author: Martin, J.:

text:
    ELLIS R. WILLIAMS, Respondent, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.

      Negligence — when the question as to the negligence of the master, in failing to provide for the safety of his employee, should, be left to the jury— the omission of the master must be shown to be the proximate coM.se of the injury

    This action was brought by the plaintiff, who was employed hy the defendant as a brakeman, to recover damages for injuries sustained hy him, m passing under a bridge. The evidence showed that if the bridge had been a few inches higher he would have safely passed under it. Whether or not the plaintiff knew the exact height of the bridge, and that he could not pass under it while standing upon the top of a box car, was in dispute.

      Held, that whether the defendant was guilty of negligence in maintaining the bridge at its then height; whether the plaintiff knew its position, or might have ascertained it hy the exercise of ordinary care and observation, and - whether the plaintiff was guilty of contributory negligence were all questions of fact, and were properly submitted to the jury.
    On the trial it was proved that at the time of the accident four brakemen were usually employed on the train on which the plaintiff was injured, hut that on the morning of the accident there were only three. The judge charged in effect, that if the jury should find that the defendant did not furnish a sufficient number of brakemen and that its failure so to do was the cause of the plaintiff’s injury, he was entitled to recover.
    Held, error; that the evidence wholly failed to show that the plaintiff’s injury was the natural or probable consequence of the defendant’s omission to employ a sufficient number of brakemen, or that the accident would not have happened but for such omission.
    Appeal from a judgment, entered upon the verdict of a jury at the Oneida circuit in favor of the plaintiff for $4,255.01, 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 injuries received by the plaintiff, who was struck by a bridge on the defendant’s road near the village of Norwich, Chenango county, N. Y., while in its employ as a brakeman. The complaint alleges negligence on the part of the defendant for neglecting and refusing to elevate the bridge crossing its track in or near the village of N orwich, N. Y., to a sufficient height above its track to enable brakemen standing upon moving freight cars to pass under said bridge safely; also for neglecting and wrongfully omitting and refusing to provide proper signals to warn its employees of the approach of danger, or of the approach to a bridge of insufficient height to permit employees to pass under it in safety; also for neglecting and refusing to provide or employ a sufficient number of switch tenders at the various switches or stations of defendant, and also negligently, carelessly and wrongfully requiring its brakemen to discharge the duties of switch tenders in addition to other duties required of them.
    It appeared upon the trial that the height of this bridge above the top of the rails is sixteen feet eleven inches. It had stood there the same as it was at the time of the accident, and as it is now, since 1874, and was in plain sight to persons standing on top of flat or box cars or the engine approaching it from either way. Prior to the accident in question the plaintiff had acted as a fireman on a local freight train running daily between Utica and Binghamton for about a year, ending in April, 1882. On the occasion of the accident the freight train consisted of twelve cars and a passenger coach at the rear. The twelve cars were five box cars and seven open cars loaded with lumber, ties and stone. The height of the defendant’s box cars was eleven feet four inches to eleven feet six inches, which last was the highest they had. When the plaintiff was injured he was on the top of one of the box cars. The plaintiff, when struck by the bridge, was walking south on the top of the box cars, and the train was moving north, and he was hit on the back of his head by the bridge and knocked down on top of the box car, which was the second box car from the engine.

      Francis Kernan, for the appellant.

      W. T. Dunmore, for the respondent.
   Martin, J.:

The first question in this case arises from a denial of the defendant’s motion for a nonsuit. The motion was based on the ground that the plaintiff, as an employee of the defendant, assumed the risk arising from the situation of the bridge where the accident occurred.

It is the duty of a master to provide his servants with proper, suitable and safe structures, machinery, other materials and appliances necessary for the proposed work. (Ryan v. Fowler, 24 N. Y., 410; Laning v. N. Y. C. R. R. Co., 49 id., 521; Flike v. B. and A. R. R. Co., 53 id., 549; Cone v. D., L. and W. R. R. Co., 81 id., 206; Ellis v. N. Y., L. E. and W. R. R. Co., 95 id., 546; Gage v. D., L. and W. R. R. Co., 14 Hun, 446.) Where, however, a servant enters upon an employment from its nature necessarily hazardous, he assumes the usual risks and perils of the service, and also those that are known to him or which are apparent to ordinary observation. (Owen v. N. Y. C. R. R. Co., 1 Lans., 108; Gibson v. Erie Ry. Co., 63 N. Y., 449; De Forest v. Jewett, 88 id., 264; Evans v. L. S. and M. S. R. R. Co., 12 Hun, 289.)

If, therefore, the bridge in question was not of sufficient height to render it safe for defendant’s employees to pass under it when required in the discharge of their duties, and that fact was either known to the plaintiff, or might have been discovered by ordinary observation, he was not entitled to recover. But if the plaintiff did not know the position of the bridge, and its position was such as not to enable him by the exercise of ordinary care and observation to discover that it was unsafe, he was entitled to recover if the defendant was negligent, and he was free from contributory negligence. (Plank v. N. Y. C. and H. R. R. R. Co., 1 T. & C., 319, affirmed, 60 N. Y., 607; Mehan v. S. B. and N. Y. R. R. Co., 73 id., 585.)

The cases of Owen v. New York Central Railroad Company, Gibson v. Erie Railway Company, De Forest v. Jewett, and Evans v. Lake Shore and Michigan Southern Railroad Company (supra), are not in .conflict with the principle last stated. In the Owen case the plaintiff knew that the bridge was a low one. Besides, it was clearly apparent to ordinary observation. In the Gibson case it was apparent that the roof was low, and the facts show that the plaintiff must have known it. In the De Forest case the ditches were well known to the plaintiff. They were apparent and obvious. In the Evans case he knew of the location of the target. The danger was patent.

Whether or not the plaintiff had notice of the position of the bridge was a disputed question. If this bridge had been a few inches higher it would have been safe. We do not think the court could have properly held as a matter of law that this defect in the height of the bridge was apparent to ordinary observation. Whether the defendant was guilty of negligence in maintaining this bridge at its then height, whether the plaintiff knew its position, or might have ascertained it by the exercise of ordinary care and observation, and whether the plaintiff was guilty of contributory negligence, were all questions of fact and were properly submitted to the jury. Hence, we find no error in the refusal to grant the defendant’s motion for a nonsuit.

On the trial it was proved that at the time of the accident four brakemen were usually employed on the train on which plaintiff was injured, but on the morning of the accident there were only three. The question whether the defendant was negligent in not furnishing the usual number of brakemen, and whether such negligence caused the plaintiff’s injury was submitted to the jury. The learned trial judge in effect charged that if the jury should find that the defendant did not furnish a sufficient number of brakemen, and that that was the cause of the plaintiff’s injury, the plaintiff would be entitled to recover. To this portion of the charge the defendant excepted. This exception presents the question whether under the evidence the plaintiff was entitled to recover on the ground that the defendant was negligent in not furnishing another brakeman for the train on which the injury occurred. In cases of tort the particular damages for which the plaintiff brings his action must be the legal and natural consequence of the wrongful act of which he complains. (Butler v. Kent, 19 Johns., 224; Crain v. Petrie, 6 Hill, 522.)

“ The law ordinarily looks only to the proximate cause of an injury in holding the; wrong-doer liable to an action; and if the damage is not the probable consequence of a wrongful act, it is not the proximate cause so as to make the wrong-doer liable. This is the rule in cases of tort, when the conduct of the defendant cannot be consiáered so morally wrong or grossly negligent as to give a right to vindictive or exemplary damages.” (Putnam v. Broadway and Seventh Ave. R. R. Co., 55 N. Y., 119, and cases cited.)

Where several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes, but it cannot be attributed to a cause, unless without its operation the accident would not have happened. (Ring v. Cohoes, 77 N. Y., 83, 90.) Where the evidence fails to show that .the negligence complained of was the proximate cause of the injury, the plaintiff cannot recover. (Mott v. H. R. R. R. Co., 1 Robt., 586; Day v. Crossman, 1 Hun, 570, 572; Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210; Reiper v. Nichols, 31 Hun, 491; Hofnagle v. N. Y. C. and H. R. R. Co., 55 N. Y., 609, 612; Scheffer v. Railroad Co., 105 U. S., 249; Sellick v. L. S. and M. S. R. R. Co., 32 Alb. Law Jour., 448, 449, and cases cited in opinion.)

Within the principle of the cases cited, to entitle the plaintiff to ■recover upon the ground that the defendant was guilty of negligence in not furnishing a sufficient number of brakemen, it was incumbent on the plaintiff to show that his injury was the result ■of such negligence; that it was the natural and probable consequence of the defendant’s omission, and that the accident would not have happened but for such omission.

It is extremely difficult to perceive how the defendant’s omission .to furnish a fourth brakeman contributed in any legal sense to, or was the proximate cause of, the plaintiff’s injury. His injury was the direct result of his attempt to pass over a train of freight pars when it was approaching a bridge of insufficient height to enable him to pass under it in safety. The proximate cause of the plaintiff’s injury was either the negligence of the defendant in maintaining a bridge of improper height, or the plaintiff’s negligence in placing himself in a position of danger, and not properly protecting himself against injury.

We do not think that the omission of the defendant to furnish another brakeman was the proximate cause of plaintiff’s injury. The evidence wholly fails to show that the plaintiff’s injury was the natural or probable consequence of the defendant’s omission to employ a sufficient number of brakemen, or that the accident would not have happened but for such omission. Nor do we think that the evidence was sufficient to present a question of fact for the jury-on that branch of the case.

We are of the opinion that the learned judge erred in submitting that question to the jury, and that the defendant’s exception was well taken. For this. error, the judgment should be reversed and a new trial granted, with costs to abide the event.

Present — Hardin, P. J., Churchill and Martin, JJ.

Judgment and order reversed and new trial ordered.


source: Caselaw Access Project

author: Churchill, J. :

license: Public Domain

text:
    STEPHEN R. RYAN, as Assignee, etc., of CALVIN L. WINTERS, Appellant, v. J. NELSON WEBB and PARLEY H. JOHNSON, Respondents.

      Undertaking on appeal — wken void as a statutory obligation, it may be sustained as a common-law agreement — general assignment — the title vests m the assignee upon its execution, delivery and record.

    January 28, 1881, one Winters made a general assignment to one Webb, which was, after being duly executed by both parties, recorded. February twelfth, an inventory was filed and an order was made requiring the assignee to give a bond, with which he failed to comply. February twenty-eighth, Webb obtained a judgment against Winters upon which he issued an execution under which he caused all the personal property which belonged to Winters at the time of the assignment to be sold. . The property, which had remained in the possession of Winters until the time of the sale, was struck off to Weob for $255. Webb thereafter appealed to the General Term from an order which removed him as assignee, because of his failure to give a bond and directed him to pay over to his successor all the property which had come into his hands or under his control as assignee under the assignment.
    Upon the filing of an undertaking given in the form prescribed by section 1327 of the Code of Civil Procedure, to pay the sum recovered or directed to be paid by the order, instead of in that prescribed by sections 1328,1329, to obey the directions of the appellate court, an order staying proceedings pending the appeal was procured.
    In this action brought upon the undertaking by the new assignee, after the affirmance of the said order:

      Held, that although the undertaking was, as a statutory obligation, invalid, yet as Webb had by that means obtained a stay of proceedings pending the appeal, it thereby became operative and binding upon the sureties as a common-law agreement.

      That the claim that no property was under the terms of the order deliverable, because none had come into Webb’s hands as assignee, was not tenable, as the-execution, delivery and recording of the assignment vested the title to all the property of the assignor in Webb, and his failure to give the bond did not divest him of that title or revest the same in Winters.
    That the plaintifE was entitled to judgment for the value of the property. (Harbin, J., concurred in result.)
    Appeal from a judgment in favor of the plaintiff, rendered in the County Court of Jefferson County.
    January 28,1881, Calvin L. Winters, of Jefferson county, made a general assignment, in trust for his creditors, to Fayette H. Webb, who, in the same instrument, accepted the trust. The assignment was properly executed and acknowledged by both parties, and on the following day recorded in Jefferson county. February 12,1881, an inventory was filed and an order made requiring the assignee to give a bond in the sum of $1,500. Webb gave no bond, but on February 28, 1881, he obtained judgment against Winters in the Supreme Court, and caused an execution tobe issued thereon, upon which the sheriff levied upon, and about the middle of March, 1881, sold all the personal property subject to levy which belonged to Winters at the time of making the assignment. The property-sold, with the exception of a single article of little value, was struck off to Webb for $255.
    This property had remained in the possession of Winters until the sale by the sheriff. No possession was taken of it by Webb except as it was delivered to him at the sheriff’s sale, and no other property of Winters’ came to his possession.
    April 13, 1881, the county judge of Jefferson county, upon the petition of a creditor showing that no bond had been filed, made an order removing Webb as assignee and appointing the appellant Ryan in his place. The order directed Webb to pay over and sur•render to Ryan all the property which had come into his hands or ¡under his control as assignee under the assignment. Ryan immediately qualified as assignee and demanded the property. Webb did not surrender, but sold it as his own.
    April 30, 1881, Webb appealed from the order removing him as assignee to the General Term, and upon an undertaking signed by the defendants in this action obtained from the recorder of Water-■town an order staying the proceedings pending the appeal.

      The General Term affirmed the order, with costs. Ryan thereupon sued the present defendants upon their undertaking in the Jefferson County Court. The court upon the trial held the undertaking not such an one as the sureties were liable upon for the value of the property, and directed a verdict for the plaintiff, limited to the costs of the appeal to the General Term. From the judgment entered upon the verdict the plaintiff appeals to this court.

      E. O. Emerson, for the appellant.

      Watson M. Rogers, for the respondents.
   Churchill, J. :

The appeal from the order of removal to the General Term, including the stay of the execution of the order, was governed by title 4, chapter 12 of the Code. (Code, § 1360.)

Such stay could only be by order, which could be made with or without security in the discretion of the judge making it; but if security was required, the provisions of title 2, chapter 12 applied. (Code, § 1351.)

The order appealed from was one directing the delivery of personal property and the undertaking should have been, that the appellant would obey the direction of the appellate court. (Secs. 1328, 1329.) Instead, it followed section 1327, the sureties undertaking that if the order appealed from was affirmed, the appellant (in addition to the costs of the appeal) would pay the sum recovered or directed to be paid by the order. The order appealed from did not direct the payment of any sum of money, and section 1327 did not apply to the appeal. (Grow v. Garlock, 29 Hun, 598; Bank of Havana v. Moore, 8 Weekly Dig., 198.) As a statutory obligation the undertaking was therefore invalid. (Post v. Doremus, 60 N. Y., 371, 377; Hollister v. McNeill, 31 Hun, 629.) But upon this undertaking the appellant Webb obtained a stay of proceedings pending the appeal. The undertaking thereby became' operative and binding as a common-law agreement. Toles v. Adee, 84 N. Y., 222, 238; Goodwin v. Bunzl, 6 Civ. Pro. R., 226.) In construing such an agreement, the language Used is to have a reasonable interpretation according to the intent of the parties, as disclosed by the instrument read in the light of surrounding circumstances and of the purpose for which it was made and so as, if possible, to give the instrument its intended effect. And this applies to the obligations of sureties as well as any other, and if the expressions used by the surety are ambiguous, the ambiguity will be taken most strongly against him. (Waldron v. Willard, 17 N. Y., 466; Belloni v. Freeborn 63, id., 383.)

A considerable part of the assigned property had come into the possession of Webb at the sheriff’s sale. The order appealed from required him to pay over and surrender to Ryan all property which had come into his hands or under his control as assignee under the assignment. The undertaking was given, as the evidence shows, to enable him to keep possession of the property. That with the attending circumstances warranted a finding that the sureties by the language used, intended to undertake, in case the order was affirmed, that the appellant would do what the order required him to do, i. e., surrender the property to the new assignee, and effect should be given to the undertaking according to that intent.

It is claimed for the respondents that nothing came into the hands of Webb as assignee; that he acquired title as well ^possession at the sheriff’s sale; and that, therefore, no failure to obey the order of the county judge was shown. This position is not tenable. The assignment was properly executed by both parties, delivered and recorded in January, 1881, and the title to the property thereupon vested in the assignee. (Warner v. Jaffray, 96 N. Y., 248; Matter of Farnam, 75 id., 187.) Webb’s failure to give a bond did not divest him or revest Winters with the title. (Brennan v. Willson, 71 N. Y., 502.)

The sale by the sheriff in March, 1881 on an execution against Winters, passed no title since Winters had none to part with. Webb then acquired possession as well as title, and held the property under the assignment and subject to its trusts. The county judge erred in holding that the undertaking was not one upon which the plaintiff could recover for the value of the property, and in directing a verdict limited to the costs of the appeal to the General Term. The judgment should be reversed and a new trial granted, with costs to abide the event.

Hardin, P. J., concurred in the result on the authority of Toles v. Adee (84 N. Y., 222); Follett, J., not voting.

Judgment reversed and a new trial ordered in the Jefferson County Court, with costs to abide the event.


author: Churchill, J.:

text:
    DAVIS COSSITT, as late Sheriff, etc., Appellant, v. HENRY WINCHELL, Respondent.

      Attachment — void because of a failure to serve the summons within thirty days, as required by section 227 of the Oode of Procedure.

    The failure of tlie plaintiff to serve the summons upon the defendant personally, or to commence its service by publication within thirty days from the time at which an attachment against the defendant’s property has been issued, is not a mere irregularity, but a jurisdictional omission, which destroys the warrant, nor will its validity be restored, or in any way affected, by the fact that the defendant, after the expiration of that time, appeared and defended the action.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.

      Waters <& McLennan for the appellant.

      Louis Marshall, for the respondent.
   Churchill, J.:

On the ninth day February, 1876, Benjamin Cowan procured a warrant of attachment in the Supreme Court against Yates R. Brand as a non-resident, and delivered a copy to Winchell, the defendant in this action, with notice that he attached a debt owing by him to Brand.

On the 5th of April, 1876, service by publication of the summons in Cowan v. Brand was commenced and prosecuted to completion, and on the fifth day of May, 1876, the defendant duly appeared by attorney and answered in the action, which was after-wards tried, and November 8, 1880, Cowan obtained judgment for $498.85. Execution was on the same day issued to the plaintiff as in an action in which an attachment had been issued, and afterwards, on the twenty-first day of February, 1881, this action was commenced to recover the debt attached February 9, 1876.

The referee before whom the action was tried found as facts what would otherwise have entitled the plaintiff to judgment, but dismissed the complaint because of the failure to serve the summons-personally or to commence its publication within thirty days after February 9, 1876, as required by section 227 of the Code of Procedure. From the judgment entered on his report this appeal is taken,

The only question presented by this appeal seems settled by repeated adjudications. (Blossom v. Estes, 22 Hun, 472; S. C., 84 N. Y., 614; Taylor v. Troncoso, 76 id., 599; Mojarrieta v. Saenz, 80 N. Y., 547; Waffle v. Goble, 53 Barb., 517; S. C., 35 How., 356; Taddiken v. Cantrell, 1 Hun, 710; Pomeroy v. Ricketts, 27 id., 242; Kneeland on Attachments, § 464.)

In Blossom v. Estes the summons was not served or its publication commenced within thirty days after the attachment was issued and levied, but the defendant subsequently, as was claimed, appeared in the action. The General Term (22 Hun, 472) in reversing an order denying a motion to vacate the attachment, said: “ Here it is conceded that the publication was not commenced until after the expiration of the thirty days. This was not a mere irregularity, but a jurisdictional omission, which worked the destruction of the warrant. The alleged appearance long afterwards did not revive the attachment. If authorized, it simply gave the court jurisdiction over the person of the defendant.” The Court of Appeals (84 N. Y., 614) affirmed this decision, and say: “ The doctrine upon which the court below placed its decision stands upon the plain reading of the statute, and is so well sustained by authority that it should be considered settled.” They further say (p. 617) after quoting the proviso of section 227: “ Here is a plain condition on which the vitality of the attachment depended; and it has not been complied with. It was good when issued, but remained so for thirty days only, unless within that time one or the other of the two steps was taken. The plaintiffs however neither served the summons personally nor by publication. At the end of that time the statutory bar fell and with it the attachment. The jurisdiction which attached upon allowance of the warrant ceased, and as to that proceeding it was as if the statute had been repealed. This consequence necessarily follows the omission to comply with the terms of the proviso.”

The attachment having been properly issued might be a protection to the sheriff for acts done under it before the thirty days .expired, but beyond that upon the authority of the cases above ■cited it had no force. Gere v. Gundbach (57 Barb., 13) and Simpson v. Burch (4 Hun, 315), are cited in opposition to this ■conclusion, and it is claimed that their authority is recognized in Blossom v. Estes (84 N. Y., 618). But the latter case (as well as other cases cited above) expressly overrules the doctrine of Gere v. Gundlach and Simpson v. Burch, that the omission to comply with the proviso of section 227 is an irregularity merely, and that section 139 of the former Code is sufficient to sustain the attachment notwithstanding the omission. There are other questions involved in those cases upon which the result arrived at by the court might be sustained, and to those reference is undoubtedly made in what is said in Blossom v. Estes.

The judgment appealed from should be affirmed, with costs.

Hardin, P. J. and Follett, J., concurred.-

Judgment affirmed, with costs.


author: Barnard, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CHARLES BENNER, Respondent, v. THE BOARD OF SUPERVISORS OF QUEENS COUNTY, Appellant.

      Examination of charges against a public officer by the governor — the costs and expenses, including counsel fees, are to be borne by the county — 1874, chap. 323 — section 4 of article 15 of the Constitution does not apply to such an investigation.

    Chapter 323 of 1874, making appropriations for certain expenses of government and supplying deficiencies-in former appropriations, contains the following provisions: “ For William E. Kandall, sheriff of Clinton county, in full for disbursements incurred by him on account of charges preferred against him to the governor, by whom,, after investigation of. the same, they were dismissed, the sum of one thousand dollars. Hereafter in all proceedings before the governor for the removal of any county officer upon charges preferred against him, all the costs and expenses thereof, including those of taking and printing the testimony thereon, shall be a county charge upon such county, and shall be audited and allowed by the board of supervisors.” * * * In the case of Randall the district attorney had employed counsel to prosecute . him, whose fees, as such, were included in the amount appropriated.

      Held, that it was the intention of the legislature in subsequent cases to allow counsel fees to be included, as part of the costs and expenses, in the sum to be allowed by the board of supervisors.
    That section 4 of article 15 of the Constitution, providing that the expenses which shall be incurred by any county in investigating ‘ and prosecuting any charge of bribery, shall be a charge against the. State, has no application to investigations of the character referred to in the act of 1874, but only to cases in which the district attorney acts through the intervention of the grand jury.
    That the attorney general had power to employ counsel to assist in conducting such investigations,
    Appeal from an order made at a Special Term directing a peremptory mandamus to issue to the board of supervisors of Queens county, commanding them to audit and allow the relator’s bill for services and disbursements amounting to $1,254. 85.
    In 1883 one Benjamin W. Downing was district attorney for the county of Queens. On or about the eighth day of May, in that year, certain proceedings and investigations were taken and had concerning the said district attorney, by one J. Lee Smith and others, in conjunction with the relator, acting as attorney and counselor at law, which, on the twenty-fourth day of June, culminated in certain charges of bribery, with specifications, against and concerning said district attorney, being presented to the governor of the State, and prayer made that the same be investigated. From that time, May 8, 1883, until July 24, 1883, the relator had sole charge of all the proceedings concerning such charges, their investigation -and prosecution; and after that date, at the request of the governor and the attorney general, the relator continued to be personally engaged in the proceedings, and substantially had charge thereof, performing numerous services, until the twenty-sixth day of October, 1883, when the charges so made were by the governor sustained and the said district attorney removed from the office held by him. The relator rendered a bill to the county of Queens for his expenses and charges, and asked that the same be audited and included in the next annual assessment-roll or tax levy, and levied and collected and paid over, by virtue of the statute hereafter referred to. The board of supervisors, before whom the matter came, declined to consider it or take any action, solely on the ground that the county was not liable therefor, making no question of the items of the relator’s bill or its correctness.

      John J. Armstrong, for the appellant.

      Henry C. WiTloox, for the respondent.
   Barnard, P. J.:

The intent of that part of chapter 323, Laws of 1874, page 388, upon which the claim herein rests, is manifest from the appropriation which immediately prece les it. There had been an unsuccessful charge of malfeasance against the sheriff of Clinton county. The district attorney had employed counsel to prosecute. The investigation was referred by the governor to the county judge to take the jwoof and the sheriff had defended himself. All the bills were allowed, and then follows the words providing that in all proceedings thereafter before governors for the removal of any county officers upon charges preferred against him, the costs and expenses thereof, including those of taking and printing the testimony therein, shall be a county charge upon such county.” It is manifest that the section was passed to include a fair charge for a counsel fee under the term costs and expenses. It would also fall within the term taking the testimony, for that cannot be done without the aid of one trained to that pursuit by previous study of the rules of testimony. The objection, therefore, to the allowance-of the counsel fee as not within the law is not well founded. The legislature had allowed similar charges, and then provided that thereafter the costs should be a county charge. The case is not within the provisions of the amendment to articles 15 and 16 of the State Constitution. By those articles bribery was made a high offense, and district attorneys were charged with the prosecution thereof in their several counties. This was intended only to be through the intervention of grand jurors, for the district attorney could act in no other way. He was to prosecute as district attorney, and the expenses in investigating and prosecuting charges of bribery committed in the county of such district attorney was to be charged against the State. The ' amendment was designed to meet cases of bribery, not alone upon the part of the county officers of such counties but all officers, executive, legislative and judicial as well. There was no prosecution by the district attorney within the spirit of those amendments. The power upon the part of the attorney general to employ special counsel in a case like this was not passed upon by the Court of Appeals in Attorney General v. Continental Life Insurance Company (88 N. Y., 571). It was only decided upon broad grounds that an allowance upon the distribution of assets could not be made to the employees of the attorney general as special counsel. This case is different. The governor cannot take the testimony, and such onerous duties are charges upon the attorney general that he cannot always attend personally or by regular deputy. The legislature has given the attorney general power in certain cases to employ counsel to be paid out of the State treasury. (Chap. 357, Laws of 1848.) The power to employ is sufficient to meet this case and the law of 1874 puts the costs of the particular employment upon Queens county. It may be that there are parts of the bill which could be objected to. The county have litigated on the ground of non-liability.

The order should be affirmed, but with leave to the county of Queens to make an issue upon the bill or any part of it; no costs to either party on this appeal.

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

Order granting mcmdamus affirmed, with leave to defendant to make an issue upon the facts stated in moving papers.


text:
    ELLEN MARTIN, Appellant, v. WILLIAM CAHILL, Respondent.

      Negligence — when damages'cannot he recovered for injuries sustained hy a child unnecessarily exposing itself to danger.

    This action was brought to recover damages for injuries sustained by tbe plaintiff's daughter, a child nine years old, in falling from a painter’s scaffold. The defendant’s men, while painting a tenement house, had left a scaffold hung from the gutter in the ordinary way, some two or three feet below the window of a room occupied by the plaintiff, while waiting for the first coat of paint to dry.
    The daughter got out of the window, let herself down upon the scaffold and accidently fell from it to the ground, thereby sustaining injuries. She had been warned against the hazard of getting upon the scaffold, and her fall was not occasioned by any insecurity or defect in it.

      Meld, that a nonsuit was properly directed.
    Appeal from a judgment in favor of tlie defendant, entered upon a nonsuit ordered at the Kings county circuit.

      This action was brought by the plaintiff to recover the sum of $10,000 damages for the loss of services and the expense of caring for a child nine years of age, who, as alleged, fell from a painter’s scaffold and was injured on the 16th of August, 1882. Plaintiff lived in a tenement house at 304 Henry street, Brooklyn. She had three children. The youngest child, the one alleged to have been in jured, was nine years of age. The others were aged twelve and fifteen years respectively. The plaintiff had three rooms on the front and lived two flight of stairs from the street.
    On the day in question, one of the children, Ellen Martin, aged about nine years, climbed up on the window-sill of her own room, on the inside, a distance of two or three feet, and then climbed down on defendant’s scaffold, which was fastened about two or three feet under the sills of the windows, resting on the awning rafters in front of the building. A neighbor’s child was on the scaffold also. They were seen there in the morning and were driven off. They were cautioned of the danger and warned by defendant and others not to go on it again. They had no right there. They did go on again later in the evening of that day, and the child, Ellen Martin, fell off, and sustained the injuries complained of in this action.
    The defendant was employed by the landlord to paint the outside of the premises, and for this purpose had used the usual swing scaffold. It was fastened, was safe, and nothing broke or gave away at the time of the accident, and it is not claimed that the scaffold by breaking or falling caused the accident, or that it was out of order or that it was not a safe and suitable one for the purpose. The work was to have two coats of paint. One coat had been put on the day before the accident, and the scaffold was fastened on top of the awning rafter, so as to allow the first coat of paint to dry before the other coat was put on.

      Chas. J. Patterson, for the appellant.

      Patrióle Keady, for the respondent.
   Barnard, P. J.:

This case falls within the case of McAlpin v. Powell (70 N. Y., 126). A landlord was bound to keep in repair fire-escapes. It was used by a child as a balcony, and it was held that the child had no right to go upon the platform of the fire-escape, and that he was there for no legitimate purpose, and that no action would lie for his injury by reason of the insecurity of the platform. This case is much stronger. The defendant is a house painter, and was employed to paint a house. He had hung his scaffolding from the gutters in the ordinary way and had painted the house one coat. While waiting for the paint to dry before he could put on a second coat of paint, he left the scaffolding hanging some two or three feet below the window of the room occupied by the plaintiff. Her daughter and another girl were warned against the hazard of getting on the scaffold, but later in the day the plaintiff’s daughter got out through the window and let herself down in some way upon the scaffold and accidently fell from it to the ground and was injured. The fall was occasioned by no insecurity or defect in the scaffold itself. Certainly the child had no right to go upon the scaffold, and was therefor no legitimate purpose in the case presented. If the platform of a fire-escape presented no invitation recognized by law for children to use, certainly a ladder hung horizontally under a window of a house by painters furnished none, even to very young children. It was nó greater indication that it was designed for general use “ than the roof of a stoop or piazza which projects under the window of a dwelling-house,” as stated by the Court of Appeals in McAlpin v. Powell.

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


text:
    ARCHIBALD M. OAKLEY, Appellant, v. THE TOWN OF MAMARONECK and the TOWN OF HARRISON, Respondents.

      Practice — allegations required in an action against a town for neglect to repair a bridge — when an action lies against two towns jointly liable.

    In an action against a town to recover damages for its neglect to keep a bridge in proper repair, it is not necessary to allege in tbe complaint that the defendant had money with which to make the necessary repairs.
    Where an act of the legislature imposes upon two towns the duty of keeping a bridge in repair, an action for their neglect so to do will lie against the two towns jointly.
    Appeal from a judgment in favor of the defendants at the Westchester circuit, entered upon an order dismissing the complaint upon the ground that it failed “ to allege that the highway commissioners of either of the defendant towns had funds, or neglected to take any steps to procure them, or in any fact showing negligence in that regard.”

      L. G. <& W. P. Plait, for the appellant.

      Arthur T. Hoffman, for the town of Mamaroneck, respondent.

      Wilson Brown, Jr., for the town of Harrison, respondent.
   Barnard, P. J.:

An averment in the complaint that the defendants had money with which to do the duty imposed on them by law is not necessary to the complaint. It may become necessary on the trial to prove the fact, or that the town had power to get the money according to law, but the allegation of the complaint in this case is sufficient to go to trial upon. The complaint states that the “ defendants, and each of them, wholly failed and neglected to repair and keep in ■repair the said bridge, but, on the contrary, knowingly and negligently left and suffered the same to remain out of repair and in an unsuitable and dangerous condition to drive or pass over.” Under this complaint it will be proper to prove any fact which tends to establish negligence, and the evidence of the facts need not be stated in a pleading.

The liability to keep and maintain the bridge is a joint one imposed on the defendants’ towns. (Chap. 225, Laws of 1841, as amended by chap. 383, Laws of 1857.) When an accident results from joint negligence all or either of the towns may be sued. The law which permits towns to be sued for negligence, when its commissioner of highways is negligent, is broad enough to support a joint action against two towns when both are negligent.

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

Pratt, J., concurred.

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


text:
    FRANCES W. PETTENGILL, Appellant, v. THE CITY OF YONKERS, Respondent.

      Negligence — liability of a city for allowing an excavation in a street to remain unguarded.
    In this action, brought to recover damages for personal injuries sustained by the plaintiff from being thrown into an excavation while traveling in one of the streets in the defendant’s city, it appeared that the excavation was made pursuant to a contract made between the water board of the city and one Valentine by the terms of which the contractor was to properly guard the excavation. The excavation had been allowed to remain unguarded and without lights or railing for some three or four weeks prior to the time of the accident.

      Held, that it was error to nonsuit the plaintiff; that it should have been left to the jury to say whether the defendant was not guilty of negligence in allowing the excavation to remain unguarded for so long a time.
    Appeal from a judgment in favor of the defendant, entered upon a nonsuit directed at the Westcliester circuit.
    The plaintiff sued the city of Yonkers to recover $20,000 damages-for injuries alleged to have been received by being thrown into' an excavation in one of the streets of the city while driving therein,

      J. M. Hunt, for the appellant.

      Joseph F. Daly, for the respondent.
   Barnard, P. J.:

The city of Yonkers owed a duty to those who traveled its streets, even if the water board was independent of it. It owed a duty, although the contractor under the water board was an independent .contractor, and did not bear the relation of servant either to the water board or to the city of Yonkers. The proof shows that on the evening of the 7th of January, 1885, the plaintiff Avhile traveling on Yonkers avenue, one of the streets of the city, was thrown into an excavation and severely injured. There Avas neither light or guard to warn travelers. There liad been no light or guard there for several weeks. The excavation was made under a contract between the water board and one George B. Yalentine. By the terms of the contract Yalentine Avas to properly guard the ■excavation. Conceding that the city in one respect stands in tlie relation to the contractor which would protect it for the excavation -.made by Yalentine, under the case of McCafferty v. S. D. and P. M. R. R. (61 N. Y., 178), the case shows sufficient evidence for a jury, whether the excavation had not been left so long unguarded as to make the city liable for neglect in guarding the defect after notice. Notice will be presumed after lapse of sufficient time. If the street is left dangerous, even from the result of a trespass, so long as to imply a notice, the city would be liable for an injury occasioned by it. The injury was occasioned January 7, 1885. One witness testifies: “ There had been no light there where that .excavation was for some weeks prior, and there was no railing about it.” Another witness testified as follows: I could not tell exactly how long prior to January seventh that avenue had been dug up, two or three or four weeks ; there was no light there at the time of the accident, I should say, for.two weeks.” The proof was abundant that there Avas no light at the time of the accident. The case is therefore one which should have gone to the jury under proper instructions.

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

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

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


author: Barnard, R. J.:

text:
    JOHN KONVALINKA and Others, as Executors, etc., of GEORGE SCHLEGEL, Deceased, Appellants, v. GEORGE SCHLEGEL, Appellant, Impleaded with Others, and MARIA SCHLEGEL, Widow, Respondent.

      Election — when a widow will not be compelled, to elect between a pn'ovmon in a will and, her dower.

    The plaintiff’s testator died leaving a widow and eight children and a will, which, after disposing of certain specific articles, provided as follows, viz.: “ All the rest, residue and remainder of my estate, property and effects of every nature, kind and description, I give, devise and bequeath to my executor and executrix hereinafter named, and I authorize and direct them to sell and dispose of the same at such time and on such terms as to them shall seem best, and to divide the proceeds thereof equally among my wife and children, share and share alike.”

      Held, that the widow was not put to an election between the provision made in her favor in the will and her dower, but was entitled to both.
    Appeal from a judgment in favor' of the defendant Maria Sclilegel, widow of George Sclilegel, entered in Kings county, upon the trial of this action brought to obtain a judicial construction of the will of the said George Sclilegel.

      JoJmW. KonvalinJca, for the plaintiffs, appellants.

      Henry McGloskey, for infant defendants, appellants.

      Cudlypyy & Glover, for adult defendants, appellants.

      George Bliss, for the respondent.
   Barnard, R. J.:

The only question in this case is whether the widow of George Sclilegel, deceased, is put to her election between a bequest in the will contained and her dower right. The deceased left a widow and eight children, and by his will disposed of certain specific articles and then disposed of all his property as follows :

“ All the rest, residue and remainder of my estate, property and effects of every nature, kind and description I give devise and bequeath to my executor and executrix hereinafter named, and I authorize and direct them to sell and dispose of the same at such times and on such terms as to them shall seem best, and to divide the proceeds thereof equally among my wife and children, share and share alike.”

The intent of the testator governs the construction of the will in all cases, so far as indicated by the language used. A provision for a widow, in addition to her dower right, is always upheld, unless the bequest and the dower right are irreconcilable or inconsistent. The presumption otherwise is that the testator intended that she should have both. Another rule of construction is that that one will be followed which disposes of the whole estate. Applying these rules to the clause in question, there is no inconsistency between the widow’s dower being passed to her and her receipt also of the one-ninth of the estate subject to it. The case of Matter of Frazer (92 N. Y., 239) so holds. A different construction would leave a part of the estate undisposed of. If the widow must elect and elects dower, then the ninth of the estate given in lieu thereof is entirely undisposed of. If anything can be plain from a-reading of the will, it is plain that the testator intended to and did dispose of his entire estate.

The judgment should be affirmed, with costs.

Pratt, J., concurred.

Judgment affirmed, with costs.


author: Dykman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. PRESCOTT HALL BUTLER, Appellant, v. JOHN S. HUNTING, Justice of the Peace of the Town of Smithtown, and CHARLES E. LAWRENCE, Commissioner of Highways, etc., Respondents.

      jRemoval of ohstruciions from highways — 1878, chap, 245.
    Since tlie passage of chapter 215 of 1878, amending sections 103 and 104 of 1 Revised Statutes, 521 and 522, commissioners of highways have authority to compel the removal of all obstructions or encroachments upon a highway, whether the said highway shall have been laid out, ascertained, described and entered of record, or shall not have been recorded but shall have been used as a public highway for twenty years or more.

      Appeal from an order refusing a writ of prohibition, restraining a justice of the peace from proceeding to try an issue and from rendering a decision in proceedings instituted against the relator to remove an obstruction on a highway.

      Jesse Johnson and Prescott Hall Butler, for the relator.

      Wilmot M. Smith, for the respondent.
   Dykman, J.:

The law has invested the commissioners of highways of the towns of this'State with power to command the removal of obstructions and encroachments from the highways whenever, in their opinion, it shall be necessary.

The mode of procedure prescribed is to make a written order on the subject, and also to give notice in writing to the occupant and owner of the land, to remove such obstructions or encroachments within sixty days. If the occupant to whom such notice is given shall within five days deny such encroachment the commissioners shall apply to a justice of the peace of the county for a precept, directed to a constable of the town, to summon twelve freeholders thereof to meet and inquire into the prexnises. On the assembling of the jux-y they must be swonx by the justice to inquii’e whether any such encroachment has been made and by whom. This is the scheme of the statutes, as they are now in force, without reference to particular sections or amendments.

One of the defendants in this proceeding is the sole commissioner of highways of the town of Sxnithtown, in Suffolk county, and he received a complaint that the relator had obstracted one of the highways of his town with gates. He examined the road and ascertained that the x’elator had ex-ected gates across the road in two places. Thereupon he made the order and served the notice required by the statute in such eases. Within the legal period the relator served a wi’itten denial of the obstruction in which he said, among other things, “ I beg to assui’e you that you are mistaken in supposing that the gates T have erected and am maintaining obstruct any highway.” Thereupon the commissioner made application to the other defendant in this proceeding for the precept for the jury to make the inquiry prescribed by the statute. On the return day of the precept the relator appeared before the justice and filed another paper, in which he admitted the erection of the gates, but denied the highway, and claimed that the gates were not an encroachment -within the statute, because they wholly barred and obstructed the highway, if any existed. A dismissal of the proceeding was demanded and refused. Then the jury was drawn and sworn to try and determine whether the alleged encroachment was made and by whom. The hearing then proceeded for some tinfe when an adjournment was taken to a future day. Before that day came, the proceedings were arrested by the alternative writ of prohibition.

On the return day, the absolute writ was denied, and the relator has appealed from that order of denial. It was clearly within the competency of the defendants to take the measures and institute the proceedings inaugurated by them, and in so doing they were engaged in the exercise of the powers conferred upon them by the statutes. Nay, more, they were in the discharge of a duty imposed upon them from which they had no escape. They were not attempting the usurpation of unauthorized power or authority, and they were not assuming to hold plea of matters beyond their jurisdiction. The writ of prohibition is not, therefore, the appropriate remedy for the evils anticipated by the relator. That is a preroga-, tive writ whose office is to prevent inferior- courts and tribunals from proceeding beyond their jurisdiction in the exercise of judicial functions. It never can be utilized to perform the duty of a writ of error. These considerations lead to an affirmance of the order appealed from, unless the defendants have in some way lost the jurisdiction which they possessed to institute the proceedings originally.

It is the position of the relator that such loss, has been sustained, and that the defendants are now proceeding without jurisdiction. That contention is based on the phraseology of the statute controlling the proceedings inaugurated by the defendants.

Previous to the year 1878 proceedings like these were only authorized for the removal of encroachments on, laid out, and ascertained and recorded highways; but by chapter 245 of the Laws of 1878 the statutes were so amended as to include obstructions and encroachments on all roads not recorded which have been used as public highways for twenty years or more, so that now the statute provides a complete system for the removal both of obstructions- and encroachments.

It so happens, however, that the sections providing for the denial of the occupant was not amended, and the word encroachments stands alone in that section, not supplemented by the word obstruction as it is in the other sections. Therefore the relator claims that he was called upon to deny an encroachment only, and that without the interposition of such a denial of an encroachment there was no issue, and could be no precept, no jury, no -trial..

That position assumes a very narrow view of the statute; for while there doubtless is, in strictness of language, a philological difference between the words obstruction and encroachment, yet in an effort to ascertain the intention of the legislature from the reading of the statute, the courts are not and cannot be controlled by any such technical considerations. - Their object is to ascertain the scope and meaning of the law, the object and aim of the legislature, the evil intended to be reached and the remedy intended to be provided. A comprehensive view of the statutes involved here removes-all doubt respecting their construction. The former statutes provided for the summary removal of encroachments only, and the courts held that they had application to recorded highways only. To remedy those restrictions the legislature made the amendments-of 1878 so as to include both obstructions and encroachments, and malee the statute applicable to roads that had been used as highways for twenty years, so that now we have a complete-scheme for the removal of encroachments and obstructions- from all the highways specified in the statutes, to the end that they may continue in their unimpaired integrity of the width originally intended.

To hold that the-omission of the word obstructions from- one of’ the sections constituting the scheme is sufficient to restrict its operation to cases of encroachment only,, would be to neutralize the-effect of the provisions and materially impair their usefulness.. The scheme is an entirety, and when the relator denied the obstruction he put the commissioner to' the- trial of the question before the jury. These considerations lead to the- conclusion that the defendants were acting within their respective spheres and jurisdictions;. and that all errors committed by them must be corrected by a review of their proceedings.

The order should be affirmed, with costs and disbursements.

Pkatt, J,, concurred in the result; Barnard, P. J., not sitting.

Order refusing writ of prohibition affirmed, with costs and disbursements.


text:
    MARGARET A. TIBBITS, Appellant, v. PERRY T. CUMBERSON, WILLIAM H. ALBRO and EUGENE T. PREUDHOMME, Executors, etc., of STEPHEN A. MARTINE, Deceased, and WILLIAM H. ALBRO, Individually, Respondents.

      Division of land into lots on a map made by the owner thereof— rights of purchasers of lois by deeds referring to such map— when purchasers from, his executors may compel them to open the streets as shown on the map.

    One Martine, being the owner of a tract of land bounded on three sides by public roads, caused a map thereof to be made, in which the land was divided into lots by what were designated and named thereon as streets. By his will in devising land to his wife he referred to the streets so laid down on this map as intended to be opened. His executors, who were empowered to sell his real estate at public or private sale, sold lots at a public auction sale in accordance with a map, copies of which had been printed by them and which were displayed and distributed at the sale, which referred to the numbers and streets appearing thereon. At that time a portion of the said streets had been opened and used, while the remaining portion had not at that time been, nor have they since that time been opened or used. The plaintifE purchased a lot on what was called Grand street, between what was called Martine avenue and an unnamed street laid down on the said map. In this action she sought to have that portion of Grand street, on the block beyond the lot so purchased by him, which appeared on the map to extend across and from the said unnamed street to a road called New York Post road, opened and used as a street.

      Held, that she was entitled to the relief sought.
    Appeal from a judgment, entered upon the trial of this action •at a Special Term held in Westchester county, dismissing the plaintiff’s complaint, with costs.
    The action was brought by the plaintiff to establish and enforce her right of way over a strip of land designated as “ Grand street ” on a map of which the following is a copy: .

      The right of way was claimed over Grand street as laid down on said map from the unnamed street crossing the same to the highway designated on said map as the “New York Post road,” plaintiff also sought to compel the removal of all obstructions to the exercise of such right of way.
    The premises owned by the plaintiff are shown on the map on the corner of Grand and the unnamed street and on the east side of Grand street between Martine avenue and the unnamed street. Grand ■ street was at the time of the sale and is still open from the unnamed street northward. It is the extension of Grand street southward to the “ Post road,” over which the plaintiff claims the right of way. The whole tract of land bounded by Martine avenue, the New York Post road, Court street and Grove street, was owned by Stephen A. Martine in his lifetime and at the time of his death, which occurred in January, 1876. In 1872 a map of the property was made under his direction similar to the one here given by O. A. Hyatt, surveyor. On this map Grand street- is laid down sixty-six feet in width, extending from Martine avene to the Post road. By his will Mr. Martine gave to his wife, for her use during life, his dwelling-house and appurtenances, and the plot of land surrounding the same, which he describes as “bounded as follows: Southerly by the White Plains Post road (the New York Post road tvas so designated on his first map); northerly by a street laid down upon a survey of my property in the village of White Plains, made by O. A. Hyatt, surveyor, dated March, 1872, which street on said survey is laid out at a distance of 100 feet northerly of the carriage house; easterly by a line in continuation of Court street as laid down in said survey, and westerly by a line in continuation of Grand street, as laid down in said survey.” He authorized his executors to sell the said premises during the life of his wife, if she should so request, and directed that upon her death the said premises, or the proceeds thereof, if so sold, should be disposed of in the same manner as his residuary estate. After other provisions in favor of his wife, not material to this action, he ordered and directed his executors to sell and dispose of all the remainder of his estate, both real and personal, at public or private sale, as they might deem fit, and to give good and sufficient deeds for the conveyance of the real estate, the proceeds to be divided amongst his then living issue. In 1880 the executors prepared for a sale of all this property, except the homestead plot then occupied by the widow, and employed A. R. Stainach, another surveyor, to make a map for that purpose. The sale was made by the executors on or about June 22, 1880, at public auction. It had been previously advertised by posting lithographed copies of the map made by Stainach, and such copies were also displayed and distributed at the sale. The map here given is a copy of this map, except that the premises now owned by the plaintiff are shown thereon. The plaintiff’s agent was present at this sale and purchased for her plots 16 and 17 on this map. All the rest of the property, except the homestead plot was sold to the defendant, Cumberson, and was afterwards conveyed to him by the executors by deed. This property so sold to Cumberson was thereafter placed by him in the hands of an agent for sale, with instructions to sell by the map, and through sales so made by said agent the plaintiff became the owner of the land on Qfcand street described in the complaint.

      Clarence L. WestcoM, for the appellant.

      Close <& Robinson, for the respondents.
   Barnard, P. J.:

This case is similar in principle to that of Taylor v. Hopper (62 N. Y., 649). In that case an owner of lands had made a map and filed it, in and by which a tract of land was laid out in lots. He sold by the streets and numbers indicated by the map. The streets were opened in part only. On one óf the paper streets the old frame barn and yard were situated, and the grantor refused to open the street through it. The court adjudged that the street be opened after a certain fixed time, and that judgment was affirmed in the Court of Appeals. In this ease, the map was made by one Martin e who owned the tract represented on it. Marti ne died, and in his will recognized the map lines as a boundary in a bequest to his wife. By the will, the executors had full power of sale given in respect to testator’s lands. The executors made a public auction of the lands according to the map filed, and this called for Grand street to be an open street between what is called Railroad avenue and the New York Post road. That part of Grand street between what is termed “ an unnamed street ” on the map and the New York Post road had and has .never been opened. At the sale, the plaintiff bought two lots on one of the map streets, and subsequently purchased of the defendant Cumberson two other lots on Grand street. Cumberson bought of the executors of Martine. Both deeds were governed by the maps in the description of the land. By these purchases, the plaintiff was entitled to have the streets opened as laid down upon the map, not as public highways, for the road authorities of the town can alone make them such by acceptation, bnt as open streets and ways according to the terms of the purchase, and as a right incident to the purchase. The map binds the grantor to carry out the plan lie proposed and under which he sold. It is not to be determined as if lands were sold which had no access to a public highway, and when a way of necessity is to govern, but as a thing of covenant, and a covenant by means o'f which the grantor ifiduced purchasers to buy his lands. The executors who sold a#fe bound to carry out the scheme. They had power given them, and they sold by the testator’s maps, and there is no reason why they should not be bound in respect to the road as their testator would have been. The defendant Cumberson bought by the map and sold by the map, and he is bound by it. (Matter of Eleventh Avenue, 81 N. Y., 436.)

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

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

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


author: Barnard, B. J.:

text:
    ISAAC HAYS, Appellant, v. BERNARD MIDAS and LEWIS R. STEGMAN, Sheriff of Kings County, Respondents.

      Election of remedies — not conclusive, when made in ignorance of the parties’ rights.

    The plaintiff, having been induced by the false and fraudulent representations of the defendant to sell goods to him, commenced an action upon the contract of sale and procured therein an attachment against the goods which was issued to the sheriff. The goods were then held under fifteen other attachments issued before the plaintiff’s. Thereafter the plaintiff discontinued that action and commenced this action of replevin to recover the goods.'

      Held, that in the absence of evidence showing that the plaintiff had knowledge of the fraud at the time of commencing the action upon the contract, it was error to hold that the mere commencement of that action was a final adoption of the contract by the plaintiff and a waiver of the fraud.
    Appeal from a judgment in favor of the defendants, entered upon the direction of the court upon a question of law reserved for its consideration, after a verdict had been rendered at the Kings county circuit in favor of the plaintiff on the question of fraud.
    The action was in replevin to recover goods which the plaintiff had been induced to sell to the defendant by his false and fraudulent representations.

      Blumenstiel c& Ilirsoh, for the appellant.

      Horwitz & IJershJield, for the respondent Midas.

      James Troy, for the respondent Stegman.
   Barnard, B. J.:

Midas obtained goods through afalse and fraudulent purchase from the plaintiff. Hayes procured an attachment, upon the contract, against Midas and delivered the same to the sheriff of Kings county. There were fifteen attachments prior to the one procured by the plaintiff, and they all covered the goods which were procured by fraud from Hayes. Hayes discontinued his attachment suit, and commenced this action in replevin to recover the goods. The jury found the fraud, but the court held that the commencement of the attachment action was of itself a final adoption of the contract and waiver of the fraud. "We think that the commencement only of an action based upon the contract is, if it was good, not sufficient to conclude the plaintiff foi ever. The claim that the action was commenced with full knowledge of the fraud, is only upon the assumed fact that the plaintiff knew of the fraud inducing the sale when the action was commenced to recover the price. It may have been the fact, but it does not appear. It would be a better inference, that on being apprised of the fraud the plaintiff discontinued his action upon the contract and reclaimed the property. Assuming that the plaintiff, with knowledge of the fraud, commenced his action upon contract and subsequently discontinued it, there was no bar to this action. There are two cases in the Supreme Court which hold that there is no bar when an action is commenced and regularly discontinued upon the contract before the action is brought to reclaim the property, as if the title had not passed by reason of the fraud inducing the sale. (Johnson v. Frew, 33 Hun, 195; Equitable Foundry Co. v. Hersee, Id., 171.)

The plaintiff in the attachment action obtained nothing, or as the case states, the admission “obtained no property.” The case cited in the Court of Appeals contains in the opinion expressions such as “ the bringing of this action is conclusive against the party.” (Powers v. Benedict, 88 N. Y., 605; Moller v. Tuska, 87 id., 166.) But the cases show nothing authoritative upon the question presented by this - case. In Powers v. Benedict it was held that the bringing of an action to reclaim the goods was a bar, so far as the goods were taken under it. In Moller v. Tuska it was held that an action in replevin for the goods obtained by fraud was not barred by a subsequent application to the bankruptcy court for a dividend on the purchase-price of the goods. In Acer v. Hotchkiss (97 N. Y., 395) it was held that in that particular case there could be no action upon a contract induced by fraud, after the party had foreclosed the mortgage which was purchased by him under fraudulent representation. The facts in that case have no resemblance to those presented on this appeal. From an examination of the numerous cases cited, it seems that there must be a seizure of the goods to render an action upon the contract illegal, or a judgment must be obtained on the contract to bar the right to follow the goods as the property of the claimant, because there was no contract.

It would be impossible under the facts of the present case to hold this an absolute bar. It is conceded in the case that the action did not change the relation of the parties. The defendant, the sheriff, stands in no better position than his co-defendant. At best the question of election of remedies was one for the jury. The commencement of the action on contract is not proven to have been with full knowledge of the facts, and it may have been commenced by mistake in them, or by a failure of knowledge as to the legal rights of the plaintiff. The judgment which set aside the verdict of the jury should be reversed, and the plaintiff should have judgment upon the verdict, with costs.

Pratt, J., concurred.

Judgment setting aside verdict reversed and judgment directed for plaintiff upon verdict, with costs.


author: Dykman, J.: Barnard, P. J.

text:
    HENRY T. PRATT, Appellant, v. MOSES WERTHEIMER, and Others, Respondents.

      Conspiracy to defraud — when, notwithstanding the recovery of a judgment on the contract, an action will lie to recover damages resulting from, the fraud.

    The complaint alleged that the plaintiff was the assignee of a judgment recovered agaiust two of the defendants, for goods sold and delivered to them by the judgment creditor, upon which judgment an execution had been issued and returned unsatisfied. That prior to the purchase of the said goods the defendants entered into a conspiracy to defraud the plaintiff’s assignor, and to fraudulently obtain from him large quantities of goods and merchandise on credit, and before the expiration of the credit and before judgment oould be obtained therefor, to make a pretended assignment giving fictitious preferences, and then to dispose of the property so as to put it beyond the reach of the plaintiff’s assignor, and still to retain for themselves the custody and control of the property. It then alleged that all those fraudulent schemes and devices were carried into effect to the damage of the plaintiff's assignor, who had assigned the judgment together with any right of action he might have by reason of any fraud, collusion or conspiracy on the part of the defendants.

      Held, that it was error to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. (Barnard, P. J., dissenting.)
    Appeal from a judgment in favor of the defendants at the Suffolk county circuit, entered upon an order dismissing tbe complaint and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    In substance the complaint charges the defendants with having conspired to dispose of the property of Wertheimer & Iiershfield, for the purpose of cheating and defrauding- the creditors of the last two named defendants. The complaint is divided into a number of causes of action, each being substantially like the other. The first cause of action - alleges that the defendants Wertheimer & Hershfield were copartners in trade. That on September 20, 1883, Louis Blun (plaintiff’s assignor) sold them goods. That Louis Blun obtained judgment against Wertheimer & Hershfield in July, 1884, for the price of the goods so purchased by them from him. That execution was issued under said judgment and returned wholly unsatisfied.
    That previous to any of the times herein stated the defendants in this action formed and entered into a plan, or scheme, or conspiracy, to hinder, delay and defraud the said Louis Blun, and the plaintiff’s other assignors mentioned herein, and other parties, the creditors of said Wertheimer & Hershfield, and also fraudulently to obtain from said Louis Blun, and the plaintiff’s other assignors, and other parties, large amounts of goods and merchandise, on credit, and before the exjfiration of said credit and before the said Louis Blun, or any of the others of plaintiff’s assignors, or any other parties could obtain judgments for the prices of the goods so sold, said Wertheimer & Hershfield were to make a pretended assignment, giving fictitious preferences, and then to dispose of the goods and merchandise so to be obtained from said Louis Blun, and plaintiff’s other assignors, and other parties, so as to put them beyond the reach of said Louis Blun, and plaintiff’s other assignors, and other parties, and still retain the control and custody of the same themselves, free from interference by said Louis Blun, or any of plaintiff’s other assignors, or other creditors o.f said Moses Wertheimer and Henry Henry Hershfield.
    The complaint then alleges facts showing that the said con spiracy had been carried out by the defendants, and that by reason of the premises, and of the said wrongful acts of the defendants, and their wicked and malicious conspiracy as aforesaid, the said Louis Blun has been damaged in the said sum of $245.46.
    That on or about the 20th day of October, 1884, said Louis Blun, by an instrument in writing, duly assigned, transferred and set over unto the plaintiff, Henry T. Platt, the said judgment, together with any right of action he might have had against said Wertheimer & Hershfield, or any other party or parties, by reason of any fraud in contracting the debt on which said judgment was obtained, or fraud, collusion or conspiracy in disposing of the goods, the purchase-price of which is the consideration of said judgment, or any other goods, or for any other cause or causes, and also all debts, dues, demands and causes of action of whatsoever nature or kind, which said Louis Blun may have had or had against said Wertheimer & Hershfield, or against Fanny J. Wertheimer, William E. Eose and Joel B. Goodman, or against any or all of said parties Other causes of action for similar frauds committed on other persons, who had assigned them to the plaintiff, were then set out.

      Thomas J. Pitch, for the appellant.

      Gibson Putzel, P. L. Walter and Eustace Gonway, for the respondents.
   Dykman, J.:

This is a civil action for damages resulting to the assignors of the plaintiff from a fraudulent conspiracy to cheat and defraud them by the fraudulent purchase of their goods.

When the cause came to trial at the circuit the complaint was dismissed and judgment was directed for the defendants on the pleadings. That disposition of the case assumed the truth of all the allegations in the complaint, and we are to determine whether they set up a cause of action. It is declared in the complaint that the defendants formed and entered into a conspiracy to defraud the assignors of the plaintiff and fraudulently to obtain from them large quantities of goods and merchandise on credit, and before the expiration of the credit and before judgments could be obtained therefor, to make a pretended assignment, giving fictitious preferences, and then dispose of the property so as to put the same beyond the reach of tiie plaintiff’s assignors and still retains the control and custody of the same themselves. Then follows appropriate allegations that all these fraudulent schemes and devices were carried into execution to the damage of the assignors of the plaintiff and that the cause of action has been assigned to him. So the complaint charges a combination to defraud the original parties, resulting in their actual damage and the civil action for a conspiracy was devised for such and similar cases. Without that remedy the silent partners m a scheme of fraud might reap the fruits of their evil devices and fraudulent schemes and escape without payment. The authorities in our State concur to uphold such a complaint, and within them it contains a cause of action against the defendants. (Moore v. Tracy, 7 Wend., 229; Place v. Minster, 65 N. Y., 90.)

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

Pratt, J"., concurred.

Barnard, P. J.

(dissenting):

When Blun, who sold the goods to Wertheimer & Hershfield, brought his action against them upon contract and recovered a judgment upon contract, he adopted the sale finally as against Wertheimer ,& Hershfield. He could before that rescind the sale for fraud .and take the goods, or he could arrest, by order, for the fraud in the .sale. As to these two defendants there is no case, even if there was a fraudulent intent not to pay for the goods. An assignment of the judgment to the plaintiff carried with it nothing but the judgment. The claims against Rose, Mrs. Wertheimer and J. B. Goodman for ■damages for a conspiracy with the other defendants to present fictitious debts, and thus get the property acquired by the Blun sale is not assignable either as incident to the judgment or independent of it. The judgment cannot be added to and by the introduction of new parties retried or reconsidered in any way.

The judgment should be affirmed, with costs.

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


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    ANDREW KINDBERG, Respondent, v. SAMUEL T. FREEMAN, Appellant, Impleaded with Others.

      Notice of pendency of action — a party whose deed was delivered before, but is recorded after, the filing thereof is bound by the judgment — Code of Civil Procedure, sea. 1671.
    In this action, brought to foreclose a mortgage dated March 23, 1881, the summons was served May 11,1885, and the complaint with a notice of the pendency ■ of the action was filed on May 5, 1885. The defendant, the mórtgagor, while : admitting the making of the mortgage, alleged that he had conveyed the premises in May, 1882, by deed to other persons who 'should be made parties .defendant. -s

      Held, that- as it appeared that the deed was not recorded until after the filing of the notice of pendency of action, viz., on July 15,1885, the grantees need not be made parties to the action as, though not parties, they would be bound by the judgment entered therein.
    Appeal from a judgment in favor of tlie plaintiff, entered in an action brought in Kings county for the foreclosure of a mortgage.

      Robert Murray, for the appellant,

      Albert Smith, for the respondent.
   Dykman, J.:

This is an action to foreclose a mortgage on real property. Samuel T. Freeman the mortgagor appeare'd in the action and answered the complaint, and without denying any of the material allegations therein alleged that after the making of the mortgage and before the commencement of this action he conveyed the mortgaged premises to two persons named in the answer by deed under his hand and seal dated May 1, 1882, and since then recorded in Kings county, and that the grantees are the owners of the premises and the equity of redemption therein and should be parties defendant herein.

The mortgage in suit was dated March 22, 1881, and the complaint and notice of pendency of action were filed on the 5th day of May, 1885, and the summons and complaint were served May 11, 1885, so that the title to the premises had passed from the mortgagor and vested in his grantees three years before the commencement of this action, but the conveyance from the mortgagor was not recoi’ded until the 15th day of July, 1885, more than two months after the filing of the notice of pendency of action in this suit. A motion vras made by the plaintiff for judgment notwithstanding the answer which was granted, and the defendant, Samuel T. Freeman, has appealed therefrom and also from the judgment. Section 1671 of the Code of Civil Procedure provides that a person whose conveyance or incumbrance is executed or recorded subsequently to the time of filing the notice of pendency of action in an action where the same may be filed, is bound by all the proceedings taken in the action after the filing of the notice to the same extent as if he was a party to the action.

In this case the conveyance of the mortgagor was recorded two months after the notice of pendency of action was filed. The grantees were purchasers from the mortgagor who is a defendant and they fall directly within the provisions of the section. If they were parties to the action they would be bound by all the proceedings taken therein, and by the statute referred to they are bound to the same extent.

The case of Hall v. Nelson (23 Barb., 88) is relied on by the appellant, but since that decision the statute has been amended so ,as to comprehend within its operations a case like this, where the conveyance from the party, although taken previous to the filing of the notice of pendency of action, was recorded subsequently.

The filing of the notice of pendency of action was therefore constructive notice to the owner of the equity of redemption, because their conveyance was recorded subsequent to the time of such filing, and they are bound by all the proceedings taken in the action thereafter to the same extent as if they were parties to the action. They were not therefore necessary parties, and the judgment was properly granted.

The order should be affirmed, with ten dollars costs and disbursements, and the judgment should be affirmed, with costs.

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

Order directing judgment and 'judgment thereon affirmed, with costs.


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    THE FIRST NATIONAL BANK OF SING SING, Respondent, v. THOMAS H. CHALMERS and GEORGE W. MURRAY, Appellants. JAMES L. WHEELER and JOHN F. MILLER, Respondents, v. SAME, Appellants.

      Consideration — an agreement to assume the liabilities of another cannot be enforced by the creditor unless supported by a consideration.

    •In the fall of 1882, Spruce & Leary, manufacturers of files in Sing Sing, were financially embarrassed, their principal creditors being the defendants CbalmeTs & Murray, whose indebtedness was secured by mortgages covering all "the debtors’ property, both real and personal.

      On November 1,1882, a judgment in favor of Chalmers & Murray for $13,798.74 was entered by confession against Spruce & Leary; $11,463.13 of that amount being for money due and to become due to the judgment creditor, and $3,835.02 for liabilities of the debtors to others persons which were severally specified in the statement as “ liabilities assumed.” After an execution had been issued on this judgment, under which a levy had been made upon certain articles of personal property, the judgment was set aside on the motion of a junior judgment creditor.
    The mortgages upon the real and personal property of the debtors were subsequently foreclosed by Chalmers & Murray and all the property was sold to them. They received no property at the time of the confession of the judgment, nor did they receive any property or anything under the judgment or by virtue of it.

      Held, that there was no consideration for an assumption by the defendants of the liabilities specified in the confession of judgment, and that the holders and owners thereof could not maintain actions against the defendants to recover the amount thereof.
    Appeal from judgments, entered upon tbe trial of these actions by the court without a jury.
    The actions were brought by the plaintiffs, who were creditors of the firm of Spruce & Leary, to recover the amount of their respeck ive claims from the defendants who were alleged to have assumed to pay the same by the terms of a judgment, entered in their favor upon the confession of the said firm of Spruce & Leary.

      C. Frost, for the appellants.

      Francis Larkin, for First National Bank of Sing Sing, respondent.

      Smith Lent, for Wheeler & Miller, respondents.
   Dykman, J.:

Spruce & Leary were file-makers in Sing Sing, and were copartners in that business. In the fall of the year 1882 they found themselves in financial embarrassment, with the defendants Chalmers & Murray as their creditors to whom they owed the largest amount. All their goods had been sold to the defendants as they were manufactured, at stipulated prices, and they received credit for them in their account. Beyond paying for such manufactured goods, the defendants gave notes to Spruce & Leary to assist them in conducting their business until their indebtedness amounted to a large sum, which was all secured by mortgages to the defendants on all their real and personal property. Spruce & Leary were also indebted to the bank of Sing Sing and Wheeler & Miller, the plaintiffs in these two actions.

On the twenty-ninth day of October, 1882, the defendant Chalmers and Mr. Leary met in consultation and the situation was discussed between them, and Leary manifested a disposition to do whatever was suggested by Chalmers, but desired the claims of the bank and Wheeler & Miller to be secured. No definite plan was arranged, and nothing was then said about a confession of judgment. On the morning of the succeeding day, Chalmers again went to Sing Sing with a lawyer, and then a confession of judgment from Spruce & Leai-y to the defendants was drawn and executed. It was for $13,798.74 in all, $11,463.12 of the amount being for money due and to become due to Chalmers & Murray, and $2,335.62 for liabilities specified and put down in the statement as liabilities assumed, and they were assumed by Chalmers & Murray in no other manner. Judgment was entered on this statement November 1, 1882, and an execution was issued thereon and delivered to the sheriff December 23, 1832, who made a levy under it on ten grindstones December 27, 1882. That judgment was set aside on motion of a junior judgment creditor of Spruce & Leary, December 2, 1883, and the execution withered and died in the sheriff’s hands. There was no sale under it and nothing was made or realized from the judgment in any way.

After the confession of judgment the property .remained as before. Spruce continued the business and finished the goods then in process of manufacture, and sent them to Chalmers & Murray, who received them and gave credit for them to Spruce & Leary in their account the same as they had previously done. After all the goods then in- process were finished, Ghalmers & Murray furnished material, hired the factory and employed Spruce and continued the business until May, 1883.

All the personal property on the premises was covered by the chattel mortgage to Chalmers & Murray, and in May, 1883, they foreclosed the same and the property was all sold, and they became the purchasers at the public sale. Subsequently the mortgages on the real property were foreclosed and the property was sold, and they became the purchasers.

It appears that seven or eight grindstones were sold under the execution issued on the junior judgment already mentioned, and Chalmers & Muiray became the purchasers.

So it is shown affirmatively and conclusively that all the property of Spruce & Leary which ever came to the hands of Chalmers & Murray, aside from the merchandise sold and delivered to them, and paid for by them, came to them as purchasers at the foreclosure sales and the sale of the grindstones under the execution.

At the time of the confession of judgment they received no property, and they never did receive any property or anything under the judgment, or by virtue of it or on account of it, in any sense or in any manner.

In the statement or confession on which the judgment was entered in favor of Chalmers & Murray, under the head of liabilities assumed, comes these words: t£ Money due by Charles Spruce iib Co. to Fifth National Bank of Sing Sing on overdrawn account, $1,556.47 ; money due Wheeler & Miller for coal to date, $391.47 and these two actions are now brought by those parties against Chalmers cfe Murray for the recovery of the amounts due them respectively. The causes were tried before a judge without a jury, and judgment was awarded to the plaintiffs, from which the defendants have appealed.

The cases are considered together here, for the same testimony and the same state of facts substantially obtain in both. It should be stated further that the defendants have in no way received sufficient to pay them their claims against Spruce & Leary.

Those actions were instituted and prosecuted on the theory that the confession of judgment was itself a sufficient consideration- for the assumption of the claims of these plaintiffs by the defendants, and the counsel for the respondents in both cases stand boldly and defiantly on that ground on this appeal. In the first place it is to-be noticed that there is no evidence of a promise or agreement by Chalmers who conducted the negotiations to pay these claims previous to the execution of the confession. Leary who was placed in-examination by the plaintiff, and who was the only person who could speak on the subject besides Chalmers, fails to testify to such-agreement before the interview with Noxen, which was subsequent to the confession.

In the Bank case the trial judge found that the promise to pay was made on the same day of the confession, and that has some support in the proof of the interview with Noxen, and in the other ease it was found that such promise was made previous to the execution of the confession. These two dissimilar findings are based alone on the testimony of Leary, and that furnishes no support at all for the latter which is against the uncontradicted testimony of Chalmers. But the fact itself has no control of the ease and is quite immaterial. Both claims were assumed by their insertion in the statement and in no other manner, and if that rendered their payment obligatory upon the defendants these actions may be maintained, otherwise they cannot.

In the Bank case it was-found by the trial judge that the confession of judgment was made upon the promise of the defendant to assume the liabilities set forth in the statement. If by that is meant more than an assumption by their insertion in the statement it is without support in the proof. Let us now-inquire what, if any, liability was imposed upon the defendants by the insertion of these two claims in the statement for judgment as “ liabilities assumed.”

Again, in the case of the bank, but not in the other case, the trial judge has found that by the confession of judgment the defendants acquired title to a large amount of property belonging to Spruce & Leary, upon which the defendants had no lien, and appropriated the proceeds thereof to their own use; but we have already seen that the uneontradieted testimony, most of which was documentary, proved beyond controversy or doubt that the mortgages held by the defendants covered all the property of Spruce & Leary. The defendants, therefore, had a lien on all the property. Besides, the defendants obtained nothing by the confession of judgment in any way. They foreclosed their mortgage and bought in the property and bought in the grindstones at the sale under the junior judgment. They received nothing from Spruce & Leary. They neither obtained possession nor obtained title to any property from Spruce & Leary for which they were under obligation to pay them, or in any manner which create'd the relation of debtor and creditor between them. They never owed Spruce & Leary any money for anything. Of course, the purchase of manufactured goods is excluded from this view; what is intended is that ¡the defendants neither at the time of the execution of the confession of judgment, nor at any subsequent time, received property from Spruce & Leary for which, they were bound to pay as between them. All they ever obtained or made from the property of Spruce & Leary was received in payment of their claim against that firm. But it is the theory of the counsel for the plaintiffs that the confession of judgment alone was a sufficient consideration, because that was property which the defendants received .for their assumption of these claims therein. In support of this position they invoke the authority of Judson v. Gray (17 How., 390), where the defendant, who was the attorney for a party to a suit, requested his client to give him a promissory note for the amount of the fees due the plaintiff as referee in the case, with a promise that he would there- ' upon pay the plaintiff his fees, and the note was given accordingly. The court very properly allowed a recovery, but no new doctrine was announced, as we can see by the language of the opinion : “ The agreement in question having been made for the benefit of the plaintiff on a sufficient consideration, and having been adopted by him he can maintain this action against the defendant upon such agreement. It is not necessary that the money should actually come into the defendant’s hands to render him liable. Any property which he may receive is a good consideration for his agreement to pay.” * * * The note of Absolom Calkins was a valid security in the hands of the defendant, and a good and sufficient consideration for his promise to pay Calkins’ debt to the plaintiff.”

The case is in alignment with its class and goes in full harmony with Barker v. Bucklin (2 Denio, 45); Cleveland v. Farley (4 Cow., 432, and 9 id., 639); Lawrence v. Fox (20 N. Y., 269), and Burr v. Beers (24 id., 178). In all these cases something of value was received by the promisee imposing a liability upon him arising from a new and distinct consideration, which he undertook to discharge in accordance with his new promise, so that the new agreement was for the payment of his own debt on the discharge of his own obligation, which by an arrangement with his promisee he agreed to pay to 'the creditor of the latter. But in this case the defendants received nothing from Spruce & Leary creating any obligation which they were bound to discharge. No property or thing of value came to their hands for which they could be so required to account. They owed nothing which they could promise to pay, for they acquired nothing, and certainly an indebtedness or obligation to Spruce & Leary was a condition precedent to any liability to their creditors, otherwise their assumption of the debt would be a mere agreement to advance and not within any adjudicated case.

The judgment taken by the defendants was, at most, but a security to be enforced as a lien, and is therefore like the mortgage in.the case of Garnsey v. Rogers (47 N. Y., 233). In that case there was a stipulation in the mortgage whereby the mortgagee assumed and agreed to pay a prior' mortgage on the premises, and it was held that the stipulation imposed upon the mortgagee no personal liability for the prior mortgage debt which could be enforced against him by the prior incumbrancer.

The reasoning of the opinion in that case is entirely applicable ' here: “ 'Where he (the promisor) takes only a mortgage he owes no money for this land which he can promise to pay to the prior mortgagee, for he does not acquire title to the land. To become a debtor to any one he must owe a debt.” Again, it is said: “But in the case of a party having the land merely as security, such an undertaking is simply a promise to advance money to pay the debt of his grantor or mortgagor.” “If such a contract could be enforced by the creditor who would be incidentally benefited by its performance, every agreement by which one parly should agree with another for a consideration, moving from him to become security for him to his creditors to advance money to pay his debts, could be enforced by the parties whose claims were thus to be secured or paid. I do not understand any case to have gone this length.”

This is an authority decidedly antagonistic to the contention of the counsel for the plaintiff, and the case of Demming v. Leavitt (85 N. Y., 30) is like unto it, for it was there held that a person for whose benefit a promise is made cannot, within the case of Lawrence v. Fox, maintain an action to enforce the promise when the promise is void as between the promisor and promisee because of want or failure of consideration or fraud, and this is in the opinion : “ But I know of no authority to support the proposition that a person not a party to the promise, but for whose benefit the promise is made, can maintain an action to enforce the promise where the promise is void, as between the promisor and promisee, for fraud or want of consideration or failure of consideration.”

It was also fully asserted in that case that it would be contrary to justice and good sense to permit a party who comes in under “ the privity of substitution,” asserting a derivative right to acquire a better right against the promisor than the promisee himself had, and that is exactly what the plaintiffs in this case will do if they can maintain these actions, for it is entirely clear that Spruce & Leary acquired no rights against the defendants b.y the confession of judgment, and so the plaintiffs can derive no rights from them, for they had none to bestow. Plainly the elements essential to a recovery against these defendants are not present. They are not debtors of the plaintiffs, and Spruce & Leary are, and if they now-pay these claims they have no recourse against the defendants for no demands exist in their favor.

In the beaten way of justice there is no reason why these defendants should pay these claims. On the contrary, it would be inequitable and unjust to oblige them to do so. Neither the plaintiffs nor Spruce & Leary have parted with anything or surrendered any right. The liabilities were against Spruce & Leary, and no duty rested on the defendant for their payment. The effect of the order setting aside and vacating the judgment is not determined, because our examination shows that at its best it conferred no rights on the plaintiffs and imposed no liability on the defendants. These views are not antagonistic to the opinion, of this court, delivered when the case was here before. Then it was held that if the agreement was that the debtors’ property should be transferred to the defendants, and they in consideration thereof received the property, and it was worth enough to pay all the claims secured by the judgment, then there might be a recovery, and we now refuse a recovery because no such facts are established and the contrary state of facts is clearly shown.

In no view can these actions be maintained, and the judgments in both cases should be reversed and a new trial granted, with costs to abide the event.

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

Judgment in each ease the same, viz.: Judgment reversed on questions of both law and fact, and new trial granted, costs to abide event.