text:
    CORNELIUS BORT and WILLIAM B. IRVIN as Supervisors, etc., Respondents, v. ADAM J. SNELL, Appellant.

      Subscription paper — a promise dry persons named in it to render future services mU support an agreement of the signers to pay — the signers are severally liable — an action will lie by persons to whom the promise is made — when the discharge of an indebtedness is equivalent to a payment to the credit of the debtor.

    This action was brought by the plaintiffs upon a written instrument signed by the defendant and other taxpayers of the town of Orleans, by which in consideration of the bringing and prosecuting of a certiorari, in which certain bonds of the town of Orleans were declared by the Uourl of Appeals to be void, and in consideration of the money and efforts spent by the plaintiffs, the committee appointed by the taxpayers.of the town to oppose the bonding of 'the town, and “ in consideration of tile said committee taking such other steps as may he necessary to render the decision of the Court of Appeals in said case of benefit to the said town, and to enable said committee, if necessary, to take further legal proceedings for the purpose of having the bonds issued by the railroad commissioners of said town of Orleans delivered up and canceled and the subscription of said town for the stock of said railroad company, canceled and the town released from the same,” the signers “ dp hereby agree mutually among ourselves and with the said (plaintiffs naming them) committee as aforesaid, to pay to Brainard Everett, a treasurer duly appointed by opponents of the bonding of said town of Orleans, or such other person as may be duly appointed as treaswer in his place, the amount respectively set opposite our names * * * whenever the jnoney * * * now in the hands of the collector shall either be paid over to the county treasurer of said county of Jefferson to the credit of the said town of Orleans, or paid back to the taxpayers respectively of whom the same was collected.”
    In an action brought by the persons named in the instrument as the committee of the taxpayers, to recover the amount set opposite the name of one of the signers:

      Held, that the third consideration specified in the instrument being for future services, which had been rendered, was sufficient to support the defendant’s promise to pay.
    That the promise of the subscribers was not a joint one, and that a separate action was properly brought against one subscriber to recover the amount set opposite to his name.
    That the action was properly brought by the individuals named as the committee as plaintiffs, and that it need not be brought by the person named in the instrument as treasurer, to whom the money was to be paid.
    That a payment of the moneys referred to in the instrument by the supervisors of the town in discharge of its audited accounts, was a payment “ to the credit ” of the town within the meaning of the agreement.
    Appeal from a judgment of the Jefferson County Court, affirming a judgment in favor of the plaintiffs rendered by C. M. Paris, a justice of the peace in the city of "Watertown..
    The defendant Snell with others, on June 3, 1873, executed and delivered to the plaintiffs the following agreement:
    “We, the undersigned taxpayers of the town of Orleans, in consideration of the bringing and prosecuting of the.certiorcvri in the ease of the Orleans bonding to the Court of Appeals, whereby it was finally decided that the bonding of said town of Orleans for the Clayton and Theresa Railroad was illegal and the whole proceeding was decided void, and in consideration, of the money and efforts spent by Cornelius Bort, Albion A. Hughes and William B. Irvin, the committee of the taxpayers of said town, duly 'appointed by said taxpayers for the purpose of opposing said bonding, and in consideration of the said committee taking such other steps as may be necessary to render the decision of the Court of Appeals in said case of benefit to the said town, and to enable said committee, if necessary, to take further legal proceedings for the purpose of having the bonds issued by the railroad commissioners of said town of Orleans delivered up' and canceled, and the subscription of said town for the stock of said railroad company canceled and the town released from the same, do hereby agree mutually among ourselves and with the said Cornelius Bort, Albion A. Hughes and William B. Irvin, committee as aforesaid, to pay to Brainard Everett, the treasurer duly appointed by opponents of the bonding of said town of Orleans, or such other person as may be duly appointed as treasurer in his place, the amount respectively set opposite, our names, being the amount of railroad tax which was collected of us respectively in the years 1872 and 1873, whenever the money collected in said town of Orleans for railroad purposes in the years 1872 and 1813 and now in the hands of the collector, shall either be paid over to the county treasurer of said county of Jefferson to the credit of the said town of Orleans or paid back to the taxpayers, respectively, of whom the same was collected.
    “ Dated June 3, 1S73.”
    Theretofore the plaintiffs had been parties to a proceeding on certiorari which they carried to the Court of Appeals at their own expense, where it was decided that the proceedings for bonding the town of Orleans and the bonds issued by virtue thereof were null and void. (Reported 56 N. Y., 296.)
    Having received the said agreement the plaintiffs aided in the prosetion of the Newton v. Keech suit, an action commenced against Keech, as collector of the town of Orleans, for the purpose of restraining him from paying over to the alleged railroad commissioners the sum of $8,154.75 collected by him pursuant to his warrant to pay certain interest claimed to be due on the .bonds of said town issued in aid of the railroad company, and being the same money referred to in the agreement as the railroad tax collected in 1872 and 1873, and now in the hands of the collector of said town. In 1876 plaintiffs procured the passage of a special act of the legislature, by which the identical moneys, $8,154.75, enjoined in the hands of Keech, were transferred to the hands of Pliny Newton, the supervisor of said town, subject to the same claims by the owners of the interest coupons as in the hands of Keech.
    Immediately after such transfer the suit of Biddlecome v. Newton, as supervisor, was commenced for the recovery of the $8,154.75 delivered to Newton in pursuance of the act of the legislature. The plaintiffs assisted in the defense of this action. They attempted to find the bonds and have them canceled. The moneys received by Newton in 1876 were retained by him until after the termination of the Biddlecome v. Newton suit, when, November 19, 1878, the sum of $7,702.15 was paid to the county treasurer to the credit of the town of ^Orleans. The balance of said $8,154.75 was paid by Newton on audited accounts of said town. Newton was supervisor in 1876 but not in 1877 and 1878.

      G. W. Thompson, for the appellant.

      L. J. I) or win, for the respondents.
   Hardin, P. J.:

Defendant executed the paper which recites three considerations. Two of them were passed; the third one was recited, viz.: “ And in consideration of the said committee taking such other steps as may be necessary to render the decision of the Court of Appeals in said ease of benefit to the said town to enable said committee, if necessary, to take further legal proceedings.” Other steps were taken. Plaintiffs performed services in reliance upon the subscription of the defendant. The considerations named were adequate to uphold the subscription. (Presbyterian Society v. Beach, 74 N. Y., 72.)

Second. The words do “ agree mutually,” when construed in the light of the surrounding circumstances leading up to the subscription, evidently relate to the agreement between the several subscribers among themselves and to themselves. They say in effect, we among ourselves and with each other mutually do promise each other that we respectively will pay the amount, etc.

So far as the promise is to pay to the plaintiffs it is not a' joint one, but each subscriber respectively promises to pay to the committee, to wit, the plaintiffs. The action was properly brought against one subscriber upon his parol promise to pay the amount set opposite his name respectively. Defendant’s promise was separate and complete, independent of every other one’s promise, in so far as it was with, for and to the plaintiffs or beneficial to them. Can the action be maintained by the plaintiffs ? In answering this question we must first consider the nature and object of the agreement the defendant entered into. It was to induce further action and service upon the part of the plaintiffs.

It was to indemnify or compensate them for such further action and service. True, in form, it was to pay to a treasurer named, or to be named, who apparently was made the receptacle or custodian for and in behalf of the plaintiffs. In Piggott v. Thompson (3 Bos. & Pull., 147) the commissioners were appointed by the act of parliament to drain certain “fell lands.” They let the tolls to the defendants for three years, who had hired for so much per annum, “ to be paid to the treasurer of the commissioners at his house in Ely.” But defendant paid part of the tolls to the commissioners, who brought an action to recover the balance. It was held that the action would lie. Heath, J., said : It appeal’s to me that the appointment to pay the treasurer “ was meant for the benefit of the commissioners, and they alone can sustain the action.”

This case was followed in Buckbee v. Brown (21 Wend., 110), where it was said remedies must be pursued in the name of the party in interest, and not in the name of the agent who made the contract or whose duty it is to make the collection of moneys accruing under such contract. If we turn to section 449 of the Code of Civil Procedure, we find a statutory declaration that “ every action must be prosecuted in the name of the real party in interest.” The rule is general, but then there are exceptions provided for in the same section, such as cases when the action may be prosecuted by an executor or administrator, a trustee of an express trust, etc. The provision is brought forward from the old Code (§§ 111, 113).

In Considerant v. Brisbame (22 N. Y., 392) the general rule is considered and the force of the language applying to trustees of an express trust. In that case it was held that an agent of a foreign corporation named in the subscription note might maintain an action. The legislation, was regarded as enabling. A similar view of the legislation was taken by the Court of Appeals in Hubbell v. Medbury (53 N. Y., 102), where Folger, J., says, in speaking of section 113 of the Code of Procedure, viz.: “That is permissive. The trustee of an express trust may by it sue without joining the beneficiaries. It does not forbid an action by them or by him with them.” A like construction was given to sections 111 and 113 of the Code in Cridler v. Curry (66 Barb., 336).

Having made a promise to the plaintiffs for their benefit and protection, the duty to or obligation of the defendant to the plaintiffs remains until extinguished by satisfaction or dischaged by a release. If the plaintiffs had executed to the defendants a release and discharge of his promise, would not the right of recovery have been gone ? Could the treasurer referred to in the agreement still have maintained an action on the defendant’s promise % We think not, and we think a payment to the plaintiffs voluntarily, or by satisfying the judgment before us effectually bars a recovery by all other persons upon the defendant’s liability.

We are referred by the appellant to Cross and others Trustees v. Jackson (5 Hill, 478) to sustain his position, that the action might have been or should have been brought in the name of the treasurer. In that case there was a direct promise to pay “such trustees the amount of their subscriptions.” That was held sufficient to give a right of action to the trustees of the ferry association. We find nothing in the case conflicting with the views we have expressed.

By the terms of the defendant’s promise he was to pay “ whenever the money collected in 1872 and 1873, then in the hands of the collector, was paid over ” to the credit of said town of Orleans. The proof shows that the town received the credit and benefit of the whole money. When it applied $1,000 in payment of its indebtedness it had the beneficial “credit.” It obtained the valuable advantage which the defendant made the condition precedent to his obligation to pay the plaintiffs becoming effectual and mature. (Smith v. Pettee, 70 N. Y., 13; Gray v. Gannon, 4 Hill, 77.)

If the views we have expressed are correct, they lead to an affirmance. We are under a legislative requirement to “render judgment according to the justice of the case, without regard to the technical errors or defects which do not effect the merits.” (Code of Civ. Pro., § 3063; Bort v. Smith, 5 Barb., 283; Wells v. Cone, 55 id., 585.)

According to our views the plaintiffs were entitled to recover irrespective of any facts disclosed in parol evidence as to what was said at the time the defendant executed the promise contained in the subscription paper. Upon the merits we believe the judgment given by the justice to be right.

Judgment of the County Court of Jefferson county affirming a justice’s judgment is affirmed, with costs.

Folleto and Kennedy, JJ., concurred.

Judgment of the County Court of Jefferson county affirming the justice’s judgment affirmed, with costs.


source: Caselaw Access Project

author: Follett, J.:

license: Public Domain

text:
    LILLA L. WHITE, Respondent, v. MILTON S. PRICE, WILLIAM STITT and ALFRED A. HOWLETT, Appellants, Impleaded, etc.

      Purchase of stock from an executor — chargeaMe with knowledge of his lack of authority — right to have illegal stock certificates canceled, — statute of limitations — when the ten years’ statute is applicable to an action to recover dividends wrongfully received.-

    Tlie owner of two shares of stock in a salt company bequeathed the same specifically to the plaintiff, to draw the income arising therefrom during her life with power to dispose of them to take effect at her death, the executors being directed to retain the shares during the plaintiff’s life and to pay the dividends to her. After the shares had been set apart for the plaintiff’s benefit, and in October, 1878, one of the two surviving executors, without the knowledge of his co-executor, assigned them to one Price in payment of an individual debt, a new certificate being issued to Price for the shares which he subsequently pretended to assign to another person. The certificate assigned to Price ran in the name of the testator and was indorsed by the assignor as his executor. The plaintiff did not learn of the sale to Price until August 20, 1878, and began this action to have the transfer set aside and the company compelled to recognize her as the owner of the shares in May, 1883.

      Held, that the title to the shares was in the plaintiff.
    That Price was chargeable with notice of the executors inability to transfer the certificate, and acquired no rights as against the plaintiff’s prior title.
    That persons purchasing the new certificate from Price, with knowledge that the shares which it purported to represent were owned by the testator at his death and claimed by his estate, acquired no better title than he had.
    That the plaintiff had a right to invoke the aid of this court to remove the cloud upon her title to the shares, and to have the illegal evidence of title in others canceled.

      That she was entitled to recover the amounts of the dividends received by Price upon the shares, although some of them were paid to him more than six years prior to the commencement of the action.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    James Lynch was the owner of two shares of stock (each of the par Value of $1,000) in the Salina Solar Coarse Salt Company, held under certificate No. 64, which he specifically bequeathed to the plaintiff, to draw the income arising therefrom during her life, with power to dispose of the shares to take effect at her death. The will directed the executors to retain the shares ■ during plaintiff’s life, and pay the dividends to her. November 13, 1871, the will was admitted to probate and letters were issued to Andrew J. Lynch, John O. S. Lynch and Charles Ii. Pendergast, who were nominated in the will as executors and trustees. May 11, 1872, Andrew J. Lynch died. September 24,1872, the surviving executors set apart said shares held under said certificate for the plaintiff’s benefit, and for the purpose of carrying into effect the testator’s bequest.
    October 18, 1873, John O. S. Lynch, without the knowledge of Charles H. Pendergast, co-executor, assigned said shares and delivered said certificate to Milton S. Price in payment of an individual debt, and on the same day a new certificate (No. 71) was issued to Price for said shares. In October, 1873, Price pretended to assign the shares to defendant Stitt, who pretended to receive the assignment, but no consideration was paid, and the shares were never transferred to Stitt on the books of the corporation.
    Charles EL Pendergast resigned, and John O. S. Lynch was removed, from his trust under the will, and May 9, 1880, the Trust and Deposit Company of Onondaga was appointed as trustee in their place, and thereafter prosecuted Price and Stitt in trover for the value of the shares, which action the Court of Appeals held could not bo maintained (87 N. Y., 542), and October 22, 1883, a final judgment was entered dismissing the complaint, with costs.
    December 27,1881, while said action was pending in the Court of Appeals, Price assigned said shares to Alfred A. Howlett for $2,000, who received a new Certificate from the corporation. Price and Howlett each purchased with knowledge of plaintiff’s rights. Price received $720 and Howlett $360 in dividends on said stock.

      The plaintiff did not learn of the sale to Price until August 20, 1878, and began this action May 8, 1S83.
    The defendants denied all of the allegations of the complaint, and alleged that the plaintiff had an adequate remedy at law, and that the action was barred by the six -and ten years’ statutes of limitation.
    The trial court held that the shares belonged to plaintiff, and that the transfers to Price and to Howlett should be set aside; that the Salina Solar Coarse Salt Company (who was a defendant, but did not answer) should thereafter recognize the plaintiff as the owner of the shares, and that Price and Howlett should pay over the amount of dividends received, with interest.
    A judgment was entered upon the decision, from which the defendants Price, Stitt and Howlett appeal. The case contains all of the evidence.

      Louis Marshall, for the appellants.

      William Q. Traey, for the respondent.
   Follett, J.:

On this appeal the defendants challenge but three of the findings of fact, the eighth, ninth and thirteenth. The appeal book contains all of the evidence, and the defendants having requested the court to find the converse of the propositions embraced within those findings, those questions of fact are before this court for review. (Porter v. Smith, 7 Civ. Pro. R., 195.)

The court found that Lynch was insolvent when he assigned the stock certificate to Price, and that Price then knew that the stock-was held-by the executors of the estate of James Lynch. Lynch swears that when he made the assignment to Price his notes were under protest and that he was insolvent. There is no evidence or circumstance tending to contradict this evidence. The certificate assigned to Price ran to James Lynch, and the assignment indorsed on the certificate was executed by John O. S. Lynch as- executor of James Lynch. Lynch swears that he told Price that he had authority to transfer the stock. Price was not sworn, and there is nothing in the ease to rebut the presumption arising from these facts.

Purchasers of stock certificates and non'-negotiable instruments are chargeable with constructive notice of their contents and are bound by the legal effect of the contents, whether they examined the instruments or not. (Shropshire Union R. and C. Co. v. The Queen, L. R., 7 Eng. and Irish App. Cas., 496; reversing Queen v. Shropshire U. R. and C. Co., Law Rep., 8 Q. B., 420; City Bank v. R. W. and O. R. R. Co., 44 N. Y., 136; Farmers and Mechanics' Nat. Bank v. Logan, 74 id., 568; Farmers and Mechanics' Nat. Bank v. Atkinson, Id., 587; Farmers and Mechanics' Nat. Bank v. Hazeltine, 78 id., 104.) The effect of recitals in title papers upon purchasers is too well settled and familiar to require further discussion. It is undisputed that Rrioe took the assignment from Lynch in payment of a personal debt. A person who takes title from an executor in payment of the executor’s personal debt is not a purchaser in good faith and acquires no rights over the prior title or equities of other, persons. (Hill v. Simpson, 7 Ves. Jr., 152; Jaudon v. Nat. City Bank and others, 8 Blatch., 430; affirmed, Duncan v. Jaudon, 15 Wall., 165; Fields v. Schieffelin, 7 Johns. Ch., 150; Pendleton v. Fay, 2 Paige, 201; 2 Wms. on Ex. [6th Am. ed.], 1004; 2 Perry on Trusts, § 814.) The eighth finding is supported by the evidence.

The court found that Howlett knew when he took the assignment of Price’s stock certificate that the shares which the certificate purported to represent were owned by James Lynch at his death, and also that his representative then claimed the shares. Howlett testified that he understood the stock was claimed to belong to the Lynch estate, and knew that a litigation was pending in respect to it. This evidence is sufficient to support the ninth finding and deprives Howlett of the position of being a purchaser in good faith.

The court found that the plaintiff did not’ know of Lynch’s assignment of the shares until August 20, 1878. She so testified. The defendants insist that the suit prosecuted in her -interest together with tlie fact that she had before seen Pendergast, who was trying to redress the wrong for her, that it was probable that she had been informed of the assignment long prior to August 20, 1S78. The evidence shows that the plaintiff is a nun and has spent her life, since the death of the testator, in various religious houses, and from February -14, 1877, to August 20, 1878, was in France. She had heard of this bequest in her favor, but had not taken sufficient interest in it to collect the dividends. We do not think the inferences which should be drawn from these facts are such as should have led the trial court to disregard the plaintiff’s positive evidence, and .certainly the inferences which may be drawn from these facts are insufficient to authorize this court to overthrow the finding of the trial court, and the thirteenth finding is sustained.

When this will was before the Court of Appeals (Onondaga Trust and Deposit Co. v. Price, 87 N. Y., 547) it was there held that the title to the shares was in the plaintiff. This being so, under the facts found, Price acquired no title under Lynch’s assignment and Howlitt none under-Price’s assignmént. The corporation had recognized Price and Howlitt as the owners of the shares under their several certificates and paid them the dividends, and the assignments and formal transfers upon the books of the corporation were clouds upon the plaintiff’s title which, if she neglected to remove, would in time deprive her of all claim against the corporation under the rules applicable to laches and acquiescence. The plaintiff has the right to invoke this court to remove those clouds oi’, in other words, to cancel those illegal evidences of title in others. (The N. Y. and N. H. R. R. Co. v. Schuyler, 17 N. Y., 592; S. C., 34 id., 30.) This cause of action did not arise out of a contract between the plaintiff and any defendant, but out of a fraud which was undiscovered until August 20,1878, and this action was brought within six years from that date. December 31, 1.816, an action to set aside these transfers was cognizable by the Court of Chancery, and the statute is not a bar to an action to compel the cancellation of the transfers and the corporation to recognize the plaintiff as the owner of the shares. All of the dividends paid to ■ Howlett were received since February 1, 1882, and the statute, under any conceivable construction, is not a bar in his favor. But $210 (the first four dividends) were received by Price more than six years prior to the commencement of the action; but as to these dividends the statute is not a bar. (Carr v. Thompson, 87 N. Y., 160.) The case of Burt v. Myers (37 Hun, 277) has been cited. The cause of action in that case was not an equitable one, it accrued under the old Code, the action commenced May 29, 1877, before that part of the Code of Procedure relating to the' limitation of actions took effect, and was governed by the provisions of the old Code. (Code Civil Pro., § 414.)

The judgment should be affirmed, with costs.

Hardin, P. J., and Churchill, J., concurred.

Judgment affirmed, with costs.


text:
    WILLIAM E. JAMES, JOHN D. LOVETT and WILLIAM W. WEBBER, Respondents, v. SPENCER D. RICHARDSON, J. FORMAN WILKINSON and ALFRED D WILKINSON, Appellants.

      Practice — attachment — the affidavit may be made by the plaintiff’s attorney — facts are presumed to be within his personal knowledge — when a deposition of a defendant in another action may be used instead of his affidavit — when the affidavits are sufficient.

    An affidavit made by tbe agent or attorney of a plaintiff will support an attachment, if it proves the necessary facts.
    Statements, in the affidavits will be presumed to have been made on personal knowledge, unless stated to be on information, or unless it appears affirmatively or by 'fair inference that they could not have been or were not made on such knowledge.
    Upon an application for an attachment in an action to recover the price of goods sold to the defendants who were claimed to be liable as partners, a copy of the deposition of one of the defendants, made in proceedings supplementary to execution instituted in another action, was annexed to the affidavit made by the plaintiffs’ attorney, in which the failure to use an original affidavit was excused by a statement that the defendant making the said deposition had refused to make an affidavit in other cases.

      Held, that the copy of the deposition was properly received and considered by the court.
    The facts stated in the moving papers considered, and held to sufficiently establish that the plaintiffs were entitled to recover the sum claimed, over and above all counter-claims known to them.
    Appeal from an order made at a Special Term denying a motion to vacate an attachment against the property of the defendants, which had been granted in this action.

      William E. Ayers, for the appellants.

      Homer Weston, for the respondents.
   Follett, J.:

The defendants moved at Special Term, upon the papers upon which the warrant of attachment was granted, for an order vacating it, which was denied. An order was entered from which the defendants appeal. The action is for the' recovery of $309 the price of the goods sold by the plaintiffs to the defendants as copartners, dealing with the plaintiffs under the name of “ S. D. Richardson.”

But two questions are raised upon this appeal: First. That a cause of action is not shown to exist against the defendants. Second. That it is not shown that plaintiffs are entitled to recover the sum stated over and above all counter-claims known to them. An affidavit made by the agent or attorney of a plaintiff will support au attachment if it proves the necessary facts. (The Marine National Bank v. Ward, 35 Hun, 395; Gribbon v. Back, Id, 541.) Statements in affidavits will be presumed to have been made on personal knowledge, unless stated to be on information, or unless it appears affirmatively or by fair inference that they could not have been, or were not made on such knowledge. Statements made upon information and belief are entitled to little weight, unless the sources of information and the grounds of belief are disclosed, and a sufficient reason given why hearsay instead of primary evidence is offered. (3 Chitty’s Pr., 540; 1 Tidd’s Pr., 182; 4 Wait’s Pr., 582.)

The evidence that the defendants were-copartners in the business for which the goods were purchased, is derived from the deposition, oral admissions of the 'defendant Richardson, and from the books used in the business. Richardson testified, in proceedings supplementary to execution in another action, that the defendants were copartners. A copy of this deposition is annexed to the affidavit of the plaintiff’s attorney. The excuse for using the deposition instead of an original affidavit is that Richardson had refused in other cases to make an affidavit. This, in the case of a party, is a ■ sufficient excuse.

Section 885, Code of Civil Procedure, does not authorize the examination of an adverse party to obtain evidence for use on a motion, and the rule that the best evidence must be produced is not so inexorable as to exclude the deposition of a party made in another cause, when its genuineness is proved and it is shown that he will not make an affidavit for the purpose of the motion. In Bennett v. Edwards (27 Hun, 352) it was held that the affidavit of a clerk of the defendants, made in his own case, might be proved and used in a subsequent case if he refused to make a like affidavit for use in that case.

The defendant Richardson testified upon the examination referred to, in effect, that the defendants were copartners. Weston testifies in his affidavit: That the defendants were, and now are, copartners, doing business in Syracuse, N. Y., under the firm name and style of S. D. Richardson, at the times therein mentioned.” Also, “ that said Richardson kept books in said business from 1877, and they show that such division has been made and that there was equal sharing, both in the losses as well as the pi’ofits of the business.” Though the affiant does not expressly testify that he had examined the books referred to, and knew their contents, the inference is, from the positive form in which the statement is made,, that he knew what the books contained. In the absence of a denial we think a prima facia case that defendants were liable as copartners, was made out. Assuming that a prima facia case of copartnership is made out, the admissions of Richardson are (until the presumption is overcome), binding upon his co-defendants. The plaintiffs’ attorney testifies: “ That heretofore, and before the eleventh day of December, 1884, the plaintiffs sold and delivered to the defendants, at their request, goods and merchandise for the agreed price and the aggregate value of $412, which sum became due and payable before the commencement of this action, with interest from the thirtieth day of January, 1885, and no part of which has been paid except the sum of $103.”

Weston further testified that Richardson told him January 30, 1885, that the plaintiffs’ bills amounted to $412 or $415, less the dividend paid by his assignee; the amount of which lie did not know, and that there were no counter-claims thereto.” The absence of counter-claims known to the plaintiffs is also stated.

We think they make out a prima facia case for an attachment. The point that no reason was given why the affidavit was made by the attorney instead of one of the plaintiffs, does not seem to have been taken at Special Term, nor is it specified in the notice of motion. The affidavit discloses that the plaintiffs are engaged in business in Massachusetts, which, though not stated as a reason, is a reason for the attorney’s making the affidavit; and, besides that, none of the facts (except the indebtedness) were within the knowledge of the plaintiffs. While the affidavits upon which the attachment was granted are inartificial, we think they make out a prima facia case for "an attachment.

We think the order of the Special Term should be modified so as to permit the defendants, or any of them, to make a new motion upon fresh proofs to vacate the attachment; and as modified .affirmed, with costs. This will preserve all of the rights of the parties

The order should be affirmed, with costs.

Hardin, P. J"., and Kennedy, J"., concurred.

Order modified so as to permit defendants, or any of them, to ■move to vacate the attachment upon fresh proofs, and as modified ¡affirmed, with ten dollars costs and disbursements.


author: Pollett, J.:

text:
    ASENATH HOYT, Respondent, v. CHARLES M. PUTNAM, and Others, Appellants.

      Statute of limitations — an action to reform a deed must he brought within ten gears — when a party cannot recover land cowoeyed without first having his deed reformed.

    August 26,1842, one Burrows died seized of a farm which he devised for the use .of his widow and children until the youngest should come of age, when an undivided one-third was given to the plaintiff, his widow, and an undivided two-thirds to his two sons Ezra and Avery. The will was not proved until October 11, 1881. Within a year after the testator’s death the widow removed ■with her children to another county, since which time she has not resided on the farm. The farm was rented until 1854 when Ezra came of age and took ■ possession of the farm, continuing thereon until 1861, when the sons divided .the farm by quit-claim deeds, Ezra taking the south and Avery the north half, both then knowing of the mother’s interest under the will. April 1,1862. Avery, having become a soldier, conveyed the north half to his mother to hold ■the title for his children. Avery continued to receive the rents and profits and in 1869 induced his mother to convey the north half of the premises by a-warranty deed, dated April 1, 1869, to Ezra, which was duly recorded on ¡September 21, 1869.

      April 1, 1869, Ezra mortgaged the whole farm to one Hoyt, by a mortgage which was recorded January 18,1871, Hoyt knowing of the plaintiff’s claim when he took the mortgage. On April 1, 1879, this mortgage was assigned to Putnam and Minor who paid the full amount then unpaid, but had notice of the plaintiff’s interest. January 1,1876, Ezra mortgaged the whole premises to Putnam and Minor to secure the payment of a debt.the time of payment of which was thereby extended. April 1,1879, Ezra and wife conveyed the whole farm to the wives of Putnam and Minor.
    March 28, 1883, the plaintiff brought this action to have her deed of the north half reformed, so as to reserve her third interest therein, and to recover her one-third in the whole farm, with damages for the withholding thereof:

      Held, that as to the north half of the farm the action was not for the recovery of real property, but one to procure a reformation of the plaintiff’s deed, and that it was barred by the ten years’ statute of limitations.
    That as Hoyt took his mortgage with actual notice of the plaintiff’s rights, and as Minor and Putnam purchased the same with like notice, no lien was created thereby upon the plaintiff’s interest in the south half of the farm.
    Appeal from a judgment, entered upon the decision of the court at the Delaware Circuit, on a trial before the court without a jury.
    August 26,1842, Daniel A. Burrows died seized in fee of a farm, which he devised for the use of his widow and children until his youngest son became of age (which was in 1856), then an undivided one-third to his widow (this plaintiff) and an undivided two-thirds to his two sons., Ezra S. Burrows and Avery P. Burrows, to be equally divided between them. The will was not admitted to probate until October 11, 1881. Within a year after the testator’s death the widow removed, with her children, to another county, since which time she has not resided on the farm, which was rented until 1853 or 1854, when Ezra S. Burrows became of age and entered into possession of the farm, and continued therein until June 22, 1861, when the sous divided the farm. Ezra S. .Burrows and wife quit-claimed the north half to Avery P. Burrows, who, with his wife, quit-claimed the south half to Ezra S. Burrows. The sons at this time knew of their mother’s interest under the will.
    April 1, 1862, Avery P. Burrows executed' a deed to his mother of the north half of the farm, which was duly recorded April 14, 1862. This deed was without consideration and was executed because the grantor had become a soldier and desired his mother to hold the title for his children. The mother (plaintiff) never claimed under the deed, and Avery P. Burrows continued to receive the rents and profits until April 1, 1869, when he sold his interest in the north half to Ezra S. Burrows, and procured the plaintiff to convey to Ezra S. Burrows said north half by a warrantee deed dated April 1, 1869, and duly recorded September 21, 1869.
    April 1, 1869, Ezra S. Burrows mortgaged the whole farm to Reuben Hoyt (plaintiff’s second husband) to secure the payment of $1,200, which mortgage was duly recorded January 18, 1871. When Hoyt took the 'mortgage he knew plaintiff claimed to own one-third of the mortgaged premises under the aforesaid will, and the plaintiff knew that the mortgage was given and that it covered the entire premises. April 1, 1879, Charles M. Putnam and James S. Minor paid to Hoyt the full amount unpaid on said mortgage and took an assignment thereof. The court found that Putnam and Minor knew when they took the assignment that plaintiff claimed a one-third interest in the mortgaged premises, but this finding is challenged on this appeal. January 1, 1876,-said Ezra S. Burrows mortgaged the whole farm to said Putnam and Minor to secure the payment of a debt then due of $1,648.70, by which mortgage the time for its payment was extended. This mortgage was duly recorded July 5, 1876.
    April 1, 1879, Ezra S. Burrows and wife conveyed the farm to Harriet E. Putnam, wife of Charles E. Putnam, and Mary E. Minor, wife of James S. Minor, who entered into and now remain in possession, claiming the whole farm.
    March 28, 1883, plaintiff began this action to have her deed of April 1, 1869, to Ezra S. Burrows of the north half of the farm reformed so as to reserve therefrom her one-third interest, and for the recovery of a one-third interest in the whole farm, with damages for the withholding.
    The Putnams and Minors answered that Charles M. Putnam and James S. Minor were mortgagees in good faith and for value, and that Harriet Putnam and Mary E. Minor were grantees of the fee in-good faith and for value, and the will not having been proved within four years after the testator’s death, they acquired priority over the plaintiff under section 3, 1 Revised Statutes, 748, and also that the ten years’ statute of limitations was a bar to the reformation of the deed.
    The court held that the mortgage given to Putnam and Minor January 1, 1876, was taken for value in good faith, without notice of plaintiff’s claim, and was entitled to priority over plaintiff’s claim, but held that Hoyt, when he took his mortgage of April 1, 1869, knew of plaintiff’s claim, and that Putnam and Minor when they took the assignment' thereof, April 1, 1879, had notice of plaintiff’s claim, and that this mortgage was subject to plaintiff’s claim, directing a judgment in favor of the plaintiff for the recovery of an undivided one-third part of the farm, subject to the amount unpaid on the mortgage given to Putnam and Minor January 1, 1876. The improvements were found to be equal to the value of the use and occupation, and but six cents, damages were awarded to the plaintiff for withholding possession.
    Prom this judgment the Putnams and Minors appeal.

      Arthur More, for the appellants.

      Isaae If. Maynard, for the respondent.
   Pollett, J.:

The plaintiff, by her deed of April 1, 1869, parted with her title to one-third of the north half of the farm, and before she can recover this third her title must be restored by a reformation of the deed. This action was begun nearly thirteen years after the date of that deed, and the defendants answer that the ten years’ statute of limitations (Code of Civ. Pro., § 388) bars her right to recover a judgment reforming the deed, and, consequently, is a bar to her recovery of one-third of the north half of the farm. Is this action, so far as it relates to the north half, an “ action for the recovery of real property,” within the meaning of the Code, or is it an action to reform her deed 1 • This question will be more clearly presented by excluding from our view the rights of the parties in the south half of the farm, and considering the question as arising in an action relating solely to the north half.

An action founded on the title of the plaintiff may be maintained for the recovery of real property if brought within twenty years after the right of action accrues. In such a case, strangers cannot limit the right to ten years by the interposition of forged conveyances or of fraudulent deeds or judgments to which the plaintiff is not a party. (Graham v. Luddington, 19 Hun, 246.) And as it was held in tlie case cited, it is immaterial, so far as the statute of limitations is concerned, whether the remedy is sought by a legal or an equitable action; but if the plaintiff has parted with his title, and can only recover through a judgment setting aside or reforming his own conveyance, and thereby restoring his title, the action cannot be maintained unless brought within ten years after the right of action accrues. (Miner v. Beekman, 50 N. Y., 337; McTeague v. Coulter, 6 J. & S., 208.) In Graham v. Luddington (supra) the plaintiff had title, and recovered on the strength of it. The judgment and deed interposed as a defense arose out of the fraudulent acts of others, and in no way affected her title or right of recovery. As before stated, this plaintiff cannot recover one-third of the north half until her title to it is restored by a reformation of her grant.

The instrument sought to be reformed is not an executory contract ; the plaintiff has not remained in possession of the land, nor does the action arise out of undiscovered fraud; but it is for the reformation of plaintiff’s deed, under which her grantee held possession for ten years, and from whom the defendants in interest have acquired title, possession and liens. Oakes v. Howell (27 How., 145) was brought by a vendor against a vendee, April 11, 1861, for the reformation of an executory contract for the sale of land, dated September 22, 1849, the last payment upon which fell due March 1, 1861. It was held that the right of action accrued at the date of the contract, and was barred by the lapse of ten -years. This case goes much further than it is necessary to go to sustain tlie defendant’s position in the case at bar.

So far as this action relates to the north half, it is not an action for the recovery of real property within the meaning of the statute of limitations. The primary cause of action does not rest on or arise out of the plaintiff’s title, because she has none, but arises out of her mistake in conveying all instead of two-tliirds of her title in the north half, and this part of the case falls within section 388 of the Code of Civil Procedure, and is barred by the lapse of ten years.

The only remaining question arises over the rights of the parties in the south half of the farm, in which the plaintiff has not conveyed her interest. Eeuben Hoyt took his mortgage with actual notice that plaintiff owned one-third of the farm. This fact is undisputed.

The court finds that Charles M. Putnam and James S. Minor purchased this mortgage from Hoyt with like notice, which finding is challenged by the appellants. This question was sharply contested before the trial court, and the evidence is so conflicting that the finding ought not to be overthrown.

The defendants, Harriet Putnam and Mary E. Minor, took their title for the benefit of their husbands, paying nothing, and are in no better position than their husbands.

This is not an action for the recovery of land within the Code, and triable before a jury. Persons are parties hereto who are not proper parties in such an action (Code Civ. Pro., §§ 1502, 1503); and under the pleadings rights are sought to be adjudicated, and were adjudicated, which could not be in such an action, and this judgment may be properly modified, without costs to either party on this appeal.

The judgment is modified by declaring the Hoyt mortgage to be a lien upon the whole of the north half, and a lien upon an undivided two-thirds of the south half of the farm, and as modified affirmed, without costs to either party.

Judgment to be settled before Follett, J.

So ordered.


text:
    ANGELINE BARLOW, Respondent, v. ALEXANDER McDONALD, Appellant.

      Action for injuries sustained by the acts of animals — when the contributory negli- * gence of plaintiff prevents a recovery.

    This action was brought by the plaintiff to recover damages for the injuries sustained by her in consequence of having been butted and knocked down by a ram belonging to the defendant. It appeared that the defendant, who lived on a farm adjoining that of the plaintiff, usually kept the ram tied up; that he had loaned the ram at the request of the plaintiff’s son, to run with the plaintiff’s ewes upon her farm; that the ram had been running at large on the plaintiff’s farm three or four weeks.
    Upon the trial the court was asked to charge that if the plaintiff or her agents were guilty of negligence in the care of the ram, which contributed to the injury, the plaintiff could not recover.

      Meld, that it was error for the court to refuse so to charge. (Miller v. McKesson, 73 N. Y., 195; and Lynch v. McNally, 73 id., 347, distinguished.)

      Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Delaware circuit, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried, and from an order denying a motion for a new trial, on the ground of newly discovered evidence.
    This action was brought to recover damages for injuries suffered by the plaintiff in consequence of having been butted and knocked down by a ram belonging to the defendant.

      J. Delahunty, for the appellant.

      Isaac H. Maynard, for the respondent.
   Follett, J.:

It is alleged in the complaint that the defendant was the owner of a vicious and dangerous ram, accustomed to attack mankind, as the defendant well knew, which he negligently permitted to roam at large over his own and plaintiff’s lands, and at the time of the injury complained of the ram was trespassing upon the plaintiff’s land. The answer contains a general denial. The evidence clearly shows that the ram was not a trespasser, but had been borrowed by plaintiff’s son and agent for use with plaintiff’s ewes; nor was it shown that defendant had been accustomed to permit the ram to roam at large, or that his being at large in plaintiff’s field was caused by the act or omission of the defendant, but, on the contrary, that the ram was at large in plaintiff’s field, and had been for three or four weeks, at the request of the plaintiff’s son and agent for the use of the plaintiff. On the occasion in question the ram was in the charge and subject to the control of the plaintiff and her agents.

Upon the trial evidence was given tending to show that the ram was and was not vicious; and also that the defendant had and had not notice of his viciousnesS. • Upon these issues the jury found for the plaintiff. The court was asked in various forms to charge, that if the plaintiff or her agents were guilty of negligence in the cax-e of the ram, which contributed to the injury, the plaintiff could not recover. This was refused, the coux’t holding that under Miller v. McKesson (73 N. Y., 195) and Lynch v. McNally (Id., 347), the doctrine of contributory negligence was not applicable to the case. In this the court erred. In the cases cited the actions were for the recovery of damages for in juries inflicted by vicious dogs. In those cases the plaintiffs had no care or control of the dogs by which they were attacked, and owed no duty in respect to them. In the case at bar the ram was, and had been for three or four weeks, in the plaintiff’s care, running at large with the plaintiff’s ewes in the day time and kept with them in her barn in the night time.

The plaintiff, being a farmer, is presumed to have known that during the rutting season rams are inclined to be vicious. The ram was two years and five months old, had been reared as a cosset by defendant’s family, and used for churning, and during its entire life had been kept in the yard adjoining the defendant’s house, and most of the time tied. The farms of the parties adjoin, their buildings being about forty rods apart. The plaintiff's son and agent testified that he knew defendant was accustomed to keep the ram tied. The plaintiff had entire control of the ram, was at liberty to keep it where she chose, secured or unsecured. Under these circumstances the defendant was entitled to have the jury instructed that if they found the plaintiff was guilty of contributory negligence in permitting the ram to run at large or in going into the field where the ram was herding with ewes and calling the flock around her, and if the negligence caused or contributed to the injury, the plaintiff was not entitled to recover.

The court was also requested to charge that if the plaintiff or her agents knew the sheep, or had reason to suppose or believe that it was vicious or would do injury to persons, and they failed to properly guard or confine it, suffered it to roam at large, and while so roaming at large the injury was done, this is contributory negligence on the part of the plaintiff or her agents and she canpot recover.” The defendant was entitled to this instruction. The evidence shows that the plaintiff and her son had lived within forty rods of where this ram was kept during its entire life; had frequently seen it, knew that it was a cosset and knew the purpose for which it was kept, and knew that it was usually kept tied.

The conclusion reached renders it unnecessary to consider the merits of the appeal from the order denying a new trial upon newly discovered evidence, which falls with the judgment.

Tlie judgment and orders are reversed and a new trial granted, costs to abide the event.

Hardin, P. J., and Kennedy, J., concurred.

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


author: Kennedy, J.:

text:
    MARY J. JOHNSON, Respondent, v. THE NEW YORK BOWERY FIRE INSURANCE COMPANY, Appellant.

      Policy of insurance against fire — when the premises are not vacant or unoccupied within the meaning cf it.

    In this action, brought upon a policy of insurance to recover the value of furniture and other property destroyed by fire, the defendant claimed that the policy had been invalidated by reason of the premises having become vacant or unoccupied in violation of a condition of the policy. The evidence showed that the plaintiff and her husband and family occupied the premises as a dwelling-house; that a week or two before the fire they left the house to visit friends, leaving no one there; that during that time the husband came back and stayed in the house over night on two occasions; that he and a Mr. Gray stayed there on the night of the fire. All the furniture was left in the house. When leaving the house the plaintiff took a satchel, a night dress for herself and one shirt for her boy, all the rest of her clothes were left in the house.

      Held, that the house was not “vacant or unoccupied” within the meaning of those terms as used in the policy.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Herkimer circuit, and from an order denying a motion 'for a new trial made upon the minutes of the justice before whom the action was tried.

      Pomeroy <& Townsend, for the appellant.

      Goodyear & Wolcott, for the respondent.
   Kennedy, J.:

Action to recover upon a policy of insurance issued by the defendant upon the household furniture and other property of the plaintiff destroyed by fire during the continuance of the policy and on the sixth day of March, 1882. On the trial the plaintiff recovered.

The defendant moved for a new trial upon the minutes, upon exceptions taken, and because tbe damages were excessive and contrary to tbe law and evidence. Tbe motion was denied. A judgment was entered upon tbe verdict and from that order and judgment tbis appeal is taken.

On tbe trial it appeared that tbe bouse in wbicb tbe furniture, claimed to have been destroyed, was contained, was known as tbe Lake House, in tbe village of Frankfort. Previous to tbe fall of 1881, tbe plaintiff bad occupied and conducted a public house in tbe same village known as tbe Brunswick, and moved from there to tbe Lake House; and the furniture and property claimed to have been burned, were moved from tbe former to tbe latter and was after-wards insured by the policy in question. One of the questions raised by tbe defendant on the trial was that the property set out in tbe proof of loss furnished to tbe defendant was not destroyed, and that such proof was therefore fraudulent. Tbe plaintiff gave evidence tending to show that all tbe property mentioned in said proof of loss was in tbe house at tbe time of tbe fire and was burned ; and that a considerable portion thereof was stored in a room designated as the “ ball room.” Several witnesses were called by tbe plaintiff, who gave evidence to that effect. Tbe defendant on its part called other persons who were at tbe fire and who testified that all the property claimed to be, was not in said room. Tbe question was ••one of fact and especially for tbe jury. We cannot say that tbe evidence by tbe defendant was of that convincing character, as in effect to overcome that given by the plaintiff; or that tbe jury were not justified upon tbe whole case in finding the issue in tbe plaintiff’s favor. (Honsee v. Hammond, 39 Barb., 89, 96.)

Tbe testimony of Mary Cbeesbox"ough was competent and admissible as tending to show tbe articles of furniture in the kitchen of tbe Lake House previous to, but not remote from tbe time of tbe fire, as confirmatory, so far as it had that effect, of other witnesses^ who testified that like articles were in tbe same room at tbe time tbe fire occurred. ■

Tbe policy contained tbe following provision, 'which is a part of tbe contract: “ Tbis policy shall become void unless consent in writing is indorsed by tbe company hereon, if tbe building herein described be or become vacant or unoccupied for tbe purposes indicated in this contract.”

The evidence bearing upon the question as to whether the house burned was unoccupied at the time of the fire, is that of Charles Johnson, the husband of the plaintiff, who testifies that he occupied it as a dwelling for himself and family from the fall of 1881. A week or two before the fire he and his family left the house to visit friends at Oriskany, leaving no one there. That during that time he came back and stayed in the house over night on two occasions; and he and Mr. Gray stayed there on the night of the fire. All the furniture was left in the house. The plaintiff also testified : “We left the house a'week or ten days before the fire; husband left with me; boy had gone before; Eugene Clark was in the house when I and my husband left; he left at the time we did; I was away about ten days before the fire; when I went away the house was locked up; no one there during the ten days the house was unoccupied, so far as T know; when I went away I took my satchel and one shirt for my boy, night dress for self; nothing else except clothes I had on; the balance of my wardrobe was at the head of the stairs in the clothes-press at the Lake House.

“ Cross-exmained — I stayed away a week or ten days ; think it was ten days, and all I took was the night dress for the ten days.

“Direct — I was gone longer than I intended when I left home ; when Mr. Johnson went back I did not send for anymore clothing, because I was going home the next day; I had to go home the next day.”

The house was not vacant; all the furniture therein was left there, and it was being used. (Herrman v. The Merchants’ Ins. Co., 81 N. Y., 124.)

The evidence upon the question of its actual occupancy tends to show, and the jury properly found, that the absence of the plaintiff and her family was temporary, and simply for the purpose of paying a visit. During the eight or ten days the visit was prolonged the husband of the plaintiff returned on two occasions and occupied the house for the night.

To render the dwelling occupied within the correct interpretation of the contract, there must be in it the presence of human beings, as at their customary place of abode; not absolutely and uninterruptedly continuous, but that must be the place of usual return and habitual stoppage. (Herrman v. The Adriatic Fire Ins. Co., 85N. Y., 169.)

The family had been absent a week or ten days. The day of the night of the fire the husband returned and occupied the house, and his wife, the plaintiff, expected to return the next day. The house was occupied in fact at the time of the fire. In Paine v. The Agricultural Insurance Company (5 Thomp. & Cook, 619), at 620, Mullen J., says: “ Occupation of a dwelling-house is living in it, not mere supervision over it. It is not necessary that some persons should live in it at every moment during the life of a policy, containing such a provision as is contained in the policy before us, but there must not be a cessation of oceupancy for any considerable portion of time. For what length of time it may remain unoccupied will depend upon the circumstances of each case, and the jury or the referee must determine the question in view of the consideration that led to the incorporation of the provision into the policy, and the necessity that not unfrequently arises for persons insured to leave temporarily their dwelling-houses. (Wait v. The Agricultural Ins. Co., Sup. Ct. R. [13 Hun], 371, 374; Cummins v. The Agricultural Ins. Co., 67 N. Y., 263.) Upon this branch of the case we think the question properly disposed of.

We do not think any error was committed in excluding the evidence of Thomas Honohon, offered by the defendant for the purpose of explaining the certificate given by him to the insured, and forming a part of her proof of loss, with a view of explaining the conflict between that and the evidence given by him upon the trial. The question is not within the rule that a witness may explain statements made by him conflicting with the evidence he gives and offered with a view to impair his testimony. For the purpose for which it was given, the certificate is conclusive.

The judgment and order should be affirmed, with costs.

Hardin, F. J., and Folleto, J., concurred.

Judgment and order affirmed, with costs.


author: Follett, J.: Churchill, J., Hardin, P. J.

text:
    IDA MAY MORSE, as Administratrix, etc., of JOSEPH H. MORSE, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — duty of a railroad company in respect to providing for the proper coupling of the engine to the tender.

    A pusher engine, used to assist in moving trains going east up a grade near a station on the defendant’s road, after having pushed a train to the summit of the grade, was switched upon an adjoining track that it might return to the station and assist in pushing another train up the grade. While so returning it ran against the engine of another of the defendant’s trains standing upon tho track with such violence as to drive the tender of the pushing engine upon the top of the second engine. By so doing the pusher engine became disconnected from its tender, parted therefrom,- and ran east about four miles where it collided with another of the defendant’s engines and killed a brakeman employed thereon. The pusher engine was connected with its tender by a draw-bar or coupling, but had no safety chains to hold them together in caso the coupling was broken.
    Upon the trial of this action, brought to recover damages for the negligent killing of the brakeman, the plaintiff’s intestate, the court held that the jury might find the defendant guilty of actionable negligence because of its omission to have the engine and tender provided with safety chains, if they also found that the safety chains were necessary for that kind of engine, and that the decedent’s death was caused by their absence.

      Held, that this was error. (Hardin, J., dissenting.)
    That there was no evidence that an engine and tender, “used as a pusher,” had ever separated for the lack of safety chains, and that the evidence in this caso did not show that this was so likely to occur as to authorize the jury to find that the omission to use them was actionable negligence. (Follett and Churchill, JJ.)
    That the absence of the safety chains was not an approximate cause — a causa causans — of the injury to the plaintiff’s intestate. (Churchill, J.)
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe verdict of a jury at tbe Onondaga circuit, and from an order denying a motion for a new trial made .upon tbe minutes of tbe justice before whom the action was tried.

      Louis Marshall, for tbe appellant.

      Frank II. Hisoock, for the respondent.
   Follett, J.:

Appeal from a judgment, entered upon a verdict'’of $5,000, and from an order denying a motion for a new trial, made upon the minutes upon the ground that the verdict was contrary to the evidence, and also upon the exceptions. The case contains all of the evidence.

From Clyde station eastward for two or three miles there is an ascending grade, to overcome which heavy freight trains require a second locomotive, called a “ pusher.” The road has four through tracks numbered from one to four inclusive. No. 1 is the south, and No. 4 is the north track. Nos. 1 and 2 are used for passenger trains, and are not involved in this controversy. West bound freight trains use No. 4, and east bound freight trains use No. 3. December 20,1882, between six and seven o’clock p. m., locomotive No. 225 (a pusher), in charge of .engineer John Duff, assisted an east bound train to the summit on track No. 3. An east bound coal train was left standing on track No. 3 near Clyde station, waiting the return of the pusher, which was to assist the coal train to the summit. After leaving the freight train at the summit, locomotive 225 (the pusher), was switched to track No. 4, and backed westward for the purpose of retirrning and taking its place in the rear of the coal train (then standing on track No. 3), and assisting it to the summit. Before Duff returned with the pusher on track 4, engineer Sullivan in charge of locomotive No. 357 (under the direction of one Henry Smith, who had authority), drew a train of‘empty cars on to track No. 4 and stopped, awaiting orders from Smith to back the train. Whether the head-light of 357 was burning, was a disputed question on the trial, Sullivan and Smith swearing it was, and Duff swearing that it was not. Duff swears that he had two head-lights burning, one at the head of his locomotive and one at the rear of his tender. In backing No. 225 down the track it ran on to number 357 with such force that the tender of 225 mounted the front of 357, and was attached to it so firmly that it remained there and was taken back in that position to the yard where they were pried apart. Duff and Sullivan, when their locomotives were nearly together, saw the impending danger, and each reversed and gave his engine steam, but not in time to prevent the collision. Duff swears, “ I had her (throttle) wide open.” Sullivan swears, “ I opened my engine and got her started, and wo struck.” By the collision Duff, the engineer, was thrown into the tender, and before he was able to return to the locomotive it parted from the tender and ran without control with its throttle wide open, eastward on track No. 4 about four miles, when it collided with locomotive 607, in charge of engineer Thomas Bell, killing Joseph Morse, a brakemen employed on the train drawn by locomotive 607.

The following acts and omissions, alleged to have been negligent and to have caused the accident, are set forth in the complaint: First. That defendant neglected to notify the engineer of locomotive No. 225 (the pusher), verbally or by lights or signals, that locomotive 357 and its train stood on track four. Second. That defendant neglected to connect with safety chains the tender and engine of locomotive 225, by reason of which the engine and tender separated and the engine escaped. The learned trial judge held that the acts and omissions first mentioned were of decedent’s co-servants and not actionable; but held that the omission secondly mentioned was actionable if the jury found three propositions, to wit: First. That safety chains for locomotive 225 were necessary for protection against danger and accident. Second. That locomotive 225 was not provided -with safety chains. Third. That decedent’s death was caused by the absence of safety chains.

The jury found that the safety chains were absent; that their absence was negligence, and that their absence or this negligence caused decedent’s death. Whether the evidence was sufficient to warrant the submission of the question of negligence to the jury seems to be .the pivotal question of this case. All of the witnesses agree that the purpose of safety chains is to prevent the engine and tender from separating in case the drawbar, or coupling between the two, breaks. When a train is moving forward this drawbar, or coupling, sustains the draft of the whole train and consequently is more likely to break from the strain than any connection between cars nearer the rear of the train. The witnesses also agree that this coupling is most likely to break upon a locomotive used for pulling cars, and is not likely to break in a locomotive used for pushing cars. This is so self-evident as not to require demonstration by evidence or argument. The witnesses agree that when a locomotive is used solely for pushing this connection may be broken by a collision, as was demonstrated by the collision in question.

The learned judge, in discussing this question in his charge, said: “Now, if an engine is used only for pushing purposes, the center coupling (this bar and the castings) are not at all likely to be severed ■ d/broken by pulling, because it would have nothing to pull except the tender, so that the danger of severing the connecting, the center coupling, would not be very great in a pushing engine from pulling a heavy load. But it may be broken by a collision while the engine is being used for pushing purposes, while the engine is either going up the hill or returning to the yard. There seems to have been a very practical illustration of it in this case; here, concededly, this engine, used for pushing purposes, while it was returning from the hill to the yard did collide with another engine and it did break its .coupling.”

The fact that an injury has resulted from an act or omission of the employer, which is often no more than proof that it is possible, though not probable that an injury may flow from the act or omission, is not enough to render the employer liable. The employe must go further and show that the act or omission complained of was such as a prudent employer, having due regard to the hazards of the business, would not do or omit. In other words, the issue in such cases is not, whether it is possible for an accident or an injury to occur from the áct or omission complained of, but whether an accident or injury is so probable as to render the act or omission negligent. Failing to provide fire escapes from some kinds of buildings might be actionable negligence, but proof of their omission from another kind of a building might not be sufficient to' justify the submission of the question of negligence to a jury.. As has been repeatedly held by the Court of Appeals, the question: whether an issue of fact is presented for the jury, depends upon the-circumstances of the particular case. Ellis v. New York, Lake Erie and Western Railroad Company (95 N. Y., 546) is pressed, upon our attention. In that case the person killed was a brákemam upon a freight train, who, in the discharge of his duty, was required to frequently pass over and at times, remain upon the platform of the caboose. He was killed by reason of the omission to supply buffers, which would have prevented the body of the caboose froim striking the body of the preceding car. In the ordinary movement of freight trains, as well as when accidents occur, the bodies of cars frequently strike unless buffers are provided. So extremely probable is such a result that it was held to be negligence, under the circumstances of that case. Ordinary prudence and foresight would have guarded against such an accident.

In the case at bar there is no evidence that an engine and tender used as a pusher, had ever separated for the lack of - safety chains, .■and we do not think that the evidence shows that this was so likely to occur as to authorize the jury to find that their omission was .actionable negligence.

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

Churchill, J.,

concurs in the following memorandum:

I eoncnr with the opinion of Follett, J. I agree with the result •arrived at by him on the farther ground, that the absence of check ehains connecting the engine and tender of locomotive No. 225 was not an approximate cause — a causa causans — of the injury to plaintiff’s intestate, and that as to this there was no question for the jury.

Hardin, P. J.

(dissenting):

I am inclined to the opinion that it was a question of fact upon the evidence: First. Whether ordinary care and prudence required the defendant to supply as a part of its engine and tender, suitable check chains, and if such were required by ordinary care and prudence; then, Second. Whether their absence was the proximate cause of the injuries complained of. (Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y., 552.) These questions of fact were submitted to the jury and have been found against the defendant. The evidence and the facts and circumstances presented, were sufficient to require a submission to the jury and to uphold their finding of negligence on the part of the defendant. (Burke v. Witherbee, 98 N. Y., 562.) Their verdict should be accepted and judgment affirmed.

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


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    WILLIAM N. ECKERSON, Respondent, v. SCHUYLER G. CRIPPEN, Appellant.

      Right to talce water from a spring — no prescriptive rights acquired by a user under a license.

    This action was brought to restrain the defendant from cutting off or in any manner interfering with a pipe which conducted water from a spring upon lands formerly owned by one Crippen. It appeared that in 1837 one Caryl, under whom the plaintiff claimed title, obtained from Crippen a parol license to talce and use water from the spring in question, under which he constructed a ditch and laid a pipe which supplied his house with water. In 1839 Crippen conveyed to one La Moure, a lot of ground not far from the spring, and granted to him, and his heirs and assigns, the privilege to bring water from the spring in question sufficient to fill a three-fourths-inch hole for the sum of ten dollars. Thereafter La Moure extended the pipe constructed by Caryl, to his (La Moure’s) premises, and inserted in it a plug which allowed the water remain- ' ing, after La Moure had been supplied, to flow to Caryl’s houses. In 1880 the supply diminished," and being less than was required to fill a pipe of the size 'specified, the defendant, La Moure’s grantee, tapped the pipe in such wise as to prevent any of the water from flowing to the plaintiff’s house and used it for his own purposes.

      Held, that he was entitled to do so.
    That as the plaintiff’s grantee acquired the right to talce the water by the license and consent of the owner, no prescriptive right was acquired by the continuance of its use.
    Appeal from a judgment in favor of the plaintiff, entered upon a report of a referee.

      Edielt <& Smith, for the appellant.

      Charles T. Brewer, for the respondent.
   Kennedy, J.:

One Daniel Crippen in 1837 was the owner of certain lands situated in Worcester, Otsego county, N. Y., upon which was a spring of water, and one John Caryl was at the same time the owner of a dwelling-house fifty or more rods from said spring, and which, through several mesne conveyances, has now become vested in and is owned by the plaintiff, and is known as the Mill House In 1837, as the referee finds, an oral agreement was entered into between said Daniel Crippen and John Caryl to the effect that in consideration of ten dollars agreed to be paid by said Caryl to said Ci'ippen, he, Crippen, sold and granted to said Caryl the privilege to take the water from said spring in quantity sufficient for all domestic purposes to said Mill House. That in pursuance of said '-agreement, Caryl bought lead pipe, entered upon Crippen’s land and dug a ditch from said spring across the same and his own land to the Mill House, through which the water ran from said spring, in the year 1837. In the several conveyances beginning with that from Caryl down to the plaintiff, and under which he acquired title to the Mill House, no reference is made to any rights to take water from said spring to it.

On the twentieth day of August, 1839, the said Daniel Grippen, being the owner still of said spring and the landlupon which it was situate, and those-adjacent.] thereto, sold and conveyed by warranty deed to one Isaac La Moure a building lot containing about one-third of an acre, and situate about fifty rods north-east of said spring. By the same conveyance be granted to the said La Moure the right to take water from said spring in the following language : “ Also the parties of the first do sell unto the party of the second part, his heirs and assigns, the privilege to bring water from a certain spring about fifty rods north-east of said lot sufficient to fill a three-fourth inch hole for ten dollars.”

La Moure, upon receiving said conveyance, immediately built a dwelling-house upon said lot, and the same has since that time remained being occupied as a dwelling-house and known as the La Moure House. This house has from the time of its erection been supplied with water taken through a three-fourth inch pipe from said spring. By several mesne conveyances, the defendant became the grantee and owner of said La Moure’s house and lot together with the right to take water from said spring, as granted by the said Crippen to said La Moure as early as the eighteenth day of February, I860, and has since occupied the house as a dwelling place, and been supplied with water from said spring conveyed to his house through said pipe.

, The referee found that the entire water of said spring is not more than sufficient to fill a three-fourth inch pipe. Under the parol agreement between John Caryl and Daniel Crippen, and in 1837, the said John Caryl dug a ditch from said spring across Orippen’s land and his own land to the Mill House. At that time, as the referee finds, La Moure contemplated building on land he owned (but which we do not understand to be the land he acquired of Daniel Crippen two years subsequent to that time), and that he then entered into an agreement with said Caryl, by which it was agreed that La Moure should have a part of the water from said spring, and that he should pay Crippen the ten dollars Caryl had agreed to pay him by the parol agreement between them, and that he should contribute toward the expense of the ditch Caryl was then laying.

After Crippen conveyed to La Moure in 1839, and during that year, the latter built the house known as the La Moure House on the lot bought of Crippen, and in 1840 he continued the pipe Caryl had laid to said dwelling-house, and carried the spring water through the same to the house he so built. The main pipe so laid was tapped by a pipe leading from it to the Mill House, and a plug was kept inserted in the end of the same, by means of which the flow to the Mill House was regulated. This was done by the defendant and his grantors, and the water diverted to the Mill House was only the surplus or remainder after the La Moure House was supplied, the amount so furnished being described as a flow of about the size of a common knitting-needle.

In March, 1880, the plaintiff purchased and became the owner of the Mill House, and commenced to occupy the same. No owner or occupant of that house ana the premises prior to the plaintiff ever objected to or disputed the right of the defendant and his grantors to regulate, alter, change or repair the plug or other apparatus in the end of the pipe at the Mill House. The evidence, so far as it goes in that direction, shows that all the owners prior to the plaintiff, instead of holding or claiming adversely to the defendant and his grantors, yielded to the claim of ownership in them.

In July, 1880, there was a deficiency of water in said spring to fill the said three-fourths inch pipe or to supply both houses, and a dispute arose between the parties in relation to the waiter, and the plaintiff removed the plug at the end of the pipe at the Mill House, which was some eight feet lower than the La Moure House, and thereby diverted the water from the latter. The defendant thereupon, to continue the supply at his own dwelling, cut the main pipe above and below the point of intersection of the branch leading to the plaintiff’s house, and connected the said main pipe by a piece uniting the severed end, the effect of which was to cut off the water from the Mill House, and the same remained in that condition until November 16, 1882, when this action was commenced.

The- referee, upon the foregoing facts, found that the plaintiff and those under whom he claimed had held the use of- the water adverse to the defendant and his grantors, under a claim of title in it for more than forty years, and had a right, prior to the defendant, by prescription to use so much of the water from said spring and equal in quantity to the amount that ran at the Mill House from 1837 to 1880; and sufficient for all his domestic purposes, with the right to control the same. Further, that the plaintiff had sustained and was entitled to recover damages of the defendant for the diversion of said water as above stated, and that in addition the plaintiff was entitled to a perpetual injunction restraining the defendant from in any manner interfering with the plaintiff’s use of said water, in a quantity sufficient for all domestic purposes at his house, and from interfering with the plaintiff’s pipe or its connections, etc. Judgment' was entered on the report, and from that judgment this appeal is taken.

The defendant, under the grant from Daniel Crippen in 1.839, he being then the owner and having a right to convey the same, purchased and became the owner of so much of the water of said spring as would fill a three-fourths inch pipe, which takes all the water produced from said spring. Caryl, the original grantor of the Mill House, and from whom the plaintiff derives his title through several intermediate conveyances to the premises, appropriated part of the waters of the spring in 1837 and diverted them to the Mill House, under and in pursuance of a parol license from Daniel Crippen; and all the right the subsequent grantees had was that which they acquired under said parol license which passed to them, including the plaintiff, not by any apt description, but, if at all, as an aj>purtenance to the premises conveyed. Whether under the circumstances it so passed is doubtful (Manning v. Smith, 6 Conn., 289), and the question of adverse possession in Caryl and his grantee is not involved in the case. Caryl having entered by permission of the owner conld acquire no right by prescription by continued possession based upon that entry. (Wood v. Leadbitter, 13 Mees. & Wels., 838; White v. Spenoer, 14 N. Y., 249.)

In 1839 when Daniel Crippen conveyed water sufficient to fill a tliree-fourths inch pipe from said spring, which took all the water from it to the defendant’s grantor, such conveyance vested in the defendant’s grantor, and subsequently in him all the water in the spring, and any real or pretended right of the plaintiff’s grantor or the plaintiff, was wholly subservient to the superior right of the defendant; and the defendant exercising this right within the limits of the conveyance by Crippen to La Moure was not liable to the plaintiff, because by such exercise he in no manner interfered with any rights of the plaintiff whatever [they might be.

In the case of Wiseman v. Lucksinger (84 N. Y., 32) it is held that where facts exist such as the referee has found in this case no adverse right or right by perscription can be predicated upon them. (See pp. 43, 44.)

The most that can be claimed by the plaintiff is that Caryl, his remote grantor, was granted a parol license by Crippen, the owner, to take and use water from the spring in question. That in pursuance of such license he entered upon the lands of the licensor and put down a pipe and through it took water to the Mill House. That in 1839 Crippen sold and transferred by deed to La Moure the defendant’s grantor, the water of the spring, thereby in effect revoking the parol license to Caryl unless the right to any surplus remaining after the La Moure House was supplied continued; after that the grantees of Caryl, with the consent of La Moure and his subsequent grantees used the surplus water not required at the La Moure House to supply the Mill House. Upon these facts no right by prescription or otherwise was acquired by the plaintiff which would in any manner affect the defendant’s prior right to water conveyed to La, Moure his grantor. (Cronkhite v. Cronkhite, 94 N. Y., 323.)

Upon the trial the plaintiff was permitted to prove against the defendant’s objection and exception that Caryl told the witness in 1837 or 1838 that he had bought the spring of Daniel Crippen, and this in the absence of Crippen, La Moure or any one having an interest in the question. This was error, it was simply the declaration of Caryl, one of the plaintiff’s grantors in his own behalf and interest, and could in no manner affect the rights of the defendant.

The judgment is therefore reversed, and a new trial granted before another referee, costs to abide the event.

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

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


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    THE STAMFORD WATER COMPANY, Respondent, v. HERBERT STANLEY and MARY STANLEY, Appellants.

      Eminent domain — the supplying of pure and’wholesome water to villages is a public use — the right to exorcise the power may he conferred upon a private corporation— 1873, chap. 737, and 1876, chap. 415.
    Chapter 415 of 1876, authorizing private corporations formed under the provisions of chapter 737 of 1873, for the purpose of supplyingpure and wholesome water to villages, to acquire title to lands, tenements and hereditaments, which may be required for its purposes by the exercise of the right of eminent domain, where it is unable to agree with the persons owning or having an interest therein, is constitutional and valid.
    The right of a mill owner to use the waters of a stream as a propelling power at his mill is an incorporeal hereditament connected with the land, and may be acquired, under the provisions of the said act, upon due compensation being made therefor.
    Appeal from an order of the Special Term, in Delaware county, confirming the report of commissioners appointed to appraise the damages sustained by the appellants by the taking of water from a stream above their mills, situate thereon, and diverting the same from its natural flow.
    The respondent was incorporated under the provisions of chapter 737 of the Laws of 1873, amended by chapter 213 of the Laws of 1881, for the purpose of supplying the village of Stamford, in Delaware county, with pure and wholesome water. To carry out this purpose it purchased two acres of land about two miles from the village, situate in Schoharie county, across which a stream flowed. This stream was one of the tributaries and forms a part of the head-waters of the Delaware river. About a mile below this point on the main stream, and in Delaware county, the appellants owned a small custom-mill for grinding grain, and also a partially disused saw-mill. The power for each was supplied from the waters of said stream. On its lands so purchased the respondent built a dam and constructed a reservoir from which the water is to be conducted through an iron pipe to said village of Stamford (a village containing eight hundred inhabitants), and thence through and under the streets and alleys in the same with intent to supply it with water for use in case of fire and for other public purposes, and also to supply with water its inhabitants for domestic usé, thereby carrying out the purpose of its incorporation.
    Between the reservoir of the respondent and the mills of the appellants is a natural lake or pond formed by the aforesaid and other streams. This lake has been dammed by the latter and used as a storage place for water for said mills in the dry season, during which the natural flow of the stream is not sufficient to supply them. For eight months in'the year there is sufficient water flowing in the stream for the supply of the appellants’ mills; during the remaining four months the mills cannot be run for want of it. These mills have been constructed and in use for some fifty years.
    Before these proceedings were instituted, the respondent had negotiated with the appellants for the purchase of the right by it to use the said water, but the parties were unable to agree. Thereupon three commissioners were duly appointed pursuant to the provisions of chapter 415 of the Laws of 1876, who, after viewing the premises and hearing the proofs and allegations of the parties made their report, awarding to the appellants $500 as damages, which report was confirmed by the Special Term, and from that order this appeal is taken.

      S. II. <& W. M. Mayham, for the appellants.

      1. II. Maynard, for the respondent.
   Kennedy, J.:

It is urged on the part of the appellants that the respondent is a private corporation, created for private gain, and that it takes property for private as distinguished from public use, and that the provisions of the act, chapter 415 of the Laws of 1876, is unconstitutional, because the right of eminent domain is sought to be exercised in talcing private property for private use.

Among the absolute wants of a municipal corporation is that of pure and wholesome water provided for the use of its inhabitants, and water for the protection of property within its limits. This requirement is not one of luxury alone, but is created and exists as a sanitary measure, by the furnishing of which the health as well as the comfort of the citizens is promoted. It is as well a measure of security through which the safety of property is guarded. In seeking this supply it can only be found at those places and in the localities where nature has provided it, and can alone be made subservient to use through artificial means and appliances. If the question of the appropriation of these natural supplies is dependent upon the caprice of the individual who has acquired the prior usufruct use of the waters of a stream or spring, and the power of the legislature to compel its appropriation to the use of the public for the purposes suggested upon due compensation is denied, the instances in the present entire appropriation of water rights b.y individuals would be rare indeed when this want could be met, except by the payment of exorbitant sums and a compliance with an unreasonable exaction. In many instances, and perhaps a majority of cases, municipalities are supplied with water through private enterprise, and it is no less an appropriation of private property for public use because the supply is procured through a corporation incorporated for that purpose than if by the municipality itself. If the latter may invoke the right of eminent domain, so may the former.

The Constitution provides (art. 1, sec. 7) for the manner in which private property may be taken for public use, and how compensation is to be ascertained for the appropriation. The legislature determining for itself that the supply of pure and wholesome water to a village and its inhabitants is an appropriation o-f the same for public use, has, in the exercise of its constitutional right, provided the manner private property, in instances of this character, may be taken for a public purpose. (Chap. 415 of the Laws of 1-876, above quoted.) Is this act subject to the objection that it is in violation of the Constitution and a usurpation of power ? We think not. Questions involving the principle have not unfrequently arisen and received judicial construction.

In the Matter of the Bloomfield and Rochester Natural Gas-Light Company v. David H. Richardson et al. (63 Barb., 437), the plaintiff was incorporated under the general gas companies statute of 1848 for the purpose of utilizing the natural gas flowing from a stream or well in the town of Bloomfield, county of Ontario. By a special act of the legislature, passed May 9, 1870, it was authorized to conduct the gas from said well to any city, town or village within thirty miles of that point by mains, to sell and supply gas for lighting the streets, public parks, dwellings and other buildings therein. It was further authorized to take private property for any of its purposes, and in a proceeding to acquire such private property it was directed to follow the provisions of the general railroad act. This statute declares that any real estate so acquired shall be deemed to be acquired for public use. The corporation undertook to conduct gas to the city of Rochester, a distance of about thirty miles from its well. In a proceeding to acquire the right of way for its main through the lands of private owners and to appoint commissioners of appraisal, it was held that the purposes, objects and business of this corporation was a public use within the meaning of the Constitution; and that the statute authorizing it to take private property for the purposes of its said business was constitutional and valid.

It was further held that the power to exercise the right of eminent domain, where such right exists, may be conferred upon a corporation acting in its own interest and for the purpose of private gain; and that within the meaning of the Constitution it is not necessary that the improvements should directly benefit the people of the whole State, but the direct public benefit contemplated, may be confined to a particular community. That when the use to which private property is to be appropriated is a public one, the legislature is the sole judge of the necessity and expediency of the appropriation.

Judge Talcott delivering the opinion of the court said: “Most of the principles involved in the discussion of this appeal have been authoritatively settled. In Bloodgood v. The Mohawk and Hudson River R. R. Co. (18 Wend., 9,) it was settled by the court of last resort, that the power to exercise the right of eminent domain, where such right exists may be conferred upon a corporation acting in its own interest and for purposes of private profits. * * * It is equally well settled that in order to constitute a public use within the meaning of the Constitution, it is not necessary that the improvement should directly benefit the people of the whole State, but the direct public benefit contemplated may be confined to a particular community. * * * It is said by the Chancellor in the case of Beckman, before referred to,4 it belongs to the legislature to determine whether the benefit to the public is of sufficient importance to justify their exercise of the right of eminent domain, in thus interfering in the private rights of individuals. * * * But if the public interest can in any way be promoted by the taking of private property, it must rest in the wisdom of the legislature to determine whether the benefit to the public will be of sufficient importance to render it expedient for them to exercise the right of eminent domain.” (People ex rel. Herrick v. Smith, 21 N. Y., 595.) The principle decided in this case meets the one in hand, and I am not aware that it has ever been questioned. Many cases are to the same effect. (Matter of the Waverly Water-Works Company, 85 N. Y., 478; Matter of the Village of Middletown, 82 id., 201; In the Matter of Cooper, 28 Hun, 515.)

We have examined the cases referred to by the learned counsel for the appellant and find nothing in them in conflict with the views above expressed.

The case of Embury v. Conner (3 N. Y., 501), was where private property was taken, not for public use in any sense of the term. It was attempted to acquire private property under the guise of eminent domain, and by transfer, to vest the title in an individual. (Taylor v. Porter, 4 Hill, 140.) The authorities of the town sought to take private property, and appropriate it for the purpose of a private road. In the Matter of Deansville Cemetery Asso ciation (66 N. Y., 569) the court held that land taken for the purpose of a burial place for different parties who might purchase lots, and the title to which when purchased rested in the grantee and was the subject of alienation, was no more the taking of private property for public use than it would be if the lands were taken for the burial place of a single person; or in other words, that lands taken for burial purposes were not for public use, anebthat the exercise of eminent domain for the purpose-'.was prohibited by the Constitution. The court say: It (the land) is to be vested in trustees, with power to divide into lots, and sell these lots to individual owners. It is difficult to see what interest the public will have in the lands or in their use. No right on the part of the public to buy lots or bury their dead there is secured.” The distinction in principle between this case and the one under consideration is easily appreciated. In this case we think the property proposed to be taken is to be aj>plied for public use, and that the right of eminent domain being so declared by the legislature, is applicable to its appropriation for the purposes intended.

The language of section 3 of chapter 415 of the Laws of 1876 is: “ In all cases where the said company shall be unable to agree with the persons owning or having an interest in any lands, tenements or hereditaments,” the Supreme Court at Special Term may appoint commissioners, etc.

The right of the appellant to use the water of the stream as the propelling power at their mill is an incorporeal hereditament connected with the land, and this easement is property within the meaning of the Constitution, and its appropriation under the power of eminent domain entitled the owner to compensation. (Story v. The N. Y. Elevated R. R. Co., 90 N. Y., 122; prevailing opinion of Danforth, J., pp. 146, 147.)

The property of the appellant which was damaged was located in the county of Delaware, and while it is true that the point of the diversion of 'the water is in the county of Schoharie and out of the Sixth Judicial District, we think the order appointing the commissioners in that district was properly made, because the damage sustained occurred within the district.

The question of damage was properly disposed of by the commissioners.

The order confirming the report of the commissioners is therefore affirmed, with ten dollars costs and disbursements.

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

Order confirming the report of the commissioners affirmed, with costs.

        Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 45.