author: Pratt, J.:

text:
    AUGUSTUS F. FERRIS, Appellant, v. JOHN F. PLUMMER, Respondent.

      Contract for the sale of real estate — an objection to the title, based on a decision of the General Term of the Bárreme Qow’i, will relieve the purchaser from accepting the title.

    The court will not compel one, who has entered into a contract for the purchase of real estate, to specifically perform his contract when his refusal to complete the purchase is based upon an objection which is sustained by a decision of the General Term of this court.
    So long as no adverse decision has been made by a controlling authority, such an objection cannot be considered captious or unreasonable.
    Appeal from a judgment in favor of the defendant, entered in Kings county upon an order dismissing the complaint, with costs.
    The action was brought to compel the defendant to specifically perform a contract for the purchase of certain real estate, to which the plaintiff acquired title through a deed from the sheriff of Kings county, made under and pursuant to a judgment of foreclosure and sale, entered in an action brought in the Supreme Court, Kings county, by William I. Preston against William H. Algie, to foreclose a mortgage for $5,000 on said property, dated October 18, 1884.
    On February 11, 1885, William I. Preston, the plaintiff in said action, obtained from said court an order directing that the service of the summons therein be made upon the defendant Algie, the mortgagor and only defendant, under and pursuant to sections 435-437 of the Code of Civil Procedure, and on February 12, 1885, said service was duly made as required by said sections and order. On February 16, 1885, the affidavit of such service was duly filed in the Kings county clerk’s office. > A mortgage, a judgment and mechanics’ liens, claimed by the defendant to be liens or incumbrances on said property, were filed or recorded subsequent to December 17, 1884, the date of the filing the notice-of lis pendens in the action brought to foreclose the mortgage.
    The defendant claimed that these incumbrances, though junior in date to the filing of the notice of lis pendens, were not barred thereby, or by the foreclosure proceeding, for the reason that those lienors were not parties to the suit and no personal service was made upon the defendant therein, but he was brought in by a substituted service and subsequently appeared; that such substituted service did not render the notice of lis pendens effectual. This was the only question raised and passed upon at the trial.
    Mr. Justice CullkN, before whom the case was tried at Special Term, on account of a decision of the First Department at General Term, in the case of Bogart v. Swezy (26 Hun, 463), gave judgment for the defendant.

      B. F. Traey, for the appellant.

      Booraem & Hamilton, for the respondent.
   Pratt, J.:

The enforcement of specific performance always rests in the sound discretion of the court; and when it is made to appear that a reasonable doubt exists as to the validity of a title, the court will not compel a purchaser to take a title, but will leave the vendor to iiis action for damages.

In the case at bar we think the decision in Bogart v. Swezy (26 Hun, 463) raises enough doubt as to the validity of the title, so that specific performance should not be required. We cannot distinguish between the principle of that case and the case now presented. It has been said that a decision by a court of co-ordinate jurisdiction, adverse to the principle on which the title rests, will raise sufficient doubt; that specific performance will not be decreed though the court thinks the decision wrong. (Fry on Specific Performance [3 Am. ed.], 433.) It would, therefore, not be profitable for us to discuss whether the decision in Bogart v. Swezy correctly states the law. "We are constrained to say that an objection, based on a decision of a General Term of this court, cannot be considered captious or unreasonable on the part of a purchaser. So long as no adverse decision has been made by controlling authority, the holder of the title might find his market injured by the, objection now raised. The decision at Special Term not to compel performance was, therefore, right. Costs were, however, in the discretion of the court and we think should not have been given.

The judgment below will be modified by striking out the costs; no costs of appeal.

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

Judgment modified, so far as to deny costs of trial, without costs to either party on appeal.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN B. HOPKINS, Appellant, v. FRANKLIN J. LOTT, as Administrator of SARAH E. LOTT, Deceased, Respondent.

      Reference of a disputed claim against the estate of a deceased person — right to costs and disbursements and an extra allowance.

    A claim, for $1,000 for damages for breach of a covenant of quiet enjoyment contained in a lease given by the defendant’s intestate to the plaintiff, having been presented to and rejected by the defendant, was, by the consent of both parties and with the approval of the surrogate, referred. The referee reported in favor of the plaintiff for six cents damages. The defendant paid the referee’s fees, upon the refusal of the plaintiff to do soj took up the report and moved for and obtained an order confirming the same and awarding to the defendant his costs, disbursements and an extra allowance.

      Held, that the order was right and should be affirmed.
    Appeal from an order made at the Kings county Special Term and entered in Queens county.
    The respondent’s intestate leased to the appellant a farm for a term of seven years, but after the appellant had occupied it for a part of that peried he was evicted by the owners of the paramount title. The appellant presented a claim against the lessor’s estate for $1,000 damages for such eviction, which having been disputed was referred by consent, pursuant to the statute, to a referee to determine. The referee found in favor of the appellant six cents damages. On the motion to confirm this report the Special Term, by the order appealed from, denied disbursements to the appellant and awarded costs and an extra allowance to respondent.

      Henry A. Monfort, for the appellant.

      Joseph M. Pray, for the respondent.
   Pratt, J.:

This was a matter arising upon a claim by'plaintiff against the estate of Sarah E. Lott, deceased, which was presented to and rejected by the defendant administrator, who at the same time offered to refer, and the claim was accordingly referred on consent of both parties and with the approval of the surrogate.

The claim was for $1,000 damages for breach of a covenant of quiet enjoyment in a lease. The referee reported that plaintiff was entitled to six cents damages. The referee’s fees were sixty dollars, which plaintiff refused to pay and defendant took up the report and moved at Special Term for costs. The court rendered judgment for the plaintiff for six cents damages, and in favor of the defendant for costs and disbursements.

It seems to be settled that this proceeding is not an action but is a special proceeding. (Mowry v. Peet, 88 N. Y., 456; Roe v. Boyle, 81 id., 305.) We think the order made below was right. The Revised Statutes, under which the reference was had, provides that the “court may adjudge costs as in actions against executors and administrators.” Then comes the provision of the Code of Civil Procedure (§ 3246) as follows: “ In an action brought by or against an executor or administrator in his representative capacity, * * * costs must be awarded as in an action by or against a person' prosecuting or defending in his own right.”

On the question of costs the defendant here was the prevailing party. In this special proceeding the costs are to be adjudged as in an action prosecuted or defended by a person in his own right. The Code of Civil Procedure was intended to provide a complete system upon the subject of costs (see secs. 3246, 3228, 3229, 3230 and 3256), which seem to cover the case in hand. The confusion seems to have arisen from the fact that the Code of Civil Procedure refers to actions when treating of costs, but when it is seen that this particular proceeding is assimilated to an action in regard to costs there seems to be no difficulty in the question.

This view is in consonance with the general purpose of the legislature in allowing costs, which is to make the burden of litigation fall upon the party who causelessly invokes it.

Order affirmed, until costs.

Barnard, P. J., concurred; Dykman, J., not sitting.

Order affirmed, with costs and disbursements.


text:
    JOSEPH D. MULDOWNEY, Respondent, v. THE MORRIS AND ESSEX RAILROAD COMPANY, Appellant.

      Pleadings — right of the plaintiff to any relief he may he entitled to upon the case made — when one tenant vn common may recover, for use and occupation, from a co-tenant who excludes him from the possession of the premises.

    'The plaintiff alleged in his complaint that, in 1857, John Dunn, of Morris county, New Jersey, died intestate, leaving him surviving his widow, Margaret, and two children,' John J. and May, and being then seized in foe of a parcel of land situate at Madison, in New Jersey, which is described in the complaint. In 1873, May Dunn, the daughter, was married to the plaintiff, of which m'arriage a child was born in December, 1875, which died in Ü ujy, 1876. The daughter died intestate in September', 1876. In 1878, Margaret, the widow of John Dunn, and her son, John J., conveyed the said premises to F. S. Lathrop, who, in January, 1879, conveyed them to the defendant, which has ever since been in the quiet and undisputed possession thereof; that the said premises, when conveyed to the defendant, were wholly vacant and unimproved, but were, at the time this action was brought, covered by a depot building erected and occupied by the defendant for the purposes of its business; that the plaintiff did not, prior to the summer of 1884, know that he had any interest in the premises. The relief demanded was that the defendant should account to the plaintiff for the rents, issues and profits of the premises and pay to the plaintiff the rental value of his interest in the premises from the date of the conveyance by Lathrop in January, 1879.

      Held, that an objection made by the defendant that, as ,the defendant itself occupied the premises, it could not be required, under the facts stated in the complaint, to respond in rent or to render an account was properly overruled, as it was competent for the court to permit the plaintiff to lake any judgment consistent with the case made by the complaint and embraced within the issue.
    The court found that the plaintiff had title in the premises as alleged; that the defendant had at all times refused, and does refuse to allow the plaintiff to use and enjoy his interest in the premises, or to let him into possession or to pay him any sum for use and occupation; that it received the total rental value of said premises since January, 1£79, and more than its share; that it occupied the whole of said premises in such a manner that plaintiff could have no beneficial use thereof, and that no one, as they are now situated, can use them except a railroad for railroad purposes, and that it was impossible to set off a third or a half, or any fractional part thereof, and that there could be no joint occupation of them; a judgment was directed in favor of the plaintiff for an amount adjudged by the court to be the value of the plaintiff’s one-third interest of the use and occupation of the said premises from January 7, 1879, to January 7, 1886.

      Held, that the judgment should be affirmed.

      Woolemr v. Knapp (18 Barb., 266); Dresser v. Dresser (40 id., 300); Wilcox v. Wilcox (48 id.,'327); Joslynr. Josl-yn (9 Hun, 388), and Roseboom y. Roseboom (15 id., 309) distinguished; MeOabe v. McGabe (18 id., 158) approved.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without a jury.
    The action was brought by the plaintiff, who claimed to have an estate, as tenant by the curtesy, in property which the defendant used and occupied.
    The plaintiff asked “ the judgment of the court that the defendant account for the use and occupation of plaintiff’s estate and interest in the hereinbefore described premises since the 7th day of January, 1879, to the 7th day of January, 1888; that the court may ascertain and determine the rights, interests 'and estates of the plaintiff and defendant in and to the premises described in the complaint, and the proportions in which plaintiff and defendant are entitled to share in the rents, issues and profits thereof, and plaintiff’s just proportion of the rents, issues and profits of said described premises during said time; that plaintiff may recover of defendant his just proportion of the rents, issues and profits of said premises, and the amount found due on said accounting, with interest, as the court shall determine, and that plaintiff may have such other and further relief as to the court shall deem equitable and just.”
    The defendant called no witnesses, but moved, after the plaintiff had stated his cause of 'action, and after be had closed bis case, to di ;miss the complaint on the ground that an action for an accounting would not lie in favor of a tenant in common against his co-tenant for the use and occupation by such co-tenant of the entire premises held in common. The court denied the motion and directed a judgment in favor of the plaintiff.

      Hamilton Odell, for the appellant.

      Frank Hasbrouck, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered against the defendant upon a decision at Special Term, and the case discloses the following facts: John Dunn, of Morris county, New Jersey, died in 1857, intestate, and leaving him surviving his widow, Margaret Dunn, and two children, John J. and Mary. At the time of his death he was seized in fee of a parcel of land situated at Madison, in New Jersey, which is described in the complaint, and which contained SI,691 square feet. The said premises descended to his children “as equal tenants in common, subject to the dower rights of their mother.”

In 1873 Mary Dunn, the daughter, was married to the plaintiff. A child was born of the'marriage in December, 1875, which died in July, 1876. Mrs. Muldowney died intestate in September, 1876. In 1878 Margaret Dunn, the widow, and her son, John J., conveyed the said premises to F. S. Lathrop, and in January, 1S79, Lathrop conveyed them to the defendant, who has ever since been in quiet and undisputed possession thereof, “ except that plaintiff has asserted and claimed an interest therein from about two years ago.” The said premises, when conveyed to the defendant, were wholly vacant and unimproved, but are now covered in part by a depot building, erected and occupied by the defendant for the purposes of its business.

It was not until the summer of 1884 “ that plaintiff discovered and knew that he had an interest in the said'premises, and plaintiff did not notify the defendant that he had or claimed to have any estate or interest in the said premises until during the summer of the year 1884.” It is not claimed that the defendant had any prior knowledge or notice of the plaintiff’s said estate or interest. The plaintiff’s demand upon defendant was not that he should be let into possession, but that defendant should pay him the rental value of his interest in the premises from the date of the conveyance by Lathrop to defendant in January, 1879. The defendant’s first objection is that the form of action is improper, that it cannot be required to respond in rent or for an accounting, etc., under the facts stated in the complaint.

It is plain that if the plaintiff can have no relief in this action he is without remedy, for he has stated all the facts constituting his cause of action, and answer has been interposed and the issues tried. To so state his facts was all the law required of him, and an answer having been filed and case tried, it was competent for the court to permit the plaintiff to take any judgment consistent with the case made by the complaint and embraced within the issue. The object is to do complete justice between the parties when they both have an opportunity to be heard, irrespective of any theories the parties may entertain when they file their pleadings.

Under the present system of Code pleading the plaintff must state the facts and pray for such relief as he supjtoses himself entitled, but he is not to be turned out of court because he prays for too much or too little, or for wrong relief. In this case the plaintiff prayed for enough, but if he prayed for too much it is of no consequence.

The court below has found title in the plaintiff, as alleged, and that the land is in the exclusive possession of the defendant. “ That the defendant has at all times and does refuse to allow the plaintiff to use and enjoy his interest in the premises, to let him into possession, or to pay him any sum for use and occupation.” That defendant occupies the whole of said premises in such a manner that plaintiff can have no beneficial use, and that no one, as it is now situated, can use it except a railroad, for railroad purposes, and that it is impossible to set off a third or a half or any fractional part, and that there can be no joint occupation of said premises. The court has further found that defendant has received since January, 1879, the total amount of rental value of said premises, and more than its share.

If these findings are sustained the judgment ought to be affirmed, but if we assume that the findings of fact are not all sustained by the proof, we still think there is enough in the undisputed facts of the case to entitle tbe plaintiff to hold the judgment he has obtained. It must be conceded that the court had jurisdiction of the parties and the subject matter involved. The answer simply denies, upon information and belief, that plaintiff has any interest in the premises, and sets up the title under which it holds. The answer admits, by not denying it, that defendant has never allowed, and will not allow, plaintiff to occupy any part of said premises, and have never paid him any rent for the use of said premises.

The situation, as claimed by the defendant, is as follows: The plaintiff cannot sue in ejectment, as the defendant’s occupation is plaintiff’s occupation. (Code of Civil Fro., § 1515.) That he cannot maintain partition as his title is simply life-tenant, while the defendant owns the remainder in fee. (Code, §§ 1538, 1539.) That he cannot sue for an accounting, as the defendant has received no rents; nor for use and occupation, as there is no relation of landlord and tenant; and so the plaintiff can have no remedy whatever.

The plaintiff claims that the defendant is the owner of the whole property, subject to a right possessed by the plaintiff, in the nature of an annuity charged thereon, which the court has fixed at forty-one dollars and sixty-six cents. But, whatever may be the technical relation of the parties, the plaintiff has made out a case entitling him to relief. It is not fatal to his claim that no precise authority can be found in this State authorizing such a judgment.

It was, under the common law, the practice in England when a suitor desired redress for a wrong for which there was no established remedy to apply to the proper court to frame a writ that would give him a just remedy, and that form of action known as “action upon the case” was adopted to meet a large number of such cases. Again, courts of equity were established to afford a remedy where the technical rules of law were insufficient to administer justice. The Supreme Court of this State, under the Constitution, has “ general jurisdiction in law and equity,” and exercises, under such rules qf practice as the legislature has established, the common law and chancery powers exercised in this State prior to the adoption of the Constitution of 1846.

The plaintiff is properly before the court, its jurisdiction is not questioned, and no technical rule of practice forbids its doing justice between the parties. It is a clear wrong to deprive the plaintiff of the enjoyment of bis property without compensation, and to deny the power of the court to give the plaintiff relief is to challenge its power to do justice. But we think this case can be relieved of all embarrassment by holding that the plaintiff and defendant are tenants in common, and that the action can be maintained under section 1666 of the Code of Civil Procedure — “ tenants in common are such as hold lands or tenements by several and distinct titles, but occupy in common, the only unity recognized between them, being that of possession.” They are accountable to each other for the profits of the estate, and if one turns another out of possession an action of ejectment will lie against him. They may also have reciprocal actions for waste against each other. (2 Black. Com., 191.) The action of account now lies when one tenant has received “more than his just proportion” of the rents. (Code, § 1666.)

Whether an accounting will lie where the tenant has not received rent has never been decided by the Court of Appeals, but the Supreme Court has, in several instances, decided that- such an action cannot be maintained, but the cases are all easily distinguished from the parent case and cannot be regarded as authority for the decision of the case at bar, The leading case is Woolever v. Knapp (18 Barb., 265), which was decided by MasoN, Justice, in 1854. The decision of the case is put entirely upon the similarity of our statute to the English statute; and the construction put upon the latter by the English courts is adopted as the construction of our statute.

The language of the reasoning of the English cases is adopted by Judge MasoN as follows, viz.: “ The effect of allowing an action in such a case would be that one tenant in common, by keeping out of actual occupation of the premises, might convert the other into his bailiff; in other words, prevent the other from occupying them except upon the terms of paying him rent.” To this it may be replied, why not, if he received more than his share ? If he kept his tenant out and received the whole benefit, why not pay his tenant his just proportion ?

The case, however, decides that the statute applied only to cases where the defendant received rent, and not to cases where he solely occupied the premises. The cases holding the same doctrine are Dresser v. Dresser (40 Barb., 300); Wilcox v. Wilcox (48 id., 327); Joslyn v. Joslyn (9 Hun, 388); Roseboom v. Roseboom (15 id., 309). These cases all cite and follow Woolever v. Knapp, and none contain any new reasoning upon the subject. These cases can all be distinguished from this case: First. The joint or common premises in every case were farming lands open to the occupation and free to the enjoyment of all the owners. Second. The owners in each case were seized of parent estates of co-ordinate ranlc. Third. In all the cases there was a failure of proof of demand on the part of the complaining tenant to be allowed to enjoy the premises.

In Woolever v. Knapp the question is stated to be “ whether one tenant in common who possesses the entire premises without any agreement with the others as to his possession, or amy demand on their part to be allowed to enjoy the premises with him, is liable to account.”

In Dresser v. Dresser it is said: “ For aught that appears, the defendant might at all times have occupied the premises jointly with the plaintiff, if he had chosen to do so.”

In Roseboom v. Roseboom it is said : Defendant “ might remain in the occupancy of the whole so long as he did nothing to prevent his co-tenants from occupying with him.” In all the cases just decided it may also be added that the equities were against the party claiming an account for rents.

Here the defendant excluded the plaintiff and chose to occupy the premises, thus, by the use and enjoyment of the premises, receiving the rent. The benefit or rent thus received the court has fixed, and the law assumes that defendant is the plaintiff’s bailiff to this amount. If the defendant elects to receive rent by the use of the premises, what reason is there for holding that he shall not pay his co-tenant his just proportion.

This case is somewhat analogous to that of McCabe v. McCabe (18 Hun, 153). That was an action of partition between tenants in common. The defendants in their answer asked tfiat the plaintiff account for 'liis sole possession of the premises, and for stone quarried therefrom. With regard to quarrying stone, the court says: It “ is a very different act from the occupation of the land or from its cultivation.” The judge further says : “ It may be necessary to adhere to the rule that for mere occupancy the co-tenant shall not be liable to account; but there is no reason to extend that rule to a case where the co-tenant actually consumes or takes off and disposes of a part of the property held in common.” In the case at bar the defendant has appropriated the whole of plaintiff’s to its own use.

We think the findings of fact are abundantly sustained by the proofs, and that the facts do not bring the case strictly within the principle laid down in Woolever v. Knapp, and that the judgment is right, unless the rents should hare been computed from the summer of 1884, when the demand was made by the plaintiff to be let into possession, instead of the date of January 7, 1879. It is evident that a demand would have been futile, and that a failure to make it has not misled the defendant or put it in any worse condition in respect to the premises.

The judgment should be aifirmed, with costs.

Dyeman, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.


text:
    STEPHEN McCARRAGHER, Respondent, v. WILLIAM GASKELL and Others, Appellants.

      Negligence — liability of all the members of a firm for the negligence of one of them — when a disputed question of fact should be submitted to the jury.

    This action was brought by the plaintiff, a journeyman blacksmith, against the defendants, his employers,who were boss blacksmiths, to recover damages alleged to have been occasioned by reason of their negligence. While he was engaged in welding a foot upon a stanchion, both being made of iron, the defendant Greenlie, standing to the plaintiff’s left and rear, suddenly and without warning threw what is called “ cherry welding compound,” a mixture of borax and iron filings, upon the surface of the iron, whereby a sputtering-flux was formed and one of the liquid particles "flew into the plaintiff’s eye, so injuring it that he has lost the sight of it. Opon the trial the evidence was conflicting as to whether or not suddenly throwing this compound upon hot iron without warning was unusual and calculated to produce such an injury.

      Meld, that the question was properly submitted to the jury, as the evidence was such that reasonable men might well differ as to the inferences to be drawn from it.
    That a verdict in favor of the plaintiff would not be disturbed.
    That an exception to the ruling that the copartners of Greenlie could be held liable for his negligent or careless act was not well taken.

      Appeal from a judgment, entered upon the verdict of a jury at the Kings County Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Estes <& Barnard, for the appellants.

      Jam.es B. Bell, for the respondent.
   Pratt, J.:

This is an appeal from a judgment entered upon a verdict rendered in favor of the plaintiff for $1,000, and also from an order dated November 18, 1885, denying defendants’ motion for a new trial upon the minutes in an action for negligence.

On October 10th, 1881, plaintiff, a journeyman blacksmith, was in the employ of the defendants, then boss blacksmiths in New York city. He was engaged in welding a foot upon a stanchion, both being of iron, when the defen'dant, Greenlie, standing to plaintiff’s left and rear, suddenly and without warning, threw what is called “ cherry welding compound,” a mixture of borax and iron-filings, upon the surface of the iron, whereby a sputtei’ing-flux was formed and one of the liquid particles flew into plaintiff’s eye, so injuring it that he has lost the sight of it.

The defendant strenuously contends that the proof shows that the injury received by the plaintiff was one incident to the employment and of which he assumed the risk. It is true, he assumed the ordinary perils which belonged to the work itself, or naturally grew out of it; but there was evidence tending to show, and the jury have so found, that suddenly throwing the compound described upon hot iron, without warning, was unusual and well calculated to produce such an injury. Had a proper warning been given, it is possible the plaintiff might have taken some precaution to avoid the injury. But defendant claims that the proof shows that sparks are liable at all times to fly .when welding iron, and that it is not established that the using of the compound was the cause of the accident; and even if it was, the defendant had a right to use it, as its use was so common and natural, that no warning was required to be given. The difficulty with this contention is, that the jury have found against it upon disputed facts, and the verdict is not so manifestly against the weight of evidence as to justify setting it aside. We think there is evidence from which the jury were authorized to find that plaintiff was in jured by reason of the compound having been used in the manner described.

This question was properly submitted to the jury, as the evidence was such that reasonable men might well differ as to the inferences to be drawn from it. (Thurber v. Harlem, etc., R. R. Co., 60 N. Y., 331; Stackus v. N. Y. C. and H. R. R. R. Co., 79 id., 464; Wait v. Agricultural Ins. Co., 13 Hun, 371.)

To warrant a refusal to submit a case to a jury, it must appear, after conceding that the testimony for plaintiff is true, and after giving him the benefit of all legitimate inferences therefrom, that a verdict in his favor cannot be upheld.

The acts of defendant, Greenlie, were shown to be unusual and unexpected, and were such as justified an inference by the jury, if they believed the evidence introduced by the plaintiff, that the defendant did not act with due care.

The charge was full, fair and unexceptionable, and the damages cannot be said to be excessive.

The exception to the ruling that the copartners of Greenlie could be held liable, was not well taken. (Shearman & Red on Neg., § 39; Parsons on Partnership [3d ed.], chap. VI, p. 163; Stroher v. Eltiny, 97 N. Y., 102.)

We have examined the several exceptions taken upon the trial and to the charge, but find none exhibiting such error as to warrant the granting of a new*trial.

Judgment and order appealed from affirmed, with costs.

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

Judgment and order affirmed, with costs.


author: Pi.ATT, J. :

text:
    LEWIS H. SMITH, Respondent, v. THE GOLD AND STOCK TELEGRAPH COMPANY and THE WESTERN UNION TELEGRAPH COMPANY, Appellants.

      Duty of a corporation, engaged, in a public business, to sene all impartially — when, regulations established by it will be held void as unreasonable — when an injunction will be granted although damages might be recovered in an action at law.

    In this action, brought by the plaintiff, a broker, to restrain the defendant, the Gold and Stock Telegraph Company, from removing from his office a “stock ticker,” which had been placed therein by it under a contract by which the plaintiff was required to pay a rental of ten dollars per month, a temporary injunction was granted restraining the defendant from so doing during the pendency of the action.

      Held, that the order should be affirmed.
    That the defendant, being engaged in a business public in its nature, it must serve the public impartially and render equal service to all those who complied with such reasonable regulations as might be prescribed by it.
    By the contract under which the ticker was put in the plaintiff’s office, he agreed that the defendant might discontinue its service, without notice, whenever, in its judgment, the plaintiff had violated any of the conditions of the contract.

      Held, that this was not a reasonable regulation and afforded no defense to this action, nor was the fact that an action at law for damages would lie in the plaintiff’s favor a defense thereto.
    Appeal from an order made at the Kings County Special Term continuing a temporary in junction during the pendency of this action.
    The action was brought by the plaintiff to restrain the defendants from removing from his office a stock * ticker ” or reporting instrument maintained and operated by the defendant, the Gold and Stock Telegraph Company, and from doing or failing to do any act which would in any way interfere with the receipt by plaintiff of the quotations of the New York Stock Exchange.
    The complaint, in addition to the formal allegations, avers that the Gold and Stock Telegraph Company placed one of its instruments in plaintiff’s office, in consideration of which plaintiff agreed to pay a rental of ten dollars per month. By one of the clauses of the contract the plaintiff agreed that the company might forthwith discontinue its service, without notice, whenever, in its judgment, any breach of the conditions of the contract should have been made by him. The complaint averred that irreparable damage to plaintiff would ensue upon a discontinuance of the quotation service and the removal of the stock “ ticker,” and that the defendants threaten and intend such discontinuance and removal.

      Dillon- ds Swayne, for the appellants.

      J. W. Hawes, for the respondent.
   Pi.ATT, 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 obligations 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 — BaeNAEd, P. J., Dveman and Peatt, JJ

Order affirmed, with costs and.disbursements.


author: Peatt, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. PATRICK J. CARLIN, Appellant, v. THE BOARD OF SUPERVISORS OF KINGS COUNTY, Respondent.

      Right of a hoard of supervisors, compelled to advertise for proposals and to awm'd the contract to the lowest bidder, to reserve a right to reject bids — 1884, chap. 230, sec. 3.
    Section 3 of chapter 230 of 1884, prbviding for .the purchase of a county farm and the erection of buildings- thereon by the board of supervisors of Kings county, directs that, whenever the plan and specifications shall be approved by the said board of supervisors “zt shall advertise, as now provided bylaw, for proposals for the erection of the buildings and improvements thereby contemplated to be erected and made, and shall award the contract to the lowest responsible bidder or bidders.” Under this act the board advertised for sealed proposals and reserved the right to reject any and all bids. The relator and others submitted proposals for separate portions of the work. A portion of the work was awarded to the relator, but a number of his bids were rejected.
    Claiming that the board had no power to annex to their advertisement the condition reserving the right to reject any and all bids, the relator moved for a peremptory mandamus to compel the board to accept the rejected bids.

      Held, that even if the board had no authority to annex this condition, yet, as it did in fact do it, the relator, who made his bids under the advertisement containing it, could not complain that the board exercised the right so reserved against him.
    That the statute was intended to be beneficial to the county, and if such a construction could be spelled out of its terms, it was the duty of the court to be sedulous in giving it such an interpretation.

      It seems, that the fair interpretation of the act is that when the contract is awarded it shall be to the lowest bidder.
    Appeal by the relator from an order entered in Kings county, denying a motion for a peremptory mandamus.

    The relator claimed tó be entitled to the relief sought, by virtue of the provisions of section 3 of chapter 230 of 1884, providing for the purchase of a county farm and the erection of buildings thereon by the supervisors of Kings county, which directs that “ whenever any such plan, or plans and specifications, shall be approved by the said board of supervisors, it shall advertise, as now provided by law, for proposals for the erection of the buildings and improvements thereby contemplated to be erected and made, and shall award the contract to the lowest responsible bidder or bidders. But the work so to be done may be let in one or more contracts as to the said board of supervisors shall seem for the best interests of the county.”

      William M. Dykman, for the appellant,

      John B. Meyenborg, for the respondent..
   Peatt, J.:

The relator moved for a peremptory mandamus to compel the respondents to contract with him for sixteen cottages, two boilers and a donkey engine. Under chapter 230 of the Laws of 1884 the board of supervisors advertised for sealed proposals, and reserved the right to reject any and all bids. The relator and a number of others submitted proposals for separate portions of the work, and a portion of the work was awarded to the relator, but a number of his bids were rejected. It is claimed by the relator that the board of supervisors had no power under the statute to annex the condition to their advisement, of reserving the right to reject any bid, but having once advertised for proposals, were bound to award the contract to the lowest responsible bidder. It is not necessary to decide whpther the respondents had that power or not. The fact is that they did it, and the relator having made his bids under such advertisement, he cannot complain that they exercised the right he so conceded to them. It was the plain condition of his bid that the board might reject it, and having given his assent to such rejection, he cannot challenge their power to exercise the right. The plain object of the statute was to prevent the supervisors from arbitrarily awarding a contract to any one except the lowest responsible bidder. There is no restriction as to the form or the number •of times of advertising; but the statute contemplated that there should be competition, and that the contract should in the end be awarded to the lowest bidder. The statute was intended to be beneficial to the county, and if such a construction can be spelled out of its terms, it is the duty of the court to be sedulous in giving it such an interpretation.

If the respondents had the power only to make one advertisement, and were bound to award a contract if there was only one bid, the county might be subjected to the most- glaring fraud. By using the terms “ the lowest bidder,” the intent of the statute that there should be competition is manifest. If there is no bid with which a comparison can be made, how can it be said that a bid is the lowest; and if there is no lowest bid, how can the contract be awarded ?

The return shows that the relator was the only bidder upon portions of the work where his bid was rejected. He was, therefore, not the lowest bidder within the meaning of the statute. He might be called the highest bidder as well as the lowest bidder. It seems to me that a fair interpretation of the act is that when the contract is awarded it shall be to the lowest bidder.

It does not seem possible that the legislature intended to take from the local law making power, i. <?., the board of supervisors, all discretion as to the making of contracts for the people of the county. Suppose, from accident or design, it should happen that there was but one bid, and that was for grossly exorbitant prices, could it be claimed that the board of supervisors must, nevertheless, award 'the contract ? Such a construction would turn a statute intended for the protection of the public into an instrument of fraud and robbery.

Under the facts disclosed we think the respondents had the power and did right in rejecting the relator’s proposals, and the order is accordingly affirmed, with costs and disbursements.

Present — BaknARD, P. J., and Pbatt, J.; Dykman, J., not sitting.

Order denying mcmdamus affirmed, with costs.


author: Dyeman, J.:

text:
    COLLIS P. HUNTINGTON, Respondent, v. HENRY Y ATTRILL and WILLIAM K. SOUTTER, Appellants.

      False certificate as to the stock of a company being paid in full —1875, chap. 611, sec. 21 — overvaluation of property purchased by a company andpaidfor in stock.

    In the month of July, 1879, the defendant, Attrill, purchased from one Littlejohn a tract of land containing about 140 aores for $80,000; he paid $8,000 in cash and the balance was secured by a purchase-money mortgage upon the premises. In February, 1880, the Rockaway Beach Improvement Company was incorporated under the act of 1875, the capital stock being fixed at $700,000, the defendants Attrill and Soutter being two of the .commissioners named to receive subscriptions therefor. On April thirteenth the company resolved to purchase the property for the sum of $700,000, in payment of which all the capital stock of the company was issued to the defendant Attrill, no part thereof being paid in cash. Attrill conveyed the property to the company, subject to the purchase-money mortgage, by a deed dated April first, acknowledged April tenth and recorded April seventeenth. On June 30, 1880, the defendants and others, who were directors of the company, subscribed and swore to a certificate stating that the amount of capital stock paid in full was the sum of $700,000, the full amount of the capital stock of the company.
    In this action brought against the defendants by the plaintiff to recover the debt due to him from the company, upon the ground that the said certificate was false, a judgment was entered in his favor.

      Held, that it should be affirmed, as the evidence given upon the trial justified the jury in finding that the defendants had willfully and intentionally fabricated a false certificate.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the verdict of a jury at the Kings County Circuit, and from an order denying a motion for a new trial.

      Coles Morns, Delos McCurdy and Miohael H. Cardozo, for the appellants.

      B. F. Tracy, for the respondent.
   Dyeman, J.:

The Rockaway Beach Improvement Company was constituted in pursuance of the provisions of an act of the legislature designed to provide for the organization of business corporations, and passed June 21, 1875. The certificate of incorporation required by the statute, to give life to the company, was filed in the office of the Secretary of State, on the 18th day of February, 1880, and on the 15th day of June, 1880, the plaintiff in this action loaned to the company the sum of $100,000. •

As an evidence of the debt and a promise' for its payment, the plaintiff received a promissory note for the full amount, made by B. E Smith, payable to the order of the Rockaway Beach Improvement Company (Limited), on demand, with interest at six per cent per annum, and indorsed as follows: “ The Rockaway Beach Improvement Company (Limited), by B. E. Smith, General Manager, 139 Broadway.”

The money was received by the corporation and expended for its benefit. As security for the payment of the loan, the plaintiff received $200,000 of the bonds of the company, for which it would seem he realized the sum of $932, and this action is brought for the recovery of the balance due on the loan, and it is based on the folio wing facts:

In the month of July, 1879, the defendant, Attrill, purchased from Littlejohn a plot of land containing about M0 acres, for the consideration of $80,000. He paid $8,000 of that sum in cash, and executed a purchase-money mortgage upon the property, as security for the payment of the remainder. The amount of the capital stock of the company was $700,000, and the defendant Attrill sold and conveyed the premises purchased by him of Littlejohn, minus twenty-one acres, subject to the mortgage of $72,000 which the company assumed for the consideration of $700,000, and received his pay in the stock of the corporation, all o'f which was issued to him. His deed of conveyance to the corporation bears date April 1,1880; it was acknowledged on the tenth day of April, and recorded on the seventeenth day of the same month. On the 13th day of April, 1880, it was resolved by the company to purchase the property for the sum of $700,000, payable one-half in the stock of the company and the other half in cash, although Mr. Attrill testified that he knew-nothing of that proposition to pay him one-lialf of the purchase-money in cash until after the delivery of his deed.

No question arises upon these unimportant details, and the counsel for the appellants says in his points that no part of the capital stock of the company was paid in cash, and that it was all issued to the defendant, Attrill, in payment for the land conveyed by him to the company. So that fact is to be taken as settled. On the 26th day of February, 1880, the defendants and others were elected directors of the company for the first year.

After the consummation of the sale to the corporation, and on the 30th day of June, 1880, the defendants and others subscribed and swore to a certificate of full paid stock, in which they stated that the amount of capital paid in full was the sum of $700,000, the full amount of'the capital stock of the company.

Although that certificate was not literally true, yet it would have been constructively true and permissible under the statute, if the property conveyed by the defendant Attrill to the company was rceeived for the use and legitimate purposes of the corporation at its fair value. (Section lé of the law.)

So, conversely, the certificate was false if the property, at the time of its conveyance to the company, was not fairly worth the sum of $772,000, and that is the claim of the plaintiff ; nay more, the charge against the defendants is, that they made an excessive valuation of the property intentionally and purposely, and so brought themselves under the condemnation and penalty prescribed by the twenty-first section of the law reading as follows: If any certificate or report made, or public notice- given- by the officers of any such corporation, shall be false in any material representation, all the officers who shall have signed the same shall be jointly and severally liable for all the debts of the corporation contracted while they are officers thereof.”

These defendants are brought precisely within that section, and if they willfully and intentionally fabricated a false certificate of full paid stock, as the plaintiff insists they did, then this action against them may be maintained on that ground.

So the question upon which the liability of the defendant was suspended was the intentional falsity of the certificate, and that depended upon the question in its rear — whether the property was purposely taken in at an excessive valuation. Most of the evidence adduced on the trial was aimed at that question, and a review of the testimony discloses but little encouragement to the defendants.

It woidd seem to require a jury, possessed of almost infantile credulity, to find that these defendants and their associates, endowed with intelligence and under control of their faculties, and their experience, could honestly believe that the property conveyed was fairly worth the enormous sum of $772,000.

The charge of, the trial judge was favorable to the defendants; and imposed upon the plaintiff a burden which was heavy almost beyond the requirements of the law, but which he sustained so successfully as to obtain the verdict of the jury under the pressure of its heavy weight, and the verdict is well supported by the evidence.

The scheme conceived by these defendants and their associates, and partially carried into execution, is almost beyond the imagination of prudent men, and verges into folly, and if courts and juries fail to allow them credit for honest motives, the failure results from inherent difficulties which seem to be insurmountable.

The result may be unfortunate for these defendants, but their difficulties seem to be radical and beyond remedy. We cannot interfere with the judgment.

We have examined all the exceptions of the defendants disclosed by the record with a care commensurate with the importance of the case, and we discover no error. ,

The judgment should be affirmed, with costs.

Barnard, P. J., concurred.

Judgment and order denying new trial affirmed, with costs.


author: Dykman, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM B. ASHLEY, Appellant, v. THE COMMISSIONERS OF HIGHWAYS OF THE TOWN OF EAST FISHKILL, Respondent.

      Laying out and opening of a highway— Commissioners of highways will not be compelled to do so, if the public will derive no benefit from it.

    The dwelling-house and out-buildings of the relator are located about 875 feet northerly of a public highway in the town of East Fishkill, access thereto being obtained by means of a private way across the land of another private owner, and the land of a railroad company. In 1886 proceedings were instituted by the relator to procure a public highway two rods wide from his residence to the old road, and all the steps and measures required by the law were taken for that purpose and the jury certified to'the necessity of the improvement, and the certificate of the jury was delivered to the commissioners of highways of the town, who forthwith filed it with the town clerk.
    The relator thereupon released all claim for damages to result from the improvement, and agreed to fence the road and indemnify the town against all damages and all expenses of litigation. The highway commissioners having refused to lay out the road, the relator applied for a peremptory writ of mandamus commanding them to do so.

      Held, that the motion was properly denied, as it appeared that the road, if laid out and opened, would be beneficial to the relator only and not to the general public, while the burden of its construction and maintenance would be imposed upon the town.
    Appeal from an order made at the Dutchess County Special Term denying a motion made by the relator for a peremptory mandamus requiring the commissioners of highways of the town of East Fishkill to lay out a certain highway in said town, as determined by the certificate of eleven jurors filed in the office of the clerk of said town on February 6, 1886.

      Herrick c& losey, for the appellant.

      O. D. M. Baker, for the commissioners, respondents.

      W. O. Anthony, for the New York and New England Railroad Company.
   Dykman, J.:

The dwelling-house and out-buildings of the relator are located on the northerly side of a public highway in the town of East Fish-kill, and about 375 feet therefrom. Access to his residence from that highway is now obtained by him by means of a private way across the land of another private owner and the land of the New England Railroad Company. His way is laid across the railroad at grade, and also across a natural stream of water, about fifteen feet in width. It is two rods wide, and gates are maintained upon it on each side of the track of the railroad.

In the month of January, 1886, proceedings were instituted by the relator to procure a public highway, two rods wide, from his residence to the old road, and all the steps and measures required by the law were taken for that purpose, and the jury certified to the necessity o-f the improvement and delivered the certificate of the jury to the commissioners of highways of the town, and they forthwith filed it with the town clerk. The relator thereupon released all claim for damages to result from the improvement, and agreed to fence the road and indemnify the town against all damages and all expenses of litigation. Still the highway commissioners refused to lay out the road, and the relator applied to the Special Term for a peremptory writ of mandamus which should command them to do so, and his motion was denied, and he appealed from the order of denial.

From the foregoing statement it is plainly seen that the commissioners of highways are subserving the interest of their town by refusing to follow the certificate of the jury and lay out the proposed highway. If laid out and opened it would be beneficial to the relator alone, and not to the general public, and the burden of its construction and maintenance would be imposed upon the town for the accommodation of one person. It is true the relator has executed a personal undertaking to defray the expenses of the improvement, but.the validity of the instrument is quite doubtful) and in our view it should be allowed no influence. The highway, if constructed, would be substantially for a private purpose, to furnish the relator with an unobstructed way from his house to the road, and in our view the compulsory power of this court should not be exerted for the accomplishment of that object.

Our conclusion, therefore, is that the public interests and the purposes of justice will be best subserved by withholding the writ. This view renders further examination of the questions involved unnecessary, and we think the order should be affirmed, with ten dollars costs and disbursements.

Pratt, J., concurred in result; Barnard, P. J., not sitting.

Order affirmed, with ten dollars costs, besides disbursements.


author: Dykman, J.: JPratt, J.:

text:
    JAMES E. MUNGER, Respondent, v. GEORGE B. CURTIS and EUPHEMIA, his Wife, THE MECHANICS’ SAVINGS BANK OF FISHKILL-ON-THE-HUDSON and Others, Appellants.

      Mechanicsf lien — does not exist until notice is filed — it only affects such interest as the owner then has —1885, chap¡ 342.
    On June 18,1886, a building -which the plaintiff had erected under a contract made with the defendant Curtis was accepted by the latter. On that day, at about two o’clock in the afternoon, the defendant Curtis and his wife executed a mortgage upon the premises for the sum of $900 to a savings bank, and received from the bank that amount. The savings bank sent the mortgage by mail to the county clerk, at Poughkeepsie, who received it at seven o’clock p. m. on June nineteenth. On June twenty-first, at eight a. m., the plaintiff filed a mechanics’ lien upon the same premises.

      Reid, that the lien of the mortgage was entitled to priority over that of the plaintiff.
    That the fact that the bank knew that the plaintiff had not been paid did not affect its right to such priority, in the absence of proof that it colluded with Curtis to defeat the claim and lien of the plaintiff.
    Appeal from a judgment, entered in Dutchess county upon the trial of this action by the court without a jury.
    The action was brought to foreclose a mechanics’ lien upon land in Matteawan, in the county of Dutchess, N. Y.
    The plaintiff and the defendant Curtis entered into a contract by which the plaintiff was to furnish materials and do the carpenter-work in building a house on land described in the complaint for $850.40, to be paid when the building was completed. The building was completed on the 18th of June, 1886, and accepted by the defendant Curtis.
    On the 18th day of June, 1886, defendant Curtis and his wife-executed a mortgage on the said premises to the defendant the-Mechanics’ Savings Bank, for $900. The bond and mortgage were delivered to the bank by Curtis at two o’clock in the afternoon of the nineteenth day of June, and the amount of the mortgage was then paid by the bank to him. The defendant Curtis, after receiving the $900 from the bank, absconded without paying the plaintiff. The savings bank sent the mortgage by mail to the county clerk’s office at Poughkeepsie for record, where it was filed, for record, at seven o’clock, p. m., on the nineteenth day of June. On the 18th day of June, 1886, the defendant Curtis executed a. mortgage to Tallardy and Aldridge for $300 on the same premises, and which was filed in the Dutchess county clerk’s office, for record, on the 21st day of June, 1886, at seven o’clock and thirty minutes a. m.
    On the 21st day of June, 1886, the plaintiff filed a mechanics’ lien in said clerk’s office upon the same premises at eight o’clock a. m. of that day, to secure the payment of his claim of $850.40, and brought this action to foreclose his. lien, claiming his lien to be prior to both of said mortgages.
    On the trial judgment was rendered to the effect that said mechanics’ lien was the first lien on said premises; that the savings bank mortgage was the second lien; and the Tallardy and Aldridge mortgage was the third lien.

      II. H. Rustís, for savings bank, appellants.

      Wm. II. Woodin, for the respondent.
   Dykman, J.:

This is an action to foreclose a mechanics’ lien, under the provision of chapter 342 of the Laws of 1885. The first section of that law provides that any person who shall perform labor or furnish materials in the erection of a house may, upon filing the notice of lien prescribed in the fourth section, have a lien for the price and value of the same upon the house and premises, to the extent of the right, title and'interest of the owner existing at that time.

Under that law, therefore, a person furnishing labor and materials for the erection of any structure specified therein becomes a creditor-at-large, with a claim which may ripen into a lien, but he acquires no lien upon the premises until he files the requisite notice prescribed for that purpose. If previous to the time of filing such notice of lien the title to the premises has become vested in another, he can acquire no lien, and his rights in that respect are cut off and lost. So if the premises are incumbered by a mortgage to a Iona fide creditor, his claim is subordinate to the lien created thereby.. These principles have always been recognized, and they seem to control this case.

The mortgage to the Mechanics’ Savings Bank was honest, and although all the parties assumed that the money procured thereon would be appropriated to the payment of the claim of the plaintiff, yet the bank in no way undertook to make such application, and the law imposed no obligation upon it to do so. Section 2 of the Laws of 1885 has no application to such a case as this, and affords the plaintiff no relief. The equities of the parties are equal, and the plaintiff can secure only the relief afforded him by the provisions of the law, and that furnishes him no rights prior or superior to the lien of the bank mortgage.

The judgment should be reversed and a new trial granted, without costs.

JPratt, J.:

It does not seem to me that section 2 of chapter 342 of the Laws of 1885 has any application to the facts disclosed in this case. No fraud on the part of the defendant, the Mechanics’ Savings Bank, is shown. It is not necessary to construe that section, as no part of it was intended to cover a case like the one in hand. That section only applies to cases where the money is paid, or the incumbrance is put on by collusion with the owner for the purpose of defrauding the contractor or sub-contractor.

It is the settled law that a mechanics’ lien only attaches to the extent of the interest of the owner at the time the notice of lien is filed.

The mortgage to the savings bank was executed on the 19th of June, 1886, and the notice of lien was not filed until June twenty-first thereafter, hence the lien only attached to the equity o.f redemption then held by Curtis. (Payne v. Wilson, 11 Hun, 305 ; S. C., 74 N. Y., 355.)

The latter case holds, that a person entitled to a mechanics’ lien acquires no specific lien until lie files his notice; up to that time he is a general creditor, with no greater equities than other general creditors, and he is affected by all equities in favor of those dealing with his debtor.

A lien will not cut off or affect a prior unrecorded mortgage made in good faith, and hence the struggle here over the question of priority of recording the mortgage and filing the notice of lien was unnecessary. The mortgage was executed and delivered, and the money paid prior to filing the notice of lien, and the equity of the mortgagee attached prior to the lien without reference to the recording act.

In the absence of proof that the bank colluded with Curtis to defeat the claim and lien of the plaintiff, and that its mortgage consequently was fraudulent and void, the mortgage is entitled to priority.

The fact that the bank knew the plaintiff had not been paid was immaterial. Any person has a light, in good faith, to loan money and take security from a party who is indebted to others, and a general creditor has a right to obtain security for his debt in preference to other general creditors.

The good faith of the bank here, cannot be questioned. The money raised upon the mortgage was stated by Curtis to be applied to pay off his debt to the plaintiff. The bank has as good a right to trust Curtis as the plaintiff had; the fact that he turned out to be dishonest is not the fault of the bank. The plaintiff knew that Curtis was to get the money from the savings bank, and he must have known that he could only get it by giving a mortgage. It is clear to my mind that this case falls within the principle stated in the case of Payne v. Wilson (74 N. A. 355).

The judgment should be reversed and new trial granted, without costs.

Present — Dykman and Pratt, J.; Barnard, P. J., not sitting.

Judgment reversed and new trial granted, without costs.


text:
    AARON S. ROBBINS, Respondent, v. JOEL J. AUSTIN, Appellant.

      Deed — when one executed by an attorney, “Francis Meriam, attorney, by Eliza Meriam,” will be held to pass the title of Eliza Meriam, the principal.

    A deed "began: “This indenture, made the ninth day of June, one thousand eight hundred and seventy-four, between Eliza Meriam of * * * by Francis Meriam, her attorney, under and by virtue of a certain power.” The attestation clause was as follows : “ In witness whereof the said party of the first part by her attorney has hereunto set her hand and seal the day and year first above written.” It was signed “ Francis Meriam, attorney, by Eliza Meriam.”

      Held, that as the instrument showed, by its terms, that it was the deed of Eliza Meriam who was the owner of the fee, it conveyed a good title.

      Wilks v. Back (2 East., 143) followed; Townsend v. Corning (23 Wend., 435) and Spencer v. Field (10 id., 88) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe trial of this action at the Kings County Special Term by the court without a jury.

      George O. Case, for the appellant.

      John Z. Lott, for the respondent.
   Pratt, J.:

This is an action for the specific performance of a contract for the exchange of land. The only question involved is the execution of the deed from Eliza Meriam to William A. Bradley, through which the plaintiff claims title. The deed begins: “ This indenture, made the ninth day of June, one thousand "eight hundred and seventy-four, between Eliza Meriam, of (etc.), by Erancis Meriam, her attorney, under and by virtue of a certain power.” The attestation clause is: “ In witness whereof the said party of the first part, by her attorney, hath hereunto set her hand and seal the day and year first above written; ” signed “ Francis Meriam, attorney, by Eliza Meriam.”

We think this deed conveys a good title. The instrument fairly shows by its terms that it was the deed of Eliza Meriam, owner of the fee. The grant purports to be the grant of the principal, and the attestation clause shows that the principal is attesting to it her hand, her seal. This complies with the requirements of the law. In Wilks v. Back (2 East, 142) it was held that the signature, for James Brown, Mathias "Wilks,” was a good execution by Brown, and that authority is not overruled by any authority in this State, but is recognized law. (See Townsend v. Corning, 23 Wend., 435.)

In Wilks v. Back, Justice Grouse says: “ I accede to the doctrine in all the cases cited, that an attorney must execute his power in the name of his principal, and not in his owU name; but here it was so done, for where is the difference between signing T. B. by M. W., his attorney, which must be admitted to be good, and M. W. for T. B. In either case the act o.f sealing and delivery is done in the name of the principal, and by his authority, and whether the attorney put the name first or last cannot affect the validity of the act done.”

The cases upon which the defendant relies, namely: Townsend v. Corning (23 Wend., 435) and Spencer v. Field (10 id., page 88), do not contravene this doctrine, as in that ease the deed was signed merely by the attorney, Harvey Baldwin; neither the hand nor seal of the grantor purport to be affixed to the instrument, and for that defect it was held invalid. (Jones v. Carter, 4 Hen. & M., 196.) A deed executed by “Bushrod Washington, attorney for Carter,” was held to be good.

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


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

text:
    JOHN LIBBEY, Appellant, v. EMMA J. MASON, Respondent.

      Letters of administration — when they may he granted without issuing a citation to non-residents — Code of Civil Procedure, sea. 2662.
    Lydia C. Libbey, a resident of the city of Brooklyn, died there intestate, leaving a daughter,. Emma, who then resided in that city, and a husband, who resided in the State of Maine. The daughter presented a petition to the surrogate praying that letters of administration upon her mother’s estate might be issued to her. A few days thereafter the husband presented a similar petition asking that letters be issued to him. The surrogate granted letters to the daughter.

      Held, that as it appeared that the husband was a non-resident the surrogate was authorized, by section 2662 of the Code of Civil Procedure, to grant the letters to the daughter on the presentation of her petition, without issuing any citation to the husband.
    That he could exercise this power as well after as before the filing of the petition of the husband.
    That the non-residence of the husband was decisively established by the fact that he voted regularly in the State of Maine, where he owned a small place and was accustomed to pass most of his time.
    Appeal from an order of the surrogate of Kings county refusing to grant letters of administration to the plaintiff, the husband of the intestate, and granting them to the defendant, her married daughter.
    For a statement of the facts see the opinion of Dykman, J.

      Ghauncey B. liijyley and A. B. Tappan, for the appellant.

      Nathaniel B. Coohe, for the respondent;
   Barnard, P. J.:

The conclusion of the surrogate, that the petitioner Libbey is a resident of the State of Maine, is well supported by the evidence. The proof shows that he owns a small place in Orono, Penobscot county, in that State. That he has been accustomed to pass most of the time there, and above all, that he has voted regularly in that State. This is a decisive proof of residence under the laws of Maine, as well as under our laws. The evidence also shows that the petitioner Mason resides in Brooklyn, N. Y.— a temporary change of domicile, for the purpose of educating her children. (Dupuy v. Wurtz, 53 N. Y., 556.)

The whole question, then, is whether the granting of the letter to Mrs. Emma Mason was proper.

The petitioner Libbey was the husband of Lydia C. Libbey, the deceased, intestate. The petitioner, Mrs. Mason, was the daughter (only daughter) of the intestate. The husband, by the Revised Statutes, had the better right. (3 R. S. [7th ed.], 2290, § 27.)

By the Code of Civil Procedure, however, it is provided that nonresidents of equal or better right than a petitioner, to administration upon the estate of a deceased person, need not be cited, and that when it is not necessary to cite a person, letters may be granted to a petitioner. (Sec. 2662.)

The petition of Mrs. Mason was presented to the surrogate, and no citation was issued to the husband. Letters to her were, therefore, properly granted under this section, if the husband was a resident of the Sf&te of Maine, about which fact there is no doubt. His petition, even if made before the actual granting of letters to Mrs. Mason, had no relevancy beyond the fact that he declared himself therein, to be a resident of Kings County, N. Y. If that was true, then a citation should have been issued to him; but it was not the fact, and the petition failed.

The surrogate’s decree was, therefore, right, and should be affirmed, with costs.

Pratt, J., concurred

Dykman, J.:

Lydia C. Libbey resided in Brooklyn and died there intestate, leaving Emma J. Mason, her only child, who resided in Brooklyn at the time of her mother’s death, and now resides in the city of New York, and John Libbey, her husband, who resides in the State of Maine.

Emma J. Mason presented a petition to the surrogate of Kings county praying for the issuance of letters of administration upon her mother’s estate to her. A few days subsequently John Libbey, the husband, also presented a similar petition to the surrogate, who thereupon decided that letters should issue to the daughter. From that decree the husband has appealed.

Section 2662 of the Code of Civil Procedure is this: Every person being a resident of the State who has a right to administration, prior or equal to that of the petitioner, and who has not renounced, must be cited upon a petition for letters of administration. The surrogate may, in his discretion, issue a citation to non-residents, or those who have renounced, or to any or all other persons interested in the estate whom he thinks proper to cite. Where it is not necessary to cite any person, a decree granting to the petitioner letters, may be made upon presentation of the petition.”

Under the law it was not incumbent upon the surrogate to issue a citation to the husband, and it was entirely within his competence and discretion to issue letters to the daughter immediately upon the presentation of her petition. The failure to issue letters to the daughter previous to the • presentation of the petition of the hus- ■ band did not divest the surrogate of his discretion, and he could exercise the same thereafter as well as theretofore.

We do not find that the discretion of the surrogate was improperly exercised, and the decree should be affirmed, with costs to be paid by the appellant personally.

Order affirmed, with costs.


author: Cullen, J.: Dykman, J.

text:
    GEORGE ALDRIDGE and PATRICK W. CARLIN, Appellants, v. JOHN F. CLAUSEN, Respondent.

      Buies for navigation of vessels — when a vessel is to be considered asan “ overtaking ” and, not a “crossing" vessel, within the meaning of Navigation Bules 17, 22, 23 and 24
    This action was brought to recover damages sustained by the plaintiffs’ sloop by a collision with the defendant’s lighter in the East river. Both vessels were beating up the fiver with the wind dead ahead, and at the time of the collision both were on the starboard tack, the lighter being to the windward. The sloop entered the East river after the lighter, and sailed faster than the lighter and closer to the wind. The captain of the sloop finding that she could not cross airead or at the stern of a tug and her tow, which were also going up the river, caused her helm to be put down and signaled to the lighter to go about, which it attempted to do, but did' not succeed in accomplishing in time to avoid a col • lision with the sloop. There was nothing in the evidence fixing, with even approximate accuracy, the difference in the courses of the vessels.

      Held, that even if it were assumed that there was a difference of three points between the courses of the vessels, the sloop was to be considered as an overtaking vessel, and not as a crossing vessel, within the meaning of these terms as used in the navigation rules, and was bound to keep out of the way of the lighter. (.Dykman, J., dissenting.)

      The Clement (1 Sprague, 257); The Cayuga (14 Wall., 270);' The Peekforton Castle (2 Prob. Div., 222) distinguished.
    Appeal from a judgment dismissing the complaitit, entered in Dutchess county upon the trial of this action by the] court without a jury.
    The suit is for damages caused by a collision in the East river, which occurred in October, 1883, between the plaintiffs’ sloop and the defendant’s lighter. Both vessels were beating up the East river, with the wind nearly dead ahead, and with a flood tide. The sloop was the faster vessel. Both tacked on the Brooklyn shore, the lighter about abreast of Gold street and the sloop about abreast of Pearl street. The lighter could not lie so close to the wind as the sloop did, and, moreover, after the lighter was headed off from Brooklyn she starboarded her helm to get under the stern of a tug with four schooners in tow, two on each side, which was also going up the river. The sloop kept her course without change until she also approached the tug and tow, when, finding that she could not cross ahead of them by keeping on, and that she could not get under their sterns by keeping off, her helm was put down and she came up into the wind and lay in stays. The lighter, which was approaching the sloop’s starboard side, was hailed to go about, and after a period she attempted to do so, but not in season to avoid the sloop.
    The rules for avoiding collisions, passed by congress (U. S. Rev. Stat., § 4288), furnish the law by which these two vessels were to be guided in their navigation, and according to which the rights of the parties must be determined. The plaintiffs claimed that the rules applicable are the seventeenth, twenty-third and twenty-fourth, which are as follows:
    Rule 17. When two sail vessels are crossing so as to involve risk of collision, then, if they have the wind on different sides, the vessel with the wind on the port side shall keep out of the way of the vessel with the wind on the starboard side, except in the case in which the vessel with the wind on the port side is close hauled and the other vessel free, in which case the latter vessel shall keep out of the way. But if they have the wind on the same side, or if one of them has the wind aft, the vessel which is to windward shall keep out of the way of the vessel which is to leeward.
    Rule 23. Where, by Rules 17, 19, 20 and 22, one of two vessels shall keep out of the way, the other shall keep her course, subject to the qualifications of Rule 24.

    Rule 24. Tn construing and obeying these rules, due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case, rendering a departure from them necessary in order to avoid immediate danger.

      The defendant claimed that the rule applicable is the twenty-second rule, which is as follows: “Every vessel overtaking any other vessel shall keep out of the way of the last mentioned vessel.” The judge below sustained this contention, and held that the sloop was an overtaking vessel, and that she was bound to keep out of the way of the lighter, and that, having failed to do so, she contributed to the collision.

      H. H. Hustis and R. D. Benedict, for the appellants.

      Edwin Q. Davis, for the respondent.
   Cullen, J.:

This appeal is from a judgment dismissing the complaint on a trial before a justice of this court, without a jury. It is doubtful whether the exceptions of the plaintiffs are sufficient to raise any question on this appeal, because the trial justice was not requested to find any facts on which a recovery by the plaintiffs could be predicated, and hence, of course, no exceptions were taken to any refusals by the court to find such facts. However, we are disposed to pass over this question and examine the ease on the merits to see if there was an error committed by the trial court.

This action was brought to recover damages sustained by the plaintiffs’ sloop by a collision with the defendant’s lighter in the East river. Both vessels were beating up the river with the wind dead ahead, and at the time of the collision both were- on the starboard tack, the lighter being to the windward. The sloop entered the East river after the lighter, and not only sailed faster than the lighter, but also closer to the wind. The main point involved in this controversy is whether, at the time of the collision, the sloop is to be considered with reference to the lighter as an overtaking vessel or a crossing vessel. If an overtaking vessel then, under the twenty-second navigation rule, it was the duty of the sloop to have kept out of the way of the lighter. If the vessels are to be considered as crossing, then, both having the wind on the same side, the windward vessel, that is, the lighter, was bound, under the seventeenth rule, to keep out of the way of the sloop.

The contention of the plaintiffs as to the fact, is that there were three or four points difference between the courses of the two vesseis, and as to the law, is that such a difference makes the sloop a crossing vessel, instead of an overtaking vessel. As to the question of fact, here also the plaintiffs’ case is defective. There seems to be nothing in the evidence fixing, with even approximate accuracy, the difference in the courses of the vessels. The seventh finding of fact is that the lighter could not lie within several points as near the wind as the sloop, but there is no finding determining the absolute courses of the vessels. But, if it be assumed that there was a difference of three points between the courses of the vessels, still we are of opinion that the sloop was an overtaking vessel, and not a crossing vessel, within the navigation rules.

Three cases are cited by the plaintiff to sustain the claim that such a divergence of course constitutes a crossing vessel. The first is the case of the Clement (1 Sprague, 257). In that case there was a difference of only two points between the courses of the vessels, and the vessel to windward was held in fault in not keeping out of the way of the leeward vessel. But this decision, which arose before the navigation rules, was based solely on the ground that the windward vessel had the wind free, and not with reference to the fact that the vessels were to be considered as crossing.

The second is the case of the Cayuga (14 Wallace, 270). In this case the difference between the courses of the vessels was over three points, and the case was held to be one of crossing vessels. The court held that the rule as to overtaking vessels did not apply; because, at the time precautions first became necessary, the distance between the vessels on a line at right anglés to their courses was very great and the steamers nearly abreast.

The third is the case of the Peckforton Castle (2 Prob. Div., 222). Here, also, the question arose whether it was to be considered a case ®f a crossing or overtaking vessel. The Admiralty court found the divergence or difference of the courses to be four points, but based its decision on the ground that the windward vessel had the wind free, and should therefore have avoided the collision. On appeal (3 Prob. Div., 11), the court held that the difference of course was at least five points, and that the Peelcforton Castle had never been seen from the colliding ship in any direction abaft her beam, and that, hence, it was strictly a case of crossing vessels, in which it was the duty of the windward vessel to avoid the other.

It Vill thus be seen that the cases cited (the last two of which only are in point), do not attempt to define what is a crossing vessel with regard solely to the difference of their courses. Nor can I find any case in which the difference of the courses is made the sole controlling element. In the case of the Franconia (2 Prob. Div., 12) the question, also, arose whether the case was to be considered one of crossing ships or of an overtaking ship. The court there say : “ The rule as to crossing ships uses that term as a term of navigation, not as a mathematical term ; and so, when the rule speaks of one ship overtaking another, it is a sea and not a mathematical term.” It then proceeds to hold that a vessel will be considered an overtaking vessel, if the hinder vessel is so far astern that it cannot see the side lights of the forward ship, even though their courses be not parallel. But, in all these cases the vessels were in comparatively broad waters, and not going in the same general direction. In the ease of the Cayuga, the steamers were crossing the river from opposite sides. In the case of the Peckf orton Castle, the vessels were at sea at the end of the English channel, one bound up the channel and the other down. The rules held applicable in those cases cannot fairly apply to the navigation of a narrow river or arm of the sea. In such a case, it seems to us, that in determining whether a vessel is overtaking or crossing, regard must be had to the general direction of the vessels, whether up or down the river, and not altogether to the courses on which they may be running at a particular moment. The narrow and tortuous channels of rivers in this country oftentimes compel a vessel to change its course frequently and in the shortest distances. If such’ change of course is to determine the application of the rules of navigation, it would follow that the rules controlling the movements of vessels would be continuously changing as the vessel navigates the river, which would produce great confusion. This, we think, should not be the construction of the rule; but, if the vessels are going up the river, the one down the river should be considered an overtaking vessel, regardless of their courses. The plaintiff himself seems to have regarded the lighter as ahead of him, for he says in his testimony, when we came around the Battery, we saw the lighter Billow ahead. * * * We stood close to the Brooklyn shore, and the lighter Billow was ahead of us a little way.”. The Velocity (L. R., 3 P. C., 44), and the Ranger (L. R., 4 P. C., 519), are both authorities to the effect that, in a winding and crowded river like the Thames, a particular direction taken for a few moments, to round a corner or avoid an obstacle, is not such an indication of the real course of a skip as to make her case, with reference to another ship, that of a crossing vessel.

We are, therefore, of the opinion that as both vessels were beating up the river and on the same tack, the sloop is to be considered an overtaking vessel, within the rules of navigation, regardless of the difference of their courses, and that, hence, it was her duty to have avoided the lighter; and that the collision was due to her (the sloop’s) fault.

Judgment should be affirmed, with costs.

Pratt, J., concurred.

Dykman, J.

(dissenting):

This is a common law action for the recovery of the damage resulting from an injury to the vessel of the plaintiffs.

They were the owners of the sloop Commodore Jones, and the defendant was the owner of the lighter Billow. On the 22d day of October, 1884, about ten o’clock in the forenoon, these vessels were beating up the East river, with a strong flood tide, and a strong wind dead ahead. The sloop was loaded with brick and carrying full sail. The lighter was sailing with jib and mainsail with the peak clewed. She was slower than the sloop, and could not lay so near the wind as that vessel, within several points; and with her sails in that condition she would not readily luff, nor quickly go in stays.

Before the accident both vessels were sailing upon the starboard tack, the lighter having stood off from the Brooklyn side near Gold street, and the sloop having made her tack one block below. In the course of both vessels there was a steam tug towing four schooners, two on each side, and bound up the river also. After the lighter had gone about and was full, she starboarded her helm so as to pay off and avoid the flotilla by going to its stern. The sloop forereached both the lighter and the tug, and had attained a point on the starboard quarter of the starboard schooner, and lapped up so far that she could not keep off and pass astern of the tug and schooner, and could not weather them on that tack. Thereupon, to avoid a collision with the schooner, the sloop put her helm hard down and attempted to go in stays and come about on a short tack to the Brooklyn shore.

At that time her captain called on the lighter, which was then just to the windward, to go about. The jib of the lighter was lowered, and her helm was put down, but she was not quick enough in the wind to enable the sloop to go about, and so she remained in stays, running alongside the sloop until the bow of the lighter struck her slantly on her starboard side, forward of her rigging, and inflicted the damage complained of.. *

These substantial and prevalent facts stand uncontradicted, and the trial judge rendered a judgement for the defendant on the theory that the sloop was the overtaking vessel and, therefore, bound to avoid the lighter, and contributed to the disaster because she failed so to do.

By the congressional rules of navigation still applicable to the East river when sail vessels are crossing, so as to involve risk of collision if they have the wind on the same side, the vessel to the windward shall keep out of the way of the vessel to the leeward. (Rule 17.)

That rule applies to these vessels when they were on the starboard tack and had the wind on the same side. The lighter was to the windward, and could not sail so close to the wind as the sloop within several points, and after she was headed off from the Brooklyn shore and was full she starboarded her helm and fell off several points more to port to run under the stern of the tug and schooner, while the sloop kept her course; so there were several points difference between the courses of the two vessels. They were pursuing converging and intersecting courses, and a collision was certain if they both continued and reached the point of intersection at the same time.

In the situation it was the duty of the lighter as the windward vessel, in obedience to Rule 17, to keep out of the way of the sloop, and by Rule 23 of the Code of Navigation, where one of two vessels shall keep out of the way, the other shall keep her course subject to the qualification of Rule 24, which is this : In construing and obeying these rules due regard must be had to all dangers of navigation and to any special circumstances which may exist in any particular case, rendering a departure from them necessary in order to avoid immediate danger. Rule 22 of the same Code is invoked by the defendant for his justification. It is this : “Every vessel overtaking any other vessel shall keep out of the way of the last-mentioned vessel.”

Rut the sloop was not an overtaking vessel in any sense, except that of being the fore-reaching vessel. The lighter was to the windward, pursuing a crossing course, and both had the wind from the same way, and she falls easily within the operation and requirements of Rule 17. 'That she was a crossing vessel is also shown by the diagrams of the vessels shown in the case, and by the fact that she was obliged to port her helm to avoid striking the sloop head on. The sloop kept her course, in obedience to Rule 23, in the expectation that the lighter would obey Rule 17 and keep out of her way, and both these rules justify her movements. There was no occasion for the application of Rule 24, for’ there existed no special circumstances rendering a departure from Rules 17 and 23 necessary. The two latter rules contain ample provision for all the emergencies which arose in this case. The sloop obeyed Rule 23 and kept on her course, and if the lighter had been handled in obedience to the requirements of Rule 17 the encounter would have been avoided. There was no complication of circumstances, and neither vessel was disabled or beyond control.

If the lighter would not luff quickly, yet the fact that she answered her helm when it was ported, and came up to the sloop obliquely, shows that she could have kept out of the way had she gone about in time, and she had abundant room and time to do so.

The case of the Clement (1 Srague, 257), and of the Cayuga (14 Wall., 270), are authorities in favor of the plaintiff, and the ease of the Peckforton Castle (3 Asp. Mer. Cas., [N. S.], 511) seems to be similar to this. In that case there were four points, between the courses of two sailing vessels, and they were held to be crossing, and the court said, “ although the vessel which had the wind free was being overtaken by the faster ship, yet, as the faster ship was close hauled, and as both had the wind on the same side, the rule which governs this case is that which js contained in the twelfth article.” That article was the same as our seventeenth rule.

We reach the conclusion, after a careful examination, that the lighter was in fault and the sloop was not, and that the plaintiffs are entitled to recover their damages.

The judgment should therefore be reversed, and a new trial granted, with costs to abide the event.

Judgment and order denying new trial affirmed, with costs.


author: Barnard, P. J.:

text:
    WILLIAM J. HILL and MINNIE McDONALD, as Executors, etc., of JOHN McDONALD, Deceased, Respondents, v. CHARLES L. WOOLSEY and Others, Appellants.

      Evidence — when the testimony of a pa/rty interested in the result is inadmissible — Code of Civil Procedure, see. 829. *
    This action was brought by the executors of one McDonald against the three sureties upon a lease, given by the deceased to Carpenter So Wise, to recover rent due thereon. It was defended by two of the sureties, upon the ground that the sureties had been induced to sign the lease by the false and fraudulent representations of the lessor. Upon the trial, evidence was given showing that when the lessees applied to the three sureties to become responsible for the payment of the rent, one of their number, Woolsey, requested that the lessees go to McDonald and ask for the amount taken in at the bar of the hotel in the previous year, when kept by McDonald. They went to McDonald and obtained the answer. On the trial the defendants offered, but were not allowed, to prove the communication of the same to the two defendants’ sureties.

      Held, that the evidence was properly excluded under section 829 of the Code of Civil Procedure.
    That the lessees were interested in the result, as it appeared that they were in possession of the hotel, so that a judgment in favor of the sureties would leave them in possession thereof, and a judgment against the sureties would bind them.
    That, being so interested in the result, they could not repeat the representations of the deceased, made to them when acting as the agents of the sureties.
    Appeal from a judgment, entered at the Rings County Circuit on a verdict directed by the court in favor of the plaintiffs, for $1,314.09, balance due for the rent of a furnished hotel at Coney Island, leased by John McDonald, the plaintiff’s testator, to the firm of Carpenter & Wise.

      In consideration of the letting of the premises, the defendants agreed in writing with the lessors to pay any arrearages of rent. Two of the defendants answered, not denying the allegations in the complaint, but alleging, as a defense, that the tenants were induced to enter into the lease, and that they were induced to become sureties for the payment of the rent, by reason of the false and fraudulent representations made by the lessor.

      Wm. J. Oaynor, for the appellants.

      Carpenter & Roderick, for the respondents.
   Barnard, P. J.:

This action is one against the sureties of the lessees, upon a hotel lease, for the rent. The landlord who made the lease was one McDonald, who is represented by the plaintiffs.

Two of the sureties answer. Woolsey Sherman and the other surety, Schoonmaker, appeal from the judgment. The answer of the two sureties sets up fraudulent representations made by McDonald, by reason of which the sureties were induced to sign the lease as sureties. ITpon the trial it appeared that Carpenter & Wise, the lessees, applied to the three sureties to become responsible for the payment of the rent. Woolsey, one of their number, requested that the lessees go to McDonald and ask for the amount taken in at the bar of the hotel in the previous years, when McDonald kept the hotel. They went and obtained the answers, and offered to prove the communication of the same to the two defending sureties. This evidence was objected to and excluded under section 829 of the Code of Civil Procedure. It appeared that the lessees were in possession of the hotel, and therefore were interested in the result, because a judgment in favor of the sureties would leave them in possession of the hotel, and a judgment against the sureties bound them. The witness Wise, one of the lessees, was incompetent to carry the message to the sureties. He could not testify to the representations made by McDonald to him. That was a clear personal transaction with a deceased party to the contract. As the agent of the sureties, being a party in interest, he could not repeat back the representations of the deceased. As an independent witness, he was excluded on his own account, as a party interested in the result. It is true, that if McDonald was alive he could not deny what Wise told the sureties in his absence, but he could deny the conversation, and the validity of the testimony depended upon the declarations of McDonald.

The judgment should therefore be affirmed, with costs.

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

Judgment affirmed, with costs.


author: Pratt, J.

text:
    AUBIN G. LOCKE, as Administrator, etc., of JOHN D. LOCKE, Deceased, Appellant, v. JAMES W. COVERT, as Receiver of the John D. Locke Company (Limited), Respondent. THE PEOPLE OF THE STATE OF NEW YORK v. THE JOHN D. LOCKE COMPANY (Limited).

      Costs — wMn a receiver of a corporation will he directed to pay them.

    Appeal from an order denying a motion to compel payment by the receiver of a domestic corporation of so much of a judgment against him as awarded costs and an allowance.
    The moving party is an administrator who, after resistance by the receiver, finally obtained judgment against him, in an action brought against the corporation before his appointment. After the dissolution of the corporation the receiver served an answer denying nearly all the material allegations in the complaint and defended the action. Upon the trial, at which the receiver was represented by counsel and opposed the plaintiff’s claim, the plaintiff’s six causes of action were proved by entries in the books of the corporation then produced by the receiver in obedience to a subpoena. The complaint contained copies of these entries in these books. The receiver has on deposit in a trust company more than ten times the amount of the costs and allowance. All other claims against him which are entitled to a preference have been paid.
    The court at General Term said : “ The receiver is the custodian of a fund subject to the direction of the court to pay it out to parties establishing claims thereupon. The costs of the action were incurred for the benefit of the fund. It is, therefore, equitable that the expenses of the effort should be borne by the fund in whose behalf they were incurred. In the language of Justice Woodruff, this is not giving a preference to a debt as such; it is requiring the fund to pay an expense incurred for its own benefit. The case of Shields v. Sullivan (3 Dem., 296) is in point and to the same effect. It follows that the motion to require the receiver to pay the costs should have been granted.”
    Order reversed, with ten dollars costs and disbursements.

      Roger Foster, for the appellant.

      .Denis O ’JBrien, attorney general, for the people, and Porter & Kelvert, for the receiver, respondent.
   Opinion by

Pratt, J.

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

Order reversed, with costs and disbursements.