text:
    FRANCES A. PARR, as Administratrix, etc., of RICHARD PARR, Deceased, Respondent, v. THE VILLAGE OF GREENBUSH, Appellant.
    Judgment— to what extent a judgment recovered in a former action is conclusive — contract signed by the board of trustees of a village — power of the board to liquidate the damages — -what provision will be construed as liquidating the damages and ' net as fixing a penalty.

    In an action, brought by the plaintiff’s intestate to recover for labor performed and materials furnished, in part pursuant to a contract entered into between the intestate and the board of trustees of the village of Greenbush, dated December 20,1870, and in part under a resolution of the said board of trustees, dated September 30, 1873, the plaintiff was allowed to recover for so much of the materials and labor as he had furnished and performed under the contract, but was not allowed to recover for what he had furnished and done under the resolution, the court holding that it was invalid for want of power in the board of trustees to pass it. Thereafter this action was brought to recover a sum claimed by him to be the liquidated damages fixed by the contract by a provision thereof which provided that “ for the true and faithful performance of all and every of the covenants and agreements above mentioned, the parties to these presents bind themselves, each unto the other, in the penal sum of five thousand dollars, as fixed and settled damages, to be paid by the failing party.”

      Held, that the judgment recovered in the first action was no bar to a recovery in this one, as the causes of action were not the same, and as no fact essential to the maintenance of this action was determined adversely to the plaintiff in the former one. •
    That the satisfaction of the judgment in the former action upon a settlement and compromise between the parties, while an appeal was pending, did not embrace this cause of action.
    That as the village had power to make the contract, it had power to fix and determine the amount of the damages to be sustained upon its breach, subject to the power of the court to correct them if alleged and shown tobe so grossly excessive and fraudulent as to justify an inference of collusion being drawn therefrom.
    That, under the facts and circumstances of this case, the sum named in the contract was to be regarded as liquidated damages.
    By the terms of the contract the village agreed to furnish the sand and gravel and grade the street, which it could do in a certain manner prescribed by law, but not otherwise. Having failed to take the steps necessary to enable it to do this, it passed the aforesaid illegal resolution of September thirtieth requiring Parr to furnish the sand and gravel and do the grading. Upon the trial of this action the village claimed that the contract was in part performed by it, and that the intestate accepted such part performance and thereby waived his claim for damages:

      Held, that this claim was untenable as the damages arose nnder that part of the contract which the village did not perform.

      Appeal from a judgment in favor of the plaintiff, entered at the Albany Circuit upon the verdict of a jury.
    The action was brought to recover the sum of $5,000, which was claimed to have been fixed as the liquidated damages to be paid by either party failing to perform a contract entered into between the plaintiff’s intestate, Richard Parr, and the defendant village, whereby Parr agreed to flag, pave and curb the west side of a street, in the village of Greenbush, and the defendant agreed to furnish all the sand and gravel and to properly grade the street.

      J. B. O' Malley, for the appellant.

      George Parr and E. Countryman, for the respondent.
   Landon, J.:

The contract in question of date December 20,1870, was adjudged valid in the former suit. The resolution of the board of village trustees of date September 30, 1873, was in the same suit held invalid. (Parr v. Greenbush, 72 N. Y., 463.) By the valid contract Parr agreed to furnish certain specified materials and do certain work at a price which the village thereby agreed to pay him. By the same contract the village agreed to furnish the sand and gravel and grade the street. Prom the nature of the case, Parr could not perform his part of the contract until the sand'and gravel were furnished and the grading done. This precedent performance the village had no power to make, or cause to be made, except in a certain prescribed manner, and it never took the steps necessary to acquire the power to make it, and never in fact made it. Being in default, it went outside of its powers and by the void resolution of September 30, 1873, apparently, but not actually, requested Parr to furnish the sand and gravel and do the grading. This Parr did, and his performance was reasonably worth upwards of $6,000. Having made this performance he went on and performed his contract. He first brought an action against the village to recover for all his labor and materials, and upon the trial made proof of all thereof, furnished under both contract and resolution. He recovered for so much as he had furnished under the contract, but was denied recovery for so much as was furnished under the resolution. It stands adjudged that he can recover nothing under the resolution.

This action was then brought to recover the liquidated damages or penalty agreed upon in the contract of December, 1870. It provides: “ And for the true and faithful performance of all and every of the covenants and agreements above mentioned, the parties to these presents bind themselves each unto the other, in the penal sum of $5,000, as fixed and settled damages, to be paid by the failing party.”

The statute of limitations bars the action if the contract is not under seal. The contract recites that it is made under the seals of the parties. It uses the v¡ ord covenants, which implies a seal. It is signed by Parr, and by the president and members of the board of trustees, and a wafer or seal is affixed after each individual name. It was signed at a meeting of the board.

The village has no corporate seal, and, therefore, if it needs to use a seal upon any contract, must adopt, for the purposes of that contract, the seal it chooses to affix thereto. It could use these wafers, and we think that the facts here existing justify, within the authorities, the finding of the trial court, that the contract was under seal. (Bank of Middlebury v. Rutland, etc., R. R. Co., 30 Vt., 160; Tenney v. East Warren Co., 43 N. H., 343; Pickens v. Rymer, 90 N. C., 282; Mill Dam Foundry v. Hovey, 21 Pick., 417; South Baptist Soc. v. Clapp, 18 Barb., 36 ; 1 Dillon Mun. Corp. [3d ed.], § 190.) The breach of the contract on the part of the village was established. What Parr did at the void request of the village was not done by the village. It could not adopt the act, since it could not ratify what it could not originally authorize.

The judgment in the former action is no bar to the recovery in this. That action sought recovery for work and materials furnished under an invalid resolution ; this action seeks recovery for stipulated damages upon breach of a valid contract. The unsuccessful pursuit of a recovery upon an invalid demand is no bar to the successful pursuit upon a valid one. The invalidity of the resolution made all the evidence, given in support of the demand under it, utterly impotent and unavailing. Hence it was impossible to recover anything upon that claim in any action whatever; and since this one was not therein alleged, no recovery upon it was admissible. (Stowell v. Chamberlain, 60 N. Y., 276; Dawley v. Brown, 79 id., 391.)

To sustain the plea of a former judgment in bar of a second action, it must either appear that the cause of action in both suits is the same, or that some fact essential to the maintenance of the second action was in issue or determined in the first action adversely to the plaintiff. (Perry v. Dickerson, 85 N. Y., 315.)

Here the causes of action are not the same, and no fact essential to the maintenance of this action was determined adversely to the plaintiff in the former action. The issue of law that was determined in the former action was that the resolution was invalid. The plaintiff insisted that it was valid, and was overruled. What he insisted upon there, namely, that the resolution was valid, he does not insist upon here; it is so far from being essential to his recovery here that if established it would be fatal to it. The conclusion of law established there aids his recovery here, and, so far as the purposes of this action are concerned, was determined favorably to the plaintiff, and he accepts that determination. If that conclusion is one of fact the same result would follow. The judgment establishes the fact that the resolution was invalid. If that fact could bar this action, the judgment would establish the bar. But the fact which was fatal to the former claim establishes this one. It follows, also, that the satisfaction of the judgment in the former action upon a settlement and compromise between the parties while an appeal was pending, did not embrace this cause of action. It did not in terms, and there is no evidence that would support a finding that such was the intention of the parties.

The village objects that it had no power to make the agreement to pay $5,000 as liquidated damages. It had the power to make this contract for this work with Parr, to the extent that it should furnish the sand, etc., and pay Parr upon his performance. It would, therefore, have become liable to Parr for his actual damages if it had refused to allow him to perform, he being ready and willing. What would have been the amount of those damages ? They could not certainly be known in advance, but they might be estimated and limited. If grossly excessive, fraudulent collusion might be inferred, and be redressed upon proper allegations and proof. But, as was said in Little v. Banks (85 N. Y., 263), while there is no positive statute which authorizes the State officers to fix a sum as liquidated damages for a breach of the contract, inasmuch as they have the power to make such a contract as would be advantageous to the State, it necessarily follows that they have a right to impose such reasonable provisions as would carry out this purpose.”

Here the actual damages which Mr. Parr sustained were in excess of the sum fixed; these are damages which, under the circumstances, it is just the village should pay, because it has had their full equivalent in the work done and materials furnished; to the extent that he suffered, the village was benefited. There does not, for the reasons above stated, appear to be any urgent need to determine whether the $5,000, should be regarded as liquidated damages or as a penalty. The case of Little v. Banks instructs us that the determination must be made in view of the circumstances of each particular case. The courts hesitate to formulate a rule that will prevent the accomplishment of the justice which the particular case requires. Here the contract speaks of “the penal sum of $5,000 as fixed and settled damages,” and we see no reason to dissent from the conclusion of the trial judge that that sum is to be regarded as liquidated damages.

The village further urges that the contract was in part performed by it and that Mr. Parr accepted such part performance, and thus waived his damages. But the damages sustained by Mr. Parr were under that part of the contract which the village did not perform, and the covenant to pay damages was for failure to perform every agreement upon its part. The covenant embraces every breach, and if there was only one, it embraces that. But the defendant refused wholly to perform, and Mr. Parr did all the work and furnished all the material for both parties. He performed the part which the village ought to have performed, doubtless supposing that thereby the village was in fact performing. He could not without injustice be held to have waived a performance which he supposed to have been performed through himself. Waiver implies a consent that the breach existing shall be disregarded. No such consent can be here implied. He in effect said to the village, “ I will waive the breach caused by your non-performance, if you will pay me for making performance for you.” The condition of the waiver was not accepted.

The judgment should be affirmed, with costs.

Learned, P. L, Bocees, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Landon, J.:

license: Public Domain

text:
    JOHN M. MAYER, Respondent, v. THE EQUITABLE RESERVE FUND LIFE ASSOCIATION, Appellant.

      Mutual benefit Ufe assurance companies — 1888, chap. 175 — duty of such companies to resist the payment of illegal claims.

    This action was brought to recover an amount alleged to be due, under a mutual benefit life assurance certificate, to the plaintiff, as the assignee of one Stephan, to whom a certificate of membership in the defendant’s association had been issued. The defendant is an association, organized under chapter 175 of 1888, for the purpose of mutual benefit life assurance. Upon the trial the defendant offered to show the invalidity of the plaintiff’s claim by proving the falsity of certain representations made by Stephan upon procuring the certificate, which representations were made a part of the conti act. This evidence was excluded, under the objection of the defendant, upon the ground that as the defendant had acquired the money sought to be recovered by virtue of assessments levied upon and paid by its members for the purpose of paying the claim, it thereby became the agent of its members for the purpose of paying the money upon the claim and had no right to cpntest its validity or withhold the payment of the money.

      Held, that the court erred in so excluding the evidence; that it was the duty of the defendant to protect its members and the fund in its hands frfftn all invalid claims.
    Appeal from a judgment in favor of tbe plaintiff, entered at the Ulster Circuit upon a verdict directed by the court.
    The action was brought upon a certificate of membership in the defendant’s association (an association organized under chapter 175 of 1888 for the purpose of mutual benefit life assurance), issued tc Charles Stephan, which was alleged to have been assigned to the plaintiff, to recover a sum of money claimed to be payable under the beneficiary clause of such certificate.

      Lucius Me Adam and Samuel Eleischmam,, for the appellant.

      E. S. Wood, for the respondent.
   Landon, J.:

The defendant offered evidence tending to show the invalidity of the plaintiff’s claim. This evidence was excluded upon the assumption that the defendant acquired the money in question by virtue of assessments levied upon and paid by its members for the purpose of paying the claim, and thereby the defendant became the agent of the members for the purpose of paving the money upon the claim, and, therefore, had no right to contest its validity or withhold its payment.

¥e do not think the facts justify such an assumption. The money was assessed by the defendant upon its members and paid by them under their contracts for insurance with the defendant These contracts provided that upon the occurrence of the death of any of its members” the assessment might be levied. The assessment, in this instance, was levied by the defendant upon the occurrence of the death of Charles Stephan, who held, at the time of his death, the defendant’s contract of insurance upon his life. That contract was either valid or invalid. By its terms, and by the terms of the constitution and by-laws of the defendant, which were a part of the contract, its validity depended upon the truth of the material representations made by Stephan upon procuring it. The right to payment under the contract dep&nded upon its validity, or, at least, upon the inability of the defendant to show its invalidity. That invalidity it offered evidence tending to show. The defendant was, in a certain sense, the agent of the members of the company, but was an agent with special and defined powers and limitations, and the true and obvious construction of these powers and limitations forbade payment upon a claim which it was able to show was procured through misrepresentation or fraudulent suppression of facts, concerning which it required answers from Stephan when he applied for membership. That it had realized the money with which to make payment was no waiver of its duty to see to it that payment was due. That duty it still owed to its members, who had paid their assessments trusting to the fidelity of the company to protect them and the fund from invalid claims.

We think the defendant was entitled to prove the facts which it offered in defense.

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

Learned, P. J., and Bookes, J., concurred.

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


author: Learned, P. J.: Landon, J.: Bookes, J.

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY and Others v. ALFRED C. CHAPIN, Comptroller of the State of New York, and JAMES L. WILLIAMS and Others, Assessors, Respondents.

      Assessment of the expenses of the rait/roa-d commissioners on railroad companies — the State officers in so doing act judicially— their action may be reviewed on certiorari— construction of the provision of section 13 of chapter 353 of 1883.

      OerUorari to review the proceedings of the defendants, as State officers, in making an apportionment of the expenses of the board of railroad commissioners for the year immediately preceding July 1, 1886, pursuant to section 13 of chapter 353 of 1883, which provides that these expenses shall be borne by the several corporations owning or operating railroads “according to their means,” and directs the said officers to " assess upon each of said corporations its just proportion of said expenses, one-half in proportion to its net income for the year next preceding that in which the assessment is made, and one-half in proportion to the length of the main track or tracks on (its) road; and such assessment shall be collected in the manner provided by law for the collection of taxes upon corporations.”

      Held, that the State officers in apportioning and assessing th'e expenses acted in a quasi judicial character, and that their action was reviewable on certiorari by a company aggrieved thereby. (Bocees; J., dissenting.)
    It was admitted that the assessment was made in proportion to one main track on a road-bed, and not in proportion to the several main tracks there might be thereon.
    Held, that it was error so to do; that the legislature intended that all the main tracks, and not merely a single one, should be included in the estimate.
    That the fact that the return disclosed that the assessment had been completed, and that the amounts assessed upon some of the railroads had been paid by them, did not require the court to dismiss the writ as it was not shown that the respondents delivered to any one, or parted with, the ■ assessment which they had made, nor did it appear that the statute required they should deliver the same to any one.
    Certiorari to review an apportionment, made by the respondents, of the expenses of the board of railroad commissioners, among the railroad corporations of the State, for the year ending June 30,1886.
    Chapter 353, Laws of 1882, entitled “An act to create a board of railroad commissioners, and to define and regulate its powers and duties,” provides (sec. 13) that “ the annual total expense of the said board of railroad commissioners * * * shall be borne by the several corporations owning or operating railroads, according to' their means, to be apportioned by .the comptroller and State assessors, who, on or before the first day of July in each year, shall assess upon each of said. corporations its just proportion of said expenses, one-half in proportion to its net income for the year next preceding that in which the assessment is made, and one-half in proportion to the length of main track or tracks on (its) road, and such assessment shall be collected in the manner provided by law for the collection of taxes upon corporations.”
    On June 30, 1886, the respondents made an apportionment of the expenses of the board for the preceding year, and assessed one-half thereof upon the corporations, in proportion to their net income, as provided by the act, but assessed the other half in proportion to the length of the first or single main track (7,86 L miles) only on the road of each, instead of all main track or tracks (10,624 miles), as the act requires. The roads of the relators are mainly single track, and the failure of respondents to include all the main tracks, on roads which have more than one track, increases the assessment against relators.
    Prior to the making of the assessment, two of the relators served a written demand upon respondents, in which they claimed that the respondents should make the apportionment in the manner now contended for.

      John B. Kerr, for the relators.

      I). O' Brien, attorney general, for the respondents.
   Learned, P. J.:

By section 13, chapter 353, Laws of 1882, the comptroller and State assessors are to assess on each of the railroads in this State the expenses of the railroad commissioners (which, by a previous section, are to be audited by the comptroller). The assessment is to be one-half in proportion to the net income of the corporation, and one-half in proportion to the length of the main track or tracks of the road.

It seems to us that the respondents act in a quasi judicial character. They are to ascertain and determine how much is the net income; how long are the main tracks. And this determination further involves (as appears by this action) the disputed question, what is the meaning of main track or tracks.” Their decision takes from one railroad and imposes on another a charge, according as they estimate the net income and the main tracks of one or another at a greater or less amount.

Exercise of judgment and discretion in a public agent, it is true, does not make him a judicial officer (People ex rel. Corwin v. Walter, 68 N. Y., 411), because ministerial officers are not required to act like idiots. But where a burden is to be borne by each of several parties in a proportion dependent on facts and law, and a board is to make the apportionment according to facts and law; such board has to decide law and fact between conflicting parties. That is judicial.

Is it too late for the relators to obtain relief ? The respondents are not required to issue any warrant, they are merely directed to assess, then the assessment is to be collected as provided for collection of taxes upon corporations. That would seem to refer to the taxation under chapter 542, Laws 1880; and the mode provided for the collection of those taxes appears to be an action by the people. (Sec. 9 of that Act.) Therefore the position of these respondents does not seem to be like that of supervisors, who issue a warrant on their tax-roll and deliver that to the collecting officer. Hence the case of People ex rel. Weeks v. Supervisors (82 N. Y., 275), is not quite applicable. There is no tax-roll or warrant in this case which is beyond the reach of the respondents. If some of the railroads have paid their assessed amounts, the payment may have been voluntary and restitution may be awarded (Code, § 2142), as may be done on. appeal from a judgment. (Sec. 1323.)- For the determination need not be reversed. It may be modified (sec. 2141); and these two new provisions seem to relieve cases like this from some-difficulties.

The return of the respondents only shows that several railroad, companies have paid their proportions as assessed. Any party interested in upholding the decision may come in. (Sec. 2137.) And,, in fact, the railroads that have paid' appeared on the argument, so-that the parties who claim that a reversal or modification would affect them have been heard.

It is not shown in the return that the respondents have delivered to any one, or parted with, the assessment which they made. Nor does it appear by the statute that they should deliver the same to any one, so that they do not stand in the position of the assessors of taxes (People ex rel. Marsh v. Delaney, 49 N. Y., 655), or of the commissioner of taxes (People ex rel. Law v. Commissioners, 10 Sup. Ct. [9 Hun], 609), or of the supervisors, as in People v. Supervisors (ut supra). They are,- so far as appears, in fact and legally, the custodians of the assessment which is sought to be reviewed. (Code, § 2129.) And they have made return to the writ, setting forth their assessment by reference to the schedule attached to the petition ; and thus they have not claimed that the assessment is not §till in their custody.

On the merits it seems to us that the relators are right. As the fact did not appear distinctly on the return, it was admitted upon the argument (to prevent any doubt upon this point) that the assessment was made in proportion to the one main track on a road-bed and not in proportion to the sevei’al main tracks on a road-bed.

The intention of the legislature seems to have been, in the first place, to apportion one-half according to net income, which would be equitable so far as the roads were profitable. But, inasmuch as some roads might not be profitable, and yet ought to bear their share, the other half was to be apportioned on a different basis; on a basis of what might be considered, approximately, the magnitude of the road, and a basis which would also measure, approximately, the labor of the railroad commissioners in respect thereto. That basis is the length of main track, or tracks, of road.”

Now the respondents, in assessing, take into account only one main track. As, for instance, the New York Central and Hudson River Railroad Company has in fact 2,130 jffo miles of main tracks. But inasmuch as in some places four, and in other places two, of these main tracks are parallel, that company is assessed on only 993-3^- miles. These facts appear in the schedules, and were practically admitted on the argument.

Now the argument of the respondents is that the legislature intended that the test should be the value of the property, based upon the earnings and income. But plainly the legislature did not mean this. They meant that one-half should be assessed in proportion to net income, but that the other half should be assessed in another proportion. The very use of the words “ or tracks ” in the statute shows that all the main tracks, and not merely a single one, were to be estimated. If the statute had meant what the respondents claim, it would have said “ in proportion to the length of one main track on road.” This construction is sustained by the specifications required in annual reports. (Chap. 575, Laws 1880.) There several tracks on main line are spoken of, and are distinguished from sidings and turnouts. Notice, especially, Table C., No. 45: “Miles of steel rails (reduced to single track) in main line.” That certainly includes several parallel main lines.

It is urged by the respondents that the assessment is, according to the statute, to be made on the roads “ according to their means.” If this expression were to be taken as explaining the more definite language which follows, would it not be reasonable to hold, if there were two roads, having road-beds of equal length, and one road had one main track and the other two, that the “means” of .the latter were double that of the former? Indeed, the argument of the respondents expressly says that the intention of the legislature was to assess this remaining one-half “ upon the length of their respective road beds.” Thus the respondents show that different language would accurately express what they claim to have been intended.

¥e think that the assessment upon the relators should be reduced in accordance with these views. The amounts are a matter of calculation and will be stated in the order.

Fifty dollars costs and disbursements to relators.

Landon, J.:

The relators have been assessed for too much. It is no answer to their complaint that others have been assessed too little, unless it appear that the public interests would, by correcting this wrong, suffer greater wrong. It does not so appear in this ease. The relators’ assessment can be reduced to its proper amount, and should be.

' Assessments modified and reduced as follows (see p. 5, Mr. Kerr’s brief), with fifty dollars costs and printing disbursements.

Bookes, J.

(dissenting):

The law here brought under examination (Laws of 1882, chap. 353) provides for an assessment of the expenses incurred by the board of railroad commissioners, to be imposed and collected pursuant to a provision contained in section 13 of that act, which is as follows: Such expenses shall be borne by the several corporations owning or operating railroads, according to their means, to be apportioned by the comptroller and State assessors, who, on or before the first day of «Tuly in each year, shall assess upon each of said corporations its just proportion of said ■ expenses, one-half in proportion to its net income for the year next preceding that in which the assessment is made, and one-half' in proportion to the length of main track or tracks on road, and such assessment shall be collected in the manner provided by law for the collection of taxes upon corporations.”

The certiorari in this case is brought to review the action of the comptroller and State assessors in making an assessment upon the railroad companies under this provision; and the error charged is this: That the defendants did not follow the law, in that they omitted to assess the one-half of the expense upon the entire main track of the roads, but made the assessment according to the length of the line of road-bed, there being in some instances several lines of main track laid and used thereon.

We are of the opinion that the question in dispute is not properly before us in this proceeding, and that the certiorari should be quashed, and for two reasons: First. This law imposes no judicial duty upon the officers named as regards the subject in controversy. The action required of them is but ministerial. They are given no discretion on the subject, nor is there any fact to be judicially determined by them as a basis for their action, as regards the alleged error here complained of. The law itself declares precisely what shall be their action, and gives the entire basis for their action. The error here complained of, if well grounded, may, perhaps, be reached and corrected by mandamus ; but as to this we give no opinion. It is sufficient here that the relators are not entitled, in this proceeding, to the relief demanded, even if correct in their allegations of error.

The certiorari should be quashed, with fifty dollars costs and disbursements against the relators.

Assessments modified and reduced according to opinion. Order to be settled by Learned, P. J.


author: Landon, J.: Bockes, J.: Learned, P. J.

text:
    MARY J. DARROW, Respondent, v. FAMILY FUND SOCIETY, Appellant.

      Provision a/ooiding an insurance policy in case the assured shall die in the violation of, or the attempt to violate, any criminal law — the assured does not violate such a provision by committing suicide — Penal Oode, secs. 173, 178.
    This action is brought by the plaintiff upon a policy of insurance or bond issued by the defendant, a corporation organized under chapter 175 of 1883, by which it agreed to pay to the plaintiff, the wife of one James H. Darrow, “within sixty days after the receipt of satisfactory evidence to the society of the death of the within named member, during the continuance of this bond in full force, * * * five thousand dollars from the death fund of this society at the time of said death, as hereinbefore mentioned and provided.” It further provided as follows: “ This bond shall be void if the member named herein shall die in consequence of a duel or by the hands' of justice, or in violation of, or attempt to violate, any criminal law of the United States, or of any State or country in which the member herein named may be.” Upon the trial the judge excluded evidence offered by the defendant to show that Darrow committed suicide, upon the ground that that would not be a defense to the action.

      Held, that he did not err in so doing. (Learned, P. J., dissenting.)
    Neither suicide, nor the successful attempt to commit it, is made a crime by the Penal Code of this State. (Per Landon, J.)
    Appeal from a judgment in favor of the plaintiff, entered at the Saratoga Circuit upon a verdict directed by the court, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    This action was brought upon a policy of insurance or certificate of membership issued by the defendant, a corporation organized under chapter 175 of the Laws of 1883, upon the life of James IT. Darrow for the sum of $5,000.
    The policy, or as it is styled by its own terms the bond, bears date January 14, 1885, is issued under the corporate seal and the signatures of the vice-president and secretary of the defendant, and, among other things, binds the defendant to pay to the plaintiff (then the wife, now the widow, of the insured), “ within sixty days after the receipt of satisfactory evidence to the society of the death of the within named member, during the continuance of this bond in full force, * * * five thousand dollars from the death fund of this society, at the time of said death, as hereinbefore mentioned and provided.” The defendant is what is known as an assessment insurance society, and the scheme of raising the funds to pay the death claims is set out in the bond and is as follows: “ Whenever the death fund is insufficient to meet the existing claims by death, a call shall be made upon this entire class of membership in force, * * * but not more than one call shall be made to meet one death claim. Eighty per cent of the net amount received from such call shall be deposited in a bank and be used for the payment of death claims only, and the remaining twenty per cent shall be set apart as a reserve fund and deposited in a trust company to be accumulated to meet any contingency that may arise by reason of extra mortality, if any.” The bond further provides as follows: “ This bond shall be void if the member named herein shall die in consequence of a duel or by the hands of justice, or in violation of, or attempt to violate, any criminal law of the United States, or of any State or country in which the member herein named may be.”
    The answer tendered but two issues that are material to this appeal: First. That the bond was made payable only out of the death fund, and payment was conditioned on the sum being realized from an assessment, and that there was not any money in the death fund applicable to the payment of the bond. Second. That the bond was void if the deceased should die in violation of, or attempt to violate, any criminal law of the United States, or of any State or country in which he might be, and that he died in the State of Now York from the effects of poison taken and administered by himself with intent to take his own life in violation of the criminal law of the State. For the purpose of showing suicide of the deceased the defendant offered certain evidence, to which the plaintiff objected on the ground that suicide was not one of the causes specified in the policy which would avoid it, and was no defense to the action. The court sustained the objection.

      George Wilcox, for the appellant.

      jEdgar T. Braclcett, for the respondent.

       See post, p. 252.

   Landon, J.:

The question is whether the insured died “in violation of, or attempt to violate, any criminal law of the United States, or of an}' State or country in which, the member may be.” I think that suicide, or the successful attempt to commit it, is not made a crime by our Penal Code. “ A crime is an act or omissioif forbidden by law and punishable upon conviction by,” etc. (Sec. 3.) “Although suicide is deemed a grave public wrong, yet, from the impossibility of reaching the successful perpetrator, no forfeiture is imposed.” (Sec. 173.) Attempting suicide is made a crime. (Sec. 178.) It is thus defined: “A person who, with intent to take his own life, commits upon himself any act dangerous to human life, or which, if committed upon or towards another person and followed by death as a consequence, would render the perpetrator chargeable with homicide, is guilty of attempting suicide.” (Sec. 174.) It seems to follow that the attempt to commit suicide, if successful, is suicide and no crime, but only “a grave public wrong,” but if unsuccessful, is a crime. Section 685 — which provides that “ a person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated, unless the court in its discre-, tion discharges the jury and directs the defendant to be tried for the crime itself” — can, from the nature of the case, have no application to an attempt to commit suicide. The attempt is the crime itself. To bring it within the section there should be an attempt to attempt to commit suicide. If there is an attempt to commit suicide, the success of the attempt does not consummate the crime, but avoids it. How could the jury be discharged and the defendant be tried for the crime itself ? What crime ? The section must be limited to the cases to which it can apply.

The objection that this action, being at law, could not be maintained because there was not sufficient proof of money in the death fund of the defendant, is satisfactorily answered in the opinion of the presiding justice.

I advise an affirmance of the judgment and order.

Bockes, J.:

The condition in the “ bond ” counted on is as follows: “ This bond shall be void if the member named herein shall die * * * in violation of or attempt to violate any criminal law,” etc.; that is, shall die in violating or in attempting to violate any criminal law. Admit, as it must be admitted under the exceptions to the exclusion of evidence, that Darrow committed suicide: was this condition broken ? It would not be broken by the act of suicide; for suicide, although “ a grave public wrong,” is not within the reach of criminal law. (Penal Code, § 173.) But did he not, under the above admission, attempt suicide, which is itself a crime? (Penal Code, §§ 171, 178.) Certainly he did ; yet he did not die in the commission of the attempt as an independent aet. The attempt as an independent act is the crime declared by law; that is an unsuccessful act, having suicide for its consummated purpose. It is the unsuccessful act which is made punishable as a crime (sec. 178), not the successful act, which is beyond the reach of punishment under municipal law. An attempt implies a want of successful purpose. Of this Darrow did not die. He died of a successful purpose. He, therefore, did not die of the attempt, which, as a separate and independent act, is by law declared to be a felony, and made punishable as such. The offense contemplated by the Criminal Code (the attempt) is an offense for which the offender may be punished by imprisonment in the State prison. Such was not Harrow’s offense. The mere reading of section 685 of the Penal Code shows the inapplicability of that section to this case. That provides for an act which the perpetrator survives. It must follow, therefore, that he did not die “ in violation ” of that provision of the Criminal Code (and there is no other applicable to the case), which makes an attempt to commit suicide an offense for which punishment is provided. As above suggested, this provision of law had in contemplation a punishable offense, to wit: an attempt, without success, to commit suicide; and, as is also above suggested, of. this he could not die. If the above conclusion be sound, proof that Darrow committed suicide would not show that he died “ in violation of or attempt to violate any criminal law,” because of which, according to its provisions, the bond ” in suit would be void.

It may be added that there was proof of money belonging to the death fund, applicable to the bond ” in suit, to the extent of the recovery.

The judgment and order appealed from should be affirmed,with costs.

Learned, P. J.

(dissenting)

This is an action on a policy of insurance or certificate of membership or bond, issued by defendant to J ames H. Darrow. The defendant is incorporated under chapter 175, Laws of 1883, and does the business of life insurance on the co-operative or assessment plan. By the policy of insurance (or bond, as defendant calls it) the defendant, within sixty days after evidence of the death of Darrow, was to pay the plaintiff $5,000 “from the death fund of the society at the time of said death, as hereinbefore mentioned and provided.” It was further provided therein that whenever the death fund is insufficient, a call should be made on members. Eighty per cent of the amount received should be used for payment of death claims, and twenty per cent should be set apart as a reserve fund, to meet any contingency by reason of extra mortality. No special sum is mentioned which is to be called for in case of deficiency in the death fund. It must be understood that so much shall be called for that eighty per cent shall be sufficient to pay the death claim. It is further provided in the bond that it shall be void if the member named therein “ shall die * * * in violation of, or attempt to violate any criminal law * * * of any State or country in Avhich the member herein may be.”

Two defenses are setup: First. That there was not sufficient money in the death fund. Second. That Darrow committed suicide. The judge excluded evidence on the latter point on the ground that it was no defense, and ordered a verdict for plaintiff, and the defendant appealed. - In considering the second defense we remark that the case of Fitch v. The American Popular Life Insurance Company (59 N. Y., 557) is not to the point. There was nothing in that policy in that case which made suicide a defense. Patrick v. Excelsior Life Insurance Company (67 Barb., 202) does not apply. That held that “ the known violation of any law ” was a phrase which did not include suicide. It is not necessary to consider that suicide was a felony at common law, punishable by forfeiture of goods (4 Bl. Com., 189), because section 2 of the Penal Code declares what shall be crimes after that Code takes effect. Section 174 declares that any person who, with intent to take his own life, commits upon himself any act dangerous to human life, or which, if committed upon or towards another person and followed by death as a consequence, would render the perpetrator chargeable with homicide, is guilty of attempting suicide. Section 178 provides for punishment. Section 684 provides that a person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime was consummated, unless the court in its discretion discharges the jury and directs the defendant to be tried for the crime itself. Hence it follows, under the Penal Code, that the attempt to commit a crime is not so merged in success that the defendant may not still be punished therefor. It is true that when an attempt to commit suicide has been successful the guilty person cannot be punished because he is dead. That is the case with every criminal. He cannot be punished for his crime if he dies before trial.

Evidence was offered at the trial which, if admitted, might have shown that the deceased violated the above cited section 174 of the Penal Code. If, with intent to take his own life, he took poison, then he was guilty of the crime specially declared by that section. There is a general provision in section 686 as to unsuccessful attempts to commit crimes, regulating the punishment by reference to this punishment imposed on the crime itself.

But section 174 is an independent enactment, declaring certain acts to be crimes, and section 178 declares the punishment, with no reference to the crime said to be attempted. If, then, the deceased liad done the act, of which evidence was offered, and he had lived for several months afterwards, he might, during his life, have been indicted and convicted under that section 174.

It must be noticed that the provision of the policy specifies death in violation of a criminal law, and also death in an attempt to violate such law. Either of these makes void the policy. Nor is it therein expressly required that the attempt to violate be itself a crime. Now the evidence excluded tended to show a violation of a criminal law, and not merely an attempt to violate. Attempting suicide is itself a crime, and not accurately an attempt to commit a crime. (Sec. 34.) And the reason why the law was thus drawn was probably from the doubt whether suicide was a crime.

The question then arises, did the deceased die in violation of a criminal law? Of course the language used in the policy cannot have a literal meaning. It cannot mean to express a case where the insured was forbidden to die by some criminal law, and where his death was therefore in violation of the law. It must indicate a case where the death occurs in consequence of or in the course of the violation of a criminal law. As, for instance, if the insured were committing a burglary, and were killed in the act, and in consequence thereof. The object aimed at in this provision of the policy is that the company shall not be liable when the death of the insured is his own criminal fault. Thus the other circumstances which make the policy void are death in a duel or by the hands of justice. By analogy with these we may see that to die in violation of a criminal law means to die by reason of, or in consequence of, or in course of, a violation of a criminal law.

Now the evidence excluded tended to show that the deceased did commit the crime of attempting suicide, and that in consequence of such attempt he died. It is argued by plaintiff that one cannot die in the attempting suicide. But may not one die in the commission of a burglary ? Does not one die in violation of law when he dies in direct consequences of such violation? What other reasonable meaning can this provision have ?

It is argued for the plaintiff that the evidence shows that the deceased .not only committed the crime of attempting suicide, but that he succeeded. And the plaintiff argues that suicide is not a crime under the definition in section 3, Penal Code, and the statement in section 113. But the answer is that the Penal Code, as already shown, makes certain acts to constitute a certain crime, viz., that of attempting suicide. And the person who commits those acts is, at the very time of committing, guilty of that crime, although it may be that the consequence of his crime will be such that he cannot be punished. The man who attempts to commit a murder is none the less guilty if he^himself be killed in the attempt, and if he, therefore, cannot be punished. If this deceased had thrown a dynamite bomb into a crowd, with intent to kill some person, and the explosion had killed no one but himself, would he not have died in the attempt to violate a criminal law?

The plaintiff argues that if the deceased succeeded in committing suicide he passed beyond any crime and did that which, by the Penal Code, is no crime. But (assuming the evidence to prove what is claimed) he did the acts set forth in section 114, that is, with intent to take his own life, he committed on himself an act dangerous to human life. Therefore he committed the crime by that section defined. If he died a month or an hour afterwards, had he any the less committed a crime ? I am of the opinion that evidence tending to prove that the deceased committed the crime of attempting suicide, and that he died in consequence thereof, should have been admitted. There was a general exclusion of such evidence and, therefore, I do not specify any. On the other point, viz., that there was not sufficient money in the death fund, these facts must be noticed. Darrow died December 11, 1885. A call was made March 4, 1886, reciting Waas’ death, which showed a balance on hand of $1,807.58. This call produced for the death fund $11,282.48. Waas’ claim was $5,000. By a subsequent call of May 1, 1886, reciting the death of one Arnold, February 18, 1886, it appears that part of the residue had been applied to a Dewey claim, and on this claim. The society does not make a call on every death, but only when the death fund is insufficient. The call made upon Waas’ death after paying his claim would place in the death fund over $8,000. If there was money in the death fund from which plaintiffs claim could be payable (and it became payable about March 14, 1886), then there would be no defense on that ground, though there had been a diversion to other objects. There was, we think, evidence enough, in the absence of any contradictory evidence, to establish the plaintiffs case on this point.

For the reasons above given I think there should be a reversal of the judgment and a new trial, costs to abide the event.

Judgment affirmed, with costs.


author: Bocees, J.: Landon, J.: Learned, P. J.:

text:
    SUSAN M. FREEMAN, Respondent, v. THE NATIONAL BENEFIT SOCIETY OF NEW YORK, Appellant.

      Mutual benefit association — suicide is not a violation, or an attempt to violate, a criminal law — duty of a corporation to make an assessment to pay death claims — when a report made to the insu/rance department is admissible in evidence against the association — the person receiving the amwunt need not have an insurable interest in the life of the member.

    The decision made by this court in the case of Barrow v. Family Fund Society (.supra, p. 245), holding that the suicide of a member of a corporation organized under chapter 175 of 1883, did not come within the meaning of the provision contained in the certificate, that it should he void if the assured should die “ in the violation of, or attempt to violate, any criminal law,” reaffirmed and followed.
    By a certificate of insurance issued by tbe defendant there was to be paid to the plaintiff, “if living, * * in ninety days after due proof of the death of said member, a sum equal to the amount received from a death assessment, but not to exceed three thousand dollars;” and the fourth condition thereof provided that “the death claim under'this contract shall be payable in ninety days, after satisfactory proof of the death of the said member shall have been furnished,” as therein provided. The defendant objected to the right of the plaintiff to maintain the action to recover this amount upon the ground that the promise to pay was contingent, the beneficiary being restricted to a fund to be procured by an assessment, and that no proof of the existence of such fund was given.

      Held, that these objections were properly overruled for the following reasons:

      First That the requirement that payment was to be made in ninety days implied that there was an obligation "on the part of the company to proceed and make the necessary assessment to raise the fund.

      Second. That as the defendant had the power to make the assessment, it could not resist the payment oí the plaintiff’s claim by omitting to make it.

      Third. That the furnishing of satisfactory proof of the death of the member to the society, according to the provisions of the certificate issued to him, should be held to be a demand for payment, and impliedly a demand upon the company to procure the necessary funds by an assessment, if that were necessary.
    Proof that an assessment upon the members liable to contribute to the death fund, would have produced a fund sufficient to pay the plaintiff’s claim, was given by the production of the report of the society made to the State Insurance Department a few days before the member’s death.

      Held, that an objection by the defendant to its reception, on the ground that it was not the best evidence of these .facts, and that the books of. the company should be produced, was properly overruled, as the report made, as required by law, was of equal dignity and certainty with the records of the society.
    It was also objected that the plaintiff could not recover, because it was not shown that she had any insurable interest in the life of Darrow.

      Held, that it was not necessary that she should have any such interest.

      Massey v. Mutual Belief Society (102 N. Y., 528; affirming 84 Hun, 254) followed.
    Appeal from a judgment in favor of the plaintiff, entered at the Saratoga Circuit, upon the verdict of a jury.

      Louis P. Levy, for the appellant.

      Edgar T. Brackett, for the respondent.
   Bocees, J.:

The decision in the case of Mary Jane Darrow v. Family Fund Society, argued at the last term of this court, and now just handed down, disposes of the leading question here presented, favorably to the plaintiff.

According to that decision the trial judge correctly rejected all proof touching the subject of Narrow’s alleged suicide, and rightly held that suicide by Narrow, if proved, would not avoid the certificate of membership issued by the defendant to him, under the provision declaring that the contract should be void if the assured should die “ in the violation of, or attempt to violate any criminal law,” etc. For the grounds of this conclusion we refer to the opinion written in that case.

By the certificate, payment was to be made to the plaintiff, if living, in ninety days after due proof of the death of Narrow, of “ a sum equal to the amount received from a death assessment, but not to exceed three thousand dollars,” and by the fourth condition, upon which the certificate was issued and accepted, it was provided that “ the death claim under this contract shall be payable in ninety days after satisfactory proof of the death of the member shall have been furnished in the manner then declared.” Evidence was given to the effect that such proof was duly furnished, and that the action was not commenced until the expiration of ninety days therefrom.

It is urged that the provision to pay was contingent, not absolute, as payment was to be made out of a special fund, the death fund, to be procured from an assessment of the members of the society, and that the beneficiary was restricted to the fund thus specified; and, further, that there was no proof of the existence of such fund. It may well be that the beneficiary would be thus restricted, in case of due effort by the society to assess its members liable to assessment therefor. An omission to make an assessment which, if made, would produce a fund equal or greater than the claim, would create an obligation against the society, the same as if it had the fund on hand from which to make payment. It could not lie by and omit to put in operation the means possessed by it to obtain the fund and omit payment because of its own neglect of duty. This would be to take advantage of its own wrong, and it would operate as a fraud on the beneficiary under the certificate, since the obligation to raise the fund by assessment, when shown to be adequate for that purpose, would take the place of the fund in determining the question of liability.

So, too, the furnishing of satisfactory proof of the death of the member to the society, according to the provisions of the certificate issued to him, should be held to be a demand for payment, and impliedly would also be a demand upon the company to procure the necessary fund by assessment if need be. It should be further observed that according to the fourth condition upon which the certificate was issued and accepted, payment was to be made absolutelydn ninety days after satisfactory proof of the death of the member was duly furnished to the society. So, too, the provision in the body of the certificate, that payment should be made of a sum equal to the amount received from a death assessment, not to exceed the sum specified, in ninety days after due proof of the death of the member was given, implies an obligation ■ upon the company to proceed and make the necessary assessment to raise the fund within the time during which it was provided that the claim should remain in abeyance. For all these reasons, the objection to a recovery, on the ground that there was no proof of the existence of a death fund from which payment could be made, must be held of no avail.

Proof was given showing prima facie that an assessment upon the members liable to contribute to the death fund would have been adequate to the case of the beneficiary in this case. This proof was the report of the society made to the State insurance department but a few days after Darrow’s death. This evidence was objected to as not the highest or best evidence of the facts stated therein; that the books of the society should have been produced. The report so made was, however, of equal dignity and certainty with the records of the society. It was made up by the society from its records — indeed, was itself a record required by law to be made by the society and filed in the insurance department as a record. It was, therefore, competent evidence of the facts therein stated and certified, and the evidence of Mr. Bracked: went merely to calculations in elucidation of those facts, in connection with the table of the defendant’s assessment rates, which evidence and table, it seems, were received as proof without objection. The report to the insurance department, with the other proof above referred to, made a prima facie case against the defendant on the point of its ability, with due diligence, to raise a death fund sufficient to answer the claim in suit; and no proof whatever was given or offered to gainsay such prima facie case.

If it might have been the case, as is suggested by the defendant’s counsel, that all persons who were members of the society December 31, 1885, when the report to the insurance department was made, were not also members when Darrow died, but twenty days previously; and that the members named in the report may not have been solvent and able to pay an assessment if one had been made; or, that each and every assessment would have been paid if made — these were matters to be shown by the' defendant against what was fairly inferable from the case as made by the plaintiff on the evidence submitted. The report was made during the time within which there should have been an assessment to meet and answer the plaintiff’s claim. It was, therefore, to be inferred, in the absence of all proof to the contrary, that it contained the facts constituting a proper and adequate basis therefor.

It is further urged that the plaintiff, the per.son to whom payment was to be made, had no insurable interest in the life of Darrow. This fact was wholly unimportant to the defendant’s liability, inasmuch as one may take out a policy of insurance upon his own life and make it payable to another having no interest whatever in the life of the insured. This doctrine of the law has been settled in numerous cases. (Olmsted v. Keyes, 85 N. Y., 593, on page 600; Massey v. Mut. Mel. Soc., 31 Hun, 254, and cases there cited on page 256; affirmed in Court of Appeals, 102 N. Y., 523.) It may be added that no point is made by the defendant’s counsel as respects due notice to the defendant of Harrow’s death.

The judgment should be affirmed, with costs.

Learned, P. J., and Landon, J., concurred.

Landon, J.:

The insured was the same person who was insured in the case of Darrow v. Family Fund Society, and the language of the policy respecting the death of the insured in the violation of, or- attempt to violate any criminal law, is identical with the language in the policy in that case. Our decision in that case, that suicide did not come within the terms of the language employed, is decisive of the same question here.

The certificate of insurance in this case contains a contract on the part of the society to pay to the plaintiff, in ninety days after due proof of the death of the member, “ a sum equal to the amount received from a death assessment, but not to exceed three thousand dollars.”

No assessment was levied by the society to meet the claim of the plaintiff, but it was proved that if such assessment had been levied and collected it would have exceeded $3,000. The defendant objects that an action at law will not in such case lie to recover the $3,000, but only an action in equity to compel the society to levy and collect the amount and then pay it to the plaintiff.

But the contract was to pay a certain sum, not to cause it to be levied and collected ; it was not an agreement to pay from a special fund to be provided, but to pay absolutely, and the reference to the “amount received from a death assessment,” is one of the methods of measuring the amount to be paid. Whether that assessment shall be levied in each case of death is a matter for the society to determine. Here it is shown that the amount payable is less than an assessment fully collected would realize. Whether there is in the death fund an accumulation of like margins from previous assessments is best known to the defendant. The printed rules of the defendant provide that “ no assessment is to be made in either class while there remains unclaimed in the death fund of the class a sum sufficient to pay the maximum amount of benefit.” That no assessment was made with reference to this case is some evidence that none was necessary.

The objection that the plaintiff was not shown to have an insurable interest in the life of the insured was met by the recital in the application that she was a creditor. This was the only evidence upon the point, and, therefore, was not contradicted. But the plaintiff did not procure the insurance; the insured did that, and named the plaintiff as beneficiary. There was nothing in the charter or statute under which the society was organized forbidding the insured to make the policy payable to whomever he should appoint, and there is no evidence tending to imoeach the good faith of the transaction on the part of the insured. The defendant, therefore, must pay as it has agreed. (Olmsted v. Keyes, 85 N. Y., 593; Bickerton v. Jaques, 28 Hun, 122; Massey v. Mutual Relief Soc., 102 N. Y., 523.)

The act of the legislature under which the defendant was organized was examined in. the case last cited, and nothing found in it requiring the insured to restrict his beneficiary to a person having an insurable interest in his life.

The judgment should be affirmed, with costs.

Learned, P. J., and Bookes, J., concurred.

Learned, P. J.:

Since the important question in the case has been decided in plaintiff’s favor in the case of Darrow v. Family Fund Society, contrary to my own views, I concur in this opinion.

Judgment affirmed, with costs.

       See case preceding this, page 245. [Rep.


author: Learned, P. J.: Bookes, J.: Landon, J.

text:
    JOHAN JOST BECKER and Others, Respondents, v. WALTER S. CHURCH, Appellant.

      Summary proceedings io recover possession o" land — when the validity of a lease may be attached in such proceedings, by the defendant, for fraud — when an equitable action to cancel the lease will lie.

    This action was brought by the plaintiff to have a paper executed by the parties to this action, which purported to change the relation existing between thorn from a tenancy from year to year to a tenancy at will, set aside on the ground that it was procured by fraud, and to restrain the defendant from further proceeding, in certain summary proceedings instituted by him, to remove the plaintiff from the possession of the demised prei&ises. .Upon the trial it appeared that on or before July 5, 1882, the plaintiff Becker was a tenant of the defendant Church; that on that day the plaintiff was induced by fraud to execute a paper purporting to change such tenancy to a tenancy at will; that in May, 1883, Church, after serving a notice to quit, pursuant to the statute to terminate a tenancy at will, instituted summary proceedings to dicpossess Becker, whereupon the latter brought this ' action and recovered therein a judgment, from which this appeal was taken.

      Held, that the judgment should be affirmed. (Landon, J., dissenting.)

      It seems, that the question as to whether or not the alleged lease was procured by fraud could have been tried in the summary proceedings. (Per Bookes and Landon, JJ.; Learned, P. J., contra.)

      Appeal from a judgment, entered in Albany county, upon tbe report of a referee granting an injunction restraining the defendant from proceeding, in summary proceedings instituted by him, to remove the plaintiffs from certain premises in the town of Berne, by reason of the alleged expiration of the term of their tenancy, and canceling and setting aside an alleged lease on the ground that it was procured by fraud.

      S. W. Bosendale, for the appellant.

      W. efe G. W. Youmans, for the respondent.
   Learned, P. J.:

I assume for the present that on and before July 5, 1882, Becker was tenant from year to year of Church; that on that day a paper was executed between the parties which purported to change such tenancy to a tenancy at will; that such paper was, as the referee finds, obtained from Becker by fraud. Thereupon, in May, 1883, Church served a notice to quit upon Becker, pursuant to the statute to terminate a tenancy at will, and proceeded to take summary proceedings thereunder to dispossess Becker.

Now upon those proceedings, that paper would have been proof against Becker that he was such tenant at will. Could he in those proceedings have shown that that paper was obtained by fraud ? Is he, therefore, forbidden to maintain this action, which is brought both to set aside and cancel that paper, and also to restrain the summary proceedings? Now I suppose that an action in equity will be maintained for the purpose of setting aside and canceling an instrument affecting title to land and obtained by fraud. (Pomeroy’s Eq., §§ 110, 399; Story’s Eq, §§ 691, 700; Potter’s Willard’s Eq , m. p., 301.)

As part of the remedy, actions or proceedings on the fraudulent instrument will be enjoined. But could the county judge try the question of fraud in the obtaining of the instrument ? He has jurist diction to pass on the legal title only, and not on an equitable title. (Terrett v. Cowenhoven, 11 Hun, 320; People ex rel. Ainslee v. Howlett, 13 id., 138.) This latter case was affirmed (76 N. Y., 576), and the decision there, made by only four out of seven judges, goes to -the point that the defendant, by alleging facts, showing that the so-called lease was void for usury, set up a defense that denied the conventional relation of landlord and tenant, and that such an issue should have been tried by a jury.

Now, if we look at the Code (sec. 2244) it will be seen that the person against whom summary proceedings are taken may put in an answer denying generally the allegations, or specifically, any material allegation. He is, therefore, limited to denials. And there is no provision for affirmative allegations. Suppose, then, that the petitioner alleged a tenancy at will, and the respondent denied it. On the trial of that issue could the respondent have been permitted to show that the alleged lease was obtained by fraud, and was, therefore, voidable, not void, as in a case of usury ? I find no case where it has been held that any question, such as here arises, can be tried in summary proceedings.

It seems to me then that if the alleged instrument was obtained by fraud, as it affected Becker’s title to land, he might maintain an equitable action for its cancellation, and as a part of the relief therein, might restrain proceeding upon it. Nor do I think that fraud in obtaining an alleged lease is an issue to be tried in summary proceedings.

As my brother Bookes concurs with me in the former of these two propositions, the judgment is affirmed, with costs.

Bookes, J.:

I concur with my brother Landon in his opinion as to all subjects discussed by him thereinafter considered.

The summary proceeding here enjoined had its basis on the writing between the parties of July 5, 1882. The defense interposed in such proceeding by the present plaintiffs, Becker & Engle (their defendants) was, that such written agreement was void for fraud in its procurement.

Before the final order, in favor of the present defendant, the plaintiff in said proceeding, was signed by the officer before whona it was conducted, this action was brought for a double purpose, first, to have the written agreement adjudged fraudulent and void ; and, second, to enjoin the further .proceeding to remove the present plaintiff as tenant in default thereunder.

The referee, before whom this action was tried, found for the plaintiffs, that the paper was void for fraud, directed its cancellation ; also, that the defendant be enjoined from further action i the proceeding having for its basis such void instrument.

Now, I accept the conclusion reached by the referee and approved by my brother Landon in his opinion, that the written instrument was void for fraud; and I further concur in the conclusion reached by the learned judge that the invalidity of that instrument, because of fraud in its procurement, was proper matter of investigation in the summary proceeding. I am of the opinion that this point is determined in the People v. Howlett (76 N. Y., 574). It is there said, in approval of the doctrine laid down in Roach v. Cosine (9 Wend., 228), that the cases tend in the direction of permitting evidence going behind the formal character of the instruments in order to ascertain the real nature of the transaction, and a remark is added, which, here as there, has especial signification: It is to

be observed, however, that in proving the letting the real facts were developed,” etc. Thus, in this case, the proving of the instrument opened up and let in the proof which showed it void for fraud. It may be well to quote further from the case cited, as the reasoning is here applicable: It is urged that the tenant can only prove what is admissible under a simple denial of the facts, and that usury can never be shown unless pleaded. We think that this construction is too narrow. Usury renders the lease void. It is not a lease, and there can be no tenancy by virtue of a nullity, and a denial of the lease, and the tenancy entitles the party to prove the facts which render it void. He may show that it was obtained by duress under such denial.” (P. 580.) These remarks have direct application, as I think, to the subject under consideration. I am, therefore, of the opinion that proof to the effect that the instrument, relied on as a basis for the summary proceeding against the plaintiffs was void for fraud in its procurement, was competent matter of defense in that proceeding. But I am further of the opinion that, although there admissible, hence subject to review on appeal, it does not follow that this action will not lie in its present form and for the purposes for which it was instituted. The ground of action is the alleged fraud in the procurement of the writing, and the relief sought is its cancellation because of such fraud. This end could not be attained in the summary proceeding. Tlie ground of action is, too, undoubtedly of equity cognizance.

The conrt had jurisdiction in the case. Now, having jurisdiction as to the gravamen of the action and the relief sought to be obtained, all collateral matters growing out of it, within the scope of the equitable powers of the court, were matters to be redressed if justice so demanded. If need be, the Court of Equity will extend the remedy in the particular case so as to make relief complete. So, if an instrument be adjudged void, it may and should enjoin all future action based upon it.

Holding to this view of the case, I think the judgment should be affirmed, with costs.

Landon, J.

(dissenting):

This is an appeal from a judgment entered upon the report of a referee, granting an injunction restraining the defendant from proceeding further in certain summary proceedings instituted by him to remove the defendants from certain premises in the town of Berne, by reason of the expiration of the term of tenancy. Four acres of the premises are the same which we have considered in the case of Church v. Schoonmaker, and were held by plaintiff subject to the rents reserved in the Post lease of 1795. The other portion consists of one acre adjoining the Post parcel. This acre had originally belonged to Stephen Yan Rensselaer; had been leased by him to one Kast, and in 1842 was by deed conveyed by Kast to Yan Rensselaer. At that date Paul Settle was occupying the Post four acres as tenant of Yan Rensselaer, and it seems he went into possession of the Kast parcel as tenant, but without any written lease. The Post parcel was upon one side of a creek, and the Kast parcel on the other side directly opposite. The Post parcel had been known and used as a mill lot, and when Paul Settle went into the occupation of the Kast parcel he built a new mill- upon the Kast parcel, and the old mill went to decay or was torn down. Thereafter both parcels were used in part as a mill lot.

- The term of sixteen years mentioned in the Post lease of 1795 expired in 1811, but thereafter, without any written renewal of the lease, the Post parcel was occupied under the same terms, as to rent, until some time before 1842, when the rent was raised to sixty dollars. After Paul Settle went into possession of both parcels he paid rent at the rate of sixty dollars per year without any specification of the amount charged upon either parcel. In 1851, Paul Settle conveyed his interest in both parcels to Edward Settle, who continued to occupy and pay the same rent. He paid rent in full d on said lands,” as the referee finds, up to January 1, 1860. The referee finds that it does not affirmatively appear from whom Settle derived title to the Kast parcel, or by what tenure he held it.

It is apparent, however, from the facts found by the referee, that both Paul and Edward Settle held the Kast parcel under Tan Rensselaer and as his tenant, and, further, that the rent of both the Kast and Post parcels was sixty dollars per year. On the 27th of March, 1860, Edward Settle conveyed both parcels to the plaintiff by quit-claim deed, both parcels being separately described, the Post parcel being subject to the rents in the Post lease, but no mention of tenancy being made with respect to the Kast parcel.

The referee finds that on the 5th day of July, 1882, the plaintiff did not know the amount of rents reserved in the Post lease, and did not know that any rents were reserved upon the Kast parcel. The rent, on the 5th day of July, 1882, had remained unpaid from January 1,1860. Church became the grantee of the Tan Rensselaer title February 21, 1882. In May following Church agreed to take, and the plaintiff agreed to give, $1,200 “ for all arrears of rent.” The plaintiff paid Church $1,008.75 upon this agreement July 5, 1882.

Upon these facts no question of adverse title or of champerty can arise. Becker, by paying $1,008.75, upon “all arears of rent,” attorned to Church and admitted that he had held under the Tan Re'nsselaers and now held under him. The plaintiff’s quit-claim deed was not inconsistent with the tenancy, and when rent was demanded of him he agreed to pay it and did.

The referee does not find that the $1,008.75 was paid under a mistaken impression that it referred only to the Post parcel. The plaintiff testifies that when the $1,200 was agreed upon there was something said, concerning that should be all the claim against the whole place.” The plaintiff also told Church “ that he would pay his rent thereafter, there would be no more trouble.” Since he was to pay rent thereafter, it probably did not occur to him that it made any difference whether he paid the sixty dollars per year upon both parcels or upon one of them.

¥e ought not, in support of the judgment, to presume that the referee found a fact which the evidence will not justify. The referee has rejected, as fraudulently procured, the paper executed by the plaintiff at the time he paid the $1,008.75. This paper purported to change the tenancy from year to year to a tenancy at will. We see no reason to differ from the referee in his finding of fact in this respect.

The effect of it is to leave the tenancy from year to year existing in the same manner as if no paper had been executed. But such tenancy was not terminated by the service of the notice in May, 1883, requiring the plaintiff to quit the premises one month thereafter. Hence the summary proceedings could not be sustained. We have discussed the case on the merits, because the ease of Becker v. Church, herewith argued, requires it.

But this was an objection which could have been taken in the proceedings themselves. The invalidity of the paper purporting to change the nature of the tenancy could have there been litigated. (The People v. Howlett, 76 N. Y., 574.)

The court will not, by injunction, restrain summary proceedings unless the tenant has some equity or defense of which the county judge has no jurisdiction. (Knox v. McDonald, 25 Hun, 268; Jessurun v. Mackie, 24 id., 624; S. C., 86 N. Y., 622; Broadwell v. Holcombe, 4 Civ. Pro. Rep., 159.) Here, all the facts insisted upon by plaintiff would have been competent as evidence in support of the issue before the county judge, and if error had been committed, the remedy was by appeal. '

The judgment should be reversed, new trial granted, reference discharged, costs to abide event.

Judgment affirmed, with costs.


author: Bookes, J.: Learned, P. J.:

text:
    STEWART MAXWELL, Respondent, v. HORACE INMAN, Appellant.

      Evidence — the execution of a chattel mortgage is not proved by the production of a copy thereof and of a certificate of acknowledgment attached thereto, certified by the town clerk.

    Upon the trial oí this action of trover the plaintiff, who claimed title to the property under a chattel mortgage given by a former owner, put in evidence a paper, certified by the town clerk to be a copy of a paper on file in his office. The paper, the certified copy of which was received in evidence, purported to be a copy of the chattel mortgage, and of a certificate of acknowledgment as to its due execution. An objection of the defendant that the certificate of the town clerk did not prove the existence and execution of the original mortgage was overruled by the court.

      Held, that it erred in so ruling.

      Bissell v. Pearce (28 N. Y., 252); Bunderlin v. Wyman (10 Hun. 493); Pellotes v. Van Eyring (23 How., 230) followed.
    Appeal from a judgment in favor of the plaintiff, entered in • Montgomery county upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.

      Stover c& Nisbet, for the appellant.

      E, J. Maxwell, for the respondent.
   Bookes, J.:

This is an appeal by the defendant from a judgment rendered against him herein on the verdict of a jury for $158^,- and costs, and also from an order denying a motion to set aside the verdict, and for a new trial made on the judge’s minutes.

The action was trover, for property consisting of pulleys, shafting and machinery, taken and converted by the defendant. The plaintiff, by his proof, made title to the property for which the recovery was had, under a chattel mortgage, of which he was assignee, to the extent of his recovery, made by the Phcenix Mills, a manufacturing corporation, to Samuel Blaisdell, Jr., & Co , dated December 30, 1881. The taking of the property by the defendant was not controverted. The defense attempted to be made was this: That the defendant owned the property by a prior title, and he gave evidence of such title, to wit, a bill of sale and mortgage; the court sustained his defense in so far as the bill of sale and mortgage covered the property in question. Thus it became a question of fact whether the instruments under which the defendant made claim covered the property for which the recovery was had, and oral proof was given pro and con bearing on that question. The jury found for the plaintiff for some of the property, valued, according to the verdict, at $158T8T°T. This statement of the case would require an affirmance of the judgment, and this seems to be a correct statement of it, as respects the merits of the controversy.

It was objected that the transfer by Samuel Blaisdell, Jr., & Co. to the plaintiff was not well proved, because executed by one of the firm only. The instrument purported to be a sale and transfer by the firm. It was so stated in the body of the instrument. But for anything appearing to the contrary, the sale and transfer by one of the firm of firm property, not being real property, was good and effectual to carry title to the vendee. It was also objected that the mortgage, under which the plaintiff claimed, was not well proved. The paper put in evidence was certified in due form of law by the town clerk, in whose office it was filed. It purported to be a copy of the mortgage, and was with a certificate of acknowledgment of its due execution, filed in the town clerk’s office as a copy. It was a paper authorized by law to be there filed as a record. The certificate of the town clerk, however, went only to the filing of the paper. (Code Civil Pro., § 934.) It did not prove the existence and execution of the original. (Sunderlin v. Wyman, 10 Hun, 493; Fellows v. Van Hyring, 23 How., 230; Bissell v. Pearce, 28 N. Y., 252.) The admission here in evidence of the mortgage, against objection and exception, without such proof, was error, because of which there must be a new trial.

There were other matters of exception besides those above considered — some as to rulings on questions of evidence, and some pertaining to the charge of tlie learned judge; none, however, presenting ground of error requiring comment. But for the error above noted the judgment must be reversed.

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

Learned, P. J.:

To maintain his case, the plaintiff offered in evidence a paper certified by the town clerk to be a copy of an original on file. The originals (of which a copy was thus certified) was an alleged chattel mortgage and an alleged acknowledgement thereof. The defendants objected that this was not evidence of the execution of the instrument.

Section 934 of the Code of Civil Procedure is to the same effect as 1 Revised Statutes ([1 Edm. ed., 323], m. p. 350, § 16). There is no change. And this provision of the Revised Statutes was in force when Bissell v. Pearce (28 N. Y., 252) was decided. It, therefore, did not modify or give greater effect to the provisions of chapter 279, Laws 1833, section 4. (See R. S. [7th ed], p. 2250, § 4.) Now, it was held in that case, and again in Sunderlin v. Wyman (17 Sup. Ct. [10 Hun], 493), and in Fellows v. Van Hyring (23 How., 231), that a copy of a chattel mortgage, certified by the town clerk, was no proof of the execution of the mortgage. And this is necessarily so, because no proof of such execution need be on the instrument in order to require the town clerk to file it. Thus the case is different from that of conveyances of land. Nor is there anything in the statutes authorizing the filing of the acknowledgement of a chattel mortgage or the certifying a copy of such acknowledgement. It is otherwise as to deeds. (1 R. S., m. p. 760, § 26; 3 R. S. [7th ed.], 2220.) The town clerk has only to file any paper which appears to be a copy of a mortgage. If his certificate of a copy thereof is evidence, then the copy filed has more effect than the mortgage itself. Of course the “ original,” of which the town clerk certifies a copy, is the paper in his office; and this itself may be a pretended copy.

Section 934 of the Code of Civil Procedure is a general provision as to all papers, just as the corresponding provision was. (1 R S., m. p. 350, § 16.) Rut the statute of 1833 specially provided as to the effect of certified copies of chattel mortgages or of copies of chattel mortgages. That statute has been construed, and construed correctly, and should be followed.

For this error, judgment reversed, new trial granted, costs to abide event.

Landon, J., concurred.

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


author: Landon, J.

text:
    LAURA E. THAYER, Appellant, v. STEPHEN GILE, Respondent.

      Pleading —what allegations establish a cause of action for conversion.

      A complaint alleging, in substance — that on the 17th day of March, 1886, the plaintiff, as tenant in common with the defendant, was in the possession of a quantity of hay, and that the defendant, claiming to be the absolute owner thereof,' then wholly converted the same to his own use, to the plaintiff’s damage — states facts constituting a cause of action, and requires that a demurrer interposed thereto, upon the ground of its failure to state facts constituting a cause of action, be overruled.
    Appeal from a judgment entered in Columbia county, sustaining a demurrer interposed to the complaint, on the ground that it did not state facts constituting a cause of action, and from the order upon which the said judgment was entered.
    The complaint states, in substance, that on and after October 1 1885, the plaintiff was a tenant in common with the defendant in some forty or fifty tons of hay, which were then in the possession of plaintiff in the buildings on defendant’s farm; that the defendant subsequently fed up and used up some portion of said hay ; that on or about March 17, 1886, plaintiff asked for a division and for the one-half of the remaining portion of said hay, and “ defendant refused to make such division, and refused the possession of any portion of said hay to plaintiff, and then and there claimed that the plaintiff had no interest in said hay, and that he, defendant, was the entire and absolute owner of said hay, and otherwise converted the same to his own use to the damage of plaintiff in the sum of three hundred dollars.” The defendant demurred to the complaint on the ground that the complaint did not state facts sufficient to constitute a cause of action against the defendant.

      W. 11. Silvernail, for the appellant.

      Nathaniel G. Moak, for the respondent.
   Landon, J.

This complaint is very crudely drawn. It is redundant in statement of immaterial matters, and it lacks definiteness and certainty with respect to material matters. Nevertheless, it states in substance : that on the 17th of March, 1886, the plaintiff, as tenant in common with the defendant, was in possession of a quantity of hay (what was remaining of forty tons), which the defendant then wholly converted to his own use, to plaintiff’s damage, etc.

How large a quantity, what share the plaintiff owned, and its value, are left uncertain. Still, since the defendant converted it all, he converted the plaintiff’s share, and thus injured her to the extent of its value. There is an immaterial allegation of a demand of one half, but that is not an allegation that the plaintiff owned one half; also of a division, but the plaintiff could take her own share without demand of the defendant.

The material allegation is, the defendant’s conversion. It is still good pleading to state facts according to their legal effect, unless the pleader so narrates the facts as to show that he has mistaken their legal effect, which is not quite the case here. Thus, it was not necessary for the plaintiff to allege the details from which her tenancy in common, or possession, or the conversion by the defendant would follow as their legal effect. These details are rather in the^nature of the evidence, to be adduced upon the trial to support these three allegations.

A complaint must contain a plain and concise statement of the facts. No statement can be plainer or more concise than the statement that the defendant converted the plaintiff’s hay. If the plaintiff gave a narrative of all the acts performed by the defendant in order to accomplish this conversion, it might be far from plain whether any conversion was in fact accomplished. The details of the transaction may very much obscure the fact of conversion.

Since the share of the plaintiff is not stated, it may be, that in order to establish conversion, the plaintiff will have to prove the loss, sale or destruction of the entire hay. (Lobdell v. Stowell, 51 N. Y., 70; Osborn v. Schenck, 83 id., 201; Dear v. Reed, 37 Hun, 594.) By using the word converted ” the plaintiff has concisely condensed in a single word the notice to the defendant that whatever it may be necessai’y to prove she intends to prove it.

It is objected that the allegation of conversion is a conclusion of law and not of fact. Ordinarily, the narration of a transaction, whether by stating all the details of it or by stating these details according to their legal effect, is the narration of a fact. A statement of a conclusion of law is usually a statement of the right or liability flowing from certain facts.

Thus, A lent B a dollar is the fact, B owes A a dollar is the law. A converted B’s hay is a fact; B’s liability to A, the law. But from a given state of facts the law will pronounce that A converted B’s hay. Is the statement of the conversion, therefore, the statement of a conclusion of law ? It is rather the statement of a fact, ascertained by the rules of law. From the facts given, the law presumes the fact required, but the presumption is only a rule of evidence, and, by the application of that rule, the fact required is determined. The rule of evidence, by which the fact sought is found, is not the fact itself. The rule is the instrument or help through which the fact sought is discovered. If the rule is called a conclusion of law, then, by means of the conclusion of law, the conclusion of fact is established.

Judgment reversed, with costs of appeal and of court below. The defendant may have usual leave to answer.

Learned, P. J., and Bocees, J., concurred.

So ordered.


author: Learned, P. J.:

text:
    MARY McKAY and Others, Respondents, v. ALLEN LASHER and EDWARD G. C. LASHER, Appellants.

      Evidence — only experts can express an opinion as to genuineness of a signature —1880, chap. 86 — witness — impeachment of, by proof of contn'adictory statements.

    Upon the trial of this action the plaintiff, who sought to prove that the signature to a certain deed was not the signature of one James Clark, produced a note which was proved to have been signed and indorsed by Clark. A witness, who was not shown to be an expert, was directed to look at the signature and indorsement of the note, and was then asked and allowed, against the defendants’objection and exception, to answer “no” to the following question: “Assuming those to be the genuine signatures of .lames Clark, is that the signature of James Clark on the deed I show you?”

      Held, that the evidence should have been excluded.
    The alleged deed of James Clark had been proved, on June 18, 1885, by the subscribing witness, one Lawrence, before a notary public, and was given in evidence with such proof by the defendants. The plaintiff was allowed, against the defendants’ objection and exception, to prove statements made by Lawrence that he did not have anything to do with this transaction of Clark’s; that he did not know Clark at the time, and that he was willing to assist the plaintiff if she would pay his expenses.

      Held, that even if it could be assumed that Lawrence was to be regarded as a witness produced by the defendants, he could not be impeached, by proof of these statements, until he had first been asked whether he had ever made them.

      It seems, that this assumption could not be made.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury at the Ulster Circuit.

      M. Schoonmaker, for the appellants.

      F. L. Westbrook, for the respondent.
   Learned, P. J.:

One of the questions involved was whether the signature to a certain deed was that of James Clark. As charged by the court, the plaintiffs were entitled to recover, if the jury should find that the signature was not that of Clark.

A note which was proved to have been signed and indorsed by Clark was produced. And a witness, who was not shown to be an expert, was directed to look at the signature and indorsement •of the note. She was then asked by plaintiff’s counsel: “Assuming those to be the genuine signatures of James Clark, is that the signature of James Clark on the deed I show you?” She answered “No.”

A similar question was put by plaintiff’s counsel to another witness, not an expert, and a similar answer given.

These questions were duly objected to by the defendant.

Chapter 36 of the Laws of 1880 was intended to modify the former rule. Previously to that act it had been competent for experts to compare the disputed writing with genuine specimens, which had been lawfully given in evidence on the trial for other purposes. But it had not been competent to introduce genuine specimens merely for the purpose of comparison. The statute permits the introduction of genuine specimens merely for comparison, although they are not otherwise evidence in the case.

But the statute has not changed the law as to the persons whose opinions may be given. Opinions are to be given by experts, as well on the question of handwriting as on any other questions. Persons, other than experts, are to testify to facts, not opinions. If one, who was not an expert, were permitted to give his opinion as to genuineness of handwriting, based merely on the comparison, at the trial, of the disputed writing with one proved to be genuine, he would be usurping the duty of the jury. They, by that same statute, may compare these writings. The evidence given should have been excluded. (See Peck v. Callaghan, 95 N.Y., 73.)

This alleged deed of James Clark had been proved June 13, 1885, by the subscribing witness, Joseph O. Lawrence, before a notary public; and was given in evidence with such proof by the defendants.

The plaintiff gave in evidence, against defendants’ objection, statements made by Lawrence to a witness, that he did not have anything to do with this transaction of Clark; that he did not know Clark at the time. And again, by another witness, statements that he did not know James Clark and had no transaction with him; that he was willing to assist Mrs. McKay, and would come up, if she would pay his expenses.

The object of this testimony was to throw discredit upon the' proof of the deed made by Lawrence before a notary public. Now, the most favorable view for the plaintiff, in endeavoring to sustain the admissibility of this evidence, is to claim that Lawrence was practically a witness for the defendants, and hence that his testimony, viz., the proof before the notary, might be attacked in the usual manner, by showing that he had, at other times, made contradictory statements.

Assuming that this view of the position of Lawrence is correct, then we have the difficulty that, to impeach a witness in this manner, he must first be asked whether he had made the alleged contradictory statements. This is a most necessary and important rule. A deviation from it is unjust,' both to the witness and to the party calling him. Of course, no such question was put to Lawrence, for he was not on the stand.

Whether the assumption that Lawrence was practically a witness for defendants, and hence liable to impeachment by the plaintiff, is correct, we are not ready to say. It is not so decided in Jackson ex dem. Gibbs v. Osborn (2 Wend., 555), cited by plaintiff’s counsel.

The statute allowing a deed to be acknowledged or proved out of court, and to be recorded, and allowing the record to be evidence may, of course, be abused, as plaintiff’s counsel suggests. But, perhaps, it would be a very serious evil to treat every witness who had thus proved a deed out of court, as if he was a witness produced on the trial by the party offering the deed in evidence, and as subject to all the modes of impeachment to which such a witness in court is liable. Deeds long since recorded might, if such a course were permitted, be overthrown by testimony which the other party would be in no readiness to meet.

Some other questions were presented on the argument which we need not consider.

The judgment should be reversed, new trial granted, costs to abide event.

Bookes and Landon, JJ., concurred.

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