author: Andrews, J.

text:
    John Downey v. Lewis May, as assignee, etc.

      (Supreme Court, First District, Chambers,

      Filed March, 1887.)

    1. Assignment—Suit by cbeditob to settle account of assignee and DISTEIBUTE TBUST FUND—WHEN AND ON WHAT TEBM8 CBEDITOB ALLOWED TO COME IN AND FBOVE CLAIM AFTEB THE FEBEMPTOBY DAY FIXED.
    In a suit by a creditor in behalf of himself and all others to settle the account of an assignee for the benefit of creditors and distribute the trust fund, a creditor who has not received notice to prove his claim before the referee, or who, having received notice, did not understand the effect of it, will, after the peremptory day fixed by the referee, and before the final distribution of the fund, be allowed, on showing an excuse, to come in and prove his claim and contest the assignee’s account.
    2. Same.
    Ordinarily, terms will be imposed as a condition.
    3. Rules.
    The rules observed by courts of law on applications to open defaults are applied to the case of a creditor, who has omitted to prove his claim in a suit in equity brought by one creditor in behalf of himself and all others similarly situated.
    The brief of the counsel for the moving creditor contains' a valuable collection of authorities in this class of cases.
    Motion by Mrs. Hetty H. E. Green to open the report and refer this case back to William S. Keiley, referee, with liberty to prove her claim of $560,000 and file objections to the assignee’s account.

      On the 15th of January, 1885, John A. Cisco and Frederick W. Foote, bankers, composing the firm of John J. Cisco & Son, made an assignment for the benefit of their creditors to Lewis May. The assignment contained no preferences, except to employees. The inventory by the assignors of their estate was verified and filed February 2, 1885. The assignee filed his bond on the 3d of February, 1885. The nominal value of the estate, as stated in the inventory, was $3,294,448.78; the actual value, $2,467,370.70. The schedules of indebtedness exhibited the fact that a portion of the assets, consisting of railroad bonds and other securities, had been pledged by the assignors in the aggregate for $1,085,331.25, which, deducted from the $2,467,-370.70, left the aggregate actual value $1,382,039.45 as the net actual value of the estate as appeared by the assignor’s inventory.
    This suit was brought by John Downey, as a creditor of the assignors, in behalf of himself and all other creditors, against Lewis May, the assignee and the assignors, for an accounting and distribution of the assets under the assignment.
    On the 8th of May, 1886, the usual interlocutory decree was made, referring it to William S. Keiley, as referee, to take proof of the plaintiff’s claim and of all other creditors, and, to fix a peremptory day, and advertise once in each week for three weeks for creditors to come in and prove their claims by such day or be excluded from the distribu - tion of the estate. The referee fixed May 29, 1886, as the peremptory day, and published a notice'in two papers. The first insertion of such notice was on May eleven. Mrs. Green swore that she did not receive the notice and did not know anything about the suit until about December 26, 1886. On the 8th of January, 1887, the referee made his report by consent of the attorneys for the assignors and assignee. No claims were proved before the referee except the plaintiff’s. The assignee, however, filed with his report a list of the creditors of the assignors, stated to have been taken from their books. The assignee has credited himself in his account with $148,650, commissions, computed on what he claimed was the whole amount of his receipts, not deducting the sum for which a portion of the estate had been pledged. It appeared that the assignee had redeemed the securities which had been pledged by the assignors as security for money borrowed by them and had then sold the securities and claimed commissions on the aggregate received upon the sale. It also appeared by the assignee’s account that he had, prior to qualifying by giving security, collected $1,265,838.01, and paid out $398,546.22.
    The grounds of Mrs. Green’s motion were the failure to publish the notice for creditors to come in and prove their claims as required by law; that she had not in fact received any notice of the suit; that the assignee’s account was informal, that it omitted many items on the debtor side with which he should be charged, and embraced many items on the credit side with which he should not be credited; that it did not appear by the referee’s report that any claims had been proved except the plaintiff’s, and hence that no decree could be entered for distribution.

      Nelson Smith, of counsel for Mrs. Green.

      First. The notice by the referee was not published three weeks, but only eighteen days, and was insufficient. Code of Civil Procedure, § 786; Market National Bank v. Pacific National Bank, 89 N. Y., 397.

      Second. The notice was defective. It did not show that the suit was for the benefit of all the creditors. It would not bind them unless it were. Kerr v. Blodgett, 48 N. Y., 67.

      Third. The notice did not reach Mrs. Green.

      Fourth. It is a matter of course to allow a creditor who swears that he had no notice, or gives other excuse, to prove his claim after the peremptory day. Wilder v. Keeler, 3 Paige, 167; Angell v. Hadden, 1 Maddock’s Ch. Reps., 529; Mason v. Codwise, 6 Johns. Ch., 184; Hoffman’s Master in Chancery, 181, 182; Gillespie v. Alexander, 3 Russel, 130. Defaults in actions at law are opened on the same principle. Quinn v. Case, 2 Hilton, 467; Hanford v. McNair, 2 Wend., 286; Van Horne v. Montgomery, 5 How. Pr., 238.

      Fifth. In the absence of any provision in the Code of Civil Procedure, the old Chancery practice upon the subject of accountings is still in force. Wiggins v. Gans, 4 Sand., 646; Palmer v. Palmer, 13 How. Pr., 364; Ketchum v. Clark, 22 Barb., 319.
    Rule 85, General Rules of Practice, adopted December 19, 1883.

      Sixth. The list of creditors filed by the assignee was not evidence of their claims, nor of their election to prove them. It is for the creditor to elect whether he will prove his claim. Kerr v. Blodgett, 48 N. Y. 66-69.

      Seventh. A creditor coming in under a decree of this description must make affidavit to his claim, that it has not been paid and that he has no security. Morris v. Mowatt, 4 Paige, 142; Hulbert v. McKay, 8 id., 654; Hoffman’s Master in Chancery, 182; 2 Smith’s Ch. Pr.

      Eighth. On proving his claim, a creditor is, in a legal sense, a party. Neve v. Weston, 3 Atk., 557; Hoffman’s Master in Chancery, 183, 184; the same principle applied to creditors in bankruptcy; ex parte O'Neil, in re James L. Fowler, 1 Lowell’s Dec., 163.

      Ninth. It is not incumbent upon Mrs. Green, to entitle her to come in, to show the assignee’s account erroneous. Upon proving her claim, she may examine the assignee to discover errors, and then file objections to his account from time to time, as advised. 2 Daniel’s Ch. Pr., 4th ed., 1223, 1224.

      Tenth. But it does appear that the assignee’s account is erroneous. The payments out by him before he filed his bond are presumptively invalid. Brennan v. Willson, 71 N. Y., 502; Woodworth v. Seymour, 22 Hun, 245.

      Eleventh. The assignee is not entitled to commissions on any sums except those actually received. Matter of Hulbert, 89 N. Y., 259.
    As respects the hypothecated securities, he was only entitled to .commissions on the sums he received in excess of the amount he paid to redeem them, or, in other words, for the assignor’s equity.

      Twelfth. As the assignment contained no preferences, the credits in the assignee’s account, for payments to some creditors in full, were improperly allowed.

      Thirteenth. The assignee is not entitled to be credited for moneys paid to redeem securities, where they brought less upon a sale by him, than he had paid to redeem them. This is the case in several instances.

      Fourteenth. The assignee is not entitled'to credit for the sums paid to redeem securities which had been borrowed by the assignors.

      Dos Passos Brothers, for the Defendant May; Childs & Hull, for the Defendant Cisco; A. D. Williams, for the Plaintiff Downey.
   Andrews, J.

The affidavits submitted in support of this motion conflict with those submitted in opposition to it upon important points, and leave many matters in doubt. It is difficult to determine when Mrs. Green, or her counsel, or friends, first knew of the pendency of this action, or of the pendency of the reference which was ordered. Even if the conclusion were reached that Mrs. Green is mistaken when she swears that, to the best of her recollection and belief, the first that she ever heard of Downey, or of any suit by Downey, was about the twenty-sixth or twenty-..eighth of December, 1886, it is not entirely clear that she knew the object of the suit, or what the effect of the referee’s report would be if confirmed by the court. The affidavits made by Mrs. Green, and others on her behalf, are also so at variance with those submitted upon the other side as to leave it doubtful what authority any person or persons had to represent her, what examination of the. assignee’s accounts was made by any one on her behalf, and what knowledge or information she had as to the nature of the objections which had been made before the referee to such accounts.

It appears that these objections were of a serious character, and that a contest followed, lasting for several months. As I understand the affidavits these objections were not passed upon by the referee, but the whole matter was disposed of by a compromise, made by the attorneys of Mr. Cisco, the assignee and the plaintiff Downey. No creditor except the plaintiff was represented before the referee, and Mrs. Green, who is a very large creditor, is dissatisfied with the compromise.

It is claimed by the counsel of Mrs. Green that the assignee’s accounts are made out in such a manner that it is difficult to understand them, or to follow and trace out the various transactions which are covered by them. "It is also strenuously insisted that the account omits many items on the debtor side, with which the assignee should be charged, and embraces many things on the credit side with which he should not be credited; and it would be very difficult, if not impossible, for me, upon the papers now presented, to decide whether this contention on the part of Mrs. Green’s counsel is, or is not, to some extent well founded.

The matters about which question is so raised involve several hundreds of thousands of dollars, and Mrs. Green swears that if the referee’s report shall stand she will be-injured to at least the sum of from fifty to one hundred thousand dollars. She also swears that no one was ever authorized by her to say that she did not propose to contest the assignee’s accounts, and that she does not believe any one ever assumed to say so on her behalf.

It does not appear that Mrs. Greén ever assented to the compromise, or knew the nature of the report of the referee, or of the decree, until after the report had been .made and the decree had been signed.

Applying to this motion the rules which are usually followed by courts in cases of this character, it would seem that even if Mrs. Green was not as vigilant as she should have been, and even if she wap informed that proceedings of some sort were pending before the referee, but failed to appear on the reference, through misapprehension as to the nature of such proceedings, or through any excusable mistake, carelessness or procrastination on her part, she nevertheless ought to have a hearing, and is entitled to relief upon suitable terms.

After a careful consideration of the motion, I have concluded, though with some hesitation, that the whole matter should be sent back to the referee for a further hearing, in the same manner and with the same effect as if Mrs. Green had appeared upon the reference, before the report was made, with leave to file such objections to the assignee’s accounts and to offer such evidence as she may see fit.

An order to this effect will, therefore, be made, but only on condition that she will stipulate that, if substantially unsuccessful, she will pay all the expenses of the further proceedings to be had before the referee, and that she will proceed with reasonable speed.

The order may be settled upon two days’ notice.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    In the Matter of the Application of the Albany Railway Company to vacate or reduce the assessment for repaving Washington Avenue in the city of Albany.

      (Supreme Court, Albany County Special Term,

      Filed May 12, 1887.)

    1. Taxes and assessments—City of Albany-Verification of assessment-roll—Laws 1883, chap. 298, title 9, § 29.
    The board' of contract and apportionment of the city of Albany in assessing the expense for the improvements of Washington avenue, pursuant to laws of 1883, chapter 298, title 9, § 29, in a book used for that purpose, in appropriate columns placed the names of the owners, and opposite each name respectively, the size of the lot, number, valuation, whether vacant or improved, while the sixth and last column was headed: '• Amount of Washington Avenue assessment," but in that column no figures were placed. While in .that condition the city officers required by said section, at the end thereof affixed their verification. At that time the so-called apportionment did not contain any of the several sums which the board had determined to apportion and assess against the property of the several owners or occupants. The sums appropriated were placed upon separate sheets of paper, in no wise connected with or made a part of said book; neither was there any verification attached to or made a part of said separate sheets of paper. Held, that the failure to verify the apportionment was a disregard of material and essential requirements of the said statute, rendering invalid the acts of the board of apportionment in respect thereto.
    2. Statutory proceedings affecting private property must be strictly pursued.
    In statutory proceedings, affecting the property of the citizen, the requirements of the statute must be strictly pursued and any substantial deviation from the procedure bylaw prescribed, vitiates such proceedings.

      Rosendale & Hessberg, for petitioner; D. Cady Herrick, corporation counsel for city; Matthew Hale, for the contractor.
   Parker, J.

This is a proceeding under section 2, title 11, chapter 298, Laws of 1883, to vacate an assessment made upon the tracks, road-bed, real estate and franchise of the Albany Railway Company, to defray the expense of repaving Washington avenue between Eagle street and Lexington avenue, in the city of Albany.

Section 29, title 9, of said chapter, makes it the duty of the board of contract and apportionment to apportion and-assess all the expenses for work and improvements authorized by the common council, “except when the same are made by a city charge, among all the houses and lots or vacant lots and franchises intended to be benefited by such work and improvements, in proportion to the advantages which each shall be deemed to acquire, specifying the names of the owners or occupants, if known, or as they appear upon the tax rolls in the office of the receiver of taxes, of the houses and lots or vacant lots intended to be benefited, as far as the nature of the case will admit. Such apportionment shall he duly verified by the street commissioner and city engineer and surveyor; and ratified and approved by the board of contract and apportionment; and when thus far perfected, the said board shall cause notice of the same to be published in the official newspapers of the city of Albany for fifteen days, during which time the said apportionment and assesment shall be opened for inspection and examination by any person or persons interested;” * * *

The cost of the work in question was not a city charge, but was properly a charge against the houses, lots ana franchises intended to be benefited by the improvement and against such property the board attempted to assess it. The petitioner, however, claims that the action of the board in that respect was invalid, in that there was a failure to comply with the requirements of the statute by omitting to verify the apportionment. In statutory proceedings, affecting the property of the citizen, the requirements of the statute must be strictly pursued, and any substantial deviation from the procedure by law prescribed vitiates such proceedings. In Westfall v. Preston et al., 49 N. Y., 349, the affidavit of the assessors was made prior to the time fixed by statute, and the defect appearing upon the face of the papers, the couY" held that jurisdiction to impose a tax was not conferred.

In Merritt et al. v. Village of Portchester, 71 N. Y., 309, the commissioners of estimate and assessment omitted to take the oath prescribed by statute, before proceeding to apportion and assess the cost of improvement, and the court held that “the oath was one of the safeguards provided by statute for the protection of the property holder; and the legislature, by prescribing the form, made the form of the essence of the act. That which the legislature has directed courts cannot declare immaterial.”

Welty on on the law of Assessments, section 220, states the rule of law to be, that if the statutory “requirements be omitted or departed from in any matter that is material, or that is intended for the protection of the taxpayer, the assessment will be invalid. When the statute requires the assessors to take an oath * * * the requirement becomes mandatory.”

• No form of verification is provided by the act in question, but it does provide that the board shall apportion and assess and that “such apportionment shall be duly verified” by two city officers therein designated, and in the prescribed order of procedure, the apportionment as made and verified, must be ratified and approved by the board of contract and apportionment, “and when thus far perfected,” and not until then, notice to the persons interested must be given in the manner designated.

The word verified has a well understood legal definition, and in the connection in which it is here used, it is apparent that it was intended to constitute a material and essential part of the formula prescribed for the protection of the property of the citizen. Unless, therefore, the apportionment attempted to be made was verified, there was a failure to comply with a substantial requirement of the statute, and the assessment was invalid. The board of contract and apportionment, in a book used for that purpose, in appropriate columns placed the names of the owners, and opposite each name respectively the size of the lot, number, valuation, whether vacant or improved, while the sixth and last column was headed, “ Amount of Washington avenue assessment,” but in that column no figures were placed, and while in that condition, and on the 11th day of September, 1886, the - street commissioners and city engineer and surveyor at the end thereof affixed their verification. At that time the so-called apportionment did not contain any of the several sums which the board, had determined to apportion and assess against the property of the several owners or occupants.

The sums apportioned were placed upon separate sheets of paper, in no wise connected with or made a part of the book in which was contained the names of the. owners, size of lots, verification, etc., neither was there any verification attached to or made a part of said separate sheets of paper. Members of the board in explanation claim, that which is undoubtedly the fact, that it was their intention to insert the amounts of the several assessments in the the appropriate column after review, and they were omitted from the book in the first instance, so as to avoid erasures in the event of any changes being made by the board after hearing parties claiming to be aggrieved. Undoubtedly it was the intention of the board to comply with the law, and if intent alone constituted compliance, it could be found that the apportionment was verified, but it appearing upon the face of the papers that the verification was in no wise connected with or affixed to the apportionment, and no words appearing upon either, referring to the other, the defect cannot be supplied by proof that the figures shown upon outside and disconnected sheets of paper constituted the apportionment to which in the minds of the officers the verification was intended to refer.

In Albany City National Bank v. Maher, Receiver, etc. (6 Fed. Rep., 417), the assessors at the time of making the-assessment had in their possession a list of the stockholders of the bank and the number of shares held by each, which list was prepared for their use as assessors by the officers of the bank. After a review of the assessments the roll was copied into a book, and the names of the shareholders, with the assessable value of their shares, was also transcribed from this list into the same book.

In disposing of the question presented, the court say:. “It is fair to infer that the board of assessors regarded the-list thus kept by them as part of the assessment roll, although it was not physically annexed to the roll, and. supposed that it was a substantial compliance with the-law,” and “that the officers of the complainant and its-several shareholders understood that this list was kept by the assessors, and regarded by them as part of the assessment roll,” and held that it was not a literal, nor a substantial compliance with the statute, and therefore void.

The failure to verify the apportionment in this case was-a disregard of material and essential requirements of the-statute, rendering invalid the acts of the board of apportionment in respect 'thereto. Upon the argument, the-learned counsel to the corporation urged with much ingenuity that should it be held that there was no verification, of the apportionment still the petitioner is not a party aggrieved within the meaning of the law,.nor has substantial error been committed.

It is unnecessary, however, to discuss that point here, as-since the argument of the case, Mr. Justice Edwards, in matter of Perry v. City of Albany, in a well considered opinion, in which I fully concur, reached a conclusion which requires that it be held in this case, that substantial error was committed, and that the complainant is a, party aggrieved.

As the conclusion reached must result in vacating the assessment so far as this petitioner is concerned, the other questions raised on the application are not considered. The assessment as to this petitioner must be vacated, with costs of the proceeding.


text:
    Daniel James v. The James Cement Company, Amasa Humphrey, as Receiver of the James Cement Company, et al.—Two Motions.

      (Supreme Court, Ulster County, Kingston Special Term,

      Filed May, 1887.)

    1. Receiver—Cannot sue or be sued without leave of court.
    There is no exception to the rule that a receiver can neither sue nor be sued without first obtaining leave of the court making the appointment.
    2. Same—Practice — Jurisdiction—When action brought without leave.
    When an action has been commenced against a receiver without leave, the court acquires jurisdiction of the defendant receiver by the service of the summons, and the remedy applied is either to stay all proceedings on the part of the plaintiff, or punish the plaintiff for contempt of court, or both.
    3 Same—Jurisdiction of foreign court.
    A court of foreign jurisdiction has no jurisdiction to entertain a suit against a receiver before leave has been granted.
    The plaintiff’s actions are to foreclose two mortgages upon which default had been made prior to the appointment of a receiver for the mortgagor. The receiver entered into possession of the lands covered by the mortgage before the commencement of the actions.
    Leave of the court to sue the receiver was not obtained before action brought.
    The receiver, in his first motion, asked that for such reason the action be set aside and discontinued, and the notice of pendency canceled of record as to the defendant receiver.
    Upon the argument, counsel for plaintiff, insisting upon his claimed right to maintain the action without leave of the court, asked that if it should be held otherwise, that the court grant such leave in the disposition of the motion.
    Subsequently the defendant receiver moved the court to punish the counsel for the plaintiff as for contempt of court for having commenced the actions against the officer of the court without leave.
    For convenience the motions are considered and disposed of together.

      J. W. Fiero, for motions; Wm. Lounsbery, opposed.
   Parker, J.

It has long been the established doctrine of courts of equity that a receiver can neither sue or be sued without first obtaining leave of the court making the appointment.

The object of the rule was and is to protect estates in the hands of receivers from unnecessary and expensive litigations, to preserve it for the equal benefit of those equally interested in its distribution.

Its establishment was the legitimate and necessary result of attempts on the one hand by counsel for receivers to enlarge their fee bill by the parade of a register filled with notes of proceedings had in fruitless actions, and on the other by claimants striving to secure by action, judgment and execution, more than their proportionate share of the estate, and at the expense of the other creditors, and it is reasonable to presume that mere actions such as are under consideration, the only class in which receivers were sued, no such rule would have been laid down by the courts, because of the absence of an occasion for it. In the examination of the precedents, however, I have not been able to find that there exists any exception to the rule. It is absolute, but not burdensome, because to the discretion of the court is committed the power to permit the bringing of an action whenever the interests of justice seem to require it. In such a case as this, the application, if made in the first instance, would be undoubtedly granted at once, because the contract of the parties, long ago spread upon the public records, authorizes this proceeding, under and by virtue of which the party obtains only the advantage which his contract lien justly secures.

It seems to be clear that the plaintiff erred in bringing these actions against the receiver without first obtaining leave of the court, and the next question suggested is, is the error jurisdictional? The answer to that question is decisive of the first motion.

It is stated in High on Receivers (§ 254, a), that “the weight of authority seems to support the proposition that ■ leave to sue the receiver is jurisdictional in its nature, and that its omission is fatal to maintaining the action.”

In support of that proposition is cited Barton v. Barbour (104 U. S., 126); and Keen v. Breckenbridge (96 Ind., 69).

An examination of the opinion in Barton v. Barbour warrants the assertion that the court expressly refrained from laying down any such rule. At page 131 of the opinion the court, upon the question of jurisdiction, say: “Our decision upon this question will be limited to the facts of this case, which are that the receiver was appointed by a court of the state of Virginia, and the property in course of administration was in that state; the suit was brought in a court of the District of Columbia, a foreign jurisdiction, and the cause of action was an injury received by plaintiff in the state of Virginia, by reason of the negligence of the defendant while carrying on the business of a railroad, under the orders of the court by which he was appointed. Ho leave was obtained to bring the suit, and it does not appear that any application was made, either to the receiver or to the court by which he was appointed, to allow and pay the demand of the plaintiff.

“Upon these facts we are of opinion that the supreme court of the District of Columbia had no jurisdiction to entertain a suit.”

The only authority cited by the court in Barton v. Barbour was Peale v. Phipps (14 How., 368), and in that case a receiver was appointed by the circuit court of Mississippi, and in an action subsequently brought against the receiver in the United States circuit court, Mr. Chief Justice Taney, in the opinion of the court, said: “And while it (property of the insolvent corporation) thus remained in the custody and possession of that court, awaiting its order and decision, no other court had a right to interefere with it and wrest it from the hands of its agent and thereby put it out of his power to perform his duty;” and held that the facts stated in the petition showed “that the circuit court of Louisiana had no jurisdiction of the case.”

Those cases plainly hold that a court of foreign jurisdiction has not jurisdiction to entertain such a suit; not that there is a failure to obtain jurisdiction of the person by the service of a summons in an action commenced in the court appointing the receiver.

The decisions in this state to which the attention of the court has been called, all hold that an action must not be brought without leave of the court, but in the disposition of the cases where such actions have been commenced without leave, it has never been held that the court has failed to acquire jurisdiction of the person of the defendant receiver by the service of the summons, and the remedy applied, has been to stay all proceedings on the part of the plaintiff, or punish the plaintiff for contempt of court or both. Taylor v. Baldwin, 14 Abb., 166; DeGroot v. Jay, 30 Barb., 483; Higgins v. Wright, 43 id., 461.

In Crippin v. Culver (13 Barb., 424), a judgment was. recovered against a lunatic after the appointment of a committee and without first obtaining leave of the court; and it was held that the judgment was not void, nor even erroneous, and that the remedy of the lunatic thus improperly proceeded against, was by application to the court to restrain the prosecution of the suit at law and to punish the plaintiff for contempt.

I am, therefore, led to the conclusion that the defendant receiver is not entitled to the relief asked for in the first motion, to wit: That the action be set aside as against him, but that he is entitled to maintain the second motion in which he asks that the defendant’s counsel be adjudged guilty of contempt in bringing the action without leave of the court. It seems to the court that the contempt was not willful, but that the plaintiff proceeded upon the assumption that he had the legal right to the remedy adopted. Therefore no other terms should be imposed than are necessary to indemnify the receiver which will be covered by the payment of costs of motion in each case.

The plaintiff asks that leave of the court be now granted, and that an order nunc pro tunc be entered authorizing the commencement of the actions to foreclose the mortgages as against the defendant receiver. The relief asked for should not be denied. Years before the appointment of a receiver the mortgages in question were executed, delivered and recorded. By the conditions of the mortgage-contracts the plaintiff became entitled before the appointment of the receiver to enforce the remedy which he is now attempting to pursue. He is under no legal obligation to refrain from such enforcement to accommodate the wishes or convenience of subsequent creditors, and to refuse the application would be in effect an interference on the part of the court with the rights and privileges of the parties under a contract the validity and good faith of which is not questioned.

Motion to set aside and discontinue action as to the receiver denied, and on payment of motion costs in each case, the plaintiff’s counsel to be purged of contempt and order granting leave to sue the receiver in the actions, and .amending the complaint accordingly, to be entered nunc pro tur _


author: Potter, J.

text:
    In the Matter of John Baird.

      (Supreme Court, New York Special Term,

      Filed June, 1887.

    1, Lunatic—Commission to try competency op an alleged lunatic— Power op court over proceedings op.
    A commission appointed by the supreme court to try the question of the competency or incompetency of an alleged lunatic is subject to the direction of the court as to the manner in which they shall proceed.
    2. Same—Lunatic should be given time to procure evidence.
    Where it appeared that the alleged lunatic had been in confinement for upwards of three years, and that during that period he had been visited principally by those who petitioned for his confinement and physicians who were employed by them. Held, that the commission should be ordered to adjourn after the petitioners had put in their evidence to enable the alleged lunatic a reasonable time to procure evidence as to his competency to transact his own business.
    The question of the incompetency of John Baird to manage himself and his affairs was referred to a commission to be tried by a jury. The order for the commission allows evidence as to his demeanor or state of mind for a time more than two years before the hearing.
    Mr. Baird now presents his petition, duly verified oy himself and also by Thomas Baird his brother, from which it appears that for upwards of three years and a half he has been confined in a lunatic asylum, and has been visited and seen principally by his family, who petitioned for the appointment of the commission, or by the physicians of the asylum, or those employed by his family to examine him. That he was brought from the asylum to the city on the day of the first hearing before the commission and jury, and that the hearing has been almost continuous up to the day before presenting the petition, when the evidence presented by the petitioners for the commission was closed. That his counsel thereupon moved the commission for a reasonable adjournment to enable him to prepare and procure testimony as to -Mr. Baird’s condition and state of mind at the time, which motion was denied, and the commission directed the hearing to proceed the next day. The judge at chambers granted an order that proceedings before the commission be stayed, and that the petitioners show cause why the commission should not be ordered to adjourn for a reasonable time.
    On the return of the order to show cause appeared,

      Robert H. McClellan, for John Baird; Algernon Sullivan, for John S. Baird.
   Potter, J.

I am of the opinion that a commission appointed by this court to try the question of competency or incompetency of an alleged lunatic is subject to the direction of the court as to the manner in which they shall proceed.

In this case, it appears that the alleged lunatic has been in confinement for upwards of three years, and during that period has been visited principally by those who petitioned for his confinement, and who are now prosecuting the proceeding before the commissioners, and physicians who were employed by them. It results from this, that the alleged lunatic is deprived of the means of procuring evidence as to his condition since his commitment to the asylum. I think, therefore, that the commission should be ordered to adjourn for a reasonable time to enable Mr. Baird to procure evidence as to his present condition and competency to transact his own business.


author: Landon, J. Mayham, J., Learned, P. J.

text:
    The People of the State of New York, Resp’t, v. Patrick McDonald, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 24, 1887.)

    1. Game Laws—Pbosecütions fob violation of—Laws 1879, chap. 584, § 19, as amended by Laws 1886, chap. 124—Laws 1883, chap. 317, §§ 1 and 4—Laws 1879, chap. 534, § 33.
    It is provided by Laws 1879, chap. 534, 119, as amended by Laws 1886, chap. 124, that no person shall have in his possession, after the same has been caught, any speckled trout, save from May first to September first in each year, except in certain counties. Any person violating this provision is liable to a penalty for every such trout so had in his possession. Laws 1883, chap. 317, § 1 authorize the appointment of game protectors, whose duty it is, among other things, to bring, or cause to be brought, actions in the name of the people to recover these penalties. It is further provided that such actions may be brought in the name of the people in like cases in the same courts, and under the same circumstances as they might then or thereafter be brought by any individual under or by virtue of any then existing or thereafter enacted statutes for the protection of deer, game, or fish. The district attorney of any county is by that act required, upon the request of any one of such protectors, to commence and prosecute to termination in the name of the people, actions and proceedings against any person reported to him by such protector to have violated any such statute or laws for the recovery of the penalty for the violation thereof. Section 33 of Laws 1879, chap. 534, provides that all penalties imposed by that act may be recovered, with costs of suit, by any person in his own name before any justice of the peace in the county where the offense was committed, or in an adjoining county, when the amount does not exceed the jurisdiction of such just.ce. And such penalties may bo recovered in like manner in any court of record in this state. Held, citing Laws 1883, chap. 317, § 4, that for the preservation of game the state is divided into protection districts, and the district attorney of any county may become a prosecuting attorney at the request of the game protector for the district. Landon, J.

      2. Same—Powees oe distbiot attoeney.

      He'd, That it was competent for the legislature to impose this duty upon existing county officers. Landon and Mayham, JJ.
    3. Same—Extent oe powees.
    The question as to whether any district attorney could begin such an action in any county other than his own, or for penalties incurred outside of his own or an adjoining county, was expressly omitted from decision by Landon, J. Mayham J., Held, that the authority of the district attorney extended to adjoining counties, and withheld his decision as to the broader extent of his powers. Leabned, P. J., Held, that the powers of the district attorney as a prosecuting officer extended no further than to counties adjoining his own.
    Appeal from an order of the special term denying a motion to dismiss the complaint. '
    The action was brought to recover certain penalties under the game laws. The defendant is charged with having had on the 20th of April, 1886, in his possession in Saratoga county, certain speckled trout, after they had been caught, contrary to section 19 of chapter 534 of the Laws of 1879, as amended by section 1 of chanter 124 of the Laws of 1886.
    The action was commenced by the district attorney of the county of Fulton, which county adjoins Saratoga county, and the place of trial was laid in Fulton county. The action was commenced upon the request of the game protector of the eighth game district.
    The motion to dismiss was made upon the ground that the district attorney of Fulton county was not authorized to bring the action for a penalty incurred in Saratoga county.

      Charles C. Lester, for app’lt; C. M. Parke, for resp’t.
   Landon, J.

Section 19 of chapter 534 of the Laws of 1879, as amended by chapter 124, Laws of 1886, provides, that no person shall have in possession after the saíne has been caught, any speckled trout, save from May 1 to September 1, in each year, except in certain counties, among which Saratoga and Fulton are not included.

Any person violating this provision is hable to a penalty ■of twenty-five dollars, for every such trout so had in his ,possession.

Chapter 317 of, the Laws of 1883, section one, authorizes the appointment of game protectors whose duty it is, among other thing, to bring or cause to be brought, actions fin the name of the people to recover these penalties.' It further provides: Such actions may be brought in the mame of the people in like cases, in the same courts, and under the same circumstances, as they might now, or may hereafter be_ brought by any individual, under or by virtue nf any existing or hereafter enacted statutes for the protection of deer, game and fish, or any of them. * * * The district attorney, of any county of this state, shall upon the request of any one of such protectors, commence and ■prosecute to termination in the name of the people, actions and proceedings against any person reported to him by such protector, to have violated any such statute or laws, for the recovery of the penalty for the violation thereof.”

Section 33 of chapter 534, Laws of 1879, provides, that, “ all penalties imposed by this act may be recovered with costs-of suit by any person in his own name, * * * before any justice of the peace in the county where the offense was committed, or in an adjoining county, when the amount does not exceed the jurisdiction of such justice. * * * And such penalties may be recovered in like manner in any court of record in the state.”

It thus appears that the penalty may be recovered in an :action brought in the name of the people by an} district attorney, upon the request of the game protector, in the county where the offense was committed, or in an adjoining county, either before a justice of the peace, when the ■amount does not exceed his jurisdiction, or in any court of ’record. See Leonard v. Ehrich, 40 Hun, 460.

The argument of the learned counsel for the appellant is .to the effect that the district attorney is by statute the ¡prosecuting officer for offenses committed and penalties incurred within his own county. However true that may be .as a general rule, it will be seen (Chap. 317, § 4, Laws 1883), that for the preservation of game, the state is to be divided into protection districts, and the district attorney of any county may become a prosecuting attorney at the request of the for the district,

i It was competent for the legislature to impose this duty ■.upon existing county officers.

Whether any district attorney could begin such an action in any county except his own, or for penalties incurred, other than in his own or an adjoining county, we are not now called upon to decide.

Order affirmed, with ten dollars costs and printing disbursements.

Mayham, J.,

concurs, and adds:

By section 33 of chapter 534, Laws of 1879, actions for penalties under that act may be prosecuted before a justice of the peace of the county where the offense was committed or in an adjoining county, when the amount does not exceed the jurisdiction of a justice, and when it exceeds in amount the jurisdiction of a justice * * * such penalties may be recovered, in like manner, in any court of record of this state * * * and it shall be the duty of any district attorney in this state, and he is hereby required, to prosecute or commence actions in the name of the people for the recovery of the penalties allowed hereby.

This language it seems to me is too broad to be restricted to prosecutions by district attorneys in their own counties; but extends their authority to prosecute to adjoining counties; whether beyond that, is not necessary to inquire in this case.

Learned, P. J.

(dissenting) The question here arises on the -construction of chapter 317, Laws of 1883, which, in the respect in question, is like chapter 591, Laws of 1880. Section 1 says: ‘‘The district attorney of any county of this state shall, upon the request of any one of such protectors, commence and prosecute to termination, in the name of the people, actions and proceedings against any persons reported,” etc. “All money necessary for witnesses fees shall be advanced by, and all moneys except costs recovered * • * shall be paid to the treasurer of the county in which the action * * shall have been commenced.”

The question is whether this means that the district attorney of every county in the state may commence an action for violations occurring in every other county, in which he is requested by a game protector to bring such an' action. Or does it mean that every district attorney must, on request, bring such an action for violations occurring in his own county.

The plaintiff insists on the former; the defehdant on the latter. Either is possible, and we must judge which is intended, from other things than the mere words in this-statute.

There is no doubt that the district attorney is a county officer; that he is to reside in his county. That his salary is paid by the county; that he is to attend the courts of his-county, and specially that he is to prosecute for penalties incurred in his county. 1 R. S., m. p. 383, § 91. When his salary is fixed, he is to pay to the county treasurer of his county all moneys received for judgments, fees and costs. Laws 1852, chap. 304, § 6. See also Code Civil Procedure, § 1968.

It is plain that the general scope of the duties of district-attorneys is confined to their counties, and the moneys collected by them go to the county treasurer of their respective counties.

Now if we take this general system and apply it to the construction of this statute, we shall find everything harmonious. It will be the duty of each district attorney, on the request of a game protector, to prosecute and recover penalties for violations of the game laws which have occurred within his county. If chapter 317, Laws of 1883, give him the right to bring an action in the name of the people for these penalties in an adjoining county to that in which the violation occurred, then he may prosecute within his own, or an adjoining county. (I do not understand that this was necessarily decided in Leonard v. Ehrich, 40 Hun, 460.) But he can go no further.

The special authority (if it be given) to prosecute in an adjoining county to that where the offense is committed does not make him the prosecuting officer for offenses committed in all parts of the state.

If the plaintiff’s construction is right, then the district attorney of (say) Fulton county may commence suits in the name of the people in the city of New York, to collect penalties for violations of the game laws committed in that city. And, on his mere requisition, the county treasurer of that county (the chamberlain) must advance all money necessary for witnesses fees and disbursements.

Now, I cannot think that a construction is correct, which permits the prosecuting officer of one county thus to take on himself the enforcement of the law for offenses committed in another county, and to call on the treasurer of such other county for all the money he may deem necessary for witnesses fees and disbursements.

Suppose the language of the statute had been “district attorneys shall, upon the request,” etc., it would have been understood that the duty of each was limited to offenses-within his own county. I think the words used have the same meaning. If the meaning was intended which the plaintiff takes, then the language would have been more explicit, and it would have said that any district attorney might prosecute for violations committed in his own or in any other county of the state. A provision so contrary to the general scope of our legal system would have been unmistakably expressed.

I think, therefore, that the order should be reversed and motion granted. Com. Excise v. Purdy, 13 Abb., 434; Town of Lyons v. Cole, 3 T. & C., 431.


author: Learned, P. J.

text:
    The People of the State of New York, Resp’t, v. Egbert Palmer, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 7, 1887.)

    Criminal law—Hew trial.
    Palmer was indicted for assault in the first degree and convicted of assault in the third degree. His counsel having obtained a new trial, now asks that a provision be inserted in the order that he be tried only for assault in the third degree. Held, that such an order might possibly make a question as to the jurisdiction of the court of oyer umer § 56, Code of Grim. Pro., or of any court under _§ 35, Penal Code; that as the case now stands he cannot be harmed. Motion denied.
    Palmer was indicted for assault in the first degree and tried and convicted of assault in the third degree. The general term granted a new trial. Palmer’s counsel claimed that by the verdict he was acquitted of the charge of assault in the first degree and, therefore, could not be tried for that degree in the new trial, but only for assault in the third degree, and this was a motion made by Egbert Palmer’s counsel at the May general term, third department, to amend the order of the general term previously made by inserting therein substantially that the defendant, on the new trial, should be tried only for assault in the third degree, and not in the first degree as charged in the indictment.

      S. Crowell, for app’lt; A. Sherman, for resp’t.
   Learned, P. J.

It is not necessary to decide the question whether the defendant on another trial can be lawfully convicted of any higher offense than assault in the third degree. It would seem by analogy to the Dowling Case, that he could not.

But it would not be proper to limit the matter by anything in our order.

This case differs from that of Dowling. In that case there were two counts for distinct crimes. It was therefore possible to direct a new trial on one only. In the present case there were three counts in the indictment, but all for the same offense of assault, and the defendant must be tried upon them.

Whether it will be necessary for him to plead the former trial as an acquittal, or whether the record will show the fact without further pleading, or whether on the trial he can ask the court to direct the jury that he cannot be convicted for any higher offense than assault in the third degree—all these are matters which will be'considered when they arise. There is no doubt that in some way the defendant’s rights in this respect (if his counsel’s position is correct) will be protected.

But an order that tie be tried only for assault in the third degree might possibly make a question as to the jurisdiction of the court of oyer under section 56 Code Criminal Procedure, or of any court, under section 35 of Penal Code. As the order now stands, the defendant cannot be harmed, and the rights of the people are not endangered.

Motion denied.


author: Mayham, J.

text:
    George H. Parker, Resp’t, v. Charles M. Turner, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887.)

    1. Practice—Demurrer to answer when complaint insufficient.
    On demurrer to the answer the defendant is entitled to judgment if the complaint does not state facts sufficient to constitute a cause of action.
    3. Same—Action for accounting—Complaint—Sufficiency of.
    The complaint alleged an agreement between the plaintiff and defendant, by which they were to become interested in a common fund, and in substance charged that that fund, or some portion of it, together with the books containing a statement or evidence of the amount, was in the hands or under the control of the defendant, and that he retained the same and refused to account therefor, and that an accounting was necessary to ascertain the amount due or the standing of the accounts between the plaintiff and defendant, and asks for such accounting. On demurrer, Held, that the complaint stated a cause of action.
    3.' Same—Counter-claim—Code Civ. Pro., § 501.
    The counter-claim set up in the answer, to which a demurrer was interposed, was not alleged to have arisen between the parties to this action solely, nor did it appear that the claim accrued solely between the plaintiff and defendant, or had been assigned to the plaintiff. Eeld, that the demurrer must be sustained under Code Civ. Pro., § 501, subd. 1.
   Mayham, J.

The plaintiff brings this action to compel the defendant to account to and pay over to plaintiff a certain share of the earnings of the plaintiff and of other agents, appointed by him, and the defendant to receive applications for policies in the “Equitable Accident Association of Binghampton.”

The answer sets up, as a counter-claim, claims alleged to have arisen between the defendant and this plaintiff and one McHarg, as partners.

To this answer the plaintiff interposed a demurrer.

The defendant insists that the complaint does not state facts sufficient to constitute a cause of action, and that the plaintiff has committed the first error in pleading.

The rule is doubtless well stated by the defendant that on demurrer to the answer the defendant is entitled, to judgment if the complaint does not state facts sufficient to constitute a cause of action. This rule was well settled before the Code, and is held to be equally applicable since its adoption. People v. Booth, 32 N. Y., 397; Wright v. Booth, 69 N. Y., 620.

It, therefore, becomes necessary to examine the complaint to determine whether it is defective, as claimed by the defendant. The complaint alleges an agreement between the plaintiff and defendant by which they were to become interested in a common fund, and, in substance, charges that that fund or some portion of it, together with the books containing a statement or evidence of the amount, is in the hands or under the control of the defendant, and that he retains the same and refuses to account therefor, and that an accounting is necessary to ascertain the amount due or the standing of the accounts between the plaintiff and defendant, and asks for such accounting.

While the complaint may not in terms show the relation of partners to exist between the plaintiff and defendant, yet if the complaint is sustained by proof then there would seem to be such a community of interest between the parties in the fund as would justify an accounting. I think it could not be said on this demurrer that the complaint did not state a cause of action, and should be dismissed for that reason. Marvin v. Brooks, 94 N. Y., 71.

The counterclaim set up in the answer, to which the demurrer is interposed, is not alleged to have arisen between the parties to this action solely; nor does it appear that the alleged claim accrued solely between the plaintiff and defendant, or has been assigned to plaintiff. A judgment in this action could not be rendered against the-plaintiff and McHarg. Nor could a judgment, growing out of the contract alleged in the count demurred to, be rendered against this plaintiff solely. It is not a claim as to which a several judgment could be taken against the plaintiff, as required by section 500 of the Code of Civil Procedure. But it is insisted by the defendant that part of the answer demurred to is good, and if it should appear on the trial that McHarg was a necessary party to try the rights of the parties under the contract referred to in said answer, the court would order him to be brought in. The difficulty with that theory is that the plaintiff proceeds upon a different contract and not on a joint contract between himself and McHarg, as parties on the one side and the defendant on the other, and if it should appear on the trial that the joint contract was the only one between the plaintiff and defendant, the plaintiff would fail in his action.

The cause of action set forth in the plaintiff’s complaint is on a contract between the plaintiff solely and the defendant.

The answer does not assume to counterclaim that cause of action, but alleges that no such contract was made, and then proceeds to counterclaim some other and different contract.

This cannot be done under the provisions of subdivision 1 of section 501 of the Code. That subdivision provides that it must be “A cause of action arising out of the contract or transaction set forth in the complaint as the foundation of the plaintiff’s claim, etc.” Code of Civil Pro., § 501, subd. 1.

The demurrer must, therefore, be sustained and the plaintiff have judgment thereon with costs, with leave for the defendant to amend his answer on payment of costs of demurrer.


text:
    Chloe A. Markham, Resp’t, v. Wesley Barnes et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887.)

    1. ; Pleading—Distinct defenses set up in answer must be tested SEPARATELY.
    Where an answer contains several defenses, no one of which adopts any allegations of the other, each must be tested separately.
    2. Water courses—Overflowing of lands—Laws 1882, chap. 176—Laws 1883, chap. 408
    The complaint in this action alleged that the defendants, by wrongfully preventing the flow of waters of a stream and by their negligent discharge, damaged the plaintiffs lands adjoining the stream. Held, that neither Laws 1882, chap. 176, nor Laws 1883, chap. 408, applied to the case.
    3. Same—Laws 1880, chap. 538, § 3.
    The allegations of the complaint were a careless, negligent and unnecessary filling up and overflowing of the stream by reason of a careless, wrongful and negligent discharge of the water. Held, that these were acts for which Laws 1880, chap. 533, made no provision, and that section 3 of said act did not protect a person using a stream as permitted by that act from an action for damages.

      James M. Gardner, for resp’t; Anibal & Murray, for app’lts.
   Learned, P. J.

The complaints allege that plaintiffs are-owners of land'adjoining Han’s creek; that defendants are possessed of, and use, a reservoir on the creek above plaintiffs’ lands, in which the defendants collected and held back large quantities of water, which would otherwise flow down the creek; that plaintiffs’ lands have at sundry times been injured by the wrongful and negligent discharge of water by defendants from said reservoir.

The defendants set up several defenses, to the second, third, fourth and fifth of which plaintiffs demurred. The special term sustained the demurrer and the defendants appealed.

The second defense is that no application, appointment or hearing had been had before any commissioner to ascertain the amount of the damage.

The third defense is that the plaintiff has not, in any form, had the damages settled, adjusted or appraised, and that the same were not appraised within one year, and hence the action was barred by the statute of limitations.

The fourth defense is that Han’s creek has for four years and upwards been a public highway for floating and running logs.

The fifth defense is that Han’s creek has for twenty-five years been used for floating logs and lumber, and hence has become for such purposes a public highway.

According to settled rules each of these defenses must be tested by itself; since no one of them adopts any allegations of another. The defendants, in their points speak of these several defenses as subdivisions of their answer. But each is pleaded as a separate defense; and must so be considered. They are not subdivisions of an answer, but are severally distinct defenses. Taken separately every one of them is evidently insufficient. The defendants intended to set up a defense under chapter 533, Laws of 1880; and without regarding the defective manner of pleading. It may be better to look at the act and see whether the defendants aver any defense, even taking all the defenses together.

Section 3 authorizes persons to construct an apron in connection with any dam, and to reconstruct booms and construct piers, houses or other works, “doing no damage * * * to the owner or occupant of lands * * * flooded thereby.” It provides for an appraisal of damages by three commissioners to be appointed by the county court.

Section 4 provides that the foregoing sections shall not be construed to impair or abridge any private or individual rights, except so far as may be necessary for the improvement of said rivers.

Section 5 provides that any person making claim for damage arising under this act shall apply within one year, or be deprived from recovering the same.

Section 10 provides that any person intending to run lumber shall execute a bond as an indemnity against all damage which may be done, etc.; and shall not run lumber until such bond shall have been executed.

We may notice in passing that chapter 176, Laws of 1882, does not apply to this case. The reservoir is not on plaintiffs’ lands. Nor do we/think that chapter 408, of the Laws of 1883, applies to damages such as are alleged in the present case.

On examining chapter 533, Laws of 1880, on which defendant principally relies upon the argument of this demurrer, it will be seen that the object of the provision in relation to damages in section 3 is to provide for damages for acts supposed to be authorized by the statute. That is, the act is, to a certain extent, intended as an authority for taking private property for public use; for the use of a highway.

_ And the damages which are to be ascertained under section 3 are such as the statute is supposed to justify. It is not necessary for us on this appeal to inquire whether or not this provision is valid.

The allegations in the complaint are of a “careless, negligent and unnecessary filling up and overflowing of said stream by reason of a careless, wrongful and negligent discharge of the water.”

Now .these are acts for which the statute in question makes no provision. Indeed, it probably could make no lawful provision which should take away the right of trial by jury.

There is, also, the further objection, pointed out by the learned justice at special term, that in order in order to justify any floating of logs the person intending to float them must file a bond, without which bond he shall not float logs. If he does, he is guilty of a misdemeanor. Any person incurring loss or damage by reason of such use of the river may maintain an action on that bond. This provision shows that the party causing damage is liable to an action, and cannot shield himself from an action under the provisions of section 3. Thus it indicates the limited extent, above explained, of said section 3.

Section 10 relating to the bond would also seem to indicate that a party could not protect himself against paying damages, even for a reasonable use of the river in floating logs, unless he had previously filed the bond required. Certainly he cannot escape paying damages for a negligent and careless act.

Judgment interlocutory affirmed, with costs in each case, with leave to defendants to withdraw the second, third, fourth or fifth defenses and to amend their answer on payment of costs below and of this appeal in ten days.

Landon,P. J. and Mayham, J., concur.


text:
    John W. Kays, App’lt, v. Casper Eugert, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887.)

    1. Warranty of soundness of personal property — Measure of damages.
    The measure of damages for a breach of warranty of the soundness of a horse is the difference between the value at the time of the sale of the horse as recommended and his value as he really was at the time of the sale.
    2. Same—Evidence.
    The vendor claimed there was no warranty, but that the vendee had been allowed to prove the value of the horse with the defects. Held, that the vendor could prove, that the value was different from that claimed by the vendee.
    3. Same—What hearsay—Res gestae.
    One of the defenses of the vendor was that the vendee had by ill-treatment aggravated the, maladies of the horse : Held, that an independent statement of what an agent of the vendee said as to the treatment of the horse long after the sale was not competent. That it was hearsay and not part of the res gestee.

    Appeal taken from the judgment of the county court, reversing the judgment of a justice of the peace of Sullivan, county.
    The action was upon a note for $125, and interest, on which the complaint admitted a payment of forty-seven dollars. The answer admitted the making and delivery of the note, but alleges a much larger payment on the same than admitted by the complaint. Also alleges that the note was given for the purchase price of a horse bought of plaintiff by defendant, which was warranted sound and all right, and alleges a breach of such warrant. The justice gave judgment to the plaintiff for the balance appearing due on the note, less the amount of payment as admitted, The defendant appealed to the Sullivan county court, where the judgment was reversed, and the plaintiff appeals, to this court.

      James J. Curtis, for app’lt; John F. Anderson, for resp’t.
   Mayham, J.

There was a conflict m the evidence before the justice as to the contract of sale, and the justice upon that conflict seemed to find with the plaintiff, and as there was evidence sufficient to support that finding, his judgment should be sustained on appeal, unless clearly against the weight of evidence, or there was error in the admission or rejection of evidence which might have influenced the result. It is insisted by the defendant that there was such error and for that reason the judgment of the justice was. properly reversed by the county court on appeal.

On the trial, the defendant having been given the affirmative, produced evidence tending to show a warrant and breach, and the damages based upon the alleged difference in value of the horse as claimed to have been recommended, and as he really was at the time of the sale.

On the plaintiffs assuming the case in reply to the evidence of the defendant, he offered evidence tending to deny the defendant’s theory of warrantee, and to establish that the defendant bought the horse with a full knowledge of all his faults and defects, and against which there was no warrantee. Witnesses who were shown to have had knowledge of the defects in the horse at or about the time of the sale, were asked what he was worth at that time. This evidence was objected to as improper and incompetent, and the witnesses were not shown competent to answer. The objections were overruled and the evidence received.

There is nothing in the objection to the competency of the witnesses to give an opinion as to the value. They were shown competent to speak of the value of the horse. Nor was the time at which witnesses assumed to estimate the value objectionable, it was about the time of the sale. The rule is well settled that on the sale of property at the time of the sale as it recommended, and as it was with the defects complained of is the true rule or measure of damages. Muller v. Eno, 14 N. Y., 597.

And that rule was properly applied by the defendant in this case in proving his damages. But was that rule applicable in this case to the plaintiff’s theory ? His theory was that there was no warrantee and that the defendant purchased the horse with a knowledge of the defects. It may be true that if his theory is right as to the contract, and defendant’s knowledge of the quality of the horse, no legal obligation rested upon plaintiff to prove the value, and that the evidence in that aspect of the case was immaterial. But as the witnesses for the defendant had been permitted to give their estimate of value with the defect, it would be proper for the plaintiff’s witnesses to estimate the value upon a like hypothesis, and as it appears that both of plaintiff’s witnesses called upon that subject knew of his unsoundness at the time of the estimate of the value, I do not think it was error to receive that evidence.

It is also claimed by the respondent that the justice erred in receiving the testimony of the witness Wilcox, of what B. H. Kays, the plaintiff’s agent, said in a conversation with him about the manner of the defendant’s treatment of the horse. On the trial it seems that one of the questions litigated was as to whether the defendant had not by ill-treatment aggravated the maladies of the horse. Defendant called Wilcox, who, on defendant’s examination, and without objection, testified that Kays, plaintiff’s agent, sometime after the sale, said “he told defendant at the time of the bargain that if he treated the horse well, and he did not turn out well, he would make him good.” On the cross-examination of Kays, plaintiff asked him this question: “In this conversation did Kays say that he understood that defendant did not treat the horse well % ” This question was objected to by the defendant as immaterial, improper and illegal. The objection was overruled and witness answered: “Understood he did not treat the horse well.” What was said and done by the defendant and plaintiff’s agent at the time of the sale could not be properly proved on the trial as a part of the res gestee whether that could be proved by the plaintiff’s agent, a'fter the business was all transacted, it is not clear, but as the evidence was received without objection no point can be made upon it here. The answer elicited on the cross-examination did not relate to what was said or done at the time of the sale. It was an independent statement of what B. H. Kays said as to the treatment of the horse long after the sale; in no clause could it be treated as, part of the res gestae. Was it competent evidence under objection ? It is a well settled rule of evidence that where a party seeks to prove a conversation by a witness the whole conversation upon the same subject must, if desired, be received. But I do not think the rule can be extended so as to make the statement of B. H. Kays to Wilcox as to his understanding-how the horse had been treated competent. That was not the subject of the conversation or statement into which the defendant inquired, and did not relate to the subject matter of that inquiry; it was an independent statement of the witness, hearsay in itself, and based upon what happened to be hearsay of Kays.

We think the evidence is incompetent, and as it was directed to one of the litigated questions on the trial, it furnished sufficient legal reason for the county court to reverse the judgment of the justice.

The judgment of the county court should be affirmed with costs.

Learned, P. J., and Landon, J. concur.


text:
    James Park, Jr., et al., App’lts, v. The Chateaugay Iron Company, Resp’t.

      (Supreme Court, General Term, Third, Department,

      Filed May 19, 1887.)

    1. Contract—Construction—Within what time to be performed.
    By the terms of a certain contract the defendant company agreed to deliver to the plain tiffs 3,000 tons of iron in Pittsburg during the “spring and summer ” of 1880. JMd, the said company was not in default for not delivering the iron until the 1st of September, 1880. That in the ahsence of an express provision in the contract requiring frequent or continuous delivery, the whole 2,000 tons could have been delivered on the last day of the summer.
    3. Same—Damages—Evidence—How restricted.

      Held, that the evidence as to the amount of damages must be directed to the difference in value of the iron at the contract-price on the 1st of September, 1880, and the actual market value at that time.
    3. Same—Evidence—What competent.
    It was competent for either party to put in evidence the value of iron of the description called for in the contract at or about the time of the breach by the defendant. t

    Appeal from an order denying a motion for a new trial made upon the minutes of the court.
    The action was to recover damages alleged to have been sustained by an alleged breach of contract by the defendant in failing to deliver to plaintiff at Pittsburg, Pa., 2,000 tons of iron in accordance with the terms of such alleged contract. The contract, claimed to have been broken, was by letters and telegrams between the parties.
    By an agreement by letter concluded on the 16th day of September, 1879, the defendant contracted to sell and deliver to the plaintiff at Pittsburg, during the spring and summer of 1880, 1,00<"> tons of a quality of iron, described therein, at the rate of sixty dollars per ton, and by another agreement, in like manner, by letter and telegram, concluded on the 30th day of September, 1879, another like amount of a similar kind of iron for sixty-five dollars per ton, to be delivered at Pittsburg,-Pa., during the spring and summer of 1880. The substance of the contracts was-on that day contained in a letter from defendant to plaintiff in the following language:
    “ Plattsburg, N. Y., September 30, 1879.
    “Messrs. Park Bros. & Co.:
    “ Gentlemen—Your favor of twenty-seventh at hand. Your order for Chateaugay billets are entered at follows l 1,000 tons at sixty dollars per ton, 2,240 pounds; 1,000 tons at sixty-five dolllars per ton, 2,240 pounds; delivered in Pittsburg next spring and summer. Terms cash.
    “Yours respectfully,
    “ CHATEAUGAY IRON COMPANY.
    “A. Williams, President.

    “P. S. This covers all orders received from you to date by letters or wire.”
    The defendant delivered to the plaintiff after the making of this contract about 371f tons at five different invoices: November 29, 1879, 10 tons; April 21, 1880, 50 tons; June 20, 1880, 53 tons; July 16, 1880, 143 tons, and September 18, 1880, 114 tons. All of which was paid for at delivery except the invoice for September, 1880, amounting to $6,288.09, which remains unpaid.
    The plaintiff in the complaint alleges the making of the contract and its breach, and claims damages.
    The answer substantially admits the making of the contract, but alleges that the time for the delivery of the iron was extended by mutual agreement between the parties, and that the defendant delivered iron under said contract in September, 1880, which was not paid for at the timé and has not at the time of the commencement of this action been paid for, and that the defendant was, therefore, exonerated from any liability for the further delivery of iron under said contract.
    The jury rendered a verdict for the plaintiff for $2,194.11'.

      Maxwell, Barnard & Wheeler, for app’lt; Matthew Hale, for resp’t.
   Mayham, J.

The defendant was not in default for not delivering iron under this contract until the first of September, 1880. By the terms of the contract the defendant was to deliver in the spring and summer of 1880, and having delivered in both those seasons, in the absence of any provision in the contract fixing the amount to be delivered at any one time, it would have been a complete performance within express terms of the contract if on the last day of the summer the defendant had delivered the remaining 161J tons not delivered; the whole amount called for by the contract would then have been delivered during the spring and summer of 1880, and the contract therefore would have been literally performed.

It may be true, as claimed by the plaintiff, that they wanted and needed this iron supplied, as they desired to use the same to keep their works in operation, and it may also he true that the defendant was apprised of that fact, but in the absence of an express provision in the contract requiring frequent or continuous delivery that imposed no legal duty or obligation upon the defendant.

If this conclusion is correct, then the fact that the plaintiffs were unable to obtain a sufficient supply of iron to carry on their business in the spring and summer of 1880, was not a matter to be considered in this action, and the question put to tne witness Park on that subject was properly excluded. The defendant had, as has been seen, until and including the last day of the summer, to complete the delivery, and the contract was not therefore broken until the end of the summer; and we think the learned justice al the trial was right in holding that evidence at the trial must be directed to the difference in value of the iron at the agreed or contract price on the first of September, and the actual market value at that time. That could be arrived at by evidence either of the actual market value, as shown by- sales at that time, or by the evidence of witnesses acquainted with the market value, based upon their knowledge of sales at that time or within such reasonable time before and after that as bore more or less directly upon the value at that time. It was competent therefore for either party estimating or determining the difference in value to put in evidence by competent witnesses the value of iron of this description at or about the time of the breach by the defendant, and this method was adopted by both parties.

The plaintiff proved by Park the purchases made by him in September, October and November. This evidence was offered for the double purpose of showing the actual market value of this iron on the first of September, and also for the purpose of fixing the actual damage by showing how much the plaintiff in fact suffered by reason of the failure of the* defendant to perform his contract, and we think the evidence competent on both grounds.

The defendant proved also by Weed & Williams, sales of iron about the same time, for the purpose of fortifying their opinions as to the market value of iron of this description.

These witnesses were clearly competent to speak of the market value of iron, and in determining their competency the inquiries as to their dealings in iron of this quality were competent as bearing upon that question. They did not constitute objectionable acts and declarations of parties in their own favor such as would authorize their exclusion for that reason. The evidence being competent, it was not error to refuse to strike it out on the plaintiff’s motion.

Nor do we think the court erred in refusing to direct a verdict for the plaintiff for a specific amount claimed by him. The difference in the market value of iron on the first of September was one of the disputed questions of fact litigated on the trial, and one that could not properly be taken from the jury. Both parties introduced evidence on that subject, and the witnesses of the respective parties differed in their conclusions as to the value at that time. And for the court to have determined that conflict would, we think, have been a clear invasion of the prerogative of the jury and error.

There was no valid exception to the charge of the judge, and we think that as a whole it was a correct exposition of the law of the case and a full and fair submission of the questions of fact to the jury.

For reasons heretofore stated upon the questions of law discussed, we think the judge was right' in denying the motion for a new trial upon the minutes.

The verdict was not upon its face unsupported by the evidence.

The jury were authorized and required to deduct from the amount of the plaintiff’s damage as proved by the evidence and found'by them, the unpaid balance of $6,288.09 for the invoice of iron delivered in September, and with that deducted, the court could not, under the evidence, say that the verdict was wholly unsupported by the evidence.

Much less that it was against the evidence. On the whole case we do not see any valid reason for the reversal of the order appealed from.

The order must be affirmed, with costs.

Learned P. J., concurs.


author: Mayham, J. Landon, J.

text:
    Emily H. Hathorn, Resp’t, v. The Congress Springs Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887)

    1. Libel—Pleading—How justification should be pleaded—Code Civ. Pro., § 494.
    In an action for libel, when the truth of the libelous matter is intended to be relied upon as a defense, the particulars must be alleged. A general allegation that all the statements are true is bad on demurrer.
    2. Same—Mitigation of damages—What evidence admissible.
    Facts tending to prove the truth of the charges may be pleaded and proved in mitigation of damages. But evidence of circumstances in mitigation of damages is inadmissible unless pleaded in mitigation.
    Appeal from the order of the special term sustaining a demurrer to the second count in the defendant’s answer. No judgment has been entered upon the order sustaining the demurrer the parties consenting on the argument to a decision upon the merits of the same and to the same effect as if judgment had been entered upon said order.

      L. B. Pike, for app’lt; Charles C. Lester, for resp’t.
   Mayham, J.

The libel complained of in the complaint consists in charging the plaintiff with preparing water for analysis, as the water of Hathorn Spring, by adding ■fresh water and valuable salts thereto, and thus obtaining the analysis of different water from that produced by said .spring and thereby deceiving the public and patrons of said spring. The words claimed by the plaintiff to be libelous areas follows: In stating these facts we do not intend to implicate the learned chemist who did not procure the water himself (as he should) at the springs; who did not know how much fresh water was added to diminish the proportionate amount of the offending and gross salts to the water; or how much valuable salts were added before closing the bottles sent him.” The specific part of the answer to the above charge, which is contained in and constitutes a part of the second count, to which this demurrer is interposed, is in the language following:

“It is also true that the chemist referred to in said article did not procure the water himself from the waters of the spring as he should; that he did not know how much (if any) fresh water was added to diminish the proportionate amount of offending iron and gross salts to the water or how much (if any) valuable salts were added before closing the bottles sent to him.”

It will be seen that this answer is not an admission of the publication of the alleged libelous matter and a justification •on the ground that the allegation is true. It does not admit the words in the language of the charge, nor does it state facts and circumstances showing that the charge is true.

It is not, therefore, good as a full justification. Á justification in an answer must be as broad as the charge which it seeks to justify. Skinner v. Powers, 1 Wend. R., 451.

And this rule does not seem to have been abrogated by the Code. Wachter v. Quenzer, 29 N. Y., 552.

In this case Demo, J., says: “The Oode does not certainly allow the reiteration of the libelous words and an averment that they are true, without a statement of the facts showing them to be so.” A statement in the answer that the words are true would not be a justification and it would fall just as far short of being a statement of facts to be proved by way of mitigation. It would, therefore, be insufficient in law upon its face to constitute a defense, by way of justification of the charge; and as it is not alleged in mitigation and containing no statement of facts which ■could be proved in mitigation of damages, it becomes the proper subject of demurrer under section 494 of the Oode of Civil Procedure.

This count in the answer is defective as a justification in not stating the particulars and facts tending to establish the truth of the alleged libelous words.

When the truth of the libelous matter is intended to be relied upon as a defense, the particulars must be alleged, and a general allegation that all the statement are true is bad on demurrer. Wachter v. Quenzer, 29 N. Y., 647; Robinson v. Hatch, 55 How. R., 55.

Nor can this allegation be appplied as an allegation in mitigation ©f damages not having been pleaded as such.

It is true that facts tending to prove the truth of the charge may be pleaded and proved in mitigation of damages. But the circumstances in mitigation must be pleaded in order to be admissible in evidence. Code, section 165, N. Y., 527.

Evidence of circumstances in mitigation of damages is inadmissible unless pleaded in mitigation. Willover v Hill, 72 N. Y., 36.

We think the order of the special term, sustaining the demurrer, was right, and should be affirmed with costs.

Defendant should have leave to amend the answer on payment of costs.

Learned, P. J., concurs.

Landon, J.

I concur in the result. As a justification the answer is defective in not stating the facts tending to establish the truth of the alleged libel. As matter of mitigation of damages, it is defective in not stating that it is pleaded as a partial defense. Code Civ. Pro., § 508. Since ■ a defendant may set forth in his answer as many defenses as he has (section 507), I do not think it necessary for a defendant to admit the publication of the libel in order to set forth the single defense of its truth.


text:
    Charles F. Nye et al., App’lts, v. Timothy Hoyle et al., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed May 19, 1887.)

    1. Easement—When attaches to servient estate.
    One Noadiah Moore owned the land through which a stream flowed and had erected a dam. thereon which supplied water power to his mill. Certain others, Pliny and Amasa C. Moore, owned land below, on which they too had a dam and mill. For the purpose of constructing a new mill privilege, Noadiah re opened the canal, which passed through his land to his mill; and Pliny and Amasa C. constructed through their land a new canal from the end of Noadiah’s canal to the lower point where the power was to be used, and certain land was conveyed to Noadiah near the end of the new canal. As to the maintenance as well as to the construction of these several parts needed for the new privilege, it was agreed that Noadiah and his heirs and assigns should maintain, repair and rebuild the dam and the old ditch which were on his land, and that Pliny and Amasa 0., their heirs and assigns, should maintain and keep in repair the new ditch, which was on their land. Meld, that the agreement that the dam should be repaired by Noadiah, his heirs and assigns, attached the burden of repairing upon the old privileges; that is, on the servient estate, and not on the new.
    '3. Same—When runs with the land oe servient estate.

      Meld, That an easement over Nodiah’s land was granted. That the covenant to repair and rebuild the things necessary for the enjoyment of that easement, was for the protection and support of that easement, and, therefore, ran with the land.
    Appeal from a judgment in favor of defendants.
    The complaint alleges that a certain dam had been destroyed; that a dispute arose between plaintiffs and defend.ants as to their-respective obligations to rebuild; that it was deemed best that the "dam should be rebuilt, without waiting for judicial determination of that question; that an agreement was made between the parties that Plffs should, rebuild, and that the defendants should repay one-half the expense; that the plaintiffs have rebuilt, and that defendants refuse to repay.
    The defendants for answer, among other things, set up the written contract as to rebuilding, and deny any liability on their part to rebuild, and claim that plaintiffs are bound to rebuild at their own expense. They set up various facts which, they claim, show plaintiffs’ liability.
    The written contract recites an agreement between the parties to submit, without action, the controversy as to the expense of rebuilding, and thereupon states that the plaintiffs have agreed to rebuild, each of the parties bearing one-half of the expense; and then that, on a judicial determination of the rights of the parties, if either has paid more than the proper share the excess shall be refunded; and also that, if the submission without action should fail, suit may be brought by either party against the others, and the determination thereof shall govern respecting the refunding-the expense" as aforesaid.
    On the trial it appeared that this contract had been duly executed, and that the plaintiffs had rebuilt the dam in question at the expense of $1,873.33. There is no dispute-about the facts. The only question is whether, on the facts, the defendants should contribute, and, if so, how much.
    The rights of the parties take their origin in a contract made May 13, 1835, between Noadiah Moore of the first-part, and Pliny Moore and Amasa Moore of the second part. It recites that Noadiah Moore is the owner of a certain water privilege, ditch, dam, pond and land; and Pliny Moore and Amasa C. Moore are the owners of the lands with the river and privileges thereto appertaining. It appears that the lands of Pliny and Amasa 0. are below those of Noadiah; both being on the Big Chazy.
    The contract recites that it is contemplated by the parties to constitute and create a new water privilege, which will require a portion of the property belongihg to the parties, and will have a preference over the present water privileges of the parties.
    The contract continues that it is, therefore, agreed that a new mill and water privilege shall be made and created below the mills of Pliny and Amasa 0., and the water is to be taken from the mill pond of Noadiah through his canal and through the lands of the parties, as may be most convenient and useful. And so much of the lands, dam, ditch, canal and lands as is necessary for making and repairing the new ditch or canal shall be attached to the water privilege hereby created and belong to the parties as thereinafter mentioned.
    It is further agreed therein that, “the dam of the said party of the first part shall be kept and maintained tight and in good repair by the party of the first part.” The ditch to the saw mill is to be widened by the party of the first part. “ And the ditch to be so widened and afterwards maintained, and the said dam to be maintained, repaired and rebuilt, if necessary, at the sole expense of the party of the first part, his heirs and assigns.”
    A new ditch from the ditch aforesaid to the top of the bank opposite the cove was to be made, maintained and kept in repair by the parties of the second part, their heirs and assigns.
    The party of the first part was to have and own a lot of land of two acres and one-half near the new water privilege.
    The party of the first part was to have one-third and the party of the second part two-thirds of the water privilege thus created.
    Noadiah Moore, in January, 1836, conveyed to Freeman Nye and Bartlett Nye a piece of land of five acres lying west of, and adjoining, the mill pond and old canal with certain water rights. No portion of the dam or pond is included within the metes and bounds of this land. The deed contains a covenant that the grantees, their heirs and assigns, shall be charged with one-half of the expense of the dam to keep up the same, and of enlarging the present ditch as contemplated in me contract, “ and as already begun.”
    Subsequently in 1851, Noadiah Moore conveyed to the same grantees an undivided one half of the two and one-half acre piece, and an equal one-half of all the rights in the new water privilege. This land and these rights now belong to plaintiffs.
    Noadiah Moore died February, 1859, and by devise, the other undivided half of the two and one-half acres, and of the rights of the new privilege went to his sons Pliny N. and Samuel M., and the same through mesne conveyance* were owned by defendant at the commencement of this action.
    He, also, devised to said Pliny N. and Samuel M. all his interest in the water privileges referred to in the agreement of May 13, 1835, as “the old and former privileges,” being the portion not conveyed to the Nyes in January, 1836. At the commencement of this action this right, through mesne conveyance, belonged to the plaintiffs. At the commencement of this action the defendants owned, through mesne conveyances, that portion of the new privilege which was by the agreement of 1836, acquired by Pliny and Amasa 0. Moore; being two-thirds.

      Palmer, Weed, Kellogg & Smith, for app’lts; Waldo, Grover & McLaughlin, for resp’t.
   Learned, P. J.

The meaning of the agreement of 1835 seems plain. Noadiah Moore owned the land through which the stream flowed and had erected a dam thereon, which supplied water power to his mill. Pliny and Amasa 0. Moore owned land below, on which they too had a dam and mill. All the parties desired to construct a mill privilege still further down, for the use of both; one-third to belong to Noadiah, two-thirds to Pliny and Amasa 0.; which new privilege should have preference over the old. For this purpose it was necessary that Noadiah should deepen the canal which passed through his land to his mill, and that Pliny and Amasa 0. should construct through their land a new canal, from the end of his, to the lower point, where the power was to be used. And as Noadiah had no land ■at that point, it was also necessary that they should convey him a piece near the end of the proposed new canal.

Then, as to the maintainance as well as to the construction of these several parts needed for the new privilege, it was agreed that Noadiah, his heirs and assigns, should maintain, repair and rebuild the dam and the old ditch which were on his land; and that Pliny and Amasa 0., their heirs and assigns, should maintain and keep in repair the new ditch which was on their land.

These obligations, which the parties to the agreement thus severally undertook, were clearly for the benefit of the new water privilege, in which each party had an interest, to the extent above mentioned; and so, for the benefit of the land which (after the agreement) they severally had, upon which the new water privilege could be used.

These obligations were intended to be perpetual, and to be a burden running with the land upon which the work was to be done and maintained. The heirs and assigns of Noadiah, mentioned in the agreement, are his heirs and assigns of the property, on which the work was to be done; that is of the property where the dam stood, and also of that where the old ditch had been.

That burden may have been modified and extended by the deed from Noadiah to Freeman and Bartlett Nye of" January, 1836. But that is not material here.

We might justly say that an easement was created on these lands of Noadiah, for the benefit of the owners of the water privilege below. One of these owners, it is true, was Noadiah himself. But the stream of water which formed the water privilege was one thing, although there were two parties who had several interests m it. And not only was an easement in the strict sense imposed, but an active obligation to repair and rebuild—an obligation such as has sometimes been called a spurious easement.

But the plaintiffs insist that the agreement that the dam should be repaired by Noadiah, “his heirs and assigns,” did not attach the burden of repair upon the old privileges, but upon the new. In this view, the “heirs and assigns” are those who have acquired Noadiah’s rights in the easement, not in the servient, estate. If, however, that had been the meaning of the parties, the agreement would have said that the respective owners of the new privilege should, in proportion to their ownership, forever keep in repair the dam, the old ditch and the new canal. Such is not the language of the agreement. On the contrary, it specifies just what easement is to be created over the several lands of the respective owners; and just what each owner is to do in the way of repair and reconstruction.

The plaintiffs further insist that this covenant of Noadiah does not run with his land, so as to impose the burden of repair on its present owners. It is usually said that covenants do not run with the land, unless there be a privity of estate between covenantor and covenantee. And it has been remarked that the meaning of " privity of estate ” is not easy to define. 2 Wash. Real Property, 285. But it is said in Bronson v. Coffin (108 Mass., 175), that an interest in the nature of an easement in the land is sufficient to make a covenant for the support and protection of that interest run with the land charged. See Cooke v. Chilcott (3 Ch. Div., 694); Lindeman v. Lindsey (69 Penn. St., 93); Noonan v. Orton (27 Wis., 300); Norman v. Wells (17 Wend., 136).

In the present case an easement over Noadiah’s land was granted, viz.: the right to take the water from his dam and through his old ditch. The covenant was for the protection and support of that easement, for it was to repair and rebuild the things necessary for the enjoyment of that easement. It ran, therefore, with the land.

And the obligation on the plaintiffs has the more equity, inasmuch as they took title chargeable with knowledge of the covenant. The conveyance of January, 1836, from Noadiah to Freeman and Bartlett Nye, is made subject to reservation, etc., mentioned in the agreement of 1835, and the grantees assume one half of the repairs as contemplated in that contract. This conveyance included (it seems by the map) a part of the old ditch and the old mills of Noadiah. And though the agreement therein, that the grantees ■assumed one-half the repairs, of itself, might be only personal, yet it gives abundant evidence of the knowledge by the grantees of the existence of the contract of 1835 and of its terms. Phœnix Ins. Co. v. Cont. Ins. Co., 87 N. Y., 400; Whitney v. Union R. W. Co., 11 Gray, 364.

We think the plaintiffs show no ground to recover against defendants. The judgment is affirmed, with costs.