text:
    PETER BURNS, Respondent, v. EDWARD J. O’NEIL, Appellant.

      County Court— allegation as to defendamfs residence, whm'e am, action is brought in — what sufficient — Allegations im pleadings — relate to time of beginning suit.

    Appeal from a judgment of tbe Monroe County Court in favor of tbe plaintiff, and also from an order of said court denying a motion for a new trial on a case containing exceptions.
    This was an action for assault and battery. Tbe action was commenced by the service of a summons to answer tbe complaint, a copy of which was stated in tbe summons to be annexed thereto. Tbe complaint averred that “ tbe plaintiff and defendant are residents of tbe county of Monroe.”

      The court at General Term said: “At the close of the plaintiffs testimony, the defendant’s counsel moved for a nonsuit on two grounds, only one of which need be noticed, to wit, that the court had not jurisdiction of the action. The reason assigned was, that the complaint does not allege that the defendant was a resident of the county of Monroe, at the time of the commencement of the action. The statute gives County Courts jurisdiction in civil actions for the recovery of money, not exceeding $1,000, or of personal property not exceeding that sum in value, in which all the defendants are residents of the county in which the action is brought, at the time of its commencement. (Laws 1870, ch. 467, p. 1041, § 1.) The allegation in the complaint, as to the residence of the defendant, is sufficient. The complaint having been served with the sum mons when the suit was commenced, the averment in it that the plaintiff and defendant ‘are’ residents, etc., has reference to the time of the commencement of the suit. In Frees v. Ford (2 Seld., 176), cited by the appellant’s counsel, the declaration contained no allegation, whatever, as to the defendant’s residence.”

      Wm. J. Sheridan, for the appellant. Townsend da Sullivan, for the respondent.
   Opinion by

Smith,'J.;

Mtjllin, P. J., and Taloott, J., concurred.

Judgment and order affirmed.


source: Caselaw Access Project

author: Smith, J.;

license: Public Domain

text:
    BENJAMIN A. MERRILL, Appellant, v. ENSIGN L. CALKINS and another, Respondents.

      Basement — right to use water from spi’mg on another's land.

    Appeal from a judgment ip favor of the defendants, entered on the report of a referee.
    The action was brought to recover damages for tearing down and removing part of a dam erected by the plaintiff, and for an injunction.
    The plaintiff owns a village lot on the east side of Furnace street; in Wolcott, nearly opposite a spring of water on premises situated on the west side of the street, belonging to the wife of the defendant Calkins. On and prior to May 12, 1821, Jonathan Melvin owned a large tract of land, including both parcels above mentioned. On that day he deeded to "William Clark the lot now owned by the plaintiff, described by metes and bounds, “ and also the privilege of raising the water at the spring above-mentioned, and conveying the same in such a direction as may be most convenient to the premises conveyed by said deed, in such quantities as shall be necessary to supply a tannery which shall be hereafter erected on the premises above described, and for such other uses on said premises as may be necessary, nevertheless reserving to the said Melvin water forever necessary for the uses of said Melvin’s farm.”
    The plaintiff derives title from Clark. Mrs. Calkins claims through a deed executed by Melvin subsequently to his deed to Clark. The spring in question is about twenty-five feet west of the highway, and issues out of a bank forming the westerly boundary of a basin about two rods wide, extending from a point twelve or fifteen rods south of the spring to the highway. South of said spring are other springs in said basin, the waters of which flow in a north-easterly course, and after uniting with the water from the spring in question, discharge in a natural channel under the highway and across the north-west corner of the plaintiff’s premises. There never was a tannery on the plaintiff’s lot, and the waters of the spring were never raised or conducted to his premises, except by their natural channel. In the summer of 1876, the plaintiff built a dam about thirty inches in bight, across the basin at the west line of the highway, and below the point where the waters from the spring in question run into the stream from the springs above, and thereby obstructed and raised the water from all the springs and overflowed the spring in question, and about five or six square rods of Mrs. Calkins land. The spring was thereby filled with mud and sediment, and its water was rendered unfit for domestic use, but continued fit for watering animals.
    The referee decided that the complaint should be dismissed with costs.
    The court at General Term said: “ The right of the plaintiff to use the water flowing from the spring on Mrs. Calkins’ land, subject to the reservation contained in the deed from Melvin to Clark, is undoubted. His right to such use does not depend on the erection of a tannery upon his lot, nor is it limited to the nse of the water for the purposes of a tannery. He may nse the water for any purpose on his own premises, provided he uses no more than is given by the grant (Cromwell v. Selden, 3 N. Y., 253; Wakel/y v. Dmidson, 26 id., 387; Comstock v. Johnson, 46 id., 615), and his right being created by deed, is not lost by non-user.
    The deed gives him the right to raise the water and convey it in the most convenient direction to his premises. But by the terms of the grant, he can only raise the water at the spring. If he raises it by means of a dam, he has no right to obstruct the flow of the water of the other springs, or to overflow the lands of Mrs. Calkins any further than is necessary to the enjoyment of the right given by the deed.
    He may undoubtedly erect a dam at the spring for the purpose of raising the water, and he may carry the water from that point to his premises. Consequently, he has also the right to enter upon the land adjacent to the spring for the purpose of constructing and keeping in repair a dam and pipes, or other suitable means for raising and conveying the water, doing no unnecessary damage. It is a maxim of the law, that the grant of a thing carries with it, that without which the grant would be of no effect. (Angelí on 'Water-courses, § 158, and cases there cited; Oakley v. Stanley, 5 Wend., 523.)”

      Wm. Roe, for the appellant. Anson S. Wood, for the respondent.
   Opinion by

Smith, J.;

Mullin, P. J., and Talcott J. concurred.

Judgment affirmed, with costs.


author: ’ Opinion by Talcott, J.

text:
    HIRAM POOL et al. v. ALBERT E. SAFFORD.

      Cha/mfeo'order of county judge— appeal from — can ority be taken after or dm'has been entered, in the county cleric’s office.

    Appeal by a receiver in the above-entitled action appointed in supplementary proceedings, from an order said to have been made at chambers, by the county judge of Cattaraugus county, that the said receiver account and show cause why an attachment should not issue against him for contempt.

      The court at General Term said “ Tbe original judgment under wbicb tbe supplementary proceedings were instituted, was recovered in tbe Supreme Court. Tbe said order, if reviewed by tbis court, is to be reviewed in tbe same manner as if made by a judge of tbe Supreme Court. (Code, § 403.)
    Sucb an ordei’, made out of court, cannot be reviewed on appeal, unless entered witb tbe clerk of tbe court. (Code, § 350.)
    Tbe case contains no evidence that tbe order appealed from has ever been entered anywhere, and there is no evidence, sucb as tbe statute requires, that any sucb order has been made. Consequently, tbis court bas no jurisdiction to act upon tbe appeal, wbicb must therefore be dismissed.”

      J. M. Gongdon, for appellant C. E. Marsh, receiver. G. Z. Lmcohi, for S. 0. Green, respondent.
   ’ Opinion by Talcott, J.

Present — Mullin, P. J., Talcott and Smith, JJ.

Appeal dismissed, witb ten dollars costs and disbursements.


text:
    SOLOMON SCHEU, Respondent, v. ERIE RAILWAY COMPANY Appellant.

      Common cmrierr — delveery of goods to wrong person — liability for — distinction between liability of common ca/rriei' a/nd warrelwusema/n.

    Appeal from a judgment entered on tbe decision of a single judge of tbe Superior Court of Buffalo, and transferred to tbis court by order, pursuant to Laws of 1873. (Ob. 239, § 7.)
    The action is.brought to recover damages for tbe alleged wrongful delivery of a quantity of malt belonging to tbe plaintiff, wbicb tbe defendant, as a common carrier, received at Lancaster, Erie county, "and undertook to transport and deliver to tbe plaintiff’s consignees, at Newark, New Jersey. Tbe court found that tbe malt was consigned to tbe firm of C. Weidenmeyer & Sons, Newark, New Jersey, and that tbe defendant failed to deliver it to that firm, but wrongfully and negligently delivered it to tbe firm of 0. Weidermyer’s Sons, at Newark, and that tbe latter firm was not tbe consignee or owner of the malt or entitled to receive it; that the latter firm was insolvent, and the plaintiff has not received pay for the malt, but, by reason of such wrongful delivery, has lost the same. The court ordered judgment for the plaintiff for the value of the malt.
    The court at General Term said: “ Upon the facts found, the judgment is clearly right. If a common carrier deliver goods to a wrong person, although by his own innocent mistake, or by his being imposed upon, he is liable to the true owner for the value. Such wrongful delivery is treated in the common law as a conversion of the property. (Story on Bailments, § 545, b; McMitee v. New Jersey Steamboat Go., 45 N. Y., 34.) The carrier delivers at his peril. He is responsible as an insurer. His liability differs from that of a warehouseman, who is held only" to the exercise of proper diligence and care in the preservation of the property and its delivery to the trae owner. . (Price v. Oswego and Syracuse It. It. Go., 50 N. Y., 213, per Grover, J., p. 217.) When goods are safely conveyed to the place of destination, and the consignee is dead, absent, or refuses to receive, or is not known, and cannot, after reasonable diligence, be found, the carrier may be discharged from further responsibility as carrier, by placing them in a proper warehouse ■ for, and on account of the. owner (Fish v. Newton, 1 Den., 45); but until discharged in that manner, his responsibility as carrier continues. (Price v. R. It. Go., supra.)

      Sprague, Gorham do Bacon, for the appellant. Humphrey do Lockwood, for the respondent.
   Opinion by

Smith, J.;

Mullir, P. J., and Taloott, J., concurred.

Order affirmed, with costs. .


text:
    ALBERT HAYWOOD and SPENCER L. BAILEY v. JAMES V. H. JONES

      TJswry — must be pleaded.

    Motion by tbe defendant for a new trial on exceptions ordered to be heard in tbe first instance at tbe General Term, after a verdict in favor of tbe plaintiffs, directed by tbe court.
    Tbe action was by tbe indorsees against tbe maker of a promissory note. Tbe defense was that tbe note bad never been delivered, and bad no legal inception. It appeared that tbe note bad been wrongfully taken from tbe maker’s possession by one Lewis, who sold it to one Lowry at a usurious discount.. Subsequently tbe plaintiffs purchased tbe note from Lowry. Hpon tbe bearing at tbe General Term, it was urged that tbe usury affecting tbe transfer of tbe note to Lewis rendered it void. With reference to this tbe court at General Term
    said: “ It is said that tbe note was usurious. If tbe question bad been presented by tbe pleadings, so that it could have been litigated at tbe trial, it may be that tbe transaction with Lowry would have been adjudged usurious, as be advanced less than $1,000 for tbe note. And, of course, tbe note, if usurious in its inception, would have been void in tbe plaintiff’s bands. But tbe defense of usury is not available to tbe defendant, as against the plaintiffs in this action, because it is not pleaded. It is a well-established rule of pleading, founded on tbe plainest considerations of justice, that where a contract or other cause of action, valid on its face, has been assigned, tbe defendant should not be permitted to defeat tbe plaintiffs’ claim, on the ground that tbe contract was void in its inception, by reason of fraud, illegality, or tbe like, without apprising him specifically of tbe facts relied on to establish such defense. Especially does this rule apply in respect to tbe defense of usury, tbe effect of which, if sustained, is to set aside tbe entire contract, and to deprive tbe party purchasing of even tbe money advanced. (Fay v. Grimsteed, 10 Barb., 321; Gould v. Horner, 12 id., 601; Watson v. JBcdley, 2 Duer, 509; Soott v. Johnson, 5 Bosw., 213, 221; Meeha/nicd JBamJc of WilUamsbv/rgh v. Foster, 11 Barb., 87.)
    Tbe printed case with which we are furnished does not show that the question of usury was even suggested at the trial. The testimony respecting the amount advanced by Lowry for the note was called out by the defendant after he had rested his defense, and had resumed the case in order to reply to testimony introduced by the plaintiffs tending to show that they purchased in good faith.
    The defendant’s counsel cites the cases of Sail v. Wilson (16 Barb., 548) and Sweet v. Chagoma/n (Y Hun, 5Y6). In the latter the defense of usury was pleaded. In Sail v. Wilson, a promissory note, tortiously obtained, was sold by the wrong-doer to one Bigelow at a discount, and by him transferred to the plaintiff without consideration. The case is distinguishable from the one in hand by the very material circumstance that there the plaintiff, not having parted with value, stood in Bigelow’s shoes, and was affected by whatever impeached his good faith. And on that ground the case was decided. (Op. of Allen, J., 555.) But upon the point that the defense of usury, to be availed of, must be pleaded, the case is in accord with the other authorities above cited.”

      W F. Wa/rren, for the plaintiffs. Jenkins c& Cameron, for the defendant.
   Opinion by

Smith, J.;

Hullin, P. J., and Talcott, J., concurred.

New trial denied, and judgment for plaintiff ordered on verdict.


author: Boajrdman, J.:

text:
    GAYLORD WILLSEY, Respondent, v. HARRIET S. HUTCHINS, Impleaded, etc., Appellant.

      Ma/rrieil woman —promissory note of — what constitutes a benefit to her separate estate.

    The defendants, husband and wife, executed a valid agreement in writing with one Adams, which provided that he should convey to them or to the husband the right to use and vend a certain patented article in Iowa and Missouri, and that the wife should convey to him a farm owned by her, he giving back a mortgage thereon for the difference between the price of the patent right and the value of the farm. Subsequently, the wife desiring to be released from her contract to convey the farm, executed a note and delivered the same to Adams, who thereafter transferred the same to the plaintiff.
    In an action on the note against the wife it was insisted that the husband was the sole purchaser of the patent right, and that the wife was merely a surety. ,Held, that as the wife had legally bound herself to convey the land to Adams, her release from such obligation was a benefit to her separate estate sufficient to sustain the note.
    Since the statutes of 1860 and 1862 the executory contract or note of a married woman is prima facie valid, and the special facts establishing her liability as a married woman need not be alleged in the complaint.
    Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee, and from an order of the Tompkins County-Court denying a motion for a new trial.

      Harriet S. Hutchins and Charles H. Hutchins, husband and wife, entered into negotiations with Gr. W. Adams for the purchase of an interest in a patent steam-washer.*
    An agreement in writing was executed by the several parties, by which it was provided that Adams should convey to Hutchins and his wife or to the former (there being a dispute upon this point) the right to use and vend the patented article in Iowa and Missouri, and that Harriet S. Hutchins should convey to Adams a farm owned by her, and that he should give back a mortgage thereon for the difference between the price of the patent right and the value of the farm. Thereafter, the wife wishing to be released from her contract to.convey the farm, executed to Adams the note on which this action was brought. Subsequently the note was indorsed by Adams to the plaintiff.
    The present action was commenced against Harriet S. Hutchins and Charles H. Hutchins, in the Justice’s Court, from the decision of which an appeal was taken by the defendant Harriet S. Hutchins, to the County Court of Tompkins county, where' the judgment below was affirmed.

      Jerome Mowe, for the appellant.

      Ferris c& Fowe, for the respondent.
   Boajrdman, J.:

The sole question presented for our decision arises upon the motion for a nonsuit at the close of the evidence. The other exceptions taken upon the trial are not urged, and no valid exception is taken to the decision of the referee. The note in suit was given by the defendants, who are and were husband and wife, to one Adams, and by him transferred to plaintiff before it became due. Adams had negotiated with the defendants for the sale to them, or one of them, of a patent right. The wife, Harriet S. Hutchins, appears to have been the owner of a farm in her own right. The result of the negotiations was that Adams contracted to sell the defendants some patent territory in Iowa and Missouri, to take the wife’s farm and give her back a mortgage for the difference. Mrs. Hutchins appears to have made and subscribed such a contract with Adams, in which her husband and Adams joined. The terms and conditions of this contract are proved by parol, the original contract not being produced. No objection to such mode of proof is made. But the fact is agreed upon by all that prior to the giving of the note in suit Mrs. Hutchins was bound by a valid written contract to sell and convey her separate real estate to Adams for the considerations, and on the terms and conditions therein mentioned and contained. It also sufficiently appears that Mrs. Hutchins became dissatisfied with the contract she had made with Adams, and wished to take up and cancel such contract. After some discussion it was agreed between the defendants and Adams that they would give Adams the note in suit, if he would surrender the contract for the farm. This was then done and the note afterwards transferred to plaintiff. The action was first brought in a Justice’s Court, where judgment was rendered against both defendants. An appeal was taken to the County Court where, it may be inferred, an order of reference was granted. The foregoing facts were made to appear in a confused way before the referee. The defendant Mrs. Hutch-ins, I suspect, alone defended. At least the grounds upon which the motion for a nonsuit was founded applied not to Mr. Hutchins and could not avail for him. He had no defense to the action, so far as I can see, and the plaintiff was therefore entitled to judgment against him. But we will assume that Mrs. Hutchins was alone defending, and that the nonsuit was applied for by her only. It was asked for because, in substance, first, the debt was her husband’s and she was his surety and had not, in terms, charged her separate estate with its payment; second, her signature was obtained by duress.

There is no evidence which would justify a nonsuit upon the ground of duress. So that at last the appeal turns upon the consideration for which the note was given. If the transaction constituted a dealing by Mrs. Hutchins in relation to or for the benefit of her separate estate, it may be enforced at law though she has not charged her separate estate with its payment. If it was not such a transaction, but she was a mere surety for her husband, the note, as to her, is a nullity. (Second Nat. Bk. v. Miller, 63 N. Y., 639; S. C., 2 T. & C., 104.)

The note was given to procure the discharge of the contract whereby the defendant Mrs. Hutchins had legally bound herself to convey her lands to Adams, in exchange for patent right territory to be deeded to her or to her husband, or to both. I do not think it important who got the patent territory so long as the contract for the sale of the land by Mrs. Hutchins was binding upon her and capable of being enforced. Mrs. Hutchins was so bound. She desired to be relieved of that obligation. To accomplish that purpose she gave this note. The giving of the note had relation to, and was for the benefit of, her separate estate; it discharged such separate estate from the incumbrance and herself from the personal obligation created by such contract of sale. It is analogous to the giving of an ordinary note by a married woman in satisfaction of a mortgage upon her separate real estate. Such note must be valid against her. The consideration moves directly to the married woman and for the benefit of her separate estate. So I think the evidence sustains the finding of the referee in the following language : “ That she (Mrs. Hutchins) was the owner of separate estate which she'held in her own right; that the said note was so executed by her for a consideration moving directly from said Adams to the benefit of her separate estate.” (Prevot v. Lawrence, 51 N. Y., 221; Frecking v. Rolland, 53 id., 422.)

Another objection was taken, that the complaint should have alleged the coverture of Mrs. Hutchins, the possession by her of a separate estate and that the note in suit was given for the benefit thereof, etc. But the case of Smith v. Dunning (61 N. Y., 249) settles that point adversely to the appellant’s claim.

Prior to 1860 the right of a married woman to bind herself by her promissory note or other executory contract was denied, unless for the direct benefit of her separate estate, or the intent to charge such separate estate was stated in the contract. Since the statutes of 1860 and 1862 the executory contract or note of a married woman is prima facie valid, and the special facts establishing her liability as a married woman need not be alleged in complaint.

This is a case where I should have been glad to have come to a different conclusion. The venders of patent rights are entitled to little sympathy when they entice ignorant and humble people into the purchase of distant territories wherein the patent may be made and sold. Such purchasers are usually utterly incompetent to realize from the thing bought if it has any value, and sink into utter helplessness when the patent vender and his gilded castles have withdrawn. These defendants seem to me such foolish and improvident purchasers, duped into the favorable consideration of an article probably valueless to them, and when committed beyond recall they are compelled to buy their release on the best terms possible.

But as I look upon the law and the facts, I am driven to the opinion that the judgment is correct.

The judgment and order are therefore affirmed, with costs.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment and order affirmed, with costs.


author: Bqabdman, J.:

text:
    WILLARD E. CHASE, Respondent, v. EDWARD D. JAMES, Appellant.

      Lien lam — chap. 489 of 1873 — what a basis for a lien under — within what time notice must be filed.

    An entire contract for digging a cellar, erecting foundations, walls and piers and moving buildings upon sucb foundations and piers, and for materials furnished therefor, constitutes a basis for a lien under chapter 489 of 1873.
    Under the fourth section of said act the notice is not required to be filed until sixty days after the performance and completion of the labor or final furnishing of the materials.

      Goodale v. Walsh (2 IT. Y. S. O. [T. & G.], 311); Spences- v. Burnett (35 N. Y., 94) distinguished.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    This proceeding was instituted under the mechanic’s lien law, chapter 489 of the Laws of 1878. In the notice the plaintiff alleged that in the summer of 1878, he entered into an agreement with the defendant, to remove a house, bam and other buildings belonging to the defendant, and to build foundations under them, for which the defendant agreed to pay him a sum therein specified, but which sum he has failed to pay, although the work has been performed as agreed.

      The defendant, by his answer, among other things, denied that the plaintiff had performed his contract, specifying particularly the provisions of the contract which the plaintiff had failed to perform.
    The cause was tried before a referee. The referee found that the wort was completed on the fifth of January; that the notice of the lien was filed within sixty days after that date, and gave judgment against the defendant for the full amount of the plaintiff’s claim.

      JE. II. Berm, for the appellant.

      Jno. G. Bktlbert, for the respondent.

         See Tiley v. The Thousand Islands Hotel Company (9 Hun, 424). — [Rep.

   Bqabdman, J.:

In this action, by which a mechanic’s lien is foreclosed, the defendant alleges the following grounds of error:

First. That the removal of buildings is not an erection, alteration or repair for which the statute gives a lien.

Second. That no items can be secured by lien, except those for work done or material furnished within sixty days prior to the filing of the notice of lien.

Third. That there is no evidence in this case of any specific work done or materials furnished, within sixty days, prior to the filing of the notice.

Fourth. That there is no evidence of the completion of the work under the contract, in a manner to entitle the plaintiff to recover pay therefor.

I will consider these questions in their order: In Hubbell v. Schreyer (15 Abb. [N. S.], 300), the Court of Appeals have held that the mechanic’s lien law is to be treated as a remedial statute, and not to be so strictly construed as to deprive creditors of the benefit intended to be conferred. Following that authority, I concur with the referee in holding that an entire contract for digging a cellar, erecting foundations, walls and piers, and moving buildings upon such foundations and piers, and the materials fiu-nished therefor, constitutes a basis for a lien under the Law of 1873 (chap. 489, § 1). Labor in erecting, altering or repairing any house, building, or the appurtenances to any house or building, or materials furnished therefor, within the fair intent and meaning of the legislature, include such wort as was done by the plaintiff in this case.

The second point is untenable. The fourth section of the act of 1873 provides for the filing of the notice within sixty days after the performance and completion of the labor or final furnishing of the materials, in order to create a lien for the amount of the claim for such work or materials. The view contended for by the defendant and sustained by the cases of Goodale v. Walsh (2 T. & C., 311) and Spencer v. Barnett (35 N. Y., 94) arose under statutes requiring the notice to be filed within sixty or thirty days after the materials were delivered or work done. Hence, in those cases, no work or materials were protected and secured by the notice, except such as were done or furnished within the sixty or thirty days before the filing of the notice.

The evidence sustains the referee’s finding that the last work was done on the 5th of January, 1871. It is true that the plaintiff, according to the evidence in the case, at one place says the work was finished December 5, 1873; at a later day, he denies having so stated, and fixes the date January 5, 1871. Evidently, the work was not completed December fifth, because it abundantly appears that the piers for the house were built December 20, 1873, and other evidence shows that the corn crib was moved after that date. I do not think it was necessary for the plaintiff to have been more specific as to the nature and kind of work done in January, 1871.

The fourth ground of error substantially asserts that the allowance of plaintiff’s claim is against the weight of evidence; that the plaintiff did not, by a preponderance of evidence, establish his right to recover any thing of defendant, and that, by his substantial failure to perform his contract, he ought not to recover. I have carefully read the evidence; in many respects it is conflicting. The referee has passed upon such conflicting evidence and found in favor of the plfllntiff. There is abundance of evidence to sustain such conclusion. Nor is there such preponderance of evidence in favor of the defendant’s position, as would lead to the supposition that the referee was laboring under any mistake or passion or partiality. To reverse a judgment upon this ground, the wrong must be clear; the power is not to be exercised in doubtful or uncertain cases. It is not sufficient that the members of this com! might think, from the mere reading of the evidence, that they would have found differently. The referee sees the witnesses and hears their evidence. Many things are seen and heard on the trial that greatly and properly affect the decision of the case on the facts, which cannot be put upon paper and returned to this court. The case must, therefore, be a very bald one which will justify our interference upon a controverted question of fact.

For the reasons stated, the judgment should be affirmed, with costs.

Present — Learned, P. J., Bockes and Boardman, JJ

Judgment affirmed, with costs.


author: Boardman, J.:

text:
    CHARLES L. HOWK, Respondent, v. CORNELIUS B. BISHOP, Impleaded with TALMADGE ECKERT, Appellant.

      Judgment — entip of, in action against two defendants where only one answers— Reversal of judgment, where one appeals — effect of — Execution — when set aside.

    In an action against Eckert as maker and Bishop as indorser of 'a promissory note, the former answered and the latter suffered a default; upon the trial a judgment was entered against both for damages and costs. Upon an appeal by Eeckert the General Term reversed the judgment and' granted a new trial. Upon the second trial Eckert was successful and recovered judgment against plaintiff for his costs. Subsequently plaintiff issued an execution against Bishop under the original judgment, in which was included the costs. Upon a motion to set aside the execution, held, that upon reversal of the former judgment none existed against Bishop under which an execution could issue, and that, in any event, Bishop could not be charged with the costs incurred by the defense interposed by Eckert.
    Appeal from an order of Special Term denying a motion made by tbe defendant Bishop to set aside an execution.
    The action in which this judgment was entered was commenced upon a note made by the defendant Eckert to the order of the defendant Bishop for the sum of fifty-five dollars. The action was against Eckert, as maker, and Bishop, as indorser. Eckert defended and Bishop suffered default. It was. tried before a referee, who reported in favor of the plaintiff, and a judgment was accordingly entered June-18, 1878, for fifty-six dollars and seventy-nine cents damages and one hundred and forty-three dollars and eighty-four cents costs against both defendants.
    The defendant Eckert appealed from this judgment to the General Term. The decision of the General Term was filed November 17, 1874, in the following language: “Judgment reversed, referee discharged and new trial granted, costs to abide the event.”
    On a new trial, in January, 1875, the defendant Eckert had a verdict.
    The execution sought to be set aside was issued under the original judgment, and was tested April 7, 1875, after the reversal of the judgment, and the new trial and verdict for defendant.
    The motion in this case was made by the defendant Bishop to set aside the execution.

      Wm. Lownsbery] for the appellant.

      S. L. Stebbms, for the respondent.
   Boardman, J.:

It is undoubtedly true that the General Term has power to reverse a judgment upon appeal as to one defendant and affirm it as to another. (Geraud v. Stagg, 10 How., 369; Story v. N. Y. and H. R. R. Co., 6 N. Y., 86, note; Code, § 366; Van Slyck v. Snell, 6 Lans., 299; Angell v. Cook, 2 T. & C., 175; 4 Wait’s Prac., 523.) But it does not follow that the power must be exercised because it exists. In the present case the judgment of $200.63 was, in fact, reversed by the General Term. Such reversal left no judgment against the defendants or either of them. A new trial was granted to defendant Eckert, who alone appeared and defended. Upon such new trial the defendant Eckert succeeded and recovered a judgment for his entire costs against the plaintiff. Upon what principle of justice, then, would a court make Bishop, who had suffered a default in the action, pay to the plaintiff his costs incurred in an unsuccessful contest with Eckert, while Eckert was at the same time collecting his own costs of his successful defense out of the plaintiff % The defendant Bishop did not choose to take the risk of a litigation. He therefore did not appear in the action, but suffered default. The liability of Bishop was several as well as joint. The plaintiff therefore, upon proper proof, might have entered a separate judgment against Bishop, with costs, as upon a default, and have had execution thereon. Doubtless that may still be done. But the judgment against Eckert and Bishop having been reversed wholly, it cannot be made the basis of an execution against Bishop any more than it can against Eckert. I think the General Term did right in reversing the judgment as to both defendants. There is no reason why Bishop should be held to pay an erroneous judgment for costs because he suffered a default.

The record of judgment does not show any service of the summons and complaint upon Bishop, or any default on his part. Nor do such facts elsewhere appear, unless by implication. Eor this reason, also, it seems to me the execution is not- sustained or justified by the judgment.

I think, therefore, that the order of the Special Term should be reversed, with ten dollars costs and expenses of printing, and the motion to set aside the execution should be granted, with ten dollars costs.

Present — Learned, P. L, Bockes and Boardman, JJ.

Order reversed, with ten dollars costs and printing, and execution set aside, with ten dollars coses.


author: Boardman, J.: Learned, P. J.

text:
    ALEXANDER S. HAYS, Respondent, v. RICHARD H. SOUTHGATE and CHARLES F. SOUTHGATE, Appellants.

      Promissory note — action upon— Title of plaintiff— denial of.

    Upon the trial of this action, brought against the maker and payee of a promissory note, the plaintiff read in evidence the note signed by the maker and indorsed in blank by the payee. The defendants set up in their answer, and offered to prove upon the trial, that the note was never transferred to the plaintiff; that he was not the legal owner or holder thereof, and that he was not the real party in interest, hut that the Saratoga Bank was the real party in interest and the owner of the note. Held, that as these facts, if proven, would constitute no defense to the action proof thereof was properly rejected. (Learned, P. J., dissenting.)
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe trial of this action at tbe Circuit.

      Ga/rr c& Peters, for the appellants.
    The plaintiff must be the real party in interest. (Tamvisier v. Oassard, 17 Abb., 187; Kill-more v. Oul/ver, 24 Barb., 656; Sanford v. Sanford, 45 N. Y., 723; Metropolitan Bank v. lord, 1 Abb., 185; S. O., 4 Duer, 630; Flood v. Reynolds, 13 How., 112; Duncan v. La/wrenee, 6 Abb., 304; S. C., 3 Bos., 103; Gla/rh v. Phillips, 21 How., 87; James v. Chalmers, 6 N. Y., 215.)

      Putnam & Kuestis, for the respondent.
    The holder of a note payable to bearer, or indorsed in blank, may sustain an action, although in fact not the owner. {Lovell v. Evertson, 11 John., 52; Gage v. Kendall, 15 Wend., 640; Oity Bank of New Karen v. Perkins, 29 N. Y., 554; Derol v. Barnes, 2 W. Dig., 384; Brown v. Penfield, 36 N. Y., 473; Williams v. Brown, 2 Keyes, 486; Eaton v. Alger, 47 N. Y., 345; Allen v. Brown, 44 id., 228; Cummings v. Morris, 25 id., 625.)
   Boardman, J.:

This is an action on a promissory note against the maker and indorser. The defendants, by their answer, deny that the note was ever transferred to the plaintiff or that he is the legal holder or owner thereof, or that he is the real party in interest, and allege that the Saratoga Savings Bank is the real party in interest and the owner and holder thereof, and should be plaintiff. On the trial, the plaintiff produced and read in evidence the said note, signed by the maker and indorsed in blank by C. B. Southgate, defendant, the payee in said note named. After proving the amount due thereon the plaintiff rested. The defendants thereupon offered to prove the facts set up in their answer. The evidence was rejected and defendants excepted. This presents the only question for review. The defendants claim the answer states facts constituting a defense, and that the court erred in holding to the contrary.

The case of The City Bank of New Haven v. Perkins (29 N. Y., 554) seems to be a conclusive authority against the defendants. The learned judge in that case says: The defendant stands here as a mere volunteer in behalf of others not before the court, and who make no claim on their own account. Confessedly he owes the debt. * * * It will be time enough to determine whether any other person has a better title, when such person shall come before the court to claim the bills in question or their proceeds from the plaintiffs.” Again, Nothing short of mala fides or notice thereof will enable a maker or indorser of such paper to defeat an action upon it by one who is apparently a regular indorsee or holder, especially when there is no defense as to the indebtedness.” Aga.jp, “ The title is good as against the defendant and that is sufficient. If there are any others who claim a title to the instruments superior to that of the plaintiff’s it can be determined whenever they come before the court to assert it.” To the same effect are Brown v. Penfield (36 N. Y., 473); Cummings v. Morris (25 id., 625); Devol v. Barnes (7 Hun, 342); Eaton v. Alger (47 N. Y., 345).

The plaintiff, holding this note indorsed in blank, might lawfully have made the note payable to himself, in which case it would have given to him a title which could only be divested by his subsequent indorsement. That would have made him the holder and owner in law. The effect is the same under a blank indorsement. That constitutes a written assignment of the security and makes the plaintiff the real party in interest under section 111 of the Code. (Allen v. Brown, 44 N. Y., 228; Sheridan v. Mayor, 4 "Week. Dig., 28 [Ct. of Appeals], and cases cited.) In the latter case, Hunt, C., says: In a case like this the whole title passes to the assignee and he is legally the real party in interest, although others may have a claim against him for a portion of the proceeds. The specific claim and all of it belongs to him. Even if he is liable to another as a debtor upon his contract for the collection he may thus make, it does not alter the case. The title to the specific claim is his.”

In the absence of any allegation of mala fides in plaintiffs possession of this note, the cases cited establish the correctness of the ruling below and show that the facts stated in the answer do not, if proved, constitute any defense to this action.

The cases cited by the defendants, Metropolitan Bank v. Lord (1 Abb., 185); Flood v. Reynolds (13 How., 112); Duncan v. Lawrence (6 Abb., 304); Tamisier v. Cassard (17 id., 187), arise on the sufficiency of answers denying plaintiffs ownership of the notes sued upon and setting up another owner. These were held to be issuable facts and to compel the plaintiff to prove his title. But they do not reach this case where a sufficient title has been proved on the trial. Sheldon v. Parker (3 Hun, 498) was decided on the question of bona fides. Killmore v. Culver (24 Barb., 656) must be considered as overruled by the cases cited. In Sanford v. Sanford (45 N. Y., 723) the defendant, as executor, claimed to be owner and holder of the note and entitled to the proceeds equally with the plaintiff, who was executrix under the same will.

On a careful examination of the authorities I am well satisfied that no error was committed by the learned judge who tried this case at the Circuit, and that the judgment should be affirmed with costs.

Learned, P. J.

(dissenting):

I understand that it is settled that, in an action on a note, the plaintiff must have the legal title. (Eaton v. Alger, 47 N. Y., 345, and S. C., 57 Barb., 179 ; Sheridan v. Mayor, 4 Week Dig., 28 ; Code 111.) On the other hand, if he has the legal title, then he is the real party in interest for the purpose of the suit, although the transfer to him was colorable (Sheridan v. Mayor, ut supra), although there might be equities against the plaintiff’s assignor (City Bank v. Perkins, 29 N. Y., 554) ; or although the consideration of the transfer was inadequate (Brown v. Penfield, 36 N. Y., 475). In all of these three cases the plaintiff had the legal title. (See Sanford v. Sanford, 45 N. Y., 723.)

In the present case the possession of the note, with the indorsement of the payee, wasprima facie evidence of the plaintiff’s title. It was not conclusive. The defendants offered to prove that the note was not the property of the plaintiff; that it had never been transferred to him, that it was the property of the Saratoga Savings Bank. Now, unless the defendant is to be precluded altogether from giving any evidence of a matter confessedly issuable, I do not see how this offer could be rejected. What he would have proved in fact, we cannot say. We must take his offer as good for all that it proposed. Under tbe offer, for instance, be might have shown that tbe note bad been accidentally lost by tbe Saratoga Savings Bank, and bad been found by tbe plaintiff. Tbe defendant’s offer was to show that tbe legal title to tbe note was not in tbe plaintiff, but in another person named. ¥e must assume that be could have shown this. If shown, it would have been a defense. It is possible that if tbe facts bad been proved, they would not have shown that tbe plaintiff did not have tbe legal title. But we cannot determine that, on tbe offer.

Tbe fact of legal title in tbe plaintiff is issuable. Tbe plaintiff bad given prima faoie evidence of this fact. There was no estoppel to prevent tbe defendant from disproving this fact, and be offered to do so.

I think tbe judgment should be reversed and a new trial granted.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment affirmed.


author: Boardman, J. : Learned, P. J.

text:
    JOHN M. FRANCIS and HENRY O’R. TUCKER, Plaintiffs, v. THE CITY OF TROY, Defendant.

      City of Troy — powm's of common council — city advertising — notices of tax sales.

    The charter of the city of Troy confers upon it the right to collect taxes. Held, that the power to determine the extent to which notices of sale of property for non-payment of taxes should be published was conferred upon the city as incidental thereto.
    The charter authorized the common council to appoint four official papers “in which the city advertising” should be done. Held, that the notices of sale of property for non-payment of taxes was city advertising within the express language of the charter.
    The charter requires the chamberlain to publish such notices in two of the official papers. Held, that this did not affect the right of the common council to direct their publication in the two other official papers. . (Learned, P. J., dissenting.)
    Submission of a controversy without action, pursuant to section 312 of tbe Code of Procedure,

      The plaintiffs being the publishers and proprietors of the Troy Daily Times presented to the city of Troy a bill for $266.25, properly made out and verified, for publishing in said newspaper the city chamberlain’s list or statement of unpaid taxes and assessments and notice of sale for non-payment once a week, for six weeks successively, commencing May 1, 1876.
    The defendant refused to pay the bill, on the ground that the publication in the Times was unauthorized by the chamberlain of the city and, therefore, not a valid obligation against the city.
    On the 1st day of May, 1876, the said list or statement was published by the express direction of Benjamin H. Hall, the chamberlain of said city, under and in accordance with section 13, title 5 of the charter of the city of Troy, in two daily newspapers published in the city of Troy, to wit, the Troy Daily Press and the Troy Morning Whig, which said publication continued for six weeks.
    The chamberlain did not direct or authorize the publication of his said list or statement in the Troy Daily Times.
    When such publication commenced, and from that time to the present, the official newspapers of the city, as designated by the common council, consisted of the before-mentioned Press, Whig and Times and a weekly paper known as the Troy Northern Budget. The designation of these newspapers for this year by the common council was made on the 14th of March, 1876.
    On the 4th of May, 1876, the common council formally adopted a resolution, directing all the advertisements and official notices emanating from the chamberlain and other heads of city departments to be published in all the official papers of the city.

      Robertson <S¡ Fost&r, for the plaintiffs.

      R. A. Pwrmenter, for the defendant.
   Boardman, J. :

Municipal corporations possess no powers but those expressly granted, those necessarily or fairly implied, those incident to the powers granted, and those essential to the objects and purposes of the corporation. (1 Dillon on Corp., § 55.) The power to collect taxes is expressly given. The extent to which notices of sale of property for that purpose shall be published is incidental to that power. The object of the corporation is to secure the payment of its taxes. "Whatever means may directly contribute to that result, may be employed as an incident to the power expressly conferred; in that view a publication of the notice of taxes unpaid might be published by the defendant under the incidental powers conferred by the charter.

But by Laws of 1873 (chap. 813, end of § 3, p. 1220) express authority is given to the common council to designate not exceeding four official papers having the largest circulation in the city “ in which the city advertising shall be done only on the order of the common council.” The notices issued and published by the plaintiffs in this case were plainly city advertising, and within the express language of the charter. The action of the common council in ordering the publication in plaintiffs’ paper, which was cine of the four papers designated as official papers, was therefore authorized. I conclude, therefore, that the city was bound to pay for this advertisement the amount claimed, because the city, by its proper authorities, had ordered the plaintiffs to publish the same, and because such order was justified by the express language of the charter. In the absence of such express grant of power, I think the ordering of such publication was an incident to the power of collecting the city taxes, and for that reason might be legally exercised.

The fact that the services were partly rendered, prior to the passage of the resolution of the common council, will not avoid the defendant’s liability. The resolution was a ratification of plaintiffs’ act, and an adoption of their services sufficient to establish the liability of the city. It is possible the designation of the plaintiffs’ paper, as the official paper, on the 14th of March, 1876, was a sufficient order to justify the publication of the notice, as city advertising under the charter.

The chamberlain of the city is required to publish the same notice in two daily papers of the city. This was done, but plaintiffs’ paper was not one of them. I do not think the obligation imposed upon the chamberlain has any thing to do with the question for our decision. It is not necessary for us to decide whether the expense incurred by tbe common council can be added to that incurred by tbe chamberlain and charged against the property taxed to be paid by the tax-payer upon a redemption.

The plaintiffs’ paper was one of the official papers of the city. It was such a paper as the charter required the tax lists to be published in. The tax list was city advertising; the tax lists or notices were published in plaintiffs’ paper. The common council authorized and ratified such publication. The charter, fairly construed, authorizes such action of the common council.

It follows that the plaintiffs are entitled to recover of the defendants the sum of $266.25, besides costs and disbursements, and judgment is ordered accordingly.

Bookes, J., concurred.

Learned, P. J.

(dissenting):

The only question is whether the authority given to the common council - to designate four papers in which the city advertising shall be done, and their resolution directing all advertisements and official notices to be published in all the official papers, make the city liable to pay the plaintiffs for this work. Or whether, on the other hand, the provision as to the chamberlain’s designation of two papers is to be held to restrict the publication to those two.

I think that in speaking of city advertising ” in title 2, section 3, the legislature must have referred to that large amount of necessary advertising for which no special provision was made. But in respect to the publication of the tax lists, a special provision was made. The power of designating the papers was given to the chamberlain. They were to be daily papers, while the official papers need not be daily papers. The purchaser was to pay the amount of the tax, interest and advertising, so that the expense of advertising was to become a lien on the land. There was, therefore, a good reason for limiting the amount of expense which should thus be incurred.

The provision of advertising in two daily newspapers is found in several places throughout title i, which treats of the collection of taxes. And it seems to be part of a system on this subject, that all the notices connected with the collection of taxes should be pub-listed in that number of daily newspapers, to be selected by tbe chamberlain.

It is reasonable, then, to understand tbat tbe authority given in a previous title to tbe common council, to designate not to exceed four newspapers in which tbe city advertising should be done, was not intended to override tbe subsequent provisions relative to tbe collection of taxes. Tbe common council are not obliged to designate more than one paper, and tbat may be a weekly. Evidently such designation would not interfere with tbe chamberlain’s duty as to taxes.

It is to be noticed also, tbat title 2, section 3, does not declare tbat all tbe city advertising shall be done in all tbe papers designated by tbe common council. It only declares tbat in these papers tbe advertising shall be done “ only on tbe order of tbe common council.” It was then such advertising’ as was not otherwise provided for by definite requirements of law, tbat tbe common council were to order, to be done in official papers. It may be said tbat, although tbe common council need have made no order, yet, as they have ordered tbe publication, and it has been done, tbe city must pay. Tbat of course depends entirely upon tbe question whether this pubbcation by tbe chamberlain was a matter within tbe authority of tbe common council or not. If, as it seems to me, they bad nothing to do with it, then it was nugatory for them to order tbe additional publication. Tbe charter gave full notice to every one of tbe extent of their power, and showed tbat this was beyond it.

I think tbat tbe defendants should have judgment.

Present — -Learned, P. J., Pookes and Poardman, JJ.

Judgment ordered for plaintiffs.


text:
    HOPESTILL ARMSTRONG and SOLOMON ARMSTRONG, Appellants, v. DE ETTE WING, Respondent.

      Action against heir at lam of deceased grantor, for breach of covenant — when maintainable.

    In order to maintain an action against the heir at law of a deceased grantor, to recover damages occasioned by the breach of a> covenant contained in a conveyance made by the ancestor, it must be shown that the deceased left no personal property within this State, or that the same was insufficient to pay the debt, or that the debt could not be collected from the personal representatives of the grantor, or from his next of kin or legatees.'
    A defendant cannot be charged both as heir-at-law and next of kin in the same count of a complaint.
    Appeal from a judgment in favor of the defendant, entered upon the trial of this action by the court without a jury.
    Hopestill, Solomon, Farrand S., David M., Morrey W. and Charles H. Armstrong were the owners, as tenants in common, of a certain farm. Hopestill, Solomon and Farrand S. contracted, by parol, to convey their undivided half for $1,000 to Morrey W., David M. and Charles H., the vendees entering into possession. A joint deed was drafted for the three vendors and their wives to execute, which contained the following covenant:
    “And the said Farrand S., Hopestill and Solomon Armstrong do hereby covenant and agree to and with the said parties of the second part, their heirs and assigns, that the premises thus conveyed in the quiet and peaceable possession of the said parties of the second part, their heirs and assigns, will forever warrant and defend against any person whomsoever, lawfully claiming the same or any part thereof.”
    Farrand S. Armstrong executed, acknowledged and delivered the deed, received his share of the purchase-money and died. After his death Hopestill and Solomon and their wives executed, acknowledged and delivered the deed with full knowledge that the wife of Farrand S. had not executed it. Farrand’s wife never executed the deed, and afterwards, by action, recovered her dower in the farm. The vendees recovered a judgment against Hopestill and Solomon, surviving vendors, for the damages sustained by the eviction, which was paid.

      Hopestill Armstrong defended the action (at the request of the defendant, the sole heir at law of Farrand S., who promised to pay him the expense thereof), but Solomon Armstrong made default.
    Farrand S. died intestate and letters were issued on his estate. He left a widow (since deceased), and this defendant, the sole heir at law, to whom descended real estate of about the value of $3,000. The plaintiffs Hopestill and Solomon Armstrong bring this action to recover of the defendant, as heir at law, the damages they have sustained by reason of the breach of the joint covenant; also the expenses incurred in defense of the action.
    The complaint also alleges incidentally, but not as a separate cause of action, that the defendant received considerable personal estate, as next of kin, of Farrand S. Armstrong.
    The following opinion was delivered at Special Term :
    Follett, J. The debts of deceased persons upon covenant stand upon the same footing as simple contract debts. (Subdivision 3, 2 R. S., 453, § 37; 2 Edmonds’ R. S., 473.)
    The heirs of every person who shall have .made any covenant or agreement ai’e answerable, upon such covenant or agreement, to the extent of the lands descended to them, in the cases and in the manner prescribed by law. (1 Revised Statutes, 739, § 141; 1 Edmonds’ R. S., 689.)
    The heirs of every person who shall have died intestate shall respectively be liable for the debts of such person arising by simple contract or by specialty, to the extent of the estate, interest and right in the real estate which shall have descended to them from such person. (2 Revised Statutes, 452, § 32; 2 Edmonds R. S., 472.)
    Heirs are not liable for any such debt unless it shall appear:
    I. That the deceased left no personal assets within this State to be administered; or,
    II. That the personal assets of the deceased were not sufficient to pay and discharge the same; or,
    III. That after the proceedings before the proper Surrogate’s Court, and at law, the creditor has been unable to collect such debt, or some part thereof, from the personal representatives of the deceased, or from his next of kin or legatee (2 R. S., 452, § 33, as amended by chapter 110, Laws of 1859; 2 Edmonds’ R. S., 472), It is incumbent on the creditor seeking to charge an heir to- show the facts and circumstances required by the foregoing statutes to render the heir liable. (2 Revised Statutes, 453, § 36; 2 Edmonds’ R. S., 472.)
    The plaintiff has utterly failed to establish either of the before-mentioned statutory conditions precedent to a recovery, and on the contrary alleges (though incidentally), in his complaint, that the ancestor left considerable personal estate which was received by the defendant as next of kin. The evidence establishes the fact that letters of administration were issued upon the estate of Earrand S. Armstrong by the surrogate of Madison county, and that one of the representatives is.still living. No evidence was offered upon the trial tending to show whether Farrand S. Armstrong left much or no personal estate, and no evidence as to the then condition of the estate or what had been done by the representatives in connection therewith was offered upon the trial, except a certificate of the surrogate’s clerk that no proceedings had been had before that court, in the matter of that estate, since the granting of letters. This certificate, even if it be legal evidence of the fact recited therein, is not sufficient to bring this case within the statute. For aught that appears there are sufficient assets in the hands of the representatives to discharge the liabilities of the intestate.
    This action cannot be maintained upon the ground that the defendant is liable, as next of kin, for the complaint contains no count charging a liability as next of kin. Before the Code it was held (Gere v. Clark, 6 Hill, 350) that a defendant could not be charged both as heir and next of kin in the same count, and the rule is the same under the Code, because the facts constituting these distinct causes of action are dissimilar. (2 Revised Statutes, 90, § 42, and 451, § 23; 2 Edmonds, 92 and 470.)
    The action cannot be maintained upon the promise of the defendant to pay the expenses of the defense of the action against the plaintiffs in this action, because,
    I. This action is not brought at law upon the promise, but in equity upon the statute to charge the defendant as heir thereunder.
    II. The promise was not made to both of these plaintiffs but to Hopestill Armstrong, who alone defended the former action. No assignment of the promise is alleged and, indeed, Solomon has not paid any portion of the expenses of the former action, having only paid one-half of the amount for which both were liable before suit brought and the unsuccessful defense interposed.
    It is unnecessary to consider whether the covenant in the deed is a distributive covenant, or, to consider the rights arising thereunder of the parties thereto.
    Judgment for the defendant, with costs.

      S. S. Morgcm, for the appellants.

      Bwrdett <& BrooJcs, for the respondent.

      This is in harmony with Selover v. Coe (63 N. Y., 438), decided after the decision of this case at the Special Term.

   Boardman, J.:

The plaintiffs and the father of the defendant united, in 1859, in a deed of lands, with a joint covenant of warranty. The mother of defendant did not join in such deed. Upon the death of defendant’s father, her mother brought an action and recovered her dower in the premises conveyed. An action was thereafter brought by the grantees in said deed against the plaintiffs in this action and they recovered of them, as survivors, the damages arising from such breach of the covenant of warranty. The defendant had notice of each of said actions and was requested to protect the interests of the defendant therein. The plaintiffs herein, after payment of the recovery against them, and after the death of defendant’s mother, bring this action to recover of the defendant the amount paid and expended by them, in defending such action for breach of covenant for damages and costs. The theory of the complaint is, that the neglect of defendant’s mother to sign'the deed-created an obligation or liability on the part of defendant’s father to make good any defect of title caused thereby, and to indemnify his co-covenanters against the consequences thereof; that the defendant, as heir at law of her father, had received from him an amount of assets, real and personal, more than sufficient to satisfy plaintiff’s claim, and thereby became respon- , sible to the plaintiffs for the amount of their claim. These facts have been found in the decision of the case, but it was held that upon the facts found the defendant was not liable. The review of the judgment is solely upon the facts as found at the Special Term.

In the view taken of the case at Special Term, in which I concur, it is unnecessary to consider whether the claim of the plaintiffs is a debt of defendant’s' father, for which she can be made liable under the provisions of the Revised Statutes. It will be enough to determine that she is not liable if we concede such to be the nature of the obligation.

The opinion of the learned judge at Special Term very clearly demonstrates, that the plaintiffs ought not to recover upon the facts found. I can add very little to the citation of authorities sustaining his conclusion. The Revised Statutes declare that the heir shall not be liable, unless the deceased left no personal property or such personal property was insufficient to pay the debt, or that, after proper proceedings in the Surrogate’s Court, the debt could not be collected. (2 R. S. [Edm. ed.], 472; Bingham on Descents, 286, 290, 291; Mersereau v. Ryerss, 3 N. Y., 261; Stuart v. Kissam, 11 Barb., 271; Roe v. Swezey, 10 id., 247; Butts v. Genung, 5 Paige, 254; Wambaugh v. Gates, 11 id., 505.) These authorities seem quite conclusive against plaintiffs in a claim against an heir for a debt of an ancestor. Such is the nature of this action. The complaint concedes the existence of personal property. Administration was granted. How much there was or what became of it does not appear. The lapse of time since administration granted cannot create any presumption. The conditions upon which an heir can be held liable are fixed by statute. Except by virtue of such statute the heir is not liable. It must therefore be strictly construed. (See the cases cited.) Nor does it make any difference that the heir in this case is the next of kin also, and was entitled to both the real and personal estate of her ancestor. (Stuart v. Kissam, ante) The personal estate must be exhausted by proceedings against the administrator before the heir can be attacked. (11 Paige, 515; Gere v. Clark, 6 Hill, 350.)

The other reasons assigned by plaintiffs for a recovery are properly considered and disposed of by the opinion of the learned judge at the Special Term.

The defendant is not called upon in this action to contribute her just proportion of the recovery had against the plaintiffs who were co-obligors with her father. Several objections, not here considered, might in such an action arise. Did her father, in fact, ever deliver the deed? Was it left with the justice to be delivered after it should have been duly signed and acknowledged by the parties named as grantors therein ? In that case could the plaintiffs, by a subsequent execution and delivery of the deed without the signature of the defendant’s mother, bind the father of the defendant, or herself through him? And finally, can plaintiffs, upon a recovery against them as the survivors upon a joint covenant, bring an action in equity against the heir at law of the deceased co-obligor for contribution? Some of these questions may prove to be of importance in possible future contingencies, but are not necessary to be determined in the case now presented for our decision.

I think the judgment of the Special Term was correct and should be affirmed, with costs.

Present' — Learned, P. J., Bookes and Boardman, JJ.

Judgment affirmed, with costs.


author: JBookbs, J.:

text:
    ALMERIN GALLUP, Appellant, v. GEORGE H. PERUE, Respondent.

      Action for professional services — unliquidated demand — allowance of intw'est upon.

    In an action by an attorney against bis client, to recover for professional services rendered by bim, no bill having been presented and tbe demand being unliquidated, interest cannot be allowed upon tbe amount of tbe recovery from tbe time of tbe rendition of tbe services.
    Tbe statute fee-bill, altbougb evidence bearing upon tbe question as to tbe value and amount of tbe services rendered, does not determine tbe question as between attorney and client.

      Van Bmsselaer v. Jewett (2 ÍT. Y., 135) and Adams v. Fort Plain Bank (36 N. Y., 261) distinguished.
    Appeal from a judgment of the County Court of Schoharie county, reversing a judgment of a justice of the peace of that county in favor of the plaintiff.

      J. H. Ghtte, for the appellant.

      J5T. P. Hmmcm, for the respondent.
   JBookbs, J.:

The action was brought to recover for professional services as attorney and counsel, with a small claim in addition for disbursements. The services were rendered in the defense of an action brought against the defendant, which terminated by trial in October, 1863. This action was commenced in September, 1869. No bill was presented to the defendant, and the claim remained unliquidated until the trial of this action, when a recovery was had, as on a quantwm mervAt, for work, labor and services, and interest was allowed on the assessed value of the services from October, 1863. The question here raised is as to this allowance of interest. The services were all performed under one retainer, but the demand for the services remained unliquidated, to be determined on proof of value, as no rate of compensation had been agreed upon between the parties. The statute fee-bill, although evidence bearing on the question, does not determine the value and amount as between attorney and client. (Stow v. Hamlin, 11 How., 452; Moore v. Westervelt, 3 Sandf., 762 ; Garr v. Mairet, 1 Hilton, 498; Hadley v. Ayres, 12 Abbott [N. S.], 240 ; Easton v. Smith, 1 E. D. Smith, 318.) The suit was therefore on qua/ntvm mervAt, for work, labor and services. It was decided a half century since in Reed v. Rens. Glass Factory (3 Cow., 393) that interest was not allowable on an unliquidated claim for work, labor and services. This rule has been uniformly adhered to in all the courts of this state. (Van, Beuren v. Van Gaasbeck, 4 Cow., 496; Holmes v. Rankin,, 17 Barb., 454, and cases cited by Wells, J., on page 456; McMahon v. Erie R. R. Co., 20 N. Y., 463; Hadley v. Ayres, 12 Abbott [N. S.], 240; Godfrey v. Moser, 10 S. C. N. Y. [3 Hun], 218.) In each of the last two cases cited, the claim, like this now under consideration, was for professional services by attorney and counsel, and inasmuch as the recovery rested on a qua/nfam mervAt, it was held that interest was not allowable. The decisions in SmAth v. Yelie (60 N. Y., 106), and in McCollum v. Seward (62 N. Y., 316), accord with those above cited. The remarks of Grover, J., in Smith v. Velie, on page 111, are in point here. The cases relied on by the plaintiff’s counsel are Van Rensselaer v. Jewett (2 N. Y., 135) and Adams v. Fort Plain Bank (36 N. Y., 261). But the decision in those cases depended upon the peculiar facts disclosed in them. In the former there was an express agreement to deliver certain specified property as rent, at a fixed time and place. Interest was allowed on the established value of the property by way of damages for a breach of the express agreement. This peculiarity in that case is noted by Wells, J., in Holmes v. Rankin, (17 Barb., on page 457), and by Selden, J., in McMahon v. Erie R. R. Co. (20 N. Y., on page 469). Judge Selden there points out the distinguishing feature of that case on the facts, and adds by way of caution, that the case went as far as was reasonable and proper to go in the allowance of interest on a demand, the amount of which was left to proof of value at the trial. The case of Dana v. Fiedler (12 N. Y., 40) is of the same character as that last cited. In Adams v. Fort Plain Bank effect was given to the finding of the referee that certain specified sums were due and owing at the time stated. So it was held that interest was allowable from such times. The finding of the referee as to this fact was a marked feature in this case, and controlled its decision on the question of interest. The Court of Appeals could not go behind the finding of fact, but was bound to accept it as a determination that the sums stated had become liquidated at the times fixed by the referee. • Grover, J., in Mygatt v. Wilcox (45 N. Y., 306), as I understand his opinion, vindicates the decision in Adams v. Fort Plain Bank, on the ground that the claim had become liquidated. . (See also opinion in Hadley v. Ayres, supra.) It was not intended, as I think, to overrule or question the numerous eases above cited, or any of them, by the decision in Adams v. Fort Plain, Bank. This is made apparent, I think, by the more recent eases above cited. (Smith v. Velie, 60 N. Y., 106; Hill v. Burke, 62 id., 106.) Thus it seems that neither Van Rensselaer v. Jewitt, nor Adams v. Fort Plain Bank, justify the allowance of interest in this case. The justice was, therefore, in error in allowing interest on the plaintiff’s unliquidated claim for work, labor and services, and the judgment was for that reason properly reversed by the County Court.

Judgment of County Com-t affirmed, with costs.

Learned, P. J., and Boardman, J., concurred.

Judgment affirmed, with costs.


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

text:
    JOHN SHEAR, Respondent, v. DAVID VAN DYKE, Appellant.

      Evidence —• statement by witness, of what was said to him by another witness before the trial — admissibility of. '

    Upon tbe trial of an action, in which, the question in issue was the number of loads of hay delivered at a particular time, a witness stated that he could not then remember the number, but that he knew it at the time and then told it to the plaintiff. Subsequently plaintiff was called as a witness and was allowed, against defendant’s objection and exception, to state that the number was fourteen Held, that the evidence was admissible. (Learned, P. J., dissenting.)
    Appeal from a judgment of the County Court of Albany county, in favor of the plaintiff, entered upon the verdict of a jury.
    The action was originally brought in a Justice’s Court, to recover damages for the breach of a contract in reference to gathering hay.
    The plaintiff claimed he had made an agreement with defendant to help to gather all his hay, of which plaintiff was to have one-fourth for his services, and that defendant refused to allow him to help gather a portion.
    Defendant claimed plaintiff was only to cut certain lots, which he did cut, except a part of one lot which defendant claims plaintiff refused to cut.

      J. H. Ohite, for the appellant.

      Simgerford <£¡ Hotalmg, for the respondent.
   Bockes, J.:

This action orignated in a Justices’ Court, and was retried on appeal in the County Court. An appeal was then taken to this court from the judgment rendered in the County Court.

It does not appear, from the record before us, that a motion was made in the latter court for a new trial. It was held in Murray v. Vanderveer (13 S. C. N. Y. [6 Hun], 302) that without such motion in the County Court, exceptions entered on the trial could not be considered in this court on appeal. And in Tallman v. The American Express Company (13 S. C. N. Y. [6 Hun], 377) it was decided that no appeal would lie to the General Term in such case; that is, until the case and exceptions had been before the County Court on a motion for a new trial. In the former case the judgment was affirmed. In the latter the appeal was dismissed. If it be true, then, as the record before us indicates, that no motion was made for a new trial in the County Court, the judgment should be affirmed, without an examination of the case and exceptions made and settled.

But it is stated by counsel that such motion was, in fact, made and denied, and we will therefore examine the case under that suggestion.

It is not denied that a case was made for the jury on the evidence submitted by the parties. On this branch of the case no question is made. The verdict must consequently conclude the .parties, if the case is to stand on the proof.

It is insisted, however, that errors were committed in the admission of evidence on the trial. First, it is urged that the court erred in allowing the witness to state what the defendant said as to the value of the hay, the subject in controversy between the parties. The witness stated that the defendant told him that he (defendant) considered every load of hay worth twenty-five dollars a ton. I think this was admissible. It was the statement or admission of the defendant called for by the plaintiff, and it bore on the subject under examination. It was, therefore, admissible evidence.

It is next urged that the court erred in allowing the question, whether the defendant gave any reason why he would not allow the plaintiff to go on and finish the contract, for an alleged breach of which the action was brought. The plaintiff had the right, if he chose to exercise it, to call for the defendant’s statement or admission in this regard. The objection to this question was properly overruled. But the exception to the question has no importance, as no answer was given to it by the witness.

One other ground of error is here urged. A witness, who aided in taking in the hay, was asked how many loads were taken in on an occasion specified. He answered that he could not now remember, but that he knew at the time, and then told the plaintiff. The plaintiff was then called, and was allowed, against objection, to state that the ¿number of loads given him by the witness was fourteen. I am inclined to the opinion, contrary to my first impression, that this evidence was admissible. The witness noted the number of loads taken in at the time, and, as he stated, gave the number truly to the plaintiff. Now, the latter might state the number so sworn to have been given him. The evidence sought from him was original evidence. The question was as to the declarations made to him; not as to its truth or falsity. In this view it was not hearsay evidence. Had the witness given the plaintiff a memorandum of the loads at the time, and had he sworn that the memorandum so furnished was correct, the plaintiff then might have produced and verified the memorandum by his own oath. It has been repeatedly held that when a witness testifies that he made a memorandum correctly at the time the event occurred, but was unable to recollect the fact contained in it when examined in regard to the transaction, the memorandum may then be received in evidence of the fact therein stated. So in Payne v. Hodge (14 S. C. N. Y. [7 Hun], 612), the plaintiff testified that he made entries in accordance with statements made to him by other witnesses, and the latter testified that such statements were true; the evidence was held to be admissible. Now, in the ease in hand, the fact sought to be proved comes verified by the oath of witnesses in a way that renders it definite and certain. Nor does it rest at all on any statement unsupported by a sworn witness. I am of the opinion that the evidence was properly admitted.

We think the allegations of error are not sustained, and hence the judgment should be affirmed with costs.

Boardman, J. concurred.

Learned, P. J.:

The fact to be proved was the number of loads of hay. I do not think it was competent for one witness to testify that another witness told him what the number was, as affirmative proof of that fact. To state the familiar rules, “ oral evidence must, in all cases whatever, be direct; that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it.”

A witness may refresh his memory by reference to certain kinds of documents, and he may testify to facts mentioned in such documents, although he has no specific recollection of the facts therm selves, if he is sure that the facts were correctly recorded in the document.”

I do not think that the statement of Cross to the plaintiff (to which the latter testified) was in any sense a memorandum or document. The propriety of admitting such evidence, when the witness has no specific recollection of the facts, depends greatly on the circumstances that the evidence thus given was committed to writing. To extend the rule, and when the witness has forgotten a supposed fact to allow proof of what he once said in regal'd to it, appears to me dangerous and contrary to settled principles. But the evidence, probably, did no real harm, and therefore, under section 1003 of the Code of Remedial Justice, I concrn' in affirmance.

Judgment affirmed, with costs.


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

text:
    THOMAS S. PARKER, Respondent, v. THE CITY OF COHOES, Appellant.

      Liability of municipal corporation, for excavations m streets — what precautions arre required.

    The water commissioners of Oohoes, acting under authority of the law, made an excavation in one of the streets for the purpose of laying therein water pipes for general use, and placed sand and dirt in the vicinity thereof to be placed therein; at the end of the day barriers in the usual form, consisting of planks, extending from sidewalk to sidewalk, supported by barrels placed in the street, were erected to prevent vehicles from entering the street.
    Subsequently, some person, without the authority or knowledge of the commissioners, removed one of the barriers, and a short time thereafter plaintiff, drove through the opening thus made, ran upon the obstructions, was thrown from his wagon and injured.
    In an action by him to recover the damages sustained thereby, held, that the action could not be maintained, as the plaintiff had failed to show any negligence on the part of the commissioners. (Learned, P. J., dissenting.)
    Appeal from a judgment in favor of tbe plaintiff, entered upon the report of a referee.

      Samuel Hand, for the appellant.
    There was not the slightest proof of actionable negligence on the part of the defendant, either causing or contributing to the injury. (Gorham v. Gooperstown, 59 N. T., 660; MoGinty v. Mayor of New York, 5 Duer, 674; Shear. & Red. on Neg., § 147.) The defendant, having caused proper and fit barricades to be put up sufficient to prevent attempts to pass, was not responsible for their removal or its consequences. (Doherty v. Waltham, 4 Gray, 596; Stale v. Bangor, 30 Maine, 34.) In order to mate them liable for the consequences of such removal, some negligence of theirs, either of commission or omission, must have contributed thereto. They are not liable upon a guarantee that the barriers are to remain at all events, any more than they are that there shall be no obstructions in the street. (Gorham v. Village of Gooperstown, 59 N. Y., supra; Doherty v. Waltham, 4 Gray, supra; Ha/rt v. City of Brooklyn, 36 Barb., 226; McGinity v. Mayor of New York., 5 Duer, 674; Griffin v. Mayor of New York, 5 Seld., 456.)

      Cra/uford &Fa/n/mng, for the respondent.
    Where an excavation for a drain is made in a public street, proper precaution to the public requires not only a sufficient barricade, but that lights shall have also been placed thereon. (Blake v. Ferris, 5 N. Y., 48; The City of Buffalo v. Halloway, 7 id., 493; Fdsler v. The Gity of Ottnmma, 34 Iowa R., 41; Grant v. Gity of Brooklyn, 41 Barb., 381; Bcmter v. Warner, 13 Sup. Ot. R., 585.)
   Bockes, J.:

There is no exception in this case, by the appellant, to the referee’s conclusion of law; hence there is no question before the court arising upon his report. (Russell v. Duflon, 4 Lans., 399, 406, 407; Weed v. N. Y. and H. R. R. Co., 29 N. Y., 616; Enos v. Eigenbrodt, 32 id., 444.) Nevertheless, the exceptions taken during the trial and presented by the case, made and settled, are open to examination on the appeal. (The Mayor v. Erben, 24 How., 358, 359; Cowen v. The Village of West Troy, 43 Barb., 48 ; Dainese v. Allen, 45 How., 430.) A motion was made for a nonsuit when the plaintiff rested, and was repeated at the close of the case. The motion was denied, and the defendant excepted to the ruling. There were also exceptions entered, by tbe defendant, on tbe rulings of tbe referee as to the admissibility of evidence. Tbe appeal brings up these exceptions for examination.

Tbe action was brought to recover damages growing out of tbe alleged negligence of tbe defendant. Tbe proof showed that tbe water commissioners, acting under authority of law, made an excavation in one of tbe streets of tbe city, for tbe purpose of laying water pipes for public and general use; and in so doing, caused dirt and earth to be thrown out along tbe trench ; and also brought into tbe street a heap of sand to be used in tbe work. At tbe close of tbe day, barriers were placed at tbe contiguous street-crossings, intended to give notice of tbe dangerous condition of tbe streets between those points, and to prevent persons traveling in vehicles from entering it. These barriers were of plank, and extended from sidewalk to sidewalk across tbe street, supported by barrels in or near tbe center in tbe usual manner of constructing temporary street barricades. Soon after tbe barriers were so placed, one of them was removed by some person without tbe defendant’s agency or knowledge ; and within a short time thereafter, and in early evening, tbe plaintiff passed with bis horse and carriage through the opening made by tbe removal of tbe barrier, ran upon tbe obstructions in tbe street, was thrown from bis carriage and sustained tbe injury for which tbe suit is brought. Tbe evidence also showed, and tbe referee so found, in effect, that if tbe barrier bad remained as placed, it would have given notice to tbe plaintiff of tbe danger to be apprehended in attempting to drive through tbe obstructed street; it would in fact have prevented bis entering it. On this state of facts, tbe defendant moved for a nonsuit, insisting, as it is now insisted, that tbe evidence was insufficient to sustain tbe action. Tbe making of tbe excavation by tbe water commissioners, for tbe purpose of laying water pipes for tbe public use, was pursuant to lawful authority. This position is not controverted. Tbe excavation was not by a private person for bis individual use. Thus tbe right of action must rest upon proof of some wrongful or negligent act of tbe defendant, or upon some omission of duty on which negligence may be predicated ; for a municipal corporation is not a guarantor for tbe absolute safety of all'persons traveling on tbe highway within tbe municipabty. (Gorham v. The Village of Cooperstown, 59 N. Y., 660.) What then was the wrongful or negligent act or omission of duty, here relied, on as a basis of recovery ? The answer is that the defendant left piles of earth and sand in the public street, without sufficiently guarding travelers against danger therefrom, or giving them reasonable and proper notice of the unsafe condition of the highway. Let us see how this answer is supported by the facts. It seems that the street was barricaded in a way sufficient to notify travelers of danger. So long as the barricade remained as constructed, travelers in vehicles were excluded or turned from the street. It was erected in the usual manner, and of ordinary material, and if left as erected, was a sufficient warning of danger to all persons who should attempt to pass that way. Indeed, if left as constructed, it would have excluded them from the street. It was not necessary that the barricade should have been made other than temporary, nor • of such heavy material as to prevent its removal by human agency. The defendant was not bound to anticipate mischievous or wrongful acts on the part of others, hence was not required to guard against them, and omitting to do so was not negligence. The evidence shows that the barrier was of substantial material, and that it was erected in the usual way, having in view the temporary barricading of the street, while obstructed for a public and lawful purpose. It is urged that lights should have been placed along the line of obstructions. But this was quite unnecessary if the street was properly barricaded. Now, unless the defendant is to be held responsible for the removal of the barrier, certainly no liability was established. As regards this point, it appears that the defendant neither authorized its removal nor had notice of it prior to the accident. The defendant was not therefore in fault by reason of its absence. This point is decided in Doherty v. The Inhahitants of Waltham (4 Gray, 596). It was there held that if barriers were so placed at sunset as to protect travelers against an obstruction in the street, and to make it safe to persons using ordinary care and prudence,-the municipal corporation was not responsible for an injury suffered during the same night by a passenger, by reason of the removal of such barriers, in the absence of reasonable notice of such removal. To the same effect is the decision in McGinity v. The Mayor of New York (5 Duer, 674). In this case, the injury resulted from a defective grating over a vault under the sidewalk. It is stated that it was found, upon examination, that a chain, which had secured the grate, was broken, but from what cause did not appear. Duer, J., remarked that it did not appear that the defendants had any notice, or were chargeable with knowledge of its defective state, and added: “The chain might have been broken by an act of violence, which, for aught that appears, may have been committed only a short time before the plaintiff was injured.” These decisions are sound in principle, and, as it seems, are decisive of the case in hand. It is strenuously urged that there should have been lights along the line of obstruction. But, as above suggested, this was quite unnecessary in case the barricade was sufficient of itself to warn travelers of danger. That this was sufficient for that purpose, if left as erected, the proof shows, and so the referee certifies. Cases are cited in which it is said, in general terms, that dangerous points in the highway should be barricaded and lighted / but such language was so employed to declare the rule that dangerous places in the public highway should be well and sufficiently guarded. If well and sufficiently guarded by barricade, lights were unnecessary; and then to omit them would not be negligence. As was said, in State v. Bangor (30 Me., 341-344), the defendant would be justified by showing the dangerous point properly fenced or lighted for protection against accident. Protection is all that is required, and if that be sufficient, it matters not what means are employed to that end.. It is manifest, I think, that the plaintiff failed to establish a cause of action, and the motion for non-suit should have been granted.

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

Boardman, J., concurred.

Learned, P. J.

(dissenting):

The referee finds that the defendants made the excavations and caused the obstructions, alleged to have occasioned the injury.

Their liability then did not arise simply from their duty as a municipal corporation to take care of the streets. It arose from their own act. Just as a private person might be liable for making an excavation and not guarding it properly.

This distinction is pointed out in Griffin v. Mayor (9 N. Y., 456, at 461), where it is said that a municipal corporation, in the nse and occupation of its property, is held to the skill and care which would be required of an individual. (See, also, Mayor v. Furze, 3 Hill, 612.)

Now, on the contrary, in the case of Doherty v. Waltham (4 Gray, 596), relied on by the defendants, there is nothing to show that the well had been opened by the defendants. The same is true of the cases of State v. Bangor (30 Maine, 341), and of McGinity v. Mayor (5 Duer, 674). In none of these does it appear that the obstruction or defect, which caused the injury, was created by the defendants.

The question then is, what is the duty of a person who makes an excavatiSn, or places an obstruction, in a public highway, such as he may lawfully make or place, for temporary purposes of building and the like ? “ The performance of the work necessarily renders the street unsafe for night travel. * * * The danger arises from the nature of the improvement, and if it can be averted only by special precautions, such as placing guards or lighting the street, the corporation which has authorized the work is plainly bound to take these precautions.” (Storrs v. Utica, 17 N. Y., 104; Davenport v. Ruckman, 37 id., 568 ; Grant v. Brooklyn, 41 Barb., 381; Creed v. Hartmann, 29 N. Y., 591.)

But the defendants insist that having put up a barricade, they were not bound to see that it was maintained. Persons, however, travel at late, as well as at early hours. And the obligation of the defendants to warn travelers of the obstruction, which they have created themselves, continues at all times. In the case of Johnson v. Friel (50 N. Y., 679), the defendant, a contractor, had dug a ditch for the purpose of making a sewer. He filled the trench and repaved it. Afterwards the rain washed out a hole where the earth had been filled, and the plaintiff’s horses were injured there. It was held that it was not enough that the defendant left the work in a proper and safe condition at the time. It was his duty to provide for, and anticipate, the natural effect of the rain; to see that during and after the rain it was in proper and safe condition, or that safeguards were placed or watchmen kept, or such measure of prudent forethought adopted to prevent damages to the trmeli/ng public.

If, then, a person making an excavation is bound to anticipate that, two weeks afterwards, rain may settle the new earth, and to guard against that by safeguards or watchmen, is he not bound to see that a barricade put up in the, evening is so securely fastened that no ordinary force will remove it before morning ?

It seems to me that the obligation to protect the traveling public against the damages arising from such an obstruction or excavation is one which exists at all times, because the public are at all times entitled to use the road. Hence the person who has made the obstruction must maintain safeguards. Either he is bound to maintain them at his peril, or, at least, if he may leave them unprotected and exposed to the possibilities of removal during the night, he must erect them of such strength that no prudent and reasonable man would anticipate any danger that they would be taken away.

The case is not unlike that of an owner of premises who allows dangerous places to exist on them and who fails to notify persons coming thereon by invitation, express or implied. (Coombs v. New Bed. Cord. Comp., 102 Mass., 592; Indermaur v. Dames, L. Rep., 2 C. P., 311.)

The question is, was the plaintiff actually warned by the defendants of the danger which they had caused ? If not, then had they taken such measures for the purpose of giving the public warning, that their failure to notify the plaintiff of his danger could not have been reasonably anticipated ?

The referee, as I understand, has substantially found against the defendants in this particular and I think his finding is not erroneous.

Judgment reversed and new trial granted; referee discharged; costs to abide event.


author: Bookes, J.:

text:
    ANNA ELIZA GOODYEAR and SAMUEL S. BURNSIDE, Executors, etc., Respondents, v. JOHN C. DE LA VERGNE and NATHANIEL D. HALE, Appellants.

      Admission contained in amswer — acceptance of, by plaintiff

    Where, upon the trial of an action, a plaintiff desires to avail himself of an admission or averment contained in an answer, he must accept the admission or averment as an entirety; he cannot accept a portion of such admission or averment and reject the remainder.

      Appeal from a judgment in favor of the plaintiffs, entered upon a verdict directed by the court.

      F. Countryman, for the appellant.
    A party relying on the admission of "his adversary in a pleading must take the whole admission or statement as it stands, or nothing. He cannot avail himself of such part only as makes in his favor, and reject the residue. {Stuart v. Kissam, 2 Barb., 494; Miller v. Avery, 2 Barb.' Ch., 583; Oraág v. Tarpjgin, 2 Sandf. Ch., 78; Lewis v. Ryder, 13 Abb., 1, 3; Albro v. Figuera, 60 N. Y., 630; Rouse v. Whited, 25 N. Y., 170, 175; Dorlon v. Douglas, 6 Barb., 451; Nesbitt v. Stringer, 2 Duer, 26.)

      S. S. Burnside, for the respondents.
   Bookes, J.:

The learned judge on the trial held that the proof, supplemented by the admissions in the defendants’ answer, established the plaintiffs’ right of action, and directed a verdict for the latter for the amount claimed in the complaint.

It may be well first to see precisely how the parties stood on the pleadings. The complaint contained two counts: In the first, it was alleged that the plaintiffs caused their butter to be forwarded to the defendants at New York, to be sold on commission; that the defendants received and sold it, realizing therefor $261, but refused to pay the plaintiffs therefor. The second count charged a simple sale and delivery of the butter by the plaintiffs to the defendants, and a refusal to pay.

The defendants, by their answer, admitted, (1) that they were partners; (2) that they received a quantity of butter from T. Sabin & Son, to be sold on commission, which butter they believed to be the same mentioned in the complaint; (3) that they sold the butter for T. Sabin & Son and paid them the net proceeds of the sale ; (4) and that the money had been demanded of them, and that they had not paid it over save to said T. Sabin & Son; and they denied every allegation in the complaint, said admissions excepted. The answer, when analyzed, amounts to this: A full denial of the complaint, with an admission —or, more properly, an averment — that they (the defendants) received the butter in suit from T. Sabin & Son for sale on commission; sold it for them and paid them the net avails. The plaintiffs were, therefore, put to full proof of their case, save as they should accept the admissions or averments in the answer in their aid. But if they accepted a part of such admissions or averments as proof they must accept them in their entirety. (Albro v. Figuera, 60 N. Y., 630; Rouse v. Whited, 25 id., 170.) The proof was to the effect that the butter was the property of the plaintiffs, and was delivered at the railroad station directed to the defendants in New York, and that it was worth the amount claimed. The proof, standing alone, was insufficient to authorize a recovery. The proof failed to show that the butter was received or sold by the defendants. Now, if we bring in the admission or averments in the answer, that the defendants received and sold it, we must also accept the whole statement connected therewith, which would bring in also the alleged fact that the butter was received from T. Sabin & Son to be sold on commission; that it was sold for them and that they had been paid the avails. Connect these admissions or averments with the oral proof, and consider the case thus made, and it is apparent that the case was one for the jury on the facts. The evidence is that one of the plaintiffs had talked with one of the Sabins in regard to the latter’s receiving the butter ; then directed it to be carried to them, with the statement that they would know what to do with it. It was taken to them; they marked it to the defendants, and directed that it be taken and delivered at the railroad station, to be forwarded to the defendants, and it also appeared that they (Sabins) were commission merchants at Oneonta, the place where the butter was sent them by the plaintiffs. Now, supplement the admissions in then- answer (of part of which the plaintiffs claim the benefit), to wit, that the defendants received the butter from T. Sabin & Son, sold it for them, and paid them the avails, and two serious questions of fact would arise : .(1) "Whether, on the proof and admissions considered together, there was not a sale of the butter by the plaintiffs to Sabin & Son; and (2) whether the plaintiffs did not make T. Sabin & Son their agents to forward the butter for sale to the defendants, in which case payment to them on sale would have been good payment on their part. Either of these questions found in favor of the defendants would bave defeated tbe action. Very manifestly, as I tbink, these questions were for tbe jury, as tbe case stood wben tbe verdict was ordered for tbe plaintiff by tbe court. Accept nothing, as admitted by tbe answer, and tbe oral proof was insufficient to show that tbe defendants received or sold tbe butter. Accept tbe admissions or statements in tbe answer in their entirety, and consider them in connection with tbe oral proof, and tbe two questions of fact above suggested instantly arise.

Tbe learned judge was in error, as I tbink, in directing a-verdiet for tbe plaintiffs as tbe case stood before him.

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

Learned, P. J., and Boardman, J., concurred.

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