text:
    Margaret Kain, Adm’rx, App’lt, v. Patrick Larkin and Maria E. Larkin, Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Fraudulent conveyance—Pleading—Evidence.
    Under a complaint alleging simply that the transfers in question were made without consideration and with intent to hinder, delay and defraud creditors, the plaintiff is not entitled to prove that the grantor did not retain sufficient other property to pay his debts.
    3. Same.
    A complaint in an action to set aside a conveyance as frauduien as to creditors should allege not only that it was made without consideration and wilh intent to hinder, delay and defraud creditors, but also that the plaintiff was hindered and defrauded for the reason that such transfer left the debtor insolvent and without sufficient property to pay his debts m full.
    Appeal from judgment dismissing the complaint, and from order denying plaintiff’s motion to set aside the direction dismissing the complaint and for a new trial.
    Action to have adjudged and declared fraudulent and void, as against the plaintiff, a transfer of real estate made by the defendant Patrick Larkin to the defendant Maria E. Larkin, his daughter.

      G.R. Adams, for app’lt; F. L. & F. A. Westbrook (F. A. West-brook, of counsel), for resp’ts.
   Putnam, J.

The court of appeals has determined in this case, 131 N. Y., 300; 43 St. Bep., 197, that to establish her cause of action on the trial plaintiff must not only show want of consideration for the transfers of real and personal property assailed in the complaint, but that such transfers left the judgment debtor insolvent and without ample property to pay his existing debts and liabilities; and that the fact that an execution was returned unsatisfied eighteen months after the conveyances in question does not show that at the time thereof the debtor did not have property enough to pay his debts.

The plaintiff insists that under a complaint alleging that the transfers in question were made without consideration and with intent to hinder, delay and defraud creditors she could properly show the facts which the appellate court has held necessary to establish her cause of action on the trial. That the allegation that the conveyances in question were made with a fraudulent intent must be deemed to impliedly allege all that is necessary to show such intent, viz. : that the grantor did not retain sufficient

other property to pay his debts. That it was only necessary in the complaint to allege the ultimate fact which constitutes the cause of action, that is, the fraudulent intent. That the action being statutory it is sufficient to allege the cause of action in the words of the act.

The trial judge, however, held that it was necessary to allege in the complaint what the court of appeals has determined must be established on the trial; that the transfers in question left the defendant without other property. I agree with the position of the appellant that in an action given by a statute it is ordinarily sufficient in the complaint, in alleging the cause of action, to follow the words of the act. Rochester R. Co. v. Robinson, 133 N. Y., 242; 44 St. Rep., 872.

But I think the plaintiff in his pleading fails to follow the words of the act.

The statute provides “ that every conveyance * * * made with intent to hinder, delay or defraud creditors * * * as against a person so hindered, delayed or defrauded shall be void.” It will be seen that a conveyance made with a fraudulent intent is only void as against one hindered, delayed or defrauded. In other words, against one damaged. In the opinion delivered in the court of appeals when this case was before it (p. 307), this language was used: “ If the grantor remains solvent after the conveyances and has sufficient property left to satisfy all his j ust debts, then the conveyance, whatever his intention was, cannot be a fraud upon, his existing creditors.” In other words, there may be a fraudulent intent in making a conveyance not fraudulent as to creditors because the debtor retains sufficient property to pay his debts. In the same opinion the court further says (p. 307): “ The person assailing the deed assumes the burden of showing that it was executed in bad faith, and that it left the debtor insolvent and without ample property to pay his existing debts and liabilities.” This means he must show both facts, the bad faith, the fraudulent intent and also that the transfer assailed left the debtor insolvent.

It will thus be seen by the language of the statute and by the extracts quoted from the opinion delivered by the court of appeals, that the cause of action in such a case is not only the fraudulent ■intent, but also the injury, the damage, the hindering and defrauding, resulting from such fraudulent intent. It follows, I think, that the plaintiff in stating her cause of action should not only have alleged the making of the transfers in question without consideration and with intent to hinder, delay and defraud his-creditors, but should also have alleged that she was hindered and defrauded for the reason that such transfers left the debtor insolvent and without sufficient property to pay his debts in full. The statute says a transfer made with a fraudulent intent shall be void as against one defrauded. Therefore, there must be an unlawful intent and fraud in fact on account of which plaintiff has been defrauded.

This fraud in fact it was necessary for plaintiff to allege, in order to properly state her cause of action given by the statute. As stated in Ross v. Perry, 61 Maine, 150: “ A fraudulent purpose is an impoi’tant element in the case, but it is not the only one; there must be superadded to it, in addition to the sale, actual fraud, hindrance or delay resulting therefrom to the creditors. The sale will be upheld unless the fraudulent purpose is actually accomplished. Thus, if, notwithstanding the sale, W. and Gr. retained and held * * * other personal property sufficient to pay the debt, * * * the sale would not be void, whatever may have been the secret purpose of the parties to it. The reason for considering the sale void in this class of cases is that creditors are damaged, thereby ; and when the reason is wanting, the rule itself becomes inapplicable.” To the same effect, see Sell v. Bailey et al., 119 Ind., 51.

The court of appeals, when this case was before it, did not pass directly on the question of the sufficiency of the complaint. But there is language in the opinion delivered by that court indicating an opinion that the complaint should have contained an allegation showing that the transfers assailed by the plaintiff in this action left the defendant without other property, and insolvent. Thus, Judge Earl says: “ There was no allegation in the complaint that the money deposited in the savings bank, and the real estate conveyed by the judgment debtor to his daughter, constituted substantially all the property he had, or that he was insolvent at the time of the conveyances, or that he was thereby rendered insolvent. And there was no allegation in the complaint that he owed any debts, except the liability which he incurred.by killing the plaintiff's intestate.” Also: “ Our opinion, therefore, is that upon the allegations in the complaint, and the proofs upon the trial, and the finding-of the trial judge, the plaintiff could not successfully assail this deed.”

These quotations indicate that in the view of the learned judge who delivered the opinion of the court of appeals an allegation in the complaint that the transfers assailed by the plaintiff as made with fraudulent intent left the debtor without other property and owing other debts was necessary, or at least would have been proper. Such an allegation could hardly have been properly inserted in the complaint unless necessarily stated as part of the cause of action. In the opinion by Judge Earl the case of Sherman v. Hogland, 54 Ind., 579, is quoted from, cited and approved. In that case, which was, like this, a creditor’s bill, the court held: “ After a very careful consideration of the whole subject, we have come to the conclusion that, both on principle and on authority, it is necessary to charge in the complaint and prove on the trial that at the time the conveyance complained of was made the debtor did not have left enough of other property subject to execution to pay all his debts.

It will thus- be seen that in the case of Sherman v. Hogland, supra, the very question involved in this case was passed upon.

Op the whole, I think, the trial court reached the correct conclusion, and that the judgment should be affirmed, with costs.

Herrick, J., concurs; Mayham, P. J., not acting.


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    Peter Folmsbee, Resp’t, v. The City of Amsterdam, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 22, 1892.)

    1. Municipal cobpobations—Change of gbade of stbbet.
    Chapter 113, Laws 1883, applies only to villages, and not to a city like Amsterdam.
    3. Same—Amstebdam.
    Under a charter like that of Amsterdam as to changing grades, the grade

      of a street may be established by user, and no change thereof can be made, except upon petition of the property owners.
    3. Same—Damages.
    Where the city changes such a grade without a petition, the property owner is not confined to the remedy provided by the statute, but may maintain an action for damages.
    Appeal from judgment in favor of plaintiff, entered upon the report of a referee.

      Edward J. Maxwell, for app’lt; W. B. Dunlap, for resp’t
   Putnam, J.

The facts of this case, as far as necessary to detail them, are stated in the opinion of the referee, as follows :

“ The action is brought to recover for an injury to plaintiff by reason of the change of grade of Spring street in the city of Amsterdam, and to restrain the collection of an assessment for the laying of sidewalks in front of the plaintiff’s premises. The defendant justifies the change of grade and the laying the assessment, under chapter 131 of the Laws of 1885, being the act incorporating the city of Amsterdam.

“ The premises in question are situated on the corner of Spring street and Kimball street. Spring street is a street of said city, and has been used for a street for more than twenty years past, and was established by general use, and the street graded accordingly and sidewalks laid thereon.

“ That more than twenty years ago Kimball street was opened and laid out as a street connecting with Spring street, and at that time Spring street, where it intersects Kimball street, was cut down to conform to Kimball street. Spring street, from Market to Wall street, had been used as a street prior to 1850. That about 1850 Spring street was extended from Wall street, and the same was graded and a plank road laid therein.

“ That Spring street from that time continued to be used by the public and work done thereon by the authorities of the village and sidewalks built at different places on each side of Spring street, the grade and location thereof fixed and adjusted by the trustees of the village.

“ That the grade of said Spring street for over twenty-five years, until 1887, was the natural grade of the surface of the earth, except as to slight inequalities in the natural surface, which had been removed by throwing the earth from the higher to the lower places.”

It is conceded that the grade of Spring street, prior to the change in 1887, had not been determined by any formal resolution of the authorities of the village or city of Amsterdam. It had only been established by user. Counsel for respondent cites the cases of McCall et al. v. The Village of Saratoga Springs, 29 St. Rep., 699; Matter of the Church of our Lady of Mercy, 32 id., 967 ; Bartlett v. The Village of Tarrytown, 55 Hun, 492; 30 St Rep., 341, as showing- that a grade within the meaning of the statute may be established by user, and need not be founded on an order or resolution of the municipal authorities.

But those cases were all decided under chapter 113 of the Laws of 1883. The language of § 1 of that act is as follows : “Whenever the grade of any street, highway or bridge in any incorporated village in this state shall be changed or altered, * * * the owner * * * may apply,” etc.

That act applies only to villages, and not to a city like Amsterdam. The authority of that city to change the grade in question of streets is contained in § 95 of its charter, which was in force when the change of grade was made. That section provides that “ When the grade of a street has been established and the street graded accordingly, the grade shall not be changed," etc. It will be seen that the language of the two acts differ materially. Hence the authorities cited above are not necessarily decisive of the question before us. Were that question an open one we should have doubts whether § 95, supra, should not be construed to refer to a grade established by resolution. But this question seems to have been passed upon by the court of appeals. The charter of the city of Kingston in regard to changing the grade of streets is the same as that of Amsterdam. Laws of 1875, ch. 429.

In O'Reilley v. The City of Kingston, 114 N. Y., 439; 23 St. Rep., 799, the action was to set aside an assessment made on account of a change of grade. There was no record of any previously established grade of the street.

It was claimed by counsel for appellant that the assessment was void as involving a change in the grade established without the petition of the adjacent owners. Counsel for respondent claimed that it was not sufficient to show that the street had been graded by the former village of Kingston. It was necessary to show an establishment of the grade and a working of it. The court held that the charter of defendant prohibited the changing of a grade of a street which had been established except upon a petition of the owners, * * * no petition from a majority of the owners fronting upon the avenue was presented * * * and consequently the ordinance was without authority if a material change was effected by it.”

This authority seems to hold that under a charter like that of Amsterdam as to changing grades the changed grade may be established by user, and is decisive of the question before us. Hence plaintiff was entitled to compensation for damages suffered on account of the change of grade in question.

Appellant, however, insists that plaintiff has mistaken his remedy. He should have proceeded under the charter of the city of Amsterdam to have a commission appointed to appraise his damages. That a municipal corporation acting under authority of its charter is not liable for damages in the exercise of the authority conferred, as long as the authority is properly exercised and not exceeded, unless the statute expressly gives a right h> damages. Also that in case of public improvements authorized by statute which provides a mode of compensation to persons injured, that mode is exclusive and no right of action exists in their favor except that directed by the statute. Heiser v. The Mayor, 104 N. Y., 68; 5 St. Rep., 558 ; Dillon’s Municipal Corporations, § 686 (543).

This position does not appear to have been asserted in the pleadings or upon the motion for nonsuit or during the trial, and we think should not now be sustained. Defendant’s only claim on the trial was that plaintiff was not legally entitled to damages. It made no objection to the method of procedure adopted to recover damages. It did not offer in the answer to make compensation tq plaintiff or to join with plaintiff in an application for the appointment of commissioners.

We think defendant should have made the objection now. first asserted on the trial, and failing to do so, such objection cannot now be allowed to prevail. Steers v. The L., N. Y. & Phil. S. S. Co., 57 N. Y., 1; Vose v. Cockcroft, 44 id., 415 ; Thayer v. Marsh, 75 id., 842.

But we think plaintiff was entitled to recover bis damages by action, had the objection been taken by defendant to his mode of procedure on the trial. Section 95 of the charter of the oily of Amsterdam contains a prohibition against changing the established grade of a street, except upon petition of contiguous property owners, unless compensation be made to parties injured. The language of the section leaves no room for doubt that the compensation was intended to precede the change of grade. “ The grade shall not be changed * * * unless compensation be made to the owners of the property injured.” Either the petition or compensation must precede the change, and the ecmpensation as dearly as the petition. In this case it is not claimed that there was any petition, and although the change in the grade has been made no steps whatever have been taken by defendant to pay plaintiff his damages. Defendant has changed the grade without petition or making or offering any compensation to plaintiff.

We are aware that it has been held in many highw’ay, road and railroad cases that when a party is entitled to damages under a ■statute providing for componsation the actual assessment or payment of such damages need not precede the taking of bis land. Chapman v. Gates, 46 Barb., 317; S. C.. 54 N. Y., 132 ; Smith v. Helmer, 7 Barb., 416 ; Coles v. Trustees of Williamsburgh, 10 Wend., 659 ; Bloodgood v. The M. & H. R. R. Co., 14 id., 51.

It will be observed, however, if the statutes referred to in the. above and kindred cases are examined,' that such statutes do not indicate an intention on the part of the legislature that the payment shall be made in advance. The language of § 95 of the charter of Amsterdam is different. It shows a legislative intent that when a grade is changed by the city without a petition, that payment of damages to injured parties shall precede the change.

Therefore, the doctrine relied on by defendant, that if plaintiff has sustained damages his only remedy is that pointed out by § 95 of the charter, the appointment of commissioners to appraise the damages, does not apply. That doctrine only applies where the corporation acts, under and in pursuance of the statute. If a corporation exercises an authority conferred upon it in an improper manner, or does an act in violation of the prohibition contained in its charter, a wrongful act, by which another is injured, an action may be maintained. See Seifert v. City of Brooklyn, 101 N. Y., 136 ; Dillon’s Municipal Corporations, §§ 990, 1, 2, 3,4.

Defendant is prohibited from changing any established grade except on petition of property owners, or unless compensation be made to the party injured. Without such a petition and without making any compensation or taking any steps to ascertain the plaintiff’s damages, by appointing commissioners, defendant changed the grade. Under the provisions of its charter the presentation of a petition or compensation to parties injured should precede such change. The act, therefore, of defendant, was not only not done under any provision of the statute, but was prohibited by its charter, a wrongful and illegal act, and,, therefore, plaintiff having sustained a serious injury in consequence of such wrongful act, can recover his damages by action.

The assessment for laying the sidewalk in front of plaintiff’s premises is so clearly unauthorized as not to require discussion.

The judgment should be affirmed, with costs.

Mayham, P. J., concurs ; Herrick, J., concurs in result.


author: Peckham, J. Maynard, J.,

text:
    Josephine Vandewater, Adm’rx, Resp’t, v. The New York & New England R. R. Co., App’lt.

      (Court of Appeals,

      Filed November 29, 1892.)

    1. Railroads—Negligence—Signals at crossings.
    Upon the trial of an action to recover for the death of plaintiff’s husband while attempting to cross defendant’s tracks at a farm crossing, plaintiff was allowed to prove the failure of the engineer of the approaching train to blow a whistle or sound a bell at another crossing 3,000 feet away, and that it was customary for the engineers or firemen of defendant to do so. Held, error.
    2. Same.
    The duty of giving the signals is placed by the Penal Code upon the engineer, and his failure is made a crime, and in that way the giving of the signals is still provided for. The statute, however, does not impose the duty upon the company, and unless such duty is imposed by statute, the failure to give such signals cannot as a matter of law be regarded as a neglect of duty. (Maynard, J., dissents.)
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff.

      Walter C. Anthony, for app'lt; Chas. Morschamer, for resp’t.

       Reversing 43 St. Rep., 430.

   Peckham, J.

The plaintiff’s intestate was killed at a farm crossing over the defendant’s railroad, near the village of Bishkill. He was in the act of driving across the track when he was struck and instantly killed by one of the engines of the defendant,, which was drawing its pay car.

The general direction of defendant’s road at this point is east and west. The engine attached to the pay car was coming from the east at the rate of forty or forty-five miles an hour, and at that speed passed a highway crossing called Yan Wyck’s, and then at a distance of a few hundred yards to the west of that crossing it passed the Fishkill depot, and continuing its very high speed passed along still towards the west about 1,600 feet, when it reached the farm crossing in question, and where the engine came in collision with the horse and wagon belonging to the plaintiff’s intestate, and threw him out of the wagon and killed him instantly.

The plaintiff; upon the trial gave evidence tending to show that no whistle was blown or bell sounded for the crossing of the highway east of the Fishkill depot, or for the depot itself, and none for the farm crossing where the accident occurred. This highway crossing was somewhere in the neighborhood of 2,000 feet east of the farm crossing. Evidence was also given tending to show that it was customary for the engineers or firemen of the engines to blow the whistle or ring the bell when approaching the highway crossing and also when coming to the depot of the defendant. The learned judge charged the jury that the company were bound to blow the whistle or sound the bell eighty rods before getting to the highway and continue it at intervals until the crossing was passed. He also said the deceased had a right to assume the company would do its duty with respect to the highway crossing, and if it did not sound the bell or blow the whistle at this crossing nnd the accident at the farm crossing was occasioned by that omission, then the jury might find a verdict of negligence against the company.

Proper exceptions to this charge were taken by counsel for defendant, who called the attention of the court to the fact that the statute imposing upon the company the duty of having the bell rung had been repealed. The court replied that it was in the Penal Code.. Defendant’s counsel said that the Penal Code did not apply in a civil action. The court then stated to the jury that it was just the same as if it were written in the law; that it was made a crime instead of imposing a liability for damages, and that the jury might find a verdict just the same as they could before the repeal. To this direction the counsel for defendant took .appropriate exception. The question of the omission to whistle or ring on approaching a highway crossing two thousand feet east •of the farm crossing at which the plaintiff’s intestate was killed, was thus made a most important factor in the case.

The effect of this charge was to permit the jury to find negligence from the mere omission to ring a bell or sound a whistle at the highway crossing, and the charge was based upon the assumption that the statute made it the duty of the company to make these signals at such crossing. In this we think the learned judge ■erred.

The statute imposing any duty upon the company to cause a Tell to be rung or a whistle sounded upon approaching a highway crossing has been in terms repealed, and the provision in the Penal Code does not leave the law the same as it was before the repeal. By § 39 of the General Railroad Act (chap. 140 of the Laws of 1850), provision was made for placing a bell on each locomotive and direction was given that it should be rung as therein stated, or a steam whistle was to be attached to each locomotive and to be sounded instead. Penalties upon the company neglecting were placed, which could be collected by the district attorney, and the company was made liable for all damages sustained by any person by reason of such neglect. By § 7 of chap. 282 of the Laws of 1854, some additions were made to the provisions under the act of 1850, and it was provided that in addition to the penalties imposed upon the company, every engineer in charge of an engine who neglected to obey the statute was to be subject to a fine and imprisonment in the county jail.

Subsequently the Penal Code was adopted and it went into operation on the 1st of December, 1882. Section 421 provided that the engineer of a locomotive who failed to ring the bell or sound the whistle upon it eighty rods, etc., should be guilty of a misdemeanor. Then the legislature by the act, chap. 593 of the Laws of 1886, repealed in so many words all the provisions in the general railroad act of 1850, and of the act of 1854, above cited, which made it the duty of the railroad company to cause the bell to be rung or the whistle to be sounded, or provided any penalties against the company for its neglect. The only statute upon the subject which remained at the time of the happening of the accident in question is to be found in § 421 of the Penal Code, already cited.

Whether it was really intended to repeal all the sections of the law by which the duty was imposed upon the railroad company to cause these signals to be given may perhaps be doubted, but the repeal is in such plain and peremptory language that courts cannot disregard it without a clear violation of a legislative enactment. The duty of giving the signals is placed by the Penal Code upon the engineer, and his failure is made a crime, and in that way the giving of the signals is still provided for. The statute, however, does not impose the duty upon the company, and unless such duty is imposed by statute the failure to' give such signals cannot as matter of law be regarded as a neglect of duty. Beisiegel v. Railroad Co., 40 N. Y., 9; S. C., 14 Abb. Pr., N. S., 29; Weber v. Central Hudson R. R, 58 N. Y., 451—459; Briggs v. R. R, 72 id., 26, 30.

Of course the companies still owe a duty to the public at such crossings, as elsewhere. That duty is to run their trains with care and caution, and when they cross such roads it may well be that the failure to give due warning by whistle or bell, or in some other way, would be held, under all the circumstances, to be a ^ failure to manage and run their train with proper care and caution for which they would be liable to a party injured if otherwise entitled to recover. Even when compelled by statute to make such signals, it is not necessarily a defense in all cases to prove that they were made. The making of the signals is the least the company can do, and in a given case it might not be enough. Harty v. Railroad, 42 N. Y., 468 ; Thompson v. Central Hudson R. R. Co., 110 id., 636; 16 St. Rep., 869.

When the duty to give signals at highway crossings was by statute imposed upon the railroad company, it was held that it did not apply in i'avor of one who was walking upon the track, but that it was intended .for the benefit of those who were travel-ling the highway. Harty v. R. R. Co., supra.

It may be that evidence of the omission to give any signals for the highway crossing would not be admissible as bearing upon the question of defendant’s negligence in running its train at the. farm crossing, 2,000 feet distant.

There are cases where evidence has been admitted showing the absence of customary signals at the places where usually they had been given, for the purpose of proving negligence on the part of the company. Whether this was a case where evidence of this nature should be admitted in favor of this plaintiff, and with regard to the highway crossing, is a question not now necessary to decide.

If the defendant was guilty of negligence in the manner of running its train over the farm crossing, it would be liable to a plaint-tiff otherwise entitled to recover. Upon a new trial all the facts can be shown which would enable the court or the jury to determine the question.

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

All concur, Maynard, J., in result.

Maynard, J.,

dissents' from that part of the prevailing opinion which holds that the duty of the engineer to give a signal when approaching a highway crossing is not the duty of the company whose agent he is in running the engine; but concurs in the-result upon the ground that, as matter of law, it is not negligence in passing a farm crossing to omit to give the required signal at the highway crossing 2,000 feet away. It was a circumstance which the jury might consider in determining the degree of care to be exercised by the defendant in approaching the farm crossing."


author: Finch, J.

text:
    In the Matter of the Estate of Catharine A. Valentine, Deceased.

      (Court of Appeals,

      Filed November 29, 1892.)

    Appeal—New trial.
    A referee to whom, a disputed claim against an estate, consisting of two loans, was sent, decided that one of the loans was not proved to, have been made upon a usurious agreement, but held that the second loan was usurious and could not be recovered. The special term confirmed his report as to the second loan but reversed it as to the first, and ordered a new trial. This was affirmed by the general term, but on appeal to this court the creditor gave no stipulation for judgment absolute. Held, that the appeal from so much of the order as awarded a, new trial must be dismissed because of such omission.
    Appeal from judgment of the supreme court, general term, first department, affirming order of the special term partly overruling and partly confirming the referee’s report.

      Wm. G. Low, for app’it; Horace Secor, Jr., for resp’t.

       See 45 St. Rep., 758.

   Finch, J.

An alleged creditor of the deceased presented a claim against the estate for two loans of six hundred dollars each, which the administrators disputed and which, thereupon, were sent to a referee for a hearing and determination. Upon such hearing the sole defense was usury. The referee decided that the first loan was not proved to have been made upon a usurious agreement and ordered judgment for that amount with interest, but further held that the second loan was usurious and could not be recovered. The special term confirmed the report as to the second loan, but reversed it as to the first and ordered a new trial. The creditor appealed to the general term, which affirmed the order, and again from that affirmance to this court, but without giving the required stipulation for judgment absolute.

The appeal from so much of the order as awarded a new trial must be dismissed for that reason. Upon the facts disclosed we are quite strongly impressed with the view taken by the referee, but at all events the defeated creditor must take her new trial or go without remedy for the recovery of the first loan.

As to the second, the finding of fact concludes us, and is so supported by the evidence as to make quite immaterial the testimony which the referee struck out and as to which the creditor complains. That some interest was lost by her through a withdrawal of the money from the savings bank might by possibility have a bearing upon the first loan, which was for a year, but none upon the second, which was for no defined term of credit, but was payable presently and might have been demanded at once, or suffered to run for years, drawing all the time interest at eight per cent. The written memorandum, made apparently at the date of the loan and expressing its terms, could not justly be overcome by the evidence stricken out.

The appeal from so much of the order as awards a new trial is dismissed, and the order in other respects affirmed, with costs.

All concur.


author: Gray, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Bridget Bolin, Adm’rx.

      (Court of Appeals,

      Filed October 29, 1892.)

    Gift—Custody of bank book.
    Mrs. Cody during her lifetime deposited a sum of money in the hank in her own name, but. subsequently redeposited it in an account entitled “ Julia Cody or daughter Bridget Bolin.” A few years prior to Mrs. Cody’s death, the pass-book came into the hands of the daughter, and she j retained the custody of it, as she had of everything else of her mother’s. Held, that such custody evidenced no intention on the part of Mrs. Cody to transfer the ownership of the moneys deposited to the daughter.
    Appeal from judgment of the supreme court, general term, second department, affirming decree of surrogate charging the administratrix with a deposit in' bank claimed by her as a gift from her intestate.

      Phillips & Avery, for app’lts; Wm. J. Carr, for resp’t.

       Affirming 47 St. Rep., 762.

   Gray, J.

The administratrix, and appellant here, was one of the daughters of Julia Cody, deceased, and she withheld upon her accounting a sum of money which she had drawn from a savings bank. During her lifetime Mrs. Cody had deposited it in her own name, but, subsequently, redeposited it in an account entitled “Julia Cody, or daughter Bridget Bolin.” A few years prior to Mrs. Cody’s death, upon an occasion when they both were at the bank, the pass-book came into the hands of her daughter Bridget, who thereafter retained the custody of it, as she in fact kept everything else of her mother’s. The adminstratrix claimed that she had become vested with the title to the deposit, and relied in support of her claim upon the existence of evidence showing an intent that she should have the moneys; which was effectuated, or fortified, as she insists, by a delivery of the passbook.

This claim the other daughter of the deceased contested.

In addition to the manner in which the moneys were deposited and to the fact of her keeping the pass-book, the administratrix places reliance upon evidence showing that for many years before her death the mother resided with her, and was supported by her, and, by reason of grave physical infirmities, was the object of solicitude and of much care. All these facts, however, do not suffice to make out the proof of a transfer of title pr of a gift. That the moneys were deposited to the account of “ Julia Cody, or daughter Bridget Bolin,” is not a fact from which any inference of a transfer or of a gift arises. In the absence of other evidence, the transaction simply evidenced a purpose of the depositor of the moneys that they should be drawn out by either of the persons named. The only presumption would be that the depositor so arranged for the purposes of convenience, and that presumption is rather strengthened by the facts appearing of her helpless condition of blindness and of her other infirmities.

Mor was the custody of the pass-book by the daughter such a possession as evidenced an intention to transfer the ownership of the moneys deposited to the daughter. That is perfectly consistent with the motive of convenience; and the evidence that the daughter had the custody of everything belonging to her mother detracts from the argument that the continued possession of the pass-book tended to prove a gift, or the intention to make a gift. The infirm condition of the deceased and her demands upon her daughter’s time and attentions might be strong evidence to bear out the presumption of a gift, if there was evidence to base the presumption upon, such as the proof of acts tending to establish an intention to give, and amounting to a delivery or transfer. But the difficulty here is that there is no such evidence. There were no words of gift, and the receipt and holding of the passbook were consistent with a mere custody or agency. The law never presumes a gift To constitute a valid gift there must have been the intent to give and a delivery of the thing. The evidence must show that the donor intended to divest herself of the possession of her property, and it should be inconsistent with any other intention or purpose.

The referee refused to find that it was Julia Cody’s intention that, upon her death, the amount of the account in the savings bank should belong to her daughter Bridget, and the evidence warranted him in his refusal. The brief oral and documentary evidence tended to prove nothing in the way of a gift of the moneys inter vivas, or of a transfer of the account in the bank, and it would have been error for the surrogate to have decreed otherwise than he did with respect to this item of the intestate’s estate.

The judgment affirming his decree should be affirmed, with costs to the respondent against the appellant.

All concur.


author: O’Brien, J.

text:
    Henry H. Adams, County Treasurer, Resp’t, v. The East River Savings Institution, App’lt.

      (Court of Appeals,

      Filed November 29, 1892.)

    ■Constitutional law—County bonds.
    When a county containing a city of more than 100,000 inhabitants de"sires to create an additional debt, the ten per cent limit fixed by art. 8, § 11 of the state constitution is not reached until the county debt equals ten per centum of the valuation of all the real estate in the county, including the real estate in said city, but in ascertaining when the limitation is 0 reached in such a case, the debt of the city cannot be charged against the county any more than its proportionate share of the state debt or the debt of the several towns within its limits. Nor is the indebtedness of the county to be considered in determining whether the limitation in relation to the city has been reached.
    Appeal from judgment of the supreme court, general term, •second department, granting judgment for plaintiff on submitted case.

      Clarence F. Birdseye, for app’lt; Wm. C. De Witt and John B. Meyenborg, for resp’t

       Affirming 47 St. Rep., 175.

   O’Brien, J.

It appears from the record that on the 14th of April, 1892, the plaintiff, as county treasurer of the county of Xings, acting under the authority of a resolution of the board of ■supervisors of that county, and certain statutes then in force, offered for sale and invited bids for bonds of the county amounting in the aggregate to the sum of $620,000. Various persons and corporations thereupon made bids for the purchase of the bonds. The defendant bid the sum of $91,104 for $90,000 par value of the same, and its bid was duly accepted by the plaintiff. The defendant gave its check for the amount of the bid, but after-wards stopped the payment thereof and refused to complete its purchase, upon the ground that the bonds were void, having been issued without power, and in violation of the prohibition contained in art. 8, § 11, of the state constitution. It is conceded that if the bonds are valid that the defendant is bound to receive them and pay the sum bid therefor, otherwise not. Upon an agreed case submitted to the general term, it was held that the plaintiff had power to issue and sell the bonds, and that the portion of the issue purchased by the defendant was a valid obligation, and that the plaintiff was entitled to judgment. We think that the judgment is correct and, as the reasons in support of the conclusion reached have been fully and clearly stated by the learned judge who gave the opinion at the general term, in which we fully concur, it is quite unnecessary for.us to enter upon any lengthy discussion of the question.

The provision of the constitution which, it is claimed, forbids the issue of the bonds in question went into effect on the 1st of January, 1885, and is as follows : “ No county containing a city of over one hundred thousand inhabitants, or any such- city, shall be allowed to become indebted for any purpose or in any manner to an amount which, including existing indebtedness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation, as it appeared by the assessment rolls of said county or city on the last assessment for state or county taxes prior to the incurring of ¡uch indebtedness; and all indebtedness in excess of such limitation, except such as may now exist, shall be absolutely void, except as herein otherwise provided. No such county or city whose present indebtedness exceeds ten per centum of the assessed valuation of its real estate subject to taxation shall be allowed to become indebted in any further amount until such indebtedness shall be reduced within such limit. This section shall not be 'construed to prevent the issuing of certificates of indebtedness or revenue bonds issued in anticipation of the collection of taxes for amounts actually contained, or to be contained, in the taxes for the year when such certificates or revenue bonds are issued and payable out of such taxes. Nor shall this section be construed to prevent the issue of bonds to provide for the supply of water, but the term of the bonds issued to provide for the supply of water shall not exceed twenty years, and a sinking fund shall be created on the issuing of .the said bonds for their redemption, by raising annually a sum which will produce an amount equal to the sum of the principal and interest of said bonds at their maturity.” '

The territory embraced .within the county of Kings is the city of Brooklyn and four regularly organized towns. Ninety-six per cent of the total real estate of the bounty, according to the valuation next preceding the issue of the bonds in question, was within the corporate limits of the city of Brooklyn, and the other four per cent in the towns. The city has a large municipal debt of its own. The county as such has also 'a debt of several millions, and the towns in their corporate capacity have also created debts. The objection to the validity of the bonds in question is that they create a debt against the county which, when added to the debt existing at the time of the issue, makes an aggregate indebtedness of the county exceeding ten per centum of the assessed valuation of the real estate of the county subject to taxation, as appears by the assessment rolls of the county made at the last preceding assessment- for state and county taxes. The defendant, however, reaches and passes the ten per cent limit only by computing the municipal debt of the city of Brooklyn as part of the indebtedness of the county of Kings, and unless this proposition can be maintained the defendant’s contention must fail, and the bonds purchased by the defendant are unquestionably valid. This provision of the constitution declares void all indebtedness •created in violation of the limitations therein prescribed, but these limitations must be taken and understood distributively and not collectively.

As thus understood-the limitation applies to two distinct cases. (1) A city containing over one hundred thousand inhabitants. (2) A county within which is a city containing that population. The prohibition is aimed at each of these organizations or political divisions of the state separately. When it is proposed to issue additional city bonds in a city of the class mentioned in the constitution there are two facts to be considered, first, the existing indebtedness of such city, and secondly, the valuation of the real •estate therein. The indebtedness of the county of which the city forms a part does not play any part in the process of determining when the limitation is applicable, as it is wholly immaterial. So also when a county, containing, as the county of Kings does, a •city of more than one hundred thousand inhabitants, desires to create an additional debt the ten percent, limitation is not reached until the county debt equals ten per centum of the valuation of all the real estate in the county including, of course, the real estate in the city which forms a part of the county; but in ascertaining when the limitation is reached in such a case the debt of the city cannot be charged against the county any more than its proportionate share of the state debt or the debt of the several towns within its limits. The power of the county or the city, as the case may be, is restricted only by the amount of its own debt, and for the purpose of creating a disability against the one or the ether the debts of both cannot be aggregated. The contention of the learned counsel for the defendant pushes the prohibition to a point not warranted by a fair consideration of the language used or the general purpose which the framers of the amendment intended to accomplish.

The judgment should be affirmed, with costs.

All concur.


author: Andrews, J.

text:
    Lewis Sanders, Resp’t, v. Agnes Gordon Soutter, Individually and as Ex’rx, App’lt.

      (Court of Appeals,

      Filed November 29, 1892.)

    .Executors and administrators—Assignment or interest in estate— Release by assignor.
    The administratrix of an heir to an estate assigned her interest therein, the assignee executing a paper hy which he agreed to take from the fund when realized the amount advanced as consideration hy him, and to return the balance to her, and plaintiff holds under an assignment of such assignee’s interest in such transfer. Held, that, the payment of the sum advanced with interest to the assignee discharged the assignment.

      Appeal from judgment of the supreme court, general term, first department, affirming a judgment entered upon a decision of the court at special term.

      Debs McCurdy, for app’lt; Lewis Sanders, for resp’t.

       Affirming 42 St. Rep., 437.

   Andrews, J.

Under the will of James T. Soutter, who died February 8, 1873, his son, Robert Soutter, took one-tenth part of the residue of his estate remaining after payment of debts. Under the will of Robert Soutter, the son, who died July 15, 1873, his wife, Charlotte Soutter, now the Duchesse D’Auxy, took his household furniture and one-half of his residuary estate, real and personal. The Duchesse D’Auxy thereafter became entitled on the death of her husband, under his will, to one-half of her husband’s interest, unadministered, in the estate of James T. Soutter, Sr. The interest of the Duchesse D’Auxy was assignable.

The instrument of August 17, 1887, executed by her to Cranston, purported to be an absolute assignment and transfer by her to Cranston of all her interest derived under the will of Robert Soutter, excepting her interest in the household furniture. But concurrently with its execution Cranston executed and delivered to the Duchesse D’Auxy a defeasance, reciting that she had sold and assigned at that date (August 17,1887) to him her interest in the estate of Robert Soutter, and containing an agreement on bis part that out of the moneys realized from the sale of such interest, or from the settlement of any suits or actions (referred to in the assignment to him), he would first reserve $2,250, with interest and any expenses, and give the balance to her, together with all interest remaining undisposed of after his reimbursement.

There can be no doubt that the assignment to Cranston embraced whatever interest the Duchesse d’Auxy had in the undistributed share of Robert Soutter in the estate of his father under his will. This share was property owned by Robert Soutter at his death, and passed under his will; and the Duchesse D’Auxy, as legatee thereunder, was entitled to one-half of his estate. Her assignment, therefore, to Cranston, of her interest under the, will of her husband Robert Soutter, passed whatever she would be entitled to receive out of any money due or payable to Robert Soutter’s estate from the estate of his father, under the father’s will.

The judgment in this action sets aside the release of March 26, 1889, executed by the Duchesse D'Auxy, individually, and as administratrix with the will annexed of Robert Soutter, to the executors of James T. Soutter’s estate, on the ground that it was made in fraud of the rights of the plaintiff as assignee of Cranston, of which the executors of James T. Soutter had notice at the time the release was executed, and it being a conceded fact that the interest of the Duchesse D’Auxy in that estate, under the will of Robert Soutter, exceeded the sum of $2,250, at the time the release was executed, and that there was money sufficient to pay the sum in the hands of the executor of James T. Soutter, applicable to such payment, .the judgment awarded the plaintiff this sum, with interest, against such executors.

The plaintiff has appealed from the judgment, claiming that his recovery was improperly limited to this amount, for the reason, as he asserts, that he stood as the purchaser from Cranston of the entire estate which the Duchesse D’Auxy had in the estate of her husband, and not as mere assignee of Cranston’s claim of $2,250.

There can be no doubt of the proposition that under an instrument which is in legal effect a mortgage, a power may be vested in the mortgagee to sell and convey an absolute title to the mortgaged property. But assuming that Cranston might, under the instrument of August 17, 1887, have made an absolute disposition of the Duchesse D’Auxy’s whole interest in the estate of her husband, lie did not attempt to make such a disposition. What he did do was to substitute Amend, his immediate assignee, in his place, and Amend in turn transferred his interest to the plaintiff. Cranston’s assignment to Amend was of all his “ right, title and interest in and to the bill of sale and defeasance annexed,” and Atnend’s assignment to the plaintiff was of the interest he had acquired from Cranston. Payment to Cranston before his assignment of $2,250, and interest, and any expenses, would have satisfied all claims he had, and would have-operated to revest in the Duchesse D’Auxy her original right, discharged of the assignment. Payment to Amend or to the plaintiff of the same sum would have fully satisfied any claim they had.

There is no doubt, we think, that the appeal of the plaintiff is not well taken. The question of attorney’s lien is not raised by any finding and exception.

The defendant’s appeal is answered by what has been said as to the sufficiency of the instrument of August 17, 1887, to pass any interest which might come to the Duchesse D’Auxy on the settlement of the claim of the estate of Robert Soutter against the estate of his father, and by the fact that it does appear, or may reasonably be inferred, that except as to this claim the estate of Robert Soutter has been distributed and that the plaintiff has no available remedy, except through an accounting of the estates.

The judgment should be affirmed, but without costs to either party.

All concur.


author: Maynard, J.

text:
    In the Matter of the Accounting of the Executors of Balthazar Albrecht, Deceased.

      (Court of Appeals,

      Filed November 29, 1892.)

    Husband and wife—Bond and mortgage to both.
    Where a husband and wife each invested money drawn from savings banks, in which each had deposits to his or her credit, in a bond and mortgage executed to them both, it is a joint investment by them, and each has an interest to the extent of the amount contributed by him or her, and upon the death of either such interest vests in the personal representatives of the deceased party.

      Appeal from judgment of the supreme court, general term, first department, affirming decree of surrogate, overruling exceptions to referee’s report on accounting.

      Henry F. Lippold and James P. Niemann, for app’lts; Henry Kropf and Guggenheimer & Untermeyer, for resp’ts.

       Reversing 32 St. Rep., 193.

   Maynard, J.

Upon the final accounting of the executors in this case, the legatees in the will objected to the account upon the ground that it did not include the interest of the decedent in a bond and mortgage executed to him and his wife in 1878, for the payment of the sum of six thousand dollars, money loaned, which was outstanding at the' time of his death, in 1886, and also at the time of the death of the wife, which occurred some two months later.

. It was claimed by the executors that upon the death of the husband the title to the bond and mortgage and to the moneys secured by it vested wholly in the wife by virtue of her survivor-ship, and upon her death belonged to her estate to be distributed to her next of kin, and that no part thereof passed under the will of the husband to the legatees named therein. The surrogate sustained this claim and overruled the objections of the legatees, and his decision has been affirmed by the supreme court. It appeared from the evidence, and was found by the referee, that the husband and wife each invested the sum of three thousand dollars in the bond and mortgage, and the money which was loaned to the mortgagor was drawn from the savings banks, where each had deposits to his or her individual credit. Under these circumstances we think it was a joint investment by the husband and wife, and that each had an interest in the security taken therefor to the extent of the amount contributed by him or her, and that upon the death of either such interest vested in the personal representatives of the deceased party.

There is no room here for the application of the doctrine which prevails where husband and wife take an estate in property as tenants by the entirety. That relation can only exist where there is a conveyance of a vested interest in or title to real property. Since the adoption of the Eevised Statutes it has been the law of this state that a mortgagee acquires no title to the mortgaged property; that the mortgage is simply a chose in action, held as collateral security for the payment of a debt, and until foreclosure the mortgagor has the entire fee subject to the lien of the mortgage. Here the bond is the principal obligation and the rights of the joint creditors as between themselves upon the collection of the debt is not affected by the existence of the mortgage as collateral security for its payment. It might be observed that if this was a case governed by the same principles which determine the rights of husband and wife where real property is conveyed to them during coverture, it would not necessarily follow that they would become tenants by the entirety. If nothing was shown to evince a contrary intent such would undoubtedly be held to be the relationship of 'the parties; as was decided in Berths v. Nunan, 92 N. Y., 152. But this court has held in the recent case of Miner v. Brown, 133 N. Y., 308; 45 St. Rep., 188, that such a tenancy is not created where it appears from tüe character of the transaction that it was the intention of the parties that the grantees should take as joint tenants or as tenants in common.

To. the same effect is Jooss v. Fey, 129 N. Y., 17; 41 St. Rep., 211. What would be the legal rights of the parties where uoo-i a purchase of real property the husband and wife had each contributed from their separate estates equally, or in any other ascertained proportion, to the payment of the consideration does not as yet seem to have been the subject of judicial decision. It is not necessary, however, to farther pursue this mode of reasoning, for it has no value, except as it may be instructive by way of analogy. The rights of husband and wife in the personal property of each other, or in that which may be transferred to them jointly, rests upon different grounds than those which support a tenancy by the entirety.

We cannot affirm the decree of the surrogate without, in effect, ruling that if the wife had pre-deceased the husband he would have taken her share of the investment by virtue of his survivorship. But under the married woman’s acts she is to be regarded as if she wore sole with respect to her property rights, and she may unite with her husband in the purchase of personal property with her separate funds, and the interest which each will acquire in the subject of the purchase will not be affected by the marital relation. The law now regards them in such cases as standing upon the same plane of equality as if they were strangers to each other.

Wo are aware that there are many authorities holding that where the husband purchases a security or makes a deposit, or subscribes for stock in the joint name of himself and wife, and pays therefor with his own funds, upon his death the entire security belongs to the wife if she survives him. But the decision in all these cases is put upon the ground that it is apparent from the character of the transaction that the husband intended to give the property to his wife in the event of her survivorship, and hence the transfer possesses all the essential qualities of a gift causa mortis, which he may revoke in his lifetime and which does not take effect until his death if not previously recalled. While he lives his control over it is unlimited, and at his death it becomes her absolute property, if she survives him, but if she does not, the gift is not consummated and the husband retains the entire title. This was the rule laid down bv Lord Eldon in Wilde v. Wdde, Roper’s flush & Wife, Jacob’s Ed., vol. 1, p. 54, where it was held that if the husband purchased stock in the joint name of himself and wife it was p^-ima facie a gift to her, in case of her surviving, unless evidence was produced of cotemporaneous acts showing a contrary intention. But if the husband and wife each contribute to a joint investment or to the purchase of a security and the^ title is taken in their joint names to be held by them, their executors, administrators or assigns, as was the bond and mortgage in. the present case, no presumption can properly arise from the nature of the act that either intended to make a gift of his or her share to the survivor. The just inference is that each regarded it as a loan of individual property upon the strength of the security taken, and they become tenants in common of the bond and mortgage with all the rights and incidents of such a relationship.

We are unable to find any reported case in this state where the question has been presented in this form, but the supreme court of Michigan, held in 1877, in the case of Wait v. Bovee, 35 Mich., 425, that where husband and wife, being each possessed of means, had made investments jointly, each supplying half, and had taken the securities in their joint names, the wife on the decease of the husband during her lifetime did not take the whole by the right of survivorship; and that the rule which prevails as to the right of survivorship in the case of united holdings of real estate by husband and wife is not applicable to personalty. This view is supported by the principles of justice which should prevail in the determination of the rights of parties, and is in accord with the spirit of -modern legislation which has striven to place the parties to the marriage contract upon the same footing with respect to the acquisition and control of their individual properties as if the conjugal relation did not exist.

The decree should be reversed and the executors required to account for the interest of the testator in the "bond and mortgage; but as the question is new and it is apparent that the executors have acted in good faith, the costs of both parties should be paid out of the estate.

All concur.


text:
    Frank D. Crim et al., Ex’rs, Resp’ts, v. Rufus G. Starkweather, Impl’d, Appl’t.

      (Court of Appeals,

      Filed November 29, 1892.)

    Reference—Appeal.
    Where there was evidence on both sides of the question for the consideration of the referee, even if this court is of the opinion that the weight and preponderance of the evidence is in favor of the view contrary to that taken by the referee, his finding must be taken as conclusive.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff entered on report of referee.

      Geo. W. Smith, for app’lt; John D. Kernan, for resp’ts.
   O’Brien, J.

This case has been twice tried before very able referees and has been twice before the general term. It is now before this court for the second time, and the appeal is supported by a very able and interesting argument addressed to us by the learned counsel for the defendant, the leading feature of which is that the findings of the referee are not sustained by the evidence. The facts and circumstances upon which this large judgment is based are quite peculiar and we have, therefore, carefully considered all the evidence contained in the record and every suggestion to be found in the elaborate briefs of counsel. The case in its very nature is calculated to provoke a serious contest and to give rise to conflicting views and opinions with respect to the facts. Such controversies must be deemed to be ended at some time, and we think that this case has now reached that stage. The original plaintiff, Justus S. F. Grim, brought the action in 1878, and died in 1881, just before the defendant’s first appeal to this court. The present plaintiffs are his personal representatives, who have been substituted in his place. Substantially all the material evidence in the case was given during the lifetime of the original plaintiff. The referee has found that on the 9th of March, 1874, the defendant Starkweather and one William T. Grim, the son of the original plaintiff, who made no defense to the action, entered into a -copartnership in the banking business at Beloit, in the state of Wisconsin. That during that year, from August 21st to and in-eluding December 15th, the plaintiff advanced to the firm by means of drafts, purchased ana placed to its credit in ISTew York, the sum of $8,200, and that sum, with interest, from the dates of the advances respectively, it has been held that the plaintiffs were entitled to recover. The defense was that the several drafts purchased by the plaintiff and placed to the credit of the firm were not loaned or advanced to the firm but were loans or gifts to the .son William T. Grim, individually, and were intended to constitute the capital that he was to put into the banking firm.

All the evidence in the case was intended to bear directly or remotely upon this issue, and the question that the referee had to deal with was one of fact, which he found in favor of the plaintiff. The plaintiff testified that he advanced the money to the firm upon orders sent to him by telegraph and signed in the firm name. It is true that the telegrams were not produced, as the plaintiff claimed they had been destroyed, but the operator who sent them swore to their form and contents, and a clerk or employee of the banking firm who wrote some of them and saw the others also gave testimony on this point. The defendant Starkweather swore that he knew nothing about the transaction, and it is not probable that he did, but the transaction was, so far as the plaintiff was concerned, within the scope of the partnership business, and it was enough for him to show that in making the loans one of the partners participated and acted in the partnership name. Other evidence was given in behalf of the defendant tending to show that the plaintiff understood and treated the advances as made to his son individually. This was the question of fact around which the parties contended. It is quite clear that there was evidence on both sides of the question for the consideration of the referee, and even if this court was of the opinion that the weight and preponderance of the evidence was in favor of the other view, still the finding would have to be regarded as conclusive. Under our system of administering justice a fact once determined according to some one of the usual modes of trial upon conflicting evidence, and approved by the general term, is deemed to be conclusively established upon any review of the judgment in this court. As there is evidence to sustain the findings of the referee, this court cannot interfere with the judgment on the facts without disregarding a rule long and firmly established. The learned counsel for the defendant presented to the referee a chain of propositions all leading to a contrary conclusion from that reached by him in his report These requests were refused and the defendant’s counsel excepted. The various propositions constitute an argument addressed to the referee upon the facts and he refused to find the conclusion to which all of them pointed but did find the contrary and this finding is sustained by evidence. Under these circumstances the refusal of the l'eferee to find a fact which was but a link in the chain of propositions logically leading to a contrary, result was not error. It was but the refusal to find in the abstract what he had already refused to find in the concrete. As they now appear in the record and considered with the report, most of them are immaterial. The rest, even if material in any view of the case, were not so conclusively established as to predicate error upon a refusal to find.

We think that the record does not disclose any legal'error that would warrant us in interfering with the judgment and it must, therefore, be affirmed.

Judgment affirmed, with costs.

All concur, except Earl, Ch. J., taking no part.

       Affirming 36 St. Rep., 314.


author: Per Curiam.

text:
    The People, Resp’ts, v. Charles A. Wright, App’lt

      (Court of Appeals,

      Filed November 29, 1892.)

    1. Homicide—Evidence.
    Upon the trial of defendant for the murder of a helpless old woman, it was proven that on the day preceding the killing defendant’s face bore no marks of any scratch or wound, while on the day following witnesses noticed scratches on his cheek, concerning which he gave two different accounts. A medical expert failed to find any cuticle or substance from a human body under the nails of deceased and testified that the nails were very short, as if deceased had been in the habit of biting them off. Witness was then allowed, under, objection, to testify that he saw the scratches and that there were nails of the deceased sufficient to make a mark such as he saw upon defendant. Held, error; that this was an opinion merely, upon which the jury could form an opinion intelligently as well as he.
    3. Same—Indictment.
    The indictment charged defendant with killing the deceased by means and in a manner to the jurors unknown, and in a second count charged that defendant, without a design to effect death, killed her while engaged in an attempt to commit rape. Held, sufficient, and that no error was committed in refusing to compel the counsel for the prosecution to elect upon which count they would proceed to the trial of defendant.
    3. Same.
    Deceased was found on the floor of one of the rooms of her house lying on her back, almost naked, and quite dead. Several of her ribs had been broken, but the immediate cause of her death was leftyomewhat in doubt. Held, that there was sufficient proof of the corpus delicti; at any rate, the evidence was ample upon which a jury might come to the conclusion that criminal means were the cause of her death.
    4. Same.
    The court refused to charge the jury as requested, that mere probability

      of guilt, however strong, was not sufficient to warrant a conviction. IIeld, that while as an abstract proposition the court erred, as explained by other portions of the charge it was proper.
    8. Same.
    There was no error in proving defendant’s declarations when examined before the coroner.
    Appeal from judgment of the Essex county oyer and terminer, convicting defendant of murder in the first degree.

      Richard L. Hand, for app’lt; Francis A. Smith, for resp’t.
   Per Curiam.

The defendant was convicted of the crime of murder in the first degree at the oyer and terminer held in Essex county in March, 1892. The indictment upon which he was convicted contained two counts, the first of which charged that the defendant killed one Bedelía Taylor on the 80th day of August, 1890, at the town of Westport, in the county of Essex, by means and in a manner to the jurors unknown.

The second count charged that the defendant, without a design to effect death, killed Bedelía Taylor while he was engaged in an attempt to commit upon her person the crime of rape. The defendant has appealed to this court from the judgment of death pronounced upon him by the court below. The deceased was a woman over sixty years of age and lived alone in a small shanty near the highway running between Mineville and Westport, in the county of Essex. Her nearest neighbor on the Mineville side occupied a house about three-quarters of a mile from her residence, while her neighbor on the Westport side lived about 80 or 90 rods distant.

The deceased was last seen alive about seven o’clock in the evening of the 30th of August, 1890, walking in the direction of her house and not far from the residence of a Mr. Sharrow, her nearest neighbor on the Mineville side. A short time after half-past eight of the same evening she was found on the floor of one of the rooms in her house lying on her back, almost naked and quite dead.

There was no direct evidence as to the killing, and the prosecution sought to make out the case against the defendant by proof of circumstances from which the jury were asked to draw the inference that defendant was the guilty party. He was shown to have been at a small pond in the neighborhood of the residence of the deceased, in company with other young men, during the afternoon, his companions having fished in the pond and he coming upon them and talking and drinking with them.

In the evening, about half-past eight o’clock, the defendant came to the house of Mr. Baker, the nearest to that of the deceased, and, obtaining admittance after rapping, proceeded to give an account of what he had heard as he was passing along the road in front of the house of the deceased. He said he heard noises and cries of help,” murder,” and shuffling of feet and the sound of voices in the house as through a struggle was going on, but he did not understand what was said, as it seemed to be in the Swedish or Dutch language. His is the only account given as to his movements after he separated from his fishing companions and prior to his knocking at the door of Mr. Baker. He asked the witness, a Mrs. Stockwell, to whom he spoke at Baker’s house, to> get a lantern, and that some person might go back with him to the house of Mrs. Taylor to see what, if anything, had happened. A lantern was procured and a young man staying temporarily at the Baker house went with the defendant to the house of the deceased, and, on trying the door, found that it had been partly burst open, so that the bolt was no longer held by the hasp. They walked in through the door and the defendant went towards the middle of the room. The body of Mrs. Taylor was found in this room lying oh its back with some kind of a covering over the face; the night dress was wound around the body near the shoulders and the rest of the body was substantially without clothing. Upon discovering that Mrs. Taylor was dead the defendant and his companion left the house and returned to that of Mr. Baker, where the facts were stated and where the defendant passed the night, it being thought too late to do anything that night in the way of informing the coroner of the death.

During the day preceding the night of the killing it was proved by several witnesses who had seen defendant, that his face bore no marks of any scratch or wound, while on the next day (Sunday), witnesses noticed scratches on his cheek, which were variously described by them. It was proved that he gave two different accounts of the manner in which he received them, one that he was cutting a tree and one of its branches struck him and caused the scratches, the other that he had scratched himself while picking blackberries along the road the evening before. A postmortem examination of the deceased revealed the fact that several of her libs had been broken, but the immediate cause of her death was left somewhat in doubt. The medical experts were unable to say whether her person had in fact been violated, as they failed to find any certain physical indications of such violation.

Evidence of other circumstances of more or less importance was given, and from the whole case the prosecution claimed that it was proper for the jury to infer that the scratches on the cheek of the defendant were received in the course of a hand to hand struggle with the deceased, and which resulted in her death. The evidence regarding these scratches, was, as it seems to us, the most important part of the people’s case.

The prosecution was based wholly upon facts of a circumstantial nature. While it is true that circumstances when fully and satisfactorily proved may lead to an inference of the guilt of an accused party quite as reliable as direct evidence by an eye wit-: ness of the crime, yet it is vitally important that no error should intervene to the possible prejudice of the accused in the process of proving any important fact upon which, with others, the inference of guilt may rest.

The existence of the scratches Sunday morning on the defendant’s cheek is not denied. Who made them, and how they were made, was the important fact. If made by the tree or the blackberry bushes, their existence was wholly without importance, while if made by the deceased, the fact would be regarded as a most material, if not a controlling one against the defendant.

One of the medical experts while on the stand had testified, on .cross-examination by defendant’s counsel, that he had made an examination of the body of Mrs. Taylor soon after he arrived at the house, and while it lay on the floor; the arms were across the chest, partly folded, the right hand clenched, and the left hand partly open and partly closed. He examined the finger nails for the purpose of discovering whether any cuticle or substance from ■a human body was contained within or under the nail, and he failed to discover any. He said that ordinarily any scratch made by the finger nails of a human being upon the face of another human being would be accompanied by the presence of cuticle under the nails, if the person had long finger nails. He said he had ■in mind that if the scratches were made by the nails of the deceased, cuticle might be found under them.

Upon re-direct examination by counsel for the prosecution, and evidently for the purpose of explaining the absence of any cuticle under the nails of the deceased, it was shown that the witness discovered the nails of the deceased were very short, as if she had been in the habit of biting them off; they were almost entirely gone, and that was true as to all the finger nails. The witness was then asked if he saw the scratches on the cheek of the defendant that day and he said he did, and then under objection and exception the witness was asked whether or not there were nails of the deceased sufficient to make a mark such as he saw upon defendant, and he answered that he thought they were sufficient.

This was most important evidence, but at the same time was nothing more than an opinion based upon what the witness saw as to the scratches and the nails, and that opinion was given upon .a subject which was not at all of a nature calling for or permitting expert testimony.

The witness could properly describe the extent of the scratches, where they were, their condition when he saw them and his opportunities for examination. He could also describe the condition of the nails of the deceased with regard to length or any ■other fact mateiial to the investigation, but the opinion which he formed after the examination both of the scratches and the nails, that the latter could produce the former, was an opinion merely ■and at the same time it was not an opinion upon any matter of ■science or anything that required special skill or experience, or ■upon a subject m regard to which the jury could not form an opinion intelligently and properly after the facts were placed before it and just as well as the witness. It was an effort to give ■evidence of an opinion of a medical expert upon a question in regard to which he was no more competent to give an opinion any one not a physician, and it was upon a matter which was of the most vital importance to the defendant. Hpon further ■cross-examination the witness said, in describing the condition of the nails, that he meant that the loose part was bitten off so that the end of each finger projected beyond the nails. In truth the witness stated facts from which it was perfectly easy for the jury to decide whether the nails in all probability could or could not, have made the scratches. There was nothing of a medical expert nature in the evidence.

Neither was it of that class of opinion evidence which is occa-' sionally admitted as the general summing up 'of the effect of numerous small details upon a witness, the details in themselves being almost impossible to adequately describe, and yet in their total making a distinct and plain impression. Of this kind is the question sometimes put to a witness who saw the person, whether such person was intoxicated upon a certain occasion. It has also been held competent to prove by an eye witness that one person seemed to be very fond of another, or that two persons were mutually fond of each other. It is nothing but an opinion, and yet is received almost from the necessity of the case, because of the admitted inadequacy of language and memory to describe and reproduce all the various facts which caused the impression to be made upon the witness which is summed up in his opinion.

These are, however, exceptions to the general rule that witnesses must be confined to facts and that their opinions are inadmissible. The exceptions should not be extended without strong reasons, which we are quite clear do not exist in this case.

As there must be a new trial, it is proper to state that we think the indictment was sufficient, and that no error was committed in refusing to compel the counsel for the prosecution to elect upon 'which count they would proceed to the trial of the defendant We think also there was sufficient proof of the corpus delicti. It would be a very strained inference from the evidence in the case, that this woman either herself inflicted the wounds upon her person, or that they came from a fall which she accidentally suffered, and which was, or may have been, caused by some sudden attack of disease. At any rate, the evidence was ample upon which a jury might come to the conclusion that criminal means were the cause of her death.

The court was requested to charge the jury that mere probability of guilt, however strong, was not sufficient to warrant a conviction. The court refused such request and said that he would charge to the contrary, that probabilities are what you have to> deal with in matters of circumstantial evidence. As an abstract proposition we think the court erred in its refusal. Mere probability is not enough to base a conviction upon. The probability must be of that class which is based upon facts which are inconsistent with any other reasonable explanation than that the defendant is guilty.

But it is evident from other portions of his charge that the learned judge did not mean that mere probability, separated from everything else in the ca.se and ignoring all other rules of circumstantial evidence, was sufficient to convict. He had already plainly and explicitly stated to the jury that in order to justify a conviction of any crime the facts must be inconsistent with any other rational explanation or hypothesis, and that before a conviction ■could be justified the evidence must exclude to a moral certainty every other hypothesis but that of guilt. It is evident that it was of probabilities thus explained that the learned judge was thinking, and it seems clear enough that the directions already given would prevent the jury from falling into any errors as to the character and strength of the evidence necessary to convict, and as thus explained the charge was proper.

Under the recent decisions there would seem to have been no ■error in proving the defendant’s declarations when examined before the coroner. People v. Chapleau, 121 N. Y., 267; 30 St. Rep., 989, and cases cited.'

The killing in this case occurred in a rural community and ■under circumstances which were very likely to cause great excitement. A helpless old woman is found dead in her own house and proof of the killing can only be made out by various circumstances of greater or less weight. In such cases courts must see to it that while the law is strictly enforced, the evidence upon which to base a finding of murder shall be of a competent character and the facts must be properly proved.

The judgment must be reversed and a new trial granted to defendant.

All concur.


text:
    Helen M. Collier, Resp’t, v. Harriet Rutledge, App’lt.

      (Court of Appeals,

      Filed November 29, 1892.)

    Damages—Breach oe contract to make provision in will to pat for services.
    Decedent contracted with plaintiff that for additional services to be rendered by her he “ would provide for her in his will or by a codicil.” He made no testamentary provision for her. In an action against his estate for such services, Held, that the rule of damages was the value of the services.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of plaintiff entered •on report of referee.

      Wm. F. Cogswell and Henry M. Field, for app’lt; John Gillette, for resp’t. ,

       Affirming 45 St. Rep., 940.

   Andrews, J.

The contract between the plaintiff and "the decedent, as found by the referee, was that for the additional services to be rendered by the plaintiff, “ he (the intestate) would provide for her in his will or by a codicil.” This must be taken to have been the contract, since the finding is supported by evidence, and no question of variance was raised on the trial.

The decedent made no testamentary provision for the plaintiff, and it is well settled that when services were rendered to a testator under a contract to make compensation therefor by will, and he dies having made no provision therefor, the person rendering the services stands as a creditor of the estate and may recover from his representatives the value of the services. Patterson v. Patterson, 13 Johns., 379 ; Martin v. Wright's Admrs., 13 Wend., 460 ; Robinson v. Raynor, 28 N. Y., 494; Reynolds v. Robinson, 64 id., 589. The contract excludes the idea that the services were gratuitous. It, however, fixes no rule by which the damages, can be measured in case of default. What should be the extent of the provision is not expressed. It is, however, a reasonable implication that it should be compensatory, and that the provision not only shall be legal in form,, but that the estate will be in a. situation that in due course the provision made can be satisfied.

Where a testator wholly fails to make the promised provision, there seems in a case like this to be no other rule of damages, practicable except the value of the services.

The contention that the plaintiff has lost nothing, because if the contract had been performed, and provision had been made for her in the will, it would have been ineffectual by reason of the testator’s insolvency, and that therefore she was entitled to nominal damages only, proceeds upon the mistaken construction that a mere illusory provision would satisfy the contract. The contract was to make compensation by will, not a mere provision for compensation, which could not be made available. The provision contemplated was an effectual provision which would secure payment for the services. The main question was, we think,, correctly decided.

The referee in the first instance excluded evidence offered by the defendant of the insolvency of the estate. The evidence was immaterial, but the fact was afterwards shown.

The exception to the finding as to the value of the plaintiff’s services is sought to be supported on the ground that the referee did not award the amount which the estimates of the plaintiff’s, witnesses, based on a hypothetical question, fixed as their value, and that there was no other evidence of value given. The referee awarded a less amount, and we are asked to draw the inference-that he wholly disregarded the evidence of value given by the witnesses, and proceeded on some basis outside of the evidence. The defendant gave no evidence on the subject, and because the referee awarded a less sum than the evidence would have justified may show that he regarded the estimates exaggerated, it. does not show that the evidence was wholly disregarded.

We find no error in the judgment, and it should, therefore, be. affirmed.

Judgment affirmed, with costs.

All concur.


text:
    Emily B. Von Hesse, App’lt, v. Theodora Edith Mackaye, Resp’t.

      (Court of Appeals,

      Filed November 29, 1892.)

    Trust—Reservation of power of revocation.
    A father delivered certain bonds to his son and took from him a receipt, under which the son agreed to hold them in trust for an adopted daughter, the bonds, during the father’s life, to be subject to his order. He instituted the trust to ward off ceriain blackmailing suits, and subsequently withdrew some of the bonds. Held, that a valid trust was created.

      Appeal from judgment of the supreme court, general term, first department, affirming judgment against an executor recovered on trial at the special term.

      Geo. H. Starr, for app’lt; Charles F. Stone, for resp’t.

       Affirming 43 St. Rep., 16.

   Finch, J.

The validity of the trust for Edith is contested, not by creditors, but by the personal representatives of the settlor; and the evidence drives us to a choice between two alternatives. We must regard the arrangement either as a trust for her benefit with a power of revocation reserved, or as a fraudulent scheme to cover the settlor’s real ownership with the semblance of an outstanding title. Of course, we are not justified in the inference of a fraud or a falsehood when an honest explanation is possible, and should not turn an apparent trust into a sham except under the stress of a clear necessity.

I do not think the alternative of a meditated fraud is forced upon us by the proof. There was a delivery of the bonds to William Mackaye by Colonel Mackaye with the intent of vesting in the former the full and absolute legal title. Eepeatedly, the latter declared that he meant the transfer to be of such a character and so complete that William could swear that he had no property of the settlor in his hands.

We are not at liberty to suppose that the colonel intended to have his son swear to- a lie if a question of title should arise. We are bound to believe that the settlor intended a transfer which actually and in truth took the title out of him, and so effectually that the trustee could say under oath that the settlor had wholly parted with his ownership of the bonds. The character of the transfer as originally made is evidenced by the receipt which William gave, and which accords with his father’s declared intent. It is in these words: “Eec’d of my father, James Mackaye, ten Kansas Pacific bonds of one thousand dollars each, to be held by me in trust for his adopted daughter, Theodora Edith Mackaye, and for her sole benefit and behoof, said bonds for and during his life to be subject to the order of my father.” In a letter written at a later date the colonel gives his reasons for “putting the bonds in trust for Edith,” as he had already and previously explained. It was to ward off any more blackmail suits by so divesting himself of this property in his son’s hands as to take away that temptation to begin them. This was one motive for instituting the trust. It may be conceded that it was the primary and principal reason operating upon the settlor’s mind, and that a provision for Edith was subordinate and secondary. And yet each motive separately, and both combined, required an actual trust for her benefit, and not a mere agency disguised as a trust. There was a reservation of a control in the settlor equivalent to a power of revocation, and the existence of that power, and the use made of it, furnish the principal material for the argument of the appellant. Undoubtedly the settlor did mean to reserve a power of revocation. The bonds were to be subject to his order; he speaks of withdrawing them from the trust; of retaining control over them; of a right to divert them to other uses; but at the same time invariably declares that so far as he does not exercise that control so far the trust shall stand and remain for the benefit of Edith. He did withdraw some of the bonds fr.om the trust, and so pro tanto revoke it; but few things are better settled than that the reservation of such power is entirely consistent with the trust, and does not work its destruction where the rights of creditors are not involved.

It is true that the authority reserved over the fund is expressed in such terms as to admit of the contention that instead of a gift'with a power of revocation there was no gift at all, but merely an agency. That theory falls very far short of explaining all the facts and fastens upon the settlor a purely fraudulent purpose, while the construction of an intended trust for the benefit of Edith with, a power of revocation partially in fact exercised, and having as the chief motive of its creation a dread of attempted blackmail, harmonizes all the facts and incidents which appear upon the record, and consistently with good faith and honest intention. It is strengthened also b'y Colonel Mackaye’s later correspondence with his friend and attorney in which he recognized these bonds as already held in trust for Edith while planning another and more extensive, one for her benefit. Upon a consideration of all the facts we are inclined to agree with the courts below that a valid trust was created and sufficiently proved.

The j udgment should be affirmed, with costs.

All concur, except Peckham', J., not voting.


author: Fitzsihons, J.

text:
    Ralph W. Grout, Resp’t, v. Henry H. Strong, App’lt.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Depositions—Examination before trial.
    Where the testimony sought is solely within the defendant’s control and knowledge, and examination of the defendant is necessary to enable the plaintiff to maintain his action on the trial, such examination may properly he ordered.
    Appeal from order denying motion to vacate an order for the examination of defendant before trial.

      Jerome & Nason, for app’t; Thomas F. Byrne, for resp’t.
   Fitzsihons, J.

This is an appeal from an order denying a motion to vacate an order for defendant’s examination before trial. It appears from the affidavit upon which said order (for defendant’s examination) was granted that the testimony desired is solely within the defendant’s control and knowledge, and that the same is necessary to enable the plaintiff to maintain this action upon the trial. Justice Danforth, in Herbage v. The City of Utica, 109 N. Y., 82; 14 St. Rep., 845, says: “that a party litigant may, in the discretion of the judge to whom application is made under §§ 870, 872, 873 of the Code, have a general examination of his adversary as a witness in the cause as well before as at the trial.”

A careful examination of the appeal book convinces us that the order appealed from was properly granted, and must, therefore, be affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.


author: Ehrlich, Ch. J.

text:
    Sarah McHugh, Ex’rx, Resp’t, v. Jules Astrophe, Ex’r, App’lt.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Interpleader—Security for costs.
    A third person substituted as defendant by order of interpleader in invitum cannot be required to furnish security for costs as a condition of being allowed to prosecute his claim to the fund.
    Appeal from order made by Judge Fitzsimons.

      F. B. Morel, for resp’t; Booraem, Hamilton & Beckett, for app’lt.
   Ehrlich, Ch. J.

The question involved is whether a third person substituted as defendant by order of interpleader can be required to furnish security for costs as a condition of being allowed to prosecute his claim to the fund.

Interpleader is an equitable proceeding governed by equitable principles.

The legal title to the fund is in the plaintiff and presumptively she is entitled to it. The substituted defendant comes in as a claimant, and in respect to such claim is nominally, though not technically, a plaintiff. He is a non-resident and irresponsible.

Under such circumstances, the imposition of the condition might be deemed a valid exercise of power. But the difficulty is that there is no statute requiring such substituted defendant to give security for costs. See Republic v. Soto, 112 N. Y., 313; 16 Civil Pro., 270 ; 20 St. Rep., 749 ; Coates v. Morris, 1 Law Bul., 29.

If the third party had applied for leave to come in, security might have been required as a condition, but that is not in this case. lie is brought into the litigation in inviium and cannot be hampered by conditions; besides being an executor he could not be said to be unreasonably defending a litigation to which his presence has become necessary to a complete determination of the controversy.

The order appealed from must, therefore, be reversed, with costs.

Uewburger, J., concurs.


text:
    William D. Gregory, Ex’r, Resp’t, v. William H. Michaels et al., App’lts.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Lease—Estoppel.
    By joining in the execution of a lease by an executor and accepting the same, the tenant admits the representative character of the lessor, and is estopped from disputing his authority either to contract or to sue on the covenants of the lease.
    Appeal from judgment in favor of plaintiff.

      Smith, Bowman & Close, for resp’t; A. Edward Woodruff, for app’lt.
   Ehrlich, Ch. J.

Without considering the technical objection as to the sufficiency of the notice of appeal to entitle the appel. lant to a review on the merits, it is clear that the judgment below is right.

The action is on an indenture of lease executed by the plaintiff “ as executor of the last will and testament of Hester A Gregory, deceased,” as landlord, to the defendants as tenants.

By joining in the execution of the lease the defendants admitted the representative character of the plaintiff and his right to sue upon the contract, and are estopped now from disputing the authority. Farnham v. Mallory, 2 Court of Appeals Decisions, 100; S. C.; 3 Keyes, 527; 5 Abbotts Pr. N. S., 380 ; Hall v. Luther, 13 Wendell, 491; Tilyou v. Reynolds, 108 N. Y., 558; 13 St. Rep., 853.

This upon the same principle that a person contracting with a corporation is estopped from questioning the corporate existence. Holmes v. Shietz, 2 City Court, 77.

The defendants having admitted by their contract the representative character of the plaintiff, cannot question it now, nor require the court to indulge in presumptions against the lessors’ right to contract or sue upon its covenants.

For these reasons, the judgment appealed from must be affirmed, with costs.

Newburger and Fitzsimons, JJ., concur.


text:
    Fergus Mullen, Resp’t, v. The Central Park & East River Railroad Co., App’lt.

      (City Court of New York, General Term,

      Filed November 25, 1892.)

    Negligence—Street railway.
    Plaintiff's driver temporarily stopped on defendant’s track to receive orders, when defendant’s car ran into the cab. Tljere were snow hanks on each side of the street. Held, that the driver had a right to drive over that portion of the highway, and that the case was one for the Jury to determine.
    Appeal from judgment entered on verdict in favor of plaintiff.

      W.- Bourhe Cochran, for resp’t; Vanderpoel, Creen é Goodwin, for app’lt.
   Ehrlich, Ch. J.

The action was for negligently running into the plaintiff’s cab, whereby he sustained damage, etc.

Plaintiff’s driver had temporarily stopped on defendant’s track to receive directions, and, while receiving them, the defendant’s car ran into the cab and did the damage. There were snow banks on each side of the street, and the plaintiff’s driver had the right, notwithstanding defendant’s right of way, to drive his cab over that portion of the' highway covered by the defendant’s tracks. He did not see the car and had no warning of its approach. He was not unnecessarily obstructing the track, but receiving, orders in reference to his cab, which on account of the snow he could not receive nearer the sidewalk.

The driver of the cab did not anticipate danger, and, as a rule, none was to be anticipated from a horse car, as there is always time for warning.

At all events, the questions whether (1) the defendant was guilty of negligence, and (2) the plaintiff free from it, were for the jury, being matters about which minds might differ.

This case was one for the jury, the verdict satisfactorily sustained by the evidence, the damages not excessive, and no errors committed which require a new trial.

It follows that the judgment and order denying the motion for a new trial must be affirmed, with costs.

FTewburger, J., concurs.