author: Harden, J.:

text:
    ABNER C. MATTOON, Respondent, v. GEOROE L. MUNROE and DAVID H. JUDSON, Appellants.

      Permission from the canal hoard, to construct dry-docks on Slate lands-^-may he revoked at any time — lease—when cm actual ouster required to terminate it — to constitute a defense, an eviction must not have heen caused hy the collusion of the lessee.

    August 30, 1865, the board oí Canal Commissioners granted to the plaintiff permission to construct dry-docks on the west side of a lock on the Oswego canal, and to use certain surplus water for filling them, ‘ ‘ reserving the power to revoke or annul the said permission, either wholly or in part, and to close such dock permanently or temporarily, for any cause whatever.”
    The plaintiff, in pursuance of such permission, constructed two dry-docks, at an expense of from $5,000 to $6,000. Thereafter, and on July 15, 1871, he leased to the defendants “ the two dry-docks, . . . being the same docks built by A. C. Mattoon, on lands belonging to the State of New York, for canal purposes,” for the term of five years, the lease providing that “in case the grant or sale to the said Mattoon shall be legally rescinded by the proper authorities of the State, during the term of this lease, the said Munroe and Judson shall pay for such time only as they shall occupy said premises, up to the time they shall be legally dispossessed, and this lease shall be void, without recourse by either party, after such legal dispossession.”
    The lease further provided that the said Munroe and Judson “do hereby release, discharge, and make over to the said A. O. Mattoon. his heirs and assigns, all right, title, and interest which they now have, or may have, or at any time claim to have, in or to said premises during the life of this lease, neither party waiving any rights thereafter.”
    Subsequently, and on February 18, 1876, the canal- board, at the solicitation and request of the said Munroe and Judson, revoked and annulled the grant or permit given to Mattoon, and thereafter, and on May 23, 1876, granted a new permit to them to use and occupy the said docks constructed by the plaintiff. In an action by the latter to recover the rent falling clue under the lease, for the period between February 15, 1876, and July 15, 1876, the defendants claimed that the lease was terminated by the revocation of the permit granted to tile plaintiff, and that they were thereby relieved from all further liability for rent thereunder.

      Held, that the canal board were authorized to revoke and annul the permit granted to the plaintiff at any time, and that the court could not inquire into the motives which actuated them in so doing.

      That to relieve the defendants from liability under the lease, they must show that they were actually and in good faith dispossessed or evicted from the premises.
    That as the evidence failed to show an actual dispossession, and as the revocation of the plaintiffs permit was procured by collusion between the State officers and the defendants, no defense to the action was established.
    That the plaintiff was entitled to recover.
    Appeal from- a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was brought to recover rent alleged to be due from the defendants to the plaintiff, upon a lease of two dry-docks. The lease was dated July 15, 1871, and was for the term of five years.
    The demised premises were therein described as “ the two dry-docks situate on the Oswego canal, in the city and county aforesaid (of Oswego), opposite to and wrest from the lower lock, being the same docks built by said A. 0. Mattoon on lands belonging to the State of New York, for canal purposes, under and by virtue of a grant from the board of canal commissioners of the State of New York to the said Mattoon.”
    The lease contained the following provisions: “ In case the grant or sale to the said Mattoon shall be legally resci/nded by the proper authorities of the State during the term of'this lease, the said Monroe and Judson shall pay for such time only as they shall occupy said premises up to the time they shall be legally dispossessed, and this lease shall be void, without recourse by either party, after such legal dispossession.”
    “ It is further agreed by and between the said parties to this agreement, their heirs and assigns, that for and in consideration of said rental and as a ‘ further consideration, that said Monroe and Judson, for themselves, their heirs and assigns, do hereby release, discharge and make over to the said A. C. Mattoon, his heirs and assigns, all right, title and interest which they now have or may have, or at any time claim to have in or to said premises during the life of this lease, neither party waiving any rights thereafter,”
    The defendants entered under the lease, and occupied until the 28th day of February, 1876, when they left the premises, paying . the rent up to the 1st day of February, 1876.

      On the 30th of August, 1865, the plaintiff applied to the board of canal commissioners, for permission to build a dry-dock at the place designated in the lease, “ and to use the surplus water for filling the same from the level between locks No. 1 and No. 2.”
    On the same day, the board, by resolution, granted to the plaintiff the privilege of constructing such dry-dock, with a reservation in these words:
    “ The canal commissioners reserve the power to revoke and annul this permission, either wholly or in part, to close such dock permanently or temporarily, for any cause whatever, and to cause the persons owning or using the same to replace any portion of the canal banks which may have been removed, and otherwise put the banks and canal in the'same condition as if no dock had been made, without expense to the State.”
    On the 18th day of February, 1876, the board of Canal Commissioners adopted a resolution whereby, after reciting the grant of a permit to the plaintiff to build a dry-dock, as aforesaid, and that it was the opinion of the board that the interests of the State required'that said grant be rescinded, it was
    “ Resolved, that the aforesaid grant or permit to A. C. Mattoon, to construct the aforesaid dry-dock in the city of Oswego, is hereby abrogated, annulled and permanently revoked.”
    The clerk of the board sent to the defendants by mail a copy of this resolution, which was received by them on the 25th of February, 1876. On the 3d day of March, 1876, the defendants caused a copy of said resolution of February 18th to be served on the plaintiff, with a notice that the same had been adopted by the board, and served upon them, and that they were advised that such action of the Board worked a rescission of the grant by the State to the plaintiff and a dispossession of the defendants, and that they had vacated and abandoned the premises, and claimed that the lease was from thenceforth void.
    On the 9th of May, 1876, the defendants applied to the board of canal commissioners, for permission to occupy the dry-dock in question, offering to pay therefor annually the sum of six hundred and five dollars. By a resolution of the board, adopted May 23, 1876, such permission was granted to the defendants upon the tenns offered by them, subject to revocation at any time by the canal commissioners. Under this resolution, the defendants again entered into possession of the premises, and occupied as tenants of the State.
    There was evidence tending to show that the defendants induced the State officers to recall the permit given to the plaintiff, with a mew of getting the permit at a less rate of rental. The referee found that the plaintiff, who was interested in and the owner of lands adjacent to those upon which the dry-docks stood, expended from $5,000 to $6,000 in constructing the dry-docks upon the lands of the State. Before the permit was recalled the defendants applied to the Canal Commissioners in charge to interfere with and recall it. On December 13,1875, the defendants wrote to the commissioners, stating that the plaintiff “ has a mere license, revokable by the board of Canal Commissioners at any time.” On February 7,1876, Judson, one of the tenants, wrote another letter to the Canal Commissioners, and said: “Did you bring up the matter of our dock ? Of course this thing is all in your own hands, and whatever you recommend will be carried out.”
    Before the resolution of May, 1876, was adopted, the plaintiff, on the 8th of May, 1876, offered to give the State $50 more than any other person for the continuance of the permit to occupy the dry-docks, but the offer was declined.

      Albertus Perry, for the appellants.

      John O. Ch/urcMIl, for the respondent.
   Harden, J.:

It must be assumed that the lands upon which the plaintiff constructed dry-docks belonged to, and were the lands of the State, held for the purposes of the operation of the canals. (See permit to plaintiff, in resolution of August 30,1865.) Such is the express declaration in the lease of 1871$ executed- between the parties. That lease declares the dock leased then to be situated upon the lands of the State.

This language is used, viz.: “ Being the same docks built by said A. O. Mattoon, on lands belonging to the State of New York for canal purposes, under and by virtue of a grant from the board of Canal Commissioners of the State of New York to said Mattoon.” This stipulation is an admission conclusive upon the parties to this action, being found in the lease between them.

The same admission, in effect, is found in the resolution of August 30, 1865, passed by the board of Canal Commissioners. That resolution gave the plaintiff the privilege of constructing a dry-dock on the west side of lock No. 1, Oswego canal, in the city of Oswego. The resolution provided'that the dock should be constructed under the directions of the Canal Commissioner, in charge of an engineer designated by him. That resolution expressly reserved to the Canal Commissioners “the power to revoke and annul the permission, either wholly or in part, to close such dock permanently or temporarily, for any cause whatever;” and it declared that an acceptance of the privilege granted to the plaintiff “ shall be deemed a covenant on the part of said Mattoon or his successors for the performance of all conditions herein contained.”

Under this language, it is quite clear that the plaintiff cannot question the power of the Canal Commissioners to revoke and annul the permission” wholly, unless some restraint has been placed upon the Commissioners by statute. The whole policy of the State in respect to the lands and waters of its canals has been to keep the title and use and right of use thereof exclusively in the State.

That policy has been evidenced by the action of the people, the Legislature, the State officers, and the courts. (See Constitution, section 6, of article 7; Burbank v. Fay, 5 Lans., 397.) Nor do we find anything in the act of 1865; chapter 727, or of 1866, chapter 657, which in terms or in spirit interferes with the right of the commissioners to exercise the power of protecting and occupying the property of the State acquired for the use of the Oswego canal. The statute of 1866, chapter 657, in terms authorizes and requires the commissioners to remove or cause to be removed certain specified obstructions and encroachments thereon, whether in the shape of buildings, fences or other structures, except dry-docks authorized by the Canal Commissioners or manufacturing mills or warehouses doing business upon the canal; “that said lands may be kept in tbe possession of tbe State for tbe purposes of canal navigation.”

Jf would be difficult to see how a building erected by an express permission upon lands by the party to whom they “ belong ” could be held to be an " moroadlvniemb'” in the sense in which that term is used in the act of 1866. We conclude, therefore, that the Commissioners, in virtue of the reservation in the resolution or permit of August 30, 1865, had the power to revoke the privilege given to the plaintiff; and secondly, that they were not required ” by the act of 1866 to cause the dry-dock to be removed in order to accomplish the declared object of the act of 1866, to wit: “ so that said lands may be kept in the possession of the State for the purposes of canal navigation.”

Having reached the conclusion that the board of Canal Commissioners had the power to revoke and annul the permit which was given to the plaintiff, we are not at liberty to inquire into the motives which led them to exercise such power, and to sustain or defeat them action, as we shall conclude, upon speculation or evidence submitted in this case, that such motives were commendable or otherwise. (Burbank v. Fay, 5 Lans., Op. of Johnson, J.; S. C., affirmed, 65 N. Y., 57.)

We must, therefore, consider the case further, upon the assumption that the resolution of the board of Canal Commissioners of February 18,1876, revoked as between the State and the plaintiff the privilege of constructing dry-docks upon the lands belonging to the State.

The terms of the resolution of February 18, 1876, follow a preamble reciting the grant of the privilege of August, 1865, and also reciting the fact that the plaintiff, under the permit of August 30, 1865, constructed such dry-dock, and that it had been in use to the date of the resolution of February, 1876. That resolution declared that the grant or permit to the plaintiff to “ construct the aforesaid dry dock, in the city of Oswego, is hereby abrogated, annulled and permanently revoked.” It did not in terms affect the structure, nor in terms declare that it should no longer remain upon the lands belonging to the State. Nor did it require the plaintiff to vacate the lands upon which the dry-dock was constructed.

The referee has found that the plaintiff constructed the dry-dock by an expenditure of $5,000 to $6,000. There is no finding that it interfered with a proper use of the canals, or that it was for the interest of the State that it should be removed; nor does the evidence in the case authorize us to draw such conclusions therefrom. But, on the contrary, the action of the Canal Commissioners in passing a resolution, May 23,1876, to the effect that the defendants have a permit to use and occupy the dry-dock “ formerly occupied by A. O. Mattoon, together with its appurtenances,” clearly indicates that the removal of the dry-dock was not needful or desirable. But it is said in behalf of the defendants, that the liability to pay rent, under the lease, to the plaintiff, closed tue moment the resolution of February 18,1876, was adopted, and notice thereof given to the defendants, and they offered to surrender up the possession of the premises.

To properly consider the argument addressed to us in behalf of the defendants in that regard, we must turn to the terms of the lease, in connection with the facts and circumstances already alluded to. We find by the lease between the parties that the defendants became the tenants of the plaintiff, for the term of five years, from the 15th day of July, 1871, and that they agreed to hire and pay for “ the two dry-docks situate on the Oswego canal, in the city and county aforesaid, opposite to and next from the lower dock, being the same docks built by said A. C. Mattoon, on lands belonging to the State of New York, for canal purposes.”

This language, doubtless, carried all the right to the use of the lands which the plaintiff had derived from the State; and it also carried the right to the use of the dry-docks, which had cost the plaintiff some $6,000 to construct, and in which, it must be assumed, he had a beneficial interest, notwithstanding the revocation of the permit to construct them upon the lands belonging to the State.

It was also stipulated in the lease between the parties that “all right, title, and interest which” they had at the date of the lease, “ or may have, or at any time claim to have, in or to said premises during the life of this lease,” were assigned to the plaintiff. Confessedly this language is sufficiently broad, to carry to the plaintiff any interest or title which the defendants held or acquired in and to the premises to the plaintiff, during the “life of this lease.” Presumably the “ life of the lease ” was commensurate with the term of five years named therein — to wit: from July 15, 1871, to July 15, 1876, in the absence of any other controlling provisions of. the lease.

We turn now to see if any event had happened, which, by the terms of the lease, made an entire determination of “ the life of the lease.” It was stipulated in it, that, “ in case this grant or sale to the said Mattoon (referring to the permit from the State) shall be legally rescinded by the proper authorities of the State during the terms of this lease, the said Munroe and Judson shall pay for such time only as they occupy sand premises up to the time they shall be legally dispossessed, and this lease shall be void without recourse to either party, after such legal dispossession.” Here we find an express covenant to pay rent “ up to the time they shall be IcgaZty dispossessed.” -

Secondly, it is declared “ the lease shall Toe void without recourse to either party after such “ legal dispossession.”

We are inclined to think that the words used in the former clause quoted, in respect to the assignment of any title or interest acquired in said lands during the “ life of the lease,” must be held to carry to the plaintiff all rights acquired by the defendants, until, and up to the period of time when it may be said the defendants were “ legally dispossessed,” and that the lease was not “ void ” until such “ legal dispossession.”

The important inquiry then comes to us, and we must determine whether the evidence discloses that' the defendants were “ legally dispossessed ” or had such legad dispossession taken place. The definition given of the word “dispossessed” by Mr. Webster, in his Unabridged Dictionary, is, viz.: “ deprimed of possession or occupancy,” and the same author defines “ dispossession,” viz.: “ the act of putting out of possession.”

In the ease presented by the evidence or finding of the learned referee, we find no act ousting or turning out of possession the defendants, or turning them out of the occupancy of the premises— nor of the dry-docks themselves, which may be said, to be part of the thing or. subject-matter of the demise.

Under all the circumstances disclosed as surrounding the parties at the time the lease was entered into, 15th of July, 1871, we think it just and proper to assume that they contemplated, by the language used, that the rent should cease when and only when there was an actual ouster, an enforced deprivation of the occupancy, the actual possession of the premises, as well as the dry-docks. Besides, the use of the word legally seems in its connection to carry the idea that the parties stipulated for an event which should be accompanied with legal proceedings, or such legal proceedings as are resorted to, to obtain legal possession of demised yrenvises.

But, if we were to assume that the language employed by the parties in respect to paying rent, until “ legally dispossessed,” is to be construed as contemplating a cessation of rent, when an eviction took place, we could not, in the absence of a finding of fact that in good faith the defendants yielded to a paramount title (inasmuch as the case shows the contrary), and that there was a “substantial and effectual deprivation of the beneficial enjoyment of the subjects of the demise, hold that the defendants were relieved from their covenant to pay rent. (Moffat v. Strong, 9 Bosw., 57; Lounsbery v. Snyder, 31 N. Y., 516 ; Cowdry r. Coit, 44 Id., 386.)

The burden was upon the defendants to show that they acted in good faith, and without collusion with the State officers. (Morse v. Goddard, 13 Met., 177; Moffat v. Strong, 9 How., 64.) There was no act on the part of the plaintiff contributing to work a dispossession or an eviction, and the case is not brought within the principle laid down in Dyett v. Pendleton (8 Cowen, 728), and approved in Edgerton v. Page (20 N. Y., 283). In the case of the Home Life Ins. Co. v. Sherman (46 N. Y., 370), there was a surrender after a recovery of judgment, and that case is therefore distinguishable from the one before us.

Here the tenants induced the action of the State officers, and co-operated with them in the scheme to revoke the permit to the plaintiff, and to re-permit the defendants as to the premises, apparently with a view to escape payment for the use of the structures placed thereon by the plaintiff at a large expense, and which the defendants had stipulated to take and have the use and occupation of until an actual legal dispossession, and under a peculiar lease, with provisions, we most assume, especially adjusted to the exceptional circumstances surrounding tbe thing, demised; and they ought to be held to tbe terms of tbeir lease until tbe happening of tbe exact events which were to render it void. *

We do not think they established that such events had transpired without any had faith on them part. In a sense they were the agents of the plaintiff, and it is not too much to require of them entire good faith before relieving them of the exact and full terms of their sealed lease, given to the plaintiff for the payment of rent of the dry-docks upon lands of the State.

If the views already expressed are approved and correct, we are of the opinion that no error was committed by -the learned referee upon the trial, calling for an interference with his report, and the judgment entered thereon, and the judgment should he affirmed.

Talcott, P. J., concurred; Smith, J., not sitting.

Judgment affirmed.


source: Caselaw Access Project

author: Hardin, J.:

license: Public Domain

text:
    CATHARINE DACEY, Respondent, v. THE AGRICULTURAL INSURANCE COMPANY, OF WATERTOWN, N. Y., Appellant.

      Application fof a policy of- insurance — what does not amount to'an answer of a question in — when the applicant's title may he said to he by deed — when an answer as to the value of the land is deemed an expression of an opinion — when the company is estopped from setting up a breach of warranty — when, a policy is amoided by the giving of a mortgage thereon — damages for the loss of any article cannot exceed the amount for which it was specifically insured.

    The plaintiff applied for a policy of insurance against fire, upon certain buildings and certain articles óf personal property therein. The buildings were situated upon land conveyed, by deed, to her husband, after her marriage, and which he had devised to her by his will. The application contained the following question, viz.: “What is your title to or interest in tbe property ?” An agent of the company, who filled in the application, wrote opposite to this the word ‘ ‘ Deed. ” The policy provided that all statements contained in the application should be deemed warrantees. Upon the trial of this action, brought to recover upon the policy, the company claimed that the answer was false, and that the policy was thereby avoided.

      Held, that there was no breach of warranty, because—
    (1.) The word “ deed ” was not an answer to the question. (3.) That as the plaintiff had an inchoate right of dower in the premises during the life of her husband, which became perfected by his death, and as such interest, and all her husband’s interest, were acquired by deed, it might be said, in a general sense, that the plaintifE’s title or interest was by “deed.”
    The application stated that the insurance on a dwelling-house and wood-house was to be $400, and that it was worth $600; that the insurance on a barn was to be $350, and that it was worth $400. The application contained the following question: “ What is the value of the land and building ?” Opposite to it was written “ $3,000.” The agent who filled in the application certified that he liad examined the risk, and recommended its acceptance. Upon the trial it was shown that the dwelling-house and barn were of the value stated, but that the building and land were worth but $1,500 at the time the policy was issued.

      Held, that the policy was not thereby avoided, and that the statement of the assured as to the value of the land was to be taken as a mere statement of opinion, an error in which could not affect the company, as it was the building, not the land, which was to be insured.
    That, in any event, the company was estopped from setting up the forfeiture, as its agent was present at the time, and examined the premises, and it was to be presumed that he had as much knowledge as to the value of the land as had the plaintiff.
    After the delivery of the policy, the plaintiff, without the written consent of the company, gave a chattel mortgage upon four cows,'which were covered by it. The policy provided that “if the said property shall be sold or conveyed, or if the interest of the parties therein be changed in any manner, whether by act of the parties or by operation of law, or if the property shall become encumbered by mortgage, judgment, or otherwise, . . . . then and in every such case the policy shall be null and void until the written consent of the company at the home office is obtained.” Held, that as to the cows, the policy was avoided by the mortgage given upon them.
    Where different articles of property are separately described in a policy, and insured for specific sums, the damages allowed for the destruction of ahy article cannot exceed the amount for which it was insured.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    August 16, 1873, the defendant issued a policy of insurance to the plaintiff by which it insured her against loss or damage by fire or lightning, in the sum of two thousand dollars, for the term of three years, as follows :
    $400 on Dwelling-house and Wood-house if attached.
    $250 “ Household Furniture therein.

      $150 “ Provisions and.'Wearing Apparel therein.
    $100 “ Butter and Cheese in House and Milk House.
    $250 “ Barn No. 1, and Stable.
    $300 “ Produce therein.

      *1u ( Farming Utensils in said Bams. ® { Carriages, Sleighs, and Harnesses therein.
    <8¡4KO “ i Horses, not to exceed $--on each Horse. ^ } Cows,'not to exceed $-• on each Cow.
    $2,000
    Prior to issuing the policy the plaintiff made a written application for insurance, in which she stated that her title to or interest in the property was by deed, and that the value of the land and buildings was $3,000, which application was referred to in the policy as forming a part thereof.
    On April 19, 1875, the plaintiff executed and delivered to Catharine Murphy a chattel mortgage upon a horse and four cows, being part of those described in the policy, to secure the payment of $105, in one year, with interest. No consent of the defendant was ever obtained to the giving of this mortgage.
    This action was brought upon the policy of insurance, and was tried before a referee, who found that the policy was issued by the defendant on the written application of the plaintiff, which among other things represented that the land and buildings mentioned in said application were of the value of $3,000.
    That at the time the said application was made, the lands and buildings therein described were not worth more than $1,500.
    That the value of the personal property covered by the said policy of insurance belonging to the plaintiff and destroyed by fire, was $1,080.
    He also held and decided as matters of law:

      First. That all the material representations by the plaintiff contained in the said application were incorporated in the policy of insurance, and were warranties on the part of the plaintiff.

      Second. That the representation of the plaintiff as to the value of the premises on which the buildings stood was a material one, and was a warranty of value.

      TTwrd. That by reason of the breach of warranty of value, the plaintiff cannot recover the loss on the buildings covered by said policy.

      Fov/rth. That the plaintiff is entitled to recover of the defendant the value of the personal property belonging to her, which was covered by said policy, destroyed by fire, to wit . . $1,080 00
    And interest thereon from June 26, 1875, amounting to................'. 198 41
    $1,278 41

      A. 3. Semper, for the appellant.

      S. Oronvwell, for the respondent.
   Hardin, J.:

The referee found the policy invalid as to the buildings named therein. The amount named in the policy on buildings, was $400 on the house, and $250 on the bam, and it contained separate specifications of the amount insured upon the different classes of personal property.1 The learned counsel for the appellant now insists that there having been a breach of the warranty, as to title and as to the value of the property, the plaintiff was not entitled to recover in this action, either for the loss on real or personal property, and that the finding of the referee, that the plaintiff was entitled to recover of the defendant the value of the personal property belonging to her, covered by the policy destroyed by fire, was for this reason error. He undertakes to support this position by asserting that the case of Merrill v. this same defendant, lately decided at a circuit held by me, affirmed in tins department, 10 Hun, 428, and in the Court of Appeals, did not involve a breach of a warranty, and therefore does not apply here.

"We need not pass upon the effect of the Merrill case upon the findings presented to us by the referee, because we are not satisfied with the conclusion that the policy before us was invalid as to the buildings. That conclusion was asked for upon two grounds upon the trial below, and they are repeated here, viz.: 1. That there was an untrue statement as to title, and (2) as to the value of the land and buildings. As to the title: the application, which was filled out by one T. C. Waite, an agent of the defendant’s company, contained a question, viz.: What is your title to or interest in the property? Written after it by the agent was the word “Deed.” We do not think the question was answered. Possibly it would have been answered if the agent had written in the blank left to fill in an answer to the question the words “ by deedf but such were not found in the answer. The question as framed seems to ask for the quantity of the plaintiff’s title to, or interest in the premises.

Again: she was the widow of one Timothy Dacey, and had been such for about a year, and she took under his will as devisee, all the interest or title which he had at his death. His will was duly published and admitted- to probate. It appeared that in his lifetime he received a deed of the premises, and was in possession of the mat the time of his death, and his wife, the plaintiff, was residing with him. ■ She therefore, in his life, had a dower interest i/nohoate during his life and consummate by his death, and that interest certainly came to her by or through a deed to her husband. Besides, the lands were conveyed to her husband by deed, and in a general sense her title or interest was “ iy deedf that is, through a deed. We think a forfeiture cannot be made out, by reason of the filling the blank, after the question with the word “ deed.” Forfeitures are not favored. Especially should this be so held when the effect of a forfeiture, if sustained, would be to give one party the money of another for a void yyarper, to take the premium and give naught to the party paying the same in return. Parties ought' not to be held to have intended to pay their money and the others to receive and hold the same for a nudym ypaelmm, unless such intent is clearly established. For the reasons stated, as well as those stated by Folger, J., in Merrill v. this defendant, 73 N. Y., 452, we are of the opinion that there was no breach of warranty shown in respect to the title or interest which the plaintiff had in the premises. .

We now come to the -point made as to the valuation. The application states dwelling-house and wood-house insured, $400, and the valuation thereof at $600 ; the barn, insured, $250; valuation of it, $400. There was abundant evidence to show they were worth more than specifically stated. But it is said that near the close of the application the following question and answer were inserted, viz.: “ What is the value of the land and buildings ?” and written after are the figures, viz.: $3,000.” This application was dated August 16, 18Y3, and was written or filled up by T. C. Waite, solicitor, and he subjoined a statement that he had “carefully” examined the above risk July 24, and that he had inspected the chimneys and the pipes where they pass through partitions and flues and enter the chimneys, and that they are all safe,” and so he, as agent of defendant, certified to the company. He testified that when he called upon the plaintiff, to insure, he was an agent of the defendant, and that he wrote the answer to the questions in the application, and that he signed her name to it, at her request, and forwarded the papers to the company. He learned her husband was dead, and, therefore, that she ajiplied to him for the policy. It appears she could not read or write. The referee has found the value of the buildings and land, which consisted of forty-five acres at the time of the insurance, was $1,500, and the defendant relieved by the answer written to the question as to what was the value of the buildings and lands.

The policy contained the following conditions: “ All applications for insurance must be made in writing, prepared by an authorized agent of the company, and signed by the applicant or by his authority, cmd all statements contained in the application will be -taken and deemed to be warranties on the part of the assured.” We think the clause of the policy must be construed with reference to the application that contained a statement, viz.: “ Dwelling-house and wood-house, if attached, amount insured, $400; valuation, $600. Barn No. 1 and stable, amount insured, $250; valuation, $400.”

We have seen that this is entirely a correct statement, and of course the object of ascertaining the value of the buildings was attained by the information given in this answer. The buildings were to be insured — the lands were not. It is difficult to see any object in this particular case of applying for information as to the value of the land, and yet, as the question was addressed to the plaintiff, she gave her opinion of the value of the land and buildings. Is a mistake by her in the opinion fatal ? Before such a conclusion can be arrived at, it must clearly appeal’, that after correct information had been asked and stated as to the value of the buildings, the opinion expressed by her as to the value of the lands was a “ statement ” or warranty within the terms of the policy. (Fitch v. Am. P. Ins. Co., 59 N. Y., 572.) If the inquiry had been for the purpose of ascertaining a valuation of the thing insured, it would be easy to understand that within the sense of the policy, the answer embraced a statement ” or warranty. But not so here — the opinion of the assured as to the value of the land does not seem to be one of the statements ” which should be deemed embraced in the spirit and intent of the policy. But be that as it may, the answer as to the value of the land.could not have been an inducement to the issuing of the policy on the buildings put forth for any fraudulent purpose. (Simar v. Canaday, 53 N.Y., 298.)

By the circumstances already adverted to, it appears the agent of the company had examined the premises, and he therefore fully knew the essential facts to enable him tó judge of the value of the lands. He being the agent of the company, possessed for the company a knowledge of the value of the real estate in addition to the statement that the buildings were worth $600, and $400, as stated in the application. He must be deemed to have such knowledge for the company, having derived it in the due course of the business of the company. (Hawley v. Keeler, 53 N. Y., 114.) The policy, therefore, was issued by the company, with full knowledge of the facts, and the company may fairly be considered present at the widow’s house, when it wrote the policy in question. Suppose it had been in the house when the intelligent and astute board of directors and officers wrote and issued its policy, and had taken from her such a representation or affirmation of her views of the value of the property, buildings and lands, and then issued its policy, and taken her money, would it- not be reasonable to suppose that they intended to waive any warranties, if she had made any, as to the value of the land ? Or would it be more reasonable to suppose that they took her premium money, and delivered her a policy absolutely void at its inception, and thus intended to practice and consummate a fraud upon her by placing in its eoifers the money so received for a policy void at the time of its delivery. ( Van Schoick v. Niagara Ins. Co., 68 N. Y., 434; Flynn v. Fquitable Life Ass., 9 Weekly Dig., 324; Landers v. Watertown Ins. Co., 19 Hun, 179, Op. of Boardman, J.)

Or would it be more reasonable to say that the company was estopped from setting up the answer made by her as to the value of the lands, to defeat the performance of a contract which they entered into presumably with as much, at least, knowledge as she possessed upon the subject of the value of lands owned and occupied by her in connection with the buildings, whose value she had in her statement correctly given? (Gates v. Penn Fire Ins. Co., 10 Hun, 489 ; Chase v. People's Ins. Co., 14 Id., 456 ; Broadhead v. Lycoming Fire Ins. Co., Id., 455.)

There was evidence in the case which would justify the conclusion that the company knew of the value of the lands, and either waived the condition, or became estopped from setting up any such forfeiture. (Landers v. Niagara Ins. Co., 19 Hun, 178; Richmond v. Niagara Ins. Co., 9 Weekly Dig., 394, op. by Andrews, J.)

. We therefore ought not to assume that the policy was void at its delivery as to- the buildings, and we must proceed to consider whether the recovery was proper in respect to the personal property covered by the policy, without determining whether this ease could be distinguished from the Merill case, and whether that case is the law upon the subject of the right to recover for separate insurance in a policy, upon personal property, where the policy is void as to the buildings. We may say in passing, however, that the correspondence submitted in the argument before us of the attorney who had charge of the defense in the Merill case, and in this case before the referee, and who instituted the appeal, assumed that the principles laid down in the Court of Appeals in that case were decisive of this case, at least so far as to permit a recovery for the personal property, although it be assumed that the policy was inoperative as to the buildings. (Merill v. Agricultural Ins. Co., 73 N. Y., 452.)

Upon the 19th of April, 1875, the plaintiff executed a chattel mortgage to secure $105 to Catharine Murphy, upon four cows. Daniel Dacey also joined his mother in the mortgage. He says that the same four cows described in the mortgage were burned, and that they were specified in the proofs of loss; and “ that the plaintiff tries to recover for the same in.this case.” ‘The referee refused to find such fact when requested to. Such request was coupled with a request to find that the mortgage constituted an incumbrance upon said cows, and that plaintiff cannot recover for the loss of the cows.

Was this refusal error? We see by the evidence already alluded to that the cows were included in the mortgage. The policy contained a clause, viz., “ Or if the said property shall be sold or conveyed, or if the interest of the parties therein be changed in any manner, whether by act of the parties or by operation of law; or if the property shall become incumbered by mortgage, judgment, or otherwise, ’. . . then, and in every such case, and in either of said events, the policy shall be null and void, until the written consent of the company at the home office is obtained.” No written consent ‘was obtained. It has already been said by the Court of Appeals, at the instance of the defendant, that a change of interest which takes • place by the death of the insured avoids the policy.. (Sherwood v. Agricultural Ins. Co., 73 N. Y., 448 ; Sherwood v. Agricultural Ins. Co., 10 Hun, 593.) We refused, in Bailey v. Homestead Ins. Co. (16 Hun, 503), to hold a policy avoided by the recovery of a judgment against the assured, when the policy com tained a clause, that the company shall not be liable,.“if, without the consent of the company written on the policy, the property insured shall hereafter become incumbered in any way,” and the Court of Appeals sustained our judgment, in January, 1880. (See MS. op. of Andrews, J.) That decision was put upon the ground that the condition contemplates some act of the assured, and was not broken by the recovery of a judgment.

That case does not disturb the holding in Egan v. Mutual Ins. Co. of Albany (5 Denio, 328), which held a policy avoided by a judgment under a condition in a policy avoiding it, if the assured “ shall suffer any judgment or decree operating as a lien on said property, or any part thereof, to pass against him.” Under the condition we have quoted from the policy before us, we think it was intended to provide that if the property insured shall be sold ,or conveyed, or if the property shall become incumbered by mortgage or otherwise, the policy shall be void as to the property so sold, conveyed or incumbered by the act of the party. (Sherwood v. Agricultural Ins. Co., 73 N. Y., 447, and cases referred to supra, and Merrill v. same defendant, 73 N. Y., 466.) We therefore conclude that as the plaintiff had by mortgage sold or incumbered the four cows before the loss happened, and without the written consent of the company obtained, the policy, as to the four cows, was avoided, and the referee should so have found, and omitted the value of such cows from the assessment of damages by reason of the loss of the personal property. (Savage v. Howard Ins. Co., 52 N. Y., 502.) The referee allowed $228, and interest from June 26, 1875, and that should not have been found against the defendant.

There was insured $250 on household furniture, and the referee found $311, being an excess of $61 over the amount insured, and he also found an excess of $121 upon provisions and wearing apparel, and an excess of $5 upon farming utensils ; in the aggregate $187 upon the three items. We think the referee ought to have kept the damages within the stipulations of the policy as to the amounts placed upon the several classes of property. We must, therefore, hold that his assessment of damages exceeded the stipulations of the policy in regard to the several classes, to the amount of $187.

Upon the argument, counsel for both parties asked us to modify the judgment if we found any errors in regard to the items allowed.

We have concluded to allow the judgment to be modified if the plaintiff shall give the proper stipulation to strike therefrom $415, and interest thereon from the 26th day of June, 1875. If the plaintiff stipulates within twenty days to-strike out from the recovery $415 and interest from 26th of June, 1875, the judgment, as so modified, will be affirmed with costs; if such stipulation be not given, a new trial will be ■ ordered, with costs to abide the event.

Talcott, P. J., and Smith, J., concurred.

Ordered accordingly.


text:
    CHARLES WAGER and others, Appellants, v. ELIZA H. WAGER and others, Respondents.

      The supreme court has no jurisdiction of an action to construe a will, containing no trusts.

    The Supreme Court of this State has no jurisdiction to declare and adjudge the construction to be given to a will, duly admitted to probate in this State, which contains no trusts.
    - Appeal from a judgment dismissing the plaintiff’s complaint^ entered upon the trial of this action at a Special Term.
    The action was brought to procure the construction of the will of William Wager, deceased, which had been duly admitted to probate by the surrogate of Livingston county. No evidence was given upon the trial, the court dismissing the complaint, upon the pleadings, upon the ground that it had no jurisdiction over the action.

      J. G. Gooh/rmte, for the appellants.

      K A. Afash, for the respondents.
   Hardin, J.:

The plaintiffs were brothers and sisters of William Wager, the testator. The defendant, Eliza H. Wager, is the widow and executrix of the deceased, and the other defendants are heirs at law of the deceased, being children of the deceased brothers of the deceased testator. Susan E. Wager, a daughter of the testator, died on the 31st of January, 1876, three days before the testator’s death, which occurred February 3, 1876.

The will of the deceased, William Wager, was made on the 10th of December, 1875. It gave to his widow $4,000, “to have the use and 'control of the said sum of $4,000, during the time of her natural life,” and in case that was not sufficient to support and maintain her, that she was to have “ the privilege and right to use as much from time to time of the principal of the said $4,000, as she shall deem sufficient to support and make her comfortable.” The will then contained a provision, giving the remainder of the real and personal estate, and “ also whatever amount shall remain or be left by (my) said wife at her death, of said sum of $4,000,” to Susie E. Wager, the daughter.

Then followed in the said will a provision in these words, viz. :

“ But in case my daughter Susie E. Wager shall die leaving no issue before the death of my said wife then, in that case, all the property, both real and personal, that shall be left by my daughter at her death, which shall belong to me at my death, I give, together with what shall remain from the above mentioned $4,000, devise and bequeath to my beloved wife, Eliza H. Wager, to her use, her heirs and assigns forever.”

(1) This provision carried to Eliza, the widow, whatever property belonged to the deceased at his death, which was left by the daughter at her death, which was owned by William Wager at his death.

(2) It also carried to Eliza, the widow, “what gjmll remain from the above mentioned $4,000, to wit, the whole thereof, principal and income, to Eliza H. Wager, to her use, her heirs, and assigns forever.” (Roseboom v. Roseboom, 15 Hun, 315; affirmed.)

(3) It did not create a trust in respect to the $4,000, as Susie died before the testator. We are not able to discover', from the terms of the will of William Wager, that any trust was created. (Bowers v. Smith, 10 Paige, 193.)

We must apply the rule laid down in Chipman v. Montgomery, 63 N. Y., 221. It was there held : “ The jurisdiction of courts of equity, to pass upon the interpretation of a will is incidental to that over trusts. They do not take jurisdiction of actions brought solely for that purpose, or where legal rights only are in controversy.” The plaintiffs, as heirs at law, or next of kin of William Wager, do not present a case, calling for the interposition of a court of equity. They furnish no adequate reason or ground to justify them in passing by the surrogate’s court, having ample jurisdiction in the premises. (Adams v. Adams, 22 Vt., 50.)

We think the Special Term was correct in concluding that this court had no jurisdiction to declare and adjudge the construction of the will of “William Wager, deceased, upon the application of these plaintiffs, and in dismissing the complaint of some of his heirs at law, who were the plaintiffs in this action. As Learned, P. J., said, in Marlett v. Marlett (14 Hun, 316), “there should then have been no judgment construing the will; hut the complaint should have been simply dismissed.” We are referred to Smith v. Van Ostrand (64 N. Y., 278). We have examined it, and find that the limitation of the bequest was during the life of the widow, and the case is distinguishable from the one before us, and in our opinion it does not aid the plaintiffs.

The judgment should he affirmed, with costs.

Talcott, P. J., and Smith, J., concurred.

Judgment affirmed, with costs.


text:
    CATHARINE E. CLARK, Respondent, v. SOCIETY OF SAINT JAMES’ CHURCH, CARTHAGE, Appellants.

      Witness — what evidence is admissible to discredit the testimony of — what questions ture p'oper tobe put on cross-examination — when an expression of an opinion by a witness contrary to his testimony, tends to discredit it.

    This action was brought by the plaintiff, who claimed to be the widow of one William Clark, to recover her dower in certain lands devised by the said Clark to the defendant. The latter denied that the plaintiff was ever married to Clark. Upon the trial the plaintiff gave evidence tending to show that on the 12th of October, 1870, she was married to Clark, at liis house, near Carthage, Lewis county, by a Catholic priest, in the presence of Bridget Foley (her sister), and Catharine Purcell. Two witnesses for the plaintiff, who testified that the marriage ceremony was performed by the priest on the day stated, said that he remained at Clark’s house on that occasion about two weeks. The priest died before the trial of this action.
    The defendant offered in evidence a register of baptisms kept by the priest at his church in Schenectady, containing entries in his handwriting showing baptisms performed by him. in that, city, on the 1st, 6th, 9th, 10th, 16th, and 23d of October, 1S70.

      Held, that the entries in the book were admissible to discredit the testimony of the witnesses to the effect that the ceremony took place on October 12th, and that the priest then remained in Lewis county for two weeks.

      Held, further, that it was also admissible to show that Bridget Foley, after the date of the alleged marriage, executed a receipt for her sister, and signed it “E. E. Foley, by sister B. A. Foley.”

      Held, further, that it was proper, on the cross-examination of Bridget, to ask her whether, after the date of the alleged marriage, she had not told one Mathews that she had advised her sister to come away from Clark, and not work there any longer, and that she would make her do so.
    A witness for the plaintiff testified to a conversation with Clark, in which the latter admitted that he was married to the plaintiff. Held, that it was proper, on cross-examination, to ask him if he had not subsequently stated that he did not believe that the plaintiff was married to Clark.
    Appeal from a judgment, in favor of' tbe. plaintiff, entered upon tbe verdict of a jury, and also from an order denying a motion for a new trial, made by tbe defendant upon tbe minutes of tbe justice' before whom tbe action was tried.
    Tbe action was brought by tbe plaintiff, who claimed to be the widow of William Clark, deceased, to recover her dower in four hundred and nineteen acres of land, whereof be died siezed. The plaintiff alleged that she was married to tbe deceased on October 12, 1870, and that be died on tbe 1st day of June, 1874 Tbe answer of tbe defendant alleged that tbe plaintiff was never married to William Clark, and that she was not bis widow; that tbe lands mentioned in tbe complaint were devised to tbe defendant by tbe said Clark, and that bis will bad been duly admitted to probate, and that tbe defendant was tbe owner of tbe lands in fee.
    Tbe jury found a special verdict, viz.:
    “ Tbe plaintiff was married to William Clark, deceased, on tbe 12th day of October, 1$70, at tbe bouse' of tbe said William Clark, in Crogban, Lewis county, in tbe presence of Bridget Foley and Catharine Purcell, by Reverend Michael Clark, a priest of the Roman Catholic Church.”
    Tbe mesne profits were subsequently found, and assessed by a referee, and judgment entered for tbe recovery of dower, and tbe mesne profits and costs.
    Tbe defendant’s motion for a new trial on tlie minutes was denied, and an exception taken. Upon a motion for a bill of particulars, au order was made requiring the plaintiff to state “ tbe time and place of her marriage to William Clark ; tbe day, month, and year when said marriage took place; tbe bouse, room or building in which it took place; how and in what pcvrüculaa' manner the said marriage contract was entered into between her and said Clark; what person performed said marriage, if any, and what person or, persons were present when said marriage was entered into and took place.”
    The order was obeyed, and such a bill of particulars furnished. This order was not appealed from.

      Dermis O’Brien and P. O. WilUams, for the appellant.

      StaPbucIe <& Sawyer, for the respondent.
   Hardin, J.:

We cannot properly review the order for a bill of particulars in this case, nor the discretion exercised by the Special Term in prescribing the terms thereof. The Special Term had power to make the order. (Tilton v. Beecher, 59 N. Y., 176.)

The plaintiff called witnesses who gave evidence tending to sustain the allegation that a marriage took place at the house of Clark, on the 12th day of October, 1870, between him and the plaintiff; and also witnesses giving admissions of the deceased tending to corroborate and sustain the averment of. marriage. ■

The defendant, to support its averment that no marriage ever was solemnized between the plaintiff and the deceased, produced very much evidence. 1. The deceased made and published his last will and testament on the 13th day of March, 1873, which was admitted to probate, with an unimportant codicil, and in it he devised the real estate described in the complaint to the defendant; and in the will he gave to the plaintiff, by the name of “ Catharine Foley,” a mortgage which he had received from one Collins. 2. Much evidence was given tending to show that the plaintiff, in all business transactions, used, and was known by the name of Catharine E. Foley, down to the time of the death of Clark, in June, 1874. 3. Many acts and admissions of the plaintiff were shown, between the 12th of October, 1870, and June, 1874, tending strongly to indicate that she was a single woman, and that no marriage had ever taken place between her and Clark.

Upon the conflicting evidence, the jury has found favorably to the plaintiff. It is insisted, on behalf of the defendant, that the verdict is against the weight of evidence, and should therefore be get aside. The power of the court to set aside the verdict of a jury, when against the clear weight and preponderance of the evidence, is undoubted. (Finch v. Parker, 49 N. Y., 1; National Life Insurance Co. v. Minch, 3 Hun, 354; Barrett v. Third Avenue R. R. Co., 45 N. Y., 628.) But as we find several errors occurring upon the trial which require us to reverse the judgment, and to order another trial before a jury, we do not consider it timely and. judicious to examine the great volume of evidence submitted to us, and express our conclusion upon the weight of evidence. We think it more appropriate that the case, under the circumstances, should be tried before another jury, without an intimation of our opinion upon the weight or preponderance of the evidence.

We do not think we can disregard errors committed upon the trial' upon the idea that the result was not affected by them, nor do we think this is a case where we can disregard such errors under or by application of the liberal rule enacted in section 1003 of the Code'of Civil Procedure. We proceed, therefore, to point out some of the errors which require us to grant a new trial.

(1) Two witnesses called by the plaintiff gave evidence tending to support the allegation that a ceremony of marriage between plaintiff and deceased was performed at the deceased’s house, October 12, 1870, in Lewis county, in the vicinity of Carthage, by Reverend Michael Clark, a Catholic priest, then residing in Schenectady, and having the pastorate of St. John’s Church in that city. They also testified that the priest, who died in 1872, remamed at the deceased’s house on that occasion about two uoeeTcs.

The defendant produced at the trial and offered in evidence the register of baptisms in that church, and proved it to be in the handwriting of the deceased clergyman. The entiles therein showed baptisms by him in his parish in that city, occurring on the 1st,- 6th, 9th, 10th, 16th and 23rd of October, 1870.

To the admission in evidence of entries made in the book, the plaintiff objected upon the sole ground that it was immaterial. No other ground of objection can be considered by us, than tbe one taken at the trial. (Tooley v. Bacon, 70 N. Y., 34.)

The entries, though not conclusive, tended to establish that the priest was not in Lewis county at the date of the alleged marriage.

"With that evidence before the jury, they might have doubted the evidence given by the witnesses, to the effect that on the occasion of his supposed presence at the marriage on the 12th of October, 1870, he remained there two weeks. We think the evidence was admissible. It was the entry of a deceased person in the course of the discharge of a professional duty, and therefore within the rule which permits such entries, after the death of the person charged with their performance. (Higham v. Ridgway, 10 East, 109 ; Nicholls v. Webb, 8 Wheat., 332; Leland v. Cameron, 31 N. Y., 115.) It was a species of secondary evidence of the. fact of the priest’s absence from Lewis county at the time of the alleged marriage. (Livingston v. Arnoux, 56 N. Y., 519.)

(2) The receipts of December 5, 1871, which were executed by plaintiff’s sister, and signed “ O. E. Eoley, by sister, B. A. Foley” —having been executed by Bridget more than twelve months after she testifies she saw her sister married to Clark — should have been admitted. They were acts inconsistent with her testimony, and, therefore, they should have been allowed to go to the jury, as evidence for their consideration upon the credibility of Bridget in connection with her explanation thereof.

(3) In her cross-examination, after her evidence in chief, of witnessing the marriage of her sister in October, 1870, Bridget was asked, viz.: “ Did you tell Mathews, at Widow Foley’s house, in the winter of 1871 and 1872, that you had advised your sister to come away from Clark’s, and not work there any longer, and that you would make her do so 2” It was objected to as immaterial, and the objection sustained; and the defendant took an exception.

The ruling was erroneous, as an answer thereto in the affirmative would have borne significantly against the evidence in respect of the marriage. It would have borne very flatly upon the issue as to whether the plaintiff was, at that time, the deceased’s wife or hired servant. The plaintiff in the trial was then seeking to establish she was the former, and the defendant to establish that she was only the latter, working and receiving pay from the deceased merely as such servant.

(4) The witness, John Linstruth, testified to a conversation with Clark, and to an admission therein to the effect that plaintiff was Clark’s wife.

Upon his cross-examination he was asked if he did not, in June, 1877, at Wilna, in the presence of another person, say that he did not believe plaintiff was married to Clark. This was objected to by plaintiff, and excluded by the court. His answer in the affirmative would have borne somewhat adversely to his testimony. It was a proper question in cross-examination, and ought to have been allowed.

In Schell v. Plumb (46 How. Pr., 22), Miller, J., after stating the general rule, that all inconsistent and irreconcilable statements made by a. witness, may be shown, says, that “it matters not whether it be a statement of fact or the expression of an opinion, if it be adverse to the story which he. has narrated.” If it is an opinion in direct conflict with his evidence it would clearly tend to impair the credit of the witness to some extent, and in many cases as much, perhaps, as if it were a factP (3 Dept. 1873.)

The errors which we have pointed out lead us to reverse the judgment and order.

Talcott, P. J., concurred.

Smith, J., concurred in result.

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


author: Smith, J.

text:
    THE WATERTOWN BANK & LOAN COMPANY, Respondent, v. WILLIAM W. DE ANGELIS, Individually, and as Administrator, etc., Impleaded, etc., Appellant.
   Order denying motion to set aside tlie Referee’s report affirmed, with ten dollars costs and disbursements.

Opinion by

Smith, J.


text:
    THE SAME, Respondent, v. THE SAME, Appellant.
   Order of Special Term directing judgment for plaintiff on the Referee’s report affirmed, with costs to neither party.


text:
    CHARLES E. GREENLY, Appellant, v. CHRISTOPHER H. CHASE, as Executor, and others, Respondents.
   Decree of Surrogate reversed on questions of fact, and it is directed that issues be made np to try the questions arising upon the application to prove the will, to be tried at the next Circuit Court to be held in Lewis county, costs of this appeal to abide the event.


text:
    WILLIAM ALLING, and others, as Executors, etc., Appellants, v. FREDERICK N. TOBEY, as Trustee, etc., Impleaded, etc., Respondent.
   Judgment reversed upon a question of fact, and a new trial ordered, costs to abide event.

Opinion by

Smith, J.


author: Talcott, P. J.

text:
    ELISHA L. BROCKWAY, Appellant, v. JOHN B. IRELAND, Respondent.
   Order denying a new trial affirmed.

Opinion by

Talcott, P. J.


text:
    DANIEL BEMUS, as Administrator, Appellant, v. GEORGE W. GIFFORD, and another, Respondents.
   Judgment affirmed, with costs.


author: Harden, J.

text:
    WILLIAM A. POUCHER, Respondent, v. JOHN L. BLANCHARD and another, Respondents.
   Judgment affirmed.

Opinion by

Harden, J.


text:
    THE PEOPLE ex rel. EVARTS and others, Appellants, v. THE CITY OF UTICA and others, Respondents.
   Order and judgment affirmed on opinion of Noxon, J., at Special Term.


author: Smith, J.;

text:
    SUSAN GILSON, Respondent, v. THE AMERICAN EXPRESS COMPANY, Appellant.
   Judgment and order affirmed.

Opinion by

Smith, J.;

.Hardin, J., not sitting.


text:
    FLORENCE M. GIBBS, Appellant, v. JESSE A. HATHAWAY, Respondent.

   Order affirmed, with ten dollars costs and disbursements.


text:
    LYMAN SOULE, Appellant, v. MARGARET IAGO, Impleaded, etc., Respondent.
   Order affirmed, with ten dollars costs and disbursements.


text:
    GEORGE C. ANDREWS, Respondent, v. PRENTICE D. CHEENEY, Impleaded, Appellant.
   Order and interlocutory judgment reversed, with costs of demurrer and of the appeal; and judgment ordered for the. (jefendant on said demurrer, with leave to plaintiff to withdraw the demurrer on payment of said costs, within twenty days.


text:
    JOHN COYNE, Assignee, Respondent, v. FREDERICK G. WEAVER, late Sheriff, etc., Appellant.
   Judgment and order affirmed.


text:
    LAUREN C. WOODRUFF, Respondent, v. THE ERIE RAILWAY COMPANY and others, Appellants.
   Motion to give cause a preference denied, without costs.


text:
    DENNIS McCARTHY v. HENRY WHALEN.
   Motion for leave to go to the Court of Appeals denied.


text:
    JOHN F. HOLMES and others, Survivors, etc., Appellants, v. HENRY E. RICHMOND, Sheriff, etc.
   Motion for re-argument denied, with ten dollars costs.


text:
    WILLIAM R. SEWARD and others, Respondents, v. BURRALL SPENCER and others, Impleaded, etc., Appellants.
   Motion denied, without costs.


text:
    THE SAME, Plaintiffs, Respondents, v. THE BANK OF ATTICA, Impleaded, etc., Appellants.
   Motion denied, without costs.


text:
    SAMUEL G. BEACH, Respondent, v. JACOB SKILLMAN, Appellant.
   Motion for leave to go to the Court of Appeals and .for re-argument denied.


text:
    DANIEL FITZGERALD, Respondent, v. ANSON LAMBERSON, and others, Appellants.
   Order affirmed, with ten dollars costs and- disbursements, to be paid by the appellants.


text:
    GEORGE P. YORK, Appellant, v. DELOS PENNY and others, Respondents.
   Appeal dismissed, with ten dollars costs and disbursements. (Fish v. Thrasher, General Term, 4th Dept., MS. Op. of Talcott, P. J.; Andrews v. Long, 9 W. Dig. 513.)


text:
    KEZIA HERRINGTON, as Committee, etc., Respondent, v. NANCY BRUCE and another, Appellants. SAME PLAINTIFF, Respondent, v. NANCY BRUCE, and another, Appellants.
   Order in each case affirmed, with ten dollars costs in one case and disbursements in both cases.


text:
    CHARLES F. SMITH and others, Respondents, v. JAMES W. LAPP, Appellant.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    OMER CASE, Appellant, v. JOSIAH P. DAVIS and another, Respondents.
   Appeal dismissed, with ten dollars costs and disbursements. Feld, that the order appealed from is not appealable. (Code of Civ. Pro., § 1342; MS. Op. of Talcott, P. J., in Fish v. Thrasher, decided at the present term of this court; Andrews v. Long, 9 W. Dig., 513.)


text:
    JOHN HYLAND and another, Respondent, v. MARY J. VEAZIE, Appellants.
   Appeal dismissed, with ten dollars costs and disbursements. Feld, that the order appealed from is not appealable. (Code of Civ. Pro., § 1342 ; Fish v. Thrasher, General Term, 4th Dept., April, 1880, MS. Op. of Talcott, P. J.)


text:
    GEORGE L. MUNROE and others, Appellants, v. THE TRADESMEN’S FIRE INSURANCE COMPANY, Respondents.
   Order appealed from affirmed, with ten dollars costs and disbursements. Feld, that the notice of trial was premature.


text:
    HIRAM SMITH and others, Appellants, v. THE CITY OF ROCHESTER, Respondent.
   Motion to give case a preference denied.


text:
    ALONZO C. YATES and others, Respondents, v. CORYDON BURCH and others, Appellants.
   Judgment affirmed, on authority of Wilson v. Palmer (75 N. Y., 250). _


text:
    MARY J. BURNETT,. Respondent, v. CHARLES S. WRIGHT, Executor, etc., Appellant.
   Judgment affirmed.


text:
    ALBERT COLLINS, Respondent, v. OSCAR MUNN, as Sheriff, etc., Appellant.
   Judgment affirmed.


text:
    EUGENE J. WHITING and others, Respondents, v. MICHAEL DOWDALL, Appellant.
   Judgment affirmed. Held, action at law must be decided according to the rights of the parties as they existed when it was commenced, notwithstanding an equitable defense. (71 N. Y., 118.)


text:
    EDSON FOX, Respondent, v. FREDERICK G. WEAVER, Sheriff, etc., Appellant.
   Judgment and order affirmed.


text:
    HENRY B. COOK and another, as Administrators, Respondents, v. WILLIAM P. WHITESIDE and others, Appellants.
   Judgment and order affirmed. Held, that the demurrer to the complaint was not well taken.


text:
    DANIEL PRATT and others, Executors, etc., Appellants, v. EDGAR MUNSON, Impleaded, etc., Respondent.
   Judgment affirmed, with costs. (17 Hun, 475, followed.)


text:
    ANDREW BEERS, Appellant, v. THE SAME.
   The like order.


text:
    WILLIAM T. HAMILTON, Appellant, v. THE SAME.
   The like order.


text:
    JOHN GLEASON, Respondent, v. JAMES S. CONGDON, Appellant.
   Judgment and order reversed, and new trial ordered in Monroe Oounty Oourt, costs to abide event. Held (1), that the mortgage having been drawn by plaintiff’s agent in form to be executed by Patrick Donnelly as well as his wife, and it being for the benefit of the plaintiff, his acceptance of it is to be implied from the circumstances, there being no reason to question the good faith of the transaction. (2.) That the mortgage not having become due, and the property being in the possession of the mortgagor, the mortgagor had a leviable interest, which the defendant was justified in selling. (42 N. Y., 325.)


text:
    THE PEOPLE, ex rel. J. O’NEAL PERKINS, v. ELIZA CAWLEY.
   Motion for leave to go to the Oourt of Appeals denied.


text:
    HARRISON O. COWING, Appellant, v. ABRAHAM ALTMAN, Respondent.
   Order of Special Term reversed, and motion denied.


text:
    WINFIELD S. HALL, Respondent, v. DOMINICK HALEY, Appellant.
   Appeal dismissed, with ten dollars costs and disbursements. Held, that the order is not appealable.


text:
    SAMUEL WILDER, Respondent, v. JOEL F. AMSDEN and another, Appellants.
   Appeal dismissed, with ten dollars costs and disbursements. Held, that the order is not appealable.


text:
    THOMAS WILBURN, Appellant, v. HENRY J. SAMPSON and another, Respondents.
   Appeal dismissed, with ten dollars costs and disbursements. Held, that the order is not appealable.


text:
    DAVID WRIGHT, Appellant, v. JOHN W. AIKEN and others.
   Motion for re-argument denied, with ten dollars costs.


text:
    In the Matter of the Application of the NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY to Appraise certain Lands of CATHARINE M. COYE and others, Respondents.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    AMY SHERMAN, Respondent, v. MYRON H. LAY, Appellant.
   Appeal dismissed, with ten dollars costs and disbursements.


text:
    LEORA BRUMFIELD, by Guardian, Appellant, v. HANNAH BONTALL, Respondent.
   Motion to give cause a preference denied, without costs.


text:
    STEPHEN H. POWERS, Appellant, v. GEORGE BENEDICT, Respondent.
   Motion denied, without costs to either party.


text:
    ELIZABETH S. SALTER, Appellant, v. THE UTICA AND BLACK RIVER RAILROAD COMPANY, Respondent.
   Motion for re-argument denied, with ten dollars costs.


text:
    HENRY P. KNOWLES, v. SAMUEL CUDELEBUCK.
   Motion-for leave to appeal to the Court of Appeals denied.


text:
    EUNICE L. ROOT, as Executor, etc., Respondent, v. THOMAS R. WRIGHT, Impleaded, etc., Appellant.
   Motion to dismiss appeal denied, without costs to either party.


text:
    MARY T. BURT, Executor, etc., Appellant, v. EMILY D. MILLER, Impleaded, etc., Respondent.
   Motion to dismiss appeal denied, with ten dollars costs.


text:
    ERVIN B. ROWE, Respondent, v. DANIEL BERRY and another, Appellants.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    EMILY H. BENEDICT, Appellant, v. MARIA WHIFFEN, Respondent.
   Order affirmed, with ten dollars costs and disbursements, to be paid to the defendant’s attorneys.


text:
    MARY ANN BRITTON, Appellant, v. CHARLES W. HUNTINGTON, Respondent.
   Order appealed from affirmed, with ten dollars costs and' disbursements.


text:
    CHARLES S. HALL, Appellant, v. B. BRADLEY, KEELER, and another, Executors, etc.
   Motion for re-argument denied, with.ten dollars costs.


text:
    THE PEOPLE ex rel. HIRAM YALE, Respondent, v. SOMERS ECKLER, Trustee, etc., Appellant.
   Motion denied, with ten dollars costs.


text:
    FREDERICK BRONSON v. ARAD THOMAS and another, as Executors, Appellants, Impleaded with WILLIAM B. DYE and another, Respondents, and others.
   So much of the order as is appealed from reversed, and the proceedings remitted to the County Court of Orleans County, with directions to award to the appellants, out of the surplus moneys, the further sum of $139.24, with interest from 8th of October, 1878, and in case it shall have been paid to the respondents, to order restitution thereof. The respondents to pay to the appellants ten dollars costs and disbursements.


text:
    THOMAS HALLETT, Appellant, v. ALBERT I. CARTER, Respondent.
   Motion for re-argument denied, with ten dollars costs.


text:
    JACOB GINTHER and another v. HENRY E. RICHMOND.
   Ordered that the entry of verdict be amended as asked for in the notice of motion ; that the motion to amend the entry of the order denying motion for a new trial on the minutes be denied; and that the Special .Term order of - August 27, 1879, be affirmed without prejudice to the right of the plaintiffs to have their costs adjusted and judgment therefor entered on the entry of the verdict as thus amended, leave to do which is hereby granted.


text:
    GEORGE T. De ROE, Respondent, v. ROSWELL B. SMITH and others, Appellants.
   Order reversed, with ten dollars costs and disbursements; and motion denied, with ten dollars costs.


text:
    LEVI NICHOLS v. GEORGE DREW and others.
   Motion for re-argument granted on the ground that the attention of the court not having been called to section 490 of the Code of Civil Procedure, the question whether the specifications in the demurrer were insufficient to raise the point upon which the case was decided, was overlooked. •


text:
    THE DUNKIRK FIREMEN’S ASSOCIATION, Fire Department of the Village of Dunkirk, Appellant, v. LOUIS MONROSE and another, Respondents.
   Order affirmed, with ten dollars costs and disbursements.


text:
    THE STEUBEN COUNTY BANK, Respondent, v. JOHN L. ALBERGER and others, Appellants.
   Order of Special Term affirmed, with ten dollars costs and disbursements.


text:
    THE STEUBEN COUNTY BANK, Appellant, v. JOHN L. ALBERGER and others.
   Appeal by plaintiff from order of Special Term setting aside the attachment in this case as to Rosinda Bill, respondent. So much of the order as is appealed from affirmed, with ten dollars costs and disbursements.


text:
    FRANK SIBLEY and another, Respondents, v. JAMES F. HASTINGS, Appellant.
   Order appealed from reversed and new trial granted, costs to abide event. Held, on the authority of Ross v. Mather (51 N. Y., 108), De Graw v. Elmore (50 Id., 1), Burnham v. Walkup (54 Id., 656), and Peck v. Root (5 Hun, 547), that the complaint sets out a cause of action for fraud and deceit, and no fraud having been proved, the plaintiff was not entitled to recover.


text:
    WILLIAM LAMPSON and others, Appellants, v. THE VACUUM OIL COMPANY, Respondent.
   Order appealed from reversed, with ten dollars costs and disbursements.


text:
    L. LAVERNE MOORE, Respondent, v. CHARLES JONES and others, Appellants.
   Judgment affirmed.


text:
    MOSES S. OBERDORFER, Appellant, v. THE PENNSYLVANIA FIRE INSURANCE COMPANY, Respondent.
   Judgment affirmed.


text:
    LUCY ANN GILLETT, Respondent, v. LORENA VINCENT, Appellant, Impleaded, etc.
   Judgment and order reversed, and new trial ordered in the Wayne County Court, costs to abide event. Held, that the bond and mortgage were collateral to the contract, and the attempt to sever them from the contract and assign them separately was inoperative, and the plaintiff acquired no title to them. (Merritt v. Batholick, 36 N. Y., 44; Wanzer v. Cary, 76 N. Y., 526; Raynor v. Raynor, decided in this Department, at the present term, MS. Op. of Smith, J.) _


text:
    WILLIAM J. DALRYMPLE, Respondent, v. RUSSELL G. ARNOLD, as Administrator, Appellant.
   Judgment and orders appealed from affirmed, with costs of the appeal payable out of the estate. Held, that as the wife of the intestate died in his lifetime, her funeral expenses are a charge upon his estate; the funeral expenses of the intestate himself are also a charge upon his estate. (Patterson v. Patterson, 59 N. Y., 574; see also § 1, title 4, chap. 6, part 2 of R. S., as amended by chap. 267 of Laws of 1874.)


text:
    HENRY S. GARDNER, as Overseer of the Poor of the Town of Volney, v. THOMAS D. LEWIS, Appellants, FRANK DITTS, Respondent.
   Order appealed from affirmed, with ten dollars costs and disbursements to be paid by the appellants to the respondent or his attorney. Meld, that the overseer had no authority to execute the satisfaction of the judgment, because, (1) it was without consideration, and (2) it was without leave of the court in which the action was pending. (2 R. S., 481, § 6.)


text:
    THE SAME v. JOHN V. BOOMER.
   Order appealed from affirmed, with ten dollars costs to be paid by appellant to the respondent or his attorney.


text:
    THE SAME v. FREDERICK J. VAN VALKENBURGH. THE SAME v. ARMENIA AMES. THE SAME v. HENRY OTIS. THE SAME v. HENRY F. GILLMAN. THE SAME v. JAMES CLARK. THE SAME v. JAMES ELDER. THE SAME v. DANIEL T. MORFA.
   The like order as in the case against Boomer.


text:
    JOHN KEARNS, an Infant, by Guardian, Appellant, v. CHARLES W. BURT and others, Respondents.
   Order appealed from affirmed.


text:
    THE VILLAGE OF ALBION, Respondent, v. THOMAS J. REED, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    DAVID B. PROSSER and others, Appellants, v. WILLIAM OLIVER, Respondent.
   Order appealed from affirmed, with ten dollars costs and disbursements.


text:
    WILLIAM LEHR, Appellant, v. LOUISA STER, Respondent.
   Judgment affirmed. (See Code Civ. Pro., § 832.)


text:
    THE COMMERCIAL BANK OF ROCHESTER, Respondent, v. BURRALL SPENCER, Impleaded, etc., Appellant.
   Judgment appealed from affirmed. (2 Abb., 327 ; 5 Id., 498; 28 Barb., 661.) _'


text:
    THE SAME v. THE SAME.
   Order appealed from affirmed, with ten dollars costs and disbursements. (5 Johns. Ch., 320 ; 41 N. Y., 359; 76 Id., 214.)


text:
    PLATT CARPENTER v. JANET CARPENTER.
   New trial granted, costs to abide event. Held, that the evidence of the witnesses Georgia Tomlinson, Emma Peer and John Hamahan, of statements made by George W. Carpenter respecting the gift of the farm to him by his father, was improperly admitted.


text:
    QUINCY W. WELLINGTON, Respondent, v. NELSON THOMPSON, Appellant.
   Judgment affirmed on opinion of Bumsey, J., trial judge.


text:
    ABIGAIL GLIDDEN, Appellant, v. ALONZO LANGDON, Impleaded, etc., Respondent.
   Order appealed from affirmed, and order at the Circuit modified by striking out the words “ to be heard.in the first instance at the General Term,” and with leave to plaintiff to move at Special Term for a new trial on a case and exceptions, without costs of this* appeal to either party.


text:
    GEORGE RICHBURG, Respondent, v. SIEGMUND LEVY, Appellant.
   Judgment affirmed.


text:
    LATHAM COFFIN, Respondent, v. BENJAMIN S. COFFIN, Appellant.
   Judgment and order affirmed. Held, that the circumstances offered by the defendant, in mitigation, not having been pleaded as such, - were inadmissible in evidence. (Code of Civ. Proc. §§ 508, 536.) _


text:
    CHARLES S. CAMPBELL v. BYRON A. BENEDICT.
   New trial denied, and judgment ordered for plaintiff on the verdict.

Held, that there was no evidence of an estoppel whereby the sheriff was prevented from recovering his poundage of defendant.


text:
    FREDERICK E. BATES, Respondent, v. CHARLES H. CALDWELL and another, Appellants, Impleaded, etc.
   Judgment affirmed, with costs, to be paid by the appellants to the respondent.


text:
    DANIEL V. THOMAS, and others, Respondents, v. LORENZO T. FREEMAN, and another, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


author: Davis, P. J.:

text:
    THOMAS M. ARGALL, Respondent, v. ABRAHAM JACOBS and BENJAMIN W. WISEBART, Appellant.

      A discharge in bankruptcy, under a composition, does not release the bankrupt from debts fraudulently contracted — no reply need be served to an answer setting up the defense of such a discharge — the fraud may be proved though the action be on notes given for the original debt — a motion for a new trial on the ground of surprise cannot be made at the circuit.

    In this action, brought upon two promissory notes given for goods sold and delivered to the defendant, the latter set up a discharge in bankruptcy under a composition, to which defense no reply was interposed by the plaintiff. Upon the trial the plaintiff was allowed, after the discharge in bankruptcy had been proved, to give evidence to show that the indebtedness for which the notes were given had been fraudulently contracted.
    Held, that a discharge under a composition in bankruptcy did not discharge the defendant form a debt fraudulently contracted.
    That it was not necessary for the plaintiff to serve any reply.
    That the fact that the action was brought upon the notes, instead of upon the original indebtedness, did not prevent the plaintiff from proving fraud in the contracting of the debt to avoid the effect of the discharge in bankruptcy interposed by the defendant.
    A motion for a new trial on the ground of surprise cannot be made upon the minutes of the justice before whom the action was tried.
    Appeal from a judgment in favor of tlie plaintiff entered upon a verdict of a jury, and from an order pi tlie judge at tlie circuit, denying a motion for a new trial made on his minutes, on the ground' of surprise and upon the merits.

      B. & ATewcombe, for the appellants.

      Armstrong <& Briggs, for the respondent.
   Davis, P. J.:

This action was brought upon two promissory notes given in consideration of goods sold and delivered. The defendants set up a discharge under a composition in bankruptcy, in the United States District Comt for Colorado. No reply was interposed to this answer. On the trial, after production of the proceedings which were -claimed to establish the alleged discharge in bankruptcy by composition, the plaintiff offered evidence to show that the indebtedness for which the notes were given was fraudulently contracted. This was objected to on the part of the defendants on several grounds, and the objections were overruled and exceptions taken.

This court has held in two cases lately decided, that a - composition in bankruptcy does not operate to discharge a debt fraudulently contracted. (Libbey v. Strasburger, 14 Hun, 120; Talcott v. Harris, 18 Hun, 567.)

It was not necessary that a reply should be interposed. An answer setting up an independent defense, not a counter-claim, may be met on the trial with any matter tending to defeat or avoid it. (Talcott v. Harris, supra.)

The objection that the fraud could not be shown, because the plaintiff had sued upon the notes instead of suing for goods sold and delivered, was properly overruled. The notes were simply evidence of the debt contracted by the purchase of the goods. The plaintiff was not seeking to repudiate the sale on the ground of fraud, and to pursue the goods, nor to take any steps to prosecute the defendants for the alleged fraud. He sought, merely, to enforce the indebtedness to which the defendants answered a discharge in bankruptcy. And in response to that the plaintiff was at liberty to show that the indebtedness was not so discharged, because of any fact either affecting it or affecting the discharge itself, as, for instance, he could have shown a new promise made after the discharge, and recovered upon the original indebtedness by establishing such new promise. (Claflin v. Taussig, 7 Hun, 223 ; Dusenbury v. Hoyt, 53 N. Y., 521; Dambman v. Schulting, 4 Hun, 50 ; Johnson v. White, 6 Hun, 587.)

If he had relied for his cause of action upon the fraud, and sought to recover the damages sustained by it, he would necessarily have been obliged to allege the fraud in his complaint. But he only seeks to recover the indebtedness contracted on the purchase of the goods, relying upon the promise of the defendant. In such case it makes no difference whether the count is upon the He may meet any alleged defense except a counter-claim, without any reply, because if he disposes of the defense, his original indebtedness being proved, his right to recover for that is estaboriginal indebtedness or upon the notes which are evidence of it. lished. Nor are the defendants in any sense prejudiced by the suit being upon the notes instead of upon the original indebtedness. In neither case would the plaintiff be bound to anticipate the defense set up by averring that such defense, if interposed, would be invalid against his demand. The defendants must be presumed to know the law, and established rules of practice in such cases, and be prepared when they seek to establish an affirmative defense, to meet any evidence that tends to rebut or overthrow it.

We think sufficient evidence was given tending to establish fraud in contracting the debt, to justify the court in sending that question to the jury. It was given, to the jury in a clear and explicit charge, which could leave no doubt upon their minds as to the exact question upon which they were to pass.

In respect of the motion to set aside the verdict on the ground of surprise, it is sufficient to say that the learned judge, who held the circuit, was entirely right in holding that he had no power to entertain a motion of that kind at circuit. The grounds upon which a motion for a new trial may be made before the judge who presides at the trial at circuit, are stated in section 99Y of the Code of Civil Procedure, and do not include that of surprise. And section 1002 of the Code provides in substance, that in a case not specified in the three preceding sections, a motion must, in the first instance, be heard and decided at Special Term. But ii it may be supposed under the late decision of the Court of Appeals, In re Nichols, that every justice of the Supreme Court is clothed at all times, and in all places, with all the powers conferred by law upon that court, even that enlarged view of the power of a justice of the Supreme Court could not be extended to justices assigned from a city Superior Court, to hold specially designated terms or circuits of the Supreme Court. The learned judge therefore properly declined to entertain the motion on the ground of surprise.

His disposition of the motion upon the merits seems to be correct. It was the duty of the defendants to have been prepared at the trial to meet the rebuttal of their defense. We have already said that sufficient evidence on the question of fraud to send the case to the jmy was, in our opinion, given on the part of the plaintiff.

The judgment must be affirmed.

Brady and Barrett, JJ., concurred.

Judgment affirmed.

       [Section 236 of the Code of Civil Procedure, as amended by chapter 869 of 1880, provides,-that a city judge, designated to hold terms and circuits, “ during the period of such designation possesses, within the city of Now York, all the powers of a justice of the Supreme Court, in or out of court, to make orders in any actipn or special proceeding in the Supreme Court.” Ret*.],


text:
    WILLIAM B. WHITEMAN, as Executor, and ELIZABETH JONES, as Executrix, &c., of EDWARD JONES, Deceased, and WILLIAM B. WHITEMAN, Plaintiff, v. THE MAYOR, ALDERMEN and COMMONALTY OF THE CITY OF NEW YORK, Defendants.

      Building contracts — agreement that the engineer's certificate shall he final and conclusive — such a certificate can only he attacked for fraud, or had faith on the fart of the engineer.

    Where, from the terms of a contract for the construction of a dam, it appears that the parties have agreed upon and adopted the decision of an engineer, therein named, as a final and conclusive arbitrament of all disputes and litigations that should arise in respect to the kinds or quantity of the several parcels or kinds of work to be done, and have by express stipulation made the certificate of the engineer a condition precedent to the right of the contractor to demand and recover, and to the liability of the other party, to pay the compensation therein provided, such certificate is, in the absence of fraud, or bad faith, final and conclusive, and it cannot be attacked or impeached on the ground that the engineer erred in deciding the questions submitted to him.
    Motion for a new trial upon a case containing exceptions directed to be heard in the first instance at the General Term.

      O. W. West, for tbe appellants.

      William O. Whitney and F. L. Stetson, for tbe respondent.
   Davis, P. J.:

The contract upon wbicb tbis action is brought was made in tbe year 1866. It provided for tbe construction, by tbe assignors of tbe plaintiffs testator, of a dam and appurtenances in tbe town of Kent, Putnam county.

Tbe contract contains a large number of specifications as to tbe parts of tbe work to be done, and tbe manner in which tbe same was to be performed. Tbis action relates solely to tbe stone masonry done upon tbe work. Tbe contract provided for tbe kind of stone to be used in tbe masonry, and that all tbe masonry should be hydraulic masonry of tbe best quality ; and in substance that tbe masonry should be rubble range,” “ cut range,” and dimension cut stone masonry.” It specifies for what these several kinds of masonry were to be used in tbe walls and other parts of tbe work, and it defines with particularity bow tbe rubble range, cut range, and dimension cut stone masonry were to be constructed and laid.

Early after tbe commencement of tbe work, a controversy seems to have arisen between the contractors and tbe engineer in charge as to tbe accurate description of tbe kind of masonry then laid, and being laid, and as to tbe amount wbicb tbe contract required to be paid therefor; tbe contractors claiming that certain portions of the masonry which tbe engineer would only estimate as rubble-range masonry, were in fact cut range masonry under tbe definitions of tbe contract; and that certain other portions wbicb the engineer would only estimate as cut range, were in fact dimension cut stone masonry. Tbe engineer in chief seems to have been called in by tbe contractors to pass upon tbe question, and Ms decision was favorable to the construction given by the engineer in charge. This state of things in respect to the controversy seems to have continued throughout the work and until the completion thereof; and the final estimate was made by the engineer in accordance with his views as to which class the particular kinds of work estimated, belonged. The plaintiffs were -finally paid in accordance with the engineer’s estimate ; and after the lapse of more than six years, commenced this action to recover the difference in price between the several kinds of masonry, upon the ground that the estimates ana certificates of the engineer were not conclusive upon the question as to the Mnd or character of the work done. The court below held that the estimates and certificates were conclusive, and directed a verdict accordingly, for the defendants, when the plaintiffs rested their ease.

The contract provided in various parts of it for the control and direction of the work by the engineer, and the estimates to be made by Mm, and the payments to be made thereupon; and that “ whenever, in the opinion of the engineer, the party of the second part have completely performed this contract on them part, said engineer shall certify the same in writing to the parties to this agreement, together with his estimate, embracing both stipulated and extra work, as herein provided, on which the said party of the second part is to be paid.”

It contains also the following provision:

“ And it is further expressly agreed that no money shall become due and payable under this contract except on the certificate of said engineer, as herein provided; and the said party of the second part further agree that they shall not be entitled to/ demand or receive payment for any portion of the aforesaid work or material, except in the manner set forth in this agreement, nor until each and every of the stipulations hereinbefore mentioned are complied with, and the engineer shall have given his certificate to that effect; whereupon the parties of the first part will, at the expiration of twenty days after such completion and delivery of said certificate, pay, and they hereby bind themselves and their successors to pay, the said party of the second part in cash, the whole amount of money accruing to the said party of the second part under this contract, excepting such sum or sums as may be lawfully .retained under any of the provisions of this contract hereinbefore set forth.”

The contract also contained a provision in these words:

“ To prevent all disputes and litigations, it is further agreed by and between the parties to this contract, that said engineer shall in all -cases determine the amount or the quantity of the several kinds of work which are to be paid for under this contract; and he shall determine all questions in relation to lines, levels, and dimensions of work; and he shall in all cases decide every question which may arise relative to the execution of this contract on the part of said contractors ; and his estimate and decision shall be final and conclusive.”

Collating and considering these several provisions together, it cannot be doubted that the contracting parties have agreed upon and adopted the decision of the engineer as a final and conclusive arbitrament of all disputes and litigations that should arise under the contract, in respect of the kind or quantity of the several parcels of work to be paid for under the contract; and of every question which might arise relative to its execution on the part of the contractors; and they have made his decision upon these questions final and conclusive. In addition to this they have by express stipulation made the certificate of the engineer a condition precedent to the right of the parties of the second part to demand and receive payment for the work.

In such cases it is an established principle, that no court will undertake to try any of the questions embraced within these provisions of the contract which have been passed upon by the engineer, for the purpose of determining whether his decision was or was not correct. It is only where fraud and bad faith are shown, on the part of the engineer or arbitrator selected by the parties, in making his official decision, that courts will attempt to interfere. This rule was well expressed in Butler v. Tucker (21 Wend., 447), in these words: When jjarties fix on an umpire, and agree to abide his decision, neither of them, without the consent of the other, can withdraw the question of performance from the common arbiter for the purpose of referring it to the decision of a jury.” The questions in such cases received a very full and careful consideration by the Court of Appeals in the case of the President and Directors of the Delcmare & Hudson Canal Co. v. Pennsylvania Coal Co. (50 N. Y., 250), in which the duty of the court to give full effect to the intention of the parties as clearly indicated by the agreement in such cases, where the covenants or agreements provide for an adjustment and settlement of all disputes and differences to the exclusion of the courts, as well as the effect to be given to conditions precedent expressed in such contracts either in terms or by necessary implication, are pointed out and enforced. The cases on the subject are quite numerous, and need not be quoted from at length. (See McMahon v. New York & Erie R. R. Co., 20 N. Y., 463; Kihlberg v. United States, 97 U. S., 398 ; Smith v. Briggs, 3 Denio, 73; Butler v. Tucker, supra ; Wyckoff v. Meyers, 44 N. Y., 145 ; Schenke v. Powell, 7 Daly, 286.)

None of the cases which point out and enforce exceptions to the general rule, to wit: Thomas v. Fleury (26 N. Y., 26), Smith v. Brady (17 N. Y., 172), Smith v. Wright (4 Hun, 652), and Bowery Bank v. Mayor (63 N. Y., 336), have gone the length to hold that, in the absence of bad faith or fraud, or where there has not been an unreasonable refusal to give am/y certificate whatever, the courts can permit the judgment of an umpire or engineer, when expressed in his certificate actually given under the terms of the contract, to be tried and determined by suit.

In this case the certificates required by the contract were actually given by the engineer. His good faith is not sought to be impugned, nor is there any charge of fraud made against him, or collusion between him and the other contracting parties. All that is sought is to establish'that his determination that certain portions of the masonry were rubble range masonry was a mistake, and that certain portions were cut range was also a mistake. It was attempted to be shown upon-the trial that his determination of those questions was erroneous in fact. The court below ruled that under the circumstances of this case that could not be done. That ruling in our opinion as sustained by the authorities, and is sound both in principle and law.

We have looked carefully into the exceptions taken in the course of the trial, and are of opinion that none of them is well taken. This, of course, depends uj)on the correctness of the decision of the principal question. If the court were right in that, these questions became indifferent in their character, and do not entitle the plaintiffs to a new trial. Without entering into a consideration of each exception separately, we think it quite enough to say that they seem to us to depend upon, and to stand or fall with the principal question already considered.

The result is that the motion for a new trial ought in our opinion to be denied, and judgment ordered for the defendant upon the verdict.

Brady and Barrett, JJ., concurred.

Motion for a new trial denied; judgment ordered for the defendant on the verdict.