text:
    SOLON S. LAING, Respondent, v. CHARLES S. BUTLER and NATHANIEL F. T. HAYDEN, Appellants.

      Principal and, agent — when the principal is not liable for the price of goods purchased by Ms aqent on credit.

    Wherea principal has placed in the hands of his agent money wherewith to pechase goods for the principal, and the agent, without disclosing his agency, purchases goods for the principal on credit in his own name, the principal is-not liable to the person selling the goods for the price thereof.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe report of a referee in Cattaraugus county.

      Frcmlc W. Stevens, for tbe appellants. -

      W. G. Laidlcm, for the respondent.
   Haight, J.:

This action was brought to recover tbe sum of $867.23, being tbe contract price of a quantity_of bides sold by tbe plaintiff to Edward F. Smith. The bides when delivered to Smith were not paid for, but it was understood that be should give two checks on tbe banking office of Amos Dow, and that they should be held for a few days before presentation for payment. Tbe checks when presented were not paid, and subsequently this action was brought. Tbe evidence fully sustains tbe findings of fact by tbe referee. Tbe referee bas found that the bides in question were purchased by Smith at East Eandolph, N. Y., under and in pursuance of a written agreement with the defendants, of which the following is a copy:

“Albany, N. Y., February 17, 1882.
It is hereby agreed between Butler, Hayden & Co., of Boston,. Mass., and E. E. Smith, of East Eandolph, N. Y., that said Smiths shall buy for said Butler, Hayden & Co., not exceeding" Üfteéhs thousand^laughter country-hides per year, and not exceeding sixty thousand_caIf“ shins, in hair, per year, mostly deacon skins, at the lowest prices possible, and tan them into rough leather in a reasonable time’ and in a workmanlike manner, at his tannery in East Eandolph, N. Y., and at the tannery at Hnion, Pa. (all the skins to be tanned at East Eandolph, and as many of the hides as possible also, the balance of the hides at Hnion), and forward the same to Butler, Hayden & Co., Boston, Mass. The said Butler, Hayden & Co. are to furnish the money needed to buyTE'eTiideYah&skins. They are to sell'theleather and skins in rough when tanned and received by them, and after deducting from the amount of the sales the-money furnished, with interest at six per cent per annum, a commission of five per cent on the amount of sales, the transportation, insurance and incidental expenses, then the balance shall be the compensation of said Smith for buying the hides.and skins and tanning the same, and the deficiency, if any, shall be paid to said Butler, Hayden & Co. by said Smith. Said Smith is to bear all risk of loss by fire, water or otherwise. Invoices of hides and skins bought to be sent B., H. & Co., as fast as possible. It is understood and agreed that this contract covers all hides and skins tanned by said Smith at East Eandolph, N. Y., and Hnion city, Pa., during its continuance. This contract is for two years, from April >1, 1882 (that being the date of the termination of the Butler, Dunn & Co. contract), it being understood that Mr. Smith may commence buying hides and skins at once under this contract. It being also understood and agreed that if said Smith concludes to build (as he intends to do the coming summer) a new tannery at or near Corydon, Pa., of a capacity not exceeding one thousand hides per week, said Butler, Hayden & Co shall stock it also on same terms and conditions; it being also understood that if this new tannery is built the tanning at Union, Pa., will cease. It being understood that the title to all stock bought under this contract is to be in said Butler, Hayden & Co.
“ "Witness our hands and seals.
“ BUTLER, HAYDEN & CO. [n. s.]
[L. S.]”

That the defendants supplied Smith with $65,000 for the purpose of buying hides and skins, pursuant to the written contract, and that the sum so furnished to Smith was largely in excess of the sum expended by him for that purpose; that the hides purchased by Smith were in fact purchased by him as the agent of the defendants, and were received by them; that at the time of the sale and delivery of the hides by the plaintiff ho was ignorant of the fact that they were purchased for the defendants, and did not know of the existence of the written agreement, nor of the relations of Smith to the defendants. Upon these facts the referee has held that the plaintiff is entitled to recover, and from the judgment entered upon his report this appeal was taken.

It is apparent, from an inspection of the written agreement between the defendants and Smith, that he was constituted their agent to purchase hides, and that the title of the hides, as soon as purchased, vested in the defendants; that the defendants were to furnish Smith with the money needed to buy the hides. Nothing is said in the contract as to Avhether the hides should be purchased for; cash or upon credit, but inasmuch as the undisputed evidence shows that the defendants advanced the money before, the purchase, the conclusion is irresistible that it was the understanding that the purchase should be for cash. It is contended in the first place that the written agreement constituted Smith a general agent of the defendants ; but whether he was a general or special agent.weUi&ve^not thought it necessary to deteiffliffeUfoi'dii the view that we take of the case it, becomes immaterial. Tbe ' question is therefore presented, whether or not the plaintiff can recover of the principal for goods sold to an agent, when the sale is made to the agent and the credit given to him without knowledge that he is purchasing for a principal, when the principal has already furnished the agent with the money with which to make the purchase. We have carefully examined all of- the authorities cited by the respondent and the learned referee bearing upon the question, and fail to find any that sustain the proposition contended for. They are either cases in which the agent, at the time of making the purchase, disclosed the fact that he was purchasing for a principal, or cases in which the .agent was authorized 'by the principal to purchase upon credit and then make payment-to the agent after the disclosure of such agency. 'The rule is stated by the learned referee to be elementary, that if the agent buys in his own name, but for the benefit of his principal and without disclosing his name, the principal is also bound as wel-.as the agent, provided the goods come to his use, or the agent acted in the business intrusted to him according to his power. This is the general rule so far as stated; it, however, has limitations and exceptions which we shall notice farther on. It will be observed, however, in the rule as stated, that the principal will be held, provided the agent acted in the business intrusted .to him according to Ms power. In the case of a general agent with the agency disclosed, the person dealing with him has the right to .assume that his acts, within thfe general scope of the business intrusted to him, are authorized by his principal, and the dealer has the right to rely upon such assumption. The reason for this rule ,is obvious. It is for the protection of the dealer from being deceived as to the precise authority of the agent where the means are not at hand to ascertain and determine his true and precise authority; but no such reason exists in the case where the agreement is made with an agent who does not disclose his agency; in that case the contract is made with the agent individually. The agent’is bound by his acts as if he were principal. Credit, if given, is given to the agent. There is no opportunity to deceive the dealer as to his precise authority, 'for the reason that no agency is ■claimed. If the agent discloses the fact that he is acting for a principal, naming the principal for whom he is acting, then the agent personally is not bound; if credit is given, the person giving it must look to the principal. If the principal is n..t disclosed at the time of the contract by the agent, and it is subsequently ascertained that he was acting as agent, then the seller may look either to the principal or agent, but in order to' hold the principal under such circumstances, it must be shown that the agent acted accord ing to his authority, or that his acts had. been subsequently ratified and confirmed.

In Dunlap’s Paley on Agency (246) it is said: “ The broker may buy in his own name without disclosing his principal, in which case the invoices will of course be made out to him and he will be debited with the account. If now, before payment, the seller discover that the purchase was in fact made for another, he may, at his choice, look for payment either to the broker or the principal; to the former upon his personal contract, to the latter upon the contract of his agent, and the adoption of -the purchase by the principal will be evidence of the agent’s authority. ...But if after the disclosure of the principal the seller lie by and suffer the principal to settle in account with his broker for the amount of the purchase, he cannot afterwards charge the latter so as to make him a loser1* but will be deemed to have elected the broker for his debtor.”'

And again at page 250 he says : It is a general principle that if the creditor voluntarily give an enlarged credit to the agent óf the debtor, or adopt a particular mode of payment whereby the principal is placed in a worse situation than he would otherwise have been, the liability of the original debtor is discharged ; and therefore if a creditor voluntarily, and for his own accommodation, take a security from an agent of the debtor who afterwards-fails, having in his hands funds of his principal adequate to the payment of the demand, he cannot afterwards resort to the principal.”

And, again, at page 245: “ Servants to whom money is paid in advance to purchase goods with, and who, notwithstanding, are allowed by the sellers to deal upon credit; in such cases the credit itself being unauthorized by the masters, they are not liable; but if the master justify the credit given to the servant at all, he is not then discharged by paying the price to the servant if the latter omit to pay it over to the creditor.”

Story on Agency (at sec. 291) says: “ When, therefore, the agent acts without disclosing that he is acting as an agent; or when acting as a known agent he does not disclose the name of his principal there; although credit is given to the agent, yet it is not deemed to be an exclusive credit. On the contrary, when the principal is discovered, he also will be deemed responsible as well as the agent. There is this qualification, however, annexed to such liability of the principal, that nothing has in the meantime passed between the principal and the agent to alter the state of their .accounts or otherwise to operate injuriously to the principal if he has acted in the confidence that exclusive credit was given to the agent, and, moreover, táat there has been no laches on the part of the creditor.” 1 Parsofis on Contracts (p. 63) says: “An undisclosed principal, subsequently! discovered, may be made liable on such contract, but, in general, - subject to the qualification that the state ■of the account between the principal and agent is not altered to the detriment of the principal,” and so on.

In the case of Armstrong v. Stokes (L. R., 1 Q. B. Cases, 598) it was held that a vendor who has given credit to an agent, believing him to be the principal, cannot recover against the undisclosed principal if the principal has Iona fide paid the agent at the time when the vendor still gave credit to the agent and knew ■of no one else as principal. We are aware that this case was criticised by the learned referee, and the case of Irvine v.

Watson (L. R., 5 Q. B. Div., 102) was cited approvingly. But in this case the agent disclosed the fact that he wanted the property for “ a principal in the country,” thus giving the seller the right to rely upon the principal for payment. Bowen, J., in delivering the opinion of the court, cites approvingly the principle decided in the case of Armstrong v. Stokes, and makes the disclosing of the purchase for a principal a fact distinguishing the case. This case was affirmed on appeal. (L. R., 5 Q. B. Div., 414.) In the case of Davidson v. Donaldson (L. R., 9 Q. B. Div., 623), decided in 1882, the doctrine of Armstrong v. Stokes is again asserted. In the case of Clealand v. Walker (11 Ala., 1058), Colliee, Oh. J., in delivering the opinion of the court, says: “ If one was to say that he authorized another person to purchase property, and furnished him the money to pay for it at the time, this would not bind the principal to pay for -it if the agent had converted the money; but if the money was returned to him, or the purchase made on credit, and the principal afterwards furnishes the means for payment, he would be bound for the faithlessness of the agent in not applying them.”

In the case of Komorowski v. Krundick (56 Wis., 23), the action was to recover the value of a quantity of wheat sold. Tatloe, J., in delivering the opinion of the court, says: “ If the evidence is sufficient to show a sale upon credit to Grist as agent of the defendants, and that the wheat was delivered to the defendants and. received by them of Grist, still they would not be liable to the plaintiff unless they received the wheat knowing it had been bought upon credit, or they had received the wheat of Grist knowing they had no funds in his hands at the time sufficient to pay for the same. If they furnished money to their agent sufficient at all times to pay for all the wheat they received from him, they had the right to suppose that all the wheat bought by Grist for them was paid for at the time it was delivered to them, and if he had not in fact paid for it they would only be liable to the seller under the circumstances above stated.” (See, also, Tafft v. Baker, 100 Mass., 68.)

In the caseuf Fish v. Wood (4 E. D. Smith, 327), it was held that where an agent buys in his own name without disclosing his principal, but for the benefit of the latter, though within the authority of the agent, and the principal without any notice of the purchase or of the claim of the vendor pays his agent for the goods, he cannot be made liable afterwards to the vendor. In Jaques v. Todd (3 Wend., 83-94), Maeot, J., in delivering the opinion of the court, says : “ Where money is given to the agent or servant to purchase goods for his principal or master and he retains the money and purchases on the credit of his employer, the latter is not liable unless it can be shown that sometimes the agent or servant has been jiermitted to buy on credit.”

In the case of McCullough v. Thompson (45 N. Y. Supr. Ct., 449), it was held in a sale of goods to an agent who purchases in his own name and to whom the credit is given, the principal is not liable to respond to the vendor for the price of the goods where it appears that the principal has paid the agent for the goods. In the case of Knapp v. Simon (96 N. Y., 284-288), Ruger, Ch. J., states the rule as follows: “ The effect of a purchase of property by an agent who does not disclose the name of his principal at the time of such purchase, is to render the agent personally liable to the vendor for the purchase-price. The agent is under no legal or moral obligation to make such disclosure, and the only consequence of an omission is to create a liability which he might escape by informing the vendor of the circumstance of his agency and the name of his principal. The vendor may, however, upon discovering the name of the principal in the transaction, also hold him responsible for the price of the property bought, provided he has not in the meantime, in good faith, paid such price to the agent.”

We have thus briefly alluded to some of the authorites both in England and this country which bear upon the question under consideration. They are the nearest in point of any that we have been able to discover. ■ From them it appears to us that where an agent buys in his own name, but for the benefit of his principal, without disclosing the name of the principal, the rule is that - the principal as well as the agent will be bound, provided the goods are received by the principal, if the agent in making the purchase acted within his power as agent; but that this rule is subject to the following limitations and exceptions: First. The purchase of the agent must be within the power conferred upon him by his principal, or it must be shown that the principal has subsequently ratified his acts. Second. If the principal furnished the agent with the money with which to make the purchase before the purchase, and the agent should, without his knowledge, purchase the property upon credit without disclosing his principal, that the principal will not be bound; and, Third. Where the purchase has been made by the agent ujion credit, authorized by the principal, but without disclosing his name, and payment is subsequently made by the principal to the agent in good faith before the agency is disclosed to the seller, then the principal would not be liable. In the case under consideration it appears that the defendants authorized Smith to purchase the hides for them ; that they advanced the money to him with which to make the purchases they had authorized. The plaintiff, in selling the hides to Smith, sold to him upon his individual credit and promise to pay. The case therefore appears to us tó be within the exceptions to the rule mentioned, and it consequently follows that the plaintiff is not entitled to recover.

Judgment reversed and a new trial ordered, with costs to abide the event.

Smith, P. J., BabKeb and Bbaeley, JJ., concurred.

Judgment reversed and a new trial ordered before another referee, with costs to abide the event.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    In the Matter of the Estate of ELISHA W. ENSIGN, Deceased.

      Statute of distributions — 8 B. S. {Qth ed.), 104, sea. 90 — a divorced woman is not the “ widow ” of her former husband upon his death.

    A "woman who has procured from the courts of this State a decree for a divorce from her husband upon the ground of his adultery, is not, at the time of his death, his “widow” within the meaning of that term as used in the statute of distributions, and is not entitled to a distributive share of his personal estate.
    Appeal from a decree of tbe Surrogate’s Court of Erie county.

      Adelbert Moot, for Jennie Ensign Martin, petitioner, appellant.

      George M. Osgoodhy, special guardian for infant May Ensign.

      George ZT. Loveridge, for George W. Holt, executor, etc.

      Rogers, Loalce c& Milbwrn, for respondent Cornelia Hamilton.
   Haight, J.:

Tbe appellant Jennie Ensign Martin presented a petition to tbe Surrogate’s Court of Erie county praying for a citation to issue to Cornelia Hamilton, as sister of Elisba W. Ensign, deceased, and as administratrix with will annexed of said deceased, and to tbe other parties interested, requiring tbem to appear in court and sbow cause "why tbe probate of tbe pretended last will and testament of Elisba "W. Ensign, deceased, should not be wholly revoked and annulled; and to further show cause why Cornelia Hamilton should not be removed from her position as administratrix, etc. On tbe presenting of such petition citations were issued to tbe parties therein named, and on the return day thereof an answer was interposed by Cornelia Hamilton, and tbe issues formed thereby were tried before the surrogate, who found as facts that Elisha W. Ensign died on the 1st day of October, 1877, then being a resident of the city of Buffalo; that at the time of his decease he left him surviving Charles Ensign, who was his brother, and Cornelia Hamilton, who was his sister. That they were of full age and were his only next of kin and heirs-at-law; that he left a last will and testament which had been duly proved and admitted to probate; ■ that Cornelia Hamilton had been appointed administratrix with the will annexed; that no notice of the probate of the will had been served upon the petitioner. That ■on the 24th day of May,, 1867, at Cincinnati, in the State of Ohio, Elisha W. Ensign was married to the petitioner, Jennie Ensign Martin, and that they thereafter lived and cohabited together as man and wife until the year 1875; that on the 10th day of November, 1869, issue was born of such marriage, which died within twenty-four hours of its birth, and that there was no other issue; that on the 28th day of October, 1875, the petitioner commenced an action of divorce against her husband Elisha W. Ensign, in the ■Court of Common Pleas, in and for the city and county of New York, upon the ground of his adultery, and thereafter such proceedings were had in the action, that on the 13th day of December, 1875, the court rendered a judgment in the action, ordering and ■adjudging that the marriage between the petitioner and Elisha ~W. Ensign be dissolved; and that each of the parties be freed from the obligations thereof; and it further ordered and adjudged that it be lawful for the petitioner to marry again, but not the said Elisha "W. Ensign. It was further adjudged that Elisha W. Ensign pay to the petitioner as alimony the sum of $25,000, and also the further sum of $13,500, being the amount of a mortgage upon premises owned by her. It was further found as a fact by the surrogate that after the death of Elisha W. Ensign, Charles Ensign, as executor of the last will and testament of Elisha W. Ensign, paid to the petitioner $10,000, being the balance due for the money directed to be paid by the judgment, and that the petitioner thereupon executed a release of all her dower right in and to the lands'and real estate of Elisha W. Ensign. In the month of December, 1877, the petitioner intermarried with one Edward Martin, whose wife she now is.

The surrogate found, as conclusions of law, that the petitioner is not entitled to any distributive share of the personal estate of Elisha ~W. Ensign, and that she was not, therefore, a necessary party, or entitled to notice of the proceedings for the probate of his will. The facts as found are undisputed.

The question which we are thus called upon to determine is whether or not the petitioner, as widow, is entitled to a distributive share of the personal estate of Elisha W. Ensign, deceased. The statute provides that where the deceased shall have died intestate, the surplus of his personal estate remaining after payment of debts, and where the deceased left a will, the surplus remaining after the payment of debts and legacies, if not bequeathed, shall be distributed to the widow, children or next of kin of the deceased in manner following: 1. One-third part thereof to the widow, and all the residue, by equal portions, among the children and such persons-as legally represent such children, if any of them shall have died before the deceased. 2. If there be no children nor any legal representatives of them, then one moiety of the whole surplus shall be allotted to the widow, and the other moiety shall be distributed to the next of kin of the deceased entitled under the provisions of this section,” etc. (3 R. S. [6th ed.], 104, § 90.)

It will be observed that the statute gives a distributive share to the widow. And it thus becomes necessary to determine whether or not the petitioner became a widow within the meaning of this provision of the statute. The statute, in force at the time of granting the petitioner the judgment of divorce, provided that divorces may be decreed and marriages may be dissolved whenever adultery has been committed by any husband or v-ife. That if a wife be the complainant, and a decree dissolving the marriage be pronounced, the court may make a further decree or order against the defendant, compelling him to provide for the maintenance of the children of the marriage, and to provide such allowance to the complainant for her support as the court shall deem just, having regard to the circumstances of the parties respectively. That whenever a marriage be dissolved pursuant to the provisions of the statutes, the complainant may marry again during the lifetime of the defendant, but no defendant convicted of adultery shall marry again until the death of the complainant. (3 R. S., 156,151.)

Tinder the provisions of the statute the decree of divorce dissolves the marriage. In other words, it annuls and terminates the-marriage. The parties are separated and freed from the obligations of the marriage contract, but the party convicted of adultery shall not be permitted to marry again until the death of the innocent party. It is contended on the part of the appellant that the decree of divorce was not intended to cut off or deprive the innocent party of her rights to share in the personal estate of her husband. That on the death of Ensign she became his widow within the meaning of the statute, so as to entitle her to a distributive share of his personal estate. The authorities upon this question are exceedingly ineagre, and so far as this State is concerned the question appears to be new.

Bishop, in his work on Marriage and Divorce (vol. 2), at section 705, says: “ Coming now to consider the effect of the dissolution of a valid marriage upon property rights, we must remember that the decree of divorce, so far from undoing the original marriage, expressly affirms it, and, therefore, does not restore the parties to their former condition, but places them in a new one. Consequently all transfers of property which were actually executed, either in law or fact, abide; for example, the personal estate of the wife, reduced to possession by the husband, remains his after the divorce the same as before. But we shall see, in subsequent sections, that this divorce puts an end to all rights depending upon the marriage, and not actually vested, as dower in the wife, curtesy in the husband, and his right to reduce to possession her dioses in action. When, after this divorce, the man dies, the woman is not his widow, and, therefore, no rights which the. law gives to widows are hers.”

In the case of Wait v. Wait (4 N. Y., 95), it was held that a divorce dissolving the marriage contract on the ground of adultery of the husband, does not deprive the wife of her right of dower in his real estate acquired during the coverture.

In the case of Kade v. Lauber (16 Abb. [N. S.], 288), it was held that a woman divorced on the ground of the adultery of her husband, is not entitled to dower in lands of which he became seized after the divorce, but otherwise as to lands of which the husband was seized during the coverture and before the divorce. It was also held that the decree of divorce under the statute puts an end to the marriage; that the marriage contract is dissolved from and after the decree.

These decisions are placed upon the ground that the inchoate right of dower becomes a vested interest as soon as the husband is seized ; and that, although the divorce' may dissolve and terminate the marriage, it^does not take away a vested interest in real estate previously acquired.

In the case of Moore v. Hegeman (27 Hun, 68) the wife of one 'Moore brought an action for divorce on the ground of his adultery, and procured a judgment granting her a divorce and forbidding him to marry again during her life. Thereafter Moore went with a woman to the State of New Jersey and married her, returning to this State after the ceremony, and continued to reside here. The statute of New Jersey provided that all marriages where either of the parties shall have a former husband or wife living at the time of such marriage shall be invalid from the beginning and absolutely void, and the issue thereof shall be illegitimate. It was held that Moore had no former wife living at the time of the New Jersey marriage, within the meaning of the statute, and that the children born in this State of the second marriage during the lifetime of the first wife were legitimate. BakNARD, P. J., in delivering the opinion of the court, says : “ The rule probably now is that the divorce severs entirely the marriage relations. The divorced wife is no longer wife, either for dower or distribution in the divorced husband’s real or personal property.”

In the case of Van Voorhis v. Brintnall (86 N. Y., 18), a judgment of divorce had been granted in this State dissolving the marriage of Elizabeth Barker and her husband on the ground of his adultery. It also adjudged that it should not be lawful for him to marry again until- her death. Subsequently he married another woman at the city of New'Haven, in the State of Connecticut, during the lifetime of his former wife, and after such marriage he immediately returned and lived in this State. It was held that the marriage being lawful in the State of Connecticut must be recognized as valid in the courts of this State.

In the case of the People v. Faber (92 N. Y., 146), it appeared that the defendant was married in 1878. In 1881 a judgment was rendered dissolving the marriage on the ground of his adultery, and afterwards during the life of the plaintiff in that action he married another woman in this State. It was held that such second marriage was in violation of the statute prohibiting a party convicted of adultery in a divorce action from marrying again in this State during the lifetime of the other party, and that he was guilty of the crime of bigamy. Rapallo, J., in delivering the opinion of the court, after quoting the statute constituting the crime of bigamy, says the language clearly implies that, notwithstanding, such a person is placed in the situation of having a husband or wife living for the yywrposes of the act.

In the case of the Final Accounting in the Estate of Samuel Webb (1 Tuck. Rep., 372), it was held that where "Webb was divorced from his wife by the Supreme Court of this State and forbidden to remarry during her lifetime, but went to reside in New Jersey and remarried there, and afterwards- returned to this State and died, leaving a widow and children of the second marriage; that the second marriage was valid and the widow and children of that marriage were entitled to his personal property to be set apart under our statutes ; that the interest which the first wife had in her husband’s property had been liquidated in the shape of alimony paid to her under the judgment of the Supreme Court during the lifetime of "Webb.

In the case of Chenowith v. Chenowith (14 Ind., 2), it was held that if a married woman obtains a divorce and alimony, she has no interest as survivor in the estate of her husband. Hanfa, J., in delivering the opinion of the court, says: Her marital interest as survivor depended upon her being his wife at the time of his death.”

In the case of Dobson v. Butler (17 Mo., 87), it was held that a woman who had tjeen divorced from her husband is not, at his death, entitled, under the statute, to administration upon his estate. Rylafd, J., in delivering the opinion of the court, says: That it is the opinion of the court that it is manifest that the provisions of the statute were for the benefit of the widow and family, and the widow therein named must have been, at the time of the death, the wife of the husband; that the relation of husband and wife must have existed between them up to the death; that a wife, when divorced from her husband, is not, and cannot be the widow contemplated in the statute of administration.”

So much for the authorities bearing upon the question. From them it appears that the wife, notwithstanding the divorce, is entitled to the inchoate dower interest of which she became vested during coverture. The prohibitory clause of the statute preventing remarriage of the other party, still continues the marriage to the extent that the person may be convicted of bigamy in case of remarriage in this State. But as to everything else, the tendency of the authorities is to the effect that the decree of divorce entirely dissolves and terminates the marriage relation, and that this terminates also the property rights of one in the estate of the other. That the marriage, with all its incidents, rights and duties, except as preserved by the statute referred to, is severed and terminated. That this is so would appear to be the legislative construction, as appears from recent enactments. It is now provided that a judgment dissolving the marriage does not affect the plaintiff’s inchoate right of dower in the real property of which the defendant is or was theretofore seized. (Code Civil Pro., § 1759.)

And now a party may be relieved from the prohibitory clause of the statute and permitted to remarry, upon producing satisfactory proof that the complainant has remarried, that five years have elapsed since the decree of divorce was rendered, and that the conduct of the defendant since the dissolution of the marriage has been uniformly good. (Chap. 321, Laws of 1879.) This section was left unrepealed by the general repealing act of 1880, and was not repealed by the provisions of the Code. So that after the lapse of five years the defendant in a divorce action, even though convicted of adultery, may be permitted to marry again.

If the appellant’s view is correct a man and wife at the age of twenty-two may be divorced; within five years thereafter both parties may be lawfully married to other persons, with the leave and approbation of the court; fifty years thereafter the husband may die; can it be that under such circumstances the law would recognize him as having two widows, each entitled to a distributive share in his personal estate? We think not.' Such does not appear to us to be the policy of the law.

It is argued that the innocent party in a divorce action ought not to be made to suffer for the misconduct of the other. Very true; and the courts and the legislature have been careful to protect all of the vested rights of such party, but the wife has no vested interest in the personal ‘estate of her husband. She is only given a distributive share on the death of her husband and her becoming his widow. But in lieu of this the courts are permitted by the statute, upon granting the decree of divorce, to make a suitable allowance for her support, having regard to the circumstances of the parties.

In the case under consideration the appellant was allowed and paid $37,500 as alimony.. She still retained her inchoate dower interest in the real estate of the deceased. It does not appear what the financial circumstances of Mr. Ensign were at the time of the granting of the decree of divorce. We must, therefore, assume that the allowance made was, within the contemplation of the court making it, reasonable and proper and her fair share in his personal estate. To hold that a woman who procures a divorce from her husband thereafter continues his wife, so as to become his widow and entitled to a distributive share in his personal estate, would involve anomalies in the law which were never contemplated. At the time of procuring the divorce the husband may have had no personal estate whatever; five years-thereafter he may be permitted to remarry, and through the aid and industry of his second wife may acquire a large personal estate. Upon his death, shall his former wife be permitted to take a distributive share thereof as his widow ? Shall she, as his widow, be entitled to occupy his house for the forty days allowed by the statute, and in the meantime be supported out of the estate? Shall she be entitled to have the appraisers set off to her as widow, in the inventory, all spinning wheels, weaving looms, knitting machine, sewing machine, and stoves put up or kept for the use of his family, the family Bible, the family pictures and school books, sheep to the number of ten with their fleeces, the yarn and cloth manufactured from the same, one cow, two swine and the pork of such swine, and necessary food for such swine, sheep or cow, for sixty days, and all necessary provisions and fuel for such widow for sixty days after the death of the deceased, and all necessary wearing apparel, beds, bedsteads and bedding, necessary cooking utensils, one table, six chairs, twelve knives and forks, etc. ? What, then, would become of the other widow ? What provisions could be made for ñer ? What house of her late husband shall she occupy? And yet, this condition of things would naturally follow the interpretation of the statute contended for by the appellant. It appears to us that such an interpre•tation is in conflict with the spirit and intent of the law, and that it would be unwise and unjust.

Other questions were argued upon the appeal, but under the view which we have taken it becomes unnecessary to here consider them.

The decree of the surrogate should be affirmed, with costs.

Smith, P. J., and Bjbadley, J., concurred ; BakeeR, J"., not voting.

So ordered.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN KELLY, Appellant.

      JSmdence — a defendant cannot be convicted upon his confession alone— Code of Criminal Procedure, sec. 895 — right of a minor to rescind a contract.

    The defendant, a minor nineteen years old, on June 27, 1884, executed and' delivered to one Conderman a written instrument hy which he assigned all right, title, interest and claim to the wages or salary that might he due him from a railroad company for services as an employee thereof during the month of June of that year. Upon the trial of the defendant for larceny witnesses testified that the defendant had admitted to them that he drew the money from the company and spent it while drunk in Buffalo.

      Held, that under section 895 of the Code of Criminal Procedure this evidence^ being simply the confession of the defendant, did not warrant his conviction, no additional proof of the commission of the crime charged having been given.

      Qucere, as to whether the right of the defendant to disaffirm the contract, he being a minor, did not prevent his being convicted of larceny.
    Appeal from a judgment of tbe Court of Sessions of Steuben county, entered upon a conviction of tbe defendant of tbe crime of larceny.

      Beard <& Griffin, for tbe appellant.

      I. W. Wear, district attorney, for tbe respondent.
   Haight, J.:

Tbe defendant was a minor of the age of nineteen years. On tbe 27th day of June, 1884, be executed and delivered to Fred. S. Con-derman an assignment in writing of all right, title and interest and claim to tbe wages or salary that may be due him from tbe New York, Lake Erie and Western Railroad Company, for services as employee of the company during tbe month of June, 1884J for which assignment Conderman paid him the sum of forty-four dollars and thirty cents. Hpon the trial Conderman testified that be had a convei’sation with the defendant the latter part of July, and defendant told him that he drew his money in Buffalo and spent it. James Trenchard also testified upon the trial on behalf of the people that he had a talk with the defendant after he was arrested and in the lockup, in which the defendant said to him that he got in with a lot of boys, got on a drunk, went to Buffalo and spent the money; be said he drew the money himself. The witness also testified that he had another conversation with him in the jail, at Bath, and that he gave as a reason why he did not pay it over to Conderman that he spent it all and was sorry he did. This is substantially all the evidence given on behalf of the people. At the close of the evidence, on the part of the people,*tlie defendant moved that he be discharged upon the ground that there is no proof that the defendant had received the money or had disposed of any money, except by his own confession. This motion was denied, and the defendant excepted.

Section 395 of the Code of Criminal Procedure provides that “a confession of a defendant, whether in the course of judicial proceedings or to a private person, can be given in evidence against him, unless made under the influence of fear produced by threats, or unless -made upon a stipulation of the district attorney that he shall not be prosecuted therefor ; tut is not sufficient to warrant his conviction without additional proof that the crime charged has teen committed.”

"We here have an express statutory enactment to the effect that the confession of the defendant shall not be sufficient to warrant his conviction without additional proof that the crime charged has been committed. In the case under consideration we have no such additional proof. It is contended on the part of the people that the written assignment introduced in evidence furnishes such additional proof, but this we do not think is the case. The only thing that the written assignment tended to prove was that Conderman had become the owner of the defendant’s wages for the month of June. It did not tend to prove that the defendant had performed any services for the railroad company, or that the railroad company owed him anything for services performed. It did not tend to prove that the defendant subsequently collected from the railroad company the money due him for services, or that he converted the same to his own use. The paper, therefore, did not prove that the crime of larceny had been committed, and consequently did not furnish the additional proof required by the statute. Suppose that B should be indicted for stealing a horse owned by A.; upon the trial A. should have been sworn as a witness, and testified that he was the owner of a horse, describing • it, but did not testify that the horse had been stolen or taken from him without his consent. The confession of B. that he had stolen the horse would not be sufficient to authorize his conviction, for the reason that there was no additional proof that the crime had been committed. The evidence of A. only related to his ownership of the animal, and did not tend to show that it had been stolen. Take a person charged with the crime of murder. In order to warrant a conviction proof must be given to show that a human person in being had been killed. Evidence that the person alleged to have been killed was known to the witness; that he was alive and well on the day before it was alleged he was killed, would not be sufficient. Whilst it would tend to establish that there was such a person m being, it would not tend to establish an unlawful killing. Consequently other evidence tending to establish the corpus delicti would be necessary in order to warrant a conviction upon the confession of the person charged.’ In the case of The People v. Humphrey (7 J ohns., 314), the prisoner was charged with the crime of bigamy. It was held that the marriage must be proved; that a confession of the prisoner was not sufficient.

Again, a serious question is presented growing out of the fact that the defendant in this case was a minor. The assignment of hia wages was voidable, and he had the right at any time to dis-affirm the contract, and in disaffirming the contract he would be guilty of no crime. (Chapin v. Shafer, 49 N. Y., 407; Green v. Green, 69 id., 553; Walsh v. Powers, 43 id., 23.)

If, at the time he made the assignment and procured-the money thereon from Conderman, he did it with the criminal' intent to cheat and defraud Conderman, and with the intention at that time of subsequently disaffirming the contract and collecting the money from the railroad company, he doubtless would be guilty of a crime; but he is not indicted for having procured the forty-four dollars and thirty cents from Conderman by reason of the assignment, with the intent to defraud him of his property, etc., but is indicted for having in his possession, as the servant or agent of Conderman, the sum of fifty dollars, which he converted to his own use with intent to defraud, etc.

"We are of the opinion that the judgment and conviction should be reversed and a new trial ordered, and for that purpose the proceedings should be remitted to the Court of Sessions of Steuben •county.

Smith, P. J., BabKee and Beadley, JJ., concurred.

So ordered.


author: Barrer, 1.:

text:
    CALEB CAULKINS and AUGUSTINE W. HILL, Appellants, v. HENRY W. CHAMBERLAIN and Others, Devisees of GEORGE CHAMBERLAIN, Deceased, Respondents.

      Torn sale — notice to be given by a purchaser to the occupant — how it mustbe proved— what is proved by the comptroller’s certificate — 1855, chap. 427, secs, 68, 78.
    Upon the trial of this action the plaintiff, who claimed title under a tax deed from the comptroller of the State of New York, sought to establish that he had given the notice required by section 68 of chapter 427 of 1855 to the person in occupation of the land, at the expiration of the two years allowed for redemption, by producing a certificate from the comptroller, which stated, in substance, that it appeared to the satisfaction of the comptroller that the purchaser caused such a notice as is required by article 8 of title 3 of chapter 13, part 1 of the Revised Statutes, to be duly served on the occupant of the land, naming him, and that he caused a copy of said notice, together with an affidavit of the service thereof duly certified, to be filed in the comptroller’s office, and he further certified that the moneys required to redeem the land had not been paid into-the treasury within the time required by law.
    'The plaintiff claimed that the due service of the notice was established by this certificate given by the comptroller, under section 73 of the said act, which section provides that “if the comptroller shall be satisfied by such copy and affidavit that the proper notice has been duly served, and if the moneys required to be paid for the redemption of such land shall not have been paid as herein-before provided, he shall under his hand and seal certify such facts, and the conveyance before made shall thereupon become absolute, and the occupant, and all others interested in said lands, shall be forever barred from all right or title thereto.”

      Held, that it seemed that the certificate was intended to be limited to a certification of the fact that the moneys required to be paid for the redemption had not been paid, and that it was not intended to furnish prima facie evidence in a litigation over a question as to the title to the lands affected that the acts required to be done by the grantee had been done.
    That if the certificate required by that section was madBpiima facie evidence, in favor of the grantee and those claiming under him, of the due service of the notice, tlie certificate in question was inadmissible for the reason that it did not state the facts required by the act, inasmuch as it did not appear thereby that the comptroller had inspected the copy of the notice on file in his office and the affidavit of service attached thereto, and that his certificate was based thereon.
    Appeal from a judgment, entered on tbe decision of tbe trial judge at tbe Cattaraugus Circuit, a jury trial having been waived.
    Tbe action was one of ejectment. Tbe premises described in the-complaint were sold for taxes levied in tbe years 1863,1864 and 1865,. and on tbe 6th day of February, 1875, tbe comptroller executed and delivered to the plaintiff Caulkins a deed of tbe same, pursuant to the sale. Tbe plaintiff Hill claims title to an undivided part of the-premises under a conveyance executed to him by Caulkins, bis co-plaintiff. At the time of tbe expiration of the two years given for the-redemption, after tbe execution and delivery of tbe deed, tbe plaintiff Hill was in tbe occupancy of a part of tbe premises, claiming-such possession under a contract in tbe nature of a lease executed in June, 1865. The sale afterwards took place in September, 1871. At tbe time of tbe commencement of this action, tbe original defendants were in the actual possession, operating an oil well, and they claimed under those who held tbe title prior to tbe sale. The-comptroller’s certificate, given in evidence and referred to in tbe opinion, was issued on tbe 3d day of April, 1876, and is as follows,, omitting tbe formal parts: “ I certify that it appears to my satisfaction, that on tbe 8th of September, 1875, Caleb Caulkins caused such a notice as is required by article 3 of title 3 of chapter 13,. part 1, of tbe Revised Statutes, to be duly served on Augustine W. Hill, as the occupant of the land described as follows, viz.: [Here followed a description of tbe premises sold by the comptroller for taxes in 1871, and conveyed by deed to the said Caleb Caulkins, on tbe 6th of February, 1875.] That said Caleb Caulkins caused a copy of said notice together with an affidavit of tbe service thereof, duly certified, to be filed in this office on tbe 27th day of September, 1875. And I further certify that the moneys required to redeem tbe same have not been paid into tbe treasury for that purpose.”
    The trial court held that tbe plaintiffs failed to prove tbe service of tbe notice on tbe occupant, as required by section 68, chapter 427 of tbe Laws of 1855, entitled, “ An act in relation to tlie collection of taxes on lands of non-residents and to provide for the sale of such lands for unpaid taxes,” and upon that ground dismissed the complaint upon the merits. After bringing this appeal the defendant, George Chamberlain, died and Henry W. Chamberlain et al. were substituted as defendants, they being his devisees •of the premises.

      Hiscock, Qifford & Doheny, for the appellants.

      D. E. Bolles, for the respondents.
   Barrer, 1.:

By the fiftieth section of the act of 1855 (chap. 427), in relation to the sale of lands for the non-payment of taxes, the owner or occupant of the premises may redeem the same at any time within two years after the last day of sale. And if no redemption takes place within that time, then the comptroller is required to execute to the purchaser a conveyance of the real estate so sold, which shall vest in the grantee an absolute estate in fee simple. If, however, at the time of the expiration of the two years given for the redemption, any part of the premises are in the actual occupancy of any person, the title to the land is not complete and the deed does not become operative, unless a notice is given to the occupant, as provided in section 68 of the act of 1855. As in this case there was an occupant at that time, the validity of the deed depends upon the service of the notice as required by the section last mentioned, and the party claiming under the deed is bound to prove the performance of the act, as much as he is to prove any matter of record on which the validity of the deed might be made to depend. It forms a part of the grantee’s title; it is a link in the chain which is essential to its continuity, and which it is incumbent upon him to establish. The deed itself is made presumptive evidence only of the sale, and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of the two years allowed to redeem were regular. But it is not, in and of itself, evidence that the acts required to be done in particular cases have been performed in pursuance of the other provisions of the act. (Sec. 65.) It is thus seen that the purchaser takes by bis deed a contingent title. Where the land is occupied,, the title depends upon a condition subsequent to be performed by the purchaser. The provisions of section 68 are, that whenever the lands sold and conveyed shall, at the expiration of the two years-given for the redemption thereof, be in the actual occupancy of any person, the grantee to whom the same shall have been conveyed, or the person claiming under him, shall serve a written notice on the person occupying such land within two years from the expiration of such time to redeem, stating in substance the sale and conveyance, the person to whom made, and the amount of the consideration money mentioned in the conveyance, with the addition of thirty-seven and one-half per cent on such amount, and further the addition of the sum paid for the deed; and stating also, that unless such consideration and the said thirty-seven and one-half per cent,, together with the sum paid for the deed, shall be paid into the treasury for the benefit of such grantee, within six months of the time of filing in the comptroller’s office the evidence of the service of said notice, that such title will become ábsolute and the occupant and all others interested in the land be forever barred from all right and title thereto. This notice may be served personally or by leaving the same at the dwelling-house of the occupant with any person of suitable,age and discretion belonging to his family. On this service being complete, the occupant, or any person may, at any time within the six months mentioned in such notice, redeem, the land from the sale by paying the money required by section 70, and thereby the deed is canceled. By section 72 the grantee is required, within one month after service of such notice, to file with the comptroller a copy of the notice served, together with the affidavit of some person who shall be certified as credible, by the officer before whom the affidavit shall be taken, that such notice as is above required was duly served, specifying the mode of service-

On the trial the plaintiffs, for the purpose of proving that a notice in the form and of the character required, was actually served upon the occupant Hill, and a copy of the notice, together with the affidavit of the proof of service, was filed within the proper time with the comptroller, in compliance with the said provisions, relied upon the comptroller’s certificate and some parol evidence on the same subject.

As we regard tbe parol evidence, wholly insufficient to prove service of the written notice and its-contents, and that it does not aid nor give force to the comptroller’s certificate, we shall consider in the first place the question whether the comptroller’s certificate is competent evidence to prove the acts required to be done by the grantee, relative to the giving of notice to the occupant and proof of the service thereof. We ascertain the object and purpose of the comptroller’s certificate and the form in which it should be issued by section 73, which reads, viz.: “ If the comptroller shall be satisfied, by such copy and affidavit, that the proper notice has been duly served, and if the moneys required to be paid for the redemption of such land shall not have been paid as hereinbefore provided, he shall, under his hand and seal, certify such facts, and the conveyance before made shall thereupon become absolute; and the occupant, and all others interested in said land, shall be forever barred of all right and title thereto.”

What are the facts the comptroller is required to certify to ? We incline to the opinion that the certificate is intended to be limited to a certification of the fact, that the moneys required to be paid for the redemption have not been paid, a fact which the records of the comptroller’s office would show, and that he is satisfied by an inspection of the copy of notice on file and the affidavit thereto attached, that the proper notice has been duly served. We are strengthened in these views by a similar provision of the Revised Statutes on the same subject, which provided : If the comptroller shall be satisfied by such affidavit that the notice has been duly served, and if the moneys required to be paid for the redemption of such land shall not lia.ve been paid into the treasury, he shall certify the fact, and the conveyance before made by him shall thereupon become absolute; and the occupant and all others interested in the said lands shall be forever barred of all right and title thereto.” (Sec. 88, tit.'3, art. 3, chap. 13 [1 R. S., 113.]) By the original provision the certificate was in terms limited to stating the fact that the moneys required to pay for the redemption of the land had not been paid into the treasury. The change effected by section 73 is, that the comptroller is required to certify to certain particular facts; whereas under the section of the Revised Statutes he was required to certify as to a particular fact, to wit, that tbe moneys bad not been paid into tbe treasury in redemption of tbe lands.

A certificate in compliance with tbe statute as it now reads, does not require tbe comptroller to attach to bis certificate a copy of tbe notice on file and of the affidavit thereto attached, nor to state that tbe notice on file does contain tbe facts required to be inserted therein by section 68, nor that tbe affidavit was filed within tbe time required by section 72, nor that the officer has certified, before whom the affidavit was taken, that the person making tbe same was credible.

It is incredible to suppose that the legislature intended that a certificate in form in compliance with this section should be received as prima, facie evidence, of the facts required to be done by the grantee, in a litigation over the question of title to lands. It is not declared in the section authorizing the certi fication to be made, nor in any other provision of tbe act, that the certificates may be read in evidence in support of a contention by the grantee or those claiming under him that tbe requirements of section 68 have been fully complied with. The certificate, when issued in proper form, would be evidence of the fact that tbe taxes bad not been paid into the treasury, and would be prima facie of that fact and authorize tbe grantee to assert his title because there had been no redemption. And if be could prove by competent evidence that the proper notice had been served and a copy filed with an affidavit of service in due form, then he would be justified in entering into the possession of the premises, and if necessary in bringing an action to acquire possession of the lands embraced in his deed.

The service of the notice should have been proved by competent common-law evidence. It has been so held and uniformly applied in analogous cases. Ex parte affidavits are evidence in judicial proceedings, only as some law has declared them to be evidence, and they are not evidence of any fact stated in them unless some law makes them such. (The People ex rel. Vogler v. Walsh, 87 N. Y., 482.)

If, however, the proper construction to be given to tbe statute is, that the certificate is prima facie evidence, in favor of the grantee and those claiming under him, that the proper notice was duly served, then tbe certificate was properly excluded on the defendant’s objection, for tbe reason that it was not issued in due form. By section 73, tbe comptroller must inspect both the copy of notice on file and the affidavit of service attached thereto, and base his ■certification upon the contents of both, and if it does not appear from the certificate that he has so inspected both, then the certificate is valueless as evidence for any purpose relative to the mode and manner of serving the notice, or as to its contents. It will be observed, on reading the certificate, that the comptroller certifies that it appears to his satisfaction that the grantee named in the deed served a notice, as required by article 3 of title 3, chapter 13 of the Revised Statutes, to be served on the occupant of the premises, and that such service was made upon the 8th day of September, 1875, and that a copy of the notice, together with the affidavit of service, was filed in his office on the 27th day of September, 1875, but that he has omitted to state in his certificate that he was so satisfied by an inspection of the copy and the affidavit ■on file; nor does he state that such notice and affidavit is in compliance with the provisions of the act of 1855. The contents of the notice and the time in which- it is to be served, as required by the later act, are in material respects different from the notice required by the Revised Statutes. The act of 1855 is no part of the Revised ■Statutes and does not purport to be an amendment of any of its provisions, but is an independent enactment, many of the provisions ■of which are inconsistent with those statutes, and so far as they are found to be so, such former laws are repealed and so declared in the net of 1855.

The parol evidence as to the service of the notice was given by Mr. Hill himself, who stated that a notice was served on him, mentioning the place and time and by whom served, but he does not pretend to state the contents of the same.

As the plaintiffs utterly failed to establish this part of their case, the judgment of the Special Term should be affirmed, with costs.

Smith, P. J., and Bkadley, J., concurred; Haight, J., not sitting.

Judgment affirmed, with costs.


author: BaeKeb, J.:

text:
    WILLIAM H. INMAN, as Receiver of the Property of SPENCER COLEMAN, Appellant, v. SPENCER COLEMAN, CARRIE COLEMAN and ELLA T. WILLIAMS, Respondents.

      Proceedings to collect un/paid taxes —1867, chap. 361, sea. 1; 1881, chap. 646 — what omission in the oath of assessors invalidates the tax.

    In an action brought by a receiver appointed in proceedings instituted under section 1 of chapter 361 of 1867, as amended by chapter 640 of 188J, to collect the amount of an unpaid tax from a delinquent taxpayer, the plaintiff sought to show a valid tax by offering in evidence an assessment-roll, attached to which was the oath of the assessors, which stated, among other things, that they had ‘ estimated the value of said real estate at the sum which the majority of the assessors have decided to be the full cash value thereof,” but omitted, to add, as required by the statute, the words “and at which they would appraise the same in payment of a just debt due from a solvent debtor.”

      Held, that the omission of these words rendered the roll and the warrant issued thei'eon invalid, and required the proceedings to be dismissed.
    Appeal from a judgment, entered upon the decision of the Orleans-Special Term, dismissing the plaintiff’s complaint upon the merits.

      Devoid N. Salisbury, for the appellant.
    ■ Isaac Signor, for the respondents.

       See Matter of Conklin, 36 Hun, 588 — [Rep.

   BaeKeb, J.:

The plaintiff prosecutes this action for the purpose of recovering a tax assessed upon the property of the defendant Spencer Coleman, in the year 1882, by the supervisors of the county of Orleans. The defendant was a resident of the town of Clarendon, in said county, and he was assessed as the owner of a piece of land valued at $10,000, and the tax assessed thereon was fifty dollars, which he omitted to pay, and the collector made a return that the same remained unpaid. Thereupon by proper proceedings the plaintiff was appointed receiver of his property, itr pursuance of chapter 640 of the Laws of 1881, authorizing supplementary proceedings for the collection of unpaid taxes.

It is alleged in the complaint that the "defendant Spencer Coleman made a fraudulent transfer of his property to the other defendants for the purpose of avoiding the payment of the taxes, and for that reason they are made parties defendant. On the trial, the plaintiff, to show a valid tax, offered in evidence the assessment-roll of the town of Clarendon for the year 1882, upon which the tax was spread by the board of supervisors for the same year; and upon the objection of the defendants' that the affidavit attached to-such judgment-roll was not properly verified by the assessors the court excluded the evidence, and the plaintiff excepted, and thereupon the court dismissed the plaintiff’s complaint.

The important and principal question presented upon this appeal, and the only one upon which we shall bestow much attention, is the one relating to the sufficiency of the assessors’ affidavit. Unless such affidavit was properly verified, the board of supervisors had no-jurisdiction over the subject-matter, and the tax levied and the warrant issued to the collector for the collection of the same were illegal and void, and the complaint was properly dismissed. The affidavit after stating, as required by the statute, that they had assessed all the real estate in the town, continued, “we have estimated the value of said real estate at the sum which the majority of the assessors have decided to be the full cash value thereof ” [the full and true value thereof and at which they would appraise the same in payment of a just debt due from a solvent debtor]. The words omitted in the affidavit to the assessment-roll are contained in the brackets, and the question under consideration is, how far their omission affects the validity of the warrant. There has been much discussion in the courts on the subject, as to the effect which the omission to comply with the form of the affidavit as prescribed by the statute has upon the validity of the assessment. All the cases agree that there must be a substantial compliance with the requirements of the statute, and if there be an omission in material parts, the same is void and renders the levy of the tax by the board of supervisors nugatory, and an aggrieved party may take advantage of the omission if an effort is made to enforce collection out of his property. The statute provides that all real and personal estate liable to taxation shall be estimated and assessed by the assessors, at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor. (Laws of 1851, chap. 176, § 3.) With a view of enforcing this requirement, and as evidence to all parties concerned that the assessors have obseived these provisions, the same statute requires the assessors to make an oath, the form of which is set forth in the statute, in which each of the assessors are required to affirm that they have estimated the value of the real estate at the sum which the majority of the assessors have decided to be the full and true value thereof, at which they would appraise the same in payment of a just debt due from a solvent debtor.

The decision of the question under consideration involves the inquiry whether the requirements of the statute as to the form of the oath is mandatory or directory. If the former, then the affidavit is insufficient; if directory merely, then the omission was not fatal to the validity of the tax.. Doubtless there are many statutory regulations intended for the direction of officers in the conduct of business devolved upon them, which do not limit their power or render its exercise in disregard of the regulations ineffectual. Such, generally, are regulations designed to secure order, system, dispatch in business, and by a disregard of which the rights of parties interested cannot be injuriously affected. Such requirements “ are not usually regarded as mandatory unless accompanied by negative words importing that the acts required shall not be done in any other manner or time than that designated. But when the requisitions prescribed are intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, they are not directory, but mandatory. They must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise.” (French v. Edwards, 13 Wall., 511; Sedgwick’s Treatise on Statutory and Constitutional Law, 368-378; Cooley’s Treatise on Constitutional Limitations, chap. 4, pp. 74-78.)

Tested by this rule, we are of the opinion that the words omitted were material, and were intended for the protection of the taxpayer, and that it was the purpose of the legislature to test the candor of the assessor’s judgment by requiring him to make an oath to the effect of the one prescribed. Prior to the enactment of 1851 a certificate substantially in the form of the affidavit as now prescribed was required of the assessors, unaccompanied by any oath. And it is well known that then, as now, there was complaint on the part of many taxpayers as to the inequality of the valuation of' property liable to assessment, and also the more serious complaint that partiality was shown some taxpayers by under valuations. It is the fundamental principle of all tax laws to observe and preserve equity and equality, so far as the same can be accomplished by the careful and considerate action of intelligent men charged with the duty of fixing valuations. The oath-required of the assessors, that they have made the assessment in strict compliance with the statute, was manifestly intended to secure equality of taxation, and to provide, as far as possible, against needless carelessness, as well as against intended partiality and fraud on the part of the officers of the law. The affi davit is the evidence, and the only evidence, accompanying the assessment, that the assessments have been arrived at justly and fairly in compliance with the terms and conditions of the statute. The provisions were intended to establish and make a uniform rule by which valuation should be placed on real property. (Cooley on Taxation, 227; Marsh v. The Supervisors of Clark County, 62 Wis., 502.)

The appellants’ position is that the words full cash value ” are equivalent in their sense and meaning to th ose omitted, and therefore there is a substantial compliance with the statute. To our minds this argument is unsatisfactory, as it would sanction an intentional evasion, and would excuse the assessor from bringing his judgment to the test required by the legislature. It will be observed that the legislature requires the assessor to affirm two things: that the property is assessed “ at the full and true value thereof, and at which they would appraise the same in the payment of a just debt due from a solvent debtor.” . The difficulty with the argument is this, as applied to the case in hand, that no words are used in substitution of those omitted and there is nothing on which to hinge the argument and justify the court in ruling that the substituted words and phrases are, in their sense and meaning, the same in effect as those omitted.

"We do not intend to hold that the affidavit must be in the exact words of the statute, but we do say that nothing material can be omitted and the assessment upheld. The legislature has formulated the oath. An omission to follow the same in every respect must be ascribed to carelessness or to aD intentional purpose on tbe part of the assessors not to take the oatb prescribed, because of the consciousness on their part that the values placed byLhem upon the property assessed, is not on the basis required by the statute.

In numerous decisions in this State it has been held that the requirements of the statute in this respect are mandatory, and if omitted the board of supervisors are without jurisdiction to levy taxes or to issue a warrant for their collection.

In Van Rensselaer v. Witbeck (7 N. Y., 517) the court remarked : A substantial requirement with the terms of the statute is necessary to give jurisdiction to the board of supervisors to impose a tax and issue a warrant to the collector thereon.

In Westfall v. Preston (49 N. Y., 349) the affidavit was made before the time for completion of the roll had expired, and as the same appeared on the face of the roll itself, the court held that the board of supervisors acquired no jurisdiction to levy a tax, and referring to the case of Van Rensselaer v. Witbeck (supra), said: The salutary doctrines of that case cannot be disregarded without encouraging a laxity in the discharge of official duty and endangering the rights of the citizen,” and that “ amoug the preliminaries essential to the jurisdiction of the supervisors is the preparation of an assessment-roll containing a list of the 23ersons and property liable to taxation, with the estimated value of the property, prepared and verified by the assessors, and a substantial compliance with the terms of the statute prescribing the verification is necessary to give the board of supervisors jurisdiction to impose a tax and issue their warrant to the collector for its collection.”

In Merritt v. The Village of Port Chester (71 N. Y., 309) the question related to the sufficiency of the oath of office taken by the commissioners of assessment and the effect which the omission to comply with the statute in that respect had upon the validity of the assessment thereafter made by those officers. The statute required the commissioners to make oath before entering on their duties, “ faithfully and fairly to discharge the duties of their office.” The oath taken was that each would perform the duties “to the best of his ability,” and the court remarked: “ The legislature laid stress and gave importance to the words ‘faithfully and fairly ’ incorporated in the oath as prescribed, and the courts have no right to say that they are unmeaning and without force, or that they might not affect the conscience, as the oath actually taken or any other oath less solemn in form would not. As there are no words substituted for them, there is no room to hold that their place is supplied by equivalent words or words of ■equal force. The liberal interpretation which may sometimes be resorted to to uphold proceedings cannot be applied here, for the very obvious reason that there are no words in the oath taken, to be interpreted as the equivalents of those prescribed.” It was held that the commissioners should have taken the oath prescribed by the statute, and not having done so their proceedings were illegal. (See, also, on the same point, Thompson v. White, 4 S. & R. [Pa.], 135; In re Cambria Street, 75 Pa., 357.)

In the People ex rel. Gillies v. Suffern (68 N. Y., 321) the question was considered as to the effect of an unverified assessment-roll, and the court remarked, “ for the purpose of securing equality of assessment and taxation among taxpayers, the law prescribes a particular oath calculated to secure that end, and until the assessment has the sanction of that oath it has no validity as an assessment, it ■cannot form the basis of taxation, and can in no sense be said to be ■finally completed.”

In the later case of Brevoort v. The City of Brooklyn (89 N. Y., 128), the court had before it for consideration the same question and reviewed most of the previous cases bearing oh the same subject, .and remarked in substance that it was the duty of the assessors to make a fair, just and intelligent assessment of the property liable t® taxation, so that the burden of tax could be equally and ratably distributed among the taxpayers; and to secure the faithful performance of that duty the law required a prescribed oath to .be taken, and before the property of one can be compulsorily taken for the payment of taxes or assessment, the requirements of the statute intended for his benefit or protection must be strictly followed. In that case the oath required the assessors for the city of Brooklyn to state, among other things, “ that they have together personally examined, within the year past, eaph and every lot or parcel of land, house, building or other assessable property within the ward,” which was omitted from the affidavit, and for that reason the assessment was held to be invalid.

Tbe other objections to tbe assessment-roll we do not pass upon, as the defect in tbe affidavit justified tbe ruling excluding tbe same-as evidence, tbe dismissal of tbe complaint was therefore proper, and the judgment should be affirmed, with costs.

Present — Smith, P. J., Bareer and Bradley, JJ.; Haight, J., not sitting.

Judgment affirmed, with costs.


author: BARKER, J.:

text:
    ELIZABETH FISHER, Appellant, v. EZRA B. ANDREWS and Others, Respondents.

      Action against the trustees of a mutual benefit association for a breach of duty — when ,- the plaintiff must first request a receiver of the association to bring the action — to whom money collected under an assessment made by such an association belongs.

    This action was brought by the plaintiff to recover a sum of money alleged to be- . due to her as the widow of a member of a mutual benefit association. The-action was brought against the trustees and a receiver thereof. The complaint alleged, in substance, that the defendant trustees had been guilty of neglect of their duties as trustees, and had converted and applied to their own use moneys collected under an assessment for and belonging to the plaintiff without right or authority.

      Held, that the complaint was properly dismissed because of its failure to allege that the plaintiff had requested the receiver to prosecute the defendants and that he had refused so to do, or that she had applied to the court for leave to sue the defendants and that.the same had been granted or refused.
    Money received by the trustees of a mutual benefit association, from an assessment imposed upon the members to pay to the widow of a deceased member the amount which she is entitled to recover, belongs to the association and not tO' the widow.
    Appeal from a judgment dismissing tbe plaintiff’s complaint as to tbe defendants Andrews, Barnard and Barker, at tbe Monroe Special Term beld by Mr. Justice Dwinht. No evidence was given on the trial, and tbe complaint was dismissed on the plaintiffs opening, because it did not state facts constituting a cause of action. Tbe Mutual Benefit Association of Rochester was created a corporation in pursuance of chapter 267 of the Laws of 1875. Tbe object of this society, as declared in its articles of association was, to promote acquaintance, social intercourse and assistance among its members, and to furnish substantial aid to their families or assigns in case of a member’s death. The scheme as embraced in the general law with which the articles of association conform, was to secure to families of deceased members of the corporation pecuniary aid, the amount being regulated by the number, of memberships in the class to which the member was assigned, not in the aggregate to exceed a particular sum. John W. Fisher, the husband of the plaintiff, became a member, and was assigned to class “ B,” and a certificate issued to him, in which it was agreed that upon his death there should be paid to this plaintiff, as his widow, a sum not to exceed two thousand dollars. At the time of his death he was a member in good standing. The membership in that class was sufficient to secure on the established basis of assessment the sum of two thousand dollars. The board of trustees were empowered to fix the' rate and amount of fees, dues or assessments, and to change or modify the plan of doing business. They had charge of all the property belonging to the association. The complaint alleged that after the death of Fisher the trustees of said corporation made a schedule assessment upon the members of class “ B,” and received the sum of $2,864, which money to the amount of $2,000 belonged to the plaintiff, and was assessed and collected for the plaintiff in accordance with the certificate of membership issued to John W. Fisher, and the charter and the by-laws of said corporation. It also alleged that the defendants, excepting McDonald, were the acting trustees at the time such moneys were collected and received the moneys so collected belonging to the plaintiff, and that it was their duty to transmit or deliver the same to the plaintiff; that the trustees paid and delivered to the plaintiff $1,000 of such moneys so collected, and that the balance they unlawfully deposited in a bank in the city of Rochester, and mingled the same with other funds in their possession, so that their identity was lost, and that they unlawfully checked out and expended the same for their own purposes, or for the uses of said corporation, and thereby misappropriated the same to their own use; and that they either actually participated in such violation and misappropriation, or in negligent disregard of their duty suffered the same to be accomplished by the other trustees or officers of said corporation; and altbougb they bave been requested so to do, the trustees of said corporation have neglected and refused to pay the plaintiff the sum so deposited, except $300 thereof; that on the 18th day of April, 1882, she recovered a judgment against the corporation for the sum of $655, the balance of the money unpaid, due her, and on such judgment she. has received the sum of $187; that the said corporation became insolvent, and that on the 13th day of May, 1882, in proceedings instituted by the attorney general, on behalf of the people, judgment was rendered dissolving said corporation arid forfeiting its corporate rights, franchises and privileges, and forever restraining said corporation, its trustees, officers, attorneys or agents from exercising any of its corporate franchises, powers or privileges, or from collecting or receiving any debts or demands belonging to or held by the said corporation, and appointing the defendant Angus McDonald receiver of all the property and effects of said corporation and of all the property held by it, with the usual power of receivers in such cases, and that he duly qualified and has entered upon the duties of his office.

      Nathaniel Foot, for the appellant.

      Theodore Bacon, for the respondents.
   BARKER, J.:

After reading the articles of association and by-laws, together with the certificate of membership issued to John W. Eisher, the court dismissed the complaint on the ground that it did not state facts sufficient to constitute a cause of action; the averments of the complaint must, therefore, for the purposes of the present appeal, be taken as true, and no reference to the several answers is necessary or proper.

It appears from the averments that the contract between Fisher and the corporation was valid, and that the plaintiff, upon the death of her husband, became a creditor of the corporation in the sum of $2,000. The allegations as to the misbehavior of the defendants, as trustees, and the wrongful use of the moneys belonging to the corporation, and appropriating the same to their own us.e and purposes, is not very clearly and understandingly set forth, but for the purpose of ■disposing of tbe questions presented on this appeal we shall regard tbe complaint as stating that they were gnilty of neglect of duties as trustees, and used and applied moneys belonging to tbe corporation, to tbeir own use, without any right or authority so to do. Nor the wrongs thus imputed to all the defendants, excepting McDonald, the receiver, and which are admitted, the corporation ■had a right of action and could have recovered in an action at law the moneys alleged to have been misappropriated. (Angell & Ames, on Corporations, chap. 9, §§ 13, 14; Robinson v. Smith, 3 Paige, 222; Greaves v. Gouge, 69 N. Y., 154; Brinckerhoff v. Bostwick, 88 id., 52.)

This right of action was transferred to the receiver, for it is now ■well settled that a receiver of an insolvent corporation represents not only the corporation, but also the creditors and stockholders, ■and that, in his character as trustee for the latter, he may disaffirm and maintain an action as receiver to set aside an illegal or fraudn-lent transfer of the property of the corporation, made by its agents •or officers, or to recover its funds or securities invested or misapplied. (The Attorney General v. Guardian Mutual Life Ins. Co., 77 N. Y., 275.)

The injuries sustained by a corporation by reason of the unlawful acts and frauds of its officers should be prosecuted in the name of the corporation, and the redress given is for the benefit of all the ■stockholders and members of the corporation, but if the corporation neglects and refuses to prosecute the action on the proper application of the members or stockholders, then they may maintain an action in equity in their own names against the defaulting officers or agents and recover a sum equal to the damages which they have individually sustained.

As the corporation has been dissolved and a receiver appointed, it was unnecessary for the plaintiff to allege that she had requested the officers of the corporation to prosecute the defendants, and that they had refused. The receiver was properly made a party defendant, and thus brought before the court to protect the interests of the corporation and the members of that body.

The defendants insist that as the complaint did not allege that the receiver had been requested to bring the action and had refused to •do so, and that she did not offer to prove that fact in the opening of her case t© the court, therefore that no cause of action was stated against them’ in the complaint, or offered to be provéd on the trial-.

This position we regard as well taken. The receiver represents the corporation, and also the creditors, and the funds and causes of action which became vested in him, on his appointment, are custodie legis, and should not be diverted and taken from his hands, or placed beyond the control of the court, whose duty it is to see that, all the funds of the corporation are justly and equitably distributed among its creditors and members. If the plaintiffs are allowed to-recover in this action, the sum so recovered would necessarily be-placed beyond the control and order of the court. We think that the complaint should have alleged that the plaintiff requested the-receiver tc prosecute the defendants, or that she had applied to the-court for leave to sue the defendants, and that the same had been granted or refused. If it had been made to appear that the receiver-was in league with the other defendants, or had been guilty, with them, in misappropriating the funds of the company, that would perhaps be received as a sufficient excuse for not applying to him to prosecute the defendants in a proper action. (Greaves v. Gouge, 69 N. Y., 154; Brinckerhoff v. Bostwick, 88 id., 52.)

The plaintiff sought to maintain her cause of action on the theory that the defendants, as trustees of the corporation and charged with the direction and management of its affairs, were trustees in the-technical sense of the term, and received the money in the latter capacity for her use, and that she had an original cause of action against them individually, on the payment of the moneys into their-hands by the assessed members for the purpose of liquidating her claim against the corporation.

The moneys, when paid in by members, belonged to the corporation and were subject to the disposal of its managing board. The misappropriation afterwards made by the defendants, as alleged, was a wrong done to the corporation and gave it a right of action. When stockholders or members of a corporation or its creditors are permitted to maintain a suit in equity against the officers and agents of a corporation, it is in the nature of equitable relief, based upon the fact that the officers of the corporation decline to pursue the remedy, and for that reason, in a proper action, with the proper parties before tbe court, appropriate relief is granted to tbe injured parties. (Smith v. Rathbun, 22 Hun, 150.)

Tbe judgment should be affirmed, with costs.

SMITH, P. J., Beadley and Haight, JJ., concurred.

Judgment affirmed, with costs.


author: BakKek, J.:

text:
    JAMES H. HOOKER, Respondent, v. THE CITY OF ROCHESTER, Appellant.

      Pollution of a private stream by city sewage — the city is liable for the damages occasioned, to ripa/rian owners.

    Chapter 476 of 1871 provided that, whenever the common council of the city of Rochester should deem it necessary, for the purpose of drainage, sewerage, or for the promotion of the public health, to extend the city sewerage or drainage beyond the limits of the city, and across private lands or highways, proceedings might be instituted under the drainage acts. Pursuant to this act a drain was constructed, extending beyond the limits of the city, which discharged its contents into a small private stream which ran through the plaintiffs lands. By reason of the foul and offensive matter discharged into the said drain, and from the drain into the said stream, the water of the latter became greatly polluted and unfit for household purposes.
    Held, that the city was liable for the damages thereby occasioned to the plaintiff.

      It seems, that if the stream had been navigable, and therefore a public one, like the Genesee river, a different question would have been presented, to the determination of which different principles of law would have been applicable. (Per Barker, J.)
    Appeal from a judgment, entered upon a verdict in tbe plaintiffs favor for tbe sum of $600 damages. Tbe questions presented were set forth in a bill of exceptions made by tbe defendant.

      J. IF. BecMey, for tbe appellant.

      J. <& Q. Van Voorhis, for tbe respondent.
   BakKek, J.:

In 1871 tbe north boundary line of the City of Rochester was Bay street, which was intersected by North street, and from thence tbe latter street was continued into tbe country as a public highway. In that year proceedings were instituted, under tbe provisions of chapter 476, of the Laws of 1871, for the purpose of constructing a sewer or open ditch from the city line, at the intersection of North and Bay streets, to connect with a small natural stream of water one mile north of the city limits. It was conceded upon the trial that these proceedings were conducted, in all respects, in conformity to the statute authorizing the same, and that in 1874 the work was completed.

In the act of 1871 it was provided whenever for the purpose of drainage, sewerage or to promote the public health the common council of said city shall deem and by resolution declare it necessary to extend such drainage or sewerage, to and beyond the limits of said city, and across private lands and highways in the adjoining towns, the mayor of the city may petition the County Court, as provided in chapter 888 of the Laws of 1869, and subsequent acts amendatory thereof. The provisions of the statute to which reference is made in the act of 1871 control the mode of procedure and were mainly applicable to these proceedings, except as to the mode and manner of levying the tax, for the purpose of securing money to pay the expenses of the improvement. In 1874 and 1875 the city constructed an outlet sewer from University avenue to the then north line of the city, so as to connect the same with the sewer before mentioned.

In 1874 the city limits were extended so as to embrace the sewer constructed by and under the proceedings mentioned. From the time of the completion of the sewer constructed by the city the contents of the same were discharged into the water-course’before referred to, which passes over the farm of the plaintiff, located on this stream, outside of the city limits. The area drained by this system of' sewers and discharged into the outlet sewer is some 600 acres, and the natural surface drainage of this tract of land before improvements were made thereon by the laying out and grading streets, by buildings and otherwise, was towards and into the said water-course. The filth of the outlet sewer discharged into the natural stream fouled the water so as to render it unfit for domestic use, and in consequence thereof the rental value of the plaintiff's farm was considerably diminished, and this action was brought to recover the damages sustained thereby.

The only question presented by this appeal is whether the city of Rochester is liable to the plaintiff in damages, on account of the pollution of the water of the stream crossing his premises, by reason of the drainage from that part' of the city lying north of "University avenue.

No argument has been or can be presented which will justify tbe act of the city in discharging the contents of its sewers into this water-course, polluting the same to the damage of the plaintiff. This stream of water is so small that it belongs to the class designated as private water-courses, in which the general public have no interest, and the title to the bed of the stream and the use of the water belong wholly to the riparian owners. (Buffalo Pipe Line Co. v. N. Y., L. E. and W. R. Co, 10 Abb. N. C., 107.)

The acts of those who do not own land over which the stream passes, or those of the upper riparian owners, which causes the waters of the stream to be polluted, make them liable in damages to the lower riparian owners. All owners of lands over which streams of this class flow, have the absolute right to have the same kept free from any pollution which depreciates the value of their use for ordinary domestic purposes. The health, comfort and convenience of a farming community living upon or near such streams, depend very largely upon the purity of the same, and those who interfere wdth the natural purity of the water commit a grievous wrong and are amenable to the law for their misconduct. (Carhart v. Auburn Gas-Light Co., 22 Barb., 297; Thomas v. Brackney, 17 id., 654; Honsee v. Hammond, 39 id., 89.) The act of the defendant violates the plaintiff’s rights as directly and in the same sense as if the garbage and contents of the cess-pools of the city were conveyed by carts and dumped in his meadows bordering upon this stream. It is immaterial whether the contents of the sewer were discharged and deposited directly on the plaintiff’s premises or at such a point that, by the law of gravitation, the same would flow into and down the stream.

In disposing of the appeal and upholding the plaintiff’s judgment, we give no significance to the fact that the section of the sewer immediately connecting with the stream constructed by commissioners appointed under the act of 1871, is now within the city limits. We have not been cited to the act authorizing the extension of the city boundaries, and are not informed as to the conditions, if any, imposed upon the city relative to keeping in. repair and maintaining the public ditch or sewer previously constructed, and we cannot now say that the city, in its corporate capacity, has any jurisdiction over that improvement.

The laws which authorized the construction of the sewer, then outside of the city limits, gave to the same many of the features of a natural stream of water, as it was designed as a means of draining low, wet and marshy lands, with a view of preserving and promoting the public health, and when completed became the property of the State. (Matter of Cyrus Swan, 35 Hun, 625.)

If, however, after extending the city limits, this section of the sewer passed under the management and control of the city authorities, then the plaintiff’s damages accrued by the wrongful act of the defendant as the sole proximate cause. A municipal corporation has no greater right than an individual to collect by a system of sewers the filth and drainage of a city and discharge it upon the lands of another, nor has it any immunity from a legal responsibility for the creating or maintaining of nuisances. (Noonan v. The City of Albany, 79 N. Y., 178.) In that case the action was to recover damages to the plaintiff’s premises in the city of Albany, caused by water, dirt and filth thrown and deposited thereon from the outlet sewers of the city of Albany. The deposit was not directly upon the plaintiff’s ground, but after its discharge it ran over other premises used as a dumping place for refuse, and passed down a declivity until it reached a. valley or bed of a ravine and flowing from that point reached the premises of the plaintiff and flooded his lot. It was held that the plaintiff established a right of action. In its material facts, that case is -in every essential particular like the case at bar. If it is necessary for the city to enjoy the privilege of using this watercourse to carry away from the city the sewerage which is collected into this outlet sewer, then it should condemn the stream to its use for -that purpose and compensate the plaintiff, as owner, for the damages which he would sustain by such use. The jury were instructed that the city was responsible for the damages which had accrued to the plaintiff in consequence of the discharge into the stream of the sewerage which came from the sewer constructed by the city, from University avenue to Bay street, so far as that sewer turns into the stream any substance which would not otherwise run there, and that the city was not responsible for the consequence arising from any pollution of the waters caused by the sewer constructed by the •commissioners, as that was built and constructed under circumstances which did not make the city liable for it, and that it was •only liable for what it collects in its own sewer and sends down upon the plaintiff’s land. The'gist of the plaintiff’s cause of action was for damages which he-suffered in consequence of turning foul substances upon his land and not for injuries arising by the increase in the flow of the volume of water.

The defendant’s counsel insists that the learned court, in substance, •charged the jury that the defendant would be liable if, by means •of the sewers, mere surface drainage was carried into the stream and “thereby increased the quantity of the flow, that then the defendant would be liable in damages, as distinct from the question of polluting the water, and took general exception to that part of the charge where it was said that the city had no right to increase the natural flow of water.”

The charge is not fairly susceptible of such a construction, and “the plaintiff did not claim a right to recover on that ground, nor did “the evidence point to a right of action in behalf of the plaintiff, except that which arose from the pollution of the stream, and rendering it unfit for domestic use. Sentences may, it is true, be ■extracted from the charge, which, if read apart from their connection, need qualification, but the proper qualification was given in the context, and the jury could not possibly have been mislead.

If this had been a navigable stream, and therefore public waters, like the Genesee river, then a very different question would be pre-sented for our consideration, and different principles of law would be applicable in determining the plaintiffs’ rights. „

The judgment should be affirmed, with costs.

•SMith, P. J., Bjejadiey and Haight, JJ., concurred.

■Judgment affirmed, with costs.