text:
    Margaret S. Kessler, Resp’t, v. Frank S. Lockwood, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Animals—Ownership.
    Plaintiff was bitten by a dog which had been brought by defendant to protect the premises of a Miss B., who afterwards died, and the dog remained with defendant on the premises owned in part by his wife. Held, that on these facts the jury were justified in finding that defendant was the owner as well as harborer of the dog.

      '% Same—Knowledge of vicious character.
    Proof that the dog had attacked many other persons, even when muzzled, and that defendant had repeatedly called him away when he was attacking persons on the highway,is sufficient to show his vicious character and defendant’s knowledge thereof.
    Appeal from judgment of county court, affirming judgment of justice’s court in favor of plaintiff.

      Snider & Hopper, for app’lt; A. S Tompkins, for resp’t.
   Barnard, P. J.

The proof establishes that the plaintiff was bitten by a dog. This action was brought to recover for the injuries she received.

She must establish that the dog was owned or harbored by defendant, and that the dog was vicious and savage and used and accustomed to attack man.

Two juries have found in her favor on these points. The evideuce on the second trial is abundant to sustain the verdict. The dog was brought by the defendant to protect the premises of a Miss Brown. Some four years before he himself moved into the-premises occupied by Miss Brown; he brought the dog there; subsequently Miss Brown died; the dog remained with the defendant. The premises were owned in part by defendant’s wife. The-defendant is the head of the family, and provides for it. The jury could properly find the defendant owner as well as harborer of the dog on the evidence. The dog is proven to have been a very savage animal. The plaintiff was bitten by the dog while one of the family was with him, and without any provocation except the-savagery of the dog. He is proven to have attacked many other persons. He would assail people with a muzzle on. The defendant had, on repeated occasions, called the dog away when he was. attacking persons on the highway. -

The judgment should, therefore, be affirmed, ’with costs.

Dykjian and Pratt, JJ., concur.


source: Caselaw Access Project

author: Dykman, J.

license: Public Domain

text:
    John Mitchell, App’lt, v. Edward Lane, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

      1. Municipal corporations—Assessments.
    Where a statute authorized commissioners to open, enlarge and straighten: one drain and they open two, the inclusion in the assessment of the expense for the second drain vitiates it and renders it absolutely void, and a sale under such assessment is a nullity and confers no title on the purchaser.
    3. Ejectment—Extra allowance.
    Defendant induced plaintiff to purchase his land at a sale for such void assessment, promising to repay the bid. As he did not do so plaintiff brought ejectment, in which defendant recovered. Held, that under the circumstances defendant was not entitled to an extra allowance.
    Appeal from judgment in favor of defendant.
    Action of ejectment.

      H. S. Hustis, for app’lt; Schlosser & Wood, for resp’t.
   Dykman, J.

On the 24th day of April, 1866, the legislature of the state of New York passed a law appointing three commissioners who were named in the act, for the purpose of opening, enlarging and straightening a drain in the town of Fishlcill, which was particularly described.

The commissioners executed the work and performed their duties specified in the law, and in ■ addition thereto they cut and dug a lateral ditch, not specified in the law, and included the expense of both in the assessment which they made for such expense under the statute.

The lands of the defendant were sold under the assessment, and purchased by the plaintiff, who received a conveyance therefor from the commissioners, and now brings this action of ejectment for the recovery of the land.

The powers conferred upon the drainage commissioners by the statute were qualified and special, and it became necessary for the plaintiff, who claims title to the premises under a conveyance from them, to show that they had in all things followed the statute without exceeding or violating its provisions.

They could take no power or authority by implication and proof of their strict pursuit of the statute was an essential prerequisite to his recovery.

Instead, however, of producing proof of strict observance of the statute, it appeared that the commissioners exceeded their power, and .opened two ditches instead of one.

The statute authorized them to open, enlarge and straighten one drain and they opened two, and included the expense of both in their assessment.

Within well settled rules of law the inclusion of the expense for the second ditch in the assessment levied by the commissioners .vitiated the same and rendered it absolutely void.

The assessment being thus void the sale under it was a nullity and conferred no title upon the purchaser.

It appeared from the record before us that the proceedings of those commissioners were brought before the supreme court by certiorari for review in the year 1871, and that their proceedings were adjudged to be regular and valid, and that adjudication is now set up as conclusive and binding upon this court in this action.

We think there was some misconception of the facts induced by the returns in that proceeding, for the decision is plainly erroneous, and we cannot follow or Ire led by it.

There was an additional allowance to the defendant in this action of $100, which was excessive in any view; five per cent, upon the highest amount claimed would amount to only $29, but we think there should have been no allowance.

The defendant occupies quite an ungracious position. His land has received the benefit of the drainage and we have no difficulty in finding that he induced the plaintiff to buy in the land for him, and promised to repay him his bid.

The judgment should be modified by striking out the additional allowance of $100 and, as so modified, affirmed, without costs to either party on this appeal.

Pratt, J., concurs; Barnard, P. J., not sitting


author: Barnard, P. J.

text:
    Nelson H. Duryea, Resp’t, v. Tredwell D. Smith et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Highways—Trespass—License.
    Plaintiff agreed to sell certain land adjoining a highway to one W., who agreed to let the highway commissioners take gravel therefrom for the highway for a certain sum per load. Before any was taken W. failed to complete his purchase and plaintiff forbade the entry of the commissioners. Held, that the agreement with W. was a mere license, which would be operative only after it was executed; that such license was revoked by plaintiff’s notice, and that an entry thereafter by the commissioners was a trespass for which they were liable.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      Action to recover $500 for an alleged unlawful entry upon plaintiff's lands, the removal of building sand therefrom and the destruction of a fence.
    The answer put in issue plaintiff’s ownership of the land; admitted that defendants took the sand in question, but excused the act by alleging that they were highway commissioners and committed the acts in question as such commissioners under an agreement with one Wright.

      James S. Allen, for app’lts; Benj. W. Downing, for resp’t.
   Barnard, P. J.

The office of commissioner of highways does not protect the officer who commits a trespass. The defendants, therefore, had no right to enter upon private lands and take gravel therefrom, without the owner’s consent, to repair the road. The proof established that there was a public highway,, called Jerusalem avenue, in Queens county. It is now a road of the width of three rods. The plaintiff’s claim is that the commissioners took gravel from his lands. He owns both sides of the highway at the point of the alleged taking. The court charged the jury that the taking of gravel within the bounds of the highway for the purpose of repairing the road in other places was justified by these officers as commissioners of highways. Higgins v Reynolds, 31 N. Y., 151.

The proof established that the defendants took gravel from the plaintiff’s premises adjacent to the road; that the plaintiff had agreed to sell this land to one Wright. That the plaintiff referred the defendants to Wright to buy this gravel of him. Wright agreed to let the defendants have the gravel for ten cents a load. Wright failed to complete the purchase and the plaintiff, before any sand was taken from the premises under the arrangement with Wright, forbade the entry of the defendants upon his lands. The agreement with Wright was a mere license to enter and take sand at a certain price, which would only be operative after it was executed. The notice by the owner that Wright had ceased to have any interest in the land and that the defendants must not trespass thereon, revoked any right to take the sand under the Wright license. Wiseman v. Lucksinger, 84 N. Y., 31.

The throwing down the fence along the highway was a trespass if the entry was a trespass. The jury have found this fact, and the cost of the repair of the fence must follow the right to recover for the sand.

The judgment should, therefore, be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    James H. Albee, Resp’t, v. The Chappaqua Shoe Mfg. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    I. Nuisance—Steam whistle.
    A person has no right to do upon his own premises an act which de* tracts from the safety of travelers or renders the highway disagreeable.
    2. Same.
    Defendant’s factory is close to a railroad depot, and is furnished with a powerful steam whistle elevated but little above the depot platform. While plaintiff was getting milk cans at the depot the whistle suddenly-sounded three times, frightening plaintiff’s horse, which ran away and injured him. Held, that defendant was liable and that the question of plaintiff’s negligence was immaterial
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Glose & Robertson (H. D. Donnelly, of counsel), for app’lt; Wm, P. Fiero, for resp’t.
   Barnard, P. J.

The defendant, a manufacturing corporation, had a steam whistle on its factory at Ghappaqua. The factory is close to the Harlem R R. station and the platform for the delivery and receipt of freight from the railroad is but a few feet from the engine room of the factory, and the engine room is so low that the whistle is but a slight elevation above the platform. The whistle is one of great power and from its name seems to have been constructed to carry sound seven miles. While the plaintiff was at the station in. a wagon with one Williams, who was getting his milk cans, at nearly 1 o’clock P. M., the whistle sounded. The horse ran away; the whistle again sounded, making the horse more uncontrollable, and the whistle again sounded and the horse became so wild as to be ungovernable. The plaintiff was thrown out and severely injured. The complaint avers a cause of action for negligence and one for maintaining a whistle so powerful that its noise was dangerous at the place it was used. The case was tried on the latter cause of action only. The action was well proven. It is an acknowledged principle of law that a party has no right to do upon his own premises an act which detracts from the safety of travelers or renders the highway disagreeable. Francis v. Schoellkopf, 53 N. Y., 152; Heeg v. Licht, 80 id., 579; Bohan v. Port Jervis Gas Light Co., 122 id., 18; 33 St. Rep., 246.

These cases also settle the question that the negligence of the injured person has no importance. The action rests upon the wrong done and not the negligent manner in which it was done. The numerous exceptions taken to the rulings upon the trial excluding the question of the negligence of the plaintiff, all became unavailing under these cases. These exceptions must fail because of an entire lack of evidence upon which to rest a claim that plaintiff contributed to his own injury.

The judgment should therefore be affirmed, with costs.

Pratt, J., concurs; Dykman, J., not sitting.


text:
    George W. Martin et al., Resp’ts, v. James C. Matthews et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)
    Payment—Allowance by agent of his own note.
    One B; who was an agent of the plaintiffs sold goods to defendants and allowed in part payment therefor his own note previously given to them. Held, that the transaction was unauthorized and illegal, and constituted no payment; that an agent cannot discharge an indebtedness without actual payment.

      Appeal from, judgment in favor of plaintiffs, entered on verdict directed by the court.

      George S. Hastings, for app’lts; J. Stewart Boss, for resp’ts.
   Barnard, P. J.

In October, 1889, one Clark Balcom bought a horse and wagon of Frank A. Pierson, one of the defendants. A note was given for the whole amount. The note was at once transferred to the defendants and discounted for their benefit. It was partly paid by Balcom from time to time and renewed, and finally was reduced to $275.

In December, 1889, Balcom transferred property to the plaintiffs for a past indebtedness and took employment under them in the same business which he had been conducting and at the same place, the plaintiffs furnishing the stock. Balcom sold plaintiffs’ property to the defendants, and allowed his own note as part payment of the bill for the goods thus sold belonging to plaintiffs. The transaction was wholly unauthorized and illegal and constituted no payment. The proof as to the agency of Balcom and that his sign continued over the door has no relevancy under the facts of this case. The defendants got plaintiffs’ property and have not paid for it. An agent cannot discharge without actual payment. De Mets v. Dagron, 53 N. Y., 635.

The judgment should, therefore, be affirmed, with costs.

Dykmah and Pratt, J.J., concur.


author: Pratt, J.

text:
    In the Matter of the Application of The Pierce, Butler & Pierce Co., App’lt, v. Frederick Bleckwenn, Treasurer, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Mandamus—Affidavit.
    An affidavit in answer to an alternative mandamus to compel a city treasurer to pay warrants drawn on him, denying that he has funds “ applicable to the payment of such warrants” or that the claim is founded on contract, is not sufficient to raise an issue. He should state the facts and not conclusions.
    2. Schools—Long- Island City.
    Chapter 519, Laws 1887, authorizing the issue of bonds for the purpose of building school houses, does not limit the power of the board of education or the city in building such houses or repairing, nor restrict the payment therefor to the money derived from a sale of such ponds. If such funds are insufficient, the municipal authorities may, undet the provisions of the charter, make an appropriation for the deficiency.
    8. Same.
    The common council has the right under the charter to appropriate for that purpose up to three-fourths of one per cent of the assessed valuation, and until the amount of the appropriation made is expended the treasurer cannot question the right to draw upon funds in his hands.
    Appeal from order denying application for a peremptory mandamus.

    This proceeding is brought by the appellants for the purpose of compelling the treasurer of Long Island City to pay two warrants received by them from the board of education of that city. One of these warrants, dated May 1, 1890, is for $2,302, and was. received in payment for heating and ventilating apparatus furnished for the new school house recently erected in the third ward; and the other dated February 24, 1891, is for $4,000, and was received for the first payment on account of similiar apparatus furnished for the new school in the fifth ward. Bach of the warrants is drawn against an appropriation of $50,000 made in this year’s tax levy of Long Island City “ for furniture and steam heating apparatus for the First, Second, Third and Fifth ward schools.” The respondent does not deny that he has in his hands of the money so appropriated sufficient to pay these warrants, but at the hearing at special term he resisted their payment on the following grounds: (1.) He claimed that the appellants’ contracts were void, because, as he alleged, they were made prior to such tax levy, “ and at a time when no money had been appropriated for the purpose, pursuant to law, and no fund existed out of which payments therefor could have been made.” (2.) He claimed that the appropriation against which the warrants were drawn was void, because, as alleged, the same was in excess of the limitations imposed by the charter of the city. These were the only grounds upon which the respondent sought to justify his refusal to pay.
    The court held that the only fund from which the appellants could be paid was that derivable from the sale of bonds issued pursuant to chap. 519 of the Laws of 1887, as amended by chap. 300 of the Laws of 1890.
    From the order of the special term denying the motion for a mandamus, this appeal is taken.

      Thomas M. Wyatt (George W. Stephens, of counsel), for app’lts; A. T Payne, for resp’ts.
   Pratt, J.

The relator’s claim is a just one and if the defendant can be made to pay it without violating any principle of law it should be done.

We do not think any issue of fact was raised by the respondent’s denial that he had any funds applicable to the payment of the warrant presented, or that the claim was founded upon contract.

Such an answer was evasive and involved a question of law. He did not say he had no money in hand, but was careful to say “applicable to pay the warrant.” It was incumbent upon him to state facts and not his conclusions of law upon that subject.

Each of the warrants was drawn against an appropriation of $50,000, made in this year’s tax levy of Long Island City for the furnishing of the goods mentioned in relator’s bills.

The respondent did not deny that he had in his hands that money so appropriated, but he claimed the contracts were void because they were made prior, to the tax levy, and, second, that the appropriation was void because it was in excess of the limitations imposed by the charter.

The contracts were valid; the charter, chapter 461, Laws of 1871, title 9, chap. 2, confers ample power on the board of education to erect and furnish school houses and to make all needful repairs and pay the expenses out of the revenues raised pursuant to the act.

The act of 1887, chap. 519, upon which the court below based its decision, was passed, not for the purpose of limiting the powers of the board of education, or the city authorities in building school houses or making repairs, but for the purpose of enabling the city to issue bonds, and there is nothing in that act that requires that the school houses shall be completed solely with the money derived from a sale of the bonds.

The only effect of that act was to authorize certain sums to be raised in that manner and applied towards the purchase of lands and the erection of school houses.

It did not act and cannot be construed as a limitation of the powers of the board of education and the common council in regard to building school houses. If the money so appropriated was insufficient to complete the school houses, I see no objection to the municipal authorities proceeding to complete the same under the provisions of the charter as above quoted. People ex rel. Murphy v. Kelly, 76 N. Y., 475.

If such is a fair construction of the act of 1887, chap. 519, with its amendments, 1890, then it was not incumbent upon the relator to show that the respondent had in his hands money derived from the sale of the $50,000 of bonds referred to in that act.

It clearly appeared that by the tax levy an appropriation was made of $50,000 for furnishing said steam heating, and there was no pretense in the answer of the respondent or his affidavits that such appropriation had been exhausted.

The respondent claims, under § 9, title 9, chap. 2 of charter, that the appropriation of $50,000 was illegal, because that specific appropriation was in addition to another for precisely such a percentage of the assessment.

The section reads as follows: “ The common council of Long Island City shall annually raise and collect, by tax upon all the taxable property of said city, a sum of money equal to the sum specified in the estimated amount required by the board of education for public school purposes, not exceeding three-fourths of one per cent on one hundred dollars valuation of such taxable property, in the same manner as the contingent charges of the said city are levied and collected, to be applied to the purposes and benefit of the public schools of the said city; and the board of education shall apportion the money so raised to the public schools according to the number of children over four and under twenty-one years of age, who were actual residents of Long Island City at the time of their attendance in such school without charge the preceding year. * * * The sum apportioned to any school under the charge of the board of education shall- be paid by the treasurer of said city upon the drafts drawn on him by the board of education.”

It is very plain that the money thus appropriated is intended to provide for the current expenses of the schools, and not for the extraordinary ones incident to erecting new school houses. That the expenses of erecting new school houses was not intended to be a charge on the moneys appropriated under the section quoted above, it is only necessary to refer to §§ 13 and 14, quoted in our first point. The closing paragraph of the latter section expressly provides how such expense is to be met, namely: it “ shall be paid out of the revenues levied and raised pursuant to the provisions of this act.” This does not mean that it is to be paid out of the per capita allowance to the schools already in existence in the ward in which the new school is located, but out of the general fund of the city. This is the only possible construction of the law which would ever enable a new school house to be erected, or new schools to be established.

It is clear, even under the respondent’s contention, that if the common council had no right to make the additional appropriations, still these claims should be paid, as all drafts made upon either fund should be paid until all the drafts should have aggregated the three-fourths of one per cent of the assessed valuations.

The common council had a right to appropriate up to the three-fourths of one per cent, and until this amount was expended it did not lie with the treasurer to question the right to draw upon funds in his hands.

It is to be observed that the respondent makes no pretense that he has paid out on the drafts of the board of education to the extent of the three-fourths of one per cent on the assessed valuations.

We think it clearly appeared that the contracts for which payments were demanded on the drafts were valid and regular; that the respondent had funds properly applicable thereto.

Order reversed. Mandamus to issue as prayed for.

Barnard, P. J., and Dykman, J., concur.


author: Kellogg, J.

text:
    Margaret Kain, Adm’rx, Resp’t, v. Patrick Larkin et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Fraudulent conveyance—Statements made in supplementary proceedings.
    Where it is desired to show the fraudulent intent of a grantor of real estate, his statements made upon an examination in proceedings supplementary to execution are competent against him, and proof of such statements may be made by the testimony of those who heard the party testify upon such examination.
    Appeal from judgment in favor of plaintiff entered on decision of the court.

      F. L. & F. A. Westbrook (F. A. Westbrook, of counsel), for app’lts; G. B. Adams, for resp’t.
   Kellogg, J.

This is a creditor’s suit, an action in equity to set aside a deed of real estate as made to hinder, delay and defraud plaintiff, as creditor of Patrick Larkin, the grantor named in the deed, and to declare plaintiff’s judgment a lien on the premises described in the deed, or to subject such property, through the agency of a receiver, to the payment of such judgment

In ¡November, 1886, defendant Patrick Larkin caused, through negligence or malice, the death of one David Kain.

The cause of action created by statute dates back to the death of David Kain, in ¡November, 1886. Action was commenced soon after, and service of summons made upon Patrick Larkin January 6, 1887. Judgment herein was perfected October 16, 1890, for $1,518.28. Execution was issued "and returned unsatisfied. Immediately after service of summons defendant drew from bank his deposits, some $1,400, and redeposited the most of the same money in bank in the name of his wife. It is not shown that he had any other personal property. At about the same time he executed a mortgage to his brother for $3,000 on his real estate, being the full value of the premises. All this was done within a week after the commencement of the action.

Defendant had one child only, the defendant, Maria E. Larkin. About May 1, 1889, and while that action was pending, defendant, Patrick Larkin, deeded his real estate to her, she being then a minor in age, and the mortgagee satisfied of record the $3,000 mortgage. The expressed consideration of the deed was “ one dollar and natural affection.” It does not appear that defendant had any other property, or was owing any debt other than the claim sued upon by plaintiff in this action. The reasonable deduction from the evidence is that by his acts within a week after the commencement of that action the defendant, Patrick Larkin, apparently divested himself of all his real and personal property solely to prevent any portion being taken to pay any judgment which might result in that action. That the disposition of his money and the creation of the mortgage were both fraudulent acts so far as creditors were concerned.

It is also a reasonable deduction from the evidence that at the time of deeding this real estate to his minor child he was insolvent ; that by the deed he conveyed whatever interest he had in all property.

It does not appear that he disposed of any other property between the date of this deed and the time of return of execution on that judgment wholly unsatisfied. Indeed, it nowhere appears that he had at any time any other property than this money turned over to his wife and this real estate deeded to his daughter.

The defendant, Maria E. Larkin, makes a feeble effort to show a consideration for the deed moving from her to her father. She lived at home as other minor children mostly do, was supported there and did some service there as in duty bound. She does not disclose any facts upon which a court could predicate any legal or equitable claim against her father during her minority. She did in obedience to her father’s commands only what she was bound to do without compensation, and if promise of future compensation was ever held out to her it must take the aspect of a promise of a gift in futuro. And no gift made in pursuance of such a promise, where a person is unable at the time to pay his creditors in full, will be claimed to be valid.

The conclusion is irresistible that the defendant, Patrick Larkin, had the intent, in making this disposition of his property, to delay and defraud his creditor, the plaintiff in this action. And if it were necessary to pass upon the question of intent on the part of the grantee in this deed of gift, it would be far from necessary to torture the plain meaning of the whole evidence and the reasonable inferences to conclude that the defendant, Maria B. Larkin, had a like fraudulent intent.

We see no error in the findings of fact or law.

The admission as evidence against Patrick Larkin of his statement upon supplementary proceedings was proper. It was important to show that Patrick Larkin in this disposition of his property had the intent to defraud his creditors. And it was proper to prove that; independent of any intent on the part of the grantee. The intent of the grantee when necessary to be shown may depend upon quite other proof.

The methods taken to prove such statements were proper, viz: the testimony of those who heard him make them. The testimony taken in supplementary proceedings is not made by statute so far a record as to make it primary proof in all other actions to the exclusion of other proof. If it were so it would necessarily have the weight of sworn testimony, and not the weight accorded to a simple admission of a party.

The judgment should be affirmed, with costs.

Learned, P. J., and Mayham, J., concur.


author: Learned, P. J.

text:
    Deyoe Lohnas, Resp’t, v. William J. Arkell, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    'Corporations—Notice to one director.
    In an action where it was sought to charge a person for supplies furnished to a hotel upon the ground that he was the lessee, he offered to show that he had told a director of the corporation wh:ch owned the property that he would not become the lessee. Held, that notice to one director was not sufficient and that such notice should have been communicated to the hoard of directors.
    Appeal from judgment for $1,901.73 in favor of plaintiff •entered upon report of referee.

      IV. A. Sweetser {T. F. Hamilton, of counsel), for app’lt; Adélbert F. Car rod, for resp’t.
   Learned, P. J.

This is an appeal from a judgment on report •of a referee. The action was brought to recover for meat furnished during the season of 1890 to the Hotel Balmoral at Mount McGfregor. There is no question as to the delivery of the- meat at that hotel during that season. The only question is whether the defendant is liable as lessee and proprietor. The matter is merely one of fact.

• The defendant was president of the Mt. McGfregor Eailroad ■Company, which owned and carried on a railroad running from Saratoga Springs to the top of Mt. McGfregor, and also own'ed this hotel and the adjacent land.

At a meeting of the directors March 15, 1890, at which defendant was present, it appears that defendant offered to lease the hotel for the season of 1890 at the nominal rent of one dollar, and to indemnify the company against loss, with a proviso that the company would furnish free transportation to permanent guests. This was accepted by the company. The-minutes containing the offer and acceptance were read and approved at the next meeting of the directors, at which there was a quorum, viz., December 1st, at which also defendant was present.

It is in evidence that in March or April of that year defendant made an arrangement with one Bailey to run the hotel for $250 a month, and. half of the net profits. Bailey went there, looked at the hotel, and did run it as manager that season. Before he began he told defendant that he wanted a. little bank account of somebody else’s money besides his own and defendant gave him $300. He deposited this in a bank at Saratoga to his credit as manager. When the season was over he took the money he had and paid the bills except plaintiff’s and Lefier’s. He had an account against defendant for board of himself, his family and friends at the hotel, and an account, against the railroad company. He handed over these accounts, with some money, about $200, which he had in the bank, to the defendant. He also handed over to defendant the two outstanding bills, plaintiff’s and Lefler’s, which latter was for groceries. He told defendant he wanted him to take the money and pay these two bills; and defendant said all right.

The plaintiff testifies that subsequently he called on defendant for payment, and he said he would pay the bill.

In contradiction of this evidence, the defendant testifies that at the meeting of the board of directors he said he thought he would run the hotel in his own name, but wanted to talk with his father and brother about it, and would let the company know shortly; that he asked them to pass the resolution so as to save time. He testifies that he did talk with his father and brother, and they thought the plan undesirable. He offered to testify that thereafter he told Mr. Richmond that he would not take the hotel. Mr. Richmond was a director of the railroad company. He states, that he was also present at the meeting in December when the minutes of the March meeting above mentioned were read and approved. He denies his promise to pay plaintiff. He admits, receiving from Bailey at the close of the season the check for about $200, the account against the railroad company for board and his own account for board, between $700 and $1,000.

This is an outline of the testimony.

The defendant insists that he should have been permitted to prove his statement to Richmond that he would not take the hotel. We do not see the competency of this. Richmond was but a director. If plaintiff’s version of the arrangement at the March meeting of the directors is correct, then he should have notified the directors, not merely a single director. He might as-well have notified himself as have notified Richmond. He was president, and could probably have called a meeting of the board and could have notified them. But the record of the meeting at which he was present, and the resolution which he testifies that he wished them to adopt, and the subsequent approval of the minutes in December at a meeting where he was present are satisfactory evidence that he was the lessee, and that the proposition made by him in March and accepted then by the board was in no respect conditional.

This is the only question raised on this appeal as to the admission or exclusion of evidence.

We think that in addition to the minutes there is this further circumstance: The defendant, with his friends and family, boarded at the hotel and incurred an indebtedness of from $700 to $1,000. At the close of the season Bailey handed over this amount to him with the balance of the money and also' the two outstanding accounts. ¡Now, unless the defendant was the lessee, this account of his would have been an indebtedness for him to pay. But if he were the lessee, and, therefore, bound to pay all the outstanding debts, there would be no use of his paying to Bailey, his agent, the amount of his own bill. The fact, therefore, that Bailey turned over to him, and he took, his own account and the cash balance with the two outstanding bills is strong evidence that he was really the lessee and Bailey was his agent

There is no claim that Bailey was himself lessee. But it would seem that defendant claims that Bailey was agent of the railroad company. It does not appear, however, that he has paid his own board bill to the railroad company. And there is nothing in the testimony showing that the arrangement with Bailey was made in behalf of the company. The conversation, as testified to by Bailey, shows an agreement with the defendant.

Whether the company could have set aside the lease between itself and defendant is immaterial. It never did. And as long as defendant, through his agent Bailey, bought this meat of plaintiff, it matters not whether defendant’s lease was voidable or valid. Defendant had the hotel, and his agent carried on the business. For the debts thus incurred the defendant is liable.

Judgment affirmed, with costs.

Mayham, J., concurs; Putnam, J., not acting.


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    The Phœnix Mills, App’lt, v. James A. Miller, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Chattel mortgage—Reassignment—Fixtures.
    A company mortgaged fixtures attached to its mill, some of the articles being permanently attached. The mortgagee, or those claiming under him, took, under the mortgage, all of the articles which were not real estate. The mortgage, or an interest in the remaining fixtures, was then reassigned to the company. Meld, that by this the company gained no new rights, but was only restored to those which it had had originally, and could not maintain trover for said fixtures against a purchaser of the premises under the foreclosure of a mortgage given prior to the time when, the company took title.
    Appeal from judgment dismissing the complaint entered upon, the report of a referee.

      Maxiuell Bros., for app’lt; Stover & Nisbet (M. L. Stover, of counsel), for resp’t
   Learned, P. J.

This is an appeal from a judgment on report of a referee.

This action was commenced in 1886 to recover the value of certain property alleged to be wrongfully detained by defendant. The property was machinery which plaintiff claimed was still personal property although attached to a mill. The plaintiff recovered on trial at circuit. The judgment was reversed at general term for errors in admitting and excluding evidence. 4 St. Rep., 787. It was again tried at circuit and plaintiff again recovered. The judgment was also reversed by the general term, July, 1887 ; the case appears not to have been reported, but a copy of the opinion has been furnished us.

The cause was again tried, this time before a referee, who reported in favor of defendant. The plaintiff appeals. No question as to admission or exclusion of evidence was made.

The referee, among other things, finds that at the time the plaintiff placed said property on the premises it intended that the same-should be annexed to and form part of the real estate; and with the intention that it should be permanently used thereon; that said property was so situated that its removal would materially injure-the value of said real estate and seriously impair its usefulness for mill purposes; and that the property could not be removed without serious injury to the building and to said real estate.

The plaintiff seeks to make title to this property through a chattel mortgage made by itself to Blaisdell & Co., and which was subsequently assigned by Blaisdell & Co. to Warner and by Warner to the plaintiff itself. But it was pointed out in the opinion in 4 St. Rep., 787, that this transaction simply restored plaintiff to its original rights as respects the title to the property held by it when the mortgage was given. Plaintiff gained no-better title than it had when the mortgage was given.

It was further stated in that opinion that the plaintiff held the-position of grantor and defendant that of grantee, the mortgage to Blaisdell & Co. being now out of the way.

It further appears that Warner while he held the chattel mortgage with another holder of a chattel mortgage, Inman, took all that belonged to him under the chattel mortgage. He plainly took, according to his own testimony, every thing that did not come within the description of real estate. Having done this he then assigned all his right to shafting, etc., and fixtures or personal property affixed to the mills. Thus the holder of the mortgage had enforced it against every thing which he supposed was personal and then assigned his interest in every thing else to the original mortgagor. Then the mortgagor endeavors to make-title to certain things as personal, by virtue of this mortgage which it had itself executed.

We have examined this case as this general term had already done in two instances. We do not think it necessary to discuss the doctrine of fixtures or to state at much length the facts of the case. We think that the conclusions of the referee are correct and that the judgment should be affirmed, with costs.

Mayham and Putnam, JJ., concur.


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    Anna S. Carpenter, App’lt, v. Hiland Carpenter, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Divorce—Adultery—Bill op particulars.
    A plaintiff should not he required to furnish a bill of particulars relative to an allegation in a complaint that the defendant was living in adulterous intercourse.
    Appeal by the plaintiff from an order granted at special term by Mr. Justice Mayham, September 30,1891, directing the plaintiff to furnish the defendant with a bill of particulars or statement in writing of the particular time or times and place or places at which the plaintiff expects or intends to prove any act or acts of adultery or criminal intercourse that took place between the defendant and Grussie McGreeehie, mentioned in her amended complaint, other than those particularly specified in said complaint, and particularly the acts of adultery alleged under the 13th, 14th and 15th general paragraphs or divisions of said amended complaint.
    By the amended complaint nine specific acts of adultery are charged against the defendant, being alleged in the 4th, 5th, 6th, 7th, 8th, 9th, 10th, 11th and 12th general divisions of such amended complaint; and three general allegations of adultery committed by defendant with the same. person on divers other times: (1) between the 1st day of December, 1888, and the 20th day of May, 1891; (2) on divers other times between the 1st day of December, 1888, and the 20th day of May, 1891; and (3) from about the 6th day of August, 1890, until about the 20th day of May, 1891, at the town of Hoosick, the defendant had been living in adulterous intercourse with said woman, Grussie McGreeehie, at her said residence or lodging, as plaintiff is informed and believes, which are stated in the 13th, 14th and 15th general divisions of said amended complaint.
    After such amended complaint had been so served, the defendant, on the 17th September, 1891, made his affidavit, in which he denied each and every allegation of adultery charged against him in the said amended complaint, and his inability to meet those general allegations of adultery without a bill of particulars. Thereupon the notice of motion for a bill of particulars was given and served.

      G. D. Kingsley (Henry A. King, of counsel), for app’lt; Smith & Parmenter (B. A.Parmenter, of counsel), for resp’t.
   Kellogg, J.

We are of opinion that the order of the special term appealed from directing a bill of particulars be furnished by plaintiff should be modified by striking out that requirement as-to the fifteenth general paragraph of the complaint.

The allegation in the fifteenth paragraph is the “living in adulterous intercourse.” Under this allegation it would be mani■festly improper to exclude proof of a nature which, though circumstantial, might point to such living in adulterous intercourse, but be wholly unsatisfactory as proof of a particular act of adultery at a particular date or place.

It is therefore ordered, that the order of the special term be modified by striking out the words “ and fifteenth ” and by the insertion of the word “and” between the words “ thirteenth ” and “fourteenth” and so modified the order be affirmed. The defendant to serve a copy of the modified order and the plaintiff to have ten days thereafter to comply therewith.

The appellant to have ten dollars costs of this appeal and printing disbursements.

Learned, P. J., concurs.


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    Benjamin L. Conde, Adm’r, Resp’t, v. Hiram Wiltsie et al., Ex’rs, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1891.)

    Vendor and purchaser—Action to recover consideration.
    Plaintiff’s intestate conveyed certain premises subject to mortgage to defendant’s testator. In an action to recover the consideration therefor the husband of intestate testified that testator agreed to give her $2,000 therefor and to pay as soon as he sold the property, and that sales exceeding that amount had been made. Intestate’s sister also testified to admissions of testator that he had taken the property to save it for intestate, and would give her all it brought over what she had of him. Defendant’s evidence tended to show that the mortgage and the indebtedness of intestate to the testator was to be deducted from the avails of sale. Held, that it would have been error to nonsuit or direct a verdict on this conflict of evidence, and that the verdict of the jury was conclusive.
    Appeal from judgment in favor of plaintiff entered upon verdict.

      Andrew Vanderzee (Nathaniel G. Moah, of counsel), for app’lts; Van Alstyne & Hevenor (T. J. Van Alstyne, of counsel), for resp’t
   Kellogg, J.

This case seems to have presented a simple question of fact for the jury. It was submitted to the jury and a verdict rendered in favor of the plaintiff. From the judgment •in favor of the plaintiff defendant appeals. It appears that in April, 1877, Hannah M. Ham, deceased since the trial in this action, conveyed by deed of warranty certainreal estate to Ambrose Wiltsie, Jr., who has since died ; that the consideration expressed in such deed was $2,000, with the usual declaration of acknowledgment of its payment to the vendor. The deed is made subject to a mortgage of about a thousand dollars upon the premises. It is alleged in the complaint that the consideration of $2,000 has never been paid ; that the grantee at the time of the delivery of the deed promised to make payment thereafter, and subsequently made some small payments in pursuance of such promise. It is ■also claimed by the plaintiff that the mortgage upon the premises was also to be paid by the vendee in addition to the consideration ■of $2,000 expressed. On the part of the defendant it is claimed by answer that the deed was taken by the grantee, who was subsequently to sell the said property for the best price he could obtain, and out of the proceeds of sale to deduct the sums of money-then owing by the grantor to the grantee and also the sum of money which he might have to pay in extinguishment of the mortgage upon the premises, and the balance, if any, should be paid over to Hannah M. Ham, the grantor.

To support the contention of the plaintiff she produces as a witness the husband of the grantor, who testified that he was present at the time the arrangement was made in reference to the conveyance of this property to Ambrose Wiltsie, Jr., the grantee; that it was “ that he would buy the property for her, and would give her two thousand dollars for the property, subject to the mortgage held by Joslin Nodine. He further said he would take the property, and as soon as he sold it he would pay her for it” That in pursuance of such agreement a deed was made and delivered. That subsequent thereto, and in 1881, a portion of said premises were sold for $1,000, and in 1882 the balance of said premises were sold for $1,100. The plaintiff also produced as a witness one Mary E. Baumes, a sister of Hannah M. Ham, the grantor, who testified to a conversation with Ambrose Wiltsie, the grantee in the deed, had in the year 1880, in which she says: “ He (Wiltsie) told me he had taken the property to save it for her (Hannah M. Ham); that he meant to sell it again, and every dollar that he got more than she had of him he meant she should have.” To controvert this proof and to establish before the jury that any payment on the mortgage then on the premises was to be taken out of the avails of the sale of the property when made, and also to establish that the indebtedness existing in Hannah M„ Ham to the grantee was also to be taken out, and what that indebtedness was, the defendant offered a letter written in 1876 and prior to the conveyance by Hannah M. Ham to the grantee aforesaid, and relied upon the book of accounts of the said Ambrose Wiltsie offered in evidence by the plaintiff, and also statements-made by Hannah M. Ham as to her not having any property at a time subsequent to the conveyance by this deed, and certain other proofs, all of which were submitted to the jury under the instructions contained in the charge of the court, and upon all the evidence the jury were instructed to find upon all the questions involved.

It does not appear that any error was committed in the charge of the court taken as a whole, or that any error was committed by the court in the allowance of the evidence offered, or in the exclusion of any evidence offered. It would have been error to have granted a nonsuit, and error to have directed a verdict upon facts and proof so conflicting. We think there is sufficient evidence in the case to support the verdict of the jury, and that it was eminently a case for their consideration and final determination upon the facts.

Judgment affirmed, with costs.

Learned, P. J., concurs; Matham, J., not acting.


author: Dwight, P. J.

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    George C. Murphy, Resp’t, v. The New York, Lake Erie & Western Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    egliqekce—Railroads.
    Plaintiff was engaged in hauling coal from the railroad for a firm of coal dealers, the coal being shovelled from the car by a co-employee. At the request of his employers he got upon the end of the car, a gondola, to see how much coal was left, when other cars moving on the same track came in contact with the one he was on, his foot which was on the bumpers slipped and was caught when they came together the second time The jar of the contact was not shown to be violent. Held, that under the circumstances it did not appear that the defendant was negligent in the performance of any duty which it owed to plaintiff, and that a non-suit should have been granted.
    Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury, at the Erie Circuit, and from an order denying the defendant’s motion for a new trial' made on the minutes of the court.

      E. 0. Sprague, for app’lt; W. W. Storrs, for resp’t .
   Dwight, P. J.

The action is to recover damages for a bodily injury sustained by the plaintiff by reason of alleged negligence of the defendant The plaintiff was in the employ of a firm of coal dealers in Lockport as a driver, and at the time of the accident was engaged in hauling coal from the yard of the defendant. The coal was shovelled into his wagons, from a car standing on the track, by another laborer employed by the coal dealers. On one of his return trips to the railroad yard the plaintiff was directed by one of his employers to see how much •coal was left in the car and bring him word. Having reached the yard and changed his horse from the empty wagon to the loaded one, he went to the end of the car and climed up onto the projecting timbers, or what he calls the platform, of the car and. was attempting to pass around the brake which stood at the corner where he got up, when other cars, being moved on the same track, came in contact with the car on which he stood and his foot was caught between the bumpers and the injury was received of which he complains.

The car from which the coal was being unloaded was a “ gondola,” or open car, with its floor about four feet from the track and its sides about three feet and a half above the floor. The only witnesses sworn in the case were the plaintiff and one of his employers, and the latter testified only to the plaintiff’s employment and his character as a workman. At the close of this testimony counsel for the defendant moved for a. nón-suit on the grounds: (1) That it is not shown that the accident occurred by reason of any violation by the defendant of any duty which it owed to the plaintiff; (2) That when the plaintiff stepped upon the platform he did so at his own risk; (3) That the plaintiff had failed to show that the defendant had been guilty of any negligence for which it was responsible in this action; and (4) That he bad failed to show that he was free from negligence contributing to the accident. The motion for a non-suit was denied and the defendant excepted.

We think the exception was well taken upon all or upon «either of the grounds stated for the motion. It was not shown that the defendant, or any of its servants engaged in the management and movement of its cars, had any notice or reason to suppose that the plaintiff was or was likely to be on the outside of the car or in a position to be injured by the contact of other cars with the one being unloaded. They were no doubt chargeable with notice that a man was engaged in shoveling coal from the car and they were bound to use reasonable care not to move their cars in such a way as to endanger his safety; and so it seems they did. The man in the car is not shown to have been in any way disturbed or inconvenienced. The adventure of the plaintiff in ■climbing up on the end of the car was no part of the operation of unloading the coal, and the information which he sought to obtain for his employer might,, it would seem, have been as readily obtained by inspection from either his empty or his loaded wagon, both of which were placed close to the side of the car, as from the precarious footing on the end of the car itself. It may be -conceded that he was guilty of no wrong or trespass in climbing upon the car, but even then, in the absence of notice to the defendant that he had or was likely to have done so, he did it at his own risk of the dangers incident to such an undertaking.

Under those circumstances it is impossible to see that the defendant owed to the plaintiff the duty of even ordinary care in the movement of their cars, but if such were required there is nothing to show that it was omitted on the occasion of this accident. There is no evidence tending to show that the moving cars were brought to their position in any other but the most careful and usual manner. The jar of the contact was not shown to have been violent; as has been said, it did not disturb the man who was at work on the car, nor did it have the effect to dislodge the plaintiff from his position, but only to induce an effort on his part to obtain a better footing. It was in the attempt to do so that he stepped upon the bumpers of the two cars when in contact, and when, as he testifies, they were momentarily separated, his heel ■slipped between them and was caught when they came together a ■second time.

Indeed, it is not really contended that the defendant was guilty of any negligence except in the failure to give notice to the plaintiff of the approach of the moving cars. But there is no evidence of the omission of any of the ordinary signals of the moving of trains or of cars in the yard, and it would be unreasonaVe to require an individual warning to a person whose presence in a position of danger the defendant had no reason to anticipate. So that the whole question of the defendant’s negligence resolves itself, as we think, into the inquiry already discussed, whether the defendant was bound to take notice that the plaintiff, or some other person, had the right to be, and was likely to be, in the position of danger described.

We are much inclined to the opinion that the plaintiff’s testimouy fails to exculpate him from the charge of contributory negligence, but it is possible that that question might properly have been submitted to the jury if a case had been made in other respects. We prefer to place our judgment upon the ground that a case was not made in which the jury was justified in finding that the injury complained of was caused by the neglect of the defendant to perform any duty which it owed to the plaintiff.

The cases cited in the opinion at special term differ, as we think, materially from that at bar in the facts upon which the application of the doctrine stated depends. In Barton v. N. Y. C. &. H. R. R. R. Co., 1 T. & C., 297; affirmed in 56 1ST. Y., 660, the plaintiff was employed by the shipper in the work of transferring grain from the car of the defendant to a boat lying alongside the track, and the situation in which he was struck and injured by the car was one which was made necessary by the particular work in which he was engaged. In Newson v. The N. Y. C. R. R. Co., 29 N. Y., 383, the plaintiff was employed to unload gravel from the car onto a wagon, and also to drive the wagon to the place where the gravel was used ; and the accident was attributable not to any collision with the car, but to a negligent management of another train of the defendant close by, which frightened his horses, and he was thrown from his load. In Stinson v. The Same, 32 N. Y., 333, the plaintiff’s intestate was himself the shipper of goods, and at the moment of the accident was helping to lift a carriage from the freight house into the car close alongside, when the car was negligently moved in such manner as to crush him between it and the side of the building; but the question upon which that case turned was of the effect of a contract signed by the shipper, which, it was claimed, devolved the risk of all such accidents upon himself. In all these cases the injuries were received when the persons injured were in situations required by the exigencies of their employment, of which the defendant was chargable with notice. The same is true of the case of Ominger v. The Same, 6 T. & C., 498, which is cited, in addition to the foregoing, by counsel for the respondent. We find a distinction in principle between all these cases and the case at bar.

Upon the grounds hereinbefore stated we think the motion for a nonsuit should have been granted, and that for the error involved in its denial the judgment and order appealed from should be reversed.

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

Macombee and Lewis, JJ., concur.


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    Oliver S. Vreeland, Resp’t, v. Mortimer N. Pratt, Sheriff, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Chattel mortgage—Validity.
    In the absence of an agreement between the mortgagor and mortgagee that the former might deal with the property as his own, the mortgage is not rendered void by the fact that the property was thus dealt with.
    3. Same—Effect of withholding- from record.
    A chattel mortgage which is not filed within a reasonable time is void not only as to creditors whose debts accrue during the time it is withheld from record, but also those whose debts accrue before its execution and remain unpaid thereafter.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury at the Cattaraugus circuit, and from an order denying the defendant’s motion for a new trial on the minutes of .the court.

      D. Hays, for app’lt; 0. D. Davie, for resp’t.
   Dwight, P. J.

The plaintiff was a chattel mortgagee and the ■defendant represents an execution creditor. There are two questions in the case; 1st. Was the chattel mortgage void as to the creditor because the property was left in the hands of the mortgagor and he was permitted to deal with it as his own? And 2d. Was the chattel mortgage void as to the creditor because it was not filed for four weeks after it was executed; the credit having been given before the execution of the mortgage. We think the former of these questions was correctly disposed of by the judge .at the circuit. He submitted the question to the jury to say whether there was an agreement or understanding between the ■mortgagor and the mortgagee contemporaneous with the mortgage, that the mortgagor might so deal with the property, and the jury was instructed that, in the absence of such an agreement, the mortgage was not rendered void by the fact that the property was thus dealt with. The decisions on this question have been very conflicting, but the law must be regarded as settled, at present, in favor of the instruction thus given to the jury. Frost v. Warren, 42 N. Y., 204; Manufacturers' Bank v. Koch, 8 St. Rep., 37; Hangen v. Hachemeister, 114 N. Y., 566; 24 St. Rep., 526; Brackett v. Harvey, 91 N. Y., 214; Hincks v. Field, 37 St. Rep., 724. And so the question whether such agreement existed was left to the jury upon a conflict between direct and circumstantial evidence, and the verdict for the plaintiff upon that issue cannot be disturbed.

The other question propounded above arises under the statute of 1833, Laws of 1833, chapter 279, § 1; Birdseye’s Statutes, vol. 1, page 479, § 1, which declares that every mortgage of chattels, ■“ which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage or a true copy thereof shall be filed ” as directed in the next section.

The precise question which arises in this case is whether a creditor, represented by the sheriff, defendant, whose debt accrued, or whose credit was given, before the chattel mortgage was executed, is entitled to the protection of the statute quoted. The jury in this case was instructed that it was only creditors whose debts accrued during the default in filing who were so entitled. We think the instruction was error which vitiates the judgment. The statute in question is an evident amendment of or addendum to the provision of the Revised Statutes, 2 R". S., 136, § 5, which relates to the same subject matter, and, with the addition of the provision for filing the mortgage, is in the same language. The earlier statute provides that every sale or assignment of goods and chattels by way of mortgage or security, “ unless the same be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things sold, mortgaged or assigned, shall be presumed to be fraudulent and void as against the creditors of the vendor, or the creditors' of the person making such assignment, or subsequent purchasers in good faith.”

The draftsman of the later statute evidently had the earlier before him and copied it so far as was consistent with the purpose to confine the new enactment to the case of chattel mortgages only, and to provide a mode of saving such securities, by filing. It would seem to be proper, therefore, to give to the same terms, employed in both statutes, the same meaning. And if this is to be done we are aided in our construction of the later enactment by definition which accompanies the earlier. By the next following section of the Revised Statutes, 2 R. S., 136, § 6, it is provided that “ the term creditors as used in the last section shall be construed to include all persons who shall be creditors of the vendor or assignor at any time whilst such goods and chattels shall remain in his possession or under his control.”

The language is not “ all persons who shall become creditors ” during the period mentioned, but “ who shall be creditors ” during that time; and this would embrace those who were creditors before the sale or assignment, and who continued to be so after such disposition of the property. The same, or an analogous, interpretation of the act of 1833 would extend the benefit of its provisions to those creditors whose debts had accrued before the execution of the chattel mortgage and remained unpaid after its execution and before it was filed. Moreover, the reason of the provision is in accordance with the plain import of the terms employed. Its object is to protect creditors against the misleading effect of the goods remaining in the possession and control of the debtor after they have been secretly transferred to another person. The effect is, at once, to encourage the giving of credit and the continuance of credit already given. The existing creditor relies upon the evidence of continued ownership of the goods by fils debtor, and foregoes those means of securing his debt, of which he might have availed himself had he known that his debtor was disposing of his property. The language of the enactment is certainly sufficient to cover both classes of creditors. It declares that a mortgage so given and not filed shall be absolutely void as against “ the creditors ” of the mortgagor. Ho distinction is made or suggested between the two classes of creditors. The language, and the analogy of the earlier statute, covers them both ; we think the reason of the enactment covers them both, and there has been up to this time, so far as we are advised, no adjudication which excludes either. It is true most of the reported cases relate to credits given during the time the mortgage is withheld from the files, and the language of the decision goes no further than the case in hand. But such cases furnish no authority nor even dictum, against the wider application of the statute. The case of Clark v. Gilbert, 10 Daly, 316, on the other hand, is directly in point in support of the present view of the statute; the language of the court being, “ The creditors intended by the section are not only judgment creditors, but such as were simple contract creditors when the mortgage was executed, and such as became or continued to be creditors of the mortgagor during the period that the goods remained in his possession and before the mortgage was actually filed,’’ and the cases of Thompson v. Van Vechten, 27 N. Y., 568; Parshall v. Eggert, 54 id., 18; Dutcher v. Swartwood, 15 Hun, 33; Fraser v. Gilbert, 11 id., 637, are cited as authority for that holding. See also Thomas on Mortgages, 325.

The objection that the construction of the statute here upheld would render every chattel mortgage void as to all existing creditors of the mortgagor, because some time must necessarily elapse between the execution and the filing of the mortgage, is not conclusive. A reasonable application of the statute would require, in every case, a reasonable time in which to procure the mortgage to be filed; and what was such reasonable time would, no doubt, be a question for the jury, dependent upon the particular circumstances of each case. Such was always the rule in analogous cases under the earlier statute already considered. A reasonable time was given for the actual delivery of the property, during which the presumption of fraud did not. arise. Lee v. Huntoon, 1 Hoff., 447; Randall v. Cook, 17 Wend., 53.

The statute is a remedial one; it is directed against the evil of a fraudulent and secret transfer of property, to the prejudice of honest creditors ; it should have application according to the full measure of the import of the language employed. The case in hand we regard as calling for such an application of the remedy provided.

For the error above particularly specified, the judgment should be reversed, and a new trial granted.

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

Macomber and Lewis, JJ., concur.


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    Baldwin’s Bank of Penn Yan, Resp’t, v. William T. Morris, Impl’d, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Partnership—Authority op partner to endorse notes.
    In an action upon a promissory note endorsed by one member of a legal firm in the firm name, it was claimed that such endorsement was unauthorized and did not bind the other members of the firm. It appeared that the note was a renewal of a s milar note, the proceeds of which were passed to the credit of the firm and were drawn out by checks drawn by the partner who appeals, and that the credits appeared in a bank book kept mainly in the possession of such partner. Held, that even if the endorsement of the original note was unauthorized when made, it had been fully ratified by appellant by the use of the credit which he made, and that such ratification constituted an implied authority to endorse renewals of the same note.
    Appeal by the defendant from an order of the Yates special term, denying his motion for a new trial made on the minutes of ‘ the court, after a verdict for the plaintiff at the circuit.

      John Qilhite, for app’lt; M. A. Leary, for resp’t.
   Dwight, P. J.

The action, so far as this appeal is concerned, was on a promissory note for $500, dated February 28, 1883,. made by one Farmer to the order of the Farmer Manufacturing Company, and endorsed by that company, and also by Ealph T.. Wood in the firm name of Wood, Butler & Morris. That firm name represented an existing copartnership, of which Wood and the defendant Monis were members, formed for the practice of the law at the village of Penn Yan, and the question on this appeal is of the authority of Wood to bind the defendant Morris by the endorsement mentioned.

The note was the second renewal of an original note, dated May 5, 1882, made by the same maker, in the same terms, and bearing the same endorsements. The original note was discounted by the plaintiff on the faith of the endorsement of Wood, Butler & Morris, and its avails were placed to the credit of that firm in their account current with the bank on May 5, 1882, and were wholly drawn out within the same month by checks drawn by the defendant Morris for use either of individual members of the-firm or in its business. The bank pass-book of the firm is in evidence. It was kept mainly in the custody of the defendant. Morris, who, by the terms of the articles of copartnership, was to have “ the especial management of the office and keep the details of the business of said firm.” It contains the entry of the note and of its avails to the credit of the firm, under date of May 5, 1882; it shows that on that day, before the entry of the note, the balance to the credit of the firm was $25.52'; that on the same day the defendant Morris drew a check for $124, on the next, day a check for $71, and that before the end of the month,, there having been no further entry on the credit side of the account, he had drawn checks to the extent of an overdraft of $66.60. After this there was never but one more entry in the account to the credit of the firm, viz. : of a note of other parties of about $500, and when that was exhausted the account was. closed.

It was impossible for the jury not to find that the defendant Morris knew that he and his firm were having the benefit of the avails of the note of May 5, 1882, and it was at least permissible, for them to find that he knew or was chargeable with knowledge of the source of that credit to his firm, namely, the endorsement, of the note in the firm name by one of his partners. In other words, the jury was clearly justified in finding that if the endorsement by Wood of the original note was unauthorized when made, it was fully ratified by the defendant Morris by the use which he made of the credit derived therefrom, and that the ratification of that endorsement constituted an implied authority to endorse the renewals of the same note.

This was apparently the theory upon which the learned judge at the circuit submitted the case to the jury. He correctly instructed them that there was no evidence of a ratification of the endorsement of the renewal note. A ratification necessarily follows the act ratified, and implies knowledge of that act; and there is not in this case evidence of such a ratification. But he submitted to the j ury the question whether there was express authority to make the endorsement in question. We would have rather said implied authority; but our difference is only in the name, for the j ury was clearly instructed that the authority spoken of might be implied from the same circumstances as those to which we have referred as constituting a ratification of the original endorsement. The verdict of the jury is equally supported by evidence of an implied as by that of an express authority.

We regard the verdict against the defendant Morris as amply supported by the evidence of his ratification of the endorsement of the original note, and of the authority to be inferred therefrom, as between him and the holder of the note, to endorse the renewal.

The order denying the motion for a new trial should be affirmed.

Order appealed from affirmed.

Macomber and Lewis, JJ., concur.


text:
    The People, App’lts., v. Alfred Horton, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    Indictment—Sufficiency.
    An indictment should show on its face jurisdiction of the offense in the grand jury by which it was found, and it is therefore necessary that it allege that it was committed in the county in which such grand jury was organized.
    Appeal by the People from a judgment of the court of sessions of Monroe county, allowing the defendant’s demurrer to an indictment which charged him with the crime of grand larceny in in the first degree.

      H. II. Widener, for app’lts; G. G. Davy, for resp’t.
   Dwight, P. J.

It is indisputable that an indictment should show on its face jurisdiction of the offense in the grand jury by which it was found, and this it cannot do unless it show that the offense was committed in the county in which the grand jury was organized. In that respect the present indictment is clearly defective. It lays the venue of nearly every act and event mentioned, either by an original specification or by a “ then and there,” except of the act which constituted the crime charged, and that was omitted, probably through inadvertence.

The indictment charges, by way of inducement, that, on a day named, at the city of Rochester in the county of Monroe, the defendant was acting as trustee, etc., etc., having theretofore been duly appointed as such by the surrogate of Monroe county then and there having full power, etc.; that he then and there duly qualified as trustee, and thereupon received a sum of money named, then and. there deposited in the savings bank at Rochester, H. Y., the property of the person for whom he was then and there trustee as-aforesaid, and then it proceeds, “And this grand jury do further-say that thereafter and on the said 17th day of October, 1889, the said Alfred Horton did unlawfully and feloniously secrete, withhold and appropriate to his own use, etc., the sum of, etc., good, and lawful money of, etc.”

This was the charging part of the indictment; the act here specified was that which constituted the offense, and to it.no venue is attached; it does not appear that it was committed in the county of Monroe, in which the indictment was found. In this respect it fails to comply with the requirements of the latest and. most liberal of the statutes concerning criminal pleading. Section 281 of the Code of Criminal Procedure prescribes, among the-requisites for the sufficiency of an indictment, that “ it can be understood therefrom that the crime was committed at some place within the jurisdiction of the court.” It cannot be understood from this indictment that the act constituting the crime was committed at any place within the jurisdiction either of the court in which the indictment was found or of that in which the defendant-was arraigned for trial, since no place is named or referred to in which it was committed.

We agree in the opinion of the learned county judge that, for the reason considered, the demurrer was properly allowed.

The judgment appealed from should be affirmed.

Judgment of the court of sessions of Monroe county affirmed.

Macomber and Lewis, JJ., concur.


author: Bradley, J.

text:
    Eliza Jane Moore, App’lt, v. The New York Elevated R. R. Co. et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed January 26, 1892.)

    1. Railroads—Damages—Loss of privacy.
    In an action for damages to rental value caused by the operation of an-elevated railroad, the court directed the jury to exclude from their consideration the loss of privacy. Held, error.
    2. Same. '
    An elevated railroad is responsible for the consequences of the loss of privacy occasioned by passengers and employees looking into the windows-of upper stories of adjacent houses from the station platforms, where it deprecates the rental value of the rooms in such buildings.
    Appeal from judgment entered upon the order of the general term of the court of common pleas of the city of Hew York,, affirming judgment entered upon a verdict.

      Charles TS. Whitehead and Stanley W. Dexter, for app’lt; Bramará Tolies, for resp’ts.

       Reversing 29 St. Rep., 432.

   Bradley, J.

The plaintiff, life tenant of a house and lot at the northeast corner of Greenwich and Franklin streets in the city of Hew York, brought this action to recover damages alleged to have been suffered by her by the maintenance and operation of the New York Elevated Eailroad (of which the Manhattan Eailway Company was the lessee) in Greenwich street in front of her premises, and the erection and maintenance of a station for passengers to go onto and depart from the cars, which station was near to the plaintiff’s house in front on Greenwich street, and on Franklin street into which it extended. The plaintiff gave evidence tending to prove some disturbance of her easements of light, air and access by the railroad and its use. She also gave some evidence of noise produced by it and of the loss of privacy in the use of the third story of the building. It appeared that the rental value of the plaintiff’s premises bad depreciated since the railroad was constructed. And evidence on the part of the defendants waste the effect that in that neighborhood the depreciation of rents was occasioned by the removal of the business stand of the Long Island farmers from there to Gansevoort market, thus diverting the-trade incident to that traffic from the former to the latter place. The court submitted to the jury the question whether the rental value of the plaintiff’s premises had been diminished by deprivation of light, air and access through the maintenance and operation of the road, and directed them to exclude from their consideration the elements of noise, vibration and the loss of privacy for which they could allow no damages. The plaintiff’s exceptions were first to the portion of the charge directing the jury to exclude noise and vibration from consideration, and second to the like instruction'as to the loss of privacy. As there was no evidence of any vibration, the first exception was too broad to raise the question in its application to the noise resulting from the operation of the road. Haggart v. Morgan, 5 N. Y., 422; Groat v. Gile, 51 id., 431.

And the question arises upon the exclusion of the subject of the loss of privacy from the consideration of the jury. It seems well established that the theory upon which an action at law may be supported by an abutting owner against the defendants is that they are in such sense trespassers or wrongdoers as to be liable to such owners for all the injuries resulting proximately from the wrongful act of maintaining and operating their elevated road. Lahr v. Railway Co., 104 N. Y., 269; 4 St. Rep., 340; Drucker v. Railway Co., 106 N. Y., 157; 8 St. Rep., 599; Kane v. Railroad Co., 125 N. Y., 186; 34 St. Rep., 876. In the latter case, and in the more recent one of American Bank Note Co. v. N.Y. El. R. R. Co. & M. Ry. Co., 129 N. Y., 252; 41 St. Rep., 531, it was held that while such relation of trespasser continued the defendants were liable to the abutting owner for the damages occasioned to him by the noise of operating the road. This liability of the defendants is not that for which the remedy is'by action in the nature of that formerly known as trespass guare clausum, but rather in the nature of that known at common law as an action on the case. Kernochan v. N. Y. El. R. R. Co., 128 N. Y., 559; 41 St. Rep., 110. The continued invasion of the privacy of the occupant of a building very likely would have the effect to reduce the rental value of it for some purposes. The first floor of the plaintiff’s building was occupied as a grocery or liquor store, and the two above were occupied by persons as places of abode. But so far as appears only two rooms are exposed or subject to the loss of privacy. Those rooms are on the third door, and have one window in front on Greenwich street and two on the Franklin street side. The opportunity by means of the windows t'a look into the room is from the station platform on both streets. The evidence on the subject was mainly given by a person who had occupied those rooms, and was to the effect that the looking in the windows by the passengers and employees was very annoying; that they did it from the station platform, and that they interfered with the privacy of the rooms by looking in when standing on the platform and. when coming down the stairs along the building.

It may be seen that this exposure of the rooms and the occupants within them to the observation of persons at all times of the day would be detrimental to them as dwelling places. While it is true that the observation taken by the patrons and employees of the defendants is not the act of the latter, the defendants have furnished the means and opportunity for those persons to invade the privacy of these rooms by looking into them through the windows, and it is by the invitation and procurement of the defendants for the purpose of the business of the road that people are at the station and on its platform. No reason appears why the defendants should not be responsible for the consequences of the loss of privacy thus occasioned, so far as it depreciated the rental value of the rooms in the plaintiff’s building. Those consequences detrimental to the rooms are the rational result of the maintenance of the road and the station, and are reasonably attributable to that cause.

In Duke of Buccleuch v. Metropolitan Board of Works, L. R., 5 H. L. Cases, 418, the plaintiff under lease from the crown occupied certain premises known as the Marlagn house, the garden of which extended to the Thames, where it was protected -from the river by a wall through which was a door and a causeway leading to the water. The defendants, under the Thames Embankment Act, constructed a roadway in front of the premises, and higher than the garden. It was there held that the loss of the use of the river frontage and the consequent loss of privacy, increase of dust and noise occasioned by the erection of the embankment roadway, were subjects to be considered in estimating the damages to be awarded to the plaintiff.

In the present case, although the loss of privacy was properly an element for the consideration of the jury, the question arises whether the plaintiff was prejudiced by the exclusion of it from their attention.

There was no evidence specifically applicable to damages resulting from loss of privacy, but the diminished rental, upon which the plaintiff sought to recover, mainly had relation to the entire building, and was charged to have been produced by the causes which the maintenance and operation of the road furnished. This included the interference with the easements of light, air and access, as well as the consequences of noise and loss of privacy. But the latter, so far as appears, was applicable only to a couple of rooms on the third floor.

It is difficult to see how the jury could, by any rule of apportionment, have determined upon the evidence the loss of rental for that cause if they had been disposed to have given damages for the loss of privacy. They may, however, have given the plaintiff nominal damages for that cause if it had not been excluded from their consideration. And as the plaintiff may have been prejudiced by the misdirection of the court, the error cannot be disregarded on review. Herrick v. Stover, 5 Wend., 580.

These views lead to the conclusion that the judgment should be reversed and a new trial granted, costs to abide event.

All concur.


author: Haight, J.

text:
    Mary J. Odell, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (Court of Appeals, Second Division,

      Filed January 26, 1892.)

    1. Railroad—Elevated—Damages—Charge.
    Upon the trial of an action for damages occasioned hy the maintenance of defendants’ road in front of plaintiff's premises, the defendants’ counsel requested the court to find that “ the depreciation caused by the elevated road in the rentals of the living apartments of said building is less than the appreciation or increase caused by the elevated road in the rentals of the store or first floor of said building,” which was refused, on the ground that it was irrelevant. Held, error.
    2. Same.
    As to the effect of the road upon lands not taken, its advantages and disadvantages, benefits and injuries must be considered; and if the benefit equal or exceed the injuries, no damages can be awarded.
    Appeal from a judgment of the general term of the court of common pleas of the city and county of Mew York affirming a judgment entered upon a decision after a trial at special term.

      Brainard Tolies, for app’lts ; Charles Cibson Bennett, for resp’t.,

       Reversing 27 St. Rep., 985.

   Haight, J.

The judgment appealed from awards $1200 damages and enjoins the defendants from the further maintenance and operation of their elevated railway in front of the plaintiff’s premises, unless within a time fixed they pay to the plaintiff the sum of four thousand dollars, the value of the easement appurtenant to the premises.

In submitting the case upon the trial the defendants’ counsel requested the court to find that the depreciation caused by the elevated road in the rentals of the living apartments of said building is less than the appreciation or increase caused by the elevated road in the rentals of the store or first floor of said building.” This request was refused as irrelevant, and the exception taken by the defendants to such refusal presents the only question which we are here called upon to determine. The evidence was of such a character as to permit the finding asked for. The refusal of the court as “ irreelvant ” leads us to conclude that it was supposed that the appreciation or increase of the rental value caused by the road could not be considered in determining the amount of damages that should be awarded. The question of benefits has been recently considered in the case of Newman v. M. E. R. Co., 118 N.Y., 618; 30 St. Rep., 36 and in Bohm v. Same, 42 id.,247, in which it was held that as to land taken by the railroad company the full market value must be paid without deduction for benefits; but as to the effect of the road upon lands not taken, its advantages and disadvantages, benefits and injuries must be considered, and if the benefits equal or exceed the injuries no damages can be awarded.

We have carefully examined the case for the purpose of 'determining whether the trial court considered or made allowance for the benefits, but are unable to find any ruling which satisfies us that the question of benefits was determined.

The other questions presented by the record have already been disposed of. Pappenheim v. M. E. R. Co., 40 St. Rep., 445.

The judgment should be reversed and a new trial granted, costs to abide the final award of costs.

All concur, except Potter, J., not voting.