, under section 3240, and motion of Neish denied, with ten dollars costs, and sheriff directed to execute deed to Terry.


author: LearNed, P. J.:

text:
    DOE, by her Guardian ad litem, Respondent, v. ROE, Appellant.

      Slander — when the opinion of a witness as to the apparent pregnancy of the plaintiff tí admissible — when the failure of the plaintiff to prove a justification will not authorize the, increase of the damages by the jury.

    In an action for slander in imputing unchastity to the plaintiff, an unmarried woman, the defendant, .in addition to a justification, pleaded facts tending to mitigate the damages, and alleged, among other things, an increase in the size and a change in the physical appearance of the plaintiff, such as induced him to believe that she was pregnant. Upon the trial a woman, who had borne children, and had had an opportunity to see the plaintiff, was asked whether she appeared as women do when they are pregnant, as to her physical appearance:

      Reid, that tho court erred in excluding the question, as it was admissible in mitigation of damages.
    Among other mitigatory facts the defendant alleged that the plaintiff and a certain man, on a social occasion, went out of the house and remained together for some time ; that subsequently the plaintiff had a cessation of her menses; that she increased in size till a- time about nine months after that occasion and was then ill ; that after that illness her size decreased. Evidence tending to prove the truth of these allegations was given. The young man testified that nothing improper occurred, and evidence was given tending to show that her increased size was due to causes in no way affecting the plaintiff’s chastity, and that she had never been pregnant. The court charged that if the defendant sets up a justification “ without knowing that he will be able to prove it, and without exercising ordinary prudence and care in ascertaining the truth, so as to enable him to determine with reasonable certainty whether it is true ; if he does it carelessly, recklessly and in bad faith, with a view to harass and injure the plaintiff in his case, then it may be taken by the jury to augment the damages.”

      Held, that as there was not a total failure of proof on the part of the defendant, and as the facts might be proved in mitigation of damages under section 585 of the Code of Civil Procedure, the court erred in so charging.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages for an alleged slander. The complaint claimed $4,000 damages. The jury rendered a verdict in her favor for $4,500, $500 of which was remitted by the plaintiff.

      JEdmn D. Wagner, for the appellant.

      F. R. Gilbert, for the respondent.
   LearNed, P. J.:

In this action for slander in imputing unchastity to an unmarried woman, the defendant, in addition to á justificatiSn, set up in mitigation many alleged facts which tended to induce in his mind the belief of the charge made by him. Among other alleged facts was such an increase in size and such a change in physical appearance as induced the belief that plaintiff was pregnant. It is unnecessary to mention these matters in detail.

On the trial a m'arried woman was asked on defendant’s behalf whether the plaintiff appeared as women do when they are pregnant, in regal'd to her physical appearance. This was objected to as improper, and becausé the witness was not competent to give an opinion, and was excluded. The witness had herself borne children, and she had been in a situation to see the plaintiff. If it was proper to have an opinion given on this point, she was competent. In People v. Eastwood (14 N. Y., 562), it was held to be proper to ash for the opinion of a witness whether a person was drunk, because the matter of fact “is better determined by the direct answer of those who have seen him than by their description of his conduct.” So held of the opinion of a witness that the grasp of one man by another was friendly. (Blake v. People, 73 N Y., 586.)

The reason of these decisions must be that the appearance consists of many particulars, of which some would be very difficult of description.

Furthermore, in this present case the evidence was offered not merely in justification, but in mitigation of damages. Now, if the appearance of the plaintiff, from any cause, was such that women, who had had experience, would testify that she appeared like a pregnant woman, physically, the testimony certainly was important to mitigate the damages to which the defendant might be subjected. And if the plaintiff insists that the witnesses should have stated the facts in detail, in order that the jury might judge whether plaintiff’s appearance was like that of a pregnant woman, it is obvious that no description of enlargement of size and the like would convey an accurate idea of the plaintiff’s whole appearance. We think, then, that at Least in this case, where the defendant sought to mitigate the damages by showing' such an excuse for his utterances (even admitting that they were untrue), he should have been permitted to show, by the opinion of competent witnesses, the appearance of the plaintiff at the time in question. Similar questions were put to other witnesses who had had similar experience to fit them to express opinions; one, especially, who was a nurse and midwife.

The answer, after settingup a justification, alleged certain matters in mitigation. Among those matters are these : the plaintiff and a certain man, on a social occasion, went out of the house and remained together for some time; that subsequently the plaintiff had a cessation of her menses; that she increased in size till a time about nine months after that occasion, and was then ill; that after that illness her size decreased. Now, there was evidence tending to prove these allegations. On the other hand, the young man testified that nothing improper occurred; and there was evidence tending to show that the increased size was due to causes in no way affecting the plaintiff’s character, and that she had never been pregnant.

On this evidence the court charged that if a defendant sets up a justification “ without knowing that he will he able to prove it and without exercising ordinary prudence and care in ascertaining the truth so as to enable him to determine with reasonable' certainty whether it is true; if he does it carelessly and recklessly and in bad faith, with a view to harass and injure the plaintiff in his case, then it may be taken by the jury to augment the damages.”

A difficulty arises in applying the doctrine of the Code. (Sec. 535.) This provides that in an action for slander the defendant may prove mitigating circumstances, notwithstanding he has pleaded, or attempted to prove, a justification. And it would, at least, be proper to plead the facts which were to be shown in mitigation.

In Distin v. Rose (69 N. Y., 122) the court, referring to this rule of the Code, say that where there is a total failure of proof tending in this direction,, and'the circumstances evince malice in reiterating the slander in the pleadings, it is allowable for the jury to take that circumstance into consideration.” The charge of the learned court in this case went much farther than this careful limitation ; and seems to have overlooked the fact that many facts alleged in mitigation had been proved ; so that there was not a total failure of proof. And this consideration is very important on this question of malice in the answer.

But again, in the last cited case, the court proceed: “ This rule should be applied with care and moderation; and I think should be confined to cases of bad faith in incorporating the justification in the pleading. And this can scarcely be said to be true under the Code when the facts proved ought legitimately to go in mitigation of damages; heea/use it seems incongruous to say that a failure to establish a justification may enhance the damages, and yet the facts proved under it may mitigate them.”

As we understand that language, the court say that the old rule can hardly be true, under the Code, whenever the facts proved ought to mitigate the damages. There might be a case of total failure of proof tending to support the answer, where the old rule would be applicable, and where damages might be enhanced because the defendant, without having any proof whatever to sustain the answer, had repeated the slander therein. But that is not this case. There was evidence tending to show the truth of the charge and tending to show that circumstances known to the defendant looked suspicious. Now to say that proof of these circumstances shall mitigate the damages, and that the pleading of them shall enhance the damages, is inconsistent.

It may be admitted (for the- jury so found) that the charge made by defendant was untrue. Still he had a right to show the suspicious circumstances. Perhaps he might have pleaded them as a partial defense without a justification. (Code, §§ 536, 508.) But this plea of a justification does not deprive him of the right to these mitigating circumstances. (Code, § 535.) And it is unjust to say that, at the peril of increased damages, the'defendant must know in advance whether, on the whole evidence, the jury will find a justification or only a mitigation.

We may refer also to the language of the court in Klinck v. Colby (46 N. Y., 427), in which it is said: “Where facts in justification of a libel and facts in mitigation of the damages therefrom are pleaded in the same answer, that the allegations in justification, though unproved, are no longer evidence 'of malice to be considered by the jury and taken as enhancing the damages of the plaintiff.” On examining the charge in that case, it will be seen that the court had said that the fact of setting up a justification warranted the jury in implying malice.

In the case of Thorn v. Knapp (42 N. Y., 4(74) there was a total failure of proof. That is not the present case. On the contrary, as before stated, there were suspicious circumstances which might have induced the defendant to believe the charges made by him. We cannot but think that, in rendering this large verdict, beyond the plaintiffs demand in her complaint, the jury múst have been influenced by the idea that, although the defendant had proved the mitigating circumstances, yet as he had failed to prove the justification his pleading might be taken to enhance the damages. This case impresses us with the truth of the remark above quoted, that the rule under discussion “ should be applied with care and modez’ation.” Everyone who has had experience in cases like the present, knows the danger of prejudice; the temptation to perversion of testimony and tbe difficulty of ascertaining the truth and rendering justice to both sides. If the charges were false, it was right that the plaintiff should recover. But if the defendant had been induced to make them by circumstances which he had seen or heard; if he máde them, in giving a reason why, as school trustee, he did not hire the plaintiff fora teacher, then his attempt to justify and to mitigate should not be made the ground for greater damages against him.

We think the judgment should be reversed, a new'trial granted, costs to abide the event.

. Present — Learned, P. J., Booses and Boardman, JJ.

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


author: Leaened, P. J.

text:
    THOMAS C. DURANT, as Receiver of the Adirondack Company, Respondent, v. GEORGE KENYON, Appellant.

      Mortgage — what is a sufficient description of the land, mortgaged to enable the purchaser at a foreclosure sale to recover the same in ejectment — when a general description is sufficient.

    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was one of ejectment to recover some eighty-three acres of land situate in Saratoga county; both parties claiming title from a common source, viz., the Sacketts Harbor and Saratoga Railroad Company; the plaintiff, through a mortgage executed by the company which had been foreclosed and the mortgaged property conveyed by a referee; the defendant, through a judgment recovered and docketed against said company subsequent to the execution and recording of said mortgage, by virtue of which judgment the premises in question were sold by the sheriff. The judgment creditors were parties defendant in the action of foreclosure. The mortgage after describing several pieces of land contained the following description : “ Also all the real property of said party of the first part, to which said party has any right, title or interest, legal or equitable, in either of the counties of Saratoga, * * * and particularly all lands immediately adjoining the line of said road, and which are designed or intended to be used in operating the said railroad, or in carrying on the business of said company, as land for depots, engine, car or freight-houses, or the like, and all buildings and structures placed or to be placed on the line of said railroad, or on any such lands as aforesaid.”
    The court at General Term said: “ The foreclosure must have cut off the defendant. The defendant admits this if the mortgage contained a sufficient description of the premises. Whether it did or not seems to be the only question. The railroad company owned this land when it executed the mortgage. The mortgage (or rather mortgages, for there were three) described and mortgages a large amount of land by description in three or four counties. And before the part containing the several descriptions of this land, it mortgaged the line or road-bed; ‘ also all the real property of said party of the first part to which said party has any right, title or interest, legal or equitable, in either of the counties of Saratoga * * * and particularly all lands immediately adjoining the line of said road and which are designed or intended to be used in operating the said railroad or in carrying on the business of said company.’ The land in question is in Saratoga county; is not specifically described in the mortgage, and if covered at all, is covered by the language above quoted. The referee’s deed conveyed the land in question, if at all, by general words : ‘ all the real property of said company,’ etc.
    “ The defendant insists that the mortgage conveyed only those lands which are designed and intended to be used in operating,’ etc. There is no doubt that the lands in question are immediately adjoining the line of said road. And it will be seen that preceding that clause in .the mortgage are general words covering all the real property to which the railroad has any title. These words are sufficient to cover the lands in question, unless we are to hold that general words of this kind are insufficient. The contrary is laid down in Jackson v. DeLcmcey (11 Johns., 365). General words of this kind are very common in assignments made by insolvent debtors, and we are not aware that they have been held insufficient.. A general devise of a testator’s land is often made and we see no reason why a man may not by general words mortgage all the land he owns in a county. Such a mortgage is not void for uncertainty, as were the cases of Rollin v. Pickett (2 Hill, 552) and Peck v. ' Mallams (10 N. Y., 509). That is certain which can be made certain. When it is shown that the mortgagor owned the land at the time of the mortgage, the mortgage is made as certain as if the description had been given.
    “ The case of Rourk v. Murphy (12 Abb. N. 0., 402) is entirely different. A married woman, after mortgaging back certain land for the purchase-money, added: ‘And hereby makes a payment of the moneys hereby secured a charge upon her other sole and separate estate.’ It was very properly held that this created only a general charge on the mortgagor’s estate, such, that is, as she should own when the deficiency might be ascertained. It was only making her separate estate liable, just as it would have been without such a clause had she been a feme sole.

      “ It may be added that the judgment was a lien only upon such interests as the railroad company had in the land, and the judgment-creditors were not even bona fide purchasers for value.”
    The judgment should be affirmed, with costs.

      P. II. Goweny for the appellan

      A. Pond, for the respondent..
   Opinion by

Leaened, P. J.

Present — Learned, P. J., Boardman and BocKEs, JJ.

J udgment affirmed, with costs.


author: Per Quria/in.

text:
    JOHN O’BRIEN and JOHN C. RODGERS, Respondents, v. THE CATSKILL MOUNTAIN RAILROAD COMPANY, Appellant. SAME v. SAME.

      Reference — when one should he ordered. — the referee need not reside in the county in which the venue is laid— the referee may be authorized to sit in any county to take testimony.

    Appeals from orders made at a Special Term, referring the above entitled actions' to a referee, to hear and determine, with leave to the referee to sit in any county in the State.
    The court at General Term said: “ The orders of reference should be sustained. The court has the right to look at all the papers used upon the hearing and returned to us with the appeal papers. From the affidavits used by the defendant upon the motion to change the venue, it is evident a large number of witnesses may be called upon a large number of separate items charged as counter-claim.
    “ On the part of the plaintiff a large amount is claimed for extra work, consisting of a multitude of items. These items will be, to a greater or less extent, contested, and some of these extras are embraced in each action. Such cases embracing such items involve a mass of figures which require to be reduced to writing by the tribunal which decides the eases, and to be collated, digested, compared, rejected, modified, increased or diminished until an intelligent result, approximately accurate, can be attained. A jury would find it difficult, if not impossible, to do this. Their verdict would be little better than a rough guess, derived more from the argument and concessions of counsel or the charge of the judge than from the confused and blind mass of figures produced in evidence. They are Hot so situated as to keep notes nor are they accustomed to analyzing and combining complicated, and in many cases incoherent, items of accounts for work done or damages sustained, so as to draw therefrom a safe and just result. We think these cases can be well tried together before the referee, and he can readily apply the evidence to each case as may be proper, and thus, by his findings and in his decision, reach a definite and wise Result. We think it is a proper case for a reference.
    “ The referee appointed does not reside in the county where the place of trial is fixed. This is claimed to be error. But it' is not understood to be the practice that the referee must reside in the county of the venue unless by consent of parties. No law is cited showing such selection to be improper and we do not think it error. * The same may be said of the power given the referee to sit in any county of the State for the purpose of .taking testimony. Such power is daily given to referees, and the economy and convenience of all interested, not less than common practice, sanctions and justfi fies that feature of the orders of reference.”
    The orders must be affirmed, with ten dollars costs and printing ’ disbursements.

      J. 1. & F. Werner, for the appellant.

      O. JD. M. Balcer, for the respondents.
   Opinion

Per Quria/in.

Present — Learned, P. J., Booees and Boardman, JJ.

Order affirmed, with ten dollars costs and printing disbursements (in each case).


author: Per Curiam.

text:
    MARY BLANCHARD, Respondent, v. LEWIS TULIP, Appellant.

      Evidence — action for slander — facts tending to mitigate the damages cannot be proved unless they are pleaded.

    Appeal from a judgment in favor of tho plaintiff, entered on the report.of a referee.
    The action was brought to recover damages for a slander uttered by the defendant, charging the plaintiff, a married woman, with unchastity. The answer contained a denial and an allegation of the truth of the charge.
    On this appeal the defendant alleges as error that upon the trial he ashed a witness: “ Do jmu know the general reputation of the plaintiff as to chastity in the community previous to 1882 ?” that being the time of' the alleged slander. This was excluded, among other reasons, because no mitigation was pleaded in the answer, and also as immaterial.
    The court at General Term said : “ The defendant cites, to show that this was error, the case of Wandett v. Hdwards (32 Suj). Ct. N. Y. [25 Hun], 498). But the evidence there offered was not evidence of general bad reputation, nor was the action for slander. It was held that in an action by a father for seduction of his daughter, proof that she had been previously seduced might be given without setting up the fact in the answer.
    “ In the present case the evidence, if material, would be material only as it tended partly to excuse the defendant for uttering the slander, and thus to mitigate the damages which might otherwise have been given to punish him for his false statement. Therefore the fact's should have been pleaded.” ( Willover v. Hill, 72 N. Y., 36 ; Code, § 536.)
    Judgment should be affirmed, with costs.

      J. B. Hiley, for the appellant.

      Beckwith, Barnard <& Wheeler, for the respondent.
   Opinion

Per Curiam.

Present — Learned, P. J., BoardMAn and Bocees, JJ.

Judgment affirmed, with costs.


author: Per Quriam.

text:
    HIRAM G. MILLER, Respondent v. EPHRAIM N. HART, Appellant.

      Mortgage — when weighing scales in a flouring mill are covered by the mortgage under the term “ appendages.” ' ,

    Appeal from a judgment of tbe county court of Saratoga county in favor of the plaintiff, upon an appeal from a judgment recovered in a justice’s court.
    The defendant executed a mortgage to the plaintiff upon “ all that certain flouring mill known, situate, lying and being near the said town of Clifton Park, and distinguished as Yischers’ mill, with appendages of every description now used in and about the same, consisting of all dams, water courses, waste weirs, lands flowed and so forth, with the right of way to and from the same as ordinarily used.” At the time of the execution of the mortgage there were certain articles in the mill, viz., weighing scales, scoops, mill-picks and a small hand corn sheller. The scales 'were platform scales and would weigh about 1,000 pounds, used in weighing grain and feed ground in the mill. Mill-picks were used to dress the stones, but were worn out. About the time when the plaintiff foreclosed the mortgage and purchased the premises the defendant took away and' appropriated these articles. The question is whether, by the mortgage and the foreclosure, these articles belonged to the plaintiff.
    The court at General Term said : “We are inclined to think with the learned county judge, that by the words, ‘ all appendages now us'ed in and about said mill,’ following the description of the premises as a flouring mill, the parties intended that these articles should pass to the plaintiff. There is a difficulty, it is true, in construing the next clause, viz., ‘ consisting of all dams,’ etc., etc. But these dams, etc., are not accurately appendages used in and about a mill.’ So that some special meaning must be given to the word ‘ appendages.’ It seems to have been used to indicate articles used in the mills, but not attached to and forming part of the same.
    “ The question is not free from doubt. Questions of this kind seldom are, from their very nature. On the whole we think the learned judge was correct.”

      Van Demarh da Lawrence, for tlio appellant.

      1. G. Ormsby, for tlie resj>ondent.
   Opinion

Per Quriam.

Present — Learned, P. J., Boaedman and Bocees, JJ.

Judgment affirmed, witb costs.


author: Boaedman, J.,

text:
    The People of the State of New York, Respondent, v. Julius H. Thompson, Appellant.

   Judgment and conviction affirmed. Opinion by

Boaedman, J.,

and by Leaened, P. J., dissenting.


author: Boaedman, J.

text:
    Hiram L. Doolitte, as Executor, etc., Respondent, v. Timothy Hoyle and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Boaedman, J.


author: Bocees, J.

text:
    Harmon Leslie and others v. Charles E. Phelps and others.
   Decree affirmed, with costs. Opinion by

Bocees, J.


text:
    James Gibson, as Administrator, etc., Respondent, v. William Hutton and others, Appellants.
   Judgment affirmed, with costs. Opinion by

Boaedman, J.


text:
    Edward Null, Appellant, v. Richard Sloan, Respondent.
   Judgment affirmed, with costs. Opinion by

Boaedman, J.


author: Bocees, J., and by Leaened, P. J.,

text:
    Rufus Snyder, Respondent, v. Robert Bliss and others, Appellants.
   Judgment affirmed, with costs. Opinions by

Bocees, J., and by Leaened, P. J.,

dissenting.


text:
    Angeline M. Snook, Administratrix, etc., Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Boaedman, J.


author: Bockes, J.

text:
    In the Matter of the Probate of the Will of Rhoena Ellick, Deceased.

   Decree reversed, case to be heard before Tompkins Circuit Court and jury, costs to abide event. Order and issues to be settled by Boches, J. Opinion by

Bockes, J.


text:
    Harriet A. Ross, Appellant. v. John Brownlow, Respondent.

   Judgment modified in accordance with opinion, and as modified affirmed, without costs to either, to be settled before Board man, J. Opinion by

Boaedman, J.


author: Learned,. P. J.

text:
    Eva M. Briggs and another, Appellants, v. Jennie B. Van Buren, and others, Respondents.

   Judgment affirmed, with costs. Opinion by

Learned,. P. J.


text:
    James V. G. Du Bois, Respondent, v. The City of Kingston, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Boaedman, J.


author: Bocicks, J.

text:
    Corneslius Van Schaick, Respondent, v. Eliza E. De Witt and another, Appellants.

   -Judgment affirmed, with costs. Opinion by

Bocicks, J.


author: Bo vrdman, J.;

text:
    Harvey Henderson, Respondent, v. C. Le Roy Williams, Appellant.

   Judgment affirmed, with costs. Opinion by

Bo vrdman, J.;

Learned, P. J., dissenting.


author: Learned, P. J.;

text:
    Samuel D. Coykendall, Appellant, v. Abram Constable, Respondent, Impleaded, etc.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.;

Bocees, J., dissenting.


author: BooKks, J.;

text:
    Edward Kelly and another, Appellants, v. Frances A. Geer, Respondent.

   Judgment affirmed, with costs. Opinion by

BooKks, J.;

Boardman, J., not acting.


author: Boardman, J.

text:
    James Robertson, Appellant, v. Edward S. Bink, Respondent.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


author: Learned, P. J., and by Bocees, J.,

text:
    Phebe Schuster and another, Respondents, v. The Dutchess County Mutual Insurance Company, Appellant.

   Judgment affirmed, with costs. Opinions by

Learned, P. J., and by Bocees, J.,

dissenting.


author: Learned,

text:
    James N. Jobe, Respondent, v. Thomas Davidson, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Learned,


text:
    Julia E. Hooghkirk, Administratrix, etc., Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.

   Order affirmed, with costs. Opinion by

Boardman, J.


text:
    In the Matter of the Accounting of Edmond Raymond, Assignee, etc.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.;

Boches, J., not acting.


text:
    John O’Neil, Appellant, v. Alexander McNeeley and others, Respondents.

   Both orders affirmed, with ten dollars costs on each order and printing disbursements. Opinion by

Boardman, J.


author: Boches, J.

text:
    In the Matter of the Accounting of Cornelius A. Waldron, Assignee, etc.

   Order affirmed, with costs. Opinion by

Boches, J.


author: Learned, P. J.

text:
    Elizabeth Donald, Appellant, v. William Rockwell, Respondent.

   Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Learned, P. J.


author: Boardman, J.;

text:
    The People of the State of New York ex rel. Minnie W. Riordan, Appellant, v. Madame O’Rourke, Lady Superior of the Convent of the Sacred Heart, Respondent.

   Order affirmed, with costs. Opinion by

Boardman, J.;

Learned, P. J., not acting.


text:
    Maretta L. Stebbins, Respondent, v. William Breese, Appellant.

   -Judgment and order affirmed, with, costs. Opinion by

Bocees, J.


text:
    Frederick J. Bogart, Respondent, v. Miles Landon, Appellant.

   Judgment reversed, new trial granted, referee discharged, costs to abide event. Opinion by

Bockes, J.


text:
    Robert M. Hasbrouck, Jr., Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Boardman, J.;

Learned, P. J., concurs in excessive damages.


text:
    James MacLaren, Appellant. v. Emeline A. Percival, Respondent.
   Judgment reversed, new trial granted, referee discharged, costs to abide event. Opinion by

Learned, P. J.


text:
    John Reilly, Respondent, v. The President, etc., of the Delaware and Hudson Canal Company, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion .by

Boardman, J.


author: Bocees, J.;

text:
    Benjamin Bronk, Respondent, v. The Boston and Albany Railroad Company, Appellant.
   Judgment affirmed, with costs. Opinion by

Bocees, J.;

Learned, P. J., not acting.


text:
    The People of the State of New York v. Ira Davenport, as Comptroller, etc., and others.
   Writ of certiorari quashed, with costs. Opinion by

Boardman, J.


text:
    The People of the State of New York ex rel. Edward Evans, Appellant, v. John McEwen, as Superintendent, Respondent.
   Order reversed, and prisoner remanded to penitentiary. Opinion by

Learned, P. J.


text:
    Edward R. Biehler, Respondent, v. Hiram Todd, Appellant.
   Judgment affirmed, with costs. Opinion by

Boardman, J.


author: Learned, P. J., and Boardman, J.

text:
    Joseph Mayo, Respondent, v. George Jerry, Appellant.
   Judgment of County Court reversed and that of justice affirmed, with ■costs. Opinions by

Learned, P. J., and Boardman, J.


text:
    Mary McAlear, Respondent, v. Annie E. Delaney, Appellant, Impleaded, etc.
   Judgment modified in accordance with opinion, and as modified affirmed, without costs, to be settled before Learned, P. J. Opinion by

Learned, P. J.