author: Haight, J.

text:
    Roxanna Kelley, App’lt, v. Ann Augusta Foster et al., Adm’rs, Impl’d, Resp’ts.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    Banks—Accounting of liquidating cashier.
    In an action by stockholders of a bank to compel an accounting by the cashier, who was the liquidator of its affairs, the latter cai.not be held liable for the amount of a note merely because it was entered in the bills receivable book, in.the absence of proof that it had been paid, and especially where ten years had elapsed since the payment of the last dividend by him to the stockholders.
    Appeal from a judgment of the general term, second department, affirming a judgment entered upon a decision at special term, dismissing the complaint.

      W. A. Abbott, for app’lt; Calvin Frost, for resp’ts.

       Affirming 80 St. Rep., 353.

   Haight, J.

This action was brought for an accounting. In May, 1874, the Croton River National Bank, upon the vote of the stockholders, went into voluntary liquidation. Francis E. Foster, the defendant’s intestate, was the cashier, and was appointed liquidator. He collected the assets, paid the debts, and then divided among the stockholders the full par value of the stock. Subsequently, and on the 11th day of December, 1876, he-made an additional dividend-of twenty-five per cent, and in 1881 he made a final settlement with a number of the stockholders, paying them an additional fourteén per cent, and taking from them a transfer of all their interests in the assets of' the bank. He died in November, 1886, and this action was commenced on November 80, 1887.

The capital stock of the bank was $200,000, divided into 2,000 shares; James E. Kelley was its president, and the owner of 1,640 of the shares. On the 23d of June, 1877, he was adjudged a, bankrupt, and William Forse Scott was appointed his assignee, who, on the 14th day of November, 1887, transferred all of Kelley’s interest in the Croton River National Bank to the plaintiff, who is the wife of Kelley.

Upon the trial an order was made appointing a referee to take- and state the account. The referee made a report finding a balance, due the plaintiff from the defendants of $9,912.43. The special term set aside this report and made other findings of facts,, and, as conclusions of law, that the estate of Foster is not liable-for the claims set up in the complaint, and that the defendants should have judgment dismissing the complaint

It appears from the books of the bank that there is:

Debit, bills receivable.......................... $39,828 17

Credit....................................... 31,815 41

Balance, bills receivable.................... $8,012 76

There also appears upon.page 317 of the ledger, marked “ Profit and Loss Account,” entries from which the following are the footings:

Credit....................................... $72,386 16

Debit........................................ 50,765 10

Balance..'................................ $21,621 06 4

It appears that this balance was made up as follows:

Cash, March 26, 1881.......................... $496 40

Deposit in First National Bank of Brewsters...... 2,279 36

Bills receivable, as above....................... 8,012 76

James E. Kelley, overdraft......................

May 15, 1874................................. 10,619 99

John Drew, overdraft.......................... 45 00

Read & Crosby, overdraft....................... 12 85

J. J. Parks, overdraft.......................... 12 67

Barnum & Co., overdraft....................... 142 03

$21,621 06

None of the overdrafts have ever been paid. From the amount deposited in the First National Bank of Brewsters to the credit of the bank there was drawn by Foster, October 5, 1881, $1,250, leaving a balance of $1,029.36 still remaining on deposit, which belongs to the shareholders, and is not subject to the order or direction of the administrators of Foster.

A promissory note, drawn by C. Howes for $5,708.07, dated December 23, 1873, payable six months after date, to the order of F. E. Foster, at the Croton River National Bank, appears among the bills receivable, endorsed by Foster as $5,911.20, amount due at maturity June 26, 1874. Further than this the evidence fails to disclose the items composing the bills Receivable.

It appears that Foster was a merchant, and that the Bank was kept in a part of his store; that there were two safes belonging to the bank, and that they had been used by him, to some extent, as the repository of his private papers ; that during the trial .the safes were opened and the contents examined, and there were found several papers in the form of ordinary printed deposit checks to credit profit and loss account, on which the amounts were entered in the handwriting of Foster. The amount of the Howes note, together with the amount appearing upon these checks, were charged by the referee to Foster, and such charge constitutes the chief subject of controversy on this review.

As to the Howes note, it has never been paid. It was given, to Foster for goods purchased at the store, and at that time Kelley was his co-partner therein. It was payable at the bank, and, as; we have seen, it was endorsed by Foster and was entered upon the book among the bills receivable. It is claimed that the inferences to be drawn from these facts are that Foster had caused the note to be discounted at the bank, and being its cashier, was chargeable with notice of its non-payment, and that he should be held liable as endorser, and that consequently it was a proper charge against his estate. It does not appear, however, that he ever caused the same to be discounted, or that he drew any money from the bank by reason of such discount. Had he done so, his account would have been credited with the amount of the note upon the books of the bank; but no such credit is made to appear; no suggestion has been made that the books were improperly kept; and under,the circumstances, we are inclined to the view that inasmuch as the note was payable at the bank, he entered it among the bills receivable for convenience only, and had not charged the bank with the amount thereof.

The referee also allowed an item of $500 November 22, 1884, which amount appears upon one of the papers already alluded to-as found in the safe. The heading is: “ Croton River National Bank of Brewsters, N. Y. Bills receivable.” Opposite the word “ checks ” appears the item “ five hundred dollars.” There was also found in the safe another paper, reading as follows:

“ Brewsters, N. Y, Nov. 22nd, 1884.
“ Croton River National Bank pay to cash (supervisor’s check),, or order, five hundred dollars.
$500.00 F. E. Foster.”

We have no explanation of this item. The first appears to be a deposit check; the other a check upon the bank to pay cash (supervisor’s check) same amount and the same date. If the former paper indicates that he has received from the bills receivable $500 to be deposited with the assets of the bank, the other paper would seem to indicate that he had again checked it out to pay a supervisor’s check. Whether that was for taxes, or something else, does not appear. We are left to determine the facts from inferences alone to be drawn from the papers. The trial court and the general term appear to have regarded these inferences as too vague and shadowy to sustain a charge against the estate, and under the evidence presented, the long delay in bringing this action, and the staleness of the plaintiff’s claim, we must approve of that conclusion.

The other items questioned pertain to the principal and interest of the so-called “ Town Hall note,” some mention of which appears upon the books of the bank; but inasmuch as these items-would not change the result, we do not deem it necessary to give them further consideration.

Disallowing the items for note, and for the $500, the charges against the estate as reported by the referee would be as follows t

Cash March 26,1881.......................... $496 40

Town Hall note, interest, February 11, 1882...... 109 16

Town Hall note, interest, January 27, 1883....... 107 90

Town Hall note, interest, March 1, 1884 ......... 107 90

Town Hall note, principal, April 1, 1884......... 1,000 00

Drawn from First National Bank October 5,1881.. 1,250 00

Overdraft, James E. Kelley, May 15, 1874 ....... 10,619 99

$13,691 35

■ Add interest to the date of the report and we*have the following:

Principal. Interest. Total. $496 40 $241 16 • $737 56 1,000 00 305 00 1,305 00 109 16 47 30 156 46 107 90 40 53 - 148 43 107 90 33 44 141 34 1,250 00 567 90 1,817 90 10,619 99 10,128 80 20,748 79 $13,691 35 $11,364 13 $25,055 48

The plaintiff would be entitled to 1640-2000ths of the total principal and interest, less the amount of the overdrafts of James E. Kelley, with the interest thereon.

1640-2000ths of $25,055.48 is.................... $20,545 49

Deduct overdraft and interest.................... 20,748 79

Balance due estate....................... $203 30

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Mary Hotaling et al., App’lts, v. Harriet Ann Marsh et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    Partition—Will—Children born after testator’s death.
    Testator, by his will, empowered his executors to so dispose of his residuary estate that it might be divided among his grandchildren so that each should receive their share on coming of age, and authorized them to sell or hold as they thought would be for the interest of the youngest ones, and added, “it may so happen that my daughter, Harriet Ann, may live to have other children after my death, and after my executors may have divided my estate; in that case it is my wish that they come in and share in the estate left my wife, after her death, in preference to the others, so that all my grandchildren may eventually, as near as may be, receive the same amount.” The widow refused to accept the provision made for her in the will and was awarded dower. The will was proved in 1859. Subsequently a judgment in partition provided that children of Harriet Ann born after the executors had divided the estate should share ultimately in the part set aside for the doweress. Afterwards other real estate was discovered^ and another action of partition was brought and a similar course taken in regard to the doweress, and a similar judgment entered as to the share of the doweress and any after-born child of Harriet Ann. The widow died in 1887. In 1870 a child (Grace) had been born to the daughter, Harriet Ann. In 1862 the executors brought a suit for the construction of the will, and by the judgment in that Action no provision was made or contemplated for the child born in 1870. In 1870, and after the birth of said child, the executors accounted before the surrogate; a special guardian was appointed for the after-born child, but no part of the assets were set apart for said child. Its rights were neither affirmed nor denied. In 1887 the after-born child .applied to be made a party to the first action of partition and a referee awarded it such a portion of the share of the doweress (now deceased) as would_ make it equal with the other children. Held, that this was the intention of the testator; that the refusal of the widow to accept the provision made for her in the will, in lieu of dower, could not operate to disinherit the infant Grace or deprive her of the provision made for her as an after-born child to share in the third reserved for the widow.
    Appeals by the plaintiff Clarence Peters and Abbie Simpkins, as claimant, from a j udgment of the general term, first department, entered upon a decision of the special term.

      W. H. Atwood, for app’lt Peters; Charles ¡S. Simpkins, for app’lt Simpkins ; John C. Gulick, guardian ad litem, for resp’t Grace S. Marsh: Valentine Marsh, for other resp’ts.

       Affirming 29 St. Rep., 221.

   Haight, J.

Abel S. Peters died on the 14th day of May, 1859, leaving a last will and testament, which was duly proved and admitted to probate before the surrogate of the city and county of New York on the 20th day of September thereafter. He left "him surviving his widow, Harriet Peters; Harriet Ann Marsh, his only surviving child; Clarence' Peters, Franklin Peters, Harriet Ann Peters, children of the testator’s deceased sons, Milton" ■and Franklin; Mary Hotaling and Ellen Campbell, formerly widows of his deceased sons; Valentine Marsh and Frank Marsh, ■sons of the testator’s daughter, Harriet Atm Marsh, his only legatees and heirs-at-law.

This action was commenced on the 14th day of November, 1859, for a partition and sale of four parcels of real estate of which the testator died seized, and final judgment was entered therein on the 18th day of November, 1861. Under such judgment three of the parcels were sold, but that known as No. 177 Reed street in the city of New York has never been sold.

On January 30, 1870, Grace S. Marsh was born of the defendant Harriet Ann Marsh, and on the 14th day of January, 1888, on her petition, an order was made that she be made a party defendant to this action and that a reference be had to ■ascertain her right, share and interest in and to the premises in •question, etc.

Under the final judgment originally entered in this action one-third of the proceeds arising from the sale of the three parcels of real estate was brought into court and deposited with the chamberlain of the city and county of New York with directions to invest the same and to pay the interest accruing thereon to Harriet Peters, the widow of the testator, during her life, as and for her dower interest in the premises sold. She died on the 24th day of September, 1887. The special term ordered judgment ■that the infant Grace S. Marsh was entitled to be preferred out of the ■ principal sum to be divided upon the death of Harriet Petfers, the widow of the testator, to the extent of making her on an equality with the five other grandchildren who participated in the division of the residuary estate of the testator. Her right to be so preferred is the question presented upon this review. It involves a construction of the testator’s will.

In the second clause the testator describes the four parcels of real estate for which this action was originally brought to partition, and then empowered his executors to dispose of the same,, if his widow consent, and invest one-third of the proceeds in bonds and mortgages, the interest of which they were directed to pay her semi-annually during her life, and after her death divide, the same among his grandchildren that survived her. Of the remaining two-thirds he gave one-half to his daughter Harriet Ann, and the other half was disposed of between his daughters-in-law and their children.

The third clause of the will provides that: “Of all my other-estate, whether real or personal, held by me or in trust for me at the time of my death, it is my wish that my executors dispose of the same or put it in shape to divide among my grandchildren so-that each may receive their share on becoming of age, for which purpose I hereby authorize them to sell all or a part of the whole, or divide up and hold such part as they may think to the interest of the youngest ones; for instance : The two front and rear houses-Ho. 134 and 136 West Thirteenth street is lease property, and now pays double what the principal would if sold, all of -which my said executors shall divide equally as near as may be among my grandchildren, viz.: the children of my daughter, Harriet Ann Marsh, and the children of my two sons, Milton and Franklin,, of the latter is Clarence Peters,. Franklin Peters and Harriet Ann Peters, or their survivors, whenever either shall become of age. It may so happen that my daughter, Harriet Ann, may live to have other children after my death and after my executors may have divided my estate. In that case, it is my wish that they come in and share in the estate left my wife, after her death, in-preference to the others, so that all my grandchildren may eventually, as near as may be, receive the same amount.”

The widow refused to accept the provision made for her in the-, will, and she was, therefore, awarded dower instead.

It is true that Grace S. Marsh was not born after the executors-divided the residuary estate, but she was born after the death of the testator and before the death.of his widow and the distribution of that portion of his estate set apart for her use during her life.

“ It may so happen that my daughter, Harriet Ann, may live to-have other children after my death and after my executors may have divided my estate.” The word “ and ” is used to connect two phrases, from which it is argued that the child must be born both after the death of the testator and after his executors', had divided his estate in order to be entitled to the provision. He had in his will named his living grandchildren, and made provision for each. He also made provisions for after-born chil-dren of his daughter Harriet Ann. Ho reason is shown why he should exclude those born after his death and before the distribution of his estate, and still bring in those born after the distribution. In construing wills the court may transpose, reject or supply words in order that the intention of the testator may be ■expressed and carried out, and to avoid absurd and unjust results. He evidently intended to provide for every child born of his daughter either after his death or after the distribution ■of his estate.

The refusal of the widow to accept the provision made for her in the will in lieu of dower cannot operate to disinherit the infant, Grace, or deprive her of the provision made for her as an after-born child. These rights were recognized and provided for in the original judgment entered herein thirty years ago, in which all of the heirs at law and legatees, other than the infant •Grace, were parties, and they are consequently bound thereby. As to the remainder of the clause, the language of the will is clear and specific, and the testator could not well have expressed his intention in plainer words: “It is my wish that they come in and share in the estate left my wife after her death in preference to the others, so that all my grandchildren may eventually as near as may be receive the same amount”

Indeed we do not understand his intention as determined and adjudged by the special term to be seriously questioned, but the claim is made that under the provisions of the original judgment entered herein Grace cannot be preferred out of the third reserved for the widow, for the reason that she was born before there was a division of the residuary estate. That judgment provided, as we have seen, that One-third of the proceeds of the sale of the real estate be paid to the chamberlain to be invested, and the interest to be paid to> Harriet Peters, the widow, during her life, and at her ■death the principal sum so invested to be divided between the five grandchildren of the testator, or such of them as should survive, “subject'however to open and let into share in the same any children that said Harriet Ann Marsh shall have previously had lawfully born to her after the death of said testator, who shall then survive, and provided also that if previously to the birth of said after-born children a division of the residuary estate of the said testator shall have been made by said executors between said five grandchildren, or the survivors of them, then said after-born children shall be preferred out of the said principal sum to be ■divided upon the death of said Harriet Peters to the extent as far as may be of making them equal with said five grandchildren.”

We thus have the language of the decree providing for the ■opening thereof to let in any child or children of Harriet Ann Marsh born to her after the death of the testator, who shall then survive, and that such after-born child or children shall be preferred out of the principal sum to be divided on the death of the widow, and yet, under the proviso, it is claimed that such child or children cannot share such principal sum if they were born previously to the distribution of the residuary estate. Such proviso could not have correctly expressed the intention of the court, for it was held, as we shall subsequently show, that such child or children had no part or interest in such residuary estate. We-think the construction contended for ought not and should not. prevail. It is contrary to the expressed wish of the testator, as well as the evident intention of the court, as is apparent from the other provisions of the judgment. This is a proceeding in the action and upon the judgment entered. Grace has been made a party,, and, if necessary, the court would have power to amend the judgment in that regard in order that the will of the testator might be carried out. But under the view taken by us the judgment as. entered should receive a reasonable construction; the one which was evidently intended by the court, and which will carry out the intention of the .testator.

On the 10th of May, 1861, an action was brought to have the-clauses of the will marked “thirdly” and “lastly” construed,, and thereupon judgment was entered on the 4th day of December, 1862, in which it was adjudged that the residuary estate of the testator vested at the time of his death in his five grandchildren (naming them); “that said residuary estate so vested in said five grandchildren subject to open and let in any children lawfully born of the defendant Harriet Ann Marsh previous to either of the testator’s grandchildren arriving at lawful age; that said grandchildren take in equal shares, each to receive his or her share on arriving at lawful age, and the said defendant Harriet Ann Marsh having had no children born to her since the death of said testator and the defendant Clarence Peters having arrived at lawful age in less than three months after the death of the testator, as found by said decision, it is also adjudged and decreed that said defendant Clarence Peters was so entitled to receive his share on so arriving at lawful age, and that no child born to-said Harriet Ann Marsh after the said Clarence so arrived at. lawful age would be entitled to any share in said residuary estate.”

It is claimed that Grace is bound by this judgment, and that under it she is precluded from taking any share in the estate under the will for the reason that she was not born until after Clarence arrived at lawful age. The court in ordering judgment-in that case doubtless intended to follow the rule adopted in the ease of Tucker v. Bishop, 16 N. Y., 402, and it is claimed to be-, binding upon Grace under the authority of Brevoort v. Brevoort 70 N. Y., 136, and Monarque v. Monarque, 80 id., 320. But without considering these questions, for the purposes of this argument, we will assume that the judgment construing the will was correct, and that it is binding upon Grace. It adjudges that no child horn to Harriet Ann Marsh after Clarence Peters arrived at lawful age would be entitled to any share in the residuary estate of the testator, and he having arrived at age within three months-after the testator’s death' it follows that Grace had no interest or share in such estate. But she is not here claiming any interest in. such residuary estate..

The will purports to give her no interest or share in the residuary. The interest or share given her is in the proceeds of the-four parcels of real estate which was disposed of by the second clause of the will. Her share was to be preferred and paid out of the third of the proceeds set apart for the use of the widow during her life. Ho construction of this clause was asked for, or had, in the action that was brought to construe the will. The construction was as to the third clause and to the residuary estate therein mentioned, which embraced “ all my other estate, whether real or personal, held by me or in trust for me at the time of my death.”

True, the preference under which Grace maintains her claim is incorporated at the end of the third clause, but that clause received construction or adjudication in that .action only in so far as it pertained to the residuary estate, and not as to the four parcels of real estate disposed of under the second clause.

Again, it appears that on the 17th day of June, 1870, an accounting was had by the executors before the surrogate; that on such accounting Grace, then an infant of six months, appeared by a special guardian, and that the surrogate, in his final decree on that date entered, distributed the residuary estate among the five grandchildren, excluding Grace, thus following the judgment of the court entered upon the construction of the will.

Assuming this decree to be binding upon her, it has nothing to do with the question under consideration, for, as we have already shown, she is not asking for or claiming any interest in the residuary estate.

■ We have considered the other questions presented, but find none that point to error.

The judgment should be affirmed, with costs.

All concur.


author: Parker, J.

text:
    George W. Coonley, App’lt, v. The City of Albany, Resp’t.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Municipal corporations—Not liable for non-enforcement of ordinance—Sunken VESSELS.
    A vessel having sunk at plaintifE’s dock, obstructing access thereto, he notified defendant to remove the same pursuant to an ordinance relating thereto, and upon its failure and refusal to do so. caused it to be removed, and brought action to recover the expense incurred in so doing. Held, that defendant was not liable therefor; that the fact that it had adopted an ordinance providing a method for the removal of sunken vessels at docks by-notice to the owners, etc., did not make it liable for the non-enforcement thereof.
    3. Same.
    So much of the ordinance as provided for the sale of the vessel, or the lading thereof, to pay the expense of removal, was invalid, as providing a, forfeiture in the face of tin? statute prescribing that the city should provide for the enforcement of ordinances by fines and penalties in an amount not exceeding that named in the act.
    Appeal from a judgment of the general term of the supreme court, third department, entered on an order affirming a judgment sustaining a demurrer to the complaint.
    The complaint alleges that the plaintiff was the owner of a dock upon the Hudson river, within the city of Albany, adapted to and valuable for the lading, unlading and storage of merchandise from vessels; that on the 26th day of September, 1888, a •canal boat loaded with iron, while navigating the river, sunk at the said dock, and thereby obstructed its use to the plaintiff’s damage; that the defendant assumed the duty of keeping the river free from obstructions by § 10, chapter 42 of the ordinances of the city of Albany, which reads as follows:
    “ Whenever any vessel; loaded or empty, shall, by accident or otherwise, be sunk at any dock, wharf or slip, or anywhere in the Hudson river opposite to the city of Albany, and within jurisdiction thereof, it shall be the duty of the street commissioner, under the direction of the mayor, to give notice to the owner, proprietor or other person sailing such vessel, to remove the same within twenty-four hours, and. in case the owner or proprietor is unknown, and there is no one that sails the same, to give notice in one' of the newspapers printed in the city of Albany at least one week, directing the removal of such vessel as aforesaid; and if the said notice is not complied with, then it shall be lawful for the street commissioner to take possession of such vessel, craft, boat or flat, and to remove the same and at public auction to sell such vessel, or so much of the loading thereof as will pay the expenses of such removal."
    That on the 28th arid 29th days of September, 1888, written notices of such facts, stating the name and owner of the boat, and requesting the removal of the same, were served upon the street commissioner and the mayor, a copy of which notice is annexed to the complaint. That on the 29th day of September, 1888, the mayor gave the street commissioner written directions to remove. said boat; that said street commissioner took the preliminary steps as provided by the city ordinance to accomplish that result, and notified the owner to remove the boat, but finally on or about the 26th day of October, 1888, declined to remove the same, or to do anything more, towards that end; that thereupon plaintiff employed the firm of Payne & Co. to remove the said boat, and paid, them for the work $314.79, besides having suffered other damage to the amount of $1,000 by reason of said sunken boat not being removed by said street commissioner within a reasonable time.
    By reason of said facts plaintiff asks for judgment against the city of' Albany for $1,414.79. The defendant^ demurred upon the ground that the facts stated did not constitute a cause of action.

      Walter K Ward, for a|>p’lt; John A. Delehanty, for resp’t.

       Affirming 33 St. Rep., 411.

   Parker, J.

The defendant did not own, nor did it sink the boat. It neither caused, nor in any wise contributed towards the creation of the nuisance; therefore, Brayton v. Fall River, 113 Mass., 218; Haskell v. New Bedford, 108 id., 216; Boston R. M. v. Cambridge, 117 id., 396; Franklin Wharf Co. v. Portland, 67 Maine, 46; and Sleight v. City of Kingston, 11 Hun, 594, cited by the appellant, are not in point.

The liability, if any, must be founded on a duty to keep the navigable waters of the Hudson within the city limits free from obstruction.

The obligation to keep streets and highways in a safe condition ior public use cannot be invoked against the defendant here, for while the river is a highway, for the passage of vessels, that portion of it which happens to be embraced within the boundaries of a city is not one its highways, so as to burden it with the duty of removing obstructions and keeping it safe for navigation. Seaman v. The Mayor, 80 N. Y., 239.

The river being a highway for state, inter-state and foreign commerce is subject to regulation by congress, but the state because of its great.interest in the continuing availability of navigable waters within its borders for vessels, may properly assume to remove such obstacles as may from time to time prove a menace to successful navigation, provided always that it does not impair freedom of navigation under the acts of congress, or interfere witn any system of improvement provided by the general government.

But while the general government, together with the aid of the state government, may, and generally does, provide for the removal of obstacles which are a hindrance to navigation, and the doing of other necessary things for the encouragement and protection of commerce, and performance in that respect is regarded as a duty, still it is not one that the individual may enforce. Judge Agnew, in the Winpenny case, said: “It is not a duty of perfect obligation, but one' of voluntary assumption or imperfect obligation ; inasmuch as it cannot be enforced against the will of the state.”

The state may not only undertake at its expense to remove obstructions in, and generally improve the condition of navigable waters, but in its discretion it may place the burden of performance on a city or county more immediately and beneficially interested than other portions of the state. County of Mobile v. Kimball, 102 U. S., 691.

It seems to be clear, however, that in order to charge a municipality with the duty and burden of improvements primarily existing in the general and state governments, which they can perform or not as the wisdom of congress or the legislature may suggest, a determination which could no.t be directed or interfered with by the courts at the instance of a complaining party, that it must appear from the act alleged to contain the requirements that it was the intention of the legislature to place upon the municipality the burden of doing all that the state should have done, and more than it could be required to do.

As we read the decision in the Winpenny case cited by appellant it. is in no wise opposed to the views so far expressed. In that case the statute provided that the city should “keep the navigable waters within said city open and free from obstructions,” and the court held that the duty being express, the consequences of a failure to perform rested on the city. Winpenny v. Philadelphia, 65 Pa. St., 135-140.

If the statutes of this state laid on the city of Albany a command in the same terms as to the navigable waters within its boundaries, we should not hesitate to follow the decision in a case founded on neglect of performance resulting in injury. But quite another question would be presented if the attempt-were to recover (as here in some part) for expenses incurred by the plaintiff in doing that which he alleges the city should have done.

The plaintiff decided that the city owed to the public in general, and himself in particular, the duty of removing the sunken boat, and he assumed to perform the obligation which he claimed belonged to the city and should have been exercised through its officers, and now asserts its liability to respond to him for the expense incurred. But we need not consider this quéstion, as we have determined to place our decision on other grounds.

It is not contended that the state expressly charged the city of Albany with the responsibility of keeping the river free from obstructions, but that it conferred on the common council power of local legislation, to be éxercised by the establishment of general rules and regulations under which such purpose could be accomplished, and having accepted charter powers from the state of which these formed a part, the city became liable in consideration of the grant for the due exercise of the powers conferred, and a proper performance of the duties imposed.

Reference is made to § 19, chap. 153, Laws 1801, which provides : “ That it shall be lawful for the said mayor and commonalty to make by-laws and inflict reasonable penalties to enforce the same, for regulating and keeping in repair the docks and slips within the said city, and to prevent the same, and the river opposite thereto, from being in any manner obstructed.” Also to Laws 1826, chap. 185, § 15, which declares: “ That the said common council are hereby constituted and declared commissioners of highways in and for the said city, and shall, and may, from time to time, pass ordinances * * * to abate or remove any nuisances in any street or wharf, * * * to regulate, keep in repair and alter the streets, highways, bridges, wharves and slips, * * * to prevent all obstructions in the river near or opposite to such wharves, docks or slips.”

It may be observed in this connection that the charter of Albany was amended by chap. 298, Laws 1883, and the power to enact ordinances on the subjects now being considered was limited “ to the construction, repair, care and use of the markets, docks, wharves, piers, slips and squares of the city; ” no mention being made of “ the river opposite thereto,” as in the acts of 1801, 1826, and it is insisted that those acts in respect to such provision are repealed by implication.

Assuming, but not deciding, that such contention is not well founded, we come to the fact that the common council did provide by ordinance, that if a vessel be sunk at any dock, wharf or slip, or anywhere in the Hudson river opposite the city of Albany, and within jurisdiction thereof, that a notice should be given to the owner or proprietor to remove it, and in the event of his failure to do so “ then it shall be lawful for the street commissioner to take possession of such craft, boat or flat, and to remove the same, and at public auction to sell such vessel, or so much of the loading thereof as will pay the expenses of such removal.”

For failure to enforce this ordinance relating to matters which the city was not commanded by the legislature to do or perform, and in respect to which in the absence of command it owed no duty, no liability exists.

1. Because there being no liability in respect to the subject matter in question, the statute exempts it from liability for the mere non-enforcement of the ordinances.

Section 44 of title 3 of its charter (chap. 298, Laws 1883) provides : “ Nothing contained in this act shall be so construed as to render the city of Albany or any of its officers liable in damages or otherwise, to any person or persons or corporations, for any omission to pass any ordinance, regulation, or resolution pursuant to the provisions hereof, or for a failure to.enforce the same.” In the absence of a statutory provision this rule has been enforced by the courts. Stilwell v. Mayor, 17 J. & S., 360; 96 N. Y., 649; Hines v. City of Charlotte, 40 N. W. Rep., 335; Wheeler v. City of Plymouth, 18 N. E. Rep., 532; 2 Dillon Mun. Corps., § 950.

2. So much of the ordinance as provides that the street commissioner might sell the vessel or the loading thereof to pay the expenses of removal was invalid, because the ordinance created a forfeiture in the face of the statute prescribing that the city should provide for the enforcement of ordinances by fines and penalties in an amount not exceeding that named in the act. Hart v. Mayor of Albany, 9 Wend., 570-589. The judgment should be affirmed.

Judgment affirmed, with costs.

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


author: Landon, J.—The

text:
    In the Matter of Oscar Strasburger, an Adjudged Lunatic.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    Landlord and tenant—Estate of lunatic lessee not liable for eviction CAUSED BY NON-PAYMENT OF RENT.
    Strasburger was lessee of certain premises, and sublet them for a term of years to the Messrs. Deutsch, who in turn sublet to others. Strasburger became a lunatic and his committee failing to pay the rent, the sublessees were evicted therefor. Reid, that the estate was not liable to the lunatic’s lessees for the difference between the rents reserved and the value to them of the leasehold estate, and as the committee had already paid the subtenants the rents advanced by them upon the portion of the quarter beyond their actual occifpancy, there were no mesne profits which they were liable to pay over.
    Appeal by Simon L. Deutsch and Alexander Deutsch from the order of the general term of the supreme court, first department, affirming an order of the special term upon the report of a referee disallowing the claim made by the appellants for damages against the estate of said lunatic caused by their being dispossessed of premises which he had leased to them when sane.
    Oscar Strasburger was adjudged a lunatic prior to September 17,1884. On that day Albert Strasburger was appointed committee of his estate, and qualified'and thereafter assumed to discharge his duties as such committee. January 15, 1885, Albert Strasburger having tendered his resignation, Eustace Conway was. duly appointed such committee in his place and he qualified and entered upon his duties as such committee. February 6,1882, and December 6, 1883, Oscar Strasburger by written leases leased to the appellants the first, third, fourth and fifth lofts of the building known as numbers 50, 52 Howard street and 16 Mercer street, in the city of New York for terms expiring February 1, 1886, at the annual rental of $4,500 per year.
    The appellants entered into possession of said premises under said leases, and before September 20, 1884, sublet them in several parcels by written leases to various parties at rents aggregating $7,700 per year for the entireterm of theirleases from Strasburger,. except a small parcel which was orally rented for one year at $100 rent.
    All the under tenants of the appellants were in possession of their respective parcels and all were solvent.
    Strasburger was himself the tenant of the owner or the entire building and premises aforesaid under a lease whereby he had agreed to pay his landlord $10,500 yearly rent.
    After Strasburger was adjudged a lunatic and while Albert Strasburger was committee of his estate, the rent falling due November, 1, 1884, t© the owner of the premises, was not paid. Albert Strasburger, as committee, however, demanded payment of the rent of the appellants in advance November 1, 1884, for the quarter ending February 1, 1885, and they paid it to him. Prior to Novefnber 20, 1884, the owner of the premises and landlord of Oscar Strasburger instituted summary proceedings for nonpayment of rent, and made the appellants and their under tenants parties to the proceeding. Judgmént of dispossession was rendered, and on November 20, 1884, the appellants and their under tenants were all dispossessed.
    The difference between the rent paid by the appellants and that received by them from their under tenants was $3,200 per annum, amounting from November 20, 1884, to the.end of their term, February 1, 1886, to $3,831. The rental received by the appellants from their sub-tenants was reasonable.
    The estate of the lunatic is insolvent.
    After their dispossession the special term, upon the application of the appellants and upon proceedings duly taken, directed the committee of the_lunatic to refund to the appellants such portion of the rent paid by them to him November 1,1884, in advance, as was for the unexpired portion of the quarter at the time of their dispossession, and the committee repaid the same to the appellants.
    After the last mentioned order, but before payment under it, Eustace Conway, as committee of the estate of the lunatic, pursuant to an order made by the special term upon his application, gave notice to all the creditors and persons having claims against the lunatic or his estate to present the same, etc. The appellants presented this claim. Such proceedings were had, that afterwards an order was made referring all claims to a referee, and thereupon this claim, among others, duly came to a hearing before the referee, and the facts as above stated appeared and were found.
    It also appeared by the evidence taken before the referee, that before the owner of the premises took the proceedings for dispossession, he told the appellants he would, upon payment of the rent in default, if the committee of the lunatic would consent, substitute the appellants as his tenants in place of the lunatic; that one of the appellants and the agent of the owner then visited the committee and asked him to pay the owner the rent due November 1, 1884, and refund to the appellants the rent paid by them in advance to February, 1885, and allow the appellants to assume the tenancy of the entire premises as from November 1, 1884, and conclude an agreement with the owner to that effect. The committee refused his consent, and the proceedings to dispossess followed.
    The appellants’ claim for damages was disallowed.'

      Joseph Fettretch, for app’lts ; Eustace Conway, for resp’ts.

       Affirming 30 St. Rep., 517.

   Landon, J.—The

lunacy of Strasburger did not discharge or affect his covenants in the leases to the appellants. Matter of Otis, 101 N. Y., 580. His estate is liable for whatever damages the appellants have sustained because of the breach of the covenant for quiet enjoyment in the leases given to them by him. To the extent of such damages they are general creditors, and entitled to have their claim' ascertained in order to be paid in the due course of administration. Id. But the question is, what is the measure of their damages ? The appellants claim that it is the value of the unexpired term less the rents reserved. This would be so if the breach of the covenants for quiet enjoyment resulted from the fault of Strasburger. Mack v. Patchin, 42 N. Y., 167. But the general rule is, in the absence of fault in the lessor, that the lessee can recover only such rent as he has advanced, and such mesne profits as he is liable to pay over. Id. See Walton v. Meeks, 120 N. Y., 79; 30 St. Rep., 266. The committee has already repaid the appellants the rent advaned by them upon the portion of the quarter beyond their actual occupancy, and there _ were no mesne profits which they were liable to pay over. If Strasburger had been sane and had refused" to pay the rent to his superior landlord, and thus had refused to protect his covenants with the appellants, the damages for the breach would have been measurable by the rule first stated. But he became a lunatic, and the breach followed from his misfortune, not his fault.

It is urged that his committee ought to have paid the rent and thus have protected the lunatic’s covenants. But why should the committee pay it ? The estate was insolvent and it does not appear that it was for its interest to make the payment. It might be better for the estate to incur whatever damages might result from the breach of the covenants than to expend the money necessary to protect them. The appellants could themselves have protected their possession by paying the superior landlord the rent due him. Peck v. Ingersoll, 7 N. Y., 528. The committee takes no title to the lunatic’s estate; he is a mere bailiff to take charge of it and administer it under the direction of the court. Matter of Otis, supra; People ex rel. Smith v. Commissioners of Taxes, 100 N. Y., 215. He owed no duty to the appellants of a specific performance of the lunatic’s covenants, and when the estate became chargeable with damages consequent upon their breach, the estate was also entitled to the protection which the law extends to innocence in measuring such damages. Indeed, the burden was upon the appellants to prove the facts which would take this case out of the general rule of damages and bring it within the exceptions. The burden has not been successfully borne. The appellants were only entitled to nominal damages.

The order should be affirmed, with costs.

All concur.


text:
    Nathan S. Starr, App’lt, v. Sarah M. Starr, Resp’t, et al., App’lts.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    Will—Construction of—Taxes.
    One S devised one-third of the use and income of his house and store to his wife for life. By a subsequent clause he authorized and directed his executors to lease the remaining two-thirds of his property, collect rents, pay all taxes, etc., thereon, and divide the residue between his children, devising the same to the heirs of the children in fee on their death. Held, that it was his intention to give his widow one-third of the gross income for life, the taxes to be paid from the remaining two-thirds.
    Appeal from a judgment of the general term, first department, modifying a judgment entered upon a decision.

      Theodore H. Silkman and Frederick H. Man, for app’lts; Matthew Hale, for resp’t.

       Affirming 27 St. Rep., 348.

   Haight, J.

This action was brought for a partition and an accounting for the rents of the premises known as No. 7 Great Jones street and Ho. 5 Barclay street in the city of Hew York.

On December 3, 1856, Hathan Starr died seized and possessed of these premises. He left a last will and testament, the material portions of which are as follows:

“ Fourth. I give and bequeath to my wife, Sarah Maria, the use and income of one-third .part of my house and lot of land situate and lying in the city of Hew York, and known as Ho. 7 Great Jones street; also one-third of the use and income of my store and lot of land in the city of Hew York, and known as Ho. 5 Barclay street, during her natural life.”
“ Sixth. I authorize and direct my said executors, or such of them as shall take upon themselves the execution of this will, the survivor or survivors of them, to lease or rent that portion of my real estate not heretofore devised, being two-thirds of my house .and lot of land known as No. 7 Great Jones street; also my store .and lot of land known as No. 5 Barclay street, from time to time, to collect the rents and income thereof, to pay all taxes, expenses .and repairs, and all other charges thereon, and to divide the residue of the income thereof and pay the same in equal proportions to my five children, Nathan S. Starr, Harriet W. Barry, Zaloman W. Starr, "Mary E. Starr and Frederick A. Starr, during their natural lives, and after their death I do devise and bequeath the same to their heirs in fee forever.”

Thereafter an action was commenced in the supreme court by ■the widow, Sarah Maria Starr, against the children of the testator, in which' judgment was asked that she have dower admeasured in the premises in addition to that devised to her, and that the provisions of the will be construed by the court and their true intent and meaning declared and adjudged.

Thereupon, and on October 18,1858, an agreement was entered into between the widow and the children of the testator in which, such suit was settled and discontinued, she releasing her claim for dower and the children agreeing to keep the house and store in good repair, and to pay her one-third of the rents and income of the real estate, free from taxes, assessments or charges, ordinary .and extraordinary. Thereupon the executors leased the whole of ■such premises and paid her one-third of the gross income therefrom until the commencement of this action.

This action is prosecuted by the plaintiff, who is a grandson of ■the testator and a son of Nathan S. Starr, who was one of the •executors appointed under the will to carry out its provisions. The trial court ordered a sale and a partition of the proceeds, and ■out of such proceeds adjudged that the widow refund one-third of the taxes, repairs, insurance, etc., paid upon such premises during the six years prior to the commencement of the action.

The question presented is to be determined by the construction ' of the sixth clause of the will. The fourth clause gives the use and income of one-third of the real estate mentioned to the widow during her life, and this clause standing'alone would doubtless require her to preserve the premises by paying her proportion of the taxes and repairs, and it is contended that the sixth clause does not change or limit her duty.in this regard; that it creates a trust in the executors to rent the remaining two-thirds, to pay the taxes, expenses, repairs and other charges thereon, and to divide the residue among his five children, naming them, during their natural lives. This, perhaps, is the literal reading of the clause, but doés such construction express the intent of the testator? No power of sale, so far as the real estate is concerned, is given to the executors. A naked power in trust is created to rent the premises during the lives of the testator’s children. The widow is given the use of one-third during her life; the children are given the use of the other two-thirds during their lives.

The real estate is covered with buildings-; that on Great’ Jones street is a dwelling-house, and that on Barclay street is a store. If, as is claimed, the power in trust is limited to the two-thirds ■devised to the children for their lives, then it would follow that the executors could rent only two-thirds bf the dwelling house- and two-thirds of the store, and the widow would have the right, to either occupy or herself rent to others the remaining one-third of each of those buildings, and this right would extend to every room therein. For reasons that will readily suggest themselves,, it will at once be seen that such a power would be impracticable,, and impossible of- execution, unless the widow should Voluntarily join with the executors in leasing to the same persons. ""'.Although there is no express language extending the power of the executors-to the life estate devised to the widow, yet it is quite apparent from the provisions of the will and the situation of the property that such was the intention of the testator.

In construing wills the court may transpose, reject or supply words so that it will express the intention of the testator. Phillips v. Davies, 92 N. Y., 200-204; Tilden v. Green, 40 St. Rep., 512— 532; Pond v. Bergh, 10 Paige, 140.

Extending the power given to the executors so as to" include the-life estate of the widow and -inserting the proper words expressing-such intent, they would be directed to rent the one-third of the-premises, the income of which was devised to the widow for life,, as well as that portion devised to the children for their lives. "With the powers of the executors so extended the sixth clause-may be read as construed by the general term, that is, that the executors are to collect the rents from the two-thirds devised to the children," and out of such rents to pay all the taxes, repairs, etc., thereon, meaning the trust estate, and to divide the residue of the-two-thirds among the children.

This view would be in harmony with the concluding clause of' the section, in which the testator after the death of his children devises and bequeaths “ the same ” to the heirs of his children, in fee forever, the words “ the same ” meaning the entire trust estate.

Of course, if the widow should at that time still be living, the-devise would be subject to her life estate. The language used does not clearly express the intent of the testator and it is left somewhat obscure, but we are inclined to' the view that his intentions were as above expressed and that the will should be so-construed.

This view was adopted by the parties to the contract to which, we have alluded. It has been acted upon since October, 1858. It was adopted by the guardians of the grandchildren after the-death of their parents and was acquiesced in by the plaintiff four years after he became of age. Whilst the grandchildren as remaindermen may not be bound by the contract entered into by their parents as life tenants, the construction adopted therein has-been accepted and acted upon for so many years and is so eminently just that we should not feel justified in overturning the-same, when the provisions of the will are reasonably capable of the construction given and so acted on.

The judgment of the general term should be affirmed, with costs.

All concur.


author: Landon, J.

text:
    Hugh McRoberts, Resp’t, v. Henry S. Bergman et al., App’lts.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Ejectment—Title—Possession.
    In an action of ejectment for a piece of salt meadow and the beach in front thereof, plaintiff proved a chain of title extending back to grants from the crown of Great Britain and proved that one of his predecessors had cut grass from the meadow every year and had used the beach both for fishing for food fish, for the market, and for fertilizing purposes, that he had stakes and poles driven there and out into thp water to support his fish nets and had driven pif trespassers. Held, that the evidence showed that plaintiff’s predecessor had possession of both beach and meadow,_ and the presumption is that these acts were acts of possession under the rights granted him by deed, and a continuation of the like possession by his father under the same title.
    3. Same.
    Plaintiff also proved that for over twenty years he had taken sand from the beach and sold it, about 250 loads each year, and had cut and disposed of the grass upon the meadow. Held, that plaintiff had the better title in respect of the right of possession.
    3. Same—“Sea beach.”
    The word beach denotes land washed by the sea, and in the absence of qualifying words, a boundary by ocean beach extends to highwater mark.
    Appeal from a judgment of the general term, second department, affirming a judgment in favor of the plaintiff, entered upon a verdict upon the trial at the Richmond county circuit.
    The action was ejectment for the recovery of premises in the town of Southfield, on the southerly side of Staten Island, described in the complaint, alleged to contain 8 83-100 acres, consisting of a salt meadow and the beach and shore in front thereof, lying next the waters of the lower bay. of Hew York. The answer contained a general denial, alleged title in the defendants by adverse possession, and that plaintiff’s alleged title was void for ■champerty. At the close of the testimony the defendants amended their answer by leave of the court and abandoned claim to the salt meadow, and limited their defense to the sand beach or shore in front thereof, being a strip of land about 940 feet in length along highwater mark and about 240 feet in width. Upon this strip the defendant, Henry Bergman, had made valuable improvements at an expense of about $11,500. Further facts are stated in the opinion.

      E. Louis Lowe, for app’lts; Wm. M. Mullen, for resp’t.

       Affirming 32 St. Rep., 1111.

   Landon, J.

The defendants claimed title by adverse possession, but rested their defense mainly upon the proposition that the plaintiff did not show title in himself, first, because he did not have a paper title covering the sand beach; second, because his grantors were not shown to have been in possession of the premises as owners; third, because plaintiff’s possession added to that of his grantors was insufficient either in time or character 4o establish title by adverse possession, whether founded upon a written instrument or otherwise; fourth, that his alleged paper-title was void for champerty.

There was some evidence tending, to support the verdict even if it should be held that under the charge of the learned trial judge it was solely dependent upon a title acquired by the adverse-possession of the plaintiff and his grantors not founded upon a written instrument. The charge in this respect was favorable to-the defendants, no valid exception was taken to it; the general term has affirmed the judgment; the trial court was not asked to-hold, as a matter of law, that the evidence was insufficient to-justify a verdict upon that ground, but was simply asked to non-suit the plaintiff upon several grounds; a motion which was-properly denied because the plaintiff might recover upon other grounds. Ho question of fact upon this point is open to our review, and although the evidence in support of such a title seems to us to be meager, we cannot reverse upon that ground.

The defense of champerty was plainly destitute of merit. The charge of the trial court was equally favorable to the defendants,, and no exception is presented upon this branch of the case which avails to reverse the judgment.

In his main charge the learned trial judge submitted the case to the jury upon the sufficiency of the evidence to establish title in the plaintiff by adverse possession, exclusive of a claim of title founded upon a written instrument, and also upon the sufficiency of the evidence to sustain the defense of the alleged invalidity of the plaintiff’s paper title because of champerty.

The plaintiff claimed title under deeds of the locus in quo given him by the widow and heirs of William H. White in 1875. He gave evidence, which we shall presently consider, tending to show that his grantors had title. The defendants relied upon a deed given to the defendant Sarah A. Burke by Ann Stillwell and Joseph Tucker in 1873 purporting to convey a portion of the premises described i'n the complaint, and they attempted to prove that at the date of the deed to plaintiff she was in possession of the premises, claiming and holding them adversely under the deed to her. This was the ba’sis of the defense of champerty. The evidence disclosed its fictitious character; it was, as already stated, disallowed by the jury; we refer to it to show that, notwithstanding the limitations of the main charge of the learned judge, the fact that the plaintiff’s claim of title was founded upon a written instrument, and that the defense was directed to the-impeachment of title thus founded, was present to the minds of the jury throughout the trial. Two of the defendants’ requests to charge were addressed to the effect of the description contained in the plaintiff's deed, and a third request was addressed to itschampertous character.

The court refused to charge as requested by the defendants’ counsel, that the description contained in the deed to the plaintiff did not include the sandy flat above high water mark, that is, the locus in quo.

The court, at the request of plaintiff’s counsel, then charged that said description did include the land to high water mark. The defendants’ counsel excepted to both refusal and charge. The-defendants’ counsel requested the court to charge that the plaintiff, under his deeds, is not entitled to recover 8 83-100 acres, but only five acres, one rood and six perches. " This the court refused, and defóndants’ counsel excepted. Since- the court had, in effect, instructed the jury that they could not find a verdict for the plaintiff’ upon his alleged paper title, if the defendants then, by their requests, induced the court to give it a construction, and thus lead the jury to suppose that they also could consider it, this implied change in the instruction of the court would be of the defendants’ procurement, and not a ground of reversal of the judgment against. them. Nevertheless, the general term, as its opinion states, held that the plaintiff proved his paper title to be good. It may be that the jury placed their verdict upon that ground. The counsel for the respective parties invite ns to examine the question. We. therefore, have examined the evidence adduced in support of it. The result is the conclusion that the plaintiff did prove a clear prima facie title to the locus in quo ; that apart from the evidence-bearing upon the defense of champerty which the jury properly disposed of, that title was in no way impeached.

In 1875 the plaintiff obtained deeds of the locus in quo from the widow and heirs of William H. White. John S. Keteltas conveyed the premises to White in 1847. John S. Keteltas, under the will of his father, Stephen Keteltas, who died in 1845, obtained whatever title Stephen had in his lifetime. Stephen was the son of Captain John Keteltas, who died in 1780, and whatever title Captain John had in his lifetime became vested upon his death in Stephen.

The plaintiff read in evidence a deed given in 1756 to Captain John Keteltas by the executors of the will of Jacob Berge of two-parcels of land, containing respectively eighty-one acres and forty acres; following the description of the forty acres, the description continued: “And also a little lot of salt meadow at Eagle’s nest point, on the west side of Peter Nowll’s land, to the said lot of land belonging or appertaining.”

The deed of 1847 from John S. Keteltas to William H. White purports to convey a piece of land commonly called “the little salt meadow ” in the town of Southfield, “ bounded northeasterly by salt meadow of Peter Jacobson; northwesterly by the water course known as New Creek; southwesterly by salt meadow land of J. L. Flake; southeasterly by sand beach or shore, containing five acres, one rood and six perches, as surveyed in October, 1846, by C. H. Blood. And also all the right, title and interest of the party of the first part, which he now has or ever had, and which was owned and enjoyed by Stephen Keteltas, deceased, .luring his lifetime, of, in and to the beach, shore and waters of the bay in front of the said described premises hereby to be conveyed.”

Stephen Keteltas died in 1845 seized of the eighty-one and forty acres described in the deed of 1756 to his father. They composed part of the homestead farm upon which he always resided. The salt meadow and beach described in the complaint ■and in the deed of 1847 to White lie near to this farm, and were used in connection with it

The salt meadow mentioned in the deed of 1756 is identified with the locus in quo if the words of this description, “ to the said lot of land belonging or appertaining,” refer to the lot of forty -■acres immediately theretofore described in the same deed, as they probably do: But the possession of Stephen Keteltas of the salt meadow and beach in front, as well as of the adjacent eighty-one and forty acres, dates from the earliest memory of witnesses, was as complete as the character of the land and the uses to which he chose to devote it rendered practicable, and was of unchallenged ownership. His title to the eighty-one and forty acres has never been questioned. Upon the trial the defendants disclaimed all ■denial of the plaintiff’s title to the salt meadow, and only insisted upon their denial as to the sand beach. At the close of the testimony they amended their answer accordingly. The identification •of the salt meadow described in the deed of 1847 with that described in the deed of 1756 is thus partly conceded, is substantially established, and is the more conclusive since there, is no ■evidence tending to show the practical location of any other salt meadow as answering the calls of the earlier deed. The evidence •shows that Stephen Keteltas had possession of both beach and meadow.

Together they formed a single lot, bounded by the sea in front, by a creek in the rear, and by a ditch on each side about three feet in depth. Between the meadows and the beach there was no artificial boundary; The sea during living memory has been encroaching upon the land and witnessess testified that where the beach once was the sea now is, and that what was once part of the ■salt meadow is now the sand beach. The boundary ditches along -the meadow land were open and well defined. They extended in a straight line across the beach to the sea, but on the beach the ■shifting sand usually filled them, and 'Stephen Keteltas occasionally reopened them. • Such ditches are the customary boundaries of such lands upon the island. Stephen Keteltas cut the grass upon the sale meadow every year, and used the beach for fishing both for food fish, for the market, and for fertilizing purposes. He had stakes and poles 'driven there and out into the water to ■support his fish nets. Occasionally trespassers came upon the beach for sand and he forbade their taking it and caused them to ■go elsewhere. ■ Within the case of Roe v. Strong, 119 N.Y., 316; 29 St. Rep., 504, these acts of ownership must, under the circumstances, be referred to the exercise of the right purporting to be granted by the deed of 1756 and not to any usurpation. The presumption is that these acts were acts of possession under that deed, and in the absence of any opposing evidence, that Stephen Keteltas’ possession was the continuation of the like possession of his father under the same title from its date in 1756. Jackson v. McCall, 10 Johns., 377.

There is no evidence tending to rebut this presumption. The ■defendants* insist that the deed of 1847 to White does in terms convey the salt meadow but does not in terms convey the beach, but only all the right, title and interest of the grantor John S. Keteltas and such as his father had therein.

A grant of a salt meadow separated from the sea only by a beach formed by the sand thrown by the waves upon the meadow itself, ought not, in the absence of evidence of the public reservation or of a hostile grant to another, to be construed, to use the-words of the opinion in the case cited, “ to cut him (the grantee} off from access to the water over his own land.”

The word beach denotes land washed by the sea, and in the absence of qualifying words, a boundary by the ocean beach extends to highwater mark. Trustees of East Hampton v. Kirk, 68 N. Y., 459; People ex rel. Burnham v. Jones, 112 id., 605; 21 St Rep., 820.

The practical location of the lot within the boundary ditches extending to highwater mark is not inconsistent with the language-of the description of the salt meadow in the deed of 1756. The-usage of parties under an ancient grant aids-in construing its obscure terms. Trustees of Brookhaven v. Strong, 60 N. Y., 56—72. The additional words of the deed of 1847 “ of all the right, title and interest of the party of the first part in and to the shore and water of the bay in front of said described premises,” are satisfied by referring them to whatever rights the grantor intended to convey below highwater mark.

The presumption is that when Stephen Keteltas died in 1845 he was seized of the locus in quo as owner deriving title under the deed given to his father in 1756. His possession was peaceable, exclusive, notorious and unchallenged ; it ascended beyond present memory, and was referable to the deed of 1756. It is not. shown to be referable to any other source. He had at least prima facie title. Mayor of N. Y. v. Carleton, 113 N. Y., 284; 22 St. Rep., 625. His son John S. Keteltas, succeeding to his title and possession, conveyed to William H. White in 1847. White th us acquired a prima facie title. Stevens v. Hauser, 39 N. Y., 302. Such a deed suffices if not overcome. It affords sufficient presumptive-evidence of the subsequent possession of the grantee and those holding under or through him unless actual proof of an adverse-possession for twenty years be made. Code Civ. Pro., § 368; Thompson v. Burhans, 79 N. Y., 99; Bliss v. Johnson, 94 id., 235. Ho such proof was made.

The plaintiff must recover upon the strength of his own title; not upon the weakness of that of the defendant. But he measures his title with that of the defendant, and if it is better in respect of his right of possession, he prevails because of its sufficient strength. Dunham v. Townshend, 118 N. Y., 281; 28 St. Rep., 864; Carleton v. Darcy, 90 N. Y., 566; Thompson v. Burhans, supra; Clute v. Voris, 31 Barb., 511; Jackson v. Hubble, 1 Cow., 613; Onderdonk v. Lord, Hill & Denio, 129; Whitney v. Wright, 15 Wend., 171; Hunter v. Starin, 26 Hun., 529.

Upon the facts already stated the plaintiff had the better title in respect of the right of possession.

The plaintiff himself as tenant under White from 1863 to 1875, and as owner from 1875 to 1885 took sand from the beach .and sold it, to the extent of about 250 sloop loads each year. The business was continuous throughout the year. He also disposed -of the grass upon the salt meadow, either cutting it himself or permitting others to do so. This possession was open, notorious and, except as improperly resisted by the defendant, Sarah A. Burke, was exclusive. Thus there was no abandonment for twenty years of the possession and dominion of the premises under the title presumed to have originated in 1756, but it was practically continuous during living memory. It is proper to add that the deed of 1756 by its recitals purports to deduce title from •colonial grants made in the previous century. While these recitals are not evidence against strangers to this title of the facts incited, Hardenburgh v. Lakin, 47 N. Y., 109, they are evidence that the grantors and grantee in the deed of 1756 made a claim of title, and they thus characterize Captain Keteltas’ original entry. There are no other exceptions which require discussion.

The judgment should be affirmed, with costs.

All concur.


author: Bradley, J.

text:
    Sanford Vroman et al., App’lts, v. Charles E. Rogers, Resp’t.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    Negligence—Liability of wharf owner—Evidence.
    Plaintiffs alleged that defendant, a wharf owner, let wharfage for their boat, representing the place to be a safe one, and that it had six feet of water at low tide. The boat was overturned and damaged. Plaintiffs’ counsel requested the court to charge that “if the defendant made the statement that this place was all right, the plaintiffs had the right to rely on that statement,” which it declined to do, remarking that the jury might consider that on the question of negligence and give it such weight as they thought proper. Held, no error, as the plaintiffs’ barge remained there ten days before the injury, and in the meantime it had at low tide rested on the ground, of which the plaintiffs were advised, and the inference was justified that it could then be easily ascertained whether at its particular location as tied to the dock the ground beneath it was or not suitable for it to rest upon.
    Appeal from judgment entered on order of the general term of the city court of Brooklyn, affirming judgment entered upon a verdict in favor of the defendant.

      Benj. Rausch, for app’lts; II. B. Hubbard, for resp’t.

         Affirming 25 St. Rep., 933.

   Bradley, J.

The purpose of the action was to recover damages for alleged injury to the plaintiffs’ barge and its cargo while at the wharf of the defendant at the foot of Twenty-fourth street, in the city of Brooklyn, and it was founded on the charge that the plaintiffs leased wharfage there of the defendant upon the representation of the latter that the place so let was safe, and that it had six feet of water at low tide ; that the plaintiffs anchored their barge there, loaded with hay and feed, and tied it up to the dock, and that after it had remained there ten days it Broke away and turned over, causing the injury to the boat and the destruction of the cargo. And it is alleged that this was occasioned by the depth of the water at low tide, there being less than as represented, and by the unsafe condition of the ground beneath it. The barge was one hundred and sixty feet in length and thirty feet in width And there was evidence tending to prove that the surface of the ground under the vessel sloped <down outward from the dock so that at' twelve or fifteen feet from it the water was in depth six feet greater than it was four feet from the dock. It is claimed. that the low tide at the tiüie in question caused the side of the boat near the dock to rest upon the bottom, and by reason of the slope of the ground, as before mentioned, the boat broke away from its fastenings and turned over, producing the injury and loss complained of. And there was evidence tending to prove that such may have been the ■cause, although that was a question of fact for the jury, and was submitted to them.

The court having instructed the jury that if they found that the bottom of the slip was defective or in unsafe condition, and that it was the cause of the plaintiffs’ loss, the further questions for them to determine were whether the defendant was chargeable with negligence and the plaintiffs free from contributory negligence, as upon the finding of the former in the affirmative and the latter in the negative the plaintiffs’ right to recover was dependent, the plaintiffs’ counsel requested the court to charge the jury that “If the defendant made the statement that this place was all right, the plaintiffs had the right to rely on that statement.” The court thereupon remarked that the jury might •consider that on the question of negligence and give it such weight as they thought proper, and declined to charge that the plaintiffs had the right to rely on the statement that the place was ■all right or that it relieved them from the necessity of making personal examination. And upqn the exception to such refusal ■arises the main question requiring consideration. There was some evidence tending to support the fact that such statement was made to the plaintiffs before they took the wharf. And it is urged by the plaintiffs that the liability of the defendant was not ■dependent'upon negligence, but that upon the finding of that fact by the jury the right to recover would necessarily follow as for breach of contract, if the slip was not all right and the injury was in consequence of such condition. There was in terms no undertaking to indemnify or protect the plaintiffs against loss by reason of any condition at the wharf or in the bed beneath the water there. The defendant was not asked to do that. What was said by him on the subject was in its nature a representation, and if made in good faith he could be charged with liability as for negligence only. The defendant having and assuming to maintain the dock and slip to supply wharfage of vessels for hire, was bound to keep them in suitable condition for the purpose, and for any injury or loss resulting to persons properly using them occasioned by his failure'to perform his duty in that respect, he was chargeable with negligence and liability. Leary v. Woodruff, 4 Hun, 99; 76 N. Y., 617; Barber v. Abendroth, 102 id., 406; 2 St. Rep., 432; Carleton v. Franconia Iron Co., 99 Mass., 216. This duty of a wharfinger requires of him diligence to give safety to the use of the wharf and its harbor by his patrons, while upon them is imposed ordinary care. And assuming that assurance was given by the defendant to the plaintiffs that the place where the barge was moored was in suitable condition and all right, they were at liberty to assume it to be so, and were justified without, imputation of negligence on their part to put their vessel there without personal examination, beyond what was obvious, to ascertain whether or not it was suitable for their use provided they correctly represented to the defendant the character of their vessel and the depth of water requisite for it. And if they suffered loss by reason of a defective condition of the wharf or slip before they had opportunity or reason to observe or apprehend it, and which condition the defendant knew existed or by proper diligence may have ascertained, he was chargeable with the consequences. But the plaintiffs’ barge remained there ten days before the injury, and in the meantime it had at low tide rested on the ground, of which the plaintiffs were advised. The inference was justified that it could then be easily ascertained whether at its particular location, as tied to the dock, the ground beneath it was or not suitable for it to rest upon. And it was in reference to the knowledge and the means of observation during the time the boat was at the dock that the ruling was made upon the request to charge and the question of contributory negligence submitted to the jury. In that view it is not seen that the court was in error. The dock was over one thousand feet in length, and along it farther down than the place where the barge was located, the water was deeper. And as bearing upon the question presented at the trial there was evidence on the part of the plaintiffs that their employee, who took the vessel to the dock, informed the defendant’s superintendent before it was anchored there that it drew six feet of water. There was also evidence tending to prove that the water near the dock at that place was at low tide of that and greater depth. And the inference was permitted that the designation of that place as suitable for the vessel was made by such superintendent in view of the information so received of the depth of water -requisite to-float it, and that if no more than as so represented had been required the place may have been suitable for the wharfage sought by the plaintiffs, and the injury may not have been suffered. Thus was also presented by the, evidence a question of fact not-observed in the proposition which the court was requested to charge, and which so qualified the plaintiffs’ right to have such-proposition submitted to the jury as to support the refusal to-charge it as matter of law.

There was no error in the ruling; and no exception was well taken. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


text:
    Jacob Sallade, Resp’t, v. Charles A. Gerlach, Impleaded, App’lt.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    ¡Evidence—Code Civ. Pko., § 829.
    In an action upon a promissory note made by defendant P. to the order of defendant Gt, and endorsed by him and one Herdic to plaintiff, GK answered that the note was made payable to and endorsed by him to show that he had effected a sale of patent rights for Herdic, and not for the purpose of guaranteeing the note, and that Herdic afterwards wrongfully delivered the note to P. Herdic being dead, the court refused to allow O. to answer the question, How did it happen that the note was made payable to your order? Meld, no error,' as it necessarily called for a personal transaction between witness and the deceased.
    Appeal from a judgment of the general term of the fifth department, affirming a judgment of the circuit court of Brie county In favor of the plaintiff for $1,858.40 damages and costs.
    The complaint is upon a promissory note payable four months after date for $1,250, made by the defendant Phillips to the order •of the defendant Gerlach, and endorsed by the defendants Gerlach and Herdic, of which the plaintiff was the owner. Gerlach the ■endorser appeals.
    The answer of the defendant Gerlach is to the effect that GerJach held the legal title to certain rights in letters patent owned by Herdic in order to effect the sale thereof for Herdic, and having sold the right to use the same in Buffalo to Phillips, Phillips gave this note in part payment thereof, and at the request of Herdic the note was made payable to the order of the defendant ■Gerlach, and endorsed by him in order to show that Gerlach had properly discharged his trust respecting it in favor of Herdic, and not for the purpose of becoming guarantor of the note, and that Herdic afterwards wrongfully delivered the note.

      E. Co wen, for app’lt; Geo. T. War dell, for resp’t.

       Affirming 26 St. Rep., 594.

   Landon, J.

The only question presented by the appellant upon this appeal is with respect to the ruling of the trial judge in sustaining an objection taken under § 829, Code Civ. Pro., by the plaintiff to the question addressed to the defendant Gerlach upon his direct examination: “ How did it happen that the note was made payable to your order ?” Defendant Gerlach had already testified without objection that he and one Briggs and Phillips had purchased of Herdic the joint right to use for the city of Buffalo and adjacent towns “ Herdic’s Cab,” a patented invention, and that each was to pay for his share of the purchase $2,500 to Herdic, and give him his endorsed note therefor. Herdic, Briggs, Phillips and Gerlach thereupon met at the latter’s office, and each purchaser there executed and delivered to Herdic his note or notes,' the note in suit being given by Phillips to Herdic. Herdic died before the trial. These facts appearing, the question above quoted was asked and the objection thereto under § 829, sustained. The appellant now insists that the question did not necessarily call for a personal transaction between the witness and the deceased. But it apparently did call for such a transaction; the defendant was trying to establish a defense which, as stated in his answer, in part rested upon a request alleged to have been made by Herdic to the appellant to endorse-this note for other purposes than to -secure its payment.

If the question did not call for a personal request or transaction, counsel did not assist the court by any ■ intimation that such was-not its purpose. In deciding upon this objection the trial court had to decide the preliminary question of fact presented by the objection, namely, whether the question called for a personal transaction between the witness and the deceased, and had to-make the decision upon the facts as they then appeared to be. We are now asked to reverse because it is possible that the preliminary fact was otherwise than as the trial court decided it-to be.

We must assume in this as in other matters of alleged error that the trial court was right unless it is made to appear that it-was wrong. Denise v. Denise, 110 N. Y., 562; 18 St. Rep., 873, is-cited. But that case is unlike this, because as the court said “ nothing was. deducible from the mere question as to the person or transaction,” and it was therefore not improper to receive the answer and await a motion to strike out, if the answer showed that the fact assumed by the objection really existed:

The judgment should, be affirmed, with costs.

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


text:
    Elizabeth W. Aldrich, App’lt, v. Mary E. Bailey, Resp’t.

      (Court of Appeals, Second Division,

      Filed March 8, 1892.)

    1. Specific performance—When title involved in litigation.
    Prior to the making of a contract for the sale of real estate an action was-commenced by the heirs of a former owner to set aside a deed from their ancestor, which included these premises, on the ground that at the time of making it he was of unsound mind, etc. Held, that as there was no allegation in the complaint that he was insane, or wholly, absolutely and completely incompetent to understand and comprehend the nature of the .transaction complained of, the deed was - not absolutely void, end title-passed under it.
    2. Same—Pleadings.
    The other allegations of the complaint as to physical infirmities, mental! weakness, etc., were made in aid of the fraud, conspiracy and undue influence charged therein.
    Appeal from a judgment of the general term of the supreme-court, first department, entered upon a submission of a controversy pursuant to § 1279 of the Code of Civil Procedure.

      George P. Smith, for app’lt M II. Landon and William D. Page, for resp’t.

       Reversing 28 St. Rep., 571.

   Haight, J.

On June 11, 1889, the plaintiff entered into a. contract with the defendant for a sale of .a lot on Sixty-third street, running through to Sixty-fourth street on Eleventh avenue, in the city of Hew York. The defendant now refuses to ac.cept a deed from the plaintiff, and to pay therefor, for the reason that on June 3, 1889, a notice of lis pendens was filed in the office of the clerk of the city and county of New York in an action in the supreme court wherein William Paine is plaintiff and William Noble et al. are defendants, the object of which, as stated in the notice, is to have certain deeds, conveyances and other instruments affecting the title to. the block of which the plaintiff’s lands form a part declared null and void, etc. Neither the plaintiff nor her grantor were made parties to that action. John Paine was formerly the owner of the block in controversy, and conveyed the same to Elizabeth Noble.

The general term held that under the complaint filed in that action it may be found that Paine was insane at the time he executed the deed tó Noble, and if he was, his deed was absolutely void and no title would pass, under the authority of Van Deusen v. Sweet, 51 N. Y., 378. Assuming for the purposes of this case that the rule is there correctly stated, and that a deed would be not merely voidable but absolutely void when executed by an insane person, yet under the rule in that case a deed is absolutely void only when it appears that the person executing it was at the time so deprived of his mental faculties as to be wholly, absolutely and completely unable to understand or comprehend the nature of the transaction. It consequently becomes necessary to examine the complaint in that action and determine whether such relief could be granted thereunder. It is alleged that: “ On or about May 28, 1885, and for two years and more prior thereto, said Paine, by reason of his extreme old age, physical infirmities and other causes, was mentally weak, incompetent, unsound of mind, incapable of attending to business personally, and incapable and incompetent to understand and comprehend properly the nature of a business transaction, was entirely under the complete influence and control of those composing his own household, and particularly of one Sears, his agent, and was physically incompetent and incapable of resisting successfully any disposition of his property that might be recommended, requested or required of him by said Sears and other members of his household, and that these facts were known to said defendant Noble.”

The complaint further alleges that through force, fraud and undue influence exercised and practiced upon Paine by Sears, his agent, who was induced to and did so practice the said force, fraud and undue influence by reason of large sums of money wrongfully'and fraudulently offered to him by William Noble, acting for himself and the defendant, Elizabeth Noble, the said Sears caused and influenced the said Paine to make a contract in writing whereby it was agreed that Paine would convey to Elizabeth Noble the property in question in exchange for other property situate upon Eifty-seventh street and Seventh avenue, in the city of New York, and that in further pursuance of said fraudulent scheme and conspiracy entered into between said William Noble, acting for himself and said Elizabeth Noble, and Cyrus A. Sears, a deed thereof was subsequently procured to be executed by Paine by which the property in question was conveyed to Elizabeth Noble under the provisions of the aforesaid contract; that the said contract and conveyances were made in fraud of the rights of plaintiff as heir-at-law and legatee of said Paine, who-was at the time of the commencement of that action deceased. ■

It will be observed that whilst the allegations of the complaint are to the effect that Paine was of extreme old age, had physical infirmities, and was mentally weak and incapable of attending to-business personally, and was incompetent to understand and comprehend properly the nature of a business transaction; there is no-allegation that he was insane, or wholly, absolutely and completely incompetent to understand and comprehend the nature of the transaction complained of. A person, we apprehend, may be o£ old age and mentally weak, and still be able to understand and comprehend the meaning of a deed or the transfer of property, lie may have physical infirmities to such an extent as to be unable to transact business personally, and may have to have others act for him, and still he may possess the requisite mind and judgment to transact the business. The strongest and most significant expression used in the allegations of the complaint is that he was of unsound mind. But this was used in connection with the charge of his inability to transact his business personally, or to-understand and comprehend properly the nature of the transaction. No allegation appears as to the extent to which the mind was unsound, or as to whether it was so affected as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction. The other allegations of the complaint to which we have referred are those of fraud and conspiracy on the part of the persons named, and to our mind the allegations of physical infirmities, mental weakness, etc., are only made in aid of those of the fraud, conspiracy and undue influence-charged.

This view appears to us to be sustained by the case of Valentine v. Lunt, 115 N. Y., 496; 26 St. Rep., 254. In that action the-plaintiff, as ,heir at law of Mrs. Yalentine, sought to set aside a, deed of certain premises from her to one Bichardt, and also certain mortgages executed thereon by him to Susan A. Austin and Elizabeth H. Lunt. In that case the question arose upon a demurrer.

It was alleged in the complaint that Bichardt was employed by Mrs. Yalentine in her lifetime 'as her physician; that soon after his employment he entered upon illicit relations with her and obtained control over her mind and property; that thereupon a great-change came over her; she compelled her relations to leave her home and refused to see them or her former friends and remained completely excluded to every one. except Bichardt; that on or about January 7, 1886, she being of unsound mind and incompetent to manage herself or her affairs in consequence of the influence exerted over her by Bichardt, he fraudulently taking advantage thereof, obtained from her a deed of her real estate; that he subsequently mortgaged the same to Susan A. Austin for $12,000, and Elizabeth ÉL Lunt for $9,000; that they received the mortgages and made the loans thereon of the amount stated in good faith, without notice of the mental condition of Mrs. Valentine, or of the fraud practiced upon and the undue influence exercised over her by Richard! It was held that the complaint did not allege that Mrs. Valentine executed the deed to Richardt -while insane, and that the mortgagees were entitled to protection. It consequently appears to us that the complaint in this action is based upon fraud. It is conceded that the plaintiff took title to the lands in question in good faith, paying $300,000 therefor, and under the statute in reference to fraudulent conveyance of lands it is provided that the statute shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor. 2 R. S., 137, § 5.

The judgment of the general term should be reversed and judgment ordered in favor of the plaintiff for the specific performance of the contract in question, with costs.

All concur.


author: Per Curiam.

text:
    Mary Clemans, Resp’t, v. The Supreme Assembly of the Royal Society of Good Fellows, App’lt.

      (Court of Appeals,

      Filed March, 15, 1892.)

    1. Benefit societies—False statements.
    Insured stated in his application that he had applied to another insurance company, but had not been rejected, whereas he had applied to another company and had leen rejected. Held, that such answer being a part of the contract of insurance, and being false, avoided the contract.
    3. Same—Knowledge of agent.
    It is not important that the party making the warranty really believed in its entire truth, nor does the mere knowledge of the agent of the company at the time when it was made that the warranty was false prevent defendant from setting up the breach as a defense to the action on the policy.

      (O’Brien v. Home Benefit Soe. of H. T., 117 FT. Y., 310; 27 St. Hep., 326, distinguished.)
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.

      S. M. Idndsley, for app’lt; 0. Morsfhauser, for resp’t.

       Reversing 38 St. Rep.,1019.

   Per Curiam.

The uncontradicted evidence in this case clearly showed that the assured just prior to June 20, 1887, applied for insurance by means of a written application signed by him to the Prudential Life Insurance Company of America, and on that date his application was rejected by that company.

The learned court found that the, assured .made no false statements in his application for insurance to the company defendant. In such last mentioned application he stated in answer to questions asked therein, that he had applied to another insurance company for insurance, but had not been rejected. That this answer was false cannot be disputed upon the uncontradicted evidence. The application and the answers thereto were part of the contract of insurance and were made so ■ by the certificate. The answer was a warranty, and upon this evidence there was a breach thereof. • Foot v. Ætna Life Ins. Co., 61 N. Y., 571; Cushman v. U. S. L. Ins. Co., 63 id., 404.

It is not important that the party making the warranty really believed in its entire truth. If it- be false it avoids the contract. Nor does the mere knowledge of the agent of the company at the time when it is made, that the warranty is false, prevent the defendant from settling up the breach as a defense to the action on the policy. Id.; Barteau v. Ins. Co., 67 N. Y., 595.

The finding of the learned trial judge that the application of the assured to the Prudential Life Insurance Company was withdrawn was not supported by any evidence, as we think, while the finding that the facts were within the personal knowledge of the-agent Jacobs, who procured this insurance, furnishes no answer to-this charge of breach of warranty. Mere knowledge of the falsity is n'ot, as we have seen enough to prevent the defense from being set up.. There is, as we think, sufficient evidence in this case to-permit a jury to find that the agent of the defendant fraudulently concealed from the assured the fact that he had been rejected by another company to which he had applied through this same agent, and that such agent while himself aware of the fact of such rejection, procured the assured to make application to this defendant through him as agent of the .company and to innocently state that he had not been rejected by any other company, when the agent knew such statement was false. If such were the case we think the defendant would not be entitled to set up the breach of a warranty which had been thus procured. The case in such aspect would much resemble that of Plumb v. Ins. Co., 18 N. Y., 392.

. There is evidence on the part of the defendant which contradicts this theory, for the agent swears the assured was rejected June 20, and that within two weeks thereof he so informed the assured and returned him the premium. What the trial court states in one of the findings in this case we think amounts to merely a statement of knowledge of the agent as to the falsity of the warranty when it was made. This is not a defense. There is no finding of fraud and there is evidence in the case which if believed shows there was none. We cannot draw the inference-of fraud in the first instance for the purpose of supporting a judgment, even where there is evidence which would permit the in- „ ferenee, because there is also evidence which, if believed, negatives-its existence, and the judgment does not proceed upon the ground of fraud.

There is no evidence that the answers to the application were-truly made and erroneously taken down by the agent of the company, and hence it does not come within the O’Brien and other-kindred cases. O'Brien v. Some Benefit Society of New York, 117 N. Y., 310; 27 St. Rep., 326.

We must reverse this judgment and grant a new trial, costs to abide the event

All concur.