author: Q-ilbeet, J.:

text:
    MARY ANN FOSTER, Appellant, v. DAVID HAWLEY and others, Respondents.

      Ooncubinage — change of, into matrimony — evidence of.

    A cohabitation, illicit in its origin, is presumed to continue to be of that character unless the contrary be proved, and cannot be transformed into matrimony by evidence which falls short of establishing the fact of an actual contract of marriage. Such contract may be proved by circumstances, but they must be such as to exclude the inference or presumption that the former relation continued, and satisfactorily prove that it had been changed into that of actual marriage by mutual consent.
    The presumption of a contract of marriage cannot be raised when the direct consequence of it would be to involve both parties in the crime of bigamy.

      Appeal from an order of the surrogate of Westchester county, made in the course of the proceedings to prove the will of Isaac M. Singer, denying the application of Mrs. Mary A. Foster to be allowed to intervene in the proceedings and contest the probate of his will on the ground that she was his widow.
    In 1830, Isaac M. Singer married, at Palmyra, New York, Cath-arine Maria Haley. They had two children born to them and lived together until 1836. While Singer was on one of his theatrical rounds he met, at Baltimore, in 1836, Mary Ann Sponsler (the plaintiff). He left Baltimore and went to New York, whither she followed him, and although she knew he then had a wife living, cohabited with him, traveling about the country with him, taking such names as he assumed and after his prosperity (arising from his invention of a sewing machine) his real name of Singer. She had ten children by him. In 1860, or about twenty-four years' afterward, Singer obtained a divorce from his wife and continued to cohabit with the plaintiff for about six months thereafter, when he separated from her. Afterward, in about 1861, she commenced a suit for divorce. No decree was had therein, but Singer settled the matter pecuniarily with the plaintiff, and in 1862 the plaintiff married one Foster. Subsequently (June 13, 1863) Singer married the woman whom he recognized in his will as his wife, by whom he had six children, left the country and died in England in 1875. On the probate of his will, the plaintiff claimed to intervene as his wife and widow, and the question having been tried as a preliminary issue, the surrogate made his decision and order against the plaintiff, January 10, 1876, from which she appealed to this court.
    It was claimed that the commencement of the illegal cohabitation between the plaintiff and Singer was based on a promise by him that if she would live with him as his wife, as soon as he should be able to procure a divorce from the woman who claimed to be his wife, he would marry her; that subsequent cohabitation after such divorce was obtained was a ratification of their marital relation, and evidence that they consented to be man and wife.

      H. W. Van Veit, for the appellant.
    The twenty-four years matrimonial recognition and cohabitation of the parties, followed by the six months deliberate ratification and confirmation of their marital relationship, during which no disqualification whatever on the part of either existed, furnished absolute and conclusive evidence that they consented to be man and wife.
    Matrimonial cohabitation, general repute, public acknowledgment, private admissions, a judicial decision, a solemn agreement, confirmed by partial performance by the testator, leave no ground whatever on his part for a denial of consent. Under all the authorities, English and American, the marriage is made out. (Cunningham v. Cunningham, Dows. Par. R., Yol. 2, 483; McAdam v. Walker, 1 Dow., 148 ; Fenton v. Reed, 4 Johns., 51; Jackson v, Claw, 18 id., 345; Jackson v. Winne, 7 Wend., 47; Ccmjolle v. Ferrie, 26 Barb., 178; The People v. Humphrey, 7 Johns., 314; Rose v. Clark, 8 Paige, 574; Cheney v. Arnold, 15 N. Y., 345; In the Matter of Taylor, 9 Paige, 611; Clayton v. Wcvrdell, 4 Com., 230; O’Cara v. Eisenlohr, 38 N. Y., 296; Campbell v. Campbell, L. R. [2 Scotch and Divorce Cases], 182.)

      James C. Carter and John K. Porter, for the respondents.
    The prime requisite to a valid marriage under our law is the interchange between the parties of a mutual present consent to take each other as husband and wife. This consent is of itself fully sufficient; and for it there is no substitute or equivalent. (Clayton v. War dell, 4 N. Y., 230 ; Fenton v. Reed, 4 Johns.; Queen v, Miller, 10 Cl. & Pin.; 1 Bishop on Mar. and Div., §§ 227, 228.) The modes of proving the existence of such consent are various. But they should never be confounded with the consent itself, which is always the same. (Lord ChelmseoRD, in Shedden v. Patn'iek, L. R. [1 H. L. Pr. and Div.], 540, 541; 1 Bishop on Mar. and Div., §§ 246, 247.) Proof of cohabitation as husband and wife does not constitute marriage. It may, in some cases, be evidence of marriage. It can never be any thing more. “ Consensus, non conoubitus, facit nup-tias ” is the universally received maxim. (Shedden v. Patrick, ubi supra ; Letters v. Cady, 10 Cal., 583 ; Jackson v. Winne, 7 Wend., 47; Cheney v. Arnold, 15 N. Y., 345; Duncan v. Dunean, 10 Ohio State, 181.) If the agreement is not one of present consent to accept each other as husband and wife, but is per verba defuimro, looking to a marriage at some future time, it not only fails to prove actual marriage, but, by its very terms, excludes any such conclusion. (Lord OotteNhaM in Stewart v. Menzies, 2 Rob. App. Cases, 547, 590; Oheney v. Arnold, 15 N. Y.)
   Q-ilbeet, J.:

We cannot assent to the proposition put forth, in behalf of the appellant, that the illicit relation which she formed with Singer, assuming that it was formed on the faith of his promise to make her his wife whenever the impediment of his previous marriage should have been removed, was changed into matrimony merely by tlie removal of that impediment and their continuance of the same mode of life as theretofore. On the contrary, we think that it was incumbent on Mrs. Foster to show that something was done, after such impediment had been removed, which in fact constituted a marriage between them, and that there was a failure of proof on that point. A concubine cannot acquire the rights of a wife by survivorship. The marriage relation, however formed, is a sacred one, and sound public policy requires that its sanctity be preserved inviolate. It is quite apparent that if married persons were permitted to make valid executory promises of future marriage with third persons this policy would be at once subverted, and the practical evils of polygamy would receive the sanction of law. The question, therefore, is one of fact to be determined by the application of legal rules to the evidence in the case. It is unnecessary to go over that evidence in detail. It is undisputed that the relation between Singer and the appellant was illicit in its origin. It began in 1836 when Singer had a wife living. It was voluntarily entered into by Mrs. Foster, with full knowledge of that fact, and so continued until 1860, a period of nearly twenty-four years, when Singer obtained a divorce from his' wife. That relation was none other than an illegal and adulterous one. A valid marriage between the parties to it, prior to such divorce, was not possible. The presumption of law is, that a cohabitation which was illicit in its origin continues to be of that character throughout its duration, unless the contrary be proved. (Clayton v. Wardell, 4 N. Y., 230; Caujolle v. Ferrié, 23 id., 106 ; O'Gara v. Eisenlohr, 38 id., 296; Cunningham v. Cunningham, 2 Don. P. C., 481; Lapsley v. Grierson, 1 H. L. Cases, 498; G. C., 8 Scotch Sess. Cases [3d series], 47.) The only evidence to which we can give credence going to rebut that presumption in this case, consists of the same course of conduct between Singer and Mrs.- Foster as that which preceded Singer’s divorce, namely, cohabitation, and acts proving that Singer recognized Mrs. Foster and held her out to the world as his wife, coupled with his promise to marry her when he should have obtained a divorce from his wife, made at the commencement of the adulterous connection between them ; that, we think, is not sufficient. The concubinage which existed for so long a period cannot be transformed into matrimony by evidence which falls short of establishing the fact of an actual contract of marriage. Such a contract, it is true, may be proved by circumstances, but they must be such as exclude the inference or presumption that the former relation continued, and satisfactorily prove that it had been changed into that of an actual marriage by mutual consent. (Per Lord Campbell, Queen v. Millis, 10 Cl. & Fin., 749, et seq.) That such a contract was not made between Singer and Mrs. Foster is, we think, satisfactorily shown by proof of the marriage of both Singer and Mrs. Foster with third persons soon after their separation from each other. We cannot raise a presumption of a contract of marriage when the direct consequence of so doing would be to involve both parties to it in the crime of bigamy. We are unable to accept the testimony of Mrs. Foster that she married her present husband under the belief that she had been divorced from Singer. It would be hard to believe, if uncontradicted; but it was contradicted by the witness’s own conduct and declarations, especially by the certificate of her marriage with Foster under her maiden name of Sponsler, which states that it was her first marriage, and which she received and kept; and especially by her sworn statement made in the complaint in an action brought by her against Singer in 1864, after her marriage with Foster, to the effect that she began living with Singer in 1836 under the inducement of his promise that he would marry her as soon as he could obtain a divorce from his wife. That he never fulfilled that promise by any formal act, and that he persistently refused to do that which Mrs. Foster appears to have regarded as essential to its fulfillment, namely, yield his consent to a ceremonial marriage.

In the face of such evidence an actual marriage between Singer and Mrs. Foster seems to us to be not only unproved, but extremely improbable.

The order appealed from must be affirmed, with costs

BarnaRD, P. J., concurred.

Present — BarNArd, P. J., Gilbert and Dyeman, JJ.

Order of surrogate affirmed, with costs.


source: Caselaw Access Project

author: DykmaN, J.:

license: Public Domain

text:
    JAMES W. ELWELL and others, Respondents, v. FRANCIS SKIDDY and others, Appellants.

      Demu/rrage — when party not entitled to — Oount&r-elaim.

    A master of a vessel chartered her for three consecutive voyages to Cuba and return to New York, the first to start from a port in Canada, the outward voyages to he with sugar-box sliooks, the return ones with sugar and molasses. The charter party specified a certain rate of freight and also of demurrage and bound the cargo to the performance of the charter by the charterer. The vessel was detained in Cuba by the custom authorities on account of the illegal act of the master. A portion of the cargo was also seized on account thereof and its release could only be obtained by the payment of $2,659.88 by the agent of the charterer.

      Reid, that the master was not entitled to demurrage for delay occasioned, by the seizure or detention of the vessel for his own unlawful act.

      Reid, also, that a counter-claim to a claim for freight thereunder, could be sustained for loss occasioned by the excessive drainage of the hogsheads of sugar caused by the detention of the vessel after a full cargo had been obtained, such detention arising from the illegal act of the master.

      Reid, also, that a counter-claim could be sustained for moneys compulsorily paid by the agent of the charterer, to release their property seized because of the unlawful act of the master.
    Appeal from an order denying a motion for a new trial made upon the minutes, and from a judgment entered on a verdict at the trial. The plaintiffs were assignees of a claim for freight and demurrage, claimed to be due to the owners of the brig Harry Yirden. The defendants were assignees of a bill of lading (held for advances) and also assignees of the consignees, of the cargo brought by said brig from Cardenas to New York. The master of the brig chartered her for three voyages to Cuba and return to New York, the first to start from a port in Canada, the outward voyages to be with sugar-box shooks, the return ones with sugar and molasses. The charter party specified a certain rate of freight and also for demurrage and bound the cargo therefor. The master, on his first voyage, on applying for his consular manifest, stated his cargo in round numbers at 5,000 sugar-box shooks, and this number was accordingly inserted in the consular manifest. He actually took on board, however, as shown by his own manifest, 7,730. For such inaccuracy or discrepancy, on his arrival in Cuba, the custom authorities fined the master twenty-five dollars, which he paid; afterward a further fine of $568.06 was imposed on account thereof; payment was refused, but a bond therefor was given by the agent of the ship and the charterer, which was enforced after the brig sailed. On the next voyage, on the arrival of the brig at Cardenas, the Intendente ordered the confiscation of the 2,730 shooks in excess of the consular manifest, to relieve which the charterers had to pay $2,559.38 gold. A fine equal to the value was also directed to be imposed on the captain, and to compel its payment a clearance was refused to the vessel, and it was detained a long time after it was fully laden, by reason whereof the sugar sweltered • and wasted so as to cause a loss, as claimed, of. nine and twenty-six one hundredths per cent, whereas the average on such voyages was only from three to four per cent, causing a damage claimed to be $2,397.60 gold.

      Joshua M. Van Oott and James K. Ilill, for the appellants.
    Benedict, Taft & Benedict, for the respondents.
   DykmaN, J.:

This cause was tried at the Circuit, and at the close of the testimony on both sides the court directed a verdict for the plaintiff, which included freight, demurrage, and interest, and excluded the claim of the defendants upon their counter-claim. This verdict is not founded upon any promise of the defendants, or either of them, for the court refused to submit any question of fact to the jury. We must, therefore, assume that there was no such promise.

The defendants were the assignees of the consignees of the bill of lading for the cargo of sugar brought to New York from Cardenas on the second voyage of the vessel under the charter party. They, therefore, stood in the place of the consignees, and as they accepted the goods they became liable for the freight. (Hinsdell v. Weed, 5 Denio, 172; 3 Kent Com., 221; Abb. on Ship, [by Story], 284, § 4.) If, therefore, nothing more was included in this verdict, it would only be necessary to examine the question arising upon the defendants’ counter-claim. But the court included in the verdict the claim for demurrage, and it becomes necessary to determine whether the defendants are liable for this charge.

This will depend upon the question whether the vessel was detained by the freighter or his agents or consignees, beyond the time allowed by the charter party. The detention complained of took place on the second voyage of the vessel to the island of Cuba. The vessel arrived at Cardenas in March, 1870, about the middle of the month, and was loaded and ready to sail about the middle of April following. It was agreed that twenty lay days were consumed on the second trip. There is some little discrepancy in the case respecting the date, but this is not very important. The vessel was detained from the time she loaded in April until the sixteenth day of June following. That detention was for the following reasons :

The first cargo under the charter party was taken on at Pierre-ville, in Canada, and consisted of sugar-box shooks. As this place was in the district of Quebec, the residence of a Spanish consul, it became necessary for the captain of the vessel to obtain from the Spanish consul at that place a consular manifest of bis cargo. While the vessel was taking on the cargo, the captain made an effort to find the Spanish consul at Quebec, but he had gone to Montreal, and he thereupon sent to Montreal for his consular manifest, and stated his cargo, in round numbers,. at 5,000 sugar-box shooks. This number was accordingly inserted in the consular manifest. The number actually taken on was 7,730. When the vessel arrived in Cardenas, the captain presented to the custom-house officer the consular manifest, which was inaccurate, of course, and called for only 5,000 shooks, and also his own manifest, which stated the true number at 7,730. By such inaccuracy the captain incurred a fine of twenty-five dollars, which was paid by Mr. Bacot, who was the agent both of the ship and the charterer. Afterward the customhouse officers imposed on the captain a further fine of $568.06. Payment of this fine was refused, but Mr. Bacot gave a bond for its payment, if it should be enforced by the intendente. After the vessel sailed, the fine was enforced and paid by Mr. Bacot. The vessel arrived in Cardenas on her second voyage in March, and the intendente ordered the confiscation of the 2,730 shooks, that being the number in excess of the number called for by the consular manifest, and a fine equal to their value to be imposed on the captain, and in order to compel the payment of the fine by the captain a clearance was refused to the vessel. The captain resisted and appealed to the higher authorities, who, after a delay of two months, allowed the vessel to be cleared, and she sailed on her second return voyage on the sixteenth day of June.

Now whatever else may be said about this delay or the cause of it, or the merits of the controversy that caused it, it cannot be said that it was caused by the defendants or their consignor or his agent; and as unreasonable detention of the vessel by the freighter or his consignee lies at the foundation of all liability to the owner for demurrage, it must follow that no such liability was shown in this case. So far from the facts showing any detention of the vessel by the freighter or his consignees, they show that the detention was caused solely by a breach of the revenue laws of the island of Cuba by the captain of the vessel, and that such breach was willful and intentional. It is no answer to this to say that the Cuban authorities visited upon this vessel unusual and extraordinary penalties for this breach of their revenue laws. It will not do for the captain to say, it is true I committed a breach of the revenue laws but I ought to have been let off with a fine of twenty-five dollars, and all beyond that is improper and illegal. Let it be conceded that all this is so, that does not change the matter at all. The Cuban authorities treated the conduct of the captain as an attempt to perpetrate a fraud upon the revenue laws, and did what was done to detain the vessel for that reason. That was the proximate and sole cause of the delay.

It follows, from this view, that the item of demurrage cannot be recovered against the defendants, and that there must be a new trial.

The court on the trial rejected tbe defendants’ counter-claim for damages; and as that question will again be presented on the new trial, it is proper that we should settle it so far as we can do so. The first item of this counter-claim arises out of the following facts:

The Intendente imposed a fine upon the captain for infringements imputed to him in his manifest, owing to the difference existing between the two, as has been before stated, and the 2,730 box shoots, which gave rise to the infringement attributed to the captain, were seized, the seizure approved and an embargo ordered to be laid upon them, and Mr. O’Callahan, the owner, was required to give up the shoots or pay their equivalent in money. Proper resistance was made by Mr. Baeot on behalf, of Mr. O’Callahau, but no effect was produced, and an order of attachment was issued and property up to the amount of this claim was levied on a lot of sugar in a lighter, and the same was stopped in the bay. At this time, and compelled by these measures, this sum was paid into the treasury of the custom-house, under protest, and reserving all rights against the vessel and owners. It appears from the case that there was no way of avoiding such payment as the treasury, in such cases, admits no application until after payment.

We think these facts show that these goods were seized, their payment compelled by the fault of the captain, and that this is a well recognized ground of liability. (Abbott on Shipping, 383; Maclalahan on Shipping [2d ed.], 388; Gosling v. Higgins, 1 Camp., 451; Howland v. Greenway, 22 How. [U. S.], 491.) We think, therefore, that the court below fell into an error in refusing to charge the jury as requested, that the defendants were entitled to recoup or set-off against the freight the sum the charterer was'obliged to pay to procure release of his sugar-box shooks, with interest.

The second item in the defendants’ counter-claim is the damage arising from the excessive drainage from the hogsheads of sugar, arising from the length of time which elapsed between the shipment and delivery of the sugar. The facts, out of which this claim arises, have been already stated. In order to compel the payment of the fine imposed upon the captain for the infringements imputed to him in his manifests, a clearance was refused to his vessel, and she was not allowed to go to sea until about the middle of June. During all this time the sugar sweltered and roasted, and - caused the loss which forms the basis of this item. As this waste was caused by the unwarranted delay, which we have before seen was the fault of the captain, we think the court below also fell into an error in refusing to charge as requested, that the defendants were entitled to set off or recoup against the freight the damage to, and loss on the cargo of sugar, occasioned by the detention of the vessel after a fall cargo had been shipped and the vessel was ready to put to sea.

If this loss had been caused by a voluntary delay to sail, the liability of the owners would not be disputed, and we do not see how the .plaintiffs are in any better position when the delay was caused by the fault of the captain. The delay was a breach of duty as well as a breach of contract, and is not excused by the act of God, the perils of the sea, or the act of a public enemy.

In the case of Hinsdell v. Weed (5 Denio, 172) Judge McKjssook held that the consignee may recoup the damage on account of the property not delivered in the action against him for freight, and this decision is referred to with approbation in the case of Davis v. Pattison (24 N. Y., 324).

The judgment must be reversed and a new trial granted.

Present — Barnard, P. J., Gilbert and Dyrman, JJ.

Judgment and order denying new trial reversed and new trial granted, costs to abide event.


author: DyKMAN, J.:

text:
    CHARLES W. VROOMAN, Guardian, etc., Respondent, v. HARRIET B. TURNER, wife of THOMAS C. TURNER, Impleaded with CHARLES E. EVANS and others, Appellant.

      Grantee — assumption of mortgage by — liable to pay, although her grantor was not— Qoveriwe no defense.

    A. executed a mortgage on certain premises to JB., and afterward sold and conveyed them to 0., and by various mesne conveyances they came to T., a married woman. In none of the conveyances except the one to T, was there any covenant by the grantee to pay said mortgage. Held, that T. was liable on her covenant. Further, that her coverture was no defense to the action, as the liability was contracted upon the purchase of real estate in her own name, 'and which thus became her separate estate, and her covenant was a contract to pay a portion of the purchase-money, and was, therefore, for the benefit of her separate estate.
    Appeal by the defendant Harriet B. Turner, wife of Thomas 0. Turner, from so much of a judgment of foreclosure and sale, entered with the clerk of Kangs county, January 29, 1876, as directed that she should pay any deficiency.
    The action was brought for the foreclosure of a mortgage made by Charles E. Evans to John W. Eddy for $5,500 on property in Brooklyn. Eddy assigned the mortgage to Robert R. Rhodes, guardian, who assigned it to this plaintiff.
    Evans conveyed the mortgaged premises to Harry W. Mitchell; Mitchell to Edward P. Cone; Cone to Jane L. Eaton; and Eaton to Daniel A. Sanborn. In none of these deeds did the grantee assume to pay the mortgage.
    Daniel A. Sanborn conveyed the premises to the appellant Harr riet B. Turner.
    “Subject, nevertheless, to the payment of a certain indenture of mortgage, bearing date.the 5th day of August, 1873, made and executed by Charles E. Evans to John "WV Eddy, to secure the principal sum of $5,500 and the interest thereon, and recorded in the office of the register of the county of Kings, in liber number 1,166 of mortgages, page twenty-two, on the 9 th day of August, A. D. 1873, which mortgage the party hereto of the second part hereby covenants and agrees to assume to pay off and discharge, the same forming part of the consideration thereof having been deducted therefrom.”
    The only question was as to the liability of the appellant for deficiency.
    The case was tried before John P. Rolfe, referee, who decided in favor of the plaintiff.

      Edwa/rd T. Bartlett, for the appellant.

      ET. Glement, for the respondent.
   DyKMAN, J.:

On the 5th day of August, 1873, the defendant Charles E. Evans made and executed a mortgage upon certain lands and premises, of which he was then the owner, in the city of Brooklyn, to secure the payment of $5,500. After the execution and recording of this mortgage, the premises were sold and conveyed by the said Charles E. Evans, and came by several mesne conveyances to one Daniel A. Sanborn. In neither of the deeds of conveyance did the grantees assume the payment of the mortgage. On the 6th day of April, 1875, Daniel A. Sanborn conveyed the same premises to Harriet B. Turner, the defendant, who was then a married woman. This deed conveys the premises subject to the mortgage, and contains the following clause: which mortgage the party hereto, of the second part, hereby covenants and agrees to assume, pay off, and discharge, the same forming a part of the consideration thereof, having been deducted therefrom.” This deed was accepted and recorded.

This action is now commenced to foreclose the mortgage, and charge the defendant Harriet B. Turner with the payment of any deficiency, provided the proceeds of the sale shall be insufficient to pay the mortgage. Judgment has been rendered in favbr of the plaintiff for the foreclosure of the mortgage, and for deficiency against the defendant Harriet B. Turner, who has appealed from the judgment.

It is now claimed that the portion of the judgment which holds the defendant Harriet B. Turner personally liable for deficiency is obnoxious to the principles of law enunciated by the Court of Appeals in the case of Trotter v. Hughes (12 N. Y., 74). It is claimed that that case decided that where, as in this case, the grantor in a conveyance is not personally liable to the holder of the mortgage to pay the same, his grantee is not liable, although assuming, in terms, to pay it.

What the precise state of the law is in this State which is to govern this case, it is not very easy to determine. Trotter v. Hughes seems to decide all that is claimed for it. The old doctrine of the Court of Chancery was, that where a grantee in a deed assumed the payment of a mortgage, he became thereupon the principal debtor, and the mortgagee occupied the position of surety, and the mortgagee was permitted to resort to the grantee to recover the deficiency after applying the proceeds of the sale by virtue of the doctrine of subrogation in equity, by which the creditor was entitled to all the collateral securities which the debtor had obtained to reinforce the primary obligation, and Trotter v. Hughes seems, by the reasoning of the opinion, to have been decided upon that principle. We cannot, however, overlook the fact that in that very case the defendant Hughes had not undertaken personally to pay the mortgage at all, and the decision would have been fully as satisfactory if it had been placed upon that ground. Upon the questions which were discussed in Trotter v. Hughes there was a good deal of conflict of judicial opinion, until the case of Lcmrence v. Fox came before the Court of Appeals and directly involved the question. In that case one Holly owed the plaintiff $300 ; he loaned the defendant $300, and told him at the same time that he owed the plaintiff that amount, and the defendant promised Holly that he would pay that amount to the plaintiff the next day. The plaintiff recovered in the court below, and the Court of Appeals affirmed the judgment, and placed its decision on the broad ground that if one person makes a promise to another for the benefit of a third person, that third person may maintain an action on the promise, although he was not privy to the consideration.

This was followed by the case of Burr v. Beers (24 N. Y., 178), where it was held, in unqualified terms, that a mortgagee may maintain a personal action against a grantee of the mortgaged premises who has assumed to pay the incumbrance.

As before observed, the case of Trotter v. Hughes would be more satisfactory if the decision in favor of the defendant had been placed upon the ground that the defendant had not assumed the payment of the mortgage and had not become liable to pay it in any way, and the action could not be maintained against him for that reason. JBut whatever else may be said about that case, it cannot be considered as authority since the case of Burr v. Beers, where the Court of Appeals broke entirely away from the old equitable doctrine, which has been alluded to, and placed the case upon the broad principle' that if one person make a, promise to another for the benefit of a third person, that third person may maintain an action upon the promise. As this must be taken for the law of this State to-day, it certainly can make no difference in this case whether Daniel A. Sanborn was personally liable to pay the mortgage in question or not. As in the case of Burr v. Beers, so in this case, the amount due upon the mortgage was left in the hands of the purchaser, and she undertook to pay it; the assumption clause in that deed is substantially the same as in this. The defendant, Harriet B. Turner, was bound to pay the whole consideration for the premises, but by the assumption clause in the deed a portion of it was set apart for the payment of this mortgage, and she undertook to pay it. This was simply an agreement to pay her own debt, and there is every reason, both in law and morals, why she should do so; she bought this land for a stipulated price, and instead of paying it all to her grantor she retained a part of it, and agreed to pay that part upon this mortgage. As we have no controlling authority to prevent us from so doing, we have no hesitation in holding that this rendered her liable to pay the mortgage.

Since the decision of Merrill v. Green (55 N. Y., 270), it seems to be questionable wb.etb.er a contract beneficial to a third party can be enforced by him in any case, unless:

1st. It be therein empressly stated to have been made for his benefit; or,

2d. The party assuming the obligation has received money or property out oí which to pay it.— [Rep.

We think that the coverture of the defendant was no defense to this action. The liability was contracted upon the purchase of real property by the defendant in her own name, and which thus became her separate estate. It was a contract to pay a portion of the purchase money, and was therefore for the benefit of her separate estate. (Ballin v. Dillaye, 31 N. Y., 35.)

The judgment must be affirmed.

Present — BaeNArd, P. J., G-ilbeet' and DykmaN, JJ.

Judgment and order denying new trial affirmed, with costs.


author: DyKMan, J.:

text:
    THOMAS PICKETT, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Gambler — indictment of, sufficiency of amw'ments in — Gormeiion, when not to Tie set aside— chapter 604 of 1861 — chapter 214 of 1855.
    An indictment, charging that the defendant “did willfully, unlawfully and knowingly sell, Tend and cause to he sold and vended what are commonly known and called lottery policies, the particulars whereof are unknown to the jurors aforesaid, and did then and there sell and vend divers of such lottery policies to divers persons to the jurors aforesaid unknown,” held, sufficient; that only reasonable certainty is required; that the facts stated to he unknown were only matters of description and not necessary to the accusation, and there was no danger of the defendant being tried thereunder for an offense for which he was not indicted; or, being convicted, any difficulty in pleading the conviction and judgment in bar of another prosecution for the same offense.
    Further, that although the proofs might not be very strong, yet, where the jury have found the facts, and as found they are sufficient to sustain the conviction, it will not be set aside.
    Wurr of error to tbe Court of Sessions of Kings county, to review tbe conviction of the defendant as a common gambler.!
    The defendant was convicted of being a common gambler in selling or vending what are commonly known as lottery policies, under chapter 504, Laws of 1851, as amended by chapter 214, Laws of 1855, and was sentenced to imprisonment for the term of three months in the Kings county penitentiary.

      Peter Mitchell, for the plaintiff in error.

      Thomas S. Moore, for the defendants in error.
   DyKMan, J.:

The defendant has been indicted and convicted as a common gambler under the provisions of our statute. The indictment follows substantially the language of the statute, and as a general rule that is sufficient in cases of misdemeanor. Peasonable certainty, however, is required in stating the offense charged, having special reference to the rights and interests of the accused, but this rule must not be carried so far as to defeat the ends of justice; and therefore the grand jurors are allowed to state that a particular fact not vital to the accusation is to them unknown. Under this general rule of law it has been held that where an indictment, after stating the fact of tlie lottery, contained an averment that “a more particular description of which said lottery is to the jurors aforesaid unknown ; ” the indictment was sufficient. (People v. Taylor, 3 Den., 91.)

The indictment in this case charges that the defendant did willfully, unlawfully and knowingly sell, vend and cause to be sold and vended what are commonly known and called lottery policies, the particulars whereof are unknown to the jurors aforesaid, and did then and there sell and vend divers of such lottery policies to divers persons to the jurors aforesaid unknown,” and we think this is sufficient. The facts which are here stated to be unknown are only matters of description, and not at all necessary to the accusation. There was no danger under this indictment that the defendant might be tried for an offense for which he was not indicted, and being convicted there will be no difficulty in pleading the conviction and judgment in bar of another prosecution for the'same offense.

The defendant was convicted upon the counts that contained the averments above mentioned.

Upon the merits the case was very fairly and very carefully presented to the jury by the charge of the court, and the jury found the defendant guilty, and we think there was evidence enough to sustain the conviction.

The'proof was not very strong, and it would doubtless have been more satisfactory to the court and jury if it had been stronger. But we must remember that unlike the transactions in the life of Saint Paul, which he recounted before King Agrippa, these things were done in a corner. The ways of vice and crime are dark and mysterious, and crimes are perpetrated in thievish corners, away from the eyes of honest men. While, therefore, we must be careful and see to it, that convictions are not secured upon improper or insufficient testimony, yet we must not ask too much. If a jury as in this case has found the facts, and as so found they are sufficient to sustain the conviction, the appellate tribunal cannot interfere on that ground.

The conviction and judgment must be affirmed.

Present — BaeNAed, P. J., Gilbert and DyKman, JJ.

Conviction affirmed.


author: DyioíAN, J.:

text:
    JOHN D. DOUGLASS and OSCAR DOUGLASS, Appellants, v. JOHN B. REILLY, Respondent.

      Justice's Court — Brooklyn — § 16, chap. 102, Lams of 1850 — County Court — no power, on motion, to vacate judgment of Justice's Court.

    A summons having been issued in a civil action by a justice oí the peace of the town of Hew Lots, Kings county, and personally served on the defendant in the city of Brooklyn, in said county, of which he was a resident, and on default judgment entered, a transcript thereof filed, and the judgment docketed against him in the clerk’s office of said county, and execution issued thereon; and the County Court having on an order to show cause directed that the said transcript be set aside and the clerk of Kings county cancel the judgment of record:

      Iheld, that section 16 of chapter 102, Laws of 1850, which declares: “No justice of the peace, other than the police justice and the justices elected in the city of Brooklyn, shall have, or exercise any civil or criminal jurisdiction in said city,” was intended to give to the police justices and justices elected in Brooklyn exclusive jurisdiction to hold courts in that city, but not to take away the general jurisdiction of the justices of the peace of the county, to try transitory actions within their jurisdiction in their own towns. That the justice in this case exercised no jurisdiction in the city of Brooklyn. He simply issued a summons in the town of New Lots, out of the city, and upon proper return of personal service proceeded with the case in his own town, and entered judgment, the constable’s return giving him jurisdiction of the person of the defendant.

      Reid, further, that the County Court had no power, on motion, to set aside the transcript and vacate the judgment; that the remedy of the defendant was by appeal.
    Appeal from an order of the County Court of Kings county, entered on a motion to vacate the docket of a judgment rendered by a justice of the peace of the town of New Lots, made upon a transcript thereof filed in the clerk’s office of said county, and to set aside the execution issued thereon.
    The summons was issued in a civil action by James H. Spencer, justice of the peace, in the town of New Lots, Kings county, and was served by a constable on the defendant, in the city of Brooklyn, in said county, where defendant resided. Judgment was entered by default, a transcript thereof filed and the judgment docketed against the defendant in the Kings county clerk’s office, and execution issued thereon.

      D. W. Guernsey, for the appellants.

      James Troy, for the respondent.
   DyioíAN, J.:

On the 27th day of July, 1875, the plaintiffs were residents of the town of New Lots, in Kings county, and on that day they applied to James H. Spencer, a justice of the peace of that town, for a summons in a civil action against the defendant, who was a resident of the city of Brooklyn.-

The summons was issued in the usual form and manner, and was made returnable before the said justice, at the town of New Lots, and was personally served on the defendant in the city of Brooklyn, by a constable of the same town of New Lots; on the 3d day of August, 1875, the return day of the summons, it was returned by the said constable personally served on the defendant.

The defendant did not appear, and on proof of the claim the justice rendered judgment against the defendant for twenty-nine dollars and five cents.

The justice issued a transcript of the said judgment, which was filed in the office of the county clerk of Kings county on the 27th day of August, 1875, and judgment was docketed thereon, and an execution issued to the sheriff of Kings county.

Upon an affidavit setting forth substantially these facts, .a motion was made before the county judge of Kings county to set aside the said transcript, judgment and execution. This motion was granted and the case now comes before us on appeal from that order. „

This order is now claimed to be proper and legal, on the ground that the justice of the peace who issued the summons acquired no jurisdiction over the person of the defendant. This claim is founded upon the provision in the Laws of 1850 (chap. 102, § 16), that “ no justice of the peace other than the police justices elected in the city of Brooklyn shall have or exercise any civil or criminal jurisdiction in said city.”

We think this provision of the statute has no applicability to the present case.

The justice of the peace in this case has exercised no jurisdiction in the city of Brooklyn. He simply issued a summons in a civil action in the town of New Lots, out of the city, and delivered it to a constable for service, and upon the proper return of personal service proceeded with the case in his own town, and entered judgment in the action.

Tbe constable’s return gave the justice jurisdiction of the person of the defendant, and there is no claim that his subsequent proceedings were irregular. Certainly, it cannot be pretended that the constable had no power to serve the summons on the defendant in the city of Brooklyn.

The provision of the statute was intended to give exclusive jurisdiction to the police justices and the justices elected in the city of Brooklyn to hold courts in the city of Brooklyn, and not to take away the general jurisdiction of the justices of the peace of the county to try transitory actions within their jurisdiction and hold their courts in their own towns. (Blatchley v. Moser, 15 Wend., 218.)

We also think that the county judge had no power to,set aside the transcript and vacate the 'judgment on motion, and that the remedy of the defendant, if he had any, was by appeal. (N. Y. and Erie R. R. Co. v. Purdy, 18 Barb., 574.)

The order of the county court should be reversed with costs and disbursements.

Present — Barnard, P. J., Gilbert and Dyrmak, JJ.

Order of county court reversed with costs and disbursements.


author: DyKmaN, J.:

text:
    THEODORE H. GALLAHER, Appellant, v. PELL S. C. VOUGHT, Respondent.

      Services — between relatives— action for — degree of consanguinity necessary to create presumption that they ewe gratuitous.

    Where services are rendered by one person for another, without any agreement in respect to compensation therefor, 'the law will ordinarily imply an agreement to pay whaf such services are worth, except in the case of near relatives or members of the same family, when the law regards such services as acts of gratuitous kindness and affection ; hut this exception cannot be extended to include a case where the defendant’s wife and the plaintiff’s mother were cousins, the relationship between the parties being only by affinity.
    Appeal from a judgment entered upon the report of a referee, dismissing the plaintiff’s complaint, with costs.

      This was an action to recover the value of services alleged to have been rendered by the plaintiff, in talcing care of the defendant’s sick son, performed between October, 1868, and October, 1878. One of the defenses thereto set up in the answer was in these words:
    And defendant for further answer to said complaint alleges that said plaintiff being a relative of defendant’s wife, and out of employment, and having no means and no place to stay, requested this defendant to let him come and stay with him at his house until he could procure some employment, and voluntarily offered to stay with and assist in serving to this defendant’s said son, who was unwell and confined to the house, while so there; that the defendant consented, and the said plaintiff did so come and boarded with this defendant for a long time, and occasionally, in a friendly way, while so there, did stay with and assist in taking care of the said Niles E. Nought, but without any agreement on the part of this defendant to pay, or any intention on the part of the said plaintiff that he expected pay therefor; but it was understood to be done as a friendly act, and in consideration of such board, etc., only, and not to be a charge against this defendant.

      Eugene B. Travis, for the appellant.

      Travis <& Lent, for the respondent.
   DyKmaN, J.:

Ordinarily where services are rendered by one person for another without any agreement in respect to compensation, the law will imply an agreement to pay what the services are fairly worth. There is, however, a well recognized exception to this general rule in respect to services rendered by near relatives and members of the same family, on the ground that the law regards such services as acts of gratuitous kindness and affection, and the referee before whom this cause was tried seems to have supposed that this case came within that exception. In this we think the referee has fallen into error.

In the first place, the uncontradieted testimony is that the defendant’s wife and the plaintiff’s mother are cousins, and the referee has no proof in the case to support his finding that the plaintiff and defendant’s wife are cousins.

The plaintiff and defendant were not, therefore, related at all, except by affinity, and we think such relationship not sufficiently near to place the parties within the exception. We have been unable to find any reported case that carries the doctrine to that extent. In fact, although the elementary writers seem to lay down the exception as broadly as it is stated above, yet all the reported cases confine it to cases of claims between members of the same family, and the courts refuse to imply a promise by rá&son of the existence of the family relation.

The referee cites the cases of Williams v. Hutchinson (3 Comst., 312) and Bowen v. Bowen (2 Bradf., 336). In the first of these cases the parties had been members of the same family, and the defendant stood in loco parentis to the plaintiff, and in the others the parties were brothers, and had been members of the same family during the time of the services. In the first case the rule is laid down as follows: “Under certain circumstances, where one man labors for another, a presumption of fact will arise that the person for whom he labors is to pay him the value of his services. It is a conclusion to which the mind readily comes from a knowledge of the circumstances of the particular case and the ordinary dealings between man and man. But where the services are rendered between members of the same family, no such presumption will arise.” And this case and the case of Bowen v. Bowen were disposed of on that ground. Neither one of them, therefore, are any authority for the decision of the referee in this case, for the reason that the relation of the parties was entirely different. There are numerous reported cases, both in this country and in England, holding the same doctrine as these two, but none of them sustain the decision of the referee in this case, and we do not think his report can stand on the ground on which he has put it.

We do not think that the relation between the parties to this action was such as would prevent the law from implying an agreement to pay for services rendered by the plaintiff for the defendant, and the question in the case therefore is whether the services of the plaintiff were performed under the expectation that they would be paid for, or whether both parties expected and intended that they should be gratuitous. The testimony is quite contradictory on this point, and the referee has not found the fact either way. In his first report he finds that there was no contract, expressed or implied, that the plain tiff’s services should be paid for. Whether there was an implied contract is not a question of fact, and there are no facts found in the first report that will sustain the conclusion of law that the complaint should be dismissed.

In the second paper signed by the referee, which is called a more detailed finding of facts, the referee finds that the plaintiff, in the spring of 1870, was out of employment and somewhat destitute, but there is not the slightest evidence to support the finding. He finds also that the plaintiff rendered services during all the time he was at the defendant’s, down to June, 1874, but does not find that there was no expectation of compensation. He says he cannot resist the conviction that the services were performed without the expectation of receiving any thing more for his services than a comfortable home, with such pecuniary aid as the generosity of the defendant might prompt him to bestow; but we do not think this is a finding of fact.

It is rather a finding of the referee’s conviction. The evidence was contradictory, and the plaintiff was entitled to a distinct finding on this point. It is quite possible that services may be rendered among persons not related to each other at all under such circumstances that the law will not imply an agreement for compensation, and if the services of the plaintiff were so rendered for the deféndant he is not entitled to recover; and if they were not, then he is entitled to recover. This question has not been determined, and can be determined only by the trial court. We cannot determine it here, and there must be a new trial for that purpose.

New trial granted at the Circuit, costs to abide the event.

Gilbeet, J., concurred.

Present — BarNAbd, P. J., Gilbert and DtkmaN, JJ.

Judgment reversed and new trial .granted at Circuit, costs to abide event.


text:
    In the Matter of the Petition of the NEW YORK CATHOLIC PROTECTORY for an Order directing the BOARD OF SUPERVISORS OF THE COUNTY OF WESTCHESTER to Refund the Amount of a Tax Collected from it.

      County Court — Power to order tax to be refunded — Assessor's — acts of., r&oiewable by — § 8, chop. 647 of 1866 — § 5, cJiap. 855 of 1869 — ehap. 695 of 1871.'
    Where lands used for the charitable purposes of an association are exempted by statute from taxation, and the assessors of the town in which they lie illegally and improperly assess them, the County Court, on application of the party aggrieved, has power, under section 5, chapter 855, Laws of 1869, as amended by chapter 695 of the Laws of 1871, to order the taxes (when paid) to be refunded.
    Where the assessors have power to act, the County Court cannot interfere with the exercise of the power, but where they have no power to act, the assessment is illegal and improper, and the County Court can order the tax paid on such illegal assessment to be refunded.

      Hudson City Savings Institution (5 Hun, 613) distinguished.
    Appeal by the boarcl'of supervisors of Westchester county from an order in the above entitled matter, made by the County Court of Westchester county, on the 9th day of December, 1874, directing-said board to refund the sum of $788.46, the amount of tax assessed and levied upon the property of said corporation in the town of Westchester, in said county, in the year 1873, and collected from said corporation by the receiver of taxes of the town of Westches-ter, under the provisions of chapter 695 of the Laws of 1871, section 1.
    The respondents were incorporated by the provisions of chapter 448 of the Laws of 1863, and the acts amendatory thereof, namely, chapter 647 of the Laws of 1866, and chapter 83, Laws of 1871, and are a corporation created for charitable and reformatory purposes, and for such purpose have owned, possessed, and used for more than five years certain lands and buildings in the town and county of ■Westchester, which were used for such charitable and reformatory purposes, and for no other purpose whatever. By section 3 of said chapter 647 of said Laws of 1866, it is enacted: “ The real and personal estate belonging to and used for the charitable purpose of said association shall be exempt from taxation.”

      The fact of said exemption was duly communicated to the assessors of said town in the year 1873, and before their action in the premises, but notwithstanding such exemption and notice thereof, the assessors set down on their assessment roll, as lands liable to taxation for the year 1873, a portion of the said lands so owned and used for the aforesaid charitable purposes, and the same having been presented to the board of supervisors, the said body estimated in the assessment roll the tax of $788.46 to be borne by said portion 'of said lands and paid by the respondents, and said amount was levied and collected of the property of the respondents. The petition alleging the foregoing facts was not in any respect denied by the board of supervisors.

      Odie Close, for the appellant.
    I. The County Court has no jurisdiction to review the action of assessors in making an assessment, and it could not therefore adjudge the tax in question to be illegal or improper.
    The act under which authority is given to make the order in question, is an act to extend the powers of boards of supervisors, and was not intended to clothe the County Court with jurisdiction to review the action of assessors in making an assessment.
    II. The determination of the assessors in such cases is judicial, and of course not reviewable by any tribunal; certainly not by the County Court.
    III. A judicial error in such case, if any, is not a “clerical or other error,” within the meaning of the statute giving the County Court jurisdiction to review, or make any order for the refunding of the tax, etc. (Matter of the Hudson City Savings Institution, 5 Hun, 612.)

      Robert Goehran, for the respondent.
    I. The action of the assessors of the town of "Westchester, in deciding that any portion of the property of the respondents was liable to taxation, was illegal, and the making of the assessment exceeded their jurisdiction. (§ 3, chap. 647, Laws of 1866; The National Banlc of Ohemung v. The City of Elmira, 53 N. Y., 49.)
    II. This is one of those cases expressly contemplated by the law giving county courts the power to direct the remission of taxes. (§ 1, chap. 695, Laws of 1871.)
   DyKMAN, J.:

The New York Catholic Protectory is a corporation duly incorporated and organized for charitable and reformatory purposes and objects.

Por a number of years past it has owned and been in the possession of certain lands and buildings in the town and county of West-chester, all of which hare been exclusively used for the purposes of such charity and reform, which purposes specifically are the cure, maintenance, and instruction of the persons whom, by their charter, they are authorized and empowered to receive and have under their charge and control. The average number of the inmates of said buildings, and for whom the lands are used, is over 1,500, and all of whom are kept, fed, clothed, and maintained in the buildings and on the lands, and instructed in the branches of an English education and in trades and agriculture. The inmates are principally orphan children.

It is provided, by the third section of the law which constitutes the corporation, that “the real and personal estate belonging to and used for the charitable purposes of said association shall be exempt from taxation.”. (Laws of 1866, chap. 647.)

In the year 1873, before the assessors of the town of Westches-ter had made their assessment, they were informed that all the lauds and biiildings of the corporation in their town were occupied and used exclusively for the charitable and reformatory objects of the corporation. Notwithstanding this information, the assessors of the town of Westchester set down on their assessment roll and assessed a portion of these lands. The assessment was confirmed, the tax was levied by the board of supervisors of the county of Westchester, and collected by the collector of the town. The amount of the tax so levied and collected was $788.46.

On the 12th day of November, 1874, the corporation presented a petition, stating substantially the foregoing facts, to the County Court of Westchester county, and asked that an order might be made directing the board of supervisors to refund the amount of the tax so levied and collected. The board of supervisors appeared before the County Court and answered the petition, and made answer that the assessment complained of was, in all respects, legal, and that in the making thereof no clerical or other error was committed, or any injustice done to the corporation, and asked that the prayer of the petition be denied. None of the facts stated in the petition were denied, and, of course, were all assumed to be true, and the action of the County Court was based upon them.

The County Court made an order directing the board of supervisors of 'Westchester to refund to the Protectory the amount of the tax so levied andcollected. ’ From that order the board of supervisors appealed to this court, and the whole matter is now before us for examination and determination.

The order of the County Court was made under section 5 of chapter 855 of the Laws of 1869, as amended by chapter 695 of the Laws of 1871. As so amended, the section provides that the board of supervisors of any county, except New Yoi’k and Kings, may, by a two-third vote, legalize certain informal acts of town meetings, and certain irregular acts of town officers, upon recommendation of the County Court; “ and, also upon like recommendation, to correct a clerical or other error in any assessments or returns.”

“And upon the order of such court made, on application of the person aggrieved and notice thereof to such board, it shall refund to such person the amount collected from him of any tax illegally or improperly assessed or levied.”

As the facts stood admitted before the County Court, they showed that the tax had been illegally and improperly assessed and levied, because the property was exempt from taxation by a special statute, and the attention of the assessors had been called to the fact and the exemption claimed. The assessors had no jurisdiction over the property at all. -

But it is claimed that as only such lands as were used for the charitable purposes of the corporation are exempt from taxation, it became the duty of the assessors to determine the question as to what lands were so used, and to assess land which, in their judgment, was not so used; that such determination on the part of the assessors was a judicial act, and not reviewable by the County Court.

The answer to this is that the admitted facts before the County Court, upon which this order was made, shows that if the assessors did determine that the lands of the petitioners were not all used for tbe purposes of the charity, they determined erroneously, and it is elementary law that where the right of assessors to act depends upon the existence of some fact which they erroneously determine to exist, their acts are void. (Bank of Chemung v. City of Elmira, 53 N. Y., 53.)

In that case the same argument was' used that was used in this, and in relation to it Chief Justice CnuROH uses the following-language : It is argued that they have jurisdiction to determine what property is taxable in the town. This is a mistake. The legislature determines that question and the officers have no power over it. The statute requires the assessors to £ ascertain by diligent inquiry,’ two things : First, the taxable inhabitants. Second, the taxable property. Where they decide erroneously as to a taxable inhabitant, it is conceded, and The Mygatt Case (15 N. Y., 316) holds, that they are liable as trespassers Why not, when they err as to taxable property ? The duty is precisely the same, and the power conferred in the same language. Assessors must have jurisdiction over the person and the subject-matter.

The person must be an inhabitant of the town and the property must be taxable, otherwise the assessment is illegal and void.”

In this case it appears that there never was any dispute about the facts; the assessors were informed fully of the exemption and put in possession of all the facts, and there was nothing in them to call for the exercise of any j udgment on ' their part at all. They simply determined to disregard the statute and make the assessment. With this large number of human beings before their eyes, occupying and using these buildings and this land for the charitable purposes contemplated by the legislature at the time the exemption was declared, these town assessors yet saw fit to determine that this real estate was taxable.

This is a noble charity maintained and carried on under the observation of these very assessors, and should meet the encouragement and approbation of all men, and we think it was a.mistaken zeal in the discharge of their public duties that induced these assessors to assess this property and thus cause the collection of the tax. But it is said further that the County Court had no power to make the order, and no jurisdiction to review the act of the assessors in making an assessment and that the law under which the authority was given was not intended to clothe the County Court with such power.

To sustain this position the case of The Hudson City Savings Institute (5 Hun, 612) is cited and it must be admitted that some things which are said in that opinion, do give countenance to the position, but the case is not analogous to this. That was a case of an assessment which was entirely legal and proper, and at the close of the opinion, and in what was undoubtedly intended to give the true reason for the decision, Mr. Justice Jambs uses the following language: “ Therefore, in this case, whatever may be the fact about exemption, the assessment was legal and proper, and the County Court was without authority either to review or, upon new facts, to retry said assessment and adjudge it illegal or improper.”

This is entirely correct, as we- should expect it to be, coming from a judge of so much ability and experience as the eminent justice who prepared the opinion. The statute in question does not give power to the County Court to adjudge a tax illegal or improper, but to make an order that the board of supervisors shall refund the amount collected of any person “ of any tax illegally or improperly assessed.”

The distinction is between an erroneous and illegal assessment. The former is when the officers have power to act and err in the exercise of the power. The latter is where they have no power to act at all, and it does riot aid them to decide that they have. (Bank of Chemung v. City of Elmira, 53 N. Y., 58.)

We hold, therefore, that as the tax in this case was illegal and improper the County Court had the power, under the statute, to make the order, and it must be affirmed.

Present — BARNARD, P. J., G-ilbert and DyemaN, JJ.

Order affirmed, with costs and disbursements.


author: Gilbert, J.;

text:
    WILLIAM A. GUEST, Respondent, v. THE CITY OF BROOKLYN and others, Appellants.

      Assessment — irregularity in, cured by legislative act — Law directing that property defectively assessed, for local improvement be taxed to the amount of the assessment— validity of — Constitution, art. 7, § 13 — requiring tax and object to be stated — relates solely to State finances, and does not govern assessments for local improvements— chap. 297 of 1861 — chap. 383 of 1869 — construction of.

    Appeal from a judgment entered upon the report of a referee, cancelling an assessment on the plaintiff’s land, and a sale had for the non-payment of a tax, including an installment of such assessment, and enjoining the city of Brooklyn from enforcing the collection of such tax, etc.
    The assessors of the city of Brooklyn were by law directed to ascertain the actual cost of the Third street improvement (so called) in said city, and to apportion and assess the same among and upon the lands benefited by said improvement, situate within a specified district of assessment, according to the provisions of chapter 297 of the Laws of 1861, and chapter 383 oí the Laws of 1869. The latter act directed that one-nineteenth part of such cost, with interest, should be annually collected by tax, until the whole should be paid. In the annual tax against the plaintiff for 1871, there was included the sum of $267.11, being one-nineteenth part of the sum apportioned as the plaintiff’s share of the cost of said improvement, with interest. The referee found that such apportionment was null and void, but upon what ground did not distinctly appear. Fie also found that one-half of the plaintiff’s lot, upon which the tax aforesaid is a charge or lien, was not within said district of assessment, and the legal effect of the judgment rendered by him was to enable the plaintiff to pay that part of the tax against him, which would remain after deducting therefrom said sum of $267.11, and upon such payment being made, to have the whole tax canceled, and the plaintiff’s lot relieved from the incumbrance thereof, and of the proceedings had for the sale of said lot for the non-payment of the tax.
    The court at General Term say: “We are unable to concur in the conclusions of the referee. The act of 1869, before cited, conferred upon the assessors jurisdiction, and made it their duty to make the apportionment referred to, and to add one-nineteenth of the plaintiff’s share of the amount thereof to the annual tax against him in each year. That act we think is clearly valid, whether the proceedings in respect to the Third street improvement, which it ratifies, were void for irregularity or illegality, or not. It is not necessary to discuss the objections urged against the validity of those proceedings prior to the passage of - said act of 1869, for it was competent for the legislature to direct, that the actual costs of that improvement, however incurred, should be ascertained, and to impose a tax directly for the amount of such cost upon the property which they deemed benefited by the improvement. That is the legal effect of said act of 1869. The reference which it contains to the act of 1861, for the purpose of prescribing the manner of imposing and collecting the tax, was sufficient, whether the latter act be deemed valid as a separate enactment or not. We think, however, it was a valid act. The legal effect of such reference to it was to incorporate the matter referred to into the act of 1869, and as there was then no constitutional prohibition against that method of legislation, it must be held to be a legal mode of expressing the legislative intent, and effect must be given to it accordingly. The tax, and the object to which it was to be applied, we think were sufficiently stated. But if not, we are of opinion that the tax is not affected by article 7 of the Constitution. That article relates solely to the State finances, and does not govern assessments for local improvements. (People v. Sv/prs. of Ghenamgo, 4 Seld., 317; Darlington v. The Mayor, 31 N. Y., 186.) The case of Hanlon v. Supervisors, contra (57 Barb., 383), is in conflict not only with the cases cited, but with a decision on this point made at a General Term of this court. (6 Bans., 97.) Nor is there any force in the objection that the legislature did not designate tbe means for ascertaining the cost of the improvement, or that the tax therefor was imposed through the medium of the board of assessors. The legal presumption is, that such cost was ascertained in a proper way, and the imposition of the tax was done in the mode generally adopted. That the legislature has power to amend defective proceedings of public officers, to render valid acts within the scope of the legislative power, but which were done under statutes that infringed one or more provisions of the Constitution, and to impose taxes for the expense of public works incurred without antecedent authority, has been in effect repeatedly adjudged. (People ex rel. Alb. and Sus. E. E. Qo. v. Mitchell, 35 N. Y., 551; Ee Van Antwerp, 56 id., 261; People v. Williams, 3 N. Y. S. 0. [T. & C.], 339; Eogers v. Smith, 5 Hun, 4J5; Pean v. Borch-senius, 30 Wis., 236; Brewster v. City of Syracuse, 19 N. Y., 116; Guilford v. Supervisors of Chenango, 3 Kern., 143 ; Litchfield v. Vernon, 41 N. Y., 123; Sorchan v. City of Brooldyn, 6 N. Y. Sup. [T. & C.], 316.) Such power was exercised in the case before us, and it cured the numerous defects, assuming them to exist, which have been urged by the plaintiff to invalidate the tax. The meaning of the act of 1869 is plain enough, although the language used to convey the same is obscure. The legislature directed the cost of the improvement to be ascertained and apportioned, and the amoimt apportioned and remaining unpaid to be levied and assessed upon the lands chargeable therewith, as then provided by law, and in such manner that one-nineteenth part thereof (instead of one-twentieth, as had been previously provided), with interest, should be collected in each year. The lands to be assessed were defined by the act of 1861, and such district of assessment was adopted by the act of 1869. These remarks, if correct, shdw that there was no lack of authority for the levying of the- tax, and that the assessors had jurisdiction in the premises.”

      William C. De Witt, for the appellants. John J. Townsend, for the respondent.
   Opinion by

Gilbert, J.;

BarNArd, P. J., concurred.

Present — BaeNaed, P. J., Gilbert and DyemaN, JJ.

Judgment reversed and new trial granted at Special Term, costs to abide event.


author: BarNArd, P. J.;

text:
    FRANCIS D. MOULTON, Appellant, v. HENRY WARD BEECHER, Respondent.

      Malicious prosecution •— BnWy of nolle pi’osequi with defendant's assent, a sufficient end of the prosecution to support an action.

    The complaint alleged, in substance, that the defendant falsely and maliciously, and without any probable cause,- procured the indictment of the plaintiff for alleged criminal libels on the defendant.
    That defendant, falsely and maliciously and without any reasonable or probable cause, procured a warrant for the arrest of plaintiff, upon the aforesaid indictment, to answer the charges therein made against him as aforesaid, and afterward caused plaintiff to be taken in custody, and carried before a judge of the City Court of Brooklyn, and to be then and there compelled to give a bond to appear for trial therein.
    That defendant, falsely and maliciously and without any reasonable or probable cause, procured plaintiff to be arraigned before said City Court, and compelled him to plead to said indictment.
    That plaintiff pleaded not guilty, and was then, and ever since has been, ready and anxious to stand trial on said indictment; but the district attorney in and for .the county of Kings, after consulting with defendant and in compliance with his request, but against the will and protest of plaintiff, did, on or about the 22d day of October, 1875, move the said City Court of Brooklyn, that a nolle prosequi be entered as to said indictment, and the prosecution thereof against the plaintiff; and the said City Court did, then and there, grant said motion, and it was thereupon adjudged and ordered by the said court that a iiolle prosequi should be allowed and entered as to said indictment and prosecution against plaintiff, and the same was allowed and entered of record in said court.
    That the said indictment, complaint and prosecution, and each of them, is wholly ended and determined in favor of plaintiff, in the manner set forth in the last preceding paragraph.
    That, by reason of .the premises, plaintiff has been injured in his good name and wounded in his feelings, and involved in expense and subjected to insult and oppression, to his damage $50,000.

      Wherefore plaintiff demands judgment for $50,000 and costs.
    The defendant demurred to the complaint, on the ground that, as it appears upon the face thereof, the complaint did not state facts sufficient to constitute a cause of action.
    The demurrer was sustained at the Special Term, on the ground that there was no sufficient averment that the action was terminated in plaintiff’s favor, and from the order sustaining it the plaintiff appealed.
    The court at General Term say : “ The prosecution complained of in this action, as falsely and maliciously made, was criminal. The plaintiff avers that the defendant falsely accused him of perjury, and that he made the accusation maliciously. The criminal charge resulted in an indictment, and the complaint avers, that the prosecution thereof has been terminated in .plaintiff’s favor, by the entry of a nolle prosequi on motion of the district attorney of the county where the indictment was pending and triable, and with leave of the court. That the motion was made ‘ after consulting with defendant, and in compliance with his request.’ * * * This was a sufficient averment of the termination of the criminal charge in favor of plaintiff. * * *
    The judgment at Special Term should be reversed, and the demurrer overruled, with costs.”

      Soger A. Pry or, for the appellant. Shearman & Sterling, for the respondent.
   Opinion by

BarNArd, P. J.;

Gilbert, J., concurred. DtumaN, J., not sitting.

Order sustaining demurrer reversed, with costs, and demurrer overruled, with costs, with leave to defendant to answer in twenty days.


author: E. DaiíwiN SMitk, J.:

text:
    MARY PENDERGAST HOOK, Appellant, v. DANIEL PRATT, PATRICK LYNCH and WILLIAM T. HAMILTON, Executors of, etc., of JAMES P. HASKIN, Deceased, and others, Respondents.

      Portions of will revoked ly codicil fraudulently procured, and destroyed — Supreme Court has powei' to establish and restore the portion destroyed — Surrogate’s Court, no such power.

    A complaint alleged the fraudulent destruction, during the life-time of the testator, of certain clauses in his will, and prayed, among other things, that such clauses he restored and established as part of said will, setting forth such clauses and the beneficial interest thereunder of the plaintiff, who was neither heir at law or next of kin to the testator.

      Held, not demurrable on the ground that it did not state facts sufficient to constitute a cause of action.
    That the Surrogate’s Oourt had no power to grant the relief; it could only grant letters of probate on a perfected will, but had no jurisdiction to establish a lost or destroyed will.
    That, although the statute (title 1, chap. 6, 3 E. S.) refers to a “ lost or destroyed will,” it should have a liberal construction in furtherance of justice, and for the prevention of fraud; and the fraudulent destruction of a single item or clause, or distinct portion or provision of a will, must be considered as the destruction of a will by design, under section 63, or fraudulent under section 67, if such destruction affects the disposition of the property of the testator in any essential particular.

      That the court, under the provisions of the statute aforesaid,, have ample power, upon due proof of the allegations of the plaintiffs complaint, to restore the destroyed or suppressed portions of the will, and establish the same as it stood before the making of the codicil alleged to have been fraudulently procured; and the probate of such codicil allowed or made by the surrogate did not preclude such investigation and decision, or bind or affect the plaintiff upon such question in the prosecution of her action.
    Appeal from an order made at Special Term, sustaining a demurrer to a complaint, on the ground that it did not state facts sufficient to constitute a cause of action, and from the judgment entered thereon in favor of the defendants.
    James P. Haskin, of the city of Syracuse, died on or about January 30, 1873, possessed of a large real and personal estate, leaving a will dated January 16, 1871, and a codicil thereto dated April 5, 1872, which latter was in these words: “I, James P. Haskin, of the city of Syracuse, N. Y., do make this codicil to my last will as follows, viz.: Desiring to cancel and revoke the bequests made in the eleventh (11), twelfth (12) and thirteenth (13) items of my last will and testament* which was made, executed and published the 16th day of January, 1871, I have detached said items from said will and destroyed them.
    In witness whereof I have hereunto set my hand and seal this 5 th day of April, 1872.
    [l. s.] J. P. HASKIN.”
    The said will (without said 11th, 12th and 13th clauses) and the codicil were admitted to probate by the surrogate of Onondaga county, on the 24th day of February, 1873, and letters testamentary were duly issued to the defendants Daniel Pratt, Patrick Lynch and William T. Hamilton, named as executors in .said will, who thereupon duly qualified and entered upon the discharge of their duties as such executors, and continued to act as such executors at the time of the commencement of this action.
    The plaintiff alleged in her complaint that she was neither an heir at law or next of kin to the said James P. Haskin, deceased, and that said previous probate of said will and pretended codicil was had without any notice to, or citation of the plaintiff, who was a legatee under the will of the said James P. Haskin, deceased, prior to the said pretended codicil, which purports to expunge clauses eleventh, twelfth and thirteenth of said will, as it stood at the date of said pretended codicil, and that the plaintiff had no knowledge of said probate nor of the issuing of said letters testamentary, until long after the said probate had been had, and the said letters testamentary had been issued by the said surrogate as aforesaid.
    She further alleged, upon information and belief, that by the clauses of said will, which purport to have been expunged by the said pretended codicil, the following legacies were given and bequeathed by the said testator to the following persons:
    By the said eleventh clause the sum of $100,000 was given and bequeathed to Charles EL, son of this plaintiff, whose name was at the time of the said bequest Mary Pendergast, upoir certain conditions, and if the conditions were not complied with, the said Charles H., son of the plaintiff, and James P. Haskin, the testator, was to receive under and by said will the sum of $50,000 at his majority. Also, if the plaintiff, the mother, should resign control of her said son Charles H., as provided in the will, she was to receive, by the said eleventh clause of said will, the sum of $1,200 per year during his minority, and also the sum of $20,000 at his majority; and the plaintiff averred that she ever has been and still was ready and willing to resign the control of her said son Charles EL, etc.
    By the said twelfth clause the sum of $800 per year during her life was given and bequeathed to Mrs. Rust, the sister of the plaintiff.
    By the said thirteenth clause the sum of $300 per year during her life was given and bequeathed to Mrs. Pendergast, the mother of the plaintiff, and grandmother of the said Charles EL, son of the plaintiff and the testator, James P. Haskin, deceased.
    That said pretended codicil was not made, signed, published or declared on the day it bears date, but at a much later period, to wit: On or about the first day of September, 1872; and was procured to be dated back by the fraud, constraint and undue influence, practiced upon the said testator, by 'William T. Elamilton, Frances Maria Hamilton and Eliza Cossitt Lawrence, and each of them, and other persons acting in their interest and on their behaltj they and each of them well knowing that at the time the said testator, James P. Haskin, was totally unsound in mind and incapable of making a will or codicil.
    The plaintiff further alleged that the said James P. Haskin, deceased, became acquainted with the plaintiff when she was a girl only eleven years of age, and from that time forward met her often; and before this plaintiff became sixteen years old the said James P. Haskin, deceased, had, by his enticements and allurements, compassed her virtue; and from that hour down to the time of the marriage of this plaintiff, this plaintiff had been unto the said James P. Haskin, now deceased, all that a wife could be, or be expected to be, unto a husband; and that the plaintiff, during this intimacy, had borne unto him three living children, all of whom were dead at the time of, and‘for a long time prior to, the decease of the said James P. Haskin, except the said Charles H, who was and still is living with this plaintiff; and since the marriage of this plaintiff, the said James P. Haskin, while living and able to visit them at their home in Rochester, did not cease his kind attention, etc. That subsequent to the plaintiff’s said marriage, the said James P. Haskin, with full knowledge of the same, and to do justice to the plaintiff and her said son Charles H., as well as to the mother and sister of this plaintiff, to whom he was under many obligations, made his last will and testament; after serious opposition from said William T. Hamilton, Frances Maria Hamilton and Eliza Cossitt Lawrence, and in the said eleventh, twelfth and thirteenth clauses of said will, the said testator provided generously for the plaintiff and her said son Charles H., and also for this plaintiff’s mother and sister, in spite of the aforesaid opposition. That during the interval between the date of said will and the date of the said pretended codicil, while the mind and body of the said James P. Haskin, deceased, were gradually growing weak and feeble from disease, suffering and trouble, the said testator was almost continuously besought, threatened and coerced by the said William T. Hamilton, Frances Maria Hamilton and Eliza Cossitt Lawrence, and each of them, who well knew the relations that existed between this plaintiff and the said testator, that he should change his said will, and cut off the bequests to this plaintiff and her family; but that the said testator resisted such threats and importunities until finally, when he could bear up no longer, his will was overpowered, and he yielded his own to the wishes of said William T. Hamilton, Frances Maria Hamilton and Eliza Oossitt Lawrence. That the said eleventh, twelfth and thirteenth clauses of said will, which, by the said pretended codicil, purport to have been expunged, detached and destroyed, by the said testator, James P. Haskin, deceased, were not in fact so detached and destroyed, by him the said testator, but as the plaintiff was informed and believes true, were actually in existence subsequent to the death of the said testator, whose death was occasioned by his own insane suicidal act, and were in the possession of the said William T. Hamilton, Daniel Pratt and Patrick Lynch, one or all of them, and that the said clauses of said will are still in existence in their possession or under their control; and she demanded judgment and the decree of this court, that the said pretended codicil to the will of the said James P. Haskin, deceased, be declared null and void, and the probate thereof be set aside, and the letters testamentary issued thereon be revoked and canceled, and that the said eleventh, twelfth and thirteenth clauses of said will be restored and established as a part of the said last will and testament of the said James P. Haskin, deceased', and that the said pretended codicil be decreed never to have been legally or sufficiently acknowledged; that the plaintiff be permitted to apply to the surrogate of the county of Onondaga to prove and establish the said last will and testament of the said James P. Haskin, deceased, as it stood on the said 16th day of January, 1871, the day it bears date, without the said pretended codicil, and with the said three clauses pm-porting to have been destroyed, restored as a part or parts of said last will and testament, and for other and further relief.

      Fuller & Vann, for the appellant.
    The statute directly confers jurisdiction upon a court of equity to grant the relief asked for in this bill — upon the production, of course, of the necessary proof. Section 63 b of the statute reads : “ Whenever any will of real or personal estate shall be lost or destroyed by accident or design, the Court of Chancery shall have the same power to take proof of the execution and validity of such will, and to establish the same, as in the case of lost deeds.” Section 64 b reads : “ Upon such will being established by the decree of a competent court, such decree shall be recorded by the surrogate, before whom the will might have been proved, if not lost or destroyed, and letters testamentary, or of administration with the will annexed, shall be issued thereon by him, in the same manner as upon wills duly proved before him.” (See, also, sections 65 b, 66 b, 6?'b, and 68 b of the same statute.) Chapter 238 of the Laws of 1853 (4 R. S. [Edm. ed.], 503), provides: “ That the validity of any actual or alleged devise or will of real estate may be determined by the Supreme Court in a proper action for that purpose,” etc. Thus, whatever may have been the remedy in such cases before the statute, this court now has jurisdiction : 1st. To declare that codicil void. 2d. To establish the three clauses purporting to have been detached and destroyed. This being done, the surrogate must record the decree, and issue letters as the statute directs. This is the relief prayed for in the complaint.

      D. Pratt, for the respondents.
    I. A court of equity has no jurisdiction to set aside a will of personal property, not even for fraud. The surrogate has exclusive jurisdiction in such cases. {Fisher v. Clark, 1 Paige, 171, 176 ; Colton v. Ross, 2 id., 396 ; Kerish v. Bransby, 7 Brown [P. C.], 437; Hoff. Ch. R., 10; 1 Yes. Sen., 284, 287.)
    o II. In this case the will has been admitted to probate by the decree of a court not only of competent but of exclusive jurisdiction to hear and determine the same. Until that decree be reversed upon appeal, it is conclusive upon all parties interested. {Fisher v. Clark, supra; Colton v. Ross, supra; Borgardus v. Clark, 4 Paige, 624; Vamderpool v. Van Valkenburgh, 6 N. Y., 190; 3 Barb. Ch., 481; Hoff Ch. R., 10; 1 Story, 547; 12 Mass., 525; 1 Pick., 535 ; Allen v. Dundos, 3 Term R., 125 ; 1 Yes. Sen., 284, 287; 7Bro. P..C., 437.)
    III. It is not material that the plaintiff was not made a party to the proceedings before the surrogate. 1. It is in-the nature of proceedings in rem, to which any person having an interest may make himself a party by applying to the proper tribunal before which the proceedings are had, and will therefore be bound by the decree of such tribunal, although not in fact a party. {Borgardus v. Clark, supra ; Vanderpool v. Van Valkenburgh, sxtpra ; Hoff Ch., 10; Scott v. Sherman, 2 ¥m. Black., 977; Hart v. McNamara, 4 Price, 154 note.) 2. A legatee named in the will has a right to intervene for her interest on the probate of a codicil which revokes the legacy. (Walsh v. Ryan, 1 Brad., 433; Terhune v. Brook-field, 1 Ned., 220.) (a.) One claiming as legatee under an alleged lost or destroyed will of a prior date to that propounded before the surrogate, may be admitted to contest the probate, upon his commencing an action in the Supreme Court to establish there the destroyed will.
    IV. This cannot be considered an action to establish a lost or destroyed will, as the complaint sets out a copy of the will. It also alleges that the portion exjumged is still in the possession of the executors.
   E. DaiíwiN SMitk, J.:

The demurrer was sustained at Special Term upon the ground that the complaint does not contain facts sufficient to entitle the plaintiff to the relief prayed for in the complaint.

In this I think the learned judge was mistaken. The complaint sets up, and makes out, a case of fraudulent destruction of three clauses of the will of the said James P. Haskins, deceased, and prays, among other things, that such clauses, marked the eleventh, twelfth and thirteenth, be restored and established as part of said, will and testament. This court has full power and authority, I think, under sections 42, 63 and 67, title 1, chapter 6, part 2 of the Eevised Statutes, to entertain such action, and give such relief, as held in Timon v. Claffy (45 Barb., 438), and Voorhis v. Voorhis (50 id., 119), which latter case was affirmed in the Court of Appeals, in 39 New York, 463. ( Vide, also, Schultz v. Schultz, 35 id., 656.)

■ The Surrogate’s Court had no power to grant such relief. It can only grant letters of probate upon a perfected will, propounded for that purpose. It can take proof respecting its due execution, and has exclusive jurisdiction of that subject in respect to all persons named in the will or interested therein as heirs, legatees or next of kin. But it has no jurisdiction to establish a lost or destroyed will. The plaintiff in this action stood in no such position or relation to the testator as to entitle her to be cited to attend the probate of the said will, and was not, in fact, cited. Section 63 of the statute above referred to, declares that “ whenever a will of real or personal estate be lost or destroyed, by accident or design, the Court of Chancery shall have power to take proof of the execution and validity of such- will, and to establish the same as in the case of a lost deed; ” and section 64 provides, that upon such will being established by the decision of a competent court, it shall be recorded by the surrogate before whom it might have been proved if not lost or destroyed,” and letters testamentary, with the will annexed, shall be issued thereon by him in the same manner as upon wills duly proved before him. Section 67 provides, that “ no such will shall be proved as a lost or destroyed will, unless the same shall be shown to have been in existence at the time of the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator.” This is the allegation in the plaintiff’s complaint in respect to the three items or clauses of the will stricken out of the same. This statute should have a liberal construction in furtherance of justice and for the prevention of fraud. The destruction of a single item or clause, or distinct portion or provision of a will fraudulently, must be considered as the destruction of a will by design, under section 63, or fraudulent under section 67, if such destruction affects the disposition of the property of the testator in any essential particular.

I have no doubt that this court, under the provisions of the statute aforesaid, has ample power, upon due proof of the allegations of the plaintiff’s complaint, to restore the destroyed or suppressed portions of said will, and establish the same as it stood before the making of the codicil, dated and purporting to be executed on the 7th of April, 1872, and that the probate of said codicil already allowed as made by the surrogate does not preclude, such investigation and decision, or bind or affect the plaintiff upon such question in the prosecution of this action.

The order sustaining the demurrer in said complaint should be reversed and the said demurrer should be overruled, with leave to the defendants to answer upon the usual terms.

Present — MulliN, P. J., SMith and Taloott, JJ.

Order sustaining demurrer reversed and demurrer overruled, and leave to answer granted upon the usual terms.


author: E. Daewin Smith, J.:

text:
    ARETHUSA DECKER, Respondent, v. FREDERICK S. GAYLORD and CHESTER GAYLORD, Appellants.

      Lessee ami surety — can be sued jointly, undes' Code, § 120— Continuing guwantee.

    A lease was signed by F. S. G., and then by C. G. Opposite to the name of the latter (whose name did not appear in the body of the lease) was written, “security for Frederick S. Gaylord.” Held, that both could be sued in one action under section 120 of the Code.
    The lease was for one year, but had a provision in it in these words: “ This contract is to he renewed for three consecutive years, if it is fulfilled to the satisfaction of both parties.” Held, that the guarantee was continuing and the guarantor liable for the second year’s rent in default.

      Carman v. Plass (28 FT. Y., 286) followed.
    Appeal from a judgment entered on the verdict of a jury. The action was brought to recover a balance due on a lease of a certain farm in Phelps, Ontario county, being the balance of rent due on the lease from April 1, 1874, to April 1, 1875. -The lease is dated April 1, 1873, and was for one year, but contained this clause: “ This contract is to be renewed for three consecutive years if it is fulfilled to the satisfaction of both parties; ” it was signed by Arethusa Decker, the plaintiff, and then by the defendant, Frederick S. Gaylord, the lessee, with their seals, and then as follows: “ Chester Gaylord, security for Frederick S. Gaylord.” Frederick S. Gaylord continued to occupy the premises until April 1, 1875.

      Fav/rot dfc Gooding, for the appellants.

      Metcalf da Field, for the respondent.
   E. Daewin Smith, J.:

The chief point in controversy in this case relates to the form of the action. The defendants’ counsel claimed at the Circuit, that the defendants could not be sued and held liable together in one action, and that their contracts were separate, and that they must be sued thereon separately. The learned judge ruled that the parties were jointly liable, and the defendants’ counsel duly excepted.

It is clear, I think, that the judge was in error if he intended to decide, that the defendants were joint lessees of the plaintiff, or that they could be held liable upon the lease given in evidence in that capacity. The lease was clearly a contract between the plaintiff and the defendant Frederick S. G-aylord. He was the lessee and the sole contracting party as such in the lease, and the defendant Chester signed the same as his surety, and is not a lessee named in the lease, and he did not make himself a party to the same, except as a guarantor, or as he expressed it in words following his signature, as “ security for Frederick S. Gaylord.” This was quite like the case of Gould v. Moring (28 Barb., 444), where, at the foot of a certificate or statement of a leasing by the lessee of certain premises stating the terms and signed by him, his name was followed with the words “ security H. E. Moring.” This was held a guarantee, or a collateral agreement to pay the rent if the lessee did not, and a separate and distinct contract from that of the lessee’s, following the case of Brewster v. Silence (4 Seld., 207); and it was also held, as it was in the latter case, that a joint action would not lie against both parties. These cases are authority for the defendants’ position here and at the Circuit.

But these cases are, on that point, overruled by the case of Carman v. Plass (23 N. Y., 286), where a sounder view of the question is taken, and proper force given to section 120 of the Code, which declares, that persons severally liable upon the same obligation or instrument,, including the parties to bills of exchange and promissory notes, may all or any of them be included in the same action at the option of the plaintiff.” That decision was made in respect to the lessee, and a guarantee of the payments by such lessee of the covenants in a lease quite analogous to the present one, and is decisive of this case.

The plaintiff was, therefore, entitled to recover against both defendants in the action as held by the Circuit judge, though not upon the precise ground stated by him. The ruling was right in legal effect, and it did no injury to the defendant that it was put upon an erroneous ground.

The ruling of the Circuit judge was also correct in respect to the liability of Chester Gaylord for the second year’s rent. The contract of guarantee was a continuing one, running with the lease if the same were renewed by the parties for a second year, and third year successively.

If the lease was renewed for the second year, by the parties thereto, that is by the lessor and lessee named therein, the defendant Chester Gaylord continued -liable as security that his principal should perform the covenants of said lease on his part for said second year.

I see no substantial error in result and legal effect, committed by the Circuit judge, and I think we should affirm the judgment.

Judgment affirmed.

Present— MulliN, P. J., Smith and Taloott, JJ.

Judgment affirmed.