text:
    Mortimer E. Serat, Respondent, v. The Utica, Ithaca and Elmira Railway Company of the State of New York, Appellant.
   Judgment affirmed, with costs, Opinion by

Learned, P. J.


source: Caselaw Access Project

author: Learned, P. J.

license: Public Domain

text:
    Emily F. Phelps, Appellant, v. John F. Phelps, Respondent.

   Order affirmed. Mem. by

Learned, P. J.


text:
    Hoyle v. New York Central and Hudson River Railroad Company.
   Motion to go to Court of Appeals denied.


text:
    Surdam v. Fuller.
   Motion for leave to go to the Court of Appeals denied.


author: Boardman, J.

text:
    Jacob D. Wurts, Respondent, v. Josiah Lefever, Appellant.
   Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs. Opinion by

Boardman, J.


text: Charles W. Deyo, Respondent, v. Ralph Lefever, Appellant.


text: Jacob D. Wurts, Respondent, v. Ralph Lefever, Appellant.


text:
    Charles W. Deyo, Respondent, v. Josiah Lefever, Appellant.
   Order affirmed, unless defendant, within twenty days after notice of decision serve amended answer, -which they have leave to do, with ten dollars costs and printing disbursements in each case. Mem. by

Boardman, J.


text:
    The People of the State of New York ex rel. The Board of Supervisors of Chenango County, Appellants, v. The Board of State Assessors, Respondents.
   Order affirmed, with ten dollars costs and printing disbursements.


author: BoardhaN, J.

text:
    Matthew Hale and Alpheus T. Bulkley, Respondents, v. John Swinburne, Appellant.

   Order reversed ánd motion denied, without costs. Memorandum by

BoardhaN, J.


author: Boches, J.

text:
    Charles B. King, Respondent, v. Patrick J. Flynn and others, Appellants.

   Order modified in accordance with opinion. Memorandum by

Boches, J.


text:
    Marshall Robinson, Respondent, v. Enoch H. Bishop and others, Appellants.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Frederick R. Farwell and others, Respondents, v. William E. Farness, Appellant.

   : Order reversed, with ten dollars costs and printing disbursements, and motion granted, with ten dollars costs. Memorandum by

Boches, J.


text:
    William E. Davenport and Henry Lynch, Respondents, v. Jacob C. Hasbrouck. Appellant.
   Order reversed, and order, granted that the cause be heard by County Ooui’t on the return, with ten dollars costs and printing disbursements. Memorandum by

Boches, J.


text:
    Calvin H. Bell, Appellant, v. John B. Gleason, Respondent.
   Order correcting judgment affirmed, with ten dollars costs and printing disbursements.


text:
    In the Matter of The Kingston Water-Works Company to Acquire Lands of Van Etten and others.
   Order correcting judgment affirmed, with ten dollars costs and printing disbursements.


text:
    David H. Flack and others, Appellants, v. The Village of Green Island, Respondent.
   Orders affirmed, with ten dollars costs in each case and printing disbursements.

Learned, P. J., not acting.


author: Boardman, J. .

text:
    Mattie A. Prindle, Respondent, v. Lyman De B. Prindle, Appellant.
   Order reversed and motion granted, without costs. Mem. by

Boardman, J. .


text:
    The People of the State of New York, Respondent, v. Charles Mayhon, Appellant.
   Judgment and conviction affirmed.


text:
    Elizabeth S. Chipman, Appellant, v. Village of Saratoga Springs, Respondent.
   Order affirmed, with ten dollars costs and printing disbursements.

Boches J., not acting.


author: Learned,

text:
    Erastus H. Benn, Respondent, v. The First National Bank of Elmira, Appellant.
   Order reversed, with ten dollars costs and printing disbursements and motion denied. Mem. by

Learned,


text:
    The New York, Ontario and Western Railway Company, Respondent, v. Ira Davenport, as Comptroller, etc., Appellant, Impleaded, etc.
   Judgment reversed and demurrer sustained, with costs of appeal on demurrer with leave to amend in twenty days on payment of costs on authority of Clarke v. Davenport.


text:
    D. Franklin Balch and Marian Balch, Appellants, v. Leander Davis, Respondent.
   Judgment affirmed, with costs. Mem. by

Learned, P. J.


author: Bookes, J.

text:
    Amory H. Hobart, as Assignee, etc., Appellant, v. Abner Hobart, Respondent.
   Judgment of County Court reversed and that of justice affirmed, with costs. Opinion by

Bookes, J.


text:
    Calvin H. Bell, Appellant, v. John B. Gleason, as Assignee, etc., Respondent.

   Judgment affirmed, with costs.


text:
    Perry D. Gross, Respondent, v. John W. Jones, Appellant.

   Judgment affirmed, with costs.


text:
    In the Matter of the Accounts of Martin H. Yates, Executor, etc.

   Decree of surrogate affirmed, with costs against appellant.


text:
    The People of the State of New York ex rel. John M. Crapo, Respondent, v. The Recorder of the City of Albany and others, Appellants.

   Order of Special Term reversed, and that of recorder affirmed, with ten dollars costs and printing disbursements. Opinion by

Boardman, J.


text:
    Henry Moyer, Administrator, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Boardman, J.


text:
    James A. Morris and William Smith, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.

   Judgment affirmed, with costs. Opinion by

Bookes, J.


text:
    Melnda Smith, as Administratrix, etc., Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.


text:
    Ann Colrick, as Administratrix, etc., Respondent, v. Sarah A. Swinburne and another, as Administrators, Appellants.

   Judgment affirmed, with costs. Opinion by

Boardman, J.


author: Boardman, J.,

text:
    Jeremiah Eighmie, Respondent, v. Edgar B. Taylor, Administrator, etc., Appellant.

   Judgment affirmed, with costs. Opinion by

Boardman, J.,

and by Bookes, J., dissenting.


text:
    Alida F. Flint, Appellant, v. Calvin H. Bell and James E. Beller, Respondents.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


author: Bocees, J.

text:
    George Marks and others, Respondents, v. Hudson River Bridge Company at Albany, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Bocees, J.


author: BoaedmaN, J.,

text:
    George Jackson and Edward Wight, Plaintiffs, v. Horace D. Tupper and others, Defendants.

   Judgment for plaintiff on verdict. Opinion by

BoaedmaN, J.,

and by Learned, P. J., dissenting.


text:
    Fanny Harty and others, Appellants, v. Carleton S. Wattles and Hulda A. Lyon, Respondents.

   Decree affirmed, with costs against appellants. Opinion by

Bocees, J.


author: Bocees, J., and by Learned, P. J.,

text:
    Jesse Robinson, Respondent, v. William Robinson, Appellant.
   Judgment affirmed, with costs. Opinions by

Bocees, J., and by Learned, P. J.,

dissenting.


text: The People of the State of New York ex rel. John S. Burhans and others, Supervisors, etc., and the City of Kingston, Appellants, v. The Board of Supervisors of Ulster County, Respondent.


text:
    The People of the State of New York ex rel. Louis Bevier, Supervisor, etc., and the Town of Marbletown, Appellants, v. Same, Respondent.

   -Motion to quash certiorari denied, with ten dollars costs in each case. Opinion by

Bocees, J.


text:
    Daniel H. Zimmer, Respondent, v. David Settle and others, Appellants.
   Order denying new trial reversed and new trial granted, costs to abide event. Opinion by

Learned, P. J.


author: Boardman, <L,

text:
    Mary Perry, Respondent, v. The Rome, Watertown and Ogdensburg Railroad Company, Appellant.

   Judgment and order affirmed, with costs. Opinion by

Boardman, <L,

and by Bocees, J., dissenting.


text:
    George C. Preston, Respondent, v. Samuel R. Hawley, Appellant.
   ■ Judgment affirmed, with costs. Opinion by

Bocees, J.


text:
    Margaret Mallock, Respondent, v. Jane Robinson, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    James M. Snyder, Respondent, v. Lewis Rhodes, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Bocees, J.


text:
    Ransom J. Horton, Respondent, v. George H. Dorr, and another, Appellants.

   -Judgmentand order reversed; new trial granted, costs to abide event. Opinion by

Learned, P. J.


author: Brady, J.:

text:
    SALY I. MAYER and Others, Appellants, v. FERDINAND EHRLICH and Others, Respondents.

      Meaminaiion of a party before trial — what constitutes a wawerr of the certification and filing of the depositions.

    In pursuance of an order made in this action for the examination of the defendants before trial, they appeared and after they, had been examined by the plaintiffs, they were sworn to the depositions before a justice of the Supreme Court; at .the close of the examination a stipulation was signed providing that the defendants’ counsel might cross-examine the .defendants, or either of them, on one day’s notice to the plaintiffs’ attorney, but that, for the purposes of the order entered on that day, the examination was closed. Upon the trial the plaintiffs offered to read the depositions, but the court refused to receive them upon the ground that they had not been certified or filed as required by the Code.

      Held, that this was error; that the requirements as to certification and filing had been waived by the defendants, and could not thereafter be insisted upon.
    Appeal from a judgment rendered upon the dismissal of the complaint at the circuit.

      Ira Leo Bamberger, for the appellants.

      Franeis B. Ghedsey, for the respondents.
   Brady, J.:

This action was based upon the charge of, false representations made by the defendants to the plaintiffs, and by which they were induced to sell wares and merchandise to the amount stated. The learned justice presiding' iii the court below dismissed the complaint upon the ground, as appears from his opinion, that the testimony did not establish the charge of false representations. He thought there was not sufficient evidence affecting that question to require that it should be submitted to the jury, and felt it his duty, therefore, to dispose of it as he did.

Several exceptions were argued upon the presentation of the appeal herein, but it will be necessary to discuss but one of them in the view that is taken of it. It appears that the defendants were examined before trial under the provisions of the Code authorizing that to be done. Parts of these depositions were offered upon the trial, but were objected to upon the ground that the deposition of each witness was not certified or filed according to the requirements of the statute. The objection was sustained and an exception taken. The counsel for the plaintiffs insisted that by virtue of a stipulation in regard to these depositions he was not required to file them, nor to have them certified in any manner other than that in which they were certified. It appears in regard to them that the defendants were all sworn to the depositions before one of ihe justices of this court after the examination had been concluded apparently, and after the following stipulation was signed by the defendants, as appears from-the deposition of Solomon Steinfield :

“Defendants’ counsel may cross-examine defendants, or either of them, at any time, on one day’s notice to plaintiff’s attorney; but for the purposes of the order entered this day this examination herein shall be closed.”

The respondents justify the exclusion of these depositions under the provisions of section 880 of ihe Code of Civil Procedure. That section provides for the manner in which the examination of a party is to be taken. It is true it declares that the deposition when completed must be read to and subscribed by the party examined, and must be certified by the judge or referee taking it, and within ten days after filed in the office of the clerk. But it must not be overlooked that the examination herein was not completed, by reason of the default of the defendants. It was not completed because the defendants reserved the right, under the stipulation to which reference has been made, to cross-examine the defendants, or either of them, at any time, on one day’s notice to the plaintiffs’ attorney, a notice that might have been given upon the day the ease was upon the calendar, with full force and effect. It would be unjust to deprive the plaintiffs of the benefit of the depositions under such circumstances, and would enable the defendants to take advantage of their own wrong.

The statutory provision in reference to the filing of the deposition is one which may be waived by the adverse party, and was in effect waived by the defendants herein, securing, as they did the right of cross-examination at any time upon one day’s notice, a provision which rendered it perfectly justifiable to withhold the deposition from the files of the court. So far as the plaintiffs’ case was concerned the examination was concluded, and the plaintiffs were not bound to do anything more than they did for the purpose of enabling them to use the deposition. It was incumbent upon the defendants, therefore, in order to insist upon the observance of the statute with regard to filing, to give notice that they waived the right of cross-examination, and required the plaintiffs to have the depositions certified and filed according to the provisions of the statute, the time for such purpose to begin to run from the time of such notice.

The section referred to does not absolutely prohibit the use of the deposition either expressly or impliedly, if it be not certified, and the object of requiring such ceremony is to secure the adverse party examined from any alteration or perversion of his evidence. The provisions of the statute are safeguards created for his benefit, and are such as could be waived. There being no absolute prohibition of the use of the deposition contained in any of the sections of the statute relating to it, unless taken in the manner indicated the rules controlling it under circumstances not contemplated by the statute, are within the power of the court, and it is considered that the stipulation operated as a waiver of the ceremonies already mentioned, which would otherwise be required, and that the depositions were improperly concluded. It is quite evident that had it not been for that stipulation the plaintiffs might have perfected the depositions by securing a compliance with the requirements of the statute, inasmuch as it is not pretended that there were any irregularities on the taking of the depositions which would interfere with that result. The evidence contained in the depositions on behalf of the plaintiffs seems to have some bearing, perhaps an important one, upon the question of fraud. At all events it is impossible for us to say that the exclusion of the depositions could not by any possibility have prejudiced the plaintiffs’ case.

For these reasons it is thought that the judgment should be reversed and a new trial ordered, with costs to abide the event.

Davis, P. J., and Daniels, J., concurred.

Judgment reversed, new trial ordered, costs to abide event.


author: Davis, R. J.: Daniels, J.:

text:
    In the Matter of FERNANDO WOOD and Others to Vacate an Assessment.

      Assessment — joint petition of sepa/mte owners to vacate it — when the petitioners slumld not he allowed to amend, so as to file separate petitions.

    In December, 1873, thirty-seven persons served upon the corporation counsel of the city of New York a joint petition in a proceeding to vacate assessments for the cost of building a sewer, imposed on lots owned by them in severalty. In September, 1880, an amended petition was served. No other action was taken until August, 1883, when the petitioners moved to he allowed to serve separate petitions to vacate or reduce the assessment on their respective lots. It appeared that the petitioners had already paid the assessment. It was claimed that the Court of Appeals had recently decided that the assessment was illegal to the extent of t.wenty-nine and seven-tenths per cent, and also that a petitioner might have an order vacating or reducing an assessment, although he had paid it pending the proceedings to vacate it.

      Eeld, that the application to he allowed to serve separate petitions should have been denied.
    Appeal by the city of New York from an order made at a Special Term, granting leave to each of the petitioners herein to file a separate petition -for the vacation or reduction of the assessment referred to in a-joint petition theretofore filed by tbem.

      Albert I. Cole, for tbe city of New York, appellant.

      P. A. Rtwgous, for tbe respondents.
   Davis, R. J.:

In December, 1873, Fernando Wood and a large number of other persons, thirty-seven in all, served on the corporation counsel their joint petition to vacate assessments on separate lots of land owned in severalty by them, for an outlet sewer in Sixty-sixth, street and several branches thereof in other streets, for reasons assigned in the petition. No further step was taken on said petition till September, 1880, when an amended petition was served, upon which no action has ever been taken. .

In August last, notice of a motion was given for an order allowing the several petitioners mentioned in said petition to serve separate petitions to vacate or reduce the assessments on their respective lots as mentioned in said joint petition. This motion was opposed by the corporation counsel, but granted by the court, and from the order granting the same this appeal is taken.

It appears in the affidavits that when the joint petition was filed it was done with the authority and consent of the then corporation counsel, who then tolerated that course of practice; and an assistant, then in the office, says that that system was approved and continued in vogue until he left the office of the corporation counsel on the 1st of July, 18J4. It appears, also, that subsequently to the service of the petition the assessments on the lots of the several petitioners were paid, and the affidavit of the attorney for the petitioners states that it has been lately decided by the Court of Appeals, in the case of the Metropolitan Gras-Light Company, that .the said assessment is illegal to the extent of twenty-nine and seven-tenth per cent; and that it has also been lately decided that a petitioner may, notwithstanding the fact of payment pending the proceeding to vacate, have an order vacating or reducing his assessment.

It is manifest, we think, upon the face of the papers that this proceeding, which was commenced ten years before this motion was made, was intended to be abandoned by the petitioners; that they came in and paid the assessments and took no proceedings to bring their petition to a trial or hearing; but allowed the same to become stale until the decision of the Court of Appeals, some ten years after the commencement of this proceeding, held that a portion of the assessment was not valid. When payment was made of the assessment it was supposed to be the law that such payment ended proceedings to vacate; and the courts so held until the recent decision of the court of last resort above referred to. The payments in this case were doubtless made with the understanding and intent that that ended the proceedings'. Now, after so great a lapse of time, and after the two decisions which change the views of the law doubtless entertained at the time the payment of the assessments was made, it is sought, not to revive or try the proceedings commenced and pending on the petition, but to get an order which will allow each of the several petitioners to file a petition for himself, affecting only his separate interests in such form as will be deemed a severance of the original proceeding, and a continuance of the same by authorizing thirty-seven new proceedings in lieu of the one actually commenced, to be treated as though filed and served of the date of the original proceeding; and such an order has been granted. No one objects to the petitioners proceeding on the original petition to establish such rights as they may have under that; but it is insisted that the court lias no authority to allow by ■order such a severance and the filing of separate proceedings relating .bach to the time when the original petition was filed ; and that if such power exists, the order is not a provident exercise of it under the circumstances of this case.

We are of opinion that the order ought not to have been made. The circumstances are not such as to entitle the petitioners to such special favor and protection. Their delay of ten years without bringing the petitions to a hearing; their payment in the meantime of the assessments, and their entering upon the use and enjoyment of the sewers, doubtless ever since their completion, afford strong evidence of an intent to abandon and not prosecute the petition.

After all this period of time, the fact that new rules of law are developed by the decisions referred to ought not to entitle them to anything more than what they can obtain by going on with the pending proceedings. The court ought not to allow the filing-of thirty-seven new petitions by the several original petitioners as of a date ten years ago, ánd thus deprive the city of defenses that have since arisen, and which can be interposed to new proceedings. The proceeding by- petition in these cases is a special one created by statute, and to be specially pursued, and we very strongly doubt whether the judge or court before whom it is instituted can exercise such a power as is here sought; but at all events, if the power exists, it ought to be used with care, and on such terms as will cause 'such laches as are shown in this case not to result in placing the city in any worse position than it was when the new rulings of the courts exposed it to liabilities thought not before to exist. The effect of this order is simply to create a device by which parties who have been grossly negligent can, by reason of their very negligence, be placed in a position far better than they enjoyed before. It is enough that they may be allowed to go on and enjoy whatever rights they have under their pending petitions without allowing the commencement of thirty-seven separate proceedings, subjecting the city to the costs and expenses of thirty-seven new litigations under cover of a single old one, for the purpose of keeping out defenses which may have grown up out of their own delay.

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

Daniels, J.:

I am satisfied that the direction given is correct. If each petitioner should now present a petition for his own individual case, it would not be an amendment of the original, but a new proceeding. And payment before its presentation would be a complete answer on the part of the city. I agree, therefore, to the disposition ■suggested on this ground and those stated in the opinion.

Bradt, J., concurred.

Order reversed, with ten dollars costs and disbursements.


text:
    EDWARD ELSWORTH, Executor, etc., of HENRY ELSWORTH, Deceased, Plaintiff, v. ST. LOUIS, ALTON AND TERRE HAUTE RAILROAD COMPANY, Defendant.
    Ultra vires — issue of bonds by a corporation at a price less than that fixed by its charter — the illegality of the bonds cannot be set up against a bona fide purchaser for value.

    Tbe charter of the defendant, a railroad company, authorized it to “ make and issue its bonds, of not less denomination than $100 each, payable at such times and places, bearing such rates of interest, not exceeding seven per cent per annum, payable semi-annually, at such place or places as may be agreed upon, as it may deem expedient, and (to) hypothecate or sell such bonds within or without this State, when issued, to raise or borrow money at a price not less-than eighty cents on the dollar; and all other bonds to be issued shall be sold or exchanged at par. And in no case shall bonds, whether hypothecated or sold, become a debt or liability of the corporation at less than eighty cents on-the dollar. ” In an action to recover the amount due upon certain bonds issued by the defendant, bearing interest at the rate of ten per cent per annum, it was admitted that the plaintiff was a bona fide holder for value, that the bonds were duly and properly executed, and that the interest falling due thereon had been paid by the company for a period of eight years. The defense was-that the bonds were illegal and void because sold by the company at ninety per cent or less of their par value.

      Held, that the defense was not available as against the plaintiff.

      Mercer County v. Hacket (1 Wall., 93) followed.
    Exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendant directed at the circuit.
    The action was brought upon bonds issued by the defendant, a corporation created and existing under the laws of Illinois and Indiana.

      Wm. A. Ooursen, for the plaintiff.

      Geo. A. Strong, for the defendant.
   Brady, J.:

This action was brought to recover the amount of thirty bonds of the sum of $1,000 each, made by the defendant, payable with interest at the rate of ten per cent per annum. It is not asserted on behalf of the defendant that the bonds were not duly and properly executed, or that the plaintiff is not the owner of them in good faith, or that the interest, which became due, was not paid by the company fora period of eight years and up to the first of March, 1878. The defense set up is that by the charter the bonds could not be sold for less than their par value; that these bonds were sold at ninety per cent or less; that such sales were illegal and void, conferring upon the purchasers no right to have or to hold them or to enforce-them against the defendant, and that therefore none of them ever . became or were actual obligations or a debt or a liability of the defendant.

The learned counsel for the respective parties to this action, in extended arguments and elaborate briefs, have discussed a variety of questions bearing upon, it is supposed, tbe contention as to tbe liability of the defendant upon the bonds held by the plaintiff ; and it might perhaps be interesting to pursue them in their intellectual efforts and' to discuss the various questions, if research in reference to the question at issue had not developed a case which is considered to be decisive upon the disputed point.

The second section of the charter under which the bonds were issued provides, among other things, as follows: “And the said corporation may make and issue its bonds, of not less denomination than $100 each, payable at such time and places, bearing such rates of interest, not exceeding seven per cent per annum, payable semiannually, at such place or places as may be agreed upon as it may deem expedient, and may hypothecate or sell such bonds within or without this State, when issued, to raise or borrow money at a price not less than eighty cents on the dollar; and all other bonds to be issued shall be sold or exchanged at par; and in no case shall bonds, whether hypothecated or sold, become a debt or liability of the corporation at less than eighty cents on the dollar.”

It is contended, inasmuch as the bonds in controversy bear the interest of ten per cent, that the sale of them at less than par is absolutely prohibited and creates, as already suggested, no obligation on the part of the company to pay them. No adjudication of the’ courts of this State in point, and therefore decisive of the question,, has been cited by either of the learned counsel and none has bden found; but in the case of Mercer County v. Hacket (1 Wall., 93) a kindred question was presented, considei-ed and disposed of.

In that case it appeared that the legislature of Pennsylvania authorized the commissioners of Mercer county, in that State, to subscribe to the stock of the Pittsburgh and Erie railroad, which road, if built, would pass through their county and benefit it. The act, however, contained the proviso, after stating that the subscription should be made subject to certain restrictions and limitations : “ And such bonds shall in no case or under any pretense be sold, assigned or transferred by the railroad company, at less than the par value thereof.” The court held that the bonds having been delivered to bona fide holders for value; the fact that they were negotiated at less than their par value could not be received to defeat the recovery of the bona fide holder; and in the opinion of the or the case of Woods v. Lawrence County (1 Black, 386) was referred to as decisive of the same doctrine, namely, that the right of the tona fide holder of a bond to recover was not affected by the fact that the railroad sold the bonds at a discount contrary to the provisions of their charter, which forbade the sale of them at less than their par value.

No distinction between that case and this in principle has been discovered. These bonds, like those in question in the case cited, are regular upon their face and, as already suggested, were confessedly properly executed, the only question affecting the liability of the defendant being the sale of them at less than their par value. They contain the provision : This bond shall pass by delivery or by transfer upon the books of the company in the city of New York, or at such other place as the company may keep the transfer books,” and hence were negotiable instruments. It is to be further said that the company after the issuing and sale of the bonds in contravention, as it claims of the provision in the charter, continued for several years to pay the interest upon them and thus affirmed the sale, a circumstance bearing strongly upon their liability, as amounting to a direct ratification of the act itself, against the legal effect of which the case presents nothing save the proposition of the learned counsel that the sale of them was absolutely void, and therefore conferred no rights upon the purchaser. This proposition on the authority of the case cited cannot be maintained and is therefore rejected. It follows that the plaintiff is entitled to judgment.

Ordered accordingly, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment ordered for plaintiff, with costs.


text:
    FANNY H. THOMAS and JOSEPH THOMAS, as Executors of MARY THOMAS, Deceased, Respondent, v. ANDREW D. BOGERT, Appellant, Impleaded, etc.

      Execution — it ceases to be operative'after a sale has been made thereunder — the attorney issuing it ca/nnot thereafter withdraw it.

    .In an action brought against Abraham Thonias and Horace Orandall a warrant of attachment was issued "and a levy thereunder made upon the interest of Thomas in certain real estate, he being a non-resident. Thereafter the summons was served upon him personally, and on June 22, 1880, a judgment was . entered against him. February 17,1881, an execution, general in its character and not in the form prescribed by section 1370 of the Code of Civil Procedure, was issued thereon, under which the attached premises were on April sixth sold to one of the plaintiffs in the action, for fifty dollars. On April nineteenth the attorney for the plaintiffs discovered that the attachment was invalid and countermanded the execution theretofore issued. He then issued a new execution under which the premises were on. May 31, 1881, sold to the same purchaser. No sheriff’s certificate was ever issued under the first sale.
    In an action brought by one to whom Thomas had sold the premises prior to the time of the first sale, to have the second sale canceled and to be allowed to redeem from the first sale upon complying with the provision of the statute relating thereto:

      Held, that the relief asked for should be granted.
    That after the sale under the first execution had actually been made, the plaintiffs’ attorney could not withdraw the execution by reason of any defects or irregularity existing therein, or in any way affect the sale that had been made thereunder.
    Appeal from a judgment, entered upon tbe trial of tbe action at a Special Term.
    By tbe judgment tbe plaintiff was permitted to redeem from a .sale under execution, certain property claimed to bave formerly belonged to one Abrabarn Tbomas. The execution, under which tbe sale was made from which tbe plaintiff was permitted to redeem, was countermanded soon after tbe sale was bad ; no sheriff’s certificate having been issued. The property was subsequently sold under another execution issued on the same judgment.

      George A. Strong, for the appellant.
    , Hamilton WalUs, for the respondent.
   Brady, J.:

It appears herein that Andrew D. Bogert and Jacob G. Bogert -commenced an action in this court against Abraham Thomas and Horace Crandall to recover a sum of money with, interest. The:' defendant Thomas being a non-resident, an attachment was obtained and a levy made upon bis interest in certain real estate in this city. The summons and complaint were actually served upon him personally on the 12th of February, 1880, and such proceedings were had that a judgment was entered against him on the 22d of June, 1880,. for $3,080.80.

An execution, general m character, was issued thereupon to the-sheriff of this county, hearing date the 17th of February, 1881, and subscribed by Thomas M. Wheeler as the plaintiffs’ attorney. Upon receiving the execution the sheriff .duly advertised for sale, on the 30tb of March, 1881, whatever interest Thomas had in the property attached. On the sixth of April following, to which time the sale had been adjourned, the property mentioned was sold to Andrew D. Bogert for fifty dollars. Prior to this sale, however, and it would appear prior to the issuing of the attachment, the defendant Thomas and wife conveyed their interest in the property mentioned to Mary Thomas, the plaintiff in this action, by deed which was duly recorded in the' officé of the register of this county. On the 19th of April, 1881, Wheeler, the attorney for the plaintiffs in the attachment suit, having, as it is alleged, discovered that the-attachment was invalid, countermanded it, but this, as it will have been discovered, was several days after the sale was made by'Vhesheriff. He then issued an execution, proper in form and regular, under which the property was again advertised for sale and sold on the 31st of May, 1881, to Andrew D. Bogert, the certificate of which sale was given to the purchaser by the sheriff. No certificate was given by the sheriff upon the first sale as provided by law. Since the judgment in this action, Jacob Q-. Bogert, one of .the defendants, died, and Mary Thomas, the plaintiff, died, but the action has been revived and continued by her executors, who are-now the plaintiffs in this action, and it has also been revived against the survivor of Jacob G-. Bogert.

Mary Thomas in her lifetime began this action for the purpose of procuring a judgment of this court by which the second sale mentioned should be adjudged to be null and void, and she declared'to-have redeemed the premises from the first sale as the .owner thereof, having duly tendered, according to the statute in such case made- and provided, the amount which was bid for the premises upon the first sale with the interest. She was the grantee of the judgment-debtor and claimed that she had, under sections 1446 and 1447 of the Code, the right to redeem within one year upon the payment of the amount paid upon the sale, with interest at the 2'ate of ten per cent per annum.

It does not seem to be disputed that the plaintiff was the gi’antee of the judgment-debtoi’, nor does it seem to be questioned that the proper tender was made to the sheriff. The learned court below found in favor of the plaintiffs, deci’eeing the 2’elief asked. It is insisted, however, that the plaintiffs are not entitled to judgment, because the first execution, • under which the sale was made and of which the redemption is predicate, was invalid, for the l’eason that the execution was a general one and was nnauthoi’ized by the statute, and for the further reason that it was coi2nte2’2nanded, as already suggested, before any cei’tificate was .given, arid therefore before the sale which took place under it was •consummated by the usual ceremonies which mark such a proceeding.

It is claimed also by the appellant that the right to countermand the execution existed at the time that proceeding was initiated or ■attempted, and certain cases which are supposed to establish that proposition a2-e referred to. It is sufficient to say of them that in each case the counteimand was made before the execution was exhausted by the exercise of the power conferred ; in other words, before a sale under it took place.

It is said in Jackson v. Anderson (4 Wend., 480), that an execution may at any time be counte2-manded by the attorney who issued it, and the sheriff is bound to obey his instructions and to suspend proceedings upon the execution whenever he is directed to do so. And this broad statement of the proposition has crept into the text books, but the case itself is not an authority for such a pi’oposition. It seems to be obiter dictum, but if it be not is not warranted at all events by the facts in the case as the result of a consideration of any question involved in it. But limiting it as it doubtless must be limited, and as it was intended to be applied, it has no relevancy to the question in hand, for the reason that the execution in this case, a sale having taken place, was functus officio. What the .sheriff was to do was regulated by statute as upon a sale made under an execution; and the plaintiff’s claim rests upon the fact that a sale had been made. The office of the execution was fully performed and new rights had consequently accrued.

The asserted countermand, therefore, avails the defendants nothing. It was not what it purported to be either in law or in fact. The execution, although not in strict conformity to section 1370 of the Code, which for the judgment herein considered requires what has been designated as a special execution, is nevertheless voidable only. It was based on a valid judgment, and being but voidable could be assailed only by the judgment-debtor so far as the revealed facts affect the views to be pronounced herein. These doctrines have been declared in several cases. In Jackson v. Bartlett (8 Johns., 361), it was held that an execution issued after a year and a day, and without a revival of the judgment by seire facias, was only voidable at the instance of the party against whom it was issued. That case was cited and approved in Jackson v. Rosevelt (13 Johns., 102), and the doctrine reaffirmed. See, also, Bacon v. Cropsey (7 N. Y , 195); Horton v. Borthwick (15 N. Y. Dig., 309;) Douglas v. Haberstro (25 Hun, 262); affirmed in this respect though reversed in others. (88 N. Y., 611.)

The ease of McKay v. Harrower (27 Barb., 463) is not in conflict with the proposition stated. That was a case sui generis, presenting the question of the liability of an ex-sheriff in regard to property attached by him, but as to which no execution was isued until after his term of office had expired. There are some expressions in the opinion which would indicate that the court intended to declare that the sheriff could avail himself of the fact that the process was voidable, but it is quite evident it was intended to apply to the particular facts and circumstances of that case, which, as already suggested, are totally unlike those herein. It may be said here, as pertinent to the subject, that in James v. Gurley (48 N. Y., 163) it was held where a sheriff, after he had returned an execution nulla bona, with the consent of the plaintiff’s attorney and the county clerk, procured the same from the clerk’s office, erased the return, and by virtue thereof levied upon and sold property, that the execution was irregular but not void, and that the deputy sheriff having treated it as vabffi process, neither he nor his principal could refuse to answer for the money collected thereon.

It has already been suggested that the execution was fitnctus officio because of the sale of property under it; and by the purchase, which was made upon the sale of Bogert, the right of the grantee of the judgment debtor to redeem, under the sections of the Code already mentioned, arose at once and was established, and that right she sought to exercise. It is stated as a rule in Crocker on Sheriffs, that when property is struck off, the sale is complete, and if the purchaser refuses to take the property and pay the bid, the officer may recover the price of the purchase, or he may sell property, so as to recover from him the difference if any between his bid and the second sale, and that when the plaintiff has bid off goods the sheriff has no right to allow him to withdraw his bid. (Sec. 487). And so when the sale took place under the first execution the right to redeem sprung immediately into existence as against the plaintiff in the judgment at least.

It thus appears that the sale which took place under the first execution was binding upon the plaintiff, the defendant in the execution not having interposed any objection, and that the plaintiff’s testator being the grantee of the judgment debtor, took the proper steps to redeem; that the second execution was unauthorized under the circumstances, and that therefore the sheriff was bound to execute the certificate to the plaintiffs’ testator and to comply with the statute in such eases made and provided in all respects; and it follows that unless some error was made in the admission or exclusion of evidence upon the trial, the judgment should be affirmed.

An examination of the exceptions has led to the conclusion that they are valueless. The assumed effort to show that the sale under the first execution was never completed, was wholly immaterial, for the reason that the sale having been made all the legal consequences provided for in such a contingency must follow. The erroneous finding as to the time when the tender was made, is a matter of no consequence whatever, because the attempted countermand has no validity. The evidence in reference to the property owned by the judgment debtor Thomas, assuming it to have been immaterial and incompetent, could by no possibility have prejudiced the defendant. This is all it is deemed necessary to say in reference to the exceptions.

The judgment appealed from, must be affirmed, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


text:
    JANE THOMPSON, Appellant, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Respondent.

      Contributory negligence — duty of a person approaching a railroad track with a team-proof of the ringing of a beU required by section 61, 2 R. S. (fiih ed.), 542 — the preswmption is, that the statute has been complied with.

    'This action was brought to recover damages for the destruction, of a team of horses and a truck to which they were attached, while crossing the defendant’s tracks. The driver of the team testified that he was approaching the crossing from the west between a walk and a slow jog; that he looked to the north as soon as he could get an advantageous view of the track; he was then about 100 feet from it; he looked again, first north and then south, when about sixty feet from the track ; after that he was watching a boy who was carelessly approaching him in the road, being about twenty feet in front of him ; he had to look after the boy so as not to run over him; he saw nothing on the track when he looked, nor did he hear any sound; until the train was about 400 feet from the crossing, when he heard the whistle; his horses were then about three feet from the track, going at a nice walk; he then tried to stop and back the team, but was unable to do so. The view of the track, approaching it from the west, was interrupted by trees, poles and other obstacles, which interruption continued until the track was nearly reached. The driver was familiar with the locality, having driven on the road for many years.

      Meld, that the complaint was properly dismissed, upon the ground that the plaintiff, the driver, was guilty of contributory negligence.

      Salter v. Utica and Black River Railroad Co. (75 N. Y., 273), followed.
    "That the fact that the driver did not hear the ringing of a bell on the engine, did not prove that the bell had not been rung as required by section 61 (2 R. 8. [6th ed.], 542); that the presumption, if any, was that the statute had been complied with.
    Appeal from a judgment, entered upon the dismissal of the plain•tiff’s complaint at the close of the plaintiff’s case, and from an order granting an additional allowance to the defendant of five per cent.

      Nelson J. Wate’rbury, for the appellant.

      Frank Loomis, for the respondent.
   Brady, J.:

This action was brought to recover damages for the destruction of a team of horses, and a truck to which they were attached, through the negligence of the defendant. The accident took place .at Tremont, in this county, and upon a railroad track operated by the defendant. TJpon the conclusion of the evidence of the plaintiff, the complaint was dismissed on the ground of contributory negligence. The history of the accident depends chiefly upon the testimony of the driver, of whose examination and cross-examination the following presents the salient and important features:

I approached the track between a walk and a slow jog; I think it was a walk, partly, the horses were going; between that and a •slow trot; as I approached the railroad track I looked both ways; I looked north; I looked north as soon as I thought I could get an .advantageous sight; when I looked north first I consider I was .about 100 feet from the railroad track; then I looked secondly; I had got as far as the sidewalk in front of the houses on the west ■side of the Railroad avenue when I looked; I looked then about there; that is what T mean by 100 feet; I looked both ways after-wards when I got to about sixty feet from the track, and could see no train; 1 looked north afterwards; after I looked north the last time I did not look again until I was within about sixty feet from the track; I did not look any more; I looked south after I looked north, after I had passed this sixty feet; I suppose I was about thirty or thirty-five feet from the track when I looked south; I did not see anything on the railroad track when I looked either north or •south; I did not hear any sound from the railroad when I looked last; I approached the track; the first time I heard the whistle of this engine the horses were then about three feet of the track and were going at a nice walk and I could not stop them until the horses’s feet got on the down track, and it came so swift I saw I had no time to cross the track, and I thought to save the horses by pulling them back, but I had not time, the train came so swift; after I looked south that time I saw a boy in the road in front of me; he had a tin pail in his hand; he was walking fast in front of me and the horses; he was in about twenty feet of the. horses ; his nearness to me in front of the horses required me to look out for the boy and not run over him; while I was looking out for the boy I did not hear any sound ; I did after; about the time I was looking out for the boy the train whistled, and I was in a bad fix to save the boy, myself and the horses, and it came so swift on me I could not do any better than pull the horses- back; as near as I can judge when I heard the whistle the train was from 300 to 400 feet off; I did not hear any whistle before I heard that one; I did not hear the ringing of any bell; I did not hear any signal whatever, except that one, before that one I heard as my horses were about going on the track, that is the only one I heard; there was not a person there except this boy to give any warning of an approach of the-train; he 'did not give any warning-; the train came along at a swift rate and these horses’ shoulders was on the west side of the down track; I had not time to back them; I pulled hard enough back ; it struck the leading horse about the neck and shoulders and swept him away from the pole of the wagon and threw him down the track and then struck the other horse and demolished both of them in an instant; the horses were killed; after the horses were struck and killed it struck the wagon ; it struck it instantly after the horses and took the pole from the wagon and broke that, and with the shock it threw me out of the wagon in a somersault into the hard road; it was a dull, foggy morning like; there was no flagman there that morning.”

Cross-examined.— I had an ordinary lumber wagon — no load; from Ittner’s villa, 400 feet or a little over west from the place where the accident occurred, I walked — or a slow jog — just the same; 'a slow gait not faster than a walk; when I was, as I estimate it, 100 feet west' of the west track, I looked to - the north and south, and then I looked again a second time ; when, the way I estimate it, I was about sixty feet west of the west track I looked south then and_ not to the north; when I was about 100 feet, as I estimate, west of the track, I looked both to the north and south along the railroad as far as I could both ways ; that is, to the south and north; I looked again when I was about sixty feet; I looked then both ways tb the north and to the south; I looked south first; then I was in the act of looking north when this boy was running up to my team, and’ I gave my attention to the boy; I did not look north after that; I was in the act- of looking when this boy was approaching the horses, and I did not want to kill the boy; he was running west and I was going to the east; I was driving in the middle of the road; the boy was running in front of the horses in the middle of the road; he had a tin can in his hand; when I first noticed him he was about twenty feet in front of me and running, coming towards me ; there was no difficulty of his turning out to either side of me; then I kept on towards tbe track; my team was about four feet from the track when I heard this whistle, and the train was coming towards me about 100 feet distant; I saw it then ; the horses were on the motion and I coüld not stop them until they got on to the rail of the down track; I pulled the lines.tight and tried to back them; I did not make an effort to turn in either direction; backed them straight, simply pulled back; I remember answering on the former trial, “ as I came toward the railroad track, when I was about seventy-five feet away from the railroad track, I looked towards the north,” that is so ; I remember being asked : “ And that was the last time you looked to the north?” and'answering, “ that was the last time}” and I remember being asked : “And then you looked to the south immediately afterwards ? ” and answering, “ yes; ” and being asked: “ And that was the last time you looked to the south ? ” and answering, “ yes; ” and being asked : “ After that you looked straight ahead ? ” and answering, “ yes ; ” and being asked: “ Until you were hit ? ” and answering, “ yes.”

To the Court — “ When I first saw the boy I speak of he was coming west; he was approaching from the east side, coming from the east side to the west side; he was on the track — on the up track — when the horses were on the down track; he was only about six feet from me; I had not got to him at the time the collision occurred, but the boy was running reckless.”

Redirect — “I may vary a little, but I think I am about the same in my memory as on the former trial.”

It will be perceived from a perusal of this evidence that there was no flagman at the crossing or station, and the whistle was not heard by the driver of the jfiaintiff’s team until the horses were within four feet of the track; and further, that though he was going slowly he was disturbed by the presence of a boy who was coming towards his team, and with reference to whom he had to exercise . * some caution; and moreover, that although he endeavored to pull his horses off the track he was unable to do so. It is true that he failed to turn them to the right or to the left, as perhaps he might have done. It was also established by the evidence that the view of the track, approaching it from the west going east on the road on which the team traveled, was interrupted by trees, poles and other obstacles, which continue until the track is nearly reached. It will liave been observed also that the driver looked to the south when he was sixty feet from the track, but, failed to look to the north, although he looked to the north and to the south when he was one hundred feet from the track, and that he was in the act of looking north when sixty feet away, but seeing the boy already mentioned, running up to his team'he devoted his attention to him. He says distinctly that he did not look north after that. He was watching the boy, who was approaching the horses, as he did not want to kill him. But he said on cross-examination, it will have been perceived also, that he was driving in the middle of the road; that the boy was running in front of the horses in the middle of the road; that he had a tin can in his hand, and that when he first noticed him he was about twenty feet in front of him and running in towards him. He said there was no difficulty in his turning out either side of him, and further, “ I kept on towards the track; my team was about four feet from the track when I heard the whistle.” He said to the court further, as will bave been perceived: “ When I first saw the boy he was coming west; he was approaching from the east side — coming from the east side to the west side ; he was on the track — on the up track; when the horses were on the down track he was only about six feet from me; I had not got to him at the time the collision occurred, but the boy was running reckless.”

^t will have been 'observed, also, that the driver was perfectly familiar with the locality, having driven on and about it for a period of many years. In regard to the rules of law by which these facts are to be governed, the authorities, it may be said, are somewhat in conflict, perhaps.

In the case of Ernst v. Hudson River Railroad Company (35 N. Y., 9) the proposition was enunciated, sustained by a citation of numerous authorities, that the citizen who, on the public highway, approaches a railroad track and can neither see nor hear any indication of a moving train, is not chargeable in law with negligence for assuming tkat there is no car sufficiently near to make the crossing dangerous. Applying this rule to the plaintiff’s case, the driver was not guilty of negligence in approaching the train, because, according to his evidence, he heard no whistle and had no indication of. an approaching train until it. was only four hundred feet distant, and going at a rate of speed which would cover that space in about fifteen or sixteen seconds, at which time his horses were four feet from the track and he found it impossible to pull them back. He was rightfully there on the principle of that ease, therefore, and justified in what he did under the circumstances according to the rule declared in that case. The learned court, in speaking of the public, said: "When they draw near a railway crossing and the flagman gives no warning; when no sign or sound indicates the presence or approach of a train, they assume that they may safely cross and proceed quietly on their way.”

In Davis v. New York Central and Hudson River Railroad Company (17 N. Y., 100), Justice Grover said: “ The law required of the testator the exercise of such a degree of care as prudent persons, knowing the danger to be encountered and attentive to their safety, would take to shield themselves from injury therefrom. It is settled that this requires a vigilant use of the eyes in looking, and of the ears in listening, upon approaching a highway crossing, to ascertain whether there is a train approaching, and that if by the vigilant use of these faculties, while approaching the crossing, the vicinity of such a train may be discovered by the traveler in time to avoid a collision therewith, the omission so to exercise them and thus to avoid an injury is such negligence as will bar a recovery therefor, although the railroad company may have been guilty of negligence contributing thereto.” And further: “ If, with a team, it does not require that he should get out of the vehicle in which he is riding, leave his team and go to the track for the purpose of looking, or to rise up in his vehicle and go upon the track in a standing position, to enable him to obtain a better view of the track. * * * it C011;i¿ not, therefore, be held as a question of law that his failure sooner to discover the train was the result of his inattention to the danger of his situation or his failure to use his senses to guard against it. These questions, upon the evidence, should have been submitted to the jury.” And in the Ernst case it was also said by the learned justice delivering the opinion: “ In the case of Brown v. The New York Central Railroad Company, decided at the last June term, we held that no culpable negligence was established, though it was proved by the driver of the coach demolished by the collision that he did not look in the direction from which the cars were approaching until his horses were on the track, the usual signal of danger not being given as they advanced to the crossing ; and this, though it appeared m evidence that if he had looked before, he would have seen them in season to avoid the collision. (32 N. Y., 597.) The doctrine of that case was unanimously reaffirmed upon a like state of facts at the last December term, of this court.” (Stilwell v. The New York Central Railroad Company, 34 N. Y., 29.)

In Weber v. New York Central and Hudson River Railroad Company (67 N. Y., 587), in which the opinion was given by Forger, J., all concurring, the memorandum is as follows: The court, after giving to the jury the law as laid down on the former appeal, asked them the following questions: Are you satisfied that when the plaintiffs horses reached the fourth track, where the accident happened, he could have seen the approaching train, and ought he to have looked? Was it negligence in him not to have looked? And could he have stopped in time to have avoided injury ? The defendant’s counsel, thereafter, requested the court to charge that if. plaintiff could have, by the ordinary use of his faculties, ascertained the approach of the train before he reached the fourth track and in time to have avoided.it, his omission to do so was negligence. The court declined to charge further than it had already.- Held, no error; that an omission to look, at the point named, under the circumstances, would not have been, as matter of law, negligence.”

In the case of Salter v. Utica and Black River Railroad Company (75 N. Y., 273), the obligation to use the senses in approaching a railroad crossing seems to be more broadly stated, however, than in any of the cases, to which reference has been made or in any of the cases to which óur attention was called by the appellant’s counsel in his learned and elaborate brief on the subject. The opinion of Justice Mirrer was concurred in by Forger and Earr, JJ., on the ground that there was error in refusing the request to charge as to keeping the team under control, without expressing an opinion as to other points; but all the other judges united upon the points discussed by Judge Mirrer. . The_learned judge said, in considering the conduct of the deceased: “ The principle which requires that a man shall use his eyes and ears in crossing a railroad track, so far as he has opportunity to do so, equally demands that he shall employ his faculties in managing his team and thus keep out of danger.”- • He said further: “ The fact that the train was behind time does not relieve the deceased from the duty of being careful, for railroad crossings near villages •are liable to be used at any time, without regard to the regular periods when trains are due.” And the court further said : “ Considering the circumstances of the case, the danger of crossing the track with his ears covered so as to obstruct the sound,' and the obstructions to a full view of the railroad track, we think it was the duty of the deceased to approach the crossing in such a manner, and at such a rate of speed, and with such entire control over his team, that he could have stopped them if required.”

The application of the principles of this case to the circumstances marking the loss of the plaintiff’s property, would seem to enforce the result that the driver was guilty of negligence. He knew of the locality, for he had been familiar with it a great many years. He must have known, therefore, and there is no pretense that he did not, that in approaching the track from the east the view on the north side was obstructed by permanent features which had existed for some time at least. He knew also that the flagman was not present, and yet, notwithstanding that he was embarrassed by the presence of a boy whom he felt obliged to avoid injuring, and, therefore, without proper consideration of the trains that might approach from the north which he ought to have entertained, and without looking to the north at a point nearer than sixty feet from the crossing, but devoting his attention to the boy who was in front of him, he proceeded onward, instead of stopping either that the boy might get out of his way or that he might relieve himself in -some way from the distui'bance which the boy gave him, and at a place which was necessarily dangerous, in consequence of its character and the presence of the track and the running of the defendant’s engines over it. As suggested by the counsel for the respondents, it seems to be clear, from the direct evidence, that the driver attempted to excuse himself by admitting that he gave his attention to the boy above mentioned, who at no time prior to the collision was nearer than the east track, claiming that his team was ■on a walk and admitting that the boy was free to turn out on either side, and thus showing that his attention was directed to the boy to prevent liis injury by the team, when it should have been given to-the train. He thus abandoned the elements of proper care and caution at a time when it was important that he should have given his direct and exclusive attention to a danger which was commanding if not imminent.

The absence of a flagman at the crossing does not aid the plaintiff,, inasmuch a$ it does not establish the liability of the defendants (Culhane v. N. Y. C. and H. R. R. R. Co., 60 N. Y., 133), and it may be said that in the spirit of the cases to which reference has-been made, involving the use of eyes and ears, the absence of a flagman imposed a 'greater amount of caution upon the driver, if that circumstance were unusual or extraordinary. He could not rely upon any signal or information then from such a person.

' The only responsive feature of this case to the views thus expressed is to be found in the statute, which requires the ringing-of a bell at least eighty rods from a crossing, and the continuance of such ringing until the crossing shall have been passed. (2 R. S. [6th ed.], 542). It is not effectual, however, for the reason that the-proof does not show that the ringing of the bell did not commence-at the point indicated, but that the driver of the team did not hear it at that distance from the crossing, his statement being that he heard it when it was only four hundred feet distant. This fact alone would not in itself be sufficient to overcome the evidence-recited showing the controlling incidents of the occasion, and particularly because the driver, not having heard the sound of the bell, is no proof that the ringing was not begun at the proper place and continued. The presumption, if any is to be indulged, is that the statute was complied.with.

The best consideration, therefore, which can be given this case results in the conviction that the judgment is right and must be affirmed.

Ordered accordingly, with costs.

Davis, P. J., and Daniels, J., concurred.

Judgment affirmed, with costs.


text:
    JOSEPH M. COOK and E. LUTHER HAMILTON, as Sole Acting Executors, etc., of JOHN MUNN, Deceased, Appellants, v. MARY E. MUNN, Individually and as Administratrix, etc., of CHARLES S. MUNN, Deceased, and Others, Respondents.

      Construction of a loitt— costs of the action — upon what funds they should he charged.

    Tlie plaintiffs’ testator gave one-fiftb of bis estate to bis son Obarles, who died during tbe lifetime of the testator, leaving two children and a widow him surviving. The plaintiffs brought this action to obtain a construction of that portion of the will containing this gift, and to have it determined whether the widow was entitled to any share, and whether the property should be transferred to her as administratrix or general guardian of the children.

      Held, that it was error to charge the costs and expenses of all the parties upon tlie general estate.
    That the costs of the plaintiffs should be charged upon the general estate, the-costs of the widow, as administratrix, upon the estate held by her in that capacity, and the costs of the infants upon the legacy.
    Appeal from an order made at a Special Term, directing the costs and allowances of the parties to be paid ont of moneys in the hands of the plaintiffs belonging to the estate of their testator.

      George W. Lyon, for the appellants.

      F. G. Finche, for Mary E. Munn, respondent.

      Alexander T. Goodwin, for infant defendants, respondents.
   Brady, J.:

John Munn, who was the father-in-law of the defendant Mary E„. Munn, and tlie grandfather of the infant defendants, died in December, 1882, leaving a last will and testament, by which he gave to his son Charles S. Munu, the husband of the d^endant Mary E. Munn, one-fifth of his estate absolutely, which his executors were directed to pay. Charles died in April, 1882, prior to the death of the testator, leaving him surviving his two infant children, who are defendants herein, and his widow, also a defendant herein ; and the-plaintiffs’ executors, having entertained a doubt as to their duty in reference to the legacy given to Charles, commenced this action, praying the instruction of the court as to the true meaning and effect of the will in that regard, and to whom they should pay such legacy or share. The complaint demanded the judgment herein should settle, determine and decree as follows :

1. What is the true meaning and effect of the said will so far as it relates to the legacy or share given by the said will to said Charles S. Munn, and to whom shall the plaintiffs pay said legacy or share ?

2. Is Mary E. Munn, as the administratrix of Charles S. Munn, deceased, entitled to receive any part, and if so, what part of said legacy or share, and if so, for whose benefit shall she receive the same, and who is entitled to share in the distribution thereof through said administratrix ?

3. Is Mary E. Munn, as widow of said Charles S.. Munn, entitled to receive any part, and if so, what part of said legacy or share given by said will to Charles S. Munn ?

4. Is Mary E. Munn, as general guardian of said infants, John Pier Munn and Theodora Munn, entitled to receive any part, and if so, what part of said legacy or share given by said will to Charles S. Munn?

5. And the plaintiffs further pray that they may have such other or further relief as may be agreeable to equity.

The case was brought on for hearing upon the complaint and answers of the defendant Mary E. Munn, and the infant defendants by their guardian. The latter submitted the rights of the infants to the protection of the court.

The learned judge at Special Term, to whom the controversy was submitted, said that on one hand it was claimed that the' statute should be interpreted in conjunction with the statute of distributions, under which the widow and brothers of Charles S. Munn would have an interest in the' estate, and on the other that such estate upon the death of the father, Charles, vested absolutely in his children, and came to the conclusion, declared after pronouncing a well ■considered opinion, that the fund in dispute was the property of the children, and that Mary E. Munn was entitled to it as their guardian upon giving the requisite security. He also directed that' the costs and allowances should bo paid by the executors out of the •general estate of John Munn, deceased. From the order directing such payment the plaintiffs appeal. .

The general rule, as stated’by the respondents, undoubtedly is, in proceedings to obtain the construction of a will, although they are in the discretion of the court, to charge the costs upon the general estate, if the will is so drawn as to create doubt and render resort to a court necessary or advisable. (Rogers v. Ross, 4 Johns. Ch., 608; Smith v. Smith, 4 Paige, 272; Wood v. Vandenburgh, 6 id., 277, 287; King v. Strong, 9 id., 94; Brown v. Brown, 41 N. Y., 507, 515; McLean v. Freeman, 70 id., 81; Gourley v. Campbell, 66 id., 169.)

But this rule has no equitable application to a case in which a particular share only is involved in doubt. It relates to a question affecting the administration of the entire estate. Here there was no dispute affecting the general estate, but simply a portion of it, and that was whether it should be paid to the creditors and administratrix of the deceased legatee or devisee, or to his children, it making no difference whatever ’ to the other participants of the testator’s bounty what was done with that portion of the estate. There does not seem to be any reason, therefore, why all of the costs and expenses should be paid out of the general estate or why any other than the costs and expenses of the plaintiffs should be paid out of the general estate. . The plaintiffs, as the executors, were justified in asking the instruction of this court as to their duties in the payment of the legacy or the share given to Charles S. Munn, and whatever expense was incurred in that proceeding should be paid out of the general estate. The other legatees or persons interested in the remainder of the estate were not made parties to- the .action, and there was no necessity that they should be. It is therefore in this respect similar to the case of House v. Raymond (3 Hun, 44), in which it was held that the shares of the grandchildren should not contribute to the expense of the litigation, which was for the construction of a will, because they were not made parties to the proceeding. It is for this reason thought that the order appealed from should be modified by directing that each party pay his or her own costs — the plaintiffs out of the general estate ; the defendant Mary E. Munn, as administratrix, out of any portion of the estate in her hands as administratrix, and the infants out of their share in the legacy.

Davis, P. J., and Daniels, J., concurred.

Order modified as directed in opinion, and affirmed as modified, without costs.


author: Davis, P. J.:

text:
    JAMES McKEEN and APPLETON STURGIS, as Executors, etc., of ANNIE S. FREEMAN, Deceased, Appellants, v. JAMES D. FISH, as Receiver of the GLOBE MUTUAL LIFE INSURANCE COMPANY, Respondent, and Others.

      Action for dower — consent by the widow to receive a gross sum — at what stage of the case it does not gvoe her such a vested, right as wiU enable her representatives to revive the action after her death — when am, extra allowance should not be made.

    The plaintiffs’ testatrix sought in this action to have her rights of dower determined in certain parcels of real estate described in the complaint; to have a deed and a mortgage executed by her husband declared void as to her ; to be permitted to redeem a proper proportion of such mortgages as were valid liens-upon the premises, and to receive a gross sum in lieu of her dower, in case a. sale should be adjudged and she should file the requisite consent, or to have a portion of the premises absolutely assigned to her. While the action was pending- before a referee, the testatrix, then the plaintiff, served upon the defendant, the receiver, a consent'in writing, duly executed and acknowl-. edged, to receive a gross sum in lieu of her dower. Subsequently, and prior to the determination of the action, the original plaintiff died and the action was thereafter revived by her executors. The referee found that, although if the-plaintiff had lived she would have been entitled to some right of dower, and that a distinct parcel could not have been admeasur.ed -to her, yet, that her agreement to accept a gross sum in lieu thereof did not give her such a vested right in the sum to be ascertained, as that the action could be carried on-'after her death by her representatives, and he therefore dismissed the complaint, without awarding costs to any party.

      Held, that his decision should be affirmed.
    Subsequently, upon a motion at ¡Special Term on the part of the respondent for an extra allowance, an order was made awarding to his attorney, “ an extra allowance of $750, together with costs.”

      Held, that the case was not one in which an extra allowance should have been, made, and that the order should be reversed.
    Appeal from a judgment dismissing the complaint, entered on the report of a referee, and also from an order of the Special Term.awarding an additional allowance to the respondent.

      Jas. McKeen, for the appellants.

      Wingate <Js Cullen, for the respondent.
   Davis, P. J.:

The appellants’ testatrix, Annie S. Freeman, as the widow of Pliny Freeman, commenced this action to have her rights of dower determined in the several parcels of land described in her complaint, and to set aside and have declared void and inoperative as against her, a certain mortgage executed by said Pliny Freeman and a deed executéd by him to the Globe Mutual Life Insurance Company, and that she be permitted to redeem a proper proportion of such mortgages as are valid and subsisting liens upon the premises or to assume payment of the interest of such portions thereof, as might be equitable ; or, upon filing her consent to accept a gross sum of money in lieu of dower, to be estimated upon the net proceeds of a sale of the property, if the court shall be satisfied that a portion thereof could not under the laws of the State' be set out and admeasured to her as dower without material injury, to adjudge a sale of such real •estate, and that such gross sum be awarded her; or that upon like assent a portion of said premises be absolutely assigned and apportioned to the plaintiff.

The relief sought was equitable in part. The suit, therefore, cannot be considered as an action at law, but as one in equity, the costs of which would be in the discretion of the court.

A reference was ordered, and the ease proceeded to trial before the learned referee. Pending this action and before any interlocutory decree therein, Mrs. Freeman served on the respondent, and duly executed, acknowledged and caused to be filed a consent in writing to receive a gross sum in lieu of dower, etc., pursuant to the statute.

Subsequently, and while the action was still pending and prior to the determination thereof, Mrs. Freeman died, leaving a will which was duly proved wherein James McKeen and Appleton Sturges were .appointed executors; and this action was thereafter revived in their names. The trial proceeded and the referee subsequently found and reported a state of facts that would have entitled Mrs. Freeman, had she been living, to some right of dower. He also found that the ¡situation of the premises, described in the complaint as situated in the city of New York, were such that were Mrs. Freeman living, a distinct parcel could not be admeasured and laid out to her as tenant in dower without material injury' to the parties. And as a conclusion of law he decided that the plaintiff in this action cannot recover, and that the complaint should be, and it accordingly was, dismissed without any adjudication by him as to costs. In his opinion the learned referee decided in substance that the effect of her consent, filed byr the widow, to accept a gross sum in satisfaction and discharge of her right of dower, did not give her such a vested right in such an unascertained sum, that the suit could be carried on after her death by her personal representatives to ascertain the amount of and to recover such sum, on the ground that the property might never be sold; that the consent did not make a sale compulsory; and that the filing of the consent was but one step in a suit; and he held that upon the widow’s death the suit abated and that her personal representatives have no standing in court to further prosecute the same.

Subsequently, upon a motion at Special Term on the part of the respondent for an extra allowance, the court made an order to the effect “ that the defendant’s attorney be awarded an extra allowance of $750, together with costs.” The plaintiffs appealed fr’om the judgment and from the order awarding the extra allowance.

We are of opinion that at the time of the death of the plaintiffs’ testatrix, her action, notwithstanding the filing of her consent, had not reached a stage or condition in which she was entitled to claim a vested right to a gross sum of money equal to the value of her dower in the property or any part thereof. A different state of things might exist if her right of dower had been determined' and the proceedings in the action had reached a stage in which the court had adjudged that a sale of the premises be made. The case would then have been in a position entitling her to have the value of her dower right ascertained and a gross sum paid to her in lieu of dower. Up to that stage her remedies for the withholding of her dower would be for her portion of the mesne profits of her husband’s estate from the time of his death.

Until it' has been determined whether a parcel or parcels will be set off to the widow or a sale ordered and the value of her life interest invested and paid to her after she is adjudged to be entitled to dower, her right, beyond mesne profits, remains a mere naked and inchoate life estate and terminates on her death. We think the learned referee was, therefore, right in his conclusion that the action in this case abated by her death and that her personal representatives had no standing in court to continue the action, and the judgment in that respect should be affirmed. The referee did not award costs against the personal representatives, nor has there been at any stage of the case judgment awarded against them for costs unless it be inferred from the fact that the court, at Special Term, awarded an allowance additional to costs. Costs did not follow, of course, in this case, for the complaint discloses that it was an equitable action in which Mrs. Freeman sought various forms of relief in addition to the adjudication of her dower. She was at liberty, we think, to bring an action of that kind, for the purpose of removing clouds by fraudulent mortgages and deeds, so that her dower might be ascertained. But if costs1 were properly allowed against the representatives, we are very, decidedly of opinion that this was not a case in which an allowance should have been imposed upon the plaintiffs.

The action was defeated by death in a case where it is manifest from the findings of the learned referee, that if Mrs. Freeman had not. been deceased she would have been able to maintain to some extent the claim set forth in her complaint. The. court permitted the action to revive by a special order of revivor, and certainly the representatives of her estate ought not to have been under the circumstances subjected to any additional allowance for prosecuting and presenting the question as to their right to recover upon her election to take a gross sum as provided for by the statute. The question must be considered as substantially a new one, and in our judgment it was one which called for the awarding of no additional allowance.

We think the discretion of the court was improvidently exercised, and that the order should be reversed. But the judgment entered upon the report, should be affirmed, without costs of this appeal to either party.

Brady and Daniels, JJ., concurred.*

Judgment affirmed, without costs.


text:
    DAVENPORT GLUCOSE MANUFACTURING COMPANY, Respondent, v. ISAAC W. TAUSSIG and Others, Appellants.

      .Examination of a party before trial — it mazy be granted in an action to recover property fraudulently obtained— Oode of Omil Procedure, see. 870.
    'In an action to recover personal property from persons who are alleged to have induced the sale - thereof by fraudulent representations, and from their general assignee, the vendees and assignee may be required to appear and be examined before trial.
    The fact that upon such examination some questions may be put which the witnesses might refuse to answer, upon the ground they were not bound to criminate themselves, should not prevent the court from making the order.
    Appeal from an order rendered at a Special Term, denying a motion to set aside an order for an examination of the defendants herein before triai.

      W. O. Hvppenheizmer, for the appellants. ■’

      A. P. Whitehead, for the respondent.
   Davis, P. J.:

This is an appeal from an order of the Special Term denying a motion to vacate an order directing the examination of the defendants before trial. The action is to recover possession of personal property, to wit, 250 barrels of glucose, alleged to have been sold by the plaintiffs to the defendants Taussig & Hammerschlag, who subsequently made a general assignment to the defendant Baricklo for the benefit of their creditors. The plaintiff replevied 170 barrels of glucose. It is alleged that the sale and possession were fraudulently obtained.

It must be conceded that the authorities in this district on the question of the right to make an order for the examination of parties, in an action where the plaintiff’s cause of action is for an alleged fraud, are somewhat in conflict. There is no case, however, we ■think, that holds in an action to recover possession of personal property, where the object is to ascertain from the defendants the •quantity of goods that came into their hands and the time when -.they received the same, and the time of making the sale or transfer -of the same to another party, and the quantity delivered to him, •etc., that such matters are not proper subjects for this preliminary ■examination.

In this case the assignee of the purchasers, Bariclrlo, who is not sought to be charged with fraudulent conduct, received the goods from the defendants. No reason can be imagined, why he may not be called and examined as to when and where he received the same, •and to what amount, and to prove whatever might be necessary touching the assignment to him of the goods by the other defendants and the disposition that may have been made thereof. It can hardly be conceived that his answers to such an examination can be supposed to subject him to a charge of fraud.

In respect of the other defendants it is vex-y obvious, as it seems •to us, that many questions may be asked which they will be bound to answer if called upon the trial, and if, in the course of such an -examination as this, questions may be asked which they decline to answer on the ground of privilege, their rights are precisely the .same as they would be upon the trial if the same questions were put to them there. They are not bound to criminate themselves, .and each may claim the personal privilege of refusing to answer-. Oh ■such an examination it would be for the judge to determine, as it would be on a trial at cix-cuit, whether the questions are such as they ,ax-e not bound to answer.

But the fact that some such questions may be put does not seem to be a good reason for holding that a party cannot be examined at .all in an action of this kind.

The cases referred to by the leaxmed counsel for the plaintiff do not go far enough; we think, to require us to hold that they -determine this case adversely to the respondents.

We see no ground, therefore, for interfering with the order of •the court below, and it should be affirmed, with ten dollars costs .and disbxxrsements.

Daniels and Haight, JJ., concurred in the result.

Order affirmed, with ten dollars' costs and disbursements.


text:
    SAFFOLD BERNEY and Others, Respondents, v. ANTHONY J. DREXEL and Others, Appellants.

      Pleadings — action for the conversion of personal property — what allegation of the ownership of the property by the plaintiffs is sufficient — what is a sufficient allegation of a conversion thereof by the defendants.

    complaint in this action alleged that one Berney died, domiciled and residing jn France, leaving the plaintiff, Louise Berney, his widow, and the other plaintiffs, his nepiiews and nieces; that he left a last will and testament; that “under and by virtue of the laws of France, where the testator had his domicile, the title -to all the personal property of which said testator was possessed at the time of his decease, vested immediately thereafter in the plaintiffs, other than the widow, * * * the residuary legatees named in said will, their title being subject, however, to the payment of the particular legacies by said will bequeathed and of the annuities therein given:”

      Held, that this was a sufficient allegation of ownership to entitle the plaintiffs to maintain an action to recover for the conversion of a portion of the personal property of which the testator was seized at the time of his death.
    The complaint further alleged that one James Berney had fraudulently obtained possession of certain bonds, the property in question, by virtue of letters testamentary, procured in the court of another State having no jurisdiction in the matter, and had sold and transferred the property to the defendants; that by the will and codicil, and the several powers of attorney, copies of which were annexed to the complaint, the defendants had legal notice of the limitations on the power of sale and of the illegal and invalid character of the title to the said bonds so assigned to them; and further, that the defendants had converted the said bonds to their own use.

      Held, that there was a sufficient allegation of a wrongful conversion of the bonds by the defendants.
    Appeal from a judgment, entered on an order overruling a demurrer to the complaint.
    Tracy, Olmsted & Tracy, for the appellants.
    Lord, 'Day c& Lord, for the respondents.
   Davis, P. J.:

The questions presented by the demurrer depend wholly upon the sufficiency of certain allegations in the complaint.' After setting forth the will and codicil of Robert Berney, which appears to have been made and published in England, while he was domiciled and residing in Paris, the complaint avers that the said Robert Berney departed this life on the 19th of November, 187é, at Paris, and, in substance, that at the time of his death the domicile of the testator was at Paris, France, and that he left him. surviving the. plaintiff, Louise Berney, who is the widow of said Berney, and the several other plaintiffs, who are his sole surviving nephews and nieces, and who are all of the age of twenty-five years and upwards. The complaint then avers “that under and by virtue of the laws of France, where the testator had his domicile, the title to all the personal property of which said testator was possessed at the time of his decease, vested immediately thereafter in the plaintiffs, other than the widow * * * the residuary legatees named in said will, their title being subject, however, to the payment of the particular legacies by said will bequeathed and of the annuities therein given.”

The first question presented is whether this averment is a sufficient allegation of ownership to entitle the plaintiffs to maintain an action to recover for the conversion of a portion of the personal property of which the testator was possessed at the time of his death. The Special Term held that it was sufficient upon demurrer, and we are of opinion that that conclusion is correct. It is necessary in an action to recover for conversion that the plaintiff should show by his complaint, title to the property alleged to be converted, or his right to the possession thereof. Either of these is sufficient to entitle him to maintain the action. In this case the averment is of title under and by virtue of the laws of France. This, it is alleged, is an allegation of a legal proposition or conclusion, and not of a fact. We are of opinion, however, that it is an allegation of fact, under which, at the trial of the issue, the plaintiffs would be at liberty to prove the laws of France, for the purpose of establishing the fact that the title to the personal property vested immediately upon the decease of the testator in themand on that fact being so proved, the legal result would be that such title would, draw to it the right of possession and show full authority to maintain the action. The title would presumptively draw to it the right of possession, and show the right to maintain an' action against an alleged wrong-doer.

The complaint proceeds, then, to allege facts showing that one James Berney had fraudulently obtained possession of the property in question by virtue of letters testamentary, procured in the qourt of another State having no jurisdiction, and that having such fraudulent possession through his attorneys, has sold and transferred certain bonds the property to the defendants. Having thus carried the property into the possession of the defendants, the complaint alleges that, by the will and codicil and the several powers of attorney, copies of which are annexed to the complaint, the said defendants had legal notice of the limitations on the power of sale find of the illegal and invalid character of the title to said bonds assigned to them; and they further allege that the defendants have converted the said bonds to their own use. "What force is to be given to the allegation of notice, in the form in which it is averred, it is not necessary to determine. That averment probably presents a question of law, inasmuch as it is substantially an allegation that the will and codicil and the several powers of attorney contained in themselves “ legal notice of the illegality and invalidity of the title of the defendants’ assignor to the said bonds assigned.” The Special Term considered that the sufficiency of the allegation of conversion depended wholly upon the averment that “the defendants have converted the said bonds to their own use.”

Assuming it to be a correct proposition that the allegations of the complaint are not sufficient to show that the bonds came into the possession of the defendants with any notice or knowledge of the want of title in their assignor, so that upon such allegations alone an action for the conversion could not be maintained without proof of a demand before bringing the action, nevertheless, if such allegations were followed with the sufficient averment of conversion to entitle the plaintiff to put in evidence facts showing an . actual conversion, that would be sufficient upon demurrer to uphold the complaint. The allegation of conversion to their own use is one of fact. It will admit, upon a trial, of evidence that the defendants not only received the bonds under the assignment in the manner stated in the complaint, but that they subsequently disposed of them under such circumstances as will u|3hold the action against-them, assuming the plaintiffs to have been the real owners of the bonds; or to admit proof of any other fact necessary to constitute a conversion. So that the plaintiffs would be entitled, under that allegation, if the bonds still remain in the hands of the defendants, to prove a demand and refusal in order to charge them with a conversion if that proof becomes necessary. Where conversion is alleged as a fact, in general terms, that is sufficient to admit of any evidence on the trial of issue joined, that tends to establish such conversion; and the plaintiff is not bound to allege the particular act or acts which constitute conversion in an action of this character. We are of opinion, therefore, that the learned judge at Special Term correctly disposed of the question which arises upon this branch of the demurrrer. The question upon which we have the most doubt is as to whether the averment of the laws of France, under which the plaintiffs claim their title, should not have been more precise and formal; but we are inclined to think that the Special Term did not err in holding that, under that averment in the present form, the laws of France could be so proved as to support the allegation of title upon an issue of fact.

Pleadings are not now to be strictly construed against the pleader, and averments which sufficiently point out the nature of the pleader’s claim are sufficient if, under them, upon a trial of the issues, he would be entitled to give all the necessary evidence to establish the claim.

We think, therefore, the judgment upon the demurrer should be affirmed, with leave, however, to answer over in the usual time, and on the usual terms as to costs.

Daniels and Haight, JJ., concurred.

Judgment affirmed, with leave to answer in twenty days after service of order on the usual terms.