author: Gray, J.

text:
    In the Matter of the General Assignment of William G. Hevenor for the Benefit of His Creditors to Hudson Ansley.

      (Court of Appeals,

      Mled January 15, 1895.)

    L Assignment for creditors—Contingent liability.
    A provision in an assignment for the benefit of creditors, directing the application of the assets to the payment by the assignee of all the assign- or’s debts and liabilities now due or to grow due, does not include a contingent liability, the amount of which, if it ever arises, can only thereafter be definitely fixed and ascertained.
    2. Same—Lease.
    Where a lease provides that, if the demised premises become vacant during the term because of non-payment of rent or otherwise, the lessors may re-enter or re-let as agents of the lessee and apply the avails to the payment of the rent due, they, by re-entering and re-letting the premises, put an end to the fixed obligation of the lessee, and the only obligation thereafter existing is for a possible deficiency.
    3. Same.
    Such liability, if it did not exist at the time of the assignment, is not covered thereby.
    Appeal from order of the general term of the supreme court in the fifth judicial department, which affirmed an order of the county court of Erie county confirming the report of a referee disallowing a claim rejected by the assignee.
    On July 18th, 1891, Hevenor made a general assignment for the benefit of his creditors. The deed of assignment contained the provision, that, after the payment of the expenses of executing the assignment and of certain debts, the assignee should apply the residue of the estate to the payment of all the debts and liabilities of the assignor, then due or to grow due. Prior to the making of the assignment, and on April 18th, 1891, the assignor had leased certain premises in the city of Buffalo, for the term of five years from May 1st, 1891, at the annual rental of $7,200, payable monthly, in advance. The rent accruing under the lease, while the assignor was in possession, was paid. After the assignment the assignee occupied the premises for a while, and paid rent therefor at the rate reserved in the lease. When the assignee vacated the premises, the lessors relet them to different persons, by virtue of a provision in the lease, to the effect that if the premises became vacant during the term, because of non-payment of rent or otherwise, the lessors might re-enter, or might re-let ■them as the agents of the lessee, and apply the avails thereof to the payment of the rent due under the lease. On November 1st, 1892, the lessors had received $5,136.50 less than the amount of rent payable by the terms of the lease. ■ For that sum the lessors filed with the .assignee a claim, and also a claim for the rent to accrue from November 1st, 1892, to the expiration of the lease, at the rate reserved in the lease. These claims the assignee rejected ; and, pursuant to a stipulation, the claim and the rejection thereof were referred to a referee, whose report against the claimants was ■ confirmed. Upon appeal, the order rejecting the claims was affirmed, and the claimants have appealed to this court.

      Spencer Clinton, for app’lts; B. Frank Bake, for resp’t.

       Affirming, 53 St. Rep. 553.

   Gray, J.

By the provisions of the lease it was open to these appellants, the lessors, to elect to allow the premises to remain vacant, in which case they would have had a valid and certain claim against the assigned estate for the rent as reserved in the lease; or they could take the other course and, as the agents of the lessee, re-let the premises and apply the avails in reduction of the rent reserved in the lease. The effect of exercising the latter option was to terminate the agreement to pay the monthly rent and, thereafter, to leave the matter of any liability of the lessee to them contingent upon the success which the lessors might meet with, in re-letting the premises; a liability which, if it arose, could only be finally and definitely ascertained at the expiration of the demised term ; while it might not arise at all.

Under such circumstances, what claim these appellants could have against the assignor, or his assigned estate, must be uncertain and contingent. It could not be regarded as one of the debts, or liabilities, contemplated to be paid, under the deed of assignment. That instrument is to be followed strictly by the assignee in bis disposition of the property. It is his guide, and furnishes the measure of his duty. Citizens' Bank v. Williams, 128 N. Y. 77; 38 St. Rep. 834; Matter of Lewis, 81 N. Y. 421. It is not contended by the appellants that the deed of-assignment is void, for intending to secure debts not in existence; but they argue that the provision for the payment of the assignor’s “ debts and liabilities, now due or to grow due,” can be made to cover a case like this, where, as they say, the liability of the assignor was not changed under the lease, nor his indebtedness, except that it was reduced in amount They infer from the use of the word “ liabilities,” in the clause in question, that the assignor intended that his assignee should pay all liabilities which might grow due, without regard to the question of when, or how they arose, provided they were possibilities under his contractual relations with others. This contention naturally assumes that the word “liabilities,” as used in the assignment, imports an element, which makes the assignment more elastic in its comprehension of the obligations to be included therein. We think that the general term was_ right, in holding that the words “ debts ” and “ liabilities ” were synonymously used, and that the assignor could not have intended that liabilities, thereafter to be created by the acts of the lessors in the lease, should be paid by bis assignee.

The appellants, in their argument, lose sight of the fact, that by their acts in re-entering the premises and re-letting them as the agents of the assignor, which they were permitted to do under the lease they put an end to his fixed obligation under the lease, and left it for the future to determine whether they would have any claim against him. His liability was changed and thereafter could only be for a possible deficiency. The liability which they now assert the assignor to be under, did not, and could not, exist as of the time when the assignment was made ; but arose subsequently thereto. Such after-accruing debts, or liabilities, could not be intended to be secured by an assignment, and if an assignor so declared, in the deed of assignment, it would be void. Brainerd v. Dunning, 30 N. Y. 211. No inference can be drawn from this deed of assignment, which contradicts the rules of law, and the liabilities, which the assignee was required to pay, were only those which could be ascertained, or fixed at the time when the assignment was made; although the liability might not mature into an actual debt until the lapse of some time after the making of the assignment. Every liability is a debt; but the use of the words in connection may be explanatory.

The question was well decided at the general term, and the order appealed from should be affirmed, with costs.

All concur, except Haight, J., not sitting.

Order affirmed.


source: Caselaw Access Project

author: Andrews, Ch. J.

license: Public Domain

text:
    In the Matter of the Claim of William Lang, as Executor, etc., Resp’t, v. The Estate of Eliza Stringer, Deceased, App’lt.

      {Court of Appeals,

      Filed January 15, 1895.)

    Executors, etc .—Accounting—Overpayment.
    The surrogate’s court has, upon the judicial settlement of the accounts of an executor, no jurisdiction to compel a legatee, to whom an overpayment has been made hy the executor, to restore to the estate tije amount of the overpayment, hut the executor must resort to his action to re-coyer it.
    Appeal from order of the general term of the supreme court in the second judicial department, which reversed in part a decree of the surrogate of Westchester county upon an accounting of William Lang, as executor of the last will and testament of Eliza Stringer, deceased.
    William Lang and Cecilia A. Howell were named as the executors of the will of Eliza Stringer, deceased, and duly qualified as such on the 20th day of July, 1888. The testatrix died seized of a house and lot and personal property inventoried at $6,512.56, but of the value, as found by the surrogate, of $6,092.51 By her will she gave to William Lang, as executor, certain articles of personal property and the use of the house and lot for five years on condition of his paying the taxes thereon, and a few small legacies to other parties. The remainder of the property she gave to Cecilia A. Howell, and following this gift is this clause: “At her death the property to be divided equally between her three daughters,” naming them. The personal property of the testatrix consisted principally of money in savings banks. Although both executors qualified, the respondent Lang had the sole management of the estate. In September, 1889, he applied to the surrogate for a judicial settlement of his accounts as executor. In his petition he set forth the names of the legatees, heirs at law and next of kin of the decedent, naming, among others, Cecilia A. Howell, the executrix. The surrogate issued a citation directed to all persons named, which was duly served, and on the return day of the citation, September 23, 1889, the executor Lang presented and filed his verified account, which set forth that he had had the sole management of the estate; that he had paid all the legacies to the legatees, “ including bank books to Cecilia A. Howell, legatee,” and in the schedules annexed to the account it was stated “that there was no debts except the money due from the savings banks, stated in the inventory, which were delivered to the legatee Cecilia A. Howell by me,” and that “ all the articles mentioned in the inventory were delivered to the legatees, among which were the bank books.” The executor also having set forth in his account that he had a claim against the estate for taxes paid during the lifetime of the testatrix, at her request, to the amount of $218.45, and for board and services furnished to and rendered by him for her from March 10, 1884, to' July 1,1888, of the value of $3,288, this claim was contested on the hearing before the surrogate and was disallowed. The general term reversed the decision of the surrogate on this point and remitted the case for a rehearing. The surrogate, on the re-hearing, allowed the claim to the extent of $1,241, with interest from September 23, 1889, also the sum of $421.50, the costs, fees and disbursements on the accounting, and $93.75 commissions, to be paid out of any assets remaining in his hands as executor or which might thereafter be received by him. It appeared that there were no assets remaining in the hands of Lang as executor. The surrogate found that he delivered to Cecilia A. Howell, legatee under the will, bank books representing in value $6,092.51, but he held that he had no power to compel her to pay over to him any part of said sum for the purpose of satisfying his claims against the estate established by the decree. The general term, on appeal from this second decree, reversed this decree so far as it held that the executor William Lang had paid to Cecilia A. Howelll, as legatee, the sum above stated and the finding that the surrogate had no power to compel her to pay to him the amount required to satisfy his claims against the estate.

      'William P. Fiero, for app’lt; Arthur T. Hoffman, for resp’t.

       Reversing 51 St. Rep. 631.

   Andrews, Ch. J.

The case In re Underhill, 117 N. Y. 471; 27 St. Rep. 720, is a controlling authority upon the point involved in this appeal. It was there held that on the judicial settlement of the accounts of an executor the surrogate’s court has no jurisdiction to compel a legatee to whom an overpayment had been made by the executor to restore to the estate the amount of the overpayment, but that the executor must resort to his action to recover it. The decision was reached on a consideration of the scope of the proceeding for an accounting under the statute, the limited jurisdiction of surrogates’ courts, and upon other considerations set forth at length in the opinion of the court. It was said that in contemplation of law all assets of the estate with which the executor is chargeable are presumed to be in his possession, except so far as they are shown tp have been lawfully paid out or distributed, and that the question whether there had been an overpayment to a legatee was a matter personally between the executor and legatee to whom the overpayment had been made. It was pointed out that in ascertaining the amount of the distributive shares and the persons entitled to payments under the decree, the fact and the extent of the overpayment might become a material inquiry on the accounting, and that the decree of the surrogate in respect thereto might be binding oh the legatee to whom an overpayment had been made, and who had been brought into the accounting, as res adjudicate in another proceeding to recover it. But the court held that no-affirmative relief to compel repayment could be granted by the surrogate. There are two points of distinction between that case and this upon which the respondent relies. The legatee Cecilia A. Howell was co-executor with Lang, as well as legatee under the will. It is claimed,’ therefore, that she held the fund paid to her in her character as executrix to the extent necessary to satisfy any claims against the estate. But this claim ignores the admitted fact that Lang took the sole management and possession of the-estate, and that he transferred the fund to his co-executor, not inker character as such, but exclusively in her right as residuary legatee under the will. He did this not only before any accounting, but before he had made or established any personal claim against the estate. So far as appears, this claim was first made-after he had voluntarily put out of his hands the means of payment. It is also urged that the case differs from In re Underhill, in the fact that there the claim was by the executor against the legatee, while here the executor sought to recover assets to satisfy a debt due from the estate. We do not perceive that the alleged-distinction creates any difference in principle between the two cases. The respondent, on the re-hearing before the surrogate, established his claim in part, and it was adjudged that it was payable out of any assets of the estate in the hands of the executor, or which might come to his hands. It appeared that he had distributed the fund applicable to its payment. Yery likely, in a proper proceeding, the legatee Cecilia A. Howell could be compelled to restore it pro tarda to the executor as a payment made by mistake, and when recovered by him in that character, he would be authorized to pay his personal claim thereout. But the accounting was by Lang as executor. He had unadvisedly stripped himself of the means of paying his claim as creditor. Obviously, if the surrogate, in the case of Underhill, had no jurisdiction to compel a restitution, he had none in this case. Lang cannot be-heard to say that the fund was not paid to his co-executor in her character as legatee contrary to his averments in his petition, or to-insist that any accountability which she may be under was, as between him and her, based upon any other relation than that of debtor and creditor. We should be inclined to sustain the decision of the general term if we could consistently with our former decision. But as was said in that case, if it is desirable that the surrogate should have- a broader jurisdiction, which would include a case like this, it must be conferred by the legislature.

The order of the general term should be reversed and the decree of the surrogate affirmed, with costs to the appellant in all courts.

All concur, except Haight, J., not sitting.

Ordered accordingly.


text:
    Jenette Nelson, App’lt, v. Roswell Eaton Brown, Impleaded, etc., Resp't.

      {Court of Appeals,

      Filed January 15, 1895.)

    1. Dower—Mortgage.
    A person, claiming dower by title paramount to a mortgage, cannot be brought into court in an action to foreclose such mortgage, in order to contest the validity of her dower.
    2. Same—Election.
    A devise to the wife of the use and income of real estate during life, to be “ enjoyed, accepted and received by her in lieu of dower, and in addition to what she would have as doweress, if this devise was not made to her,” is in lieu of dower, and the" devisee, having accepted the provision, is not entitled to dower.
    3. Former adjudication—Parties.
    The record of a judgment, in order to conclude either, must be conclusive upon both of the parties litigant.
    Appeal from judgment of the general term of the supreme court in the fourth judicial department, entered upon an order, which reversed an interlocutory judgment in favor of plaintiff entered upon a decision of the court on trial at special term, and also reversed a final judgment in favor of plaintiff entered upon an order of special term confirming the report of a referee and granted a new trial.
    The plaintiff brought this action as the widow of John Nelson, deceased, tó recover dower in certain lands of which her husband died seized. The action was defended on the ground that Nelson left a will, in which he made a provision for his wife in lieu of dower, which she had accepted. The will was made in 1875, and contained the following as its second provision : “I hereby devise and bequeath unto my beloved wife, Jenette Nelson, the use, income, profits, rents and profits of all my real estate during her natural life to be enjoyed, accepted and received by her in lieu of dower and in addition to what interest she would have as doweress if this devise was not so made to her.” In 1884, Nelson executed a mortgage upon one of his farms to secure the payment of the sum of $10,000. The plaintiff, who was then his wife, did not join in the mortgage. Nelson died in March, 1889, and, in the year following, Letitia Howard, an assignee of the mortgage, commenced an action for its foreclosure. This plaintiff was made one of the parties defendant to that action; but the complaint therein made no allegation respecting her dower right or other reference to her rights, except as contained in a general allegation that the defendants “ have, or claim to have some interest in, or lien upon the said mortgaged premises, or some part there, ff, which interest, or lien, if any, has accrued subsequently to the lien of the said mortgage.” Mrs. Nielson was served with the summons and complaint, but did not appear or answer. The foreclosure action went to trial upon issues, raised on the part of other defendants, relating to the execution of the mortgage, to the mental capacity of the mortgagor and to the consideration for the mortgage. [Notwithstanding the absence of any issue as to Mrs. [Nelson’s rights, the judgment in foreclosure provided that the premises should be sold, “subject to the dower therein of the defendant, Jenette Nelson ; ” following in that respect a finding of fact and conclusion of law to that effect. At the sale under the judgment in foreclosure, the premises were purchased by the plaintiff in the action, Letitia Howard. Subsequently she conveyed them to the present defendant and respondent, Brown.
    It was admitted, at the trial of this action, by the plaintiff, Mrs. Nelson, that she took possession of all the testator’s real estate after his death, under the provisions of his will, and has ever since remained in the use of it, except as to the premises in question.
    At the special term it was held that the plaintiff's right to dower was adjudicated in the foreclosure action, and the sale made subject thereto; and that, therefore, the defendant, Brown, was not in a position to deny that right. The court, also, held that, by virtue of the testamentary provision above mentioned, the plaintiff was entitled to her dower in addition to a life estate in the testator’s property.
    Upon appeal to the general term the judgment which the plaintiff had recovered at the special term was reversed, upon both grounds, and a new trial was ordered.

      Charles J. Palmer, for app’lt; S. W. Petrie, for resp’t.

       Affirming 49 St. Rep. 562.

   Gray, J.

We think the general term held correctly upon the two propositions, for which this appellant contends. The proceedings in the foreclosure action were ineffectual to determine the question of the plaintiff’s right to dower in the mortgaged lands. By failing to join with her husband in the execution of the mortgage, her inchoate dower right remained unaffected and superior to the mortgage. When after her husband’s death, the action of foreclosure was brought, though she was made a party defendant,- the complaint tendered no issue upon her right to dower. The general allegation to the effect that the defendant bad, or claimed to have, some interest in the mortgaged premises, which had accrued subsequently to the lien of the mortgage, could have no reference or relation to her dower right, if it existed ; for it would have been a right paramount to that pf the mortgagee. It is not proper to say that the allegation had no meaning as to Mrs. Nelson ; for if she took only a life estate under the will of her husband, that would have been an interest which had accrued subsequently to the lien of the mortgage. If she ac' cepted the provision for a life estate in the testator’s real property in lieu of her dower, her interest in the mortgaged premises was subordinate to the mortgagee’s. The question of the competency of adjudicating in foreclosure proceedings upon a dower right has been passed upon in the case of Merchants’ Bank v. Thomson, 55 N. Y. 7. The wife, there, did not join in the mortgage; but she was made a party defendant in the action to foreclose it, though there was no averment in the complaint relating to her. Folger, Oh. J., in the course of his opinion, said : “A foreclosure action is not the proper mode to litigate rights claimed in priority or hostility to tire mortgage. A judgment passing upon them is erroneous. A person claiming dower by title paramount to the mortgage cannot be brought into court in such a suit to contest the validity of her dower. The position is the same as if she had not been a party to the foreclosure action.” That opinion was founded upon the inadequacy of the proceeding to determine the question of dower; not only because of the non-existence of any issue respecting the dower right, but because the wife could not be compelled to come into such a proceeding, and there to litigate her rights. It is very evident, as no issue had been tendered, nor made, as to Mrs. Nelson’s dower right, and as the question was not one which was essential or material to be decided in the foreclosure action, that no valid adjudication thereupon could be made.

The appellant, however, insists that the judgment is binding upon the respondent, as the grantee of Letitia Howard, the plaintiff in the foreclosure action; who, by buying at the sale made thereunder, thereby submitted to and was bound by the decision of the court. Had the appellant, herself, been concluded by the judgment rendered, that would be true. The judgment then would stand as a valid adjudication upon her dower right, which this respondent could not have been disputed. But that was not its effect. She was not bound by it, and, therefore, it could not conclude the respondent; under the settled and familiar rule, that the record of a judgment, in order to conclude either of the party litigants, must be conclusive upon both. The operation of the rule must be mutual. 1 Greenl. Ev. § 524.

The question then becomes one of the proper meaning to be given to the provision which the testator makes for his wife. He gives her the “use, income, etc., etc., of all his real estate during her natural life to be enjoyed, accepted and received by her in lieu of dower, and in addition to what interest she would have had as doweress if this devise was not so made to her.” The difficulty in construing this testamentary provision is occasioned by the involved language; the appellant insisting that it shows that the testator intended something for his wife in addition to the life estate devised. It is very plausibly urged in her behalf, that, if only a life estate was intended, the language would have ended with the words “in lieu of dower." But it is impossible to give to those words their.legitimate and legal effect, and to hold that an estate was devised to the widow, in addition to what she would be entitled to as dower under the statute. Words so clear and important in their bearing cannot be regarded as meaningless and? yet, that would be the result, if we should hold with the appellant. Their office was plain; proper effect should be given to' them, and a careful analysis of the language sufficiently warrants, the conviction that the testator intended to give a life estate in his property, which, if accepted, should be in lieu of dower. If it. was intended to be a provision, in addition to what his widow would be entitle to as dower, then it was easier to say so and more natural, than to have coupled with the provision a clause containing expressions of a very negative character, if considered as a recognition of a right to dower besides. The language “in addition to what interest she would have had as doweress if this devise was not so made to her” suggests, almost instantly, the existence in the testator’s mind of the idea that as the making of the devise precluded his wife from claiming dower an explanation was proper Lo show that he was giving her a larger interest in his estate. It was, of course, an unnecessary thing to do; and tended to a confusion of ideas; but, unless regarded as explanatory in its purpose, I think the language would be incompetent to convey any idea of what the testator had in mind. It seems more in accord with the natural operation of the lay mind to so interpret this language. Having directed the life estate to be accepted and received by his wife in lieu of dower, the testator follows the direction with language which softens its expression by explaining the greater advantage accruing to the recipient.

The often arduous effort imposed upon the courts to find the intention of a testator is more safely accomplished by taking language in its ordinary sense and in giving to words, used simply, .or in some legal combination, that meaning which the lay mind usually would attach, or which has been acquired by frequent and familiar usage. • It is difficult to conceive of a testamentary gift being made, to be accepted in lieu of dower which, nevertheless, is to be in addition to dower ; whether the ordinary lay mind, or the subtler mind of the lawyer, makes the effort. Harmony in the provision is only found in reading the conclusion of the clause in question as explanatory of what had preceded, and the general rule is adhered to, which requires effect to be given, where it is possible, to all the provisions of a will. However greatly dower is favored in the law, it is never favored at the cost of a disregard of such express words as we find in this provision. They contain a direct expression of intention and fall readily under the exception mentioned in the cases cited by the appellant of Lewis v. Smith, 9 N. Y. 511, and Konvalinka v. Schlegel, 104 id. 125; 5 St. Rep. 562.

I think the decision of the general term was correct. The order appealed from should be affirmed and, under the stipulation of the appellant, judgment absolute should be ordered for the respondent, with costs "in all the courts.

All concur, except Peckham, J., not voting, and Haight, J.t not sitting.

Ordered accordingly.


author: Andrews, Oh. J.

text:
    Benjamin B. Strong, App’lt, v. Louisa A. Sheffield, Resp’t.

      (Court of Appeals,

      IHled January 15, 1895.)

    1. Bills add notes—Consideration.
    Where the holder of a note, payable on demand with interest, is requested by the maker to extend the time of payment, and a third person undertakes, without any request or agreement to forbear for a fixed or reasonable time, to become liable as surety or otherwise, it does not furnish a good consideration, though the holder does in fact forbear for a reasonable time in reliance upon the undertaking.
    2. Same.
    The consideration is to be tested by the agreement, and not by what was done under it.
    Appeal from judgment of the general term of the supreme court in the second judicial department, entered upon an order, which reversed a judgment in favor of defendant, entered upon a verdict, and also affirmed an order denying a motion for. a new trial.

      Cornelius F. Kene, for app’lt; Martin J. Keogh, for resp’t.

      Affirming, 50 St. Rep. 665.

   Andrews, Oh. J.

The contract between a maker or indorser of a promisory note and the payee forms no exception to the general rule that a promise, not supported by a consideration, is nudum pactum. The law governing commercial paper which precludes an inquiry into the consideration as against Iona fide holders for value before maturity, has no application where the suit is between the original parties to the instrument. It is undisputed that the demand note upon which the action was brought was made by the husband of the defendant and indorsed by her at his request and delivered to the plaintiff, the payee, as securitjr for an antecedent debt owing by the husband to the plaintiff. The debt of the husband was past due at the time, and the only consideration for the wife’s indorsement, which is or can be claimed, is that as part of the transaction there was an agreement by the plaintiff when the note was given to forbear the collection of the debt, or a request for forbearance, which was followed by forbearance for a period of about two years subsequent to the giving of the note. There is no doubt that an agreement by the creditor to forbear the collection of a debt presently due is a good consideration for an absolute or conditional promise of a third person to pay the debt, or for any obligation he may assume in respect thereto. Nor is it essential that the creditor should bind himself at the time to forbear collection or to give time. If he is requested by his debtor to extend the time, and a third person undertakes in consideration of forbearance being given to become liable as surety or otherwise, and the creditor does in fact forbear in reliance upon the undertaking, although he enters into no enforcible agreement to do so, his acquiescence in the request, and an actual forbearance in consequence thereof for a reasonable time, furnishes a good consideration for the collateral undertaking. In other words, a request followed by per-formance is sufficient, and mutual promises at the time are not essential, unless it was the understanding that the promisor was not to be bound, except on condition that the other party entered into an immediate and reciprocal obligation to do the thing requested. Morton v. Burn, 7 A. & E. 19; Wilby v. Elgee, L. R, 10 C. P. 497; King v. Upton, 4 Greenl. 387; Leake on Con. p. 54; Am. Lead. Cas. vol. 2, p 96 et seg. and cases cited. The general rule is clearly, and in the main accurately, stated in the-note to Forth v. Stanton, 1 Saund. 210, note b. The learned reporter says: “And in all cases of forbearance to sue, such forbearance must be either absolute or for a definite time, or for a reasonable time; forbearance for a little, or for some time, is not sufficient.” The only qualification to be made is that in the absence of a specified time a reasonable time is held to be intended. Olderman v. King, 2 H. & N. 517; Calkins v. Chandler, 36 Mich. 320. The note in question did not in law extend the payment of the debt. It was payable on demand, and - although being payable with interest it was in form consistent with an intention that payment should not be immediately demanded, yet there was nothing on its face to prevent an immediate suit on the note against the maker or to recover the original debt. Merritt v. Todd, 23 N. Y. 28; Shutts v. Fingar, 100 id. 539.

In the present case the agreement made is not left to inference, nor was it a case of request to forbear, followed by forbearance, in pursuance of the request, without any promise on the part of the creditor at the time. The plaintiff testified that there was an express agreement on his part to the effect that he would not pay the note away, nor put it in any bank for collection, but (using the words of the plaintiff) “I will hold it until such time as I want my money, I will make a demand on you for it.” And again: “ No, I will keep it until such time as I want it.” Upon this alleged agreement the defendant indorsed the note. It would have been no violation of the plaintiff’s promise if, immediately on receiving the note, he had commenced suit upon it. Such a suit would have been an assertion that he wanted the money and would have fulfilled the condition of forbearance. The debtor and the defendant, when they became parties to the note, may have had the hope or expectation that forbearance would follow, and there was forbearance in fact. But there was no agreement to forbear for a fixed time or for a reasonable time, but an agreement to forbear for such time as the plaintiff should elect. The consideration is to be tested by the agreement, and not by what was done under it. It was a case of mutual promises, and so intended. We think the evidence failed to disclose any consideration for the defendant’s indorsement, and that the trial court erred in refusing so to rule.

The order of the general term reversing the judgment should be affirmed, and judgment absolute directed for the defendant on the stipulation, with costs in all courts.

All concur, except Gray and Bartlett, JJ., not voting, and Haight, J., not sitting.

Ordered accordingly.


text:
    George F. Nixon, Resp’t, v. Aquilino Zuricalday et al., App’lts.

      (Court of Appeals,

      Filed January 15, 1895.)

    COBTBACT—PEB SOBAL.
    In order that a contract shall bear the impress of being a personal contract, or one which involves personal considerations, something must appear from the contract itself, or it must inevitably suggest that a personal confidence or trust was reposed in the person with whom it was made.
    Appeal from, judgment of the general term of the superior court of the city of New York, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict directed by the court, and also ■, affirmed an order denying a motion for a new trial.

      Emmet B. Olcott, for app’lts; C. K Bovee, Jr., for resp’t.

      Reversing, 53 St. Rep. 938.

   Gray, J.

The theory upon which the learned trial judge directed the verdict for the defendants, as we learn from his opinion, was that the plaintiff’s agreement to make, an allowance to the defendants upon their purchases at the sale, “ was founded on a confidence reposed in the defendants, and created a personal trust, which could be discharged only by the personal acts of the defendants, or by the authorized and announced use of their names at the auction sale.” This theory of the relation of the parties he rested upon the familiar rule in equity, that when the agreement, is personal, depending upon the learning, skill or other characteristic of the contracting party, he alone can enforce performance.

We cannot, however, agree with the learned judge in his application of this rule to the case at bar. He assumes a state of facts which the evidence fails to disclose. If we take the case as made by the plaintiff, it proved nothing concerning the agreement alleged. It established, in fact, a sale through the auctioneer to the defendants; although the evidence of the auctioneer showed that some of the lots were bought for defendants by a person named Elias. For the defendants, the agreement was shown, by the testimony of one of them, to have consisted merely in the plaintiff’s proposition to him that if he would purchase up to 4,000, or to 8,000 boxes at the sale, he would allow him one-eighth of a cent per pound on the former amount, or one-fourth of a cent on the latter amount. The agreement was in paroi and its exact nature was issuable under the pleadings; but all we know of it is from the defendants’ testimony. Such an agreement does not bear the impress of an engagement, so personal in its nature as to have devolved the duty upon the defendants of actually doing the bidding at the sale. It is possible that the plaintiff may have had the notion, when making his proposition, that the personal attendance of the defendants and their bidding would stimulate other bidders, or otherwise better the market. But if such was the underlying consideration in his mind, there should have been some evidence of it and it should not have been left to assumption alone. We might indulge in more than the one assumption, in the face of the meagre evidence concerning the parties and their plans. How are we to assume that the fact of the defendants’ bidding in person at the sale would be any more potent a factor in the market, than if they procured the aid of another person, interested with them in their venture, as Elias was, to bid for them during the sale ? The record is silent. We do not know from the evidence that the defendants occupied any such position in the peculiar market, as to give them any prestige. As a matter of fact, the conditions of the plaintiff’s proposition were met by the actual purchase of over 8,000 boxes of dates by the defendants at the auction sale. Elias was not a broker in the transaction. He was, and he had been for some time, interested with defendants on joint account in their ventures. There was nothing in the transaction with the plaintiff, which debarred Elias from continuing to participate with-the defendants in the proposed purchase, as he had done in the past. It was easy for the plaintiff to have limited, and to have precisely defined his engagement towards the defendants, with respect to their purchases of his goods. But he did not do so, and the fact is that the defendants did purchase over 8,000 boxes ; which entitled them to the allowance agreed upon by the plaintiff. There was no question of any assignment of the contract, or of bringing in a third party. In order that a contract shall bear the impress of being a personal contract, or one which involves personal considerations, something must appear from it, or it must inevitably suggest that a personal confidence, or trust, was reposed in the person contracted with. Such was the case in Stevens v. Benning, 1 Kay & J. 168. In that case Yice Chancellor Wood suggested a case which aptly shows how the inference of a personal trust can be made from the transaction itself. He says: “Take, for instance, the case of a merchant in the West Indies consigning goods to a person in London, for the purpose of having them sold there, such person alone would have a right to sell them.” Ho such element can be presumed to enter into the transaction in question. There was no such duty, necessarily or inferentially, devolved upon the defendants, as to permit the court to presume that any personal confidence was involved, or that the exercise of some personal skill on their part was expected. In view of the manner of a sale at auction, and what would ordinarily be done, that would be an irrational presumption. In the case of Spalding v. Rosa, 71 N. Y. 40, cited by the learned trial judge, the defendants’ contract to furnish the “Waehtel Opera Troupe ” could onty be fully performed by the appearance of the great tenor singer himself, who gave his name to the company and whose presence was of the essence of the contract, as of the success of a performance. So in Wolfe v. Howes, 20 N. Y. 197, the contract with the mechanic contemplated his personal services; because, not only it was “ evident, both from the nature of the business and the amount of compensation agreed to be paid him; ” but, as Judge Allen adds: “It is also manifest from the evidence on both sides. The business of pot making required skill and experiance. * * * The execution of the work required his constant and personal supervision and labor.”

The judgment of the general term should be reversed, and a new trial ordered; with costs to abide the event.

All concur, except Haight, J., not sitting.

Judgment reversed.


text:
    John E. Hiles, Resp’t, v. Maria J. Fisher, Impleaded, etc., App'lt.

      (Court of Appeals,

      Mled January 15, 1895.)

    Husband and wive—Entirety—Usufruct.
    The husband is not exclusively entitled to the usufruct of the lands held by them in entirety, but they are tenants in common or joint tenants of the use, and each is entitled to one-half of the rents and profits, so long as the question of survivorship is in abeyance.
    Appeal from judgment of the general term of the supreme ■court in the fourth judicial department, entered upon an order, which directed a judgment in favor of plaintiff upon a case submitted under section 1279 of the Code of Civil Procedure.
    The defendants are and for the past thirty years and upwards have been husband and wife. On or about the 22d of March, 1866, the defendants, by a deed to them as husband and wife, took title to a farm of about forty-four acres in the town "of Dryden, Tompkins county, FT. Y., which they have ever since occupied and possessed as their home under said deed with no other title. This deed runs to “ William E. Fisher, of the town, county and state aforesaid, and Maria J. Fisher, his wife,” and the consideration therein stated is three thousand dollars. It was duly recorded ■on the 9th of May, 1866. The purchase price was wholly paid by the wife, who, however, consented to the form of the deed as taken by them.
    On or about March 31, 1885, the defendant William R. Fisher borrowed of the plaintiff $1,400, for which he and his wife gave their promissory note. On or about February 20, 1886, William R Fisher, to secure the payment of this debt to plaintiff, and other small amounts of borrowed money, amounting then ■altogether to $1,550, executed and delivered to one Goodrich for plaintiff a mortgage in the usual form granting and conveying the said forty-four acres, and conditioned for the payment of $1,550, one-half in one year and balance in two years, with interest at 5 per cent, annually. This mortgage was dated and acknowledged February 20, 1886, and was immediately assigned to plaintiff. It was recorded August 5, 1890. ' .Fisher, of the money which be borrowed of plaintiff, used one thousand dollars in part payment for thirty-five acres of land in the same town, the title to which he had taken in his own name. At the time the mortgage was given the plaintiff knew that the wife’s money paid for the forty-four acres and that she refused to sign the mortgage, but he supposed that William R. Fisher held the title and the wife had only her dower right therein, and he, therefore, said that the mortgage was good enough without her signature and so took it, and he told the defendants that he did not calculate that William ¡R. Fisher should ever pay the mortgage; that he calculated to give it to him by his will, and all he wanted was the interest while .he lived. The description in the mortgage was copied from the deed which was present when the mortgage was executed and delivered.
    On 3d of September, 1890, William ¡R. Fisher conveyed to Maria J. Fisher both.of said parcels of land by quit claim deed recorded-that day. Default was made in the payment of interest on the mortgage and it was duly foreclosed by statutory foreclosure, and on the sale thereunder, which occurred February 6. 1892, the premises were bid in by the plaintiff for the sum. of five hundred dollars, the amount then unpaid on the mortgage being $1,863.37 besides the expense of foreclosure, "thereby vesting in plaintiff the entire fee so for as the mortgagor could lawfully have conveyed at the date of the mortgage under the same circumstances. Notice of the foreclosure was duly served on both defendants. Mrs. Fisher thereafter and before the sale commenced an action in the supreme court against the plaintiff and ■ said Goodrich and her husband, asking that the mortgage be declared void as to her and be set aside as a cloud upon her title and that thé foreclosure of the mortgage be restrained. A temporary injunction was obtained but vacated by the court, upon the papers upon which it was granted. On the foreclosure sale Mrs. Fisher gave notice of her claims. After the sale the plaintiff duly demanded possession of each of the defendants and they severally refused to deliver the same and now withhold it.
    Upon these facts the plaintiff claimed the right to recover the premises, with the right to hold the same during the joint lives of the husband and wife, and in fee in case the husband survives the wife. The defendant Mrs. Fisher claims that the mortgage not having been signed by her was void and that Mr. Fisher’s interest having been conveyed to her, she is the absolute owner; that by reason of her having paid for the property she is equitable owner of the whole; that in any event she is entitled to the possession during- the joint lives of herself and husband and to the fee in case she survives.
    The general term. rendered judgment adjudging that by the sale under the mortgage the plaintiff acquired the right of possession of the whole property during the joint lives of Mr. and Mrs. Fisher and to the fee in case the husband survived the wife.

      A. P. Smith, for app’lt; S. D. ffalliday, for resp’t.

       Modifying and affirming 50 St. Rep. 778.

   Andrews, Oh. J.

It was decided in Berths v. Nunan, 92 N. Y. 152, that the separate property acts relating to the rights of married women had not abrogated the common law doctrine, that under a conveyance to husband and wife they take not as tenants in common, nor as joint tenants, but by the entirety, and upon the death of either the survivor takes the whole estate. In that case the husband had died, leaving his wife surviving, and the question was whether the wife as survivor took upon the death of her husband the entire fee under the doctrine of the common law. The question, what change, if any, had been wrought by the separate property acts in respect to the common law rights of the husband to control and use the property conveyed to husband and wife during their joint lives, was not considered or decided, but was expressly reserved on the ground that it was not involved in the case then before the court. That question is involved in the present case and must now be decided. The decision in Bertles v. Nunan is supported by the great weight'of autnority in other jurisdictions in this country, but in some of the states it has been held that as a consequence of statutory provisions substantially like those in this state, conferring upon married women the right to take and hold separate property to their own use, free from the control of their husbands, as femes sole, estates by entireties have been abrogated and turned into tenancies in common. In the states where this construction has been put upon the married women’s acts, the question of the rights of the parties to the usufruct during their joint lives could scarcely arise, because it is one of the generally admitted results of this legislation that the common law right vested in the husband to the rents, profits and use of his wife’s real estate during their joint lives has been destroyed.

It is, however, a much more serious question what the effect of this legislation is upon the common law right of the husband to the usufruct during the joint lives of the husband and wife, of lands conveyed to them jointly, in those states where it is held that notwithstanding the new legislation a conveyance to husband and wife retains its common law character and incidents. If the right of the husband to the use during the joint lives of lands held under this tenure was a right growing out of and incident to this particular species of tenancy; in other words, if it was one of its specific and essential characteristics, then it would be impossible to segregate this right from the other rights incident to and flowing from the tenancy, and to say that while the estate by entire-ties continues this feature of it was intended to be taken away But the taking away from the husband the usufruct during the joint lives of lands conveyed to husband and wife would not be inconsistent with the continuance of tenancies by entireties, provided the common law right to the usufruct was not an incident of the tenancy, but of the marital right operating upon property so held, as upon all other real property of the wife. The grand characteristic which distinguishes a tenancy by the entirety from a joint tenancy is its inseverability, whereby neither the husband nor the wife, without the assent of the other, can dispose of any part of the estate so as to affect the right of survivorship in the other. 1 Bl. 182 ; Wash on Real Prop. 425. Each is said to be seized of the whole estate, and they do not take by moieties, and the reason assigned in the old books for this anomalous characteristic of this estate is the legal unity of the husband and wife, and the incapacity of the wife to hold a separate and severable estate in lands under a joint conveyance to both. The alleged incapacity of a wife to take and hold lands conveyed to husband and wife as joint tenant or tenant in common with him seems inconsistent with the doctrine which has finally obtained, that by express words of a grant or devise to husband and wife that species of tenure would be created. This was pointed out in Miner v. Brown, 133 N. Y. 308; 45 St. Rep. 188, and authorities were cited to show that where the intention disclosed by the deed or will was to create a tenancy in common that estate would be created. See, also, McDermott v. French, 15 N. J. Eq. 78; Wales v. Coffin, 13 Allen, 213; 1 Wash, on Real Prop. 425. There is a tendency now to regard the creation of an estate by the entirety as resting upon a rule of construction rather than upon a rule of law, and to regard the intention as disclosed by the deed or will creating it as the governing rule for determining whether that estate was created rather than a joint tenancy or tenancy in common. See In re March, 27 Ch. Div. 166, and cases before cited. It was conceded under the old law that husband and wife, who were joint tenants or tenants in common of lands before marriage, remained so after-wards. Coke on Litt. 187b. It would seem to follow that there was no general incapacity in the wife to hold lands with the bus-bond in joint tenancy or as tenant in common. The quality of the estate held by husband and wife as tenants by the entirety, in the aspect of its inseverability, has been adverted to. But it is important in view of the subsequent discussion to observe that the wife, as well as the husband,, took an estate under a grant to both. Each was said to be seized of the whole, and not of any separate part. Neither could convey his or her interest to the prejudice of the right of suvivorship in the other. The common law, however, wholly ignored this principle of equality between husband and wife in regulating the rights of the parties to the enjoyment of the estate during the joint lives. They were not regarded as having a joint seizin or a joint possession for the possession for the purpose of the use during coverture. The husband was held to be entitled to the full control and to take the rents and profits of the land during the joint lives to the exclusion of the wife, and he had power to sell, mortgage or lease for the same period, and this life interest was, according to the weight of authority, subject to the claims of his creditors. Barber v. Harris, 15 Wend. 615; Jackson v. McConnell, 19 id. 175; Meeker v. Wright, 76 N. Y. 262; Bertles v. Nunan, supra; Ames v. Norman, 4 Sneed, 683; Pray v. Stebbins, 141 Mass. 219. But the right of the husband at common law to take the rents and profits of lands held by him and his wife as tenants by the entirety, during coverture, and to assign and dispose of them during that period, did not, we apprehend, spring from the peculiar nature of this estate. He acquired no such right by force of the conveyance itself, and it was not an incident thereto. It was a right which followed the conveyance and inured to the husband from the general principle of the common law which vested in the husband jure uxoris the rents and profits of his wife’s lands during their joint lives. 2 Kent Com. 130; Stewart on Husb. & Wife, § 308. The husband took the rents and profits of lands held in entirety upon the same right that he took the rents and profits of her qther real estate, whether held by a sole or joint title, namely, his right as husband. In none of the definitions of tenancies by entireties have we found any suggestion that this was one of the incidents or characteristics of such estates, and we think it is plain, both upon reason and analogy, that it had its origin in those harsh principles of common'law which destroyed for most purposes the legal identity of the wife and subjected her person and property to the control of her husband.

In considering what effect, if any, the legislation in this state has had upon the right of the husband to' the rents, profits and control of lands held by him and his wife in entirety, during their joint lives, it is important to regard not only the language, but the spirit of the new enactments. The sole purpose of the original statute of 1848 was to secure to married women the enjoyment of their real and personal property which belonged to them at the time of their marriage, or which they might thereafter acquire by gift, grant or bequest from third persons, and toi abrogate the common-law right of the husband in and to the real and personal property of the wife. The rights to the rents and profits of her lands yuré woris, during the joint lives, was completely swept away, not by express enactment, but as a necessary consequence of investing, her with the beneficial use of her own property, free from his control. Subsequent legislation confirmed her rights as defined by the act of 1848, and enlarged them in other directions, but the act of 1848, was the seed from which all the subsequent legislation sprung. This legislation rendered unnecessary any longer the cumbrous mechanism of settlements or resort to the imperfect powers of courts of chancery to secure to married women the enjoyment of their own property.

It determining the question now before us, too much emphasis catinot be placed upon the fact that the legislation of 1848 and the subsequent years uprooted the principle of the common law, hoary with age, which vested in the husband, by virtue of the marriage relation, control of the property of his wife and the right to exclude her from its enjoyment. If it is still held, notwithstanding this legislation, that the husband takes the whole rents and profits during coverture in lands held in entirety, and may exclude the wife from any participation therein, an exception is allowed, standing upon no principle, and it deprives the wife, although she has an undoubted interest and estate in the land-, from any benefit thereof during the lives of both. There are, as we can perceive, but two other alternatives. Either the rents and profits follow the nature of the estate, and can neither be disposed of nor changed without the joint action of both husband and wife, which seems to be the view taken in McCurdy v. Canning, 64 Pa. St. 39, or the parties become tenants in common or joint tenants of the use, each being entitled to one-half of the rents and profits during the joint lives, with power to each to dispose of or to charge his or her moiety during the same period, which seems to be the view taken in Buttlar v. Rosenblath, 42 N. J. Eq. 651. We think the rule adopted in Hew Jersey best reconciles the difficulties surrounding the subject. The estate granted is not thereby changed. It leaves it untouched, with all its common-law incidents. It deals with the rents and profits and the use and control of the estate during coverture only, and gives to each party equal rights so long as the question of survivorship is in abeyance, thereby conforming to the intention of the new legislation to take away the husband’s right jure uxoris, in his wife’s property, and to enable the wife to have and enjoy “ whatever estate she gets by .any conveyance made to her or to her and others jointly, and does not enlarge or diminish that estate.” The rule in Pennsylvania not only deprives the husband of his common-law right to the enjoyment of the whole rents and profits, but of the enjoyment of any share thereof, except with the concurrence and permission of his wife.

The conclusion we have reached requires a reversal of the judgment below so far as it adjudges that the mortgage executed by the husband to the plaintiff, and the sale thereunder, vested in the plaintiff the right to the possession of the whole estate during the ■joint lives of Mr. and Mrs. Fisher. The husband had a right to mortgage his interest, which was a right to the use of an undivided half of the estate during the joint lives and to the fee in case he survived his wife, and by the foreclosure and sale the plaintiff acquired this interest and became a tenant in common with the wile of the premises subject to her right of survivorship. The opinion of the general term exhibits, with great clearness, the reasons upon which it was held that a conveyance or mortgage by the husband, without restrictive words, binds the fee in case he survives the wife. See 1 Wash. Real Prop. 425; 1 Prest. Est. 135; Ames v. Norman, supra.

The judgment below should be modified in accordance with this opinion, and, as modified, affirmed, without costs to either party. _ _

_ _ All concur, except Haight, J., not sitting.

Judgment accordingly.


author: Peckham, J.

text:
    The People, Resp’t, v. Clara M. Underhill et al., App’lts.

      (Court of Appeals,

      Filed January 15, 1895.)

    1. Highway—Dedication.
    The laying down upon a map, made by the grantor, of certain lands as avenues or streets and the conveying of other lands as bounded by them, amount to a dedication.
    2. Same.
    But before such dedication becomes complete, an acceptance thereof, either by user or by formal act of the public authorities, must be shown.
    3. Same.
    The evidence, in this case, was held sufficient to show a dedication of the avenue as a public street, but insufficient to show an acceptance thereof east of the lots sold.
    Appeal from judgment of the general term of the supreme court in the second j udicial department, entered upon an order, which .affirmed a judgment convicting defendants upon an indictment for maintaining a nuisance in obstructing a highway, entered upon a verdict of the court of sessions of Westchester county.
    Prior to 1859 the state of New York was the owner of a certain parcel of land in the village of Sing Sing, known as the prison or state farm. In that year the legislature passed an act providing for its sale by the inspectors of state prisons. Pursuant to that .authority the inspectors made a map of the farm and sold it to one Thomas Nelson and others on the 23d of November, 1859. On that map several streets were laid down as running through this farm and among them was a street without any name running from Highland turnpike to Spring street. The street was subsequently called Lafayette avenue. The deed from the inspectors of state prisons to Nelson and others, in conveying the farm, contained the following reservation : “ Also excepting and reserving to the public the right of way over said two new streets to the width of twenty-five feet south of said central line above described, a width of twenty-five feet on each side of the continuation of the southernmost of said central lines. Westerly to the said Spring street, which new streets are forever to be kept open to the width of twenty-five feet on each side of said center line from Spring street to the Highland turnpike for the purposes of a public street or highway for the benefit of the owners and purchasers of the adjoining lots.”
    Highland turnpike, subsequently called Highland avenue, runs north and south on the eastern boundary of the farm. Spring street runs parallel with Highland avenue and is the western boundary of such farm and some 1,225 feet west of Highland avenue. They are both old public highways in Sing Sing village. Lafayette avenue runs from Highland avenue to Spring street. On the first of September, 1866, Nelson and others (the grantees from the state) conveyed to one Edward Everitt 6 and \ acres of this farm, and described the land as “ beginning at the Albany post road ” (now Highland avenue) “ and Lafyette avenue as designated on a map now on file in the office of the register of the county of Westchester, entitled A map of a tract of land at Sing Sing, town of Ossining, county of Westchester, the property, of Messrs. Nelson, Larkin, Cobb, Cartwright, Jr., and Jones, laid off in town lots and gentlemen’s country seats, by Geo. W. Cartwright, Jr., C. E., July, 1860.” The description then continues and includes the six acres and describes the northern boundary as running “ along the center of Lafayette avenue 651 feet, to the said Albany post road to the place of beginning.” On the 7th of November, 1889, Edward Everitt conveyed the same premises to the defendant, Clara Mason Underhill, by the same description that is contained in the deed from Nelson and others to Everitt. At the time when this map, mentioned in the deed from Nelson and others to Everitt, was made and the deed executed, the land forming what is laid down on the map as Lafayette avenue was farm land, and that avenue had never been either opened or worked. It was farm land most of the way between Highland avenue and Spring street, and there were no fences or other monuments inel i eating to the ¿je the line of Lafayette avenue. When Everitt took title by deed from Nelson and others to a portion of the original state farm he ran his westerly line of fence north and south across the land constituting Lafayette avenue as laid down on the map. This westerly line was BOO feet east of Spring street. He remained in possession as owner from the time of the deed te> him in 1866 until he conveyed to Mrs. Underhill, one of the defendants herein, in November, 1889, and the whole country west of his west line up to Spring street had been up to that time and thereafter remained open and unmarked by any boundaries showing the line of the street up to within 200 feet east of Spring street. The grantors in the deed to Everitt themselves maintained fences across the land constituting Lafayette avenue west of the defendants’ westlineand up to within a few feet of Spring street, and as they from time to time sold off lots on either side of Lafayette avenue, and within the space of a couple of hundred feet east of Spring street, they would take down the fence and remove it further to the east so as not to interfere with those who intended to build and live in the houses. There was never any work done east of the houses build along the westerly end of Lafayette avenue up to within a short time before the finding of this indictment, when Mr. Cartwright, one of the grantors in the deed to Everitt did some grading from Spring street up to the westerly line of defendants’ premises. There was no evidence of any user of Lafayette avenue by the public for any portion of its distance as laid down on the map, with the exception of the 200 feet immediately east of Spring street and upon which, commencing in 1872, about eleven houses had been build by the grantees of Nelson and others. Mr. Everitt himself, while the owner of the six acres, had done some work upon that portion of Lafayette avenue fronting his premises, but it was for his own convenience and to better enable him to reach his house from Highland avenue, which he had built on the north portion of his land. The grade from the westerly boundary of his premises towards Spring street was quite steep and the top of the grade was about half way between his westerly line and the easterly line of Spring street. During these years, from the time when the land was conveyed to Nelson and others by the inspectors of state prisons up to the time of the finding of the indictment against the defendants, various things had been done, as was claimed by the prosecution, by way of showing an acceptance on the part of the village of Sing Sing of the alleged dedication of this Lafayette avenue by the prison inspectors as a, public street. Upon the trial the prosecution claimed to have proved that the public authorities of the village of Sing Sing had worked the street and made a map of it; had permitted gas lights to be put up, and had made a map for a system of sewerage for the lower part of the village, which included the avenue; that they had also laid water pipes therein and caused gutters and sidewalks to be laid in it, and had assessed property as bounded by the avenue; had put up signs at each end, and caused a sidewalk or crosswalk to be laid at the entrance of the avenue on Highland avenue. All these acts were alleged to have been done by the public authorities, and it was insisted that they constituted that kind of formal action on their part which was necessary in order to show an acceptance of the land in question for a public highway. The prosecution also proved on the trial that'the defendants obstructed this alleged highway by continuing their fence across it and by building structure thereon which they refused to take down, either at the demand of Mr. Cartwright, one of the grantors in the deed to Bveritt, or of the president of the village.
    On the trial the judge charged the jury' that there was no proof of user sufficient to make a highway of Lafayette avenue, but he-submitted to the jury the evidence on the question of the acceptance of the alleged dedication of Lafayette avenue with the instruction that if they found .the facts in accordance with the People’s construction of the evidence a sufficient acceptance had been proved. Proper exceptions were taken to the ruling of the court, so as to raise the question whether there had been a dedication, and, if so, whether there had been a proper acceptance by the public authorities of the village. The jury found a verdict of guilty, and judgment was thereupon entered, which was affirmed by the general term.

      Calvin Frost, for app’lt; W. Popham Platt, for resp’ts.

       Reversing, 52 St. Rep. 731.

   Peckham, J.

In the view we take of this case it will not be necessary to determine whether the state prison inspectors could legally have laid out by dedication on the part of the state a public highway through the land which they were authorized to sell for the state. They assumed to do so, and in the map filed by them this so-called Lafayette avenue is laid out. In their deed toiSTelson and others they expressly reserve the right of way over the land designated on the map as new streets and dedicate such land to the public as a public highway, for the benefit of the public and for the owners and purchasers of the adjoining lots. The grantees in that deed themselves recognized these various new streets and made a map which is called the Cartwrigh t map, upon which the streets are laid out, and in their deed to Mr. Bveritt,, when describing the land, they use language, “ beginning at the Albany post road and Lafayette avenue, as designated on the map now on file,” etc., and they continue their description and bound the land conveyed in that deed “ along the center of said avenue 651 feet to the said Albany post road.” These parties as grantees-from the inspectors and as owners of the land certainly would have had the right to open streets through it and they could dedicate such streets to the public. Laying down upon the map made by themselves certain lands as avenues or streets and conveying other lands as bounded by them, amounts to a dedication as has been held in very many cases. In the Matter of the Application for an Extension of Lewis Street, 2 Wend. 472; Livingston v. The Mayor, 8 id. 85; Wyman v. The Mayor, 11 id. 487; Willoughby v. Jenks, 20 id. 94; Lord v. Atkins, 138 N. Y. 184; 52 St. Rep. 155.

We think the evidence in this case was sufficient to show a. dedication by the proper parties of Lafayette avenue as a public street. The criticism made that the deeds from Nelson and others to Everitt, and from Everitt to Underhill, make no mention of Lafayette avenue as being a public street, we think is not well founded. Both deeds refer to Lafayette avenue and they refer to it as designated on the map then on file in the office of the register of the county of Westchester, and they^ bound their land along the center of the avenue. It is not necessary we think under these circumstances to state that they mean by the word “ avenue ” a public street. The word, as used in the deeds and upon the map, furnishes evidence of a dedication and implies a public street, and the intention to dedicate the land for a public .street would not be made plainer by adding that they mean by the word “ avenue ” a public street, to be called Lafayette avenue.

We are of the opinion, however, that there was no sufficient evidence of an acceptance of this dedication either by way of user or by any formal or conclusive action on the part of those public authorities of the village of Sing Sing who would have the authority to accept a dedication to the public. The trial court eliminated one way of showing acceptance by the user of the street, and, we think, properly so. There was really no evidence of user as a street. The street never has been used and is not now used as a public highway for the passage of men and vehicles from Highland avenue to Spring street. The only user proved was a couple of hundred feet east from Spring street, and that was used by the people who were building houses, and for their accommodation only, and it was almost an impossibility to drive or ride from that point east to Highland avenue ; indeed, Cartwright himself had a fence across Lafayette avenue. There being no user, there must have been proof of an acceptance by some formal and unambiguous action on the part of the authorities of the village having that power and showing unmistakably an intention to accept the land thus dedicated and for the purpose to which it was to be put.

As was said in the case of Niagara Falls Susp. Bridge Co. v. Bachman, 66 N. Y. 261 at 269, “ to constitute a public highway by dedication there must not only be an absolute dedication, a setting apart and a surrender to the public use of the land by the proprietors, but there must he an acceptance and a formal opening by the proper authorities, or a user.” In Holdane v. The Village of Cold Spring, 21 N. Y. 474, the same doctrine is announced, and it is there said that an acceptance of the dedication, either by user or by formal act of the public authorities, must be shown before a dedication becomes complete. To the same effect is the case of Speir v. The Town of New Utrecht, 121 N. Y. 420; 31 St. Rep. 414, although the question there was more in regard to the character of the user than to the formal action on the part of the public authorities. It was there held that the mere fact that a portion of the public had traveled over the road for twenty years would not make it a highway ; that the user must be like that of highways in general and the road must not only be traveled upon, but it must be kept in repair, taken in charge and adopted by the public authorities. That was on the question of user, in this case no formal acceptance of this dedication on the part of - the public authorities has been shown. The various items of proof referred to by the counsel for the People for the purpose of showing something equivalent to a formal acceptance, we think, are wholly inadequate to meet that requirement. So far as working the street is concerned, the only evidence that the public authorities had ever worked it at all consists of the statement made by the clerk of the village that the village had laid a sewer in the street for a couple of hundred feet east from the line of Spring street, and he believed that some sidewalk had been there laid. Under what circumstances he did not say. The people who built the few houses along the western end of Lafayette avenue may have asked the village to lay a sewer for their accommodation and also a sidewalk as far along the street as the houses continued to the east from Spring street. The authorities may have complied with their request. But that is no formal acceptance of a dedication of the whole street from Highland avenue to Spring street, a distance of nearly 1,300 feet, by any public authority of the village authorized to speak or act for it in such case and thus to bind the village by its action. There is no evidence of any such acceptance. The village has done no act from which an acceptance of this dedication can properly be inferred. It is claimed that a map of the street was made and filed. That mere fact is wholly immaterial. There was a map laying out a general system of sewerage for the southern portion of the village, and it would, in any event, very properly include the land in question which might be thereafter drained by the sewer, although such street was not then opened or accepted as a public highway. There is also evidence that electric lights had been placed in one portion of the street, but under what circumstances, or upon what conditions or how many, was not stated, and that water pipes had also been laid in the street the same distance as the sewer for the accommodation of those few houses above mentioned. It is seen that the village has done no work whatever on any portion of this street other than the 200 feet directly east from Spring street, and there is no evidence under what circumstances such work was done, or that it was done by such authority as might bind the village on a question of acceptance of a dedication of land for a street. The mere assessment by assessing officers of lands which they described as being on Lafayette avenue is no evidence whatever of a proper acceptance, nor, under the circumstances, was the putting up of signs at each end of the street naming it Lafayette avenue. The authorities of the village had directed signs to be placed at the corners of all the streets in the village, without designating any particular street or in any manner deciding that Lafayette avenue was a public street of the village and the resolution had been referred to a committee to carry out its purposes. That committee referred it to the clerk, who employed a painter, who painted various signs, and among them he included Lafayette avenue, and the sign was put up. The directing of a sidewalk to be laid at the entrance of this street on Highland avenue is no evidence of an acceptance of Lafayette avenue. In fact, there is an entire absence of proof of any unequivocal act on the part of the village authorities showing a formal acceptance of the avenue in question from Spring.street to Highland avenue.

What rights the abutting owners on the avenue may have as between each other and as against the defendant Mrs. Underhill, as one of such owners, by reason of the various deeds from Thomas Nelson and others recognizing the existence of Lafayette avenue, it is not necessary here to discuss or decide. They may have easements or rights of way as among themselves not touched by this proceeding. Hennessy v. Murdock, 137 N. Y. 317; 50 St. Rep. 717; Cunningham v. Fitzgerald, 138 N. Y. 165; 51 St. Rep. 840; Lord v. Atkins, 138 N. Y. 184; 52 St. Rep. 155. We simply say that the People in this criminal action have failed to show that the defendants were guilty of maintaining a nuisance by obstructing a public highway called Lafayette avenue at the place described in the indictment, and the jury should, therefore, have been instructed to acquit them.

We think the judgment should, therefore, be reversed and a new trial granted.

All concur, except Haight, J., not sitting.

Judgment reversed.