author: Davis, P. J. :

text:
    EDGAR WILLIAMS and others, as Administrators, etc., of LORRAIN FREEMAN, Deceased, Respondents, v. JAMES W. GILLIES, Impleaded, etc., Appellant.

      Partnership for purchase of land■— oral agreement foi' — liability of parrtnen's.

    Dobbs, Raynor and Gillies agreed, orally, that Dobbs should purchase certain real estate in his own name and give bach a mortgage thereon for part of the purchase-money; the real estate to be held for speculative purposes and sold for the joint benefit of all; the profits to be divided among them in proportion to the amount contributed by each Dobbs accordingly purchased the property and gave back a mortgage to plaintiff’s testator, who was at the time ignorant of the partnership. In an action to foreclose the mortgage the judgment directed that each of the partners should be liable for such proportion of any deficiency that might arise upon the sale as corresponded to his interest in the land.

      Seld, that this was as favorable a judgment for the partners as they were entitled to; that under such circumstances the name of the partner, used in the transaction, becomes, pro hoc Dice, the partnership name.
    Appeal, by defendant Gillies, from a judgment of foreclosure, entered upon a trial of this action by the court without a jury.
    The court found, among other things, that in October, 1872, the defendant William H. Dobbs made a contract with the late Lorrain Freeman for the purchase of the .land in question; that it was agreed between said Dobbs, the defendant, James W. Gillies and the late William H. Raynor that said property should be bought for their joint benefit, said Raynor contributing one-half, said Dobbs one-quarter and said Gillies one-quarter of the purchase-price, and that said Gillies, Dobbs and Raynor were to share in the profits of said enterprise pro ratio / that it was agreed between said Gillies, Dobbs and Raynor that said Dobbs should make said contract for their mutual benefit, and that Dobbs should take the title and give back the bond and mortgage mentioned in the complaint; that said Gillies, Dobbs and Raynor, in pursuance of said agreement, each contributed their proportional share of the purchase-money paid in part, and, also, as long as interest was paid upon the mortgage each paid his proportionate share of such interest; that said property was bought for speculative purposes, to be sold and the profit divided between them pro ratio / that Dobbs was authorized by Gillies and Raynor to execute and deliver said bond and mortgage to Freeman, and they afterwards ratified the act.

      That, in pursuance of said contract, the said Freeman did, on the 2d day of January, 1873, execute and deliver to said William H. Dobbs a warranty deed of said premises.
    That the defendant William H. Dobbs, on or about the 2d day of January, 1873, executed and delivered to the said Freeman a bond and mortgage, to foreclose which this action was brought.
    As conclusions of law, the court found that the executrix of the estate of said William IT. Eaynor was liable to the plaintiffs, as executors as aforesaid, for the payment of one-half of any deficiency that might arise on the sale of said premises.
    That said James W. Gillies was liable to the plaintiffs, as executors as aforesaid, for one-quarter of any deficiency that might arise on the sale of said mortgaged premises.
    That said William IT. Dobbs was liable to the plaintiffs, as executors as aforesaid, for one-quarter of any deficiency that might arise on the sale of said mortgaged premises.

      James M. Fisk, for the appellant.
    The contract between Dobbs and Freeman for the purchase of the property as well as the bond and mortgage given by Dobbs being under seal, cannot be changed by oral testimony into a simple contract so, as to enforce it against persons not parties to it. (Townsend v. Hubbard, 4 Hill, 351; 2 E. S., 135, §§ 8, 9; Briggs v. Partridge, 64 N. Y., 357.) Parol evidence cannot be introduced to contradict, change, enlarge or vary the terms of a written instrument under seal, except in eases of fraud or gross concurrent mistake. (See Wharton on Evidence, § 920, note 1 on page 155, 2d vol.; § 1014 and § 1050, and cases there cited; Renard v. Sampson, 12 N. Y., 561; Halleday v. Ha/rt, 30 id., 474 ; Pollen v. Le Roy, id., 549; Thorpe v. Ross, 4 Keyes, 546; Riley v. City of Brooklyn, 46 N. Y., 444; Long v. N. FI C. R. R. Go., 50 id., 76; GoUenderv. Densmore, 55 id., 204; Briggs v. Partridge, 64 id., 357.) Whatever agreements and understandings there might have been between the parties prior to the making and execution of the instrument and deeds, must be held to have been extinguished by the execution and delivery of the conveyances and be held as expressing the final views of the parties and expressing the terms of the contract between them. (Gage v. Jaguethe, 1 Fans., 207, and cases cited above.) No one is liable to be sued in tbe foreclosure action, except a party to tbe mortgage or those who by valid agreement assume or guarantee the same. (Holcomb v. Holcomb, 2 Barb., 20 ; L& Roy v. Shaw, 2 Duer, 626; Spencer v. Wheelock, 11 N. Y. Leg. Obs., 329 ; Tibbets v. Percey, 24 Barb., 39; Strong v. Wheaton, 38 id., 616.) Even if the defendants were partners there is no causé of action against Gillies in favor of plaintiff. When a person gives credit to one partner alone he cannot call upon the rest as if the creditor sold him goods, * * * or loaned him money. (Parsons on Partnership [2d ed.], marginal pages 104,105, note to page 105; Pa/rken v. Ocvruth&rs, 3 Esp., 248; Loyd v. Frestfield, 2 O. & P., 325 ; Reran v. Lewis, 1 Sims, 376; Lerroy v. Jolmson, 2 Peters, 186; Bvrd v. Larins, 4 Wis., 615; Olay v. Cottrell, 18 Penn., 408; Mull&r v. Morrice, 6 Hill, 114; Holmes v. Burton, 9 H., 252;-Jaques v. Ma/rqua/nd, 6 Cowen, 497; per Baldwin, L, in Wi/nsMp v. Bank of United States, 5 Peters, 567; Foster v. Hall, 4 Humph., 346 ; Union Bank v. Eaton, 5 id., 499; Q-reen v. Tanner, 8 Met., 411; Osborn v. Jacobs, 9 id., 454.) The rule is well settled also that when a bond or other specialty of one partner is taken for the simple contract debt of a partnership the firm cannot be held liable on such specialty. (United States v. Ashley, S Wash. C. C., 512; Patterson v. Brewster, 4 Edw. Oh., 352; Ward v. Johnson, 13 Mass., 150 ; 'Collier v. Leech, 29 Penn. St., 404; Olement v. Brush, 3 Johns. Cas., 108; Williams v. Hodgson, 2 Harris & J., 474; McFanghton v. Pa/rtridge, 11 Ohio, 223; Pars, on Partnership [2d ed.], marginal page 333; Fat. Bank of Ohemung v. Lngraham, 58 Barb., 290; Ma/rvin v. Buchanan, 62 id., 468.) A sealed instrument, when executed by one acting as an agent or attorney, must be executed in the name of the principal and purport to be sealed with his seal or the person named as principal will not be bound by it. (Townsend v. Hubba/rd, 4Hill, 351; Clar7eév. Oowrtney, 5 Peters, 319,351 ^El/well v. Dean, 16 Mass., 42; Brinley v. Mann, 2 Cush. [Mass.], 337.) Nor where it does not refer to the principal. (Squier v. Forris, 1 Laws, 282; Wood v. Good/ricTh, 6 Cush. [Mass.],' 117; Oalus7ia v. Hitchcoc7e, 29 Barb., 193.) The authority to an agent to sign a sealed instrument must be under seal. (Blood v. Oood/rich, 12 Wend., 526; Worráll v. Mumn, 5 N. Y., 229; Boyd v. Dobson, 5 Humph., 37; Cooper v. Rankin, 5 Binn., 613; McFaugJiton
      v. Partridge, 11 Ohio, 223 ; Preston v. Hull, 22 Gratt. [Ya.], 600.)

      Fred. H. Kellogg, for the respondents.
    A partnership may exist between dealers and speculators in real estate for the purpose of buying and selling lands, and may be created by parol. (Chester et al. v. Dickerson et cd., 54 N. Y., 1, and cases cited; 2 Barb. Oh., 198-336; 52 Barb., 349; Sage v. Sherman and others, 2 N. Y., 417; Willard on Beal Estate, 376; Block v. Col. Ins. Co., 47 N. Y., 652; 31 id., 611.) It is a well-settled principle that when the ostensible partner is alone known in the transaction all persons who are to share in the profits are held liable to a third person, even though he is ignorant of the existence of the partnership and relied solely upon the faith and credit of the ostensible partner. (The Onta/rio Bank v. Hennessy, 48 N. Y., 545-550; Poillon v. Secor, 61 id., 458; Story on Partnership, 53, 80, 138, 139; Collyer on Partnership, 227-537; Kelley v. Hu/rTbut, 5 Cow., 535; 1 Den., 402-471; 10 N. Y., 51.)
   Davis, P. J. :

It is now well settled in this State that a partnership may exist between dealers in real estate for the purpose of buying and selling land for profit; and that such partnerships are governed substantially by the same rules as partnerships for dealing in personal property, except as necessarily modified by the operation of the rules of law in reference to the conveyance and assignment of real estate, (Chester v. Dickerson, 54 N. Y., 1; Sage v. Sherman, 2 id., 417; Ontario Bank v. Hennessey, 48 id., 545.) In the case of such a partnership, it may be agreed orall/y between the partners that the title shall be taken, and the business done altogether in the name of one of the partners; and where such an arrangement is made, one legal result is, that the name of the partner used becomes, pro hac vice, the partnership name of the firm, and all the members of the firm may be bound by acts done by him in such name and within the scope of his authority, upon the same principal and to the same extent as are the several partners whose names do not appear in the firm name in ordinary partnerships, for acts done by one of the partners in the firm name.

The court below found in this case that the lands described in the mortgage executed by Dobbs, were purchased by Dobbs, Baynor and the appellant, as copartners for their joint benefit, and for speculative purposes, each to share pro rata in the profits. This finding is clearly sustained by the evidence in the case. By mutual arrangement the title of the lands was taken in the name of Dobbs for the benefit of all the parties interested, and he executed the mortgage sought to be foreclosed in this action, in his own name to carry out the arrangement between himself and the other parties interested. The fact that the partnership was unknown to the plaintiff’s testator at the time the mortgage given for a portion of the purchase-money was executed, was not a material one. (Ontario Bank v. Hennessey, supra; Poillon v. Secor, 61 N. Y., 456; Story on Partnerships, § 53 et seq.)

The transaction in this case seems to have been altogether a losing one; but that is no reason for relieving either of the partners from his just share of responsibility. Had it proved a profitable one, it is not likely that such relief would be sought, or desired. As between the several defendants who are copartners, it would be highly inequitable that the one whose name was used should stand charged with all the consequences of the unfortunate enterprise. The plaintiffs in their complaint have only prayed, as relief in respect of a possible deficiency, that each partner may be charged separately, precisely as the liability of the several partners with respect to each other existed; and the court ordered judgment accordingly. The appellant is charged by the decree with an equal fourth of any'deficiency that may accrue. The plaintiffs, treating the three defendants as copartners, might have asked for a decree for the deficiency against them m soUdo, which, under circumstances easily imagined, would have been a much harsher judgment against the appellant. He has no cause to complain of the form of the judgment, inasmuch as it relieves him from all liability beyond that which he was bound to bear as between himself and his copartners.

We see no reason for disturbing the judgment, and it should be affirmed with costs.

Ingalls, J., concurred ; Brady, J., not sitting.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Davis, P. J. : Brady, J. :

license: Public Domain

text:
    ANN CONNORS, as Administratrix, etc., Appellant, v. WALTER W. ADAMS, Respondent.

      Public officer — liability of, for neglect of official duty, to person injured thereby.

    The complaint in this action alleged that the defendant was the head of the department of buildings in the city of New York; that it was his duty to see that all unsafe buildings in said city were taken down or made secure, and that he was furnished with the means necessary to fulfill the said duty; that a building, known as No. 35 Duane street, was so injured by fire as to render it unsafe and that defendant had notice of its condition; that the- said building fell upon an adjoining building in which the plaintiff’s 'intestate lawfully was and killed her, and asked judgment for damages against the defendant.

      Held, that a demurrer to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action, should be overruled.
    Appeal from an order sustaining a demurrer of the defendant to the complaint, and from a judgment entered thereon in favor of the defendant against the plaintiff for costs, etc.
    The complaint alleged, among other things, “ that the defendant above named was and is the superintendent or head of the department of buildings of the city of New York, duly appointed and created and qualified by law, and as such had possession and control over the said department, as aforesaid, for the doing and performing of all the acts and duties incumbent and devolving by law upon said department, and the officers of the same under and subordinate, and subject to the said defendant, at all the times hereinafter mentioned.
    That, among other things, it is by the laws of the State of New York made the duty of the said defendant * * * whenever any building or other structures in the city of New York shall at any time become dangerous or unsafe and endanger life or limb, to cause said building, or parts of a building, to be tahen down, or removed or made secure, and the said defendant, as superintendent or head of said building department as aforesaid, is and was authorized and empowered, at all the times hereinafter mentioned, to employ such labor and furnish such materials as may be necessary to take down and remove or make secure any building, wall or walls, parts of walls or party walls which may7 or have become dangerous or unsafe from fire or other cause, and the expense incurred in the taking down and removal thereof or in making the same secure is, by the laws in such cases made and provided, made a charge upon the owner of said premises and a lien thereon.
    And the complaint further shows that on the 12th day of January, 1875, a large building in said city, known as No. 25 Duane street, and the walls thereof was and were injured by fire, to so great an extent that said building and the wall, walls or parts of walls thereof, became and were then and thereafter, down to the time when the injury hereinafter referred -to happened, unsafe and dangerous to life and limb, and to the occupants of the adjoining buildings and to all persons passing in front of, into and upon the same, of all of which the said defendant had due and sufficient 'notice.
    That adjoining the said building and lot, was a building, or church edifice, called St. Andrew’s church, which was then and had been for many years prior thereto used as a house and place of religious worship, which fact was also well known to the said defendant herein, and of which he had due and sufficient notice.
    That on the evening of the '25th day of February, 1875, one Mary Ann Connors, since deceased, was attending and- engaged in religious services in St. Andrew’s church edifice, and while the religious services, usual and customary at that season of the year, were being held therein the walls of said building, known as No. 25 Duane street, which, after the fire aforesaid, had been left, permitted and suffered, wrongfully, unlawfully and .negligently by the said defendant, to remain standing and unrepaired and unreconstructed or removed, and dangerous to life and limb and to the occupants thereof and all persons passing in front of the same, fell in and upon the roof of said church, and the bricks and other materials composing the same were precipitated upon the roof of said church edifice breaking through said- roof, and said bricks, together with the material composing said roof, fell and descended into the audience room of said church edifice and upon the body and person of said Many Ann Connors, crushing, bruising and wounding said Mary Ann Connors to so great an extent that from the effects of such wounds, bruises and injuries then and there received she subsequently soon after died without any fault on her part. '

      And the complaint further shows that during all the time that elapsed between the time when said building was injured by fire, as aforesaid, and the time when said walls fell and inflicted the injuries herein complained of upon the said Mary Ann Connors, the defendant well knew that said walls of said building were dangerous to life and limb and to occupants of the adjoining buildings, and the said defendant so carelessly and negligently conducted himself and violated and neglected the duties duly imposed by law in connection therewith, that he wholly failed, neglected and refused to take down said walls, as aforesaid, or to make the same secure, or to rebuild, repair or reconstruct the same, or to cause the same to be duly done, by reason of which negligence, want of due care and attention to his duties in that behalf, on the part of said defendant, the said Mary Ann Connors was terribly injured and killed, as hereinbefore more fully set out and mentioned, without any fault or neglect on her part.

      James M. Dydd/y, for the appellant.

      I). J. Dean, for the respondent.
   Davis, P. J. :

The complaint in this action is not well drawn, but under its allegations we think the plaintiff would be entitled to prove any state of facts necessary to show that the defendant had been guilty of such neglect of official duty as would charge him with liability for the injury suffered by the plaintiff’s intestate. It was not necessary to set forth all the evidence requisite to establish that condition of things. Hence the question presented upon this demurrer is, whether the defendant can be held liable in a civil action for a private injury, for any degree or kind of negligence of which he may have been guilty in performing or neglecting to perforin his official duty.

Whatever may be the law in other States upon that subject, we think the question of the defendant’s liability is settled in this State by the case of Adsit v. Brady (4 Hill, 630), West v. Trustees of Brockport (in note to 16 N. Y., 168), Robinson v. Chamberlain (34 id., 389).

In Adsit v. Brady the broad rule is laid down that where an individual sustains an injury by the misfeasance or nonfeasance of a public officer who acts or omits to act contrary to his duty, the law gives redress to the injured party by an action adapted to the nature of the case. That rule received a very emphatic approval in Robinson v. Chamberlain ¡ and if the opinion of Mr. Justice Selden in the case of West v. Trustees of Brockport (ubi supra), tended to impair that rule, it was restored to full vigor by the decision of the court in Robinson v. Chamberlain.

In Murphy v. The Commissioners of Emigration (28 N. Y., 134) the board of commissioners was held not liable because they were not guilty of any personal negligence ; and the court said that if any members of the board had failed in their duty, and the plaintiff had suffered in consequence of such failure, they might be individually liable, but the consequences of their individual misconduct3 if there were any, could not be visited upon the board.

In this case the duty, if any existed, appertained or is charged to belong to the individual officer, and the negligence alleged by reason of which the injury was suffered, is distinctly charged to have been his own. ¥e are of opinion that the demurrer should have been overruled, and that the order and judgment should be reversed and judgment given for the plaintiff upon the demurrer, with leave to defendant to answer over on the usual terms.

Ingalls, J., concurred.

Brady, J. :

I think, under the allegations in the complaint, the demurrer could not be sustained. . I concur in the result, therefore.

Judgment reversed; judgment ordered for plaintiff on demurrer with leave to answer over on the usual terms.


author: Davis, P. J.:

text:
    WILLIAM H. WICKHAM, as Receiver of the Security Life Insurance and Annuity Company, Appellant, v. JONATHAN A. FRAZEE, Respondent.

      Action — when it sounds in tort — reference—Trustees of insolvent debtor — references of claim, by — procedure on application for — 3 R. 8. (6th ed.), p. 39, §§ 21, 22
    This action was brought by the receiver of an insolvent insurance company to recover dividends alleged to have been wrongfully paid to the defendant, a stockholder of the company, at a time when the corporation was insolvent, such payments having been made out of the capital and assets of the company and received by the defendant in fraud of the rights of the creditors of the company.

      Held, on a motion to refer the action, on the ground that it involved the examinanation of a long account, that the action sounded in tort and could not be referred against the objection of either party.
    In order to authorize a reference under sections 21 and 22 of 3 Eevised Statutes (6th ed.), page 39, relating to references of claims by trustees of insolvent debtors, it must be shown that the party making the application has offered to agree upon a reference, and that the other party has refused or neglected to consent thereto; and the application must be made, not to the court upon motion but to the officer who appointed the trustees, or to a justice of the Supreme Court at chambers residing in the district, upon a notice of at least ten days.

      Quaere, whether under this statute a reference cm be ordered in an action sounding in tort.

    Appeal by plaintiff from an order denying a motion for a reference, on tbe ground that tbe trial of tbe action would involve tbe examination of a long account.
    Tbe action was brought by tbe plaintiff, as receiver of tbe Security Life Insurance and Annuity Company, against tbe defendant to recover $180 for dividends paid to bim by said company between tbe 1st May, 1871, and tbe 17tb November, 1876, and which, as is alleged, were paid while said company was insolvent. Tbe dividends were paid semi-annually, and a several and -separate cause of action for each of said dividends is set out in tbe complaint.
    Tbe answer admitted tbe receipt of tbe dividends, set up tbe statute of limitations as to part of tbe amount claimed, alleged that tbe dividends were received in good faitb, and further denied any knowledge of the alleged insolvency or fraud of the directors.

      Hamilton Gole, for the appellant.

      WiUAcm, F. Maprae, for the respondent.
   Davis, P. J.:

The receiver in this case was appointed under the provisions of the Reviséd Statutes concerning proceedings against corporations in equity. (See the article in Bank’s 6th ed. Rev. St. [3d vol.], p. 749.) And under section 55 of said act he possesses all the power and authority conferred and is subject to all the obligations and duties imposed in article 3 of the same title of the statute, upon receivers appointed in case of a voluntary dissolution of a corporation. One of the powers conferred upon receivers apjiointed on a voluntary dissolution of a corporation is “ the same power to settle any controversy that shall arise between them and any debtors or creditors of such corporations by a reference, as is given by law to trustees of insolvent debtors, and the same proceedings for that purpose shall be had with like' effect, and application for the appointment of referees may be made to any officer authorized to appoint such referees on the application of trustees or insolvent debtors,” etc. (3 Rev. Stat. [Bank’s 6th ed.], p. 755, § 88.)

The statute referred to in relation to trustees or insolvent debtors provided, that “if any controversy shall arise between the trustees and any other person in the settlement of any demands against such debtor, or of debts due to his estate, the same may be referred to one or more indifferent persons who may be agreed upon by the trustees and the party with whom such controversy shall exist, by a writing to that effect signed by them.”

“ If such referee or referees be not selected by agreement, then the trustees, or the other party to the controversy, may serve a notice of their intention to apply to the officer who appointed said trustees, or to any judge of the Supreme Court at chambers, residing in the same district with the trustees, for the appointment of one or more referees, specifying the time and place when such application will be.made, which notice shall be served at least ten days before the time so therein specified.” (3 Rev. Stat. [Bank’s 6th ed.], p. 39, §§ 21, 22.) The application for a reference in this case was not made nnder the provisions of these statutes. It is an ordinary motion for the appointment of a referee in an action, on the ground that the action involves the examination of a long account.

The statutes above referred to contemplate an effort at least, by one or both of the parties to .agree upon a referee or referees, and a failure of such effort. It should be shown that the party making the application had at least offered to agree upon referees and that the other party had refused, or neglected to consent to such reference, or that some sort of an attempt had been made to select referees by agreement, and then the application must be made, not to the court upon motion, but to the officer who appointed such trustees or to any justice of the Supreme Court at chambers, residing in the same district, upon a notice of at least ten days before the time, therein specified for the application. The appointment is, therefore, to be made by the officer or a judge, and not by the court. No such formality of proceeding was observed in this case, and we think the several statutes referred to had no application to this motion.

The question of the constitutionality of a reference under the statute is not involved in the case. The action is brought to recover several dividends, alleged to have been wrongfully paid by the insurance company to the defendant as a stockholder, at a time, in respect of each, when the corporation was insolvent. The complaint charges that at the time of each payment, the insurance company was insolvent, and its assets were insufficient to pay its debts and meet its obligations and liabilities, and said dividends were not paid out of any surplus profits of said company; but, on the contrary, each and all of them were wrongfully paid out of the capital and assets of said company, which were at the several times mentioned, and have ever since continued to be and now are insufficient to pay the debts and meet the obligations and liabilities of said company without the return of said dividends, and each and all of said dividends were paid to and received by this defendant in fraud of the rights of creditors and persons holding obligations of said company, and alleges a demand upon the defendant and his refusal to pay the same or any part thereof. The action is one sounding in tort. It is based upon fraud in law, if not in fact, and is therefore, according to the well-settled authorities, not referable against the objection of either party.

The affidavit of the receiver shows that an examination into the various assets and accounts of the company will be necessary for the purpose of establishing the alleged insolvency. But that is an examination not of the subject-matter of the action, but of things collaterally or incidentally necessary, in order to establish the alleged right to recover.

Such an examination does not constitute a long account ” as required by the provisions of the Code.

We think the action is not one in which any compulsory reference can be ordered, unless it be in the special statutory proceeding above considered, and upon that question we refrain from passing.

The order should be affirmed, with ten dollars costs and disbursements.

Ingalls, J., concurred; Beady, J., concurred in the result.

Order affirmed, with ten dollars costs and disbursements.


author: Í)avis, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent and Appellant, v. THE BANK OF NORTH AMERICA, Respondent and Appellant.

      Motion to send bach a case to a ref m'ee for further findings — when denied.

    Upon a motion for an order to send back a case to a’ referee for further findings, it appeared that he had already passed upon such questions by refusing to find as requested, and that in each case the party requesting the finding had duly excepted to his refusal so to find.

      Reid, that the motion was properly denied, as upon such a motion the Special Term was not authorized to look into the whole case and determine that the referee ought to decide questions presented to him differently from what he had already done.
    Appeals of the above-mentioned parties, respectively, from orders made at Special Term held by Mr. Justice Beady, denying their respective motions to send back the case to the referee for further findings.

      Francis O. Barlow, for the plaintiff.

      Flihu Boot, for the defendant.
   Í)avis, P. J.:

In each of these motions, the affidavit on which the motion was founded showed distinctly that the referee had already passed upon each and every of the questions presented by the requests, by refusing to find the same as requested, and in each instance the party making the request had duly excepted to such refusal. The motions were, therefore, properly denied. The referee had not declined to pass at all upon the questions and therefore omitted to make any decision, but he had passed upon each of them and made a distinct decision which was the subject of an exception, and to which an exception was taken. Where that has been done we do not understand that the practice requires or permits the party tailing the exception to move at Special Term, on an affidavit stating that the referee “wrongly and erroneously” refused to make the finding requested, that the referee be instructed to pass upon the question again.

The Special Term is not authorized to look into the whole case, and determine that the referee ought to decide questions presented to him differently from what he has already done. The question whether his refusal is error is raised by the exception, and may be presented upon the appeal. It is only in cases where the referee has declined to find, or to refuse to find a material fact, that the Special Term, on motion, may direct him to pass upon such fact. The learned court below was correct, therefore, in denying both of the motions, and its order should be affirmed. The appeals from these orders are embodied in the case on the appeal from the judgment, but as Mr. Justice Brady cannot sit for the determination of such appeal, a distinct decision, in.which he takes no part, is necessary to be made by the other members of this court, and orders of affirmance should be entered accordingly.

Ingalls, J., concurred; Brady, J., taking no part.

Orders affirmed.


text:
    ISABELLA B. NOE, Appellant, v. WILLIAM F. NOE, Respondent.

      Abandonment of husband by wife — right of wife to compel a provision for her maintenance.

    In this action, brought by the plaintiff against her husband, she alleged that shortly after her marriage she had conveyed to him the greater part of all her property, both real and personal; that the defendant "had taken possession of the same and spent large sums in gambling and riotous living; that the plaintiff was now living apart from her husband with her mother and had no means of support, and she prayed that a portion of the real estate held by her husband might be conveyed to her for her support and maintenance.
    Upon an application for an injunction restraining the defendant from collecting the rents of the real estate or selling or disposing of the same, pendente lite, held, that, as the wife had voluntarily separated from her husband and did not charge him with adultery or any act of cruelty or desertion which would entitle her to a limited divorce, the motion was properly denied.
    Appeal from an order of the Special Term vacating a temporary injunction and refusing an injunction, -pendente lite, to enjoin tbe defendant from selling, conveying, and collecting tbe rents of certain real estate described in tbe complaint.
    Tbe complaint alleged tbat in August, 1873, tbe plaintiff and defendant were married; tbat in April, 1874, tbe plaintiff came into possession of ber father’s estate, and in August of tbat year conveyed tbe larger part of it to ber busband; tbat be bad wasted large sums in gambling and riotous living; that plaintiff bad left ber busband and was residing with ber mother and bad no means» of support whatsoever, all ber estate having been sold or mortgaged by defendant as well as ber personal property. She prayed tbat certain of tbe real estate held by tbe busband might be conveyed to ber for ber support and maintenance.
    After tbe commencement of tbe action an application was made to have tbe defendant enjoined from collecting tbe rents of tbe property described in tbe complaint, or from selling or disposing of tbe same.
    Tbe defendant claimed tbat tbe plaintiff bad left him without any just cause; tbat be was and always bad been ready to support' and maintain ber if she would return and live with him, and denied that be had wasted large sums in gambling and riotous living.

      G. W. Bcmdford, for the appellant.

      Townsend c& Weed, for the respondent.
   Davis, P. J.:

Equity abhors the separation of husbands and wives without necessity or adequate cause, and the consequent breaking up of families, and in this it accords with the teachings of religion, the dictates of sound morality and the best interests of society. "Where the separation of a wife from her hnsband is voluntary on her part and is caused by no infidelity, or cruelty or ill-treatment on his part, equity will afford her no aid whatever in accomplishing a purpose which is deemed subversive of the true policy of the matrimonial law. So interested, indeed, are courts of equity to promote the reconciliation of married parties living separately that they will, on no occasion whatever, enforce articles of separation by decreeing a continuance of the separation. (Story’s Equity, vol. 2, §§ 1426-27, and cases there cited.)

In Bullock v. Menzies (4 Vesey, 798) the court refused to give the wife any part of the interest of her own property, because she refused to live with her husband when he was willing to receive and provide for her, and had given her no just cause for separation.

In her complaint in this action the wife does not charge her husband with any act of infidelity to the marriage vow, nor with any act of cruelty, or desertion which would entitle her to a separation or limited divorce under the laws of this State. On the contrary, the affidavits tend strongly to show that she has abandoned her husband without having any sufficient or reasonable canse, and is now seeking to reach his property for the purpose of enabling her to live separately and independently of him. It is true that the property that she seeks to reach was derived from her; but there is no allegation that she was induced to convey the same by reason of any fraud, undue influence, or improper persuasion on his paid, or on the part of any one on his behalf. It was the voluntary and generous gift of her own affection, made in such form as to carry to him a complete and perfect title. It can no longer be said to be her property, but must, under the circumstances disclosed in the affidavits, be treated as his.

“ This court,” said the chancellor in Fry v. Fry (7 Paige, 461), “ does not encourage a breach of duty on the part of the wife by affording her a maintenance out of the property which belongs to the husband at law by virtue of his marital rights, although it came to her by descent or gift from her own relatives, while she continues to reside apart from her husband against his consent, and without any justifiable cause.”

No ground for interference with the defendant’s property, because of his improvidence or extravagance is shown, within the rule laid down by the chancellor in Van Duzer v. Van Duzer (6 Paige, 366). This rule is not to be confounded, however, with that which the court applies in cases where the husband is seeking the aid of a court of equity for the purpose of reducing the wife’s property to possession, or any other relief to which he was formerly entitled at law in reference to her estate. (Howard v. Moffatt, 2 Johns. Ch., 206; Van Epps v. Van Deusen, 4 Paige, 64; 3 Story’s Eq., 641, 1414; Udell v. Kenney, 3 Cow., 590; 8 Kent’s Com. [2d ed.], 139.)

It seems quite apparent that when Mrs. Noe left her husband in Paris, for the purpose of a temporary visit to her friends in this country, she had no idea of separating herself from him. The letter that she wrote immediately on her arrival home, indicates not only warm affection for him at that time, but an intention.speedily to return to him. The change in her sentiments and purposes, which took place in the few weeks that elapsed between her arrival in this country and his return, cannot be attributed to any act of his during that interval. ' Her refusal to see him or to permit him to see her on his arrival, was unexplained and unreasonable. But it is not difficult to see in the papers before us, that it was produced by hostile and injurious influences. In a note which the plaintiff wrote to defendant’s father she says, “ I have nothing to do with any of my property, as I have given all into my mother’s hands, and it is not satisfactory to her, for she wants all statements and papers in her own hands.” This sentence furnishes a key that seems to unlock the mystery of the trouble between this husband and wife; and it certainly does not disclose a state of things which calls either for the sanction or aid of the court.

The order of the court below should be affirmed.

Ingalls, J., concurred; Bradt, J., not sitting.

Order affirmed.


text:
    ROBERT A. MILLS, Respondent, v. HENRY RODEWALD, Appellant.

      Order of wrrest — motion to meate— denied, with leame to renew — renewal of motion aftrn' judgment.

    November 20, 1869, an order for tbe arrest of tbe defendant was granted in this action, and on December 28,1869, a motion to vacate the same was denied with leave to renew the motion on showing the amount secured by an attachment previously issued in the action. In 1872 the action was tried and judgment recovered by the plaintiff. In February, 1877, this motion was made to vacate the order of arrest.

      Held, that it was properly denied as the leave to renew was only given for a special purpose, and the right to renew was terminated by the entry of the judgment.
    Appeal by defendant from an order denying a motion to vacate an order of arrest.

      George O. Genet, for tbe appellant.

      Thos. Bracken, for the respondent.
   Davis, P. J. :

Tbe order of arrest in this case was made November 20th, 1869. Tbe motion to vacate tbe order was made upon tbe original papers and affidavits in December following, and denied on tbe twenty-eighth day of that month. By tbe order of denial leave was given to renew tbe motion, on showing tbe amount secured by tbe attachment previously issued.

Tbe judge who beard tbe motion indorsed on tbe papers a memorandum, as follows:

Tbe motion to vacate tbe order of arrest is denied, with leave to renew tbe motion on showing tbe amount secured by tbe attachment. It is oppressive to obtain an order of arrest after an attachment has been levied to secure tbe claim, and both remedies should not be resorted to.” ' ,.

It thus appears that tbe leave to renew was given , for the purpose of enabling tbe defendant to show that tbe claim upon which tbe action is brought was wholly or in part secured by the attachment previously levied, and doubtless with the intention of enabling him to move to discharge the order of arrest, on the ground that the plaintiff had secured his claim, or so much of it that the amount for which he was held to bail should be reduced. There was no renewal of the motion for any such, or any other purpose, prior to the judgment. In 1872 the action was tried and judgment given in favor of the plaintiff; and in February, 1877, some five years after the entry of judgment in the action, a motion to vacate the order of arrest was renewed, and denied. In denying the same the judge holding the Special Term stated the following grounds :

“ First. The leave given to renew the motion was not intended to enable the defendant to renew it after the entry of judgment, nor after the lapse of so many years.
“ Second. Assuming the motion to be properly before the court, it should, in my opinion, be denied on its merits.”

We think the first of these objections was sufficient to justify the denial of the motion. Section 204 of the Code provides that a defendant arrested may, at any time before judgment, apply on motion to vacate the order of arrest. TJuder this section it has been frequently held that the application must be made before judgment. (Barker v. Wheeler, 23 How., 193; Roberts v. Carter 17 id., 479; Union Bank v. Mott, 9 Abbott, 106, 107.) The application in this action was made before judgment and was denied; but leave to renew was given for a special purpose, to wit, to enable the defendant to show that the claim, or some portion of it, was secured by attachment, on the ground that if secured in whole or in part, the order of arrest might be vacated or the amount of bail reduced. Several years elapsed before judgment was obtained, during which a motion might, for all the purposes for which the leave to renew was given, have been easily made. The defendant, however, has delayed until several years after the judgment was entered, and we think it must be held that his right to renew the motion was completely terminated by the judgment.

We refrain, therefore, from examining the merits of the motion, as we think this objection ought to be fatal; and our examination of the question upon the merits might be drawn into a precedent for similar experiments. .

The order should be affirmed, with ten dollars costs and disbursements.

Brady, J., concurred; Ingalls, J., taking ho part.

Order affirmed, with ten dollars costs and disbursements.


author: Bbady, J.:

text:
    WILLIAM L. SKIDMORE, as Receiver, etc., and as Special Guardian, etc., Plaintiff, v. JOSEPH HART, Defendant.

      Taxes in New York — when they become a lien — covenant for payment of.

    On March 80, 1875, certain premises in the city of New York were leased to the defendant for ten years from May 1,1875, the latter agreeing, during the term of the lease, to pay and discharge all such assessments, extraordinary as well as ordinary, as should be levied, assessed, imposed or grow due and payable upon, out of or for the demised premises, and all parts thereof.
    In New York the assessment rolls are openfor examination from the second Monday in January to April thirtieth, and are returned to the board of supervisors on the first Monday of July in each year, and the amount of the tax is thereafter set down opposite to the items of real and personal property on the list. MM, that the tax for the year 1875 grew due and became payable after the commencement of the term and that the defendant was bound to pay the same.
    Controversy submitted without action upon an agreed statement of facts.
    The action was brought to recover the amount of a tax paid by the plaintiff upou certain premises leased to the defendant.
    The plaintiff, on the 30th day of March, 1875, leased to Joseph Hart the lots of land and premises in the Twentieth ward of the city of New York, known as Nos. 545 and 547 Sixth avenue and two lots in the rear thereof and adjacent thereto in the center of the block, subject to the terms, conditions and covenants of the lease, for the term of ten years from the 1st day of May, 1875, for the annual rent of $8,500, which lease also contained the following covenant : “ The said party of the second part, his heirs, executors, administrators or assigns, shall and will, at his or their own proper costs and charges, bear, pay and discharge all such Croton water rents, and also such taxes and assessments, extraordinary as well as ordinary, as shall, during the term hereby granted, be levied, assessed, imposed or grow due and payable upon, out of or for the said demised premises and all parts thereof, as the same now exist or may hereafter be imposed, in accordance with the terms of this lease, by virtue of any present or future law of the United States of America, or of the State of New York, or of the corporation of the city and county of New York, or of either of them, or of any legal proceedings or lawful authority whatever, when and as the same shall become due and payable.”
    The said Joseph Hart entered upon, and took possession of, said premises under said lease on the 1st day of May, 1875, at twelve o’clock, noon, of that day and has ever since been, and now is, in possession of the same as the tenant thereof.
    Pursuant to the laws.relative to taxation in the city and county of New York the commissioners of taxes, upon the delivery of the assessment roll to them, published due notice thereof and the same was open for examination and correction from the second Monday in January, 1875, up to and including the 30th day of April, 1875 ; and during said period the said commissioners heard and determined any and every application, made by any person considering himself aggrieved by any assessed valuation of his real or personal estate, to have the same corrected. And after said last-mentioned date, and on the 1st day of May, 1875, the said commissioners prepared a copy thereof and on the 3d day of July, 1875, they certified, according to law, that the same was a copy of the corrected assessment roll of the Twentieth ward and delivered the same to the supervisors of the city and county of New York, who, thereupon, on the 22d day of July, 1875, fixed and determined the rate of taxation thereon, and confirmed the same and delivered the said corrected assessment roll to the receiver of taxes for the collection of the several sums therein named.
    The plaintiff paid the tax assessed against the premises for that year, which sum, with interest thereon from the date of its payment, he now claims to recover.

      Francis FT. Shepa/rd, for the plaintiff.
    The tax of 1875 did not exist at the time the lease to the defendant took effect. (Laws of 1859, chap. 678, § 12; Van Rensselaer v. Whiibeek, 7 N. Y., 521, 522; Rundel v. Lakey, 40 id., 517; Westfall v. Preston, 49 id., 353, 354.) The completion of the assessment roll before the lease took effect would have created no lien nor rendered plaintiff liable. The assessment roll forms the basis on which the tax is imposed. It is, in no sense, the imposition of a charge upon the land. (Barlow v. St. Nicholas Nat. Bank, 63 N. Y., 399.) The defendant did not contemplate the existence of a lien upon the land before the lease took effect by reason of the completion of the assessment roll. {Fern v. Townsley, 45 Barb., 150, approved; Dowdmey v. The Mayor, etc., 54 N. Y., 188; Ba/rlow v. St. Nicholas Nat. Bank, suyrai) The defendant in covenanting to pay taxes contemplated the payment of money, and the time when the tax accrued must be deemed to be when money became payable for it. {Giles v. Austin, 62 N. Y., 493.)

      PL. P. Townsend, for the defendant.
    At the time of the commencement of the term of the lease, the 1st day of May, 1875, the assessment, with respect to the premises embraced in the lease as against the owner or his representative, the plaintiff or the occupant thereof, had been judicially and conclusively determined and fixed. Such determination established the liability of such owner, plaintiff or occupant to pay said taxes whenever computed. {Run-dell v. Lakey, 40 N. Y., 513; IE. S. [5th ed.], 913; Laws of 1859, chap. 302, § 11, p. 682.) It is the person of the owner, his representative or occupant of the land that is assessed, but the amount he is assessed is determined by the value of the land. Being occupied, or the owner or representative being a resident, the assessment must be against such occupant, owner or representative by name. (1 it. S. [5th ed.], 908, §§ 1, 2, 8, 9, 10; Laws of 1859, chap. 302, § 7, p. 680; Whitney v. Thomas, 23 N. Y., 285 ; Rundell v. Lakey, 40 id., 517; Litchfield v. McGomber, 42 Barb., 295.)
   Bbady, J.:

The defendant, by lease dated March 30, 1875, secured certain property for a term of ten years, commencing on the 1st of May, 1875, and agreed, during the term demised, to bear, pay and discharge all such taxes and assessments, extraordinary as well as ordinary, as should be levied, assessed, imposed or grow due and payable upon, out of, or for, the demised premises and all parts thereof as the same then existed, or might thereafter be imposed in accordance with the terms of the lease, by virtue of any present or future law of the United States of America, or of the State of New York, or of the corporation of the city and county of New York, or either of them, or by other legal proceedings or lawful authority whatever, when and as the same should become due and payable.

The taxes for the year 1875 had not, on the first of May aforesaid, been determined. The obligation resting upon the land to discharge them or to incur the burden of a lien for the amount, so to speak, existed at the time the lease was executed, but they had not then been imposed, because the amount was not ascertained. They had not, therefore, been assessed; they had not grown due and payable and could not be levied therefore out of the demised premises. The preliminaries to the collection of the taxes were not and could not be completed, until the action of the board of supervisors in the month of July following the commencement of the term when the. rolls received from the assessors by the commissioners of taxes and assessments must be sent to the board of supervisors, a ceremony which takes place on the first Monday of July in each year (Laws of 1859, chap. 302, § 13). The supervisors are then required by law to place opposite to the several sums set down as the valuation of the real and personal property on the rolls, the respective sums in dollars and cents to be paid as a tax thereon, rejecting the fractions of a cent (Laws of 1850, chap. 121, § 25). It follows as a necessary sequence that the amount of the tax was unknown when the term began, and could not have been known until the month of July following. It would have been impossible, therefore, for the lessor to have paid them, or to have determined what the amount would be.

It seems to be quite apparent, that the taxes having thus been ascertained subsequent to the commencement of the term, they grew due and became payable after the term commenced, and were within the operation of the covenant on the part of the defendant, and by wbicb we have already seen he promised to discharge all taxes and assessments which should, during his term, be levied, assessed, imposed or grow due. The question thus discussed seems to be determined in favor of the plaintiff by two cases in the Court of Appeals. (Dowdney et al. v. The Mayor, 54 N. Y., 186; Barlow et al. v. The St. Nicholas Bank, 63 id., 399.) It was expressly held in the latter case that the entry of land in an assessment-roll did not constitute an incumbrance thereon, and the assessment or the subsequent levying of the taxes thei’eon was not a breach of covenant against incumbrances contained in the deed, executed after the completion of the assessment-roll and before the levying of the taxes, and it is said in that case that the assessment is the basis upon which the board of assessors act in apportioning the taxes, but it is in no sense imposed as a charge upon the land described in the roll. It is one of the preliminary steps which result in taxation.. It is further said in that case, and properly, that the roll when complete fixes the valuation of the property to be taxed, but it does not determine the amount of the taxes, and the most which can be claimed is, that it renders more definite and certain the liability to taxation which nevertheless existed before the assessment was made. The cases are analogous, but the. covenant of the defendant is broader than the covenant against incumbrances, because it assumes the payment of all such taxes and assessments as shall be levied, assessed, imposed, grow due and become payable. The plaintiff, for these reason, is entitled to judgment.

Davis, P. J., and Ingalls, J., concurred.

Judgment ordered for the plaintiff.


author: Brady, J.:

text:
    JACOB H. HERRICK, Appellant, v. ADON SMITH, Jr., Respondent.

      Witness — impeachment of — when prior declaration of witness map he proved,, for the pv/rpose of sustaining his testimony.

    In this action, brought for a partnership accounting, the defendant claimed that the accounts had been settled by an accord and satisfaction. The parties themselves were the principal witnesses and gave contradictory evidence. The defendant to impeach plaintiff’s testimony denying the settlement, gave evidence to show that at the time of the settlement, plaintiff thought that defendant’s father, a man of wealth, intended to leave his property to defendant in trust and not absolutely; and that subsequently, upon learning that the property was left to defendant absolutely, so that defendant was pecuniarily responsible, he denied the settlement. Upon the trial the plaintiff offered to prove by a witness that he had denied that any settlement had been made before he knew the contents of the will of defendant’s father.

      Held, that the evidence was proper as tending to show that the plaintiff had denied the settlement, at a time when he could not have been impelled so to do by a knowledge of the change in defendant’s pecuniary condition.
    Where an attempt is made to discredit a witness on the ground that when his testimony is given his interests prompt him to make a false statement, he may show that he made similar statements at a time when he had no advantage to derive from so doing.
    Appeal from a judgment in favor of tbe defendant, entered upon tbe trial of tbis action by tbe court without a jury.

      WilUam A. Beach, for tbe appellant.
    It was error in tbe court upon tbe trial at Special Term to exclude tbe evidence offered, of statements by plaintiff, in regard to tbe indebtedness of tbe defendant to tbe firm, made to Mr. Camp and to Mr. Allen after tbe 5tb day of February, 1874, and tbe time of tbe alleged settlement, and before the 24th day of March, 1874, the date of tbe death of Adon Smith, senior. (The People v. Vane, 12 Wend., 78; Róbb v. Hockley, 23 id., 50; People v. Finnegan, 1 Parker’s Crim. Rep., 147; Smith v. SUcImey, 17 Barb., 489; Railway P. A. Co. v. Wanner, 62 N. Y., 651; S. C., 1 Weekly Dig., 204; Hotchldss v. Germania Fine Ins. Co., 5 Hun [12 Sup. Ct.], 90; Starkie on Evidence, 353; 1 Phillips on Evidence, 814, 974; 1 Greenleaf on Evidence, § 469; 2 Taylor on Evidence, § 1330.)

      Jolm JE. Pcvrson, for the respondent.
   Brady, J.:

This action is to recover a balance alleged to be due to tbe plaintiff on the partnership accounts between him and the defendant. The latter, in answer to the claim, set up as one of his defenses a settlement, an accord and satisfaction accomplished by the release of a note held against the firm by his father, and by the execution, also, by his father, of a note for $4,500; the object of which was to enable the firm to compromise with their creditors, and thus to avoid proceedings in bankruptcy. The defendant, as he alleges, was unwilling at first to ask his father to make the note of $4,500, but urged thereto by the plaintiff, finally yielded, and after some trouble succeeded in getting it. It was obtained and given, and the release or surrender of the other note, as against the firm, also consented to, in consideration of the agreement that it would be a full settlement of all partnership transactions between the defendant and the .plaintiff. In other words, an accord and satisfaction, founded upon the consideration thus paid by a stranger, for the defendant’s benefit. The parties, in their evidence, stood vis a vis on this subject, and their testimony was irreconcilable.

It appeared, however, upon the trial, that the defendant’s father was dead, and that the plaintiff supposed that the defendant’s share óf his father’s estate, who was a man of wealth, would be given to him by trust and not absolutely. It also appeared that the plaintiff, having obtained a copy of the will, learned that this was an erroneous view of the subject, and that he then determined to press his claim which he had not previously sought to enforce.

The proof of these facts, extracted from the plaintiff by the examination of the counsel for the defendant, gave rise to a suspicion or. imputation that the prosecution of the demand resulted from the discovery mentioned, and that the denial of the settlement was also prompted by it. The possession of means to pay had, in other words, recreated or revived, or both, a claim which had been settled, and which was by a favorable change in the defendant’s condition, valuable if it could be maintained.

The testimony, as stated, in reference to the settlement, was conflicting, and the parties were substantially the only witnesses. The seeming presence of an apparent motive to misrepresent, namely, the ability of the defendant to pay, having thus- confronted him, the plaintiff offered to show that before the death of the defendamos father and soon after the transactions between the parties in reference to their copartnership, he had stated to the witnesses named, that there had been no settlement; and thus he designed to relieve himself from the odium of the bad motive or imputation mentioned. The testimony was rejected and exception was taken ; and thus is presented an important question, which if decided in favor of the plaintiff, disposes of this appeal.

Was the evidence admissible?. The authorities are not in discord upon the proposition, that special circumstances may require the admission of such testimony, and that they do exist where a design, resting on facts proved may be imputed, to misrepresent from some motive of interest; in which case, in order to repel the imputation, it is proper to show a similar statement when the supposed motive did not exist, or when motives of interest would have prompted a different statement of facts. This view is sustained by the text books. (Starkie on Evidence, 353 ; Phillips on Evidence, 307, 308 ; 1 Greenleaf on Evidence, § 469 ; 2 Taylor on Evidence, § 1330.) And the subject is also elaborately considered and the principles declared in Robb v. Hackley (23 Wend., 50); it is reasserted in Smith v. Stickney (17 Barb., 489); again in Hotchkiss v. The Germania Fire Insurance Company, (12 N. Y. Sup. Ct., 90), and by Miller, J., in Railway P. A. v. Warner (62 N. Y. 651), although the latter case is only reported in memoranda, because a majority of the whole court did not concur. Justice Miller said : “ As a general rule, such evidence is inadmissible, as the witness cannot be allowed to corroborate his statement in court by what was said by him out of court. There arre, however, exceptions to this rule, im case am attempt is made to discredit the witness on the ground thai his testimony was gi/v.en wider the imflruemce of some motive pj'omptimg him to make a false or colored statement, then, he may be allowed to show in reply, that he has made similarr declamations at a time when the motive imputed to him did not exist.

The testimony thus rejected is correctly said to be dangerous, and is to be accepted only under circumstances special in character, and then but for the purpose of corroborating the statement made upon the witness’ stand. The design of the rule is to enable the witness to relieve himself from an apparently dishonest motive, or imputation, in order that his testimony may not be unjustly criticised or discredited. It primarily affects his. credibility only. If a motive or imputation be asserted or charged, and the parties are substantially the only witnesses to a particular, important and necessary fact, the former statement, in corroboration, may assist in the administration of justice. The guards placed about the application of the rule and the limit of its sphere, would seem to remove from it the dangerous consequences which the courts have- appre-. hended. In this case the necessary elements are presented, and the evidence should have been received. For that reason the judgment should be reversed and a new trial granted, with costs to abide event.

Davis, P. J., and In&alls, J., concurred.

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


author:
      Brady, J.:
     Davis, P. J.:

text:
    MARIA S. MOFFATT and DAVID B. MOFFATT, Respondents, v. ZILLAH McLAUGHLIN Impleaded with ALFRED McLAUGHLIN, Appellant.

      Action of partition — allegations of complaint — Buie 78 of 1876 — demurrer.
    In an action for partition, in -which, one of the defendants was an infant, the complaint alleged that the land therein described was the only real estate owned in common by the defendants. The defendant demurred on the ground that it was not averred that the lands described in the complaint were the- only lands owned in common by the parties as required by Rule 78 of the Rules of 1876.

      Held, that the demurrer was properly overruled; that if the allegation was defective it was because of its uncertainty and the remedy was by motion and not by demurrer.
    Appeal by defendant, Zillah McLaughlin, from an order overruling defendant’s demurrer to the complaint. The defendant Alfred McLaughlin was an infant at the time of the commencement of the action.

      M. B. Field, for the appellant.

      S. F <& F. B. Wighimcm, for the respondents.
   Brady, J.:

This is an action for partition and one of the defendants is an infant. The complaint alleges that the land described is the only real estate owned in common by the defendants. The defendant Zillah McLaughlin demurred upon the ground that the complaint did not state facts sufficient to constitute a cause of action, and this proposition rests upon the ground that it should appear by proper averment that the lands described are the only lands owned in common by the parties as required by Buie 78 of this court, in force prior to January 1, 1878. The pleader, it will be perceived, averred the lands to be the only real estate owned in common by the defendants, instead of alleging that it was the only real estate owned by the parties. The demurrer was overruled, and properly.

The averment made was an attempt to conform to the rule mentioned, and the reasoning of the learned justice who presided at Special Term shows that the demurrer was not the mode of procedure, if the defendant demurring felt aggrieved. It was asked by him, “if the allegation referred to was true, how could the defendants own other lands in common with the plaintiff,” and this demonstrated that the allegation, if assailable, was on account of its uncertainty only. The remedy was to make it more certain and definite. The imperfect averment of a material fact is not cause for demurrer. If the intention of the pleader is apparent, but the phraseology doubtful in effect, the remedy is by motion and not by demurrer.

It was clearly the intention of the pleader herein to conform to the rule, and perhaps logically he did so. It is unnecessary, however, to pursue the subject further. The order appealed from was right, and should be affirmed with ten dollars costs.

Ingalls, J., concurred.

Davis, P. J.:

I concur, except as to costs, which are not in such appeals limited to ten dollars.

Order affirmed with ten dollars costs


text:
    ANNE STALLKNECHT, as Administratrix of CHARLES STALLKNECHT, Deceased, Respondent, v. THE PENNSYLVANIA RAILROAD COMPANY, Appellant.

      Statutes giving right of action for negligent hilling — in what States, and by whom, it can be enforced.

    This action was brought to recover damages arising from the death of plaintiff’s intestate, in the State of New Jersey, occasioned by the negligence of the defendant, a foreign corporation. At the time of the accident there was in force in the State of New Jersey a statute, similar to that of this State, giving to the personal representatives of the person killed by the negligence of any person a right of action for the damages occasioned thereby. The plaintiff was appointed administratrix by the surrogate of New York.

      Held, that the right of action given by the New Jersey statute could be enforced in the courts of this State by an administratrix appointed in this State.
    Appeal from an order overruling a demurrer interposed to tbe complaint.
    On April 6,1815, one Charles Stallknecht, plaintiff’s intestate, who was then in the employment of the defendant, was killed by a collision on its railroad near Millstone, New Jersey.. On September 23, 1815, the surrogate of the county of New York issued letters of administration to the plaintiff who, thereupon, brought the present action. The defendant demurred to the complaint. Hpon the trial Mr. Justice Van Brunt overruled the demurrer, and-from that decision the present appeal is taken.

      John M. Scribner, for the appellant.
    No action can be maintained in this State by an administrator appointed under the laws of New York, to recover upon a cause of action not existing at common law but created by the New Jersey statute set forth in the complaint. (Mackay, Admr., v. Oen. E. E. of JY. J., per Ship-man, J. [MS.].) The same question has been passed upon in several other States. (Richardson v. N. Y. Gen. R. R. Go., 98 Mass., 85; see, also, Revised Statutes of New York, 2 R. S., 13, § 23, p. 15 [Edm. ed.].) The accident by which Mr. Richardson was injured happened in 1865. At that time there was a statute in Massachusetts giving a remedy in such, a ease. (Gen. Stat. Mass. [3 860], 794, § 34; Sherman & R. on Neg., § 294; Woodward v. Midi. So. and Northern Ind. R. R. Co., 10 Ohio State Rep., 120; Needham, Admvrx., v. Grand Trunk Railway, 38 Vermont, 294; State [use of Allen] v. Pittsburgh, etc., R. R. Co., 45 Maryland Rep., 41.) At the time of these decisions the statutes of Ohio, Illinois, Vermont and New Jersey, were substantially like the statute of this State. That the plaintiff cannot recover on the facts, alleged in her complaint is also established by the decisions-of our courts, that a New York administrator cannot recover, even under the statute of New York allowing .compensation to the widow and next of kin of a person whose death has been caused by wrongful act, neglect or default (chap-450, Laws 1847), where the injury resulting in death occurred without the State. (JBeadi v. Bay State Co., 10 Abb., 71; S. O., 30 Barb., 433; Whitford v. Panama R. R. Co., 23 N. Y., 465 ; S. Cb 3 Bosw., 67; Crowley v. Panama R. R.' Co., 30 Barb., 99.)

      Clifford A. H. Bartlett, for the respondent.
    It has been held by the courts of this State that an action of this character could be maintained on a foreign statute similar to our own. (Whitford v.' The Panama R. R., 23 N. Y., 474; S. C., 3 Bosw., 17 and 83; Van Buskirk v.. Warren, 41 id., 131; 27 Barb., 246.) It is not requisite to the maintenance of this action that letters of administration should have been taken out in the State where the cause of action arose. (.Kansas Paoifio Railway Co. v. Lydia LL. Cutter, Administratrix, 16 Kansas; Jeffersonville, Madison and Lndiana/polis R. R. Co. v. Hendricks, Administrator, 41 Indiana, 73.)
   Brady, J.:

The intestate was in the employment of the defendant, and while so engaged was killed on the line of their road or route and in the State of New Jersey. It does not appear, by express averment, whether or not he was a resident of this county at the time of his death, but the presumption must be that he was, inasmuch as letters of administration were granted of his effects. When the collision occurred by which the intestate was deprived of his life, there existed in this and in the State of New Jersey, a statute which gave to the personal representatives of the person killed aright of action for damages resulting from death if caused by negligence. When the death occurred, if caused by negligence, a right of action instantly accrued to the personal representatives, whoever' they might be, and this right being personal in character followed the rule of the common law and could be enforced wherever jurisdiction of the wrong done could be acquired. In the following cases, Beach v. The Bay State Company (30 Barb., 433); Crowley v. Panama Railroad Company (30 id., 99), cited on behalf of the defendant, the effect of a corresponding statute in the respective States was not considered or suggested, but in Whitford v. Panama Railroad Company (23 N. Y., 474), it was, and the intimation of the court was decidedly in favor of the right of action as a consequence. It is not doubted in any of these cases, that if the right of action existed by the common law it could be enforced in all States where the common law prevailed, and the doctrine rests on the proposition that the law is the same in each sovereignty. When instead of the common law we have kindred statutes, the principle exists, from which, in the realm of the common law the right of action springs, and the rules of that realm are applicable in the enforcement of the right. When, therefore, the plaintiff was appointed administratrix she became the representative of the right and could enforce it here if, by the process of our courts, we could obtain jurisdiction over the defendant. This was possible and was accomplished.

The question presented does not involve the doctrine of ultra wires in any form. If a right of action exists and attaches to the person who seeks to enforce it, and it is not local in character, the courts are open for the. remedy, and in this case the cause of action having been created by the law of New Jersey and conferred upon the personal representatives of the person killed, and she' presenting her claim, this court is open to her for redress. In granting her the aid of our jurisdiction, we are not subjecting the defendant to an action under our statutes for injuries done in another State, but for the enforcement of a right of action created by another State and conferred upon persons dwelling within our own.

None of the cases in our courts ai’e in conflict with this view, and on principle, they could not well be and stand the test of examination.

The order appealed from should, for these reasons, be affirmed with ten dollars costs, and the disbursements of this appeal.

Davis, P. J., and Ingalls, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


author: Ingalls, J.:

text:
    THOMPSON J. S. FLINT, Respondent, v. FRANCIS BACON and others, Trustees, etc., of AUGUSTUS HEMENWAY, Deceased, and CHARLES P. HEMENWAY, Appellants.

      Easement — right of drainage — what words an'e sufficient to create.

    Previous to November 1,1861, one Dowley was tbe owner of, and bad built bouses upon lots Nos. 81, 33, 35 and 37 Broadway, New York, tbe drainage from Nos 31 and 33 being conducted into and tbrougb a pipe passing through lots 35 and 37. November 1, 1861, Dowley, by a deed containing covenants of warranty and for quiet enjoyment, conveyed tbe lots 31 and 33 to M., "as tbe same are now built upon and in tbe occupancy of tbe said party of tbe second part,” “ to have and to bold tbe same with tbe appurtenances.” On Novem ber 25, 1861, D. conveyed lots 35 and 37 to one H., “ as tbe same are now inclosed, built upon and occupied.” H. bad no actual knowledge that tbe drain-pipe from M.’s premises ran tbrougb bis, and tbe same was not observa ble upon ordinary inspection.

      Held, that tbe premises conveyed to H. were subject to an easement in favor of M., to use tbe pipe laid therein for tbe purpose of drainage.
    Tbe mere fact that one having, for bis building as then occupied, a right of drainage under tbe lot of another, increases largely, by reason of changes in tbe use of bis building, tbe amount of refuse matter discharged into, and passing tbrougb such drain, does not affect bis right to enjoy such easement where tbe passage tbrougb such drain is not obstructed nor tbe drain injured by such increased use thereof.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court without, a jury.
    The action was brought to prevent the defendant from obstructing a drain which ran from the premises of the plaintiff, Nos. 31 and 33 Broadway, to and through those of the defendant, Nos. 35 and 37 Broadway, New York. The latter denied any right in the plaintiff to use such drain and further claimed, among other things, that the plaintiff had so altered the use to which his premises were applied and increased the amount of his sewage as to have destroyed his easement, if he ever possessed one. "With reference to this the court found that Mint, soon after entering into the possession of 31 and 33, changed, to some extent, the interior construction thereof from warehouses and counting-rooms to offices, and increased the number of water-closets from four to seventeen, and the number of rooms for tenants from two counting-rooms and warehouses to some twenty-four rooms, in which condition the said premises had since been and were at the timé of the trial.
    That one of the tenants of said Flint had used, for some process of wine manufacture, a ground marble dust which, in small quantities, had passed off through the pipes of 31 and 33 into the drain and so been discharged with other refuse material, but the same had never obstructed the free passage through said pipes or drain nor injured the same, nor had there ever been any choking or obstruction of said pipes or drain, except the one which occurred in the winter of 1869-70, from a dislocation thereof.

      JEdga/r 8. Van Winkle, for the appellants.
    When the original owner of two pieces sells one with an easement in its favor as against the other, then sells the other piece but says nothing of the easement in either deed, and the easement does not appear at the time of the sale, that is, is not visible, then the grantee of the second piece takes his land free and discharged of the easement. (JLam/pmem v. Milks, 21 N. Y., 505 ; Butterworth v. Cra/wford, 46 id., 349; Curtis v. Ayrault, 47 id., 75 ; Onthank v. Lake Shore and M. 8. JR. JR. Go., 15 Hun, 131.) Flint cannot change the condition of the land from what it was at the time it was sold by the owner of the two tenements. (.Lampmcm v. Milks, 21 N. Y., 505; Curtis v. Ayr emit, 47 id., 73; Washburn on Easements, chap. 1, § 322; Domat, 616 [Cushing’s ed.].

      Imther jR. Marsh, for the respondent.
    The right to the servitude passed by the conveyance of the dominant estate, not only by implication but by the express terms of the conveyance. (Bichólas v. Chamberlain, Oro. Jac., 121; JLcmvpman v. Milks, 21N. Y., 505 ; Watts v. Kelson, 6 Ch. App. Cases [L. B.], 166, 174; Comstock v. Johnson, 46 N. Y., 615, 620; Woodhull v. JRosenthaJl, 61 id., 382, 389, 390; Philbrick v. Buying, 97 Mass., 133,134,135; United

      States v. Appleton, 1 Sumner, 502; Seymour v. Lewis 2 Beaseley [New Jersey] Oh. B., 439, 443, 444; Roberts v. Roberts, 55 N. Y., 275, 277; Seymou/r v. Camandaigua R. R. Co., 25 Barb., 284,301; S. C., 14 How. Pr., 531; Mason v. White, 11 Barb., 173 ; Simons v. Olooncm, 47 N. Y., 9 ; Hills v. Miller, 3 Paige Cb., 254, 256.)
   Ingalls, J.:

This action was instituted, by the plaintiff to restrain the defendants from obstructing the drainage, from the premises of the plaintiff through the premises of the defendants, to the public sewer.

After a trial at Spe.cial Term the injunction which had been previously granted was continued, and judgment entered accordingly, from which the defendants appeal. Previous to November 1, 1861, Levi A. Dowley was the owner of land situated in the city of New York, known as lots Nos. 31, 33, 35 and 37 on Broadway. He erected thereon the buildings in question and located drain pipes connecting them with the public sewer. The drainage from lots 31 and 33 was conducted into and through a pipe passing through lots 35 and 37. On the 1st of November, 1861, Dowley conveyed lots 31 and 33 to. Henry Mariet, by a deed which contained a covenant of warranty, and also a covenant for quiet enjoyment. The deed contained the following: “As the ^ame are now built upon and in the occupancy of the said party of the second part;” “to have and to hold the same with the appurtenances.” This deed was recorded the same day it was executed. Mariet and wife conveyed the same premises to Thompson J. S. Plint, the-plaintiff, on the 31st day of March, 1863, by deed which .contains the following provision: “ As the same are now built upon and in the occupancy of the said party of the first part, together with all and singular the tenements, hereditaments and appurtenances thereto belonging.”

On the 25th of November, 1861, Dowley and wife conveyed lots 35 and 37, to Augustús Hemenway, the testator of the defendant, which deed contains the following : “As the same arre now i/nclosed, built upon and oecupiedP

'When Dowley conveyed to Mariet, he knew precisely the condition of the premises, and made the conveyance accordingly, and the language of the deed above stated, shows that he intended that his grantees should receive the premises, with the easement, namely the right of sewerage through the portion of the land reserved by Dowley. It is quite evident from an inspection of the deed to Hemenway that Dowley intended to convey to him lots thirty-five and thirty-seven, subject to such easement. Doubtless he might have employed more apt words to convey such intention. The words, “ Ns the sa/me a/re now unclosed, built upon and occupied] incorporated in a deed, could not fail to arrest the attention of a reasonably careful man, and suggested an inquiry in regard to such occupancy, as to its nature and extent. (Nicholas v. Chamberlain, Cro. Jac., 121; Lampman v. Milks, 21 N. Y., 505; Woodhull v. Rosenthal, 61 id., 382; Roberts v. Roberts, 55 id., 275.)

The phraseology of the deed from Dowley to hlariet, which was recorded when Hemenway purchased, should also have put him on inquiry in regard to the manner the premises were occupied. In purchasing property situated in a populous city, it would seem that the subject of sewerage, would be most likely first to attract the attention of a purchaser, and that a slight intimation would put him on inquiry in regal’d thereto.

Considering the form of the several conveyances, the situation of the premises, and the relation of the parties, we are of the opinion that the defendant’s acquired their title subject to the right of sewerage, as the same was, substantially, possessed and enjoyed by JVIariet, at the time of the conveyance to Augustus Hemenway. The case of Butterworth v. Crawford (46 N. Y., 349), does not, in our judgment, conflict with the views expressed above, when applied to the facts of this case. It is true the court in this case, finds as a fact, that the defendants had no actual knowledge that the drain pipe from the plaintiff’s premises entered the defendant’s premises, and that it was not observable upon ordinary inspection. Yet we deem such finding not conclusive upon the rights of the plaintiff, when considered in connection with the other facts of this case.

The appellant further insists, that if any such right was ever possessed by the plaintiff, the same became forfeited, -in consequence of the manner the plaintiff exercised the same; that he has abused such right to such an extent, as should deprive him altogether of any enjoyment thereof. The court finds that no injury has arisen in this respect from the maimer the plaintiff has used his premises. Such finding is as follows : But the same has never obstructed the free passage through said pipes or drain, nor injured the same, nor has there been any choking or obstruction of said pipes or drain, except the one before mentioned, as occasioned in the winter of 1869-70, from the dislocation aforesaid.”

The manner of such use has not been changed; it has been increased, but within the capacity of the conduit. A question of this nature, when applied to the use of property in such a city where changes become necessary, from various causes, in the use of buildings, must necessarily be regarded by the courts with reasonable ■liberality. Especially so, when it affirmatively appears, that no injury has arisen from such use.

In regard to the question of costs, it was matter of discretion with the trial court, with which this court should not interfere, but as to the costs of the appeal the appellant should pay them, as he fails upon the entire case here presented.

The judgment must be affirmed with costs.

Beady, J., concurred; Davis, P. J., not sitting.

Judgment affirmed, with costs.