author: Barnard, P. J.

text:
    The People ex rel. The Trustees of St. Patrick’s Cathedral, in the City of New York, Resp’ts, v. James Davren et al., Assessors, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Taxes—Cemeteries—Exemption.
    By acts of the legislature in 1864 and 1879, the relators were authorized to acquire and use lands in Queens county for cemetery purposes. Such lands were assessed for taxation, but such assessment was stricken from the roll by the court. Held, no error; that the general rural cemetery act and its amendments, requiring the consent of the board of supervisors to the use of land for such purposes, were not inconsistent with the cathedral acts which permit such use by the authority of the legislature alone, and that .'■ueh land was ckempt from taxation.
    Appeal by the defendants, who are assessors of Long Island City, from a judgment or final order entered upon a decision of Justice Bartlett, upon certiorari under Laws of 1880, chap. 269, directing that certain taxes upon the relators’ cemetery in Long Island City be stricken from the assessment roll on the ground that there existed no right to assess them for taxes.

      W. J. Foster (George W. Stephens, of counsel), for app’lts ; T. G. Barry (George Bliss, of counsel), for resp’ts.
   Barnard, P. J.

The trustees of St. Patrick’s cathedral, in the _city of Hew York, own a tract of land in Long Island City, Queens county, which is used and occupied for cemetery purposes. The defendants, as assessors of Long Island City, have included these lands in the roll as lands liable to taxation. The order at special term was that the assessment should be stricken oil the list. The tax is not legal. By chap. 87, Laws of 1864, the relators were empowered to use their lands in Queens county for cemetery purposes, and to acquire others for the same purpose not exceeding 150 acres. By chap. 314, Laws of 1879, the relators were again empowered to acquire other lands to the extent of 100 acres for cemetery purposes. A general exemption from taxation in respect to lands held for cemetery purposes was created by chap. 310, Laws of 1879.

The case of the assessors rests upon § 3 of diaper 280, Laws of 1852. This was an amendment to the general Rural cemetery act of 1847. By § 3 of chapter 280, Laws of 1852, it was not lawful for a cemetery thereafter incorporated under the general act as to rural cemeteries to take or set apart lands for cemetery purposes in Queens county without the consent of the board of supervisors. This section-was applicable only to corporations under the act of 1847. The relator was, by chapter 153, Laws of 1842, empowered to obtain land for cemetery purposes in Hew York or “in any neighboring county in the state.” The relators’ lands were all acquired under the permission of the legislature as to the property in Queens county, unless the general act for the incorporation of rural cemeteries requires the consent of the supervisors. The general rule as to repeals by implication is against this construction. Whipple v. Christian, 80 N. Y., 525; Matter of Delaware & Hudson Canal Co., 69 id., 209.

The legislature after the relators acquired the lands in question by special act, permitted their use as a cemetery without qualification. The Rural cemetery act and its amendments are not inconsistent with the cathedral act and its amendments, which permit the use of the lands in Queens county for cemetery purposes by the authority of the legislature alone.

The order should be therefore affirmed, with costs.

Dykman and Pratt, JJ., concur.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Ida E. Phillips, App’lt, v. The Northern Railroad of New Jersey, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Negligence—Boarding moving train.
    When a party undertakes, without a ticket, to get hastily on a train at a place other than the station, with no conductor or brakeman in view, and at a moment when the train is liable to start, a recovery cannot be had against the railroad company for injuries sustained by the inadvertent starting of the train.
    2. Bailroad—Not liable for wrongful acts of lessee.
    Defendant’s railroad was leased to the Brie Bailway Co., in pursuance of chapter 218, Laws 1839, by which lease the latter company was to have exclusive charge of the road and pay defendant a fixed share of the gross. earnings. Held, that defendant could not he held liable for injuries sustained through the negligence of the Erie’s servents or agents bygone who attempted to board a train without a ticket.
    (Babnabd, P. J., dissents.)
    Appeal from an order made at the circuit by the Hon. Justice Willard Bartlett, denying a motion for a new trial upon the minutes, and directing the exceptions to be heard in the first instance at general term.
    The action was brought for injuries caused by the alleged negligence of defendant.
    The facts were as follows: The plaintiff purchased at Norwood,, in New Jersey, an excursion ticket from Norwood to Jersey City and return. She spent the day in New York, and upon going over to Jersey City to take the train back to Norwood, she found she had just missed the train which stopped there. An express train was about to start which stopped at Closter, the first station this side of Norwood, and she decided to take it. and get off at Closter and wait there for the local train, instead of at Jersey City, where it was very cold on account of the depot being unfinished. After getting upon the train she met friends, and she then concluded to go to Sparkhill, the first station beyond Norwood, and come back to Norwood by the local train, which met and passed the express at Sparkhill. In this way she would save half an hour. Upon arriving at Spark-hill she left the express and proceeded immediately to get upon the local train, which was waiting a few feet past the station for , passengers arriving by the express. While she was in the act of getting upon the local train it started, and she was dragged some sixty feet and injured. The ticket which she bought at Norwood was issued to her in the name of the Northern Eailroad of New Jersey. There is no other railroad at that point. The cars bore the name of that road, and the time tables posted in the stations along the road also had the name, The Northern Eailroad of New Jersey, upon them.
    The defense is" that the defendant had, in 1868, executed a contract, by which it had transferred to the Erie Eailway Company the entire management of its road and trains, and that on the day of the accident the defendant had nothing whatever to do with the train which caused it.

      W. Tazewell Fox, for app’lt; Wm. C. De Wilt, for resp’t.
   Pratt, J.

Assuming that the ticket purchased by the plaintiff was issued in the name of the Northern Eailroad of New Jersey, a fact not as well proven as might be expected, it was an excursion ticket providing for a ride only from Norwood to Jersey City and back. It gave no right to go elsewhere or farther. In travel-ling beyond Norwood on her return from the city, and especially in attempting to get upon the east bound local train at Sparkhill, a point beyond the limitations of her ticket, the plaintiff enjoyed no contractual relations with the defendant whatever.

Her case arises ex delicto, and can only stand upon some, duty toward her on the part of the persons controlling and operating the-train, from the neglect or violation of which she received her injuries.

It is difficult to see that the managers of the train owed her any undischarged duty under the circumstances of the case. The train had made its regular stop at the station, had received its passengers and passed on to a side track, where it was awaiting the passage of the western express to clear its way on the main track. The plaintiff was a passenger on that western express, and when it had gone by the train in question was due to proceed on its way. Under these circumstances the plaintiff alighted from the express when it stopped at the station, hurried backward to the side track where the east bound train was standing, and undertook to get upon the rear platform of the rear car just as the train was about to move. No conductor or brakeman was in sight It was her own act and at her own risk and peril.

An effort is made to overcome this fatal defect in the plaintiff’s case by showing a custom on the part of persons going westward by the express of taking the eastward local train at this point, so as to charge the railroad company with a duty of care in that particular! The evidence, however, is insufficient for the purposa A custom is not shown to exist in respect to passengers like the plaintiff, nor does it appear that the change of cars took place under any custom in any other than the regular way at the station.

We think that when a party undertakes without a ticket to get hastily on a train at a place other than the station with no conductor or brakeman in view and at a moment when the train is liable to start, if such a party is injured by the inadvertent starting of the train, a recovery cannot be had against the railway company.

But the ground upon which the learned trial judge bases his judgment is not answered by the appellant

As already stated, the plaintiff’s cause of action rests solely, if it exists at all, upon some negligence on the part of those who were controlling and operating the train from which she received her injuries; and the train was being operated and was in its movements under the control of the Brie Railway Company alone. The lease or contract put in evidence by the defendant, m substance, transfers the control, management and operation of the trains from the defendant to the Brie Railway Company at a compensation of sixty-five per cent, of the gross receipts plus five forty-eighths of the remainder. As the contracting parties were not to share in profit and loss but were to receive simply a fixed share of the gross earnings, the agreement would scarcely constitute a partnership, even at common law. Story on Partnership, § 34; Heimstreet v. Howland, 5 Denio, 68 ; Merrick v. Gordon, 20 N. Y., 93.

Here, however, was an express statute authorizing such an agreement, and it would seem that the provisions of the contract rendering the Brie Railway exclusively responsible for the negligence of the conductors or other servants in the operation of the train had the support of legislative authority. Whatever may be the force of those provisions of the contract which reserve to the defendant a certain supervision over the receipts or the right to sell tickets at specified points, or the power of approval of the employment of conductors, etc., etc., it is still indisputable that the contract took from the defendant the management, operation and control of the trains and placed that service and duty, with all- its liabilities and consequences, absolutely upon the Erie Company, and this indisputable provision, which is all of the contract applicable to the case at bar, has plain validity founded upon the statute.

If then, the plaintiff were in truth injured through any negligence of the conductor or bralceman of the train in question, she could not, under any head of the doctrine of respondeat superior, hold the defendant liable. The Erie Railway Company was the only principal responsible in such a case. See Norton v. Wiswall, 26 Barb., 618, at 621, 622 and 623 ; Blake v. Ferris, 5 N. Y., at 53 to 57—61; Ditchett v. R. R. Co., 67 N. Y., 425; Fisher v. Metropolitan R. R. Co., 34 Hun, 433; Abbott v. Johnstown R. R. Co., 80 N. Y., 27.

The difficulty with the appellant’s authorities is that they arise in cases where the transfer of the operation of the road had been without statutory authority or ultra vires, or where the plaintiff had, by the purchase of a ticket, enjoyed contractual relations with the defendant. A contract would make a party liable irrespective of its relations to the inculpated agent. But here there was no ticket or contract, and the agents inculpated were, in fact and law, the agents of the Erie Company alone in the service under consideration.

For these reasons the judgment of the trial court must be affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., dissents.


author: Barnard, P. J. Dykman, J.

text:
    Matthew Gaunt Hepworth, Resp’t, v. The Union Ferry Co. of Brooklyn, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Abatement and revivor—Corporations—Torts.
    Pending action against the defendant for an assault committed by one of its servants its charter expired by limitation. Held, that the action was properly continued against its directors as trustees; that the word “ creditor ” in the statute embraces persons whose claims are based on torts. (Dykman, J., dissents.)
    Appeal from order continuing an action for assault and battery against the trustees of defendant
    The facts appear fully in the opinions.

      B. D. Silliman (Frederic A. Ward, of counsel), for app’lt; Jas. K. Averill (Edwd. V. B. Kissam, of counsel), for resp’t.
   Barnard, P. J.

On the 9th of June, 1889, the plaintiff handed to the defendant’s ticket seller in Mew York money for a passage across the river to Brooklyn. The defendant kept his money, refused a ticket and committed an assault on him and forcibly put Mm in the street The plaintiff commenced an action for the assault in October, 1889. The corporation denied the facts on which the plaintiff based his complaint, and while the action was at issue and untried the charter of the defendant expired by its own limitation. The Eevised Statutes provide that on a dissolution of a corporation the directors shall be trustees for the creditors and stockholders with full power to settle the affairs of the corporation. A power to continue the action ■against the corporation when its charter expired pending an action against it was given by chap. 295, Laws of 1832. This law was repealed in 1880. Chap. 245, Laws of 1880.

The tort stands upon the same basis as a contract. 12 Hun, 46 ; 37 id., 563 ; 52 Barb., 26 ; 4 Central Bep., 387.

These cases either hold or approve of the principle that a conveyance made during a pending litigation to defeat the collection of a judgment for a tort can be set aside as if it was a contract debt In other words, the statute creditor embraces those persons whose claims are based upon torts.

The charter pledges the property of the corporation to pay all damages for misfeasance of the company’s employees. The law makes the directors trustees to settle the affairs of the corporation ,and to pay all debts against the corporation. The court has the power to continue the action which was pending at the dissolution ■of the corporation of necessity. Such power existed before the .act of 1832, and exists since the repeal of 1880.

A judgment against a corporation whose charter had been amended by decree, and after notice by the attorney for the corporation that he had no further power to appear in the case, was held bad by the court of appeals. McCulloch v Norwood, 58 N. Y., 562.

In the present case the order makes the statute trustees defendants, and this seems to be the rule recognized in McCulloch v. Norwood, supra.

The order is therefore right and should be affirmed, with costs .and disbursements.

Pratt, J., concurs.

Dykman, J.

(dissenting).—This is an appeal from an order continuing an action for assault and battery against the trustees of an incorporated company after the expiration of the time limited for its continuance in its articles of. incorporation.

The action was commenced on the 19th day of October, 1889, and the charter of the Union Ferry Company expired by limitation of 'the time specified in its charter on the 9th day of November, 1890.

On the 23d day of May, 1891, a motion was made at the special term to revive and continue this action against the directors of the corporation who were in office at the time of its dissolution, and an order to that effect was made on the 30th day of July, 1891, from which the defendant has appealed

Under the common law there was no provision for winding up the affairs of a dissolved corporation, but its personal property was forfeited to the crown, and the real property of which it was seized at the time of its dissolution reverted to the grantor. But that severe rule of the common law was unsuited to modern times, and especially to this country, and with us it was ameliorated by our statute as follows: “ Upon the dissolution of ary corporation created or to be created, and unless other persons shall be appointed by the legislature, or by some court of .competent authority,-the directors or managers of the affairs of such corporation at the time of its dissolution, by whatever name they may be known in law, shall be trustees of the creditors and stockholders of the corporation dissolved, and shall have full power to settle the affairs of the corporation, collect- and pay the outstanding debts, and divide among the stockholders the moneys and other property that shall remain after the payment of debts and necessary expenses.” 1 B. S., 600, § 9.

Then the Law of 1832 to prevent the abatement of suits by or against corporations was enacted, and while it was in force all suits and proceedings against corporations which had been dissolved which were pending at the time of such dissolution, could be continued until final judgment with the same effect upon the rights of the parties as if such corporation had not been dissolved. Laws of 1832, chap. 295, § 4.

But that statute was expressly repealed in 1880. Chap. 245 of the Laws of 1880, p. 369, § 10.

It does not appear that any other persons have been appointed either by the legislature or by any court, and we therefore assume that the directors of this corporation at the time of its dissolution are by virtue of the statute quoted trustees of the creditors and stockholders of the company, with the powers conferred upon them, by the statute. •

They are, therefore, trustees of the creditors and stockholders of the company, with power to collect and pay the outstanding debts and divide the money and property which shall remain after the payment of debts and necessary expenses among the stockholders.

But they are not trustees of the plaintiff, because he is neither •a creditor nor a stockholder of the company. The corporation never owed him any money, and nothing was ever due to him from it, and the directors of this company possessed no power to pay him, although they are clothed with ample authority to pay outstanding debts of the corporation.

A cause of action for a tort is not an indebtedness, and it would be contrary to all the analogies of the law to consider it so. If it was a debt, it would survive the death of the claimant, whereas the universal rule is that it dies with him.

It required a special statute to enable actions for wrongs to the property rights or interests of another to be maintained against the executors or administrators of a deceased wrongdoer, and from that statute is expressly excepted actions for slander, libel, assault and battery, false imprisonment and actions for injuries to the person. 3 B. S., 5th ed., 746, §§ 1, 2.

The claim of the plaintiff is not assignable, as it would be if it. created a liability against the company.

So it required a statute to prevent the abatement of an action for the recovery of damages for personal injuries by the death of a-party after verdict or decision. Code, § 764.

Provision is made by law for the enforcement of payment of liabilities of deceased persons by a sale of their real property, but that law could never be applied in favor of a person who-held an unliquidated claim for damages sounding in tort.

The argument of the plaintiff that his claim is against the property of the defendant and founded on contract, is built upon the theory that the law implied an undertaking on the part of the defendant to protect the plaintiff from injury arising from the misconduct of its servants while in the performance of a duty which the defendant owed to him during the continuance of the relation of passenger and carrier between the plaintiff and the defendant, and because the defendant was bound to use ordinary care for his safety while he was such passenger the misconduct of the servant of the defendant was breach of the contract of the defendant.

So far as this assumption embodies the law it is correct, but the deduction made from it by the plaintiff is not legitimate.

It is assumed that the relation of passenger and carrier existed between the plaintiff and defendant, not because the fact is conceded, but because that is the most favorable view for the plaintiff, and it is in consequence of such relation that the defendant becomes responsible for the wrongful act of its servant. An assault and battery was committed upon the plaintiff by a servant of the defendant, and if the plaintiff had not been a passenger of the defendant the company would have incurred no liability for the act, but because the plaintiff was a passenger the defendant is responsible for the assault and battery, and the action of the plaintiff is for the wrong perpetrated upon him. The assault furnishes the* plaintiff with a cause of action, and his suit is based thereon.

In the case of Stewart v. Brooklyn, etc., R. R. Co., 90 N. Y., 590, it was the object of the court to show in the opinion that common carriers were responsible for injuries resulting to passengers from the negligence and wilful misconduct of their servants while engaged in the performance of duties which the carrier owes to the passengers, and to manifest the reasons for such responsibility.

The court there decided that wilful misconduct of the servant imposed the same liability as negligence, but that action was for a personal assault upon the plaintiff, and there is nothing in the case which conflicts with the views we have expressed, and nothing to indicate that the court considered the action itself to be-based upon contract.

In that case, as in this, the damages are claimed for the wrong and not for a breach of contract.

It would be considered a great abuse of legal terms, if not a perversion of law, to say that an equitable action in behalf of a judgment creditor to set aside a conveyance for the fraud of the judgment debtor in its execution was an action in tort, because it was based upon fraud, and fraud is a wrong, and yet it would be equally as plausible as the argument of the plaintiff.

It seems plain therefore, that the plaintiff is not a creditor of this corporation, and that his action is not based upon contract in any legal sense.

It is equally plain that the statute which constitutes the directors trustees of the creditors and stockholders of the dissolved •corporation is not sufficiently comprehensive to include this cause •of action among the liabilities to be discharged by such trustees.

These trustees are no more than the appointed executors of the dead corporation, and as the cause of action does not survive the death of the company, the suit cannot be continued against the trustees.

There is no provision in the Code for. the continuance of an action after the death of a sole plaintiff or a sole defendant unless the cause of action survives, and as this suit is based upon a cause of action which does not continue after the death of either party, there is no provision for its continuance.

The order should be reversed, with ten dollars costs and disbursements, and the motion should be denied, with ten dollars ■costs.

Order affirmed, with costs and disbursements.


text:
    Isabella H. Mitchell, Appl’t, v. The Village of White Plains, Resp’t

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Eminent domain—Validity of proceedings—Award.
    The fact that an award for land taken was made to the husband of the owner, instead of to her, will not invalidate the proceedings. She would be entitled to the award although the owner was erroneously named in the commissioners’ report.
    2. Same—Constitutional law—Laws 1868, chap. 552.
    The provision of chapter 522, Laws 1868, authorizing the opening of a road from Mamaroneck to White Plains, relative to compensation for lands taken is unconstitutional and void, as the commissioners are thereby limited to paying awards from a single source, viz: the local assessment.
    Appeal from judgment dismissing the complaint Action to restrain defendant from laying its sewer through lands claimed to be owned by her, and for damages.
    Proceedings had been previously taken in pursuance of chapter 522, Laws 1868, to open and lay out a highway through plaintiff’s premises, but she was not made a party thereto, the report of the commissioners naming her husband as the owner and the award was made to him. Plaintiff claims that such proceedings did not divest her of title as she has not been compensated and that the provision of the act in relation to compensation is unconstitutional and void.

      M. M. Silliman (Wm. P. Fiero, of counsel), for app’lt; H. T. Dykman, for resp’t.
   Pratt, J.

That the award was made to the husband of the plaintiff instead "of to the plaintiff would not invalidate the proceedings to open the highway in dispute in this case. The plaintiff’ would be entitled to the award despite the fact that the owner was erroneously named in the report of the commissioners of estimate and appraisal, nor would the fact that she has not received the award be fatal provided that under the statute authorizing this-improvement there was an adequate remedy given her to enforce the payment of the award had she proceeded in time. This highway was authorized to be laid out by chapter 552, Laws of 1868. The commissioners named in the act are given the same powers as those vested in a prior act for the laying out of another highway in Westchester county, Chapter 408, Laws of 1865, “ except, that the damages awarded for the taking the land necessary for-laying out, making, grading and regulating said Mamaroneck avenue shall be paid by assessing the amount thereof upon the strip of land lying within five hundred yards of either side of said avenue." The highway extends through several towns. By the act the money necessary to grade and improve the avenue was to proceed from the issue of bonds by such towns. The act of’ 1865 directed the commission constituted by that act to pay the-awards, and such commission doubtless could have used any funds for that purpose. But by the exception quoted, the commissioners under this act are deprived of such power, and limited to paying awards from one single source, that is, the local assessment The act, therefore, seems to fall expressly within the principle laid down in Sage v. City of Brooklyn, 89 N. Y., 189. “ A remedy for compensation contingent upon the realization of funds from taxation for benefits within, a limited assessment district does not meet the constitutional requirement.” It follows that the act of 1868, so far as its provision for compensation for lands taken for the improvement, is unconstitutional and void.

The judgment appealed from should be reversed and a new trial ordered, costs to abide event

Cullen and Bartlett, JJ., concur.


author: Dykman, J.

text:
    GEORGIANNA BIGELOW, Appl’t, v. WILLIAM H. DAVOL, Impl’d, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Foreclosure—Second mortgagee.
    The holder of a second mortgage, whose assignment was duly recorded, can maintain an action to foreclose it, where a prior mortgage has been foreclosed without mating him a party, and the premises purchased by the prior mortgagee. In such case the rights of the second mortgagee have not been cut off, nor is he confined to an action to redeem.
    Appeal from judgment dismissing the complaint. Action to-foreclose a mortgage. The facts appear in the opinion.

      A. P. Bates, for app’lt; A. P. & W. Man (William Man, of counsel), for resp’t.
   Dykman, J.

The facts in this case so far as they control the questions of law involved are few and simple, but there are some-unimportant questions respecting the premises, and also respecting an old mortgage which appears to be destroyed by lapse of time.

The question upon which the determination of this appeal must turn is, whether the holder of a second mortgage, whose assignment was duly recorded, can maintain an action for the foreclosure of her mortgage, where the holder of a prior mortgage has foreclosed his mortgage by an action in the supreme court, without making the holder of the second mortgage a party to his action, and has become the purchaser of the premises at the sale under the judgment.

The following are the facts: In August, 1884, Richard B. Duyckinck and Alexander T. Arthur made a mortgage for $20,000 to Henry J. Smith and John E. Smith upon the premises in question, which was recorded the same day as its date. That mortgage was assigned to Henry 0. Hutchinson.

On the 8th day of September, 1887, Cecilia Y. Arthur and Archibald Arthur executed a.bond and mortgage upon the premises to Joseph M. Pray, which mortgage was recorded on the 8tli day of October, 1887.

Joseph M. Pray assigned that mortgage to the plaintiff by a written assignment on the 8th day of October, 1887, which was recorded November 21, 1887.

About April, 1889, Hutchinson commenced an action in the supreme court and made Pray a party defendant, but did not make the plaintiff in this action a party.

The action proceeded to judgment and the premises were sold, subject to an old mortgage, to the plaintiff Hutchinson.

This action to foreclose the second mortgage was tried before the court and decided against the plaintiff, and the court found as a conclusion of law that the only remedy of the plaintiff was by an action to redeem the premises, and dismissed the complaint, with costs.

We are unable to concur with the learned trial judge in his disposition «of this case.

It is a fundamental principle that no person can be bound, concluded or affected by any judicial proceedings to which he is not a party and has been afforded no opportunity to assert his interests or defend his rights.

As a legitimate deduction from this universal principle the plaintiff in this action cannot be affected by the foreclosure suit to which she was not a party, and she stands in relation to it as if there had been no such action; as to her the suit is a nullity. Miner v. Beekman, 50 N. Y., 344; Walsh v. Rutgers Fire Ins. Co., 13 Abb., 33 ; Brainard v. Cooper, 10 N. Y., 356.

If, therefore, the plaintiff remains unaffected by the foreclosure of the prior mortgage, then there is no reason why she should not be permitted to enforce her security, and she has done nothing to forfeit her rights or estop her from the collecting of her mortgage.

It would be a new and somewhat startling doctrine to establish that the holder of a prior mortgage, by omitting to make the Bolder of a second mortgage a party to his action to foreclose the first mortgage, could thus deprive him of his right to foreclose his mortgage and drive him to a redemption by paying off the prior mortgage.

Such, however, is the principle for which the defendant and respondent necessarily contends, and he cites the case of Salmon v. Allen, 11 Hun, 29, in support of his position.

It is true that there were some remarks in the opinion in that case which are favorable to the appellant, but the case was peculiar, and is not an authority for anything.

It was the purpose of the court in that case to point out irregularities and to show that the proper judgment had not been entered, and to place the action in a position -to straighten the title by'the judgment finally to be entered. Such was the view of the judgment which' the court of appeals took when the case was there. Salmon v. Gedney, 75 N. Y., 480.

If it went further, or intended to do so, it is antagonistic to both principle and authority, and will not be followed.

The case of Ross v. Boardman, 22 Hun, 527, was also peculiar, but the judge who prepared the opinion of the court was careful to say that the omission to make the woman, claiming dower a party to the action to foreclose the senior mortgages left her interest in the property the same as though no such action had been prosecuted.

The case of Walsh v. The Rutgers Fire Ins. Co., 13 Abb., 33, decided by the general term in this district, is precisely like this, and is a controlling authority in favor of the plaintiff.

In that case, as in this, the premises had been sold under a judgment upon a- prior mortgage held by the defendant and bought in by it. The plaintiff was not a party to that action, although the original holder of the mortgage was made a defendant. He had assigned the mortgage to the plaintiff, and the assignment was on record.

In a well considered opinion in that case, it was decided that the utmost effect of the foreclosure and sale was to transfer the equity of redemption from the mortgagor to the plaintiff in the foreclosure.

Also, that it was regular and necessary for the holder of the second mortgage to institute a suit to foreclose his mortgage, and the plaintiff in the first foreclosure was properly made a party defendant

That the prior mortgagee in possession was entitled to have a sufficient portion of the proceeds of the sale applied to the payment of his debt, but no offer to redeem the premises or pay the first mortgage was necessary.

This latter point, of course, proceeds upon the theory that as to the holder of the second mortgage the first mortgage is still subsisting and unforeclosed.

We think the examination has proceeded sufficiently far to manifest the error, and the judgment should be reversed, with costs to abide the event.

Barnard, P. J., and Pratt, J., concur.


text:
    The People ex rel. John J. Curtin, App’lt, v. The Board of Education of the City of Brooklyn, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Mandamus—Veterans.
    Where the affidavit in answer to an application for a mandamus to compel the re-instatement of a discharged veteran alleges that he was dis charged for failure to properly attend to his duties, a peremptory writ is properly denied and an alternative writ ordered.
    Appeal from order denying writ of peremptory mandamus and ordering the issue of an alternative writ

      Sidney Williams, for app’lt; Almet F. Jenks (D. D. Whitney, Jr., of counsel), for resp’t.
   Dykman, J.

The relator is a veteran sailor of the war of the rebellion and he was employed as a gas-fitter by the board of education of the city of Brooklyn, and was dismissed by the board in the month of February, 1891.

He thereupon applied to the special term of the supreme court for a peremptory writ of mandamus to compel his reinstatement by the- board.

Upon such application the chairman of the heating and ventilating committee of the board of education made an affidavit in which he stated that the relator was discharged for failure to properly attend to his duties.

If that allegation be true it would not be deemed a wise exercise of the power and discretion of the court to compel the re-in-statement of the relator, and to enable the court to determine the question of fact thus presented, an alternative writ was ordered and the motion for a peremptory writ denied.

We think the proper disposition of the motion was made at the special term and the order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


text:
    Elmer E. Furman, Resp’t, v. J. Myers Taylor et al., Com'rs. App’lts.

      (Supreme, Court, General Term, Second Department,

      Filed December 14, 1891.)

    Highways—Employment by commissioners.
    In an action for work on a highway under an employment by one of several commissioners, the court charged that in order to find a verdict for plaintiff it must be found that the commissioners, or a majority of them, authorized such employment, and in answer to an exception added that it was not necessary that all should meet at a regular or special meeting; that it was sufficient if all of them examined together on the subject of employment, and if in the course of conversation two concurred, that was sufficient. Held, no error.
    Appeal from judgment in favor of plaintiff, entered upon a werdict, and from order denying motion for new trial.

      Greene & Bedell, for app’lts; Arthur S. Tompkins, for resp’t.
   Dykman, J.

The defendants in this action are the commissioners of highways of the town of Ramapo, in Rockland county, and this action is brought against them for work done on the roads in their town.

The claim of the plaintiff was sufficiently established upon the trial, and there seemed to be but little dispute in respect to it

The chief defense rested upon the denial of the employment of the persons who performed the services upon which this action is based.

There was some evidence to show an employment to. perform the work on the roads by the commissioners when they were together, and as we understand the charge of the county judge that question was submitted to the jury for determination.

The charge is not given in full, but it appears that" the counsel for the defendant requested the judge to charge that before the jury can find a verdict for the plaintiff they must find from the evidence that the defendant Earl employed these men by the authority of the other two commissioners of highways, or by a majority of them, and the judge so charged.

Again, the counsel for the defendant said: “ I except to that part of your honor’s charge that says that ‘it is not essential for all three of the commissioners to meet together to make a contract.’ ”

The Court: “I don’t know as I charged that it would not be necessary for all three of them to meet to make a contract I said that it was not necessary that they should meet at a regular or special meeting; it would be sufficient to have all three men to examine together on the subject of the employment, and if in the course of conversation on the subject two concurred, that would be sufficient to employ or to make a good contract, and I now state that to the jury.”

That charge furnished the jury with the rule of law applicable to the case, and under it the jury found for the plaintiff, and thus found an employment within the law.

The other exceptions to the charge and refusals to charge present no error, and the judgment and order denying the motion for a new trial on the minutes should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    In the Matter of the Judicial Settlement of Patience C. Logan et al., Ex’rs of William J. Logan.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Will—Legacms—Construction.
    By liis will testator gave property to his wife in lieu of dower, legacies of $8,000 each to five of his relatives and a life estate in a similar sum to his sister Jane, with a gift over to her children. The residue was directed to be sold and divided, after the payment of the several legacies, among the legatees mentioned in the will. Held, that the evident intention of the testator was that the provisions in the first clause for the benefit of Jane and her children constituted but one legacy, and she alone is the legatee intended to he embraced in the residuary clause; that she took one-seventh of the residue and her children took no rights therein.

      Appeal by Patience C. Logan, as executrix, and William E. Keys and William Logan, as executors of the will of William J. Logan, deceased, from the portion of the decree of the surrogate’s court of Kings county, dated June 18, 1891, commencing with the words, “That the executors do divide the balance then remaining, to wit: the sum of eleven thousand three hundred and two and 69-100 dollars, into nine (9) equal parts; that they pay one of said parts, namely, the sum of twelve hundred and fifty-five 85-100 dollars, to Patience 0. Logan; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 85-100 dollars to Ann E. Farley ; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 85-100 dollars, to Mary Isabella Gumming; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 85-10*0 dollars, to Eleanor S. Keys; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 85-100 dollars, to William Logan; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 85-100 dollars, to Adaline B. Logan; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 86-100 dollars, to Jane Clanny ; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 86-100 dollars, to Mary Eliza Clanny; that they pay another of said parts, namely, the sum of twelve hundred and fifty-five 86-100 dollars, to Eleanor Bockfellow.”

      Stitt & Phillips (D. G. Rollins, of counsel), for app’lts ; William D. Veeder, for resp’ts.
   Barnard, P. J.

The testator, William J. Logan, died, leaving real and personal estate. By the will certain real estate and personal property is given to the widow in lieu of dower. A money legacy of $8,000 is given to a nephew and a legacy of a similar amount is given to four sisters. By the fifth clause of the will there is a gift of a life estate in a similar sum to another sister, Jane Clanny, with a gift over after the end of the life estate to the two children of Jane Clanny, Eleanor and Mary Eliza Clanny. All these legacies are made payable out of the personal estate. By the thirteenth clause of the will, the rest, residue and remainder of the estate is to be sold, and after paying the several legacies in full, to divide such remaining sum, if there should be any, “ to and among the legatees mentioned in this my will, to whom I hereby give and bequeath the same, share and share alike.” The question is whether the Jane Clanny family take their share in this residue as only one. There is nothing in the will from which it can be inferred that the testator intended to treat the share to be given to his sister in any different way from the other legacies, except that Jane’s share was given for life with remainder to her children, and the other shares were given absolutely.

Strictly speaking, Jane and each of her children were legatees, but not such under the words and meaning of the will. In the same clause, thirteenth, the testator directs the payment of the “several legacies,” and of the aforesaid legacies, which words only cover the amount of $8,000 to Jane, and then he speaks of his division among the legatees mentioned in the will. The evident intent is that the Jane Clanny share is one legacy and she is the only legatee intended to be embraced in this first residuary clause. The judgment should, therefore, be so modified as to divide the estate in seven parts, and directing that Jane Clanny take the one-seventh thereof.

The executor has no right to keep this residue for Mrs. Clanny, as the trust is as to the $8,000 only. The children have no right to this residue as none is given them in any fund except the remnant of the $8,000.

Judgment modified, with costs to all parties out of the estate.

Pratt and Dykman, JJ., concur.


text:
    Adelia F. Gedney, App’lt, v. Orrin D. Kingsley, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    Physicians—Malpractice.
    Plaintiff injured her arm, and defendant examined it but discovered nothing more serious than a bad bruise. In fact the arm was fractured, and by reason of the delay in discovering the fracture, the injury became irreparable. In an action for damages the defendant’s evidence tended to show that the arm was so swollen that a complete examination could not be made, and that plaintiff told him not to call again until she sent for him. Held, that if this were found to be true, no recovery could be had.
    Appeal from judgment entered upon verdict for defendant.
    Action to recover damages for alleged malpractice and negligence in attending to an injury to plaintiff’s arm.

      Wm. G. Bussey, for app’lt; W. M. Du Bois,. for resp’t.
   Barnard, P. J.

The proof shows that the plaintiff met with an accident in August, 1888. She fell from her conveyance and hurt her right arm. The defendant is a physician and surgeon, and he was sent for by the plaintiff to furnish whatever service the plaintiff needed to cure the injury which she had sustained. The defendant made two visits, and then ceased to attend to the plaintiff’s case by her request. The defendant made an examination of the arm, and the injury was not discovered to be serious, and was not supposed to be more than a bad bruise. The arm became very greatly swollen, and it was, finally discovered that one of the bones of the arm was fractured. There is proof tending to show that the injury became, in a measure, irreparable, by reason of the delay in the discovery of .the fracture. The defense gave evidence to the effect that the arm was so swollen that a complete examination could not be made: that the defendant informed the plaintiff that her arm needed further attention and that she thought she was getting on towards recovery, and that she would send for the defendant if she needed him further. The rule of the responsibility of the defendant is well settled. A surgeon undertakes that he possesses the ordinary learning, skill and experience which is necessary to meet the case which is entrusted to him. The negligence and unskilfullness of the defendant is claimed on two grounds.

First. He failed to discover the fracture ; and second, he failed to continue his visits, and let the evil effects of the fracture continue until it was too late to restore the fractured arm to its normal condition. The evidence on both of these questions was contradictory. If the arm was so swollen that a complete assurance of the extent of the injury could not be discovered by a careful and skillful examination, and if the swelling was suffered to go on because the defendant was told to wait until he was sent for to continue the attendance, the case will fail for lack of proof. This was the finding of the jury, and the proof is sufficient to uphold the verdict. The parties differ in their remembrance of the facts. Dr. Haight, who examined the arm before defendant, supports the defendant in his statement that the extent of the swelling prevented an examination which was needed to discover this fracture. The medical experts differ also upon the question whether a skillful surgeon ought to have discovered the fracture, but all agree that the swelling should have been reduced, and if the plaintiff prevented that by directing the defendant to make no other visit, on account of the expense, until he was notified, the defendant could not be properly blamed for the omission to diligently look after the case. The case was sent to the jury with very careful instruction. The appeal papers show that- the jury fully understood the case, for they returned into court and asked for the evidence as to the interview between the parties during the second visit. The jury evidently found that there was no lack of skill in the examination, and that the substantial discharge of the defendant made the plaintiff responsible for the injury thereafter occasioned by a failure to receive medical attention until it was too late.

The judgment and order denying new trial should be affirmed, with costs.

Pratt and Dykman, JJ., concur.


text:
    Frederick H. Schild, Resp’t, v. The Central Park, North & East River R. R. Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1891.)

    1. Negligence—Street railroads.
    Plaintiff in passing over a crosswalk stumbled over one of the rails of defendant’s track which projected three inches above the walk, and was injured. He knew the rail was there, but did not particularly notice it until he fell over it. Held, that defendant was liable for a failure to lay its rails properly and that plaintiff was not guilty of any lack of care which would justify a nonsuit; that he had a right to assume the safe condition of the walk.
    Appeal from judgment in favor of plaintiff, entered on verdict and from order denying motion for a new trial on the minutes.
    Vanderpoel, Cuming & Goodwin (Henry Thompson, of counsel), for app’lt; Chas. J. Patterson, for resp’t.
   Barnard, P. J.

The proof shows that the defendant constructed and maintained its track so that at a crosswalk upon Front street in the city of Flew York the iron rail was entirely above the crosswalk. The plaintiff in March, 1889, at mid-day stumbled over in crossing and was injured. There was also a hole in the sidewalk inside of the rail which one of the witnesses states to have been some seven or eight inches deep and others state it to be from three to five inches below the bottom of the rail. The rail was some three inches in height above the crosswalk if there had been no hole in the crosswalk itself. The question upon the appeal is whether this rail was so maintained as to occasion an obstruction which would charge the railroad company with neglect, if an accident was occasioned by it to a prudent person traveling along the crosswalk. The defendant was under no obligation to keep the crosswalk in repair and the concurrence of the two defects at the immediate "place of the accident was carefully considered in the charge to the jury. Upon appeal with the verdict that the accident was occasioned by the rail which was constructed above the sidewalk, the question is reduced to the single one whether an iron rail three inches above the limit of the sidewalk was proper. The defendant was bound to lay its rails properly and to keep them in proper condition. Worster v. Forty-second Street R. R. Co., 50 N. Y., 203. Where rails were left projecting four and one-half inches above the surface without planking between them and an accident was occasioned to one who crossed the track thus maintained, a verdict was upheld. Wasmer v. Del., L. & W. R. R. Co., 80 N. Y., 212. Where a switch was put down higher than was reasonable and necessary, or was suffered by the railroad to become an obstruction to the public, the company was held liable. Wooley v. Grand Street, etc., R. R. Co., 83 N. Y., 121.

FTo point is taken as to the freedom of the plaintiff from neglect on his part which contributed to the injury. This question was one for the jury under a long line of decisions made by the court of appeals. The traveler had the right to assume the safe condition of the crosswalk. He knew the rail was there, but did not particularly notice it until he fell over it He was not guilty of any lack of care which would justify a nonsuit on that gronnd, and the verdict is right on that point.

Judgment affirmed, with costs.

Pratt and Dykman, JJ., concur.


author: Landon, J.

text:
    In the Matter of the Application of Emma J. Taggard to compel Henry N. Hewitt, Ex’r, to account.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    Release—Testamentary trustee—Accouhting.
    A testator devised to his executors, of whom the appellant is survivor, certain real and personal property, including a hotel, in trust, to receive the rents and nrofits, and pay two-thirds of the income to the petitioner, his widow, and. in case of fire, to collect the insurance, sell the land, and - aPPly the income as before. In 1878 the petitioner and others executed an instrument by which the appellant, as executor, stated that he transferred to the beneficiaries the possession of said estate, and they released him as executor. In 1882 the hotel burned. Upon this proceeding, in 1890, to compel an account, the petition alleged, and the answer did not deny that the appellant had income of the estate in his hands. Held, that as the appellant was testamentary trustee, as well as executor, said release was not a bar. and had effect ooly up to its date; and that the executor must render an intermediate account showing the funds of the estate now in his hands.
    Appeal from an order of the surrogate of Essex county, requiring appellant to file an intermediate account of his proceedings as trustee under the will of James W. Taggard, deceased.
    The will of James W. Taggard was admitted to probate February 7, 1867. The appellant since 1872 has been the sole surviving executor thereof. The testator devised and bequeathed to his executors certain real and personal property, including a hotel and its furniture, in trust, to receive the rents and profits thereof, .and pay two-thirds of the same to the petitioner during her life, and, in case the same should be destroyed by fire, to collect the insurance, sell the land, invest the proceeds, and apply the income thereof in like manner. Mo inventory was ever filed, or judicial .settlement had. The petition, in addition to the above facts, alleges that the hotel was destroyed by fire in August, 1882, and •alleges that the appellant holds in his hands a large amount of money of the rents and income of the estate, no part of which has been paid to her. The petitioner prayed that the appellant account both as executor and testamentary trustee, and be cited to show cause why he should not pay over, and for other proper relief.
    The appellant filed an answer alleging full administration and settlement of the estate, and payment by him in full more than twelve years prior to this proceeding, and the execution by the petitioner September 2, 1878, and delivery to the appellant of a full and absolute discharge. The answer did not deny that there were moneys in his hands. It set up various statutes of limitation. Upon the hearing, the will of the testator, and also the alleged discharge, were put in evidence.
    The following is said release:
    “ At request of Mrs. Emma Taggard and Mrs. Cordelia F. Taggard, guardian of person and estate of Mary D. Taggard, and as a means of their receiving the rents and incomes from the estate of J. W. Taggard, deceased, under and by virtue of his will, the undersigned, sole surviving executor thereof, hereby transfers the possession of said estate and leases of said property, and the rents due and to grow due thereon, to be collected by them, and applied ' according to the terms of said will. And said executor hereby covenants that the estate is unincumbered, that he has discharged and will discharge all debts of every kind, except for recent repairs on the Sampson store and photograph gallery over it. And said executor hereby releases said estate from all claims .and demands for commissions, attorneys’ fees or otherwise, and agrees on request to render said Mrs. Emma and Cordelia Taggard personal services in the affairs of the estate during the life of the former without other compensation than she may choose to make.

      And the said Emma for herself, and the said Cordelia as guardian, hereby covenants and agrees to save said executor harmless-from all claims on account of the rents and income of said estate! And that this transfer shall be received as a full performance o. his duties under the will and accepted as such, and he is hereby discharged of all liability.
    Dated 2nd September, 1878.
    “H. H. Hewitt,
    “ Mrs. Emma Taggard,
    “ Cordelia E. Taggard.”
    The surrogate denied the application that the appellant account and pay over as executor, but ordered that -he file an intermediate' account of his proceedings as testamentary trustee. The trustee appeals.

      R. L. Hand, for app’lt; F. A. Rowe, for resp’t.
   Landon, J.

This case differs from Matter of Wagner, 119 N. Y., 28 ; 28 St. Rep., 266, in that the instrument or release given by the legatees and beneficiaries in that case to the executors purported to be, and in the nature of the case was, in legal effect, a, full discharge of the executor from his liability as such; whereas in this case the executor was also testamentary trustee, and the moneys coming to his hands were of the income of the property, and in case of fire from the insurance, and from sales, and as he had the power to receive moneys after the execution of the release, that release could only be considered as a discharge of the moneys he had theretofore received, and in no way a discharge of such as he might thereafter receive.

If he has received any moneys since September 2, 1878, he ought to account for them.

The petition doés not clearly state that he has received any moneys since that date, but it is alleged that the hotel was destroyed by fire in August, 1882. It, therefore, became the duty of the testamentary trustee to collect the insurance and sell the land, and invest the proceeds and pay to the petitioner two-thirds of the income thereof. It is not stated what was done, but the petition alleges that the trustee holds in his hands a large amount of money, the rents and income of said estate, belonging to the petitioner. The trustee answers and alleges the settlement of September 2, 1878, but does not deny that he now has money in his hands belonging to the petitioner.

We think the surrogate properly ordered the appellant, as testamentary trustee, to file an intermediate account. The order is-authorized by Code Civ. Pro., §§ 2723, 2803. Its purpose is to-furnish information concerning the estate to those who are entitled to apply for it. Id., § 2514, subd. 9. It is a-discretionary order-. In view of the interest of the petitioner and her lack of exact knowledge of the proceedings of the trustee, the discretion seems-to have been properly exercised by the surrogate. The account as first rendered will bind no one but the trustee, and as he is to-make it, the presumption is that he will do himself no injustice. It is true that the petitioner did not in terms apply for this order,, but she applied for such an order as should be just, and the surrogate granted, as he ought, the order which he deemed most ■appropriate. Matter of Odell, 52 Hun, 88 ; 22 St. Rep., 498.

Thus far we assume the instrument of September 2, 1878, to be genuine. The appeal book recites that it “ was put in evidence,” and that implies proof or admission of its execution. But if any further proceeding in the case requires the determination of the question of the execution or delivery of this instrument, it will be proper for the surrogate to determine it. The jurisdiction which enables him to determine its genuineness extends also to its non-genuineness. Ho equitable jurisdiction is involved, but the mere determination of a fact material to the proper exercise of his statutory jurisdiction.

With respect to the statute of limitations, we cannot know until the account is before us whether there will be any occasion to consider its application.

The order should be affirmed, with costs.

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


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

text:
    John M. Barnett, Resp’t, v. Asahel B. Wing et al., Ex’rs, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    GUARANTY—WHEN IT IS NOT CONTINUING—RENEWAL OF A NOTE.
    The defendant's testator orally requested the plaintiff to endorse an accommodation note of one Nash in order to have it discounted, and promised him that if Nash failed to pay it, he would, and would hold the plaintiff harmless. Relying on this promise, the plaintiff endorsed a note for said Nash. It was not paid, and was several times renewed in the same form. In an action to recover a balance paid by plaintiff upon the last renewal note, Held, that the testator’s liability was only upon the original note and did not attach to said renewals.
    Appeal from a judgment entered upon the report of a referee in favor of the plaintiff.
    The action was prosecuted by the plaintiff to recover upon an alleged paroi agreement by defendant’s testator, that if plaintiff would endorse a note for $1,500 for Melvin A. Hash, and Melvin A. did not pay it, he, the testator, would. The note was solely for the benefit of the maker, Melvin A. Hash. At maturity it was renewed, the plaintiff endorsing the renewal note, on which at maturity the maker paid $500, and the note of the maker endorsed by the plaintiff was given for the unpaid balance. Other notes were given on which the maker paid small payments. The maker on the last renewal note paid $280.73, when due, and the plaintiff paid the balance.
    The defendant’s testator having died, the plaintiff brought this action to recover the amount so paid by him.

      Potter & Little, for resp’t; Edgar Hull (C. A. Sturges, of counsel), for app’lts.
   Mayham, J.

The referee found as facts the making of the note by Melvin A. Hash, endorsed by the plaintiff, and that before the endorsement Edwin A. Nash requested the plaintiff to endorse the note, promising him that if he would do so he, Edwin, would pay the same when due if Melvin did not, that he would indemnify and hold the plaintiff unharmed on account thereof, and that, relying on said promise, plaintiff did then endorse said note.

The appellants insist that this finding is not supported by the evidence. The only evidence in support of this finding is found in the testimony of Melvin A. Nash, and his testimony upon that subject is as follows: “ I had a conversation with my father, Edwin B. Nash, at or about the date of the original note, a few days after. He told me ho had asked Mr. Barnett to sign a note for me, or he would not have done it. He said he asked Mr. Barnett to sign the note, and if I did not pay it he-would; or Barnett would not have signed it.”

It is insisted by the appellants that this language does not,, upon the most favorable construction, or interpretation of it, for the plaintiff, prove a promise by the testator to guarantee or indemnify the plaintiff or keep him unharmed by signing or endorsing this note, and I am quite inclined to agree with that contention. It would certainly require a forced and unnatural construction of these words to give them the force of a contract of guarantee or indemnity against the legal consequence of signing or endorsing this note. The most that would fairly be claimed for the language used was an agreement of the decedent to pay this note if the maker failed to do so.

There was nothing in the language to justify the conclusion that the testator intended to pay any other or future notes, made by Melvin A. Nash and endorsed by the plaintiff, upon the failure of the maker to pay, and if it could be held that an agreement by the testator to pay that note, if not paid by the-maker, was in the nature of a guarantee that the endorser would not be called on to pay that note, still, such a guarantee could not be made to extend to other and subsequent notes made by Melvin and endorsed by the plaintiff, to which no reference was-made by the decedent.

If, as matter of law, the statement of the deceased proved to have been made can be construed as evidence of a guarantee against the first note, still, within the well settled rules of construction of guarantees, it could not be extended to other and subsequent notes not referred to in that statement or in existence at that time.

In the case of Evansville National Bank v. Kaufmann et al., 93 N. Y., 281, the court says : “But when the meaning of the language used in a guarantee is ascertained, the surety is entitled to the application of the strict rule of construction, and cannot be held beyond the precise terms of the contract.”

Applying this rule, it is difficult to see how the defendant’s testator can be held, even by the most liberal interpretation of the words imputed to him, to have guaranteed the plaintiff against the consequence of bis endorsement of these renewal notes. A guarantor has a right to prescribe the exact terms upon which he-will enter into the obligation, and insist upon his discharge in case those terms are not observed. Barns v. Barrow, 61 N. Y., 39.

But it is further insisted upon the part of the appellant that in. any aspect of this case the promise claimed to have been made by the defendant’s testator was but a paroi collateral promise to answer for the debt, default or miscarriage of another, and not being in writing and subscribed by him was void by the statute of frauds.

If this position is true, then the plaintiff could not recover in this action and the judgment should be reversed. It will be borne-in mind that the only promise proved was that if Melvin A. Bash, the maker, did not pay the note, he, Edwin B. Bash, would. Melvin A. Bash was the maker of the note and the principal debtor. James B. Barnett was the payee and the person to whom, or to whose order, the payment was to be made. Edwin B. Bash agreed with the payee that if Melvin A. did not pay the note he would. If, therefore, he was liable on that agreement, it was as-the guarantor that Melvin A. would pay the note. If Melvin A. had paid the note, Edwin B.’s obligation would have been discharged, and hence bis agreement was collateral to the performance by Melvin A.

His was not an original agreement to pay this note in any event, but only in the event that Melvin A. did not pay it, and therefore collateral to the agreement of Melvin A. Collateral is defined by Webster as “ security given in addition to the principal promise or bond.” In this case Melvin A. had, by his promissory note, agreed to pay this plaintiff, or to his' order, $1,500.

This was the principal promise, and collateral to that promise Edwin B. promised that if Melvin A. failed to perform, as he agreed, to pay the note, he, Edwin B., would pay it He was, therefore, the verbal guarantor of Melvin A.’s agreement in the note. A guarantor is one who agrees to see the engagement of another performed, and that is all that can be fairly claimed the defendant’s testator assumed to do in this case. Bouvier defines a guarantee as “ an undertaking to answer for another’s liability and collateral thereto; a collateral undertaking to pay the debt of another in case he does not pay.” 1 Bouvier P., 640. In Gallagher v. Nichols, 60 N. Y., 444, the court of appeals says: “ A .guarantee is defined by elementary writers to be a promise to answer for the payment of some debt or the performance of some duty in case of the failure of another person who in the first instance is liable for such payment, or performance.” Citing 3 Kent’s Com., 121.

If this were a legal guarantee of the payment of this note by the maker it would have passed on the endorsement of the note to the bank, and would have been enforcible by it. Everson v. Gere, 122 N. Y., 290; 33 St. Rep., 462.

But if .we are right in our conclusion that it was only a paroi collateral promise by Edwin B. Bash to answer for the debt or default of Melvin A. Bash, it comes clearly within the definition of a contract void by the statute of frauds.

The respondent insists that as between Barnett, to whom it is-alleged the promise was made, and Edwin B. Hash, by whom it was made, it is not a collateral but a direct promise, and that there was a sufficient consideration of harm to the promisee to take it ■out of the operation of the statute. In support of this theory the respondent cites Mallory v. Gillett, 21 N. Y., 412 ; Tighe v. Morrison, 116 id., 263 ; 26 St Rep., 178; Leonard v. Vredenburgh, 8 Johns., 29; Chapin v. Merrill, 4 Wend., 657; Emerson v. Slater, 22 How., U. S., 28; McCreary v. Van Hook, 35 Texas, 631, and Tisdale v. Morgan, 7 Hun, 583. In Mallory v. Gillett, supra, the plaintiff was in possession of a boat on which he had a lien for repairs, and the defendant promised by paroi that if the plaintiff would surrender the boat to the owner he would pay the charges, some of which he paid at the time. It was held to be an original and not a collateral promise and not within the statute, and the reason .for it seems to be that, though the debt of another may have been the original cause of the promise, yet, if the person to whom it is made relinquish some right or advantage which he possesses which might have enabled him to obtain, satisfaction of his debt, the promise of a third person to pay the debt in consideration of such relinquishment is an original and not a collateral promise. Ho such reason exists in the case at bar, and the cases are therefore clearly distinguishable upon principle.

In Tighe v. Morrison, 116 N. Y., 263; 26 St. Rep., 178, the defendant applied to the plaintiff to sign an administrator’s bond, claiming that he had an interest in the estate, and that it was indebted to him, and upon his oral guarantee to save the plaintiff from loss he executed the bond. The principal in the bond defaulted, and plaintiff suffered loss. In an action on this guarantee, it was held that the case was not within the statute, that the promise was an original one, and legally beneficial to the defendant only, and the court lay down what seems to be the real distinction between a collateral and original undertaking, and hold that to bring a promise within the statute it must be made to persons entitled to enforce the liability assumed by the promisor. In this case the court says: “ In órder to attain a position which he represented would be of pecuniary value to himself, the defendant promised to indemnify the plaintiff against the consequences of an act necessary to enablé him to enjoy said position. One of the consequences was his own possible default. * * * Within all these authorities the promise was clearly original.” And the court adds: “Moreover, the rule seems well settled that .a promise not made to a person entitled to enforce the liability assumed by the promisor is not within the statute.” In the case at bar the promise was made to the payee of the note, the one primarily entitled to enforce the liability. The note was payable to him or order. Without stopping to denote the distinguishing features of the case at bar from those cited and relied upon by the learned counsel for the respondent, we think them all distinguishable upon principle. In Kingsley v. Balcome, 4 Barb., 138, the court, in discussing this statute, says: “ The true rule is that the new original consideration spoken of must be such as to shift the actual indebtedness to the new promisor, so that as between him and the original debtor he must be bound to pay the debt as his own, the latter standing to him in the relation of surety. Farley v. Cleveland, 4 Cow., 432; Barker v. Bucklin, 2 Denio, 45; Baker v. Dillman, 21 How., 444; Carville v. Crane, 5 Hill, 483.

Upon the facts in this case we are clearly of the opinion that the promise proved if capable of being construed into an agreement to indemnify the plaintiff against his endorsement of this note, was within the statute of frauds, and, therefore, void. If right in this conclusion, it is unnecessary to discuss the other points raised by the appellant on this appeal.

The judgment should be reversed.

Judgment reversed, referee discharged and a new trial ordered, costs to abide the event.

Learned, P. J.

The referee finds that the testator, Edwin B. Hash, verbally requested plaintiff to endorse an accommodation note of Melvin A. Hash, in order to have it discounted at the bank, and promised him that if Melvin A. failed to pay he would pay, and would hold plaintiff harmless; that, relying upon that promise, plaintiff on the 16th of May, 1888, endorsed a note of Melvin A. for $1,500. That this note was not paid, but was renewed several times in the same form. On the trial the plaintiff called Melvin A. as a witness, and then executed and delivered to him a general release which specially released Melvin A. from any liability on account of paying the note or the existing renewal thereof.

Without discussing the validity of the indemnity, I am of the opinion that Edwin B. was discharged by the renewals. If, as plaintiff claims, the testator’s liability became fixed when the first note became payable, still the plaintiff extended the time by making a new note. After he had done this, if Edwin B. had paid the plaintiff he could not have sued Melvin A. until the new note became payable. Melvin A. had then taken up the original note and was no longer liable thereon. Edwin B. had agreed to indemnify plaintiff for endorsing the first note, not for endorsing numerous renewals thereof. He might be willing to take the note that Melvin A. would pay, the first note, which came due August, 1888, but not that he would pay, or would be liable to pay, anote which came due in March, 1890.

Furthermore, I think that by releasing in open court Melvin A. from all liability on the original note and on the existing renewals thereof, the plaintiff discharged the testator’s estate. Melvin A. was the principal debtor, and a release of the principal debtor is a discharge of the surety or guarantor. There was no longer anything to guaranty. This defense could not have been pleaded, the act took place on the trial.

For these reasons I concur in the result of my brother May-ham’s opinion.


author:
Mayham, J.
      Landon, J.

text:
    Elizabeth A. Clapper, Resp’t, v. The Town of Waterford, App’lt

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Negligence—Defective highway.
    A person in passing over a bridge over a ditch by the side of a highway, which bridge formed a part of a crossing over the highway constructed some years before by the inhabitants of a town, fell into a hole in the bridge, which hole had existed two months. Held, that she was entitled to recover.
    2. Same—Subsequent condition op bbidge.
    Plaintiff might show the condition of the bridge on the morning after the accident, as it would not be presumed that a change had occurred in the situation during so short a time.
    3. Same—Evidence op adoption op a bbidge.
    As a main issue in the case was whether the town had ever adopted the bridge, plaintiff might show that six days later it repaired it, such evidence being expressly limited to the question of ratification, and expressly excluded from any bearing upon the question of negligence.
    4. Same—Contbibutoby.
    Upon the question of contributory negligence, plaintiff might show that the walk was muddy at the time of the accident.
    5. Evidence—Obóss-examination—Its limitations.
    After a highway commissioner has testified as to funds in his hands, and to official acts, he may be asked on cross-examination whether the board of highway commissioners had, in the previous spring, called for the appropriation of money to be voted at the town meeting.
    6. Negligence—Liability op town undeb chap. 700, Laws 1881.
    Under Laws of 1881, chap. 700, § 1, the town, if anyone, is liable for the accident. Hence, it was not error to refuse a charge that if the town supervisor had refused to pay highway moneys to the commissioners, and they for that reason had no funds, the town was not liable.
    7. Tbial—Abstbact pboposition.
    The court need not charge a proposition abstractly true but not relevant to the facts of a case.
    8. Negligence—Towns—Absence op obdinaby cabe.
    The defendant asked the court to charge that to make it liable the jury must find that the highway commissioners were guilty of wilful misconduct or culpable neglect. The court said: “ If they did not exercise ordinary care it is culpable negligence.” Held, a correct exposition of the law.
    Appeal from a judgment entered upon the verdict of a jury, .and also from an order denying a motion for a new trial upon the minutes of the judge at the trial.

      I. C. Ormsby, for app’lt; P. D. Niver, for resp’t.
   Mayham, J.

The respondent in passing over a foot bridge over a ditch in the public highway in the town of Waterford stepped into a hole in the planlc and was injured. The highway was through a thickly peopled section, between the city of Cohoes and the village of Waterford. On either side of the highway was a ditch constructed for the ordinary drainage, surface drainage of the highway; at about right angles with it was a cross-walk. The bridge over the ditch constituted a part of the cross-walk, was constructed of plank placed upon stringers or timbers imbedded in the road-bed, and in the bank or curb outside of the ditch, with ■plank extending from one to the other across the ditch. The length of the plank bridge was about eight feet and its width ■about two and one-half feet, and it was about twelve inches above ■the bottom of the ditch. The proof tended to show that in this plank walk or bridge there was a hole through the planks about ten inches long and from four to five inches wide, and that the ■same had been there from May previous until the 31st of July, when this accident occurred.

This bridge had been constructed in connection with a stone cross-walk across the road-bed some years before by the inhabitants, and had been from time to time kept in repair by them. There was no proof that either the commissioners of the town or overseer of the ward had actual knowledge of the existence of this hole in the bridge or walk; and the defendant proved -on the trial that the commissioner of highways had no funds with which to repair bridges at the time of the accident Several objections and exceptions were taken by the defendant to evidence offered by the plaintiff on the trial. Exceptions were also taken to the refusal to nonsuit the plaintiff on the motion of the defendant, also the judge’s charge, and to his refusals to charge ■as requested by the defendant The plaintiff, on her own behalf, was permitted tp state the condition of the hole in the bridge as she found it the morning after the accident. This the ■defendant insists was error. The injury occurred about a quarter to nine o’clock in the evening, and the examination of the hole in the bridge was made the next morning. We see no error in the admission of this evidence.

In Burns v. City of Schenectady, 24 Hun, 10, cited on this pont by the plaintiff, it was held error to exclude the testimony of a witness that he had seen similar accidents from the same obstruction for which the action was brought before the time of the injury •complained of. This is not an authority to support the defendant’s theory here. In Collins v. N. Y. C. & H. R. R. R. Co., 109 N. Y., 243 ; 14 St. Rep., 783, also cited by the defendant on this point, the witness was not permitted to state the result of his observation as to the capacity of two different smoke stacks to prevent the emission of sparks, and the exclusion of the evidence was held error. I fail to see how that can be claimed as an authority for the defendant’s contention on this point. In Stodder v. N.Y., L. E. & W. R. R. Co., 50 Hun, 225; 19 St. Rep., 772, evidence was given under objection of the condition of a railroad switch after the accident, and after proof that it had been changed, and it was held that such evidence was not admissible without proof that, in spite of the substitution of the new portion, the condition of the switch remained practically the same as it was when the accident happened. But the ruling was put upon the ground that a change had been proved, and the effect of that confessed change must be known before its changed condition can be competent, as proving its condition at the time of the accident. But a change is not presumed; the legal presumption is that things remain as they are proved to have existed, until the contrary is proved, and we think the condition in which the bridge was the morning after the injury is presumptively its position the night previous, and that the burden of showing it different is upon the party asserting the change.

It is also insisted that the trial judge erred in receiving evidence of repairs of this bridge by Quackenbush after this injury. It was proved by the plaintiff under the objection of the defendant that Quackenbush was at the time acting commissioner of highways of the town of Waterford; but we see no valid objection to that evidence, nor do we think that it was error to prove his acts in relation to this bridge; it was a controverted and perhaps an important question in the case, whether or not the town authorities had recognized, constructed or-adopted this bridge as a part of the highway, but some evidence was sought to be given on both sides of this question. That being so, we think it was. competent to prove the acts of the commissioner of highways of the town, in reference to the bridge, solely as bearing upon that, question. After showing that Quackenbush was seen at this bridge about six days after the accident, the witness was asked this question: “ Did you see Quackenbush on this occasion repairing this bridge in question ?” The question as appears from the case was accompanied by the following statement: .

“ This question was asked for the purpose of proving only that the commissioners of the town of Waterford exercised control over the bridge, and that they had sufficient funds at the time of this accident to repair the bridge, and it was not offered to show anything else.” This question was objected to upon the ground that it was incompetent, improper and immaterial; that Quackenbush was not shown to be commissioner; that the bridge was not shown to be in the same condition in which it was at the time of the accident; that the evidence did not tend to show jurisdiction by the proper officer, or that they had funds.

If this question had been put without qualification, so that the inference could be drawn that it was offered as an admission that the bridge was out of repair to the knowledge of the officers o£ the town, it would have been clearly incompetent within the decisions of the following cases: Corcoran v. The Village of Peekskill, 108 N. Y., 151; 13 St. Rep., 105; Salters v. D. & H. C. Co., 3 Hun, 538; Payne v. T. & B. R. R. Co., 9 id., 526. The vice of this kind of evidence is tersely expressed in the Corcoran case, 108 N. Y., supra, where the judge says: “ While such evidence has-no legitimate bearing upon the defendant’s negligence or knowledge, its natural tendency is undoubtedly to prejudice and influence the minds of the jury.”

But in the case at bar this inference was expressly disclaimed by the question itself; and it was confined to two inquiries,, one at least of which was pertinent to the subject under investigation, viz., whether or not this was a part of the highway which was under the care and control of the commissioners. Upon that subject the acts and declaration of the commissioners would be competent. Bidwell v The Town of Murray, 40 Hun, 190, 191. There was no attempt to show the kind of repairs done by the commissioner to this bridge, and no inference could be fairly drawn that the repairs related to the hole in the planlc in which the alleged injury occurred, and as the question itself was an express disclaimer of any inference of an admission that the bridge was out of repair, to the knowledge of the commissioner, we do not see that its admission was error. In Payne v. Troy & Boston R. R. Co., 9 Hun, 526, the objectionable feature in the evidence was that it showed repairs done in remedying the alleged defect which had produced the injury complained of, and thus bore directly upon the question of the negligence complained of. In the case at bar, its offer and reception was for quite another purpose, and was, we think, competent within the rule laid down in the case of Morrell v. Peck et al., 88 N. Y., 398.

Nor do we think it was error to admit the evidence of the plaintiff showing the muddy condition of the road at the walk at the time of the accident. That evidence was proper, we think, as a -circumstance tending to excuse the plaintiff from the imputation ■of contributory negligence. The question put to the witness, John Richmond, was proper on a cross examination of that witness. 'The plaintiff called him and proved that he, with Quaclcenbush .and Wood, were commissioners of highways of that town and he was interrogated by the defendant and gave evidence on such examination as to the subject of funds in the hands of such commissioners, and other matters relating to their official acts. On the cross examination he was asked the following question: “Q, Did the board in the Spring of 1888 call for the appropriation of money to be voted at town meeting?” This was objected to by the defendant and the objection was overruled. This was not error on a cross examination in view of the evidence which had been elicited by the defendant on the direct examination of this witness. The defendant insists that the trial court erred in refusing to charge as requested in the defendant’s third request to charge. That request was as follows: “Third. That if the commissioners had demanded of the supervisor the highway money in his hands, and he did not pay it to them, and they for that reason had no funds, defendant is not liable and the jury may find that the highway commissioners had used reasonable diligence in obtaining the funds, and not obtaining them, they were not liable for any negligence in not repairing the highway if it was out of repair.” We think this request to charge was properly refused by the judge. The liability, if one existed in this case, was one of the town, and not that of the commission ers of highways in the first instance. Section 1 of chapter 700 of the Laws of 1881 provides that: “The several towns in this state shall be liable to any person suffering the same for all damages to person or property by reason of defective highways or bridges in such town in cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead of such commissioner or commissioners of highways.”

If the supervisor, being an officer of the town, to whom the funds applicable to roads and bridges have been paid by the collector, refuse or neglect to pay the same over to the commissioners, and by such neglect the commissioners are without funds, it is difficult to see upon what principle the town can be excused from liability for not keeping the highways or bridges in a reasonably safe condition for the public travel, on the ground that it or its officers charged with the duty of making needed repairs is out of funds and therefore excused from the performance of such duty. It is also insisted that the court erred in refusing to charge as requested in the defendant’s sixteenth request to charge.

The court in that request was asked to charge that if the jury found that the gutter bridge was a board sidewalk rather than a part of the worked highway, the commissioners were not bound to keep it in repair. As an abstract proposition that request to charge may be sound, but we fail to see its application to this, case, and hence the court was not required to charge it. It is. doubtless true that the commissioners or town could not be called upon to keep in repair a private sidewalk upon a country road which they had in no way authorized or adopted as a part of the public street, but there is no evidence that would justify the conclusion by the jury that this was such a structure. The proof showed it to be a stone walk across the traveled part of the highway and a bridge over the ditch, which was also a part of the worked portion of the highway. It had been there for many years and used in the same manner by the public.

In Hiller v. The Village of Sharon Springs, 28 Hun, 346, this court held that “If an individual voluntarily puts down a sidewalk the village may by acquiescence in the act for a sufficient length of time and by other acts accept of the sidewalk, and with it the village must take the obligation of keeping it in repair.” This rule may not in its full force extend to country roads, but when a crosswalk, which constitutes a part of the traveled street, and covering the ditch, has been suffered to exist for a number of years, we think, within the principle of the above case and others-cited in that case by the court, it may be properly submitted to-the jury for them to determine whether or not the town had adopted it as part of the worked highway, which it is bound to-keep in a reasonably safe condition for the use of the public. The-defendant excepted to the language of the judge in which he says-that: “ If they did not exercise ordinary care it is culpable negligence.” This was in response to a request of the defendant to-charge that the jury, to find the defendant liable, must find that the highway commissioners were guilty of wilful misconduct or culpable neglect The judge charged as requested, but added as above-quoted. We do not think the' remark to which the exception was taken, when taken in connection with the direct response to-the request, was error. The charge of the judge upon the whole case was impartial, and a correct exposition of the law applicable to the same, and we see no error committed upon the trial for which the judgment should be reversed.

Judgment affirmed, with costs.

Learned, P. J., concurs.

Landon, J.

I gravely doubt whether the town is liable. The citizens made the sidewalk and crosswalk. Chapter 61, Laws of 1860; chapter 93, Laws 1863; chapter 233, Laws 1881. If the town could not object, its failure to do so is not an adoption. But I do not dissent. _


author: Mayham, J.

text:
    The People, Resp’ts, v. Harry M. Crawford, App’lt

      (Supreme Court, General Term, Third Department,

      Filed November 30, 1891.)

    1. Bigamy—Void marriage—New Jersey statute.
    An iidictment charged tint in June, 1887, the defendant was married in New Jersey to one Lane and that while she was his wife he, in August, 1890, married one Du Bois in New York. The defense was that the defendant when he married Lane was the husband of one Butler, and therefore was never married to Lane. The statute as to divorces in New ■ Jersey provides that all marriages, where either party shall have a husband or wife living at the time of such marriage, shall be invalid from the beginning and absolutely void and the issue illegitimate. Neld, that under said statute, if the former marriage was proved, the marriage of the defendant to Lane was void without a decree of divorce and was as if no marriage with Lane had taken place.
    2. Same—Statutory marriage certificate—Res gestae.
    In order to prove the marriage to Butler the defendant produced a certificate signed by one Ray. He testified that Ray was the pastor of a church, had handed him the certificate and that it was his marriage certificate. The certificate did not comply with our statute. Neld, that in view of this and of the fact that its proof rested only on the defendant’s evidence, it was properly excluded as a statutory certificate; that it was not admissible as res gestee, and that the jury was not bound to believe the uncorroborated testimony of defendant.
    Appeal from conviction and judgment had and entered in the ■court of sessions of Ulster county for the crime of bigamy. The indictment charged that on the 30th day of June, 1887, at the city of Newark in the state of New Jersey, the defendant was married to Laura Ann Lane, and that while the said Laura Ann Lane was still living, and while he was married to her, that the defendant on the 31st day of August, 1890, at Esopus in Ulster ■county, N. Y., married one Leona Du Bois. The defendant pleaded not guilty to the indictment, and the case was transferred from the oyer and terminer to the Ulster county sessions, where a conviction was had, from which the defendant appeals.

      (G. D. B. Hasbrouck, for app’lt; John N. Vanderlyn, for resp’ts.
   Mayham, J.

The defendant before pleading to the merits of the indictment, demurred to the same, alleging several grounds of demurrer, which demurrer was overruled. But no point is made on this appeal on the demurrer, and it therefore requires no discussion here; and so far as appears the demurrer was properly disposed of by the trial judge. The first ground urged by appellant for the reversal of this conviction is that the defendant’s Alleged marriage in New Jersey to Laura Ann Lane was void under the laws of New Jersey, where it occurred, by reason of his previous marriage to one Beatrice Vulcan Butters, who at the time of his alleged marriage to Lane was living and his lawful wife, And that bigamy could not be predicated upon his marriage with Leona Du Bois after the alleged marriage with Lane for the reason that that marriage was absolutely void, and constituted therefore no previous marriage, and that consequently the defend- - ant did not marry Leona Du Bois while he was married to the-said Laura Ann Lane as charged in the indictment.

In support of this contention the appellant’s counsel cites the Hew Jersey statute, which provides: “ That all marriages, where-either of the parties shall have a husband or wife living at the-time of such marriage, shall be invalid from the beginning and absolutely void, and the issue thereof shall be deemed to be illegitimate and subject to the legal disabilities of such issue.” As this alleged marriage to Laura Ann Lane occurred in Hew Jersey,, its validity must be determined by the laws of that state, Van Voorhis v. Brintnall, 86 N. Y., 18 ; Moore v. Hegeman, 92 id., 524,provided that statute is properly before the court. The case shows that it was introduced in evidence and this court must,, therefore, take judicial notice of its provisions. It is true that the Hew Jersey statute quoted relates to divorces, and is not in terms applicable to criminal actions for bigamy; but it nevertheless prescribes the effect of a previous marriage and renders the subsequent marriage void, when celebrated in that state; but it. is not in terms like the Michigan statute which has been considered by the courts of the state in the People v. Chase, 27 Hun, 257. That statute provides that such second marriage “ shall be absolutely void without any decree of divorce or other,legal process.”

In People v. Chase, supra, the conviction was reversed on the-ground that the bigamy alleged in the indictment, and upon which a conviction was had, was shown on the trial to have referred to a second and third marriage; the second marriage being void by statute in the state where it was celebrated was held to be no marriage, and therefore the one in which the bigamy was alleged was not in legal effect the second marriage, as charged in the indictment.. This was upon the theory that the second and third marriages were, the only marriages alleged and as the second was void it was as no marriage and did not, therefore, make the other bigamous. I think within the decisions quoted we may hold that the-word “ void ” in the Hew Jersey statute is, in effect, equivalent to-the words used in the Michigan statute, which have been construed by this court in the first department to render the-second marriage absolutely void and as if no such ceremony had taken place. It would seem to follow, therefore, that if the defendant was, in fact, married in the state of Hew York to Beatrice Yulcan Butters, September 1, 1879, and then on the 30th of June, 1887, in the state of Hew Jersey to Laura Ann Lane, while the first wife was still living, and not divorced, bigamy cannot be predicated on the marriage to Leona Du Bois on the 31st of August, 1890, solely upon the allegations of the marriage with Laura Ann Lane and Leona Du Bois, for the ceremony of marriage with Lane did not constitute a legal marriage in Hew Jersey and was void under the laws-of that state. But whether or not the defendant was ever married to Beatrice Vulcan Butters was a question of fact for the jury, and was submitted by the trial judge to them, and the result of their verdict is that he failed to prove his marriage with Butters. The People in this case having proved the two marriages of the defendant under circumstances such as unexplained constituted a criminal offence, it was incumbent on the defendant to establish a valid legal excuse or defense. This he undertook to do by proving by his own oath the marriage with Miss Butters, before his marriage with Lane. But the rule is too well settled that the jury are not bound to believe the uncorroborated evidence of the defendant charged with crime to require citation of authorities. But the defendant sought to corroborate his statement by the introduction of some other evidence.

The defendant offered in evidence a paper which upon its face purported to be an informal certificate of marriage of the defendant and Beatrice Vulcan Butters, purporting to have been signed by ¡Raymond Bay, and testified that it was his marriage certificate and that Baymond Bay was pastor of an episcopal church in Harlem. This paper was excluded by the court on the ground that it did not conform to the statutory requirement and was not therefore a valid marriage certificate. An exception was taken to this ruling and the appellant’s counsel now urges that the rejection of the paper was error for which the conviction should be reversed. We see no error in its rejection. It was not proved to have been signed by the alleged minister. The only evidence of its authenticity was the testimony of the defendant that Bay handed it to him. But if its execution had been proved it was not even a substantial compliance with the requirements of the statute. The statute makes the original certificate evidence when made as directed in the statute, and it is only by force of this statute that the common law method of proving it can be obviated. It was therefore properly rejected as a statutory certificate of marriage. ¡Nor do we see how it can be received as a part of the res gestee. It constituted no part of the marriage ceremony, and it does not affirmatively appear that it was made and delivered at the time of the alleged marriage.

It is urged as another corroborating circumstance tending to prove his marriage with Miss Butters that he introduced her as his wife and lived with her as such. This evidence, while it was competent upon that subject and proper for the consideration of the jury, was in no way conclusive upon them. They had a Tight to consider it and give it such weight as in their judgment it was entitled to. On the occasion of his marriage to Leona Du Bois he stated to the clergyman that that was his first marriage. They also liad a right to take into account in considering the evidence the character of the witness who testified upon that subject and the relation he bore to the defendant in this case. We cannot, under the circumstances of this case, hold as matter of law that the defendant proved his marriage with the woman Butters, that the jury were •compelled to find that fact, and that their failure to do so will justify the interference of this court in reversing this conviction "upon that ground. We have examined the various objections and exceptions taken to the charge of the trial judge, and see no-error or misdirection in the same for which the judgment should he reversed.

Judgment affirmed.

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