text:
    People ex rel. James P. Gillen, Resp’t, v. Henry Wolfert, Supervisor, etc.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Supervisor of the town of New Lots—Effect of Laws of 1886, chap. 335.
    The annexation of tile town of New Lets to the city of Brooklyn, under chapter 335, Laws of 18C.6, wrought no charge in the official status of supervisor of said town holding office on the 1st day of August, 1886, nor upon the duties of his official po.-ition.
    Appeal from an order of the special term, directing the •defendant the amount of certain certificates.
   Dykman, J.

In the month of May, 1886, the relator entered into a contract with the improvement commissioners of the town of Hew Lots, in Kings comity, by which he undertook to grade and pave Atlantic avenue in' that town, and do certain other things in accordance with the specifications annexed to the contract.

Monthly payments were to be made under the contract as the work was in progression, upon the certificate of the engineer in charge thereof.

The relator entered upon the performance of his contract, and on the 31st day of July, 1886, the work was in a state of forwardness that justified a payment to the relator of $27,000.

The supervising engineer furnished a certificate to that effect to the commissioners of improvement of the town, and that board issued an order to the supervisor of the town and its own treasurer, directing the payment of the sum certified, upon the contract of the relator. It is true the date of the certificate is one day subsequent to that of the order, but that is quite unimportant. Both were furnished before the defendant was requested to pay, and so far as their legal operation and effect was intended to reach, their insufficiency could not be predicated on that objection.

On the first day of August, 1886, the town of New Lots was annexed to the city of Brooklyn, and became the Twenty-sixth ward therein, in pursuance of an act of the legislature, and the demand for the payment of the order of the improvement commissioners was made subsequent to that date.

In our view the annexation of the town of New Lots to. the city of Brooklyn wrought no change in the official status of the defendant; he is yet the supervisor of the town, and the duties of his official position are still incumbant upon him, and his powers are unimpaired.

The installment of $27,000 has become due and payable, and the order for its payment should have been honored by the defendant.

If the contract of the relator has not been performed by him, the fact can be presented in opposition to the payment of the final balance.

Our examination leads us to the conclusion that the order appealed from should be affirmed with costs.

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


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Loins Seidenbach, App’lt, v. Julia A. Riley, Adm’r, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Trial—Jury—Discharge—Sealed verdict—Alteration.
    The jury were directed in this case to bring .in a sealed verdict, and the usual blank in such cases was given them by the court, which directed them to state which party they found tor, and also to fill up the blank as to the value of certain chattels, and if they found for the defendant, to assess damages equal to the interest on a certain amount for a certain time. Their sealed verdict was simply the value of the chattels, after handing in which they separated. They were called together again in the morning by the court and sent cut again, with instructions to find on the other questions submitted to them, which they did. finding for the defendant. Held, that their separation, after handing in the sealed verdict, did not amount to a discharge. Following Warner v. M. T. G, R. R. Go,, 52 N. Y„ 437.
    Appeal from a judgment entered on a verdict in favor of defendant in an action to replevy certain goods taken under an attachment.

      Bichard & Newcombe, for app’lt; Morris & Pearsall, for resp’t.
   Pratt, J.

The leading questions in this case are of fact and were properly submitted to the jury.

Plaintiff’s claim of title, as did that of defendant also, came through one Toledo. It was alleged that Toledo had borrowed some $17,000 from plaintiff, in behalf of a lady, with which to buy jewelry; that plaintiff’s son-in-law, Valentine, had assisted in the purchase and in behalf of plaintiff, had taken the jewelry as security for the loan; that was April 30, 1879. By the twenty-first of July following the lady was ready to go home to Honduras, but neither she nor Toledo were ready to pay the loan in full; they could then pay but $12,000. It is said that, in order to compose the matter for her accommodation, it was arranged that the $12,000 should be paid to plaintiff and Toledo should assign to plaintiff a lot of rifles and spare parts which he had recently purchased from or through one Farrington, and for a part of which he was still in debt to him. A paper was read in evidence which purports to be an assignment of the rifles, but not the “spare parts,” from Toledo to plaintiff. It bears date July 21, 1879, and was proved by the acknowledgment of the subscribing witness, February 14, 1880. The consideration expressed is one dollar. It is absolute in form, except that it contains a “condition,” so called, that Toledo, or parties representing him, should have the right to repurchase the goods, within three months, at $7,272.37, which sum, according to plaintiff’s story, was the balance of the jewelry loan, with interest, etc.

Although it was claimed on behalf of plaintiff that this assignment was an absolute sale, subject only to the right of repurchase, several expressions dropped from his own bps which clearly tended to show that the real object and understanding between the parties was, that it was solely as security for the balance of Toledo’s debt. This was sufficient to justify a finding that the instrument was a mort gage only. Horn v. Keteltas, 46 N. Y., 605. There was no pretence that it had been filed as a chattel mortgage. Here then we have a “sale” or “an assignment of goods and chattels” upon an expressed “condition,” and further evidence of an understanding which would justify an inference that it was “by way of mortgage or security.” As a matter of course, it was vital in either view, for the plaintiff, “as against the creditors of the vendor ” (Toledo), to prove that the transaction evinced by the writing was “accompanied by an immediate delivery and was followed by an actual and continued change of possession,” or else to repel the presumption of fraud which arose from the absence of such proof; because the defendant’s intestate, who was the sheriff of Kings county, had levied upon the rifles and “spare parts” under an attachment issued against Toledo at the instance of Farrington, his creditor. The plaintiff attempted to prove, and gave evidence tending to show, that he had taken possession of the rifles right away after the instrument was given, and that the transaction evinced thereby was in good faith.

We have examined the case carefully for the purpose, but have failed to find anything in the evidence which conclusively establisehd either of these points. Hence, under the opinion of the general term on the former appeal, both points presented questions of fact, and they were fairly submitted to the jury and decided against the plaintiff by their verdict.

We have carefully examined the numerous exceptions to the charge, and while one or two remarks of the court, upon particular requests, standing alone might be subject to criticism, yet taking the whole charge together, we think the rules of law were plainly and correctly stated, so plainly that the isolated remarks, to which we refer, could not have been misunderstood or misapplied by the jury. It, therefore, follows that the judgment must be affirmed unless error in some other particular appears in the case.

The jury were directed to bring in a sealed verdict, and the usual blank in such cases was given by them by the court, that is to say: “We find a verdict for the—(“plaintiff or defendant”), and you will also fill up the blank as to the value of the chattels as follows: Rifles, $——; spare parts, S-. If you find a verdict for the defendant, you will add that you find the damages for the detention of the chattels in the following amount, fixing that amount at the interest upon the whole value which you find from March 25th, 1880.” That was the date of the replevin from the sheriff by plaintiff.

The jury came into court on the morning following the submission of the case to them, and presented a sealed verdict. Upon examination it was discovered that they had not passed upon all the questions submitted. Their verdict was, “rifles, $6,000; spare parts, $750; total, $6,750.”

The plaintiff’s counsel objects to the direction of the court that the jury should retire and perfect their verdict by stating whether they found for plaintiff or defendant, and that they should fix the damages. The ground of the objection was not stated at the first time, but it is now argued that presumptively the sum which they at first named included interest as damages, in obedience to the charge. We cannot accept this view.

The first imperfect deliverance by the jury simply fixed the value of the rifles at $6,000, which was their conceded value, and the value of the spare parts at $750, which was precisely one-half the amount indicated by the only evidence given on that point. This did no harm to the plaintiff in view of the obvious fact that the jury intended to find, and did finally find against him. Then again: When the court reminded counsel that it had instructed the jury that, if they found for the defendant, they should find 'the interest, it also said, “if counsel could not agree upon the computation of interest it would send the jury back. There was then no suggestion that the sums or total which they had found, included interest; on the contrary, the plaintiff’s counsel said that he did not object to the computation of interest by defendant’s counsel, but did object “to the matter being again given to the jury.” The result was that the court sent the jury back again, and they came a second time into court with their former verdict prefaced by the statement that they found “for the defendant;” but this finding was still incomplete in that it did not state the interest. Whereupon plaintiff’s counsel again objected, this time stating his ground, which was that the jury had already “handed in what purported to be a verdict; and having been discharged, they have no power to amend or alter that verdict.” It is thus plain that the argument that the first deliverance of the jury presumptively included interest, was not taken at the time, and was not then thought of.

Indeed the remarks of the plaintiff’s counsel clearly show that he assumed that the interest was not included in the detail or total sum stated. He finally placed his objection apparently on the theory that the fact that the jury had separated after sealing their first deliverance, and then came into court and delivered that as their verdict, amounted to a discharge. But that was obviously untrue as matter of law.

Upon the whole, we think it plainly appears that plaintiff’s counsel, after the trial, finally concluded that the theory of separation and discharge was unsound on the authority of Warner v. N. Y. C. R. R. Cor (52 N. Y., 437), which he cites to us on this point, and then shifted his ground to the presumption about computation above indicated. This was clearly an after-thought. The whole proceeding shows that the court had carefully instructed the jury about interest, and that if the present contention had been stated or intimated at the time, the rule or direction would have been again explicitly repeated. The first deliverance was not an uncommon blunder of a jury in such cases. The second doubtless proceeded on the theory that plaintiff’s counsel would do as he said he would, viz.: accept his adversaries’ computation of interest, thus relieving them from that duty.

The jury finally rendered their verdict in detail as before, with $2,256, the exact amount of interest on the aggregate valuations, $6,750, as damages for detention, making $9,006 in all; and that was the only verdict entered. Under these circumstances we feel clear that plaintiff suffered no harm in this respect, and if he did it is his own fault.

The plaintiff claims that the verdict should have been in his favor for the recovery of the spare parts in any view. We do not concur in this position.. The spare parts were certainly covered by Toledo’s purchase from Farrington, and they were certainly levied upon by the sheriff. They were with the rifles m the sheriff’s custody, and were thence taken from him by the coroner on plaintiff’s requisition. Hence, unless the plaintiff has established a better title than that which may be presumed from the sheriff’s possession, he must fail in his claim respecting these spare parts. The fact is- that his assignment from Toledo does not, upon its face, cover them. He contends, however, but upon inconclusive proof, that they were treated as an incident to the sale of the rifles—a sort of appurtenance. But there was some evidence tending to repel this claim. Hence, that, too, was a question of fact for the jury, and it was thus submitted to them. True, the defendant’s answer does not specifically claim these spare parts eo nomine, but it does refer to the matter specified in the complaint as the same taking and detention which the answer alleges, and the coronor did actually take the spare parts after the sheriff had made his levy upon them. We have failed to note any exception in this record before the close of the testimony which specifically pointed to any defect in the answer in this particular. If such an objection had been taken it would doubtless have been covered by an amendment, for it could scarcely have surprised or misled the plaintiff.

Besides that, as we have already observed, there was evidence tending to show that the spare parts went with the rifles, and that certainly was the gist of plaintiff’s contention in this respect to make out his title thereto under his assignment from Toledo. We are, therefore, disinclined to regard this point with favor after this verdict.

But there is a point not raised by the appellant which leads to the conclusion that this judgment is for too great a sum. Upon the proofs and the findings of the jury, the sheriff was entitled to the custody of those goods only for the special purpose of satisfying Farrington’s judgment which was but $6,410.83, including costs. Newlin v. Lyon, 49 N. Y., 661; Townsend v. Bargy, 57 id., 665; Allen v. Judson, 71 id., 77.

The interest on Farrington’s judgment made the total amount of the sheriff’s special property in these goods $8,414.16. The costs of the action were $316.39 which would make $8,730.55, while the verdict was for $6,750 as the value of the property, with $2,256 as damages and interest for the detention thereof, making $9,006, and the judgment against plaintiff was for the return of the property or $9,006, besides $316.39 costs, making $9,322,39. In other words the verdict and the judgment are in excess of any legitimate interest of the sheriff to the extent of $591.84, and it should be reduced accordingly. But since the attention of the court was not called to this point, and since the ground of excessiveness was not stated in the motion to set aside the verdict, this reduction should not prejudice the defendant as to his costs on this appeal. Wilson v. Lester, 64 Barb., 434.

It is not apparent tó us that the question whether or not the evidence tended to show that these chattels were the property of the government of Honduras has anything to do with the disposition of the case which we have suggested.

The real question litigated was the validity of' the transfer of the property to the plaintiff and that question was fairly submitted to the jury, and if there was any error in admitting the question as to the title of the Honduras government or in refusing to charge upon that matter, it is plain it did not injure the plaintiff as the sole question submitted was the validity of plaintiff’s bill of sale.

The judgment must be reversed on payment by plaintiff to defendant of costs of this appeal under the rule of Wilson v. Lester (supra), and a new trial must be had, unless the defendant will consent that the judgment appealed from shall be reduced to the sum of $8,730.55; and if such consent, in writing, shall be filed and served on plaintiff’s attorney within ten days after service of the order to be entered on this appeal, the judgment shall be modified accordingly, and as thus modified, shall be affirmed with the costs of this appeal.

Barnard and Dykman, JJ., concur.


text:
    Lewis H. Smith, Resp’t, v. The Gold and Stock Telegraph Company and the Western Union Telegraph Company, App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Corporation — When subject to same obligations as natural PERSONS.
    In an action brought by plaintiff, who was a stock broker, to restrain the defendants from removing one of their “ stock tickers ” from his office which had been placed there under a contract on plaintiff’s part to pay a certain monthly rental: Held, that when a corporation engages in a business concerning the performance of which its charter is silent, it is not freed from the obligations which ordinarily attach to a natural person, engaging in such occupation.
    2. Same—Duty when engaged in public business to serve all alike.
    When one is engaged in a business, public in its nature, he must, if public policy requires, serve the public impartially, without discrimination between parties applying who comply with reasonable regulations.
    3. Same—Regulations—When void as unreasonable.
    A clause in the company’s contract permitting them to discontinue the service when in their judgment a breach of conditions has been lind, is not a reasonable regulation, and affords no defense to an action to ’•estrain them from removing the “ticker.”
    4. Same—Injunction—Defense.
    It is no defense to an action for an injunction restaining defendant from removing said “ ticker,” that an action at law for damages^would lie in plaintiff’s favor. The fact that defendant is able and v illing to pay for the liberty of infringing upon the contract, is not a ground for refusing an injunction pending a suit.
    Appeal from an .order of the Kings county special term continuing a temporary injunction during the pendency of this action.
    This action was brought to restrain the defendants from removing from the office of the plaintiff a “ stock ticker,” belonging to and operated by the Gold and Stock Telegraph Company, and from in any manner interfering with plaintiff’s receipt of the quotations of the New York Stock Exchange.

      Dülon & Swayne, for app’lts; J. W. Hawes, for resp’t.
   Pratt, J.

It has been settled for hundreds of years that an inn-keeper is bound to receive the guest who applies for accommodations. So is it well settled that a common carrier must receive and transport goods offered him for that purpose, impartially and without discrimination between parties applying.

These obligations do not rest on contract, but on the ground that when one is engaged in a business, public in its nature, he must, if public policy requires, serve the public impartially.

The occasions for the application of this familiar principle are by no means diminished by the formation of corporations which carry on a great part of the business of the country.

And in applying these rules to a corporation, the charter of the corporation is not solely to be consulted in arriving at the measure of its obligations to the public. When the charter provides that a corporation shall engage in some specified public occupation, no doubt a reference thereto will be an easy way to establish its obligation to perform such service. But we do not accede to the doctrine that, when engaged in a business concerning the performance of which its charter is silent, a corporation is freed from the obligations which ordinarily attach to a natural person engaging in such occupation.

Had defendants in the present action answered that collecting and distributing commercial intelligence being foreign to the objects for which they are incorporated, they had in consequence abandoned that branch of their business and withdrawn their “ tickers ” from all offices except the plaintiff’s, we should not hold that they could be compelled to carry on the business for his benefit; but so long as collecting and supplying quotations is carried on by them, as it is conceded to be at present, they should render equal and impartial service to those who comply with reasonable regulations.

What regulations are reasonable may not in all cases be easy to determine. But there need be no hesitation in saying that the clause in their contract permitting them to discontinue the service, when in their judgment, a breach of conditions has been had, is not a reasonable regulation and affords no defense to this action. No man can be judge in his own case, and to justify defendants in refusing to perform service, there must be a reason that the court can pronounce sufficient.

Nor is it a defense to the action that an action at law for damages would lie in plaintiff’s favor.

It is easy to see that accurate proof of the amount of damage sustained would be impracticable; and where a right is clear, the fact that a defendant is able and willing to pay for the liberty of infringing upon it is not a very satisfactory ground for refusing an injunction.

The order continuing the injunction must be affirmed with costs and disbursements.

Present—Barnard, P. J., Dykman and Pratt, JJ.


author: Smith, P. J.

text:
    People ex rel. Rome, Watertown and Ogdensburgh Railroad Company, App’lt, v. Seth Jones, as Assessor, et al., etc., of the Town of Kendall, Respt’s. Same v. Same. Same v. Same.

      (Supreme Court, General Tenn, Fifth Department,

      Filed January, 1887)

    1. Taxes and assessments—Assessment roll—How verified—Effect OF VERIFICATION BEFORE NOTARY — HOW CORRECTED — LAWS 1830, CHAP. 264.
    Where it appeared by the return in certain certiorari proceedings that the assessment roll of 1883 of a certain town was sworn to in the first instance before a notary, and that, as thus sworn to, it was not delivered to the proper officer until September 11. That, on the 10th of October following, the assessors verified the said roll by affidavit sworn to before a justice of the peace of the town, and that subsequently said roll remained with the supervisor for fifteen days for public inspection, and the assessors caused notice to be published that the roll would remain wdth the supervisor “ for the period of fifteen days from the 1st day of September, open to public inspection, pursuant to section 9, chapter 264, of the Laws of 1880,” which notice was dated October 23,1883. On said 23d of October, and for fifteen days thereafter, the said roll remained with said supervisor open for public inspection: Held., that the affidavit made before the notary was a nullity. That by the later verification and the proceedings that followed it, all the requirements of the statute (Laws 1880, chapter 264) designed to protect the taxpayers were fully complied with. That prior to such action the assessors had not lost jurisdiction. That the statutory directions as to the time when the roll should be verified and left with the supervisor, etc., was not mandatory. That the statement in said notice as to how long the roll would remain open to inspection, was surplusage, and did no harm.
    2. Same—Costs on certiorari under Laws 1880, chap. 269.

      Held, that on denying the petition for a review of the assessment on certiorari, the special term has no discretion to withhold costs; costs must be awarded under Laws 1880, chapter 269, section 6.
    2. Same—Form of the verification of assessors—Laws 1885, chap. 201.
    Where the assessors, in their verification of the assessment roll, swore that they had estimated all real estate liable to taxation “ at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor,” while the form of oath required by Laws 1885, chapter 201, was that they had estimated the value thereof at the sums which a majority of the assessors had decided to be the full value thereof: Heal, that the affidavit was not defective under said law.
    Appeal from orders of special term in Erie county, denying the prayer of the petition upon the merits in the first and second proceeding above entitled, and dismissing the petition and writ upon the merits in the third proceeding above entitled, with costs to the respondents in each case.

      Edward B. Wynn, for relator and app’lt; John Cunneen, for resp’ts.
   Smith, P. J.

These are proceedings by certiorari. under chapter 269 of the Laws of 1880, to review the assessments made by the authorities of the town of Kendall, Orleans county, upon the property of the relator in said town, in the years 1883, 1884 and 1885, respectively.

As to the assessments in 1883 and 1884, the evidence in the cases now before us is conceded by the learned counsel for the appellant to be almost identical with that given on behalf of his client in the cases of The People v. Haupt, The People v. Smoyer, (24 N. Y. Week. Dig., 195); The People v. Hicks, 40 Hun, 598, (2 N. Y. State Rep., 294); The People v. Eddy, and The People v. Bancroft decided by this court in June last, and for that reason he very properly declines to argue the assessments of 1883 and 1884 upon their merits, as the points involved are identical with those decided in the cases above referred to.

It is contended, however, by the appellant’s counsel that an irregularity exists in respect to the assessment of 1883, which is fatal to its validity. The supposed irregularity consists in the alleged failure of the assessors to comply with certain provisions of section 9, chapter 269 of the Laws of 1880, in respect to their duties. That section requires that all assessment rolls, when finally completed and verified by the assessoi’s, shall, in towns, be delivered to the towxx clerk, or other officer to whom they may be required by law to be delivered, on or before the first day of September1, thex-e to remain for a pei’iod of fifteen days, for public ixispection. Public notice thereof is to be given, and it is provided that a certioxari shall not be granted uxxder the act, unless it is applied for withixx fifteen days after the completion and delivery of the assessment axxd xxotice thereof, axxd as the law then stood, the affidavit of verification was required to be made before a justice of the peace of the towxx. Laws 1851, chap. 176, § 8.

It appears by the return that the assessment roll of 1883 was sworn to, in the first instance before the notary, and that as thus sworn to it was xxot delivex’ed to the supervisor of the town who was the proper officer to receive the same, (1 R. S., 394, 27), until the eleventh day of September. It also appears that on the tenth of October following, the assessors verified the said roll by affidavit sworn to before a justice óf the peace of the town and that subsequently said roll remained with the supervisor for fifteexx days for public ixispection, axxd the assessors caused notice to be published that the roll would remain with the supervisor “for the period of fifteen days from the first day of September, open to public inspection, pursuant to section 9, chapter 264 of the Laws of 1880.” Said notice was dated the 23d day of October, 1883. The return states that the notice was posted on that day, “ from which date and for fifteen days thereafter the said roll remained with said supervisor open for public inspection as aforesaid.”

The affidavit made before a notary was doubtless irregular, such affidavit being then required to be made before a justice of the town. The statute authorizing it to be made before any officer of the county authorized to administer oaths was not passed till the following year (Laws of 1884, chap. 57). But we think the irregularity was cured by the subsequent affidavit, and the action thereafter taken in respect to the roll thus properly verified. The statutory direction as to the time when the roll should be verified and left with the supervisor, and notice thereof should be posted, was . directory and not mandatory. Parish v. Golden, 35 N. Y., 462; Rawson v. Van Riper, (1 T. & C. 370;) Witheril v. Mosher, 9 Hun, 412; Rome, W. and O. R. R. Co. v. Smith, 39 Hun, 332, 335, 6. By the later verification and the proceedings that followed, all the requirements of the statute designed to protect the taxpayers were fully complied with. Prior to such action the assessors had not lost jurisdiction, as in The People v. Forest (96 N. Y., 544), cited by the appellant’s counsel. As the affidavit made before the notary was a nullity, the roll had not been completed (People v. Suffern, 68 N. Y., 321), and the subsequent action of the assessors was only what was necessary to its completion. Nor is the case like that of Westfall v. Preston (49 N. Y., 352), also cited by the counsel, where an affidavit of the assessors verifying the roll, made prior to the time fixed by statute for its final review and correction, was held to be a nullity.

We have not overlooked the circumstance that the notice which was posted and published on the twenty-third of October stated that the assessment-roll would remain with the supervisor “for the period of fifteen days from the first day of September.”

We do not think that statement rendered the notice invalid. It was not a necessary part of the notice. All that the notice was required to state was that the roll had been finally completed, the officer to whom it had been delivered, and the place where it would be open to public inspection (Laws 1880, chap. 269). It was not required to state how long it would remain open to inspection. The statement upon that point was surplusage, and it did no harm unless it misled the appellant, of which there is no evidence.

For these reasons we think the prayer of the petition in respect to the assessment of 1883 was properly denied.

The granting of costs against the petitioner on that denial seems a hardship. The writ of certiorari was allowed on the twelfth of September, and, at that time, the proceedings on the part of the assessors were irregular, and if they had not been aided by the subsequent action of those officers the prayer of the petitioner must have been granted. But the special term had no discretion to withhold costs on denying the prayer of the petition. The statute is imperative that in such case costs shall be awarded against the petitioner (Laws 1880, chap. 269, § 6).

The order must, therefore, be affirmed as to costs as well as upon the merits.

No irregularity is suggested by the appellant’s counsel in respect to the assessment of 1884.

The only question raised in respect to the assessment of 1885, relates to the form of the affidavit verifying the roll. Prior to May, 1885, the statute prescribed that the assessors should estimate all real and personal estate liable to taxation “at its full and true value, as they would appraise the same in payment of a just debt due from a solvent debtor” (1 R. S. 393, § 17, as amended by Laws 1851, c. 176, § 3). And the assessors were required to state in their affidavit verifying the roll that they had estimated the value of the real estate set down on the roll (with an exception not now important), at the sums which a majority of the assessors decided to be the full “and true” value thereof, “ and at which they would appraise the same in payment of a just debt due from a solvent debtor. ” In respect to personal property, they were only required to state that they had assessed it at the full and true value thereof, according to their best judgment and belief (Laws 1851, chap 176, § 8, as amended by Laws 1884, chap. 57).

By an act passed on the 1st day of May, 1885, and which then took effect, the form of the oath was changed so that it was only necessary for the assessors to state, in respect to real estate, that they had estimated the value thereof at the sums which a majority of the assessors had decided to be the full value thereof (L. 1885, 0. 201); but no change was made in the form of the oath as to personal property, nor as to the basis upon which the value of either real or personal property should be estimated in making the roll.

It appears by the record book that in the present instance, the assessors, on the 28th of August, 1885, made and annexed to the roll, an affidavit in the form prescribed by the earlier statute, and on the 17th of October, 1885, they made and annexed to the roll an affidavit in the form prescribed by the act of 1885.

The appellant’s counsel contends that the verification is fatally defective. The same question arose in the cases of this same relator against Smith, and the same against Phippany (39 Hun, 332), which were actions brought by the present relator to restrain the authorities of the town of Kendall from collecting the tax imposed by the assessment now under review. The supreme court at general term in the first department, held that the first affidavit was not defective, it being a substantial compliance with the act of 1885, but that if it was defective or irregular, the assessors had the authority to correct it or supply its defects, and comply with the act of 1885, at the time when the last oath was taken by them, and by taking that oath they had done so. Those views were expressed by Mr. Justice Daniels in his opinion, and we understand from the report of the case that they were concurred in by his associates, although they stated another ground also leading to the same result. The court of appeals affirmed the orders of the general term in those cases without passing upon the validity of the original affidavits attached to the assessment rolls. 101 N. Y., 684.

The adjudication of the general term upon the point now in issue before us, therefore, stands unreversed, and we accept it as decisive of the question. At the same time we deem it proper to say that treating the question as an open one, we are clearly of the opinion that the order of the special term now under review is right, for the reason, if for no other, that if the first affidavit was defective, the defect was cured by the second one. We concur in the views expressed upon that point by Mr. Justice Lewis at special term.

The orders appealed from should be affirmed with costs of the appeal, in one case only, to the respondents.

Barker, Haight and Bradley, J. J., concur.


author: Angle, J.

text:
    Charles H. Erwin, Resp’t, v. Josiah Curtis, as Adm’r and heir-at-law of David Curtis, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    1. Deed—Ween intended as a mortgage—Evidence—Sufficiency of.
    The evidence required to show that a deed absolute in form was tended as a mortgage must be clear, satisfactory and convincing.
    3. Same—What does not constitute an oral trust.
    Where the plaintiff was willing that defendant and his wife should under the deed which is sought to be declared a mortgage retain a life interest in the property as a home. Held, this would not conslilu'e an oral trust because defendant was himself the grantee in the deed, and therefore it can be proved by paroi.
    Appeal from final judgment entered September 1Í, 1885, and from interlocutory judgment entered January 9,1885.
    Action was brought in the lifetime of David Curtis, who died after this appeal, when Josiah Curtis, his administrator and heir at law, was substituted as defendant.
    The action is to have a quit-claim deed, dated August 26, 1880, executed by plaintiff to David Curtis, declared a mortgage, and that plaintiff be allowed to redeem, or that said David Curtis reconvey, reserving .to himself a life estate.
    The complaint alleges and the answer admits, that on or about February 14, 1877, the plaintiff being the owner of certain described premises in the -s Jlage of Painted Post, Steuben-county, N. Y., upon which was a dwelling house, occupied by plaintiff as a residence for himself and his family, did, with his wife, execute and deliver to the Southern Tier Savings Bank a mortgage of said premises, as collateral to his bond, to secure the payment of $1,000, one year from the date, with interest; that afterwards and about September 17, 1878, said bond and mortgage were duly assigned to Eleanor C. Hermanee; that at some time prior to August 26, 1880, said Eleanor C. Hermanee commenced an action of foreclosure on said mortgage against the plaintiff; that the defendant procured said bond and mortgage to be assigned and transferred to him by said Eleanor C. Hermanee upon the payment to her of the amount secured thereby and the interest, and the costs of said action; that plaintiff executed and delivered to defendant a quit-claim deed of said premises.

      A. S. Kendall, for app’lt; G. T. Spencer, for resp’t.
   Angle, J.

The controlling questions in this action arise under the issue taken by defendant to the allegations in the complaint; that while the Hermanee foreclosure was pending the plaintiff, in order to prevent a sale thereunder and a probable sacrifice of the property, applied to defendant for a loan of money sufficient to pay the mortgage and costs; that defendant refused to loan plaintiff or to assist him otherwise than by procuring an assignment of the Hermanee bond and mortgage, and on condition that plaintiff should execute to defendant a quit-claim deed of the mortgaged premises for the expressed consideration of $1,500, to consist of the amount of said bond and mortgage, interest and costs, and such further sum as should amount to $1,500; and thereupon defendant procured said bond and mortgage to be assigned to him by said Hermanee on payment by him to her of $1,000, and interest and costs; and plaintiff executed and delivered to defendant said quit-claim deed under an agreement between them that upon payment of said bond and mortgage, interest, costs’ and advances, defendant would reconvey said premises discharged of said mortgage, or that said quit-claim deed should be held for the purpose of furnishing defendant a home on said premises during his life and that of his wife, and that he would release and reconvey to plaintiff said premises, subject to, or reserving for himself and his said wife, a home upon said premises.

The appellant makes two points: First, that the agreement alleged and attempted to be proved is an agreement for a trust, and cannot be proven by paroi, citing 2 R, S., 135, sec. 6; Laws 1860, chap. 322; Cook v. Barr (44 N. Y., 156); Hutchings v. Hutchings (98 N. Y., 56, 63). The counsel does not contend that a deed absolute in form may not, by oral evidence, be shown to be a mortgage; and in my opinion that is all plaintiff is seeking to do here. He wants the property restored to him, when the deed has accomplished its purpose as a security. It seems from the evidence on the part of the plaintiff that as a bonus for the favor he was seeking from defendant, or for some other reason, he was willing defendant and his wife should, under the deed, retain a life interest in the property as a home, but this would not constitute an oral trust, because defendant was himself the grantee in the deed.

The defendant’s second point is, that the oral evidence is insufficent to prove the deed a mortgage.

The evidence, as held by some authorities, required to show that a deed absolute in form was intended as a mortgage must be convincing beyond a reasonable doubt. Tilden v. Streeter 8 N. W. Rep., 502; S. C., 45 Mich., 533. It must be clear, satisfactory, and convincing. Kilby v. Harsh, 16 N. W. Rep., 85; S. C., 61 Iowa, 196; Johnson v. Van Velsor, 6 N. W. Rep., 273; S. C., 43 Mich., 208, 214. Each case must be determined upon its own especial facts, but those should be of a clear and decisive import. Campbell v. Dearborn, 109 Mass., 145. It must be clear, explicit and unequivocal. Null v. Fries, 1 Central Reporter, 612 (Pa., 1885).

The case does not show whether the rule indicated by the above authorities was adopted at the special term, or the rule indicated by another class of authorities, which require “the triers of fact in civil cases to give a verdict to the party in whose favor the evidence preponderates.” Stearns v. Field, 90 N. Y., 642; Leybolt v. N. Y. and L. E. R. R. Co., 95 id., 569.

It is necessary for us in reviewing the question of fact as to whether this deed was proven to be a mortgage, to determine the rule governing us, and we hold it to be as stated in Kilby v. Harsh, Johnson v. Van Velsor, Campbell v. Dearborn and Null v. Fries, supra.

With this conclusion, and that the present case is one of tjie many exceptions to the general rule given in 90 N. Y., above, in mind we have carefully examined the evidence bearing upon the question, and all the circumstances that are shown to surround the parties and the transaction, and we cannot say that there was an error committed in the finding below. Hellburn v. Rosenson, 2 N. Y. State Rep., 618.

J udgment affirmed, with costs.

Haight, J., concurs; Bradley, J., taking no part.


text:
    Charles Higgins, App’lt, v. Village of Salamanca, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)

    1. Negligence — Streets — Municipal corporations —When charged with notice of defective condition of sidewalk.
    A municipality is charged with the duty of keeping the sidewalks in good order, and after the sidewalk has been out of repair so that the defect has become known and notorious to those traveling upon it, and there has been full opportunity for the municipality through its agents charged with that duty to learn of its existence and repair it, notice will be implied and the municipality is chargeable with negligence.
    2. Same—Notice to the president of a village charges village— Laws 1870, chap. 291.
    Where a village was incorporated under Laws 1870, chapter 291, the president of the village is a member of the board of trustees (who are also the commissioners of highways), and holds such a relation to said board and to the village that notice to him of the defective condition of the sidewalk would be sufficient to charge the village with notice.
    Appeal from a judgment entered upon a nonsuit ordered at the Cattaraugus circuit.

      Ansley & Davie, for app’lt; O. S. Vreeland, for resp’t.
   Smith, P. J.

Action to recover for a personal injury alleged to have been sustained by plaintiff in consequence of the defendant’s negligence in not repairing or keeping its sidewalk in a safe and propér condition.

The defendant is a municipal corporation formed under the general act for the incorporation of villages. Laws 1870, chapter 291.

The injury occurred on the evening of March 1, 1883, while the plaintiff was traveling along the sidewalk on East Eiver street in said village. The walk, which was of plank, had been displaced by one Fish, the owner of the adjoining premises to enable him to change the location of some shade trees owned by him.

The nonsuit was ordered upon the sole ground that there was no proof of notice to the defendant of the defective condition of the sidewalk before the injury occurred.

Express notice was not shown and the only question is whether the circumstances of the case developed by the evidence are such as to justify the inference of what the law recognizes as constructive notice. It has been held that after a street has been out of repair, so that the defect has become known and notorious to those traveling upon it, and there has been full opportunity for the municipality, through its agents charged with that duty, to learn of its existence and repair it, the law imputes to it notice, and charges it with negligence. Todd v. City of Troy, 61 N. Y., 506, and cases cited by Earl, J., p. 509. The same rule applies to sidewalks, where the municipality is charged with the duty of keeping them in good order. Among the duties imposed upon the defendant by the act under which it is incorporated, are: “to pave, plank or flag roads, streets, crosswalks or sidewalks ” (Laws 1870, chap. 291, title 3, § 3, subd. 25); “to prevent incumbering the streets, squares, sidewalks, etc., with any material whatever (Id., subd. 6); to provide for keeping the sidewalks free from snow, ice, etc., dirt and other obstructions (Id., subd. 16); and to compel the owners and occupants of lands or lots in front of and adjoining which a sidewalk is to be made or repaired, to make such improvement upon the sidewalk in front of such land or lot, and in case the owners or occupants neglect, then to cause such improvement to be made at their expense (Id., §4).”

It appears from the evidence that the sidewalk was laid by Fish the summer before the accident, and that it was placed inside of certain shade trees then growing in front of his premises, with instructions to move the trees when they could be moved without being killed. In February following, Fish set about moving the trees. There were four of them, four inches or more in diameter. Excavations some two feet deep were made by digging around the trees, in order to remove them, and also in digging new holes for the trees to be placed in, and the earth taken out was thrown up in piles. For the purpose of doing the work a section of the sidewalk was thrown around out of place, so that a space was left in the sidewalk, or, as one of the witnesses expressed it, “a jog of from eight to twelve inches right down on to the ground.” It was at that point that the plaintiff fell in the night (no guards or light having been placed there), and received his injury. The work was done by Foltz, who was employed by Fish.

Fish testified that Palmer, one of the trustees of the village, directed him about moving his walk, and showed him the stakes, the street line, the distance to move the walk, and where to put the trees. He also testified that Mr. Heller, who was shown to be the president of the village, gave similar directions, and was there at different times, and during the first two days that the work was going on.

Fish testified that the work was going on for about a week, according to his recollection. Foltz said the work continued four or five days, and that when he heard of the accident the job was within a day or two of being finished; .it was past the middle of the job.

It was also testified that Heller lived on the same street in which the work was done, ten or twenty rods from the place, and there was nothing to prevent seeing the piles of dirt from Heller’s house. Also, that the place of business of Palmer was on the corner of East River and Main streets, in sight of the work, and about forty rods from Fish’s house.

It was also testified that Mr. Stebbins was one of the trustees of the village, and that in going from his residence to his place of business, he passed along Main street, by East River street, and in view of the walk in question.

By the act, the board of trustees are declared to be commissioners of highways of the village, (Title 7, sec. 1), and the president of the village is made the president of such board, (Title 5, sec. 1; title 2, sec. 2) and in our opinion is to be regarded as a member of the board, or at any rate, as holding such a relation to it and to the village, as that notice to him would be sufficient to charge the defendant with notice.

In view of the circumstances disclosed by the evidence, we think it cannot be said that the plaintiff failed to make even prima facie proof of negligence, and that it became a question for the jury whether one or more members of the board of trustees did not know, or in the exercise of a reasonable degree of diligence and care, ought not to have known of the defective condition of the sidewalk, in season to have remedied the defect, or to have prevented the injury of which the plaintiff complains by causing a light or proper guards to be placed at the point of danger.

The evidence as it stands, shows very clearly that the interference with, and removal of the sidewalk was begun with the assent of the village authorities, and so (as has been said in a like case) it may have been considered that knowledge of the defect in the defendant could be presumed, or that there was a duty on it to watch what was done by its assent, so that is should not be left unfinished and dangerous. (Per Folger, J., in Requa v. The City of Rochester, 45 N. Y., 135.)

The case of McDermott v. The City of Kingston (19 Hun 198), cited by respondent’s counsel does not apply, as is that case there was no proof of notice, express <or constructive.

The judgment should be reversed and a new trial ordered^ costs to abide event.

Barker, Haight and Bradley, JJ., concur.


author: Barker, J.

text:
    Elyar R. Schoonmaker, Res’pt, v. Frank W. Bonny et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887)

      1. Specific performance of oral contract to convey land—Ween not ENFORCED AS TO WIFE OF VENDOR.
    The defendants Frank W. and Robert P. made a paroi agreement with the plaintiff by the terms of which they agreed to sell and convey to him their certain interest in certain named premises and the purchase money was paid in full. There was no allegation in the complaint and no evidence tending to show that the respective wives of the vendors were parties to the agreement. By the decree entered in an action for specific performance the defendants (the respective wives of the vendors) are required to join in the deed and in due form of law release their inchoate right of dower. Held, erroneous that it required them to convey a valuable interest in the premises; also, that it should not require the husbands to procure from their wives the performance of an act over which they have no right of control.
    2. Same—When court of equity will enforce contract—Estoppel.
    The payment of the purchase money in full upon a paroi contract is not sufficient, standing alone, to secure in a court of equity a decree for its specific performance. The vendee must, in reliance upon the agreement, do some other act of such a nature and character as to make it unjust and inequitable to permit the vendor to set up the statute for the purpose of defeating a performance on his part. Going into the possession of the premises by the vendee and assuming the payment of a bond and mortgage which the holder was then foreclosing, held, sufficient to estop the vendor from setting up the statute for the purpose of defeating a performance on his part.
    2. Practice—Appeal—Case—When appellate court cannot review FINDINGS OF FACT.
    Where there is some evidence set forth in the printed case on appeal upon which to base a finding of fact, and it does not appear that the printed case contains all the evidence upon that issue, the general term, upon appeal, cannot review the referee’s conclusion upon that question.
    Appeal from a judgment entered upon the report of a referee. The action is to compel the specific performance of a paroi contract for the sale and conveyance of land. The vendors were Frank W. Bonny and Robert P. Bonny. The other defendants are respectively their wives.

      J. J. Inman, for app’lts; Henderson & Wentworth, for resp’t.
   Barker, J.

The defendants, Frank W. and Robert P., by their answer confess, and as witnesses admit that they made a paroi agreement with the plaintiff, by the terms of which they agreed to sell and convey to him their undivided one-half of the premises described in the complaint, and that the purchase money has been paid in full. They seek to justify their refusal to perform their contract on the ground that the plaintiff perpetrated a fraud upon them, and procured their promise to sell and convey by deceit and false representations as to the state of improvement and value of the lands, of which they were both ignorant.

The referee, in his findings of fact, did not pass upon that issue either way, nor was he requested by defendant to do so. On this appeal the court must assume that the referee in fact determined that there was no fraud. The appellants now claim that such a conclusion is against the weight of evidence. There is some evidence set forth in the record upon which to base a finding that there was no fraud perpetrated, as alleged by the defendants, and as it does not appear that the case contains all the evidence upon that issue, this court, upon appeal, cannot review the referee’s conclusion upon that question. Spence v. Chambers, 39 Hun, 193.

The appellants make the further point that the purchase price was grossly inadequate, and that it would be unjust and inequitable to force a specific performance of the agreement, and that the plaintiff should be confined to his common law remedy, allowing him to recover back the money paid under the contract. For the same reason we cannot enter upon an examination of this question, as we are not advised by the record that all evidence bearing upon the question of the value of the premises is before us. If the referee followed the evidence as set forth in the record, giving the lowest valuation of the property, then the difference between the price paid and the value thus estimated would not be so great as to produce such surprise in the judicial mind that a sale was concluded upon the terms admitted.

The evidence on the other side of the question is quite different in its character and probative force, and tends to establish that the defendants must have been wholly unadvised as to the real value of the property, and that the purchaser is demanding of this court the specific performance of a hard and unconscionable bargain. In such cases this court never interferes, and leaves the vendee to his common law remedy. Margraf v. Muir 57 N. Y., 155.

The payment of the purchase money in full upon a paroi contract is not sufficient, standing alone, to secure in a court of equity a decree for its specific performance. The vendee must, in reliance upon the agreement, do some other act of such a nature and character as to make it unjust and inequitable to permit the vendor to set up the statute for the purpose of defeating a performance on his part. Lowry v. Tew, 3 Barb. Ch., 407; 2 Story’s Eq., 761.

At the time this agreement was made, the vendee was the equitable owner of the other undivided half of the property, and there was a mortgage upon the entire premises.

The evidence tends to show that after the paroi agreement was made and the purchase money paid, the vendee went into the possession of the premises, and that, relying upon the contract he entered into with the vendors, he assumed the payment of the bond and mortgage which the holder was then foreclosing. These facts, which appear by the record, if none other existed, were sufficient in equity to estop the vendors from setting up the statute for the purpose of defeating the specific performance of their oral agreement.

In the report, the referee does not find upon these questions, nor allude to the circumstances mentioned, but it is stated in one clause of the report that: “The evidence does not establish any defense to the cause of action alleged in the complaint and proved upon the trial, either specifically alleged in the defendant’s answer or otherwise, and wholly fails to disclose any legal or equitable obstacle to the granting of the relief in the complaint demanded.” Whether this be regarded as a finding of fact or of law, we must assume that the evidence supported the conclusions stated, as it does not appear that we have all the evidence before us. There is, however, no evidence that the respective wives of the vendors were parties to the agreement, nor does the complaint allege or the referee find that they were. The plaintiff, therefore, failed to make a case requiring them to release their inchoate right of dowser, and they may ask for a reversal of the judgment as against them, although the record does not show that all the evidence given on the trial bearing upon the issues in which they are interested is set forth therein. Spence v. Chambers, supra.

The decree requires the defendants, Frank W. and Robert P., to execute and deliver to the plaintiff a deed of the premises; and further, as follows: “In the execution acknowledgment of which the defendants, the respective wives of said defendants, Frank W. and Robert P,, shall join, or otherwise in due form of law, release their inchoate right of dower in the said lands and premises.”

It has been frequently adjudicated, and the rule is well settled in this state, that an inchoate right of dower in lands is a subsisting or valuable claim or interest, possessing a pecuniary value, although there can be no right of enjoyment on the part of the wife during the life of her husband and is not consummated until after his death. Simar v. Canaday, 53 N. Y., 298; Witthaus v. Schack, 24 Hun, 328; Doty v. Baker, 11 id., 222; Steele v. Ward, 30 id., 555.

By the decree the defendants, the respective wives of the vendors are required to convey a valuable interest in the premises, and as they were not parties to the agreement as to them, the judgment is erroneous and should be reversed, in toto, with costs. If the decree is susceptible of the construction that the vendors are required to secure a release of the inchoate right of dower, as a full and complete performance of the judgment on their part, then the same is clearly erroneous in that respect, for it should not require them to procure from a third party the performance of an act over which they have no right of control. Jerome v. Scudder, 2 Robt., 169.

This requirement might induce the defendants to avoid the position of contempt of court. To attempt to procure • or coerce their wives to release their interest in the premises which, as shown by their defense herein, they are not willing to do voluntarily.

The judgment as to the appellants, Mrs. Frank W. Bonny and Mrs. Robert P. Bonny, should be reversed in all respects, with costs.

The judgment as to Frank W. Bonny and Robert P. Bonny should be reversed and a new trial granted before another referee, with costs to abide the event, unless the plaintiff within thirty days stipulates that the judgment may be modified as to them so far as they are required to procure a release from their respective wives of their inchoate right of dower in the premises, and in case such stipulation is made, then the judgment as modified is affirmed, without costs of this appeal to either party.

Smith, Haight and Bradley, JJ., concur.


text:
    Ignats Thalceimer, App’lt, v. Ferdinand Hays, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    1. Practice—Costs—When party stayed for non-payment of—Code Civ. Pro., § 779.
    Where by stipulation of the attorney an order in this case was substituted in place of a prior order to the same effect: Held, that from the time of its entry the substituted order must control the rights of the parties, and before non-compliance with it (as to the payment of costs) would stay proceedings, it must appear that a copy of said substituted order was served on the party to be stayed.
    2. Same—Appeal—Taxation of costs.
    The right to appeal carries with it (so far as regards Code Civil Procedure, § 779) the right to see to it that if defeated the costs of the appeal were properly adjusted by the clerk, and also, if deemed advisable, to appeal from the taxation by the clerk.
    Appeal from order of Monroe special term denying plaintiff’s motion for retaxation of costs on the ground that his proceedings were stayed by the non-payment of costs of a former motion in the action.
    In this action plaintiff obtained an attachment against the property of the defendant, which, upon defendant’s motion, was vacated, with costs and disbursements to be paid by plaintiff.
    The plaintiff appealed from the order vacating to the general tei'm, where the order was affirmed January Term, 1886, with costs and disbursements, which were taxed, upon notice, by the clerk, February 3, 1886. On the re-taxation plaintiff appeared and objected to an item of $32.25 for printing points, and filed an affidavit in opposition to such taxation on the ground that defendant was only entitled to charge for printing the points made and relied on by counsel upon the argument, and that the printed pamphlet, for which the charge of $32.25 was made, consisted for the most part of a lengthy argument of counsel, occupying about forty-three pages, while the points actually contained there would not occupy more than eight or ten pages.
    ■ The objection was overruled by the clerk and the item taxed. The plaintiff moved at special term for a re-taxation of costs, where the defendant raised a preliminary objection that the sum of ninety dollars costs and disbursements taxed against plaintiff under the order of the special term dismissing the attachment had not been paid, and the court “ ordered that such motion for retaxation be, and the same is hereby denied on the ground that such costs had not been paid, without prejudice to the rights of the plaintiff to renew the same after paying such costs.”
    This appeal is from that order.

      Q. Van Voorhies, for app’lt; James Breck Perkins, for resp’t.
   Angle, J.

Section 779 of the Code of Civil Procedure provides that “ where costs of a motion directed by an order to be paid are not paid within the time fixed for that purpose, or if no time be so fixed within ten days after service of a copy of the order, all proceedings on the part of the party to pay the same, except to vacate or review the order, are stayed without further direction of the court until the payment thereof. But the adverse party may, at his election, waive the stay of proceedings.

The affidavit of one of the defendant’s attorneys shows that the order vacating the attachment was made January 24, 1885, and was entered in the clerk’s office and a copy served on plaintiff’s attorneys January 28, 1885, and that it provided that plaintiff should pay to defendant or his attorneys the sum of ten dollars, costs of the motion, and eighty dollars, fees of referee; and that no part of it has been paid. The affidavit of the other attorney for defendant shows that the final order vacating the attachment was settled and entered February 19, 1885, and this order of February 19 was, by stipulation of the attorneys, substituted in place of the former order.

There is nothing in the papers showing that a copy of this substituted order was served. The first point made by plaintiff’s counsel is that to make the non-payment of costs work a stay of proceedings, it was necessary that a copy of the substituted order be served. Pettibone v. Drakeford, 1 How. (N. S.), 141.

We are not furnished with a copy of either order and we do not know what difference there may be between the two, but the fact that counsel by stipulation substituted the second for the first, indicates that in their opinion some material change from. the first was necessary. From the time of its entry the substituted order must control the rights of the parties and before non-compliance with it should stay plaintiff’s proceedings it should appear that he is, under the provisions of section 779 creating the stay. That is not shown and the stay declared by the section is not operative upon him.

Another point taken by plaintiff’s counsel is that as he was not stayed by section 779 from proceeding to vacate or review the order vacating the attachment, he was not stayed as to any matter necessarily growing out of a proceeding to vacate or review the order imposing such costs; that although defeated on his appeal with an award of costs of the appeal against him it was a necessary incident to his rights to make the appeal that he should not be stayed from making the necessary affidavits to resist the taxation of improper items in the appeal costs and from opposing their allowance. The defendant by giving him notice of taxation seems to concede this, as no objection appears to have been made thereto.

We think the right to appeal carried with it (so far as regards section 779), the right to see to it that, if defeated, the costs of the appeal from the taxation by the clerk.

The order should be reversed with ten dollars costs and disbursements, and motion remitted to Monroe special term to be heard.

Haight, Bradley and Childs, JJ., concur.


author: Childs, J.

text:
    Charlotte M. Smith, Resp’t, v. The Agricultural Insurance Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)

    1. Insurance—Fire—Policy of—Question of fact in action on.
    In an action on a policy of insurance the defendant moved for a non-suit on the ground that, the assured was not the real owner of the insured property, and that there was no disclosure to the defendant of the real ownership. The testimony showed that at the time of the issuance of the policy the assured held title to the insured property under a warranty deed, the wife of the grantor joining with him in it, and testimony was given to show that the conveyance was supported by a good consideration. It appeared after the execution and delivery of the deed that the assured united with his grantor in the execution of two mortgages upon the real property so conveyed to him. Held, that the question of ownership of the property having been submitted to the jury with proper instructions, and they having found for the plaintiff, the defendant was bound thereby.
    3. Same—Liability of insurers—Not liable to creditors of grantor OF INSURED PROPERTY.
    1 Held, that with the question of the rights of creditors of the grantor the defendant was not concerned; that if the conveyance operated as between the parties to convey the whole title to the assured, that answered every requirement of its contract, and payment of the loss to the assured would absolve it from any claim made at the instance of a creditor of the grantor.
    S. Same—Payment of premium.
    The terms of the policy provided that it should not be valid or binding until the actual payment of the premium unless credit should be gis'en for a definite time, and, in that case, that it was a condition of the contract that if such premium were not paid on Novemberl, 1881, the policy should he void so long as any part remained unpaid. At the time of the application for the policy the defendant’s agent stated to the assured that if unable to pay all the premiums by the date set, he would give him further time. About November first the agent paid the amount of the premium to the defendant and looked to the assured for reimbursement. Part payment was made by the wife of the assured, and in February the agent informed the assured of that fact and agreed that he should have until the first of April to pay the balance of the money paid by him, and on that day he was reimbursed the sum so expended by him. Held, that in view of the agreement made for a credit till the first day of April by the parties after the assured had been informed of the payment of the premium by the agent, the payment so made was a good payment of the premiums to the company, and that after the assured was made aware of such payment, neither the agent nor the company could repudiate the arrangement without the consent of the assured; that the debt of the assured was to the agent individually, and not to the company.
    4 Same—Policy—Condition in—False statement by agent of insurer DOES NOT INVALIDATE THE POLICY.
    The policy contained a condition making it void in case incumbrances upon the property were not made known to the company in the application. Held, that a false statement having been inserted in the application through the fraud or mistake of the company’s agent, and without the knowledge or authority of the company, did not furnish a defense in an action on the policy.
    Appeal from a judgment entered on the verdict of a jury at Wayne county circuit and from an order denying motion for a new trial, on the minutes.
    This action was brought upon a policy of insurance issued iby the defendant, to recover for the loss of a ¡barn, produce and other personal property therein.
    At the close of the plaintiff’s case the defendant moved for a, non-suit, upon the grounds:

      First. That from the undisputed facts in the case, Elton M. Smith the assured, was not in fact the real owner of the property insured; that the property was conveyed to him merely to hold for the benefit of his father, and that there was no disclosure to the defendant of the real ownership.

      Second. That at the time when the fire occurred the premium had not been paid by the assured, that the policy was then absolutely null and void.

      Third. That there was a breach of warranty in the application with regard to the incumbrances upon the property.
    This motion was denied by the court, the defendants excepted and the plaintiff had a verdict.

      A. H. Sawyer, for app’lt; De. L. Stowe, for resp’t.
   Childs, J.

The grounds stated in the defendants’ motion for a non-suit, constitute its defense as alleged in the answer, and relied upon in the trial.

It appeared from the testimony given on the trial that Elton M. Smith the assured, at the time the policy of insurance described in the complaint was issued to him, held the title to the insured property, under a warranty deed, made by Elijah Smith and wife, September 3, 1877, and testimony was given tending'to show that such conveyance was executed and delivered, upon a good and valuable consideration. It however, appeared that after the execution and delivery of said deed, Elijah Smith, the grantor of said Elton M. Smith, united with him in the execution of two mortgages upon the real estate so conveyed to him. From this circumstance it was claimed by the defendant, that it appeared that the interest of the assured was not the entire, unconditional and sole ownership of the property for his own use and benefit, also that the evidence disclosed the fact that such conveyance was made and delivered with the intent to defraud the creditors of said Elijah Smith.

The court submitted the question of the ownership of the property to the jury with proper instructions, and the jury have found for the plaintiff, as upon the evidence they were required to do, and with that finding the defendant must be content.

The defendant had no concern with the question of the rights of the creditors of Elijah Smith. If the conveyance, as between the parties to it, operated to convey the whole title to the assured, that answered every requirement of its contract, and payment of the loss to the assured would absolve it from any possible claim made by or at the instance of a creditor of Elijah Smith or any other person. We think there was no error in any ruling of the court in respect to this defense.

The policy issued by the defendant, dated October 6,1881, upon which this action was brought, contained the following condition:

“This policy shall not be valid or binding until the premium is actually paid thereon, unless credit is given for a definite time, in this case it is covenanted as a condition of this contract that if such premium be not paid November 1, 1881, the whole amount of premium shall then be considered as earned, and this policy shall 'be null and void, so long as any part thereof remains unpaid.

At the time Weed, the agent of defendant, took the application for this policy, he stated to the assured that if he could not pay all of the premium by the first day of November he would give him further time. About the first day of November Weed, the agent, paid the amount of the premium for this policy, $19.87, to the defendant,, and, as he testified, then looked to the assured to reimburse him, thereafter he called at the residence of Elijah Smith, the agent of the assured, for the amount of such'premium. Mrs, Smith (her husband being absent) agreed to raise a portion of the amount and leave it at a designated place in Clyde. In accordance with this arrangement six dollars, was left at Clyde for and received by W eed. In February thereafter Weed notified Elijah Smith that he had paid the defendant the amount of the premium due to it, that he had received six dollars to apply thereon and it was then, agreed that Smith should have until the first day of April, then next, to pay the balance of the amount paid by W eed. It appears that just previous to this arrangement Smith had written to defendant expressing a desire to surrender this policy; that the defendant had written to Weed to see Smith and induce him to retain the policy, and it was during the negotiations between the parties, in respect to that matter, that the arrangement, as stated, was made, Weed urging, among others, as a reason why the policy should not be surrendered, that he would lose his commissions as agent.

The insured property was destroyed by fire on the 1st. day of April, 1882, and on the same day Smith paid to Weed the balance of the premium unpaid by him. Weed accepted the same in ignorance of the destruction of the property. The agent, Weed, testified that early in March, 1882, and in his report for that month, he credited himself with the amount of premium paid by him on the policy in question as a cancelled policy, and that the sam§. was. allowed to him by the company.

Upon these facts the court held as matter of law that the payment of the premium by Weed to the defendant was a good payment of the premium to the company, and that after Weed had informed Smith that he had so advanced and paid it, neither Weed nor the company could repudiate the arrangement without the consent of Smith, that the. debt which Smith owed was a debt to Weed individually, and not a debt to the company.

We are of the opinion that in view of the agreement made by the parties, after Smith had been informed of the payment by Weed for a credit until the first day of April, that the-ruling was correct, and that from the time referred to, Weed was the creditor of Smith, and could'have maintained an action in his own name, for the recovery of the amount paid by him to the defendant on account of such premium.

The application for the policy in question was written by Weed, the agent, in the presence of Smith, Weed asking questions, and from the answers filling the blanks in the application. After the application was finished, Smith signed it, and the same was retained by Weed. The application contained the following question: “Howmuch is the real estate encumbered?” To which the answer inserted in the application was “$1,000.” It appeared upon the trial that the real estate mentioned was encumbered for an amount exceeding $6,000 at the time such application was made.

The policy contained the following condition: “If the property, either real or personal, or any part thereof, shall be encumbered by mortgage, judgment, or otherwise, it must be so represented to the company in the application, otherwise this entire policy, and every part thereof, shall be void.”

It is claimed by defendant that this policy was void at time of the fire by reason of the encumbrances upon the property covered by the policy, and not disclosed to the company, or its agent, and such would doubtless be the rule, if the assured made the statement as to incumbrances contained in the application.

But it is claimed that no such statement was made by the assured or his agent, but that the same appears in the application as a result of the fraud or mistake of the defendant’s agent. There was a sharp conflict in the testimony of Smith and Weed respecting what was said by Smith in reference to incumbrances, Smith insisting that in reply to the question, he stated that the incumbrance was over $2,000, and Weed that Smith stated that “the incumbrance was just the same as it was before,” and then says that he remembered the talk when he insured Smith the first time, and that Smith told him at that time that the incumbrance was $1,000, and that he thereupon wrote that amount in the application, and that after that Smith read the application and signed it. Smith contradicts this statement, and testifies that he did not read the application, and that the same was not read to him, and that he signed it without knowing that it contained the statement in respect to incumbrances, now alleged and admitted to be untrue.

It therefore became a question of fact to be determined by the jury, and was submitted to them in a charge, now quoted with approval in the appellant’s brief. The jury have by their verdict established the plaintiff’s contention, that the amount $1,000 was inserted in the application by the fraud or mistake of the agent, and without the knowledge or authority of the agent of the assured, who signed the same, and this finding seems to be abundantly sustained by the testimony, and is conclusive upon the defendant, and for that reason this defense must fail. Bennet v. Agricultural Ins. Co., 15 Abb. N. C., 234; Grattan, ex., etc., v. Metropolitan Life Ins. Co., 80 N. Y., 281; Flynn et al, adm’r, etc., v. The Equitable Life Ins. Co., 78 id., 568; Arthur v. Homestead Fire,Ins. Co., 78 id., 462; Grattan, as adm’r, etc., v. Metropolitan Life Ins. Co., 92 id., 274.

We have examined the other exceptions in the case, and find none pointing out any error calling for the interference of this court.

The judgment and order appealed from should be affirmed.

Judgment and order affirmed.

Haight and Bradley, JJ., concur.