text:
    JACOB VAN GELDER and DAVID H. VAN GELDER, Appellants, v. JAMES H. VAN GELDER, Respondent.

      Sale of real estate by a sheriff under an execution — no formal levy need be made — when errors in signing the notices are immaterial — taxation of fees of sheriff— when it need not be made before the sale — a sale made in violation of an injunction granted in another action is not irregular — postponements ca/used by an injunction resti-aining a sale — when the cost of them must be borne by the party procuring the injunction.

    No formal levy on real estate is required, and no notice of its having been made need be indorsed upon tbe execution.
    Tbe fact that some of tbe notices of tbe sale of real estate under an execution were signed by tbe title of “ sheriff ” instead of “late sheriff ” is a mere irregularity and does not affect tbe validity of tbe sale.

      When the defendant in an execution makes no demand of the sheriff to have his fees taxed until the day and time when the sale of the real estate under an execution is to take place, the sheriff is not required to postpone the sale in order to have his fees so taxed.
    The sheriff being about to sell the real estate of the defendant, under an execution issued.upon a judgment recovered against him herein, the defendant commenced an action to restrain the enforcement of the judgment and the sale of the land and procured therein an injunction restraining the sheriff from selling the real estate “until the trial and judgment” in the action or the further order of the court.
    The action was tried before a referee who filed his decision dismissing the complaint on January 7,1881, and on January 81,1881, final judgment was entered thereon. The premises were sold by the sheriff on January 15, 1881.

      Seld, that as no stay of proceedings was granted in this action the sale was not irregular, and that if the defendant was injured by the violation of the injunction he should apply to the court to punish the sheriff for contempt.
    In February, 1877, an execution was issued upon a judgment recovered against the defendant on November 15, 1869, and placed in the hands of the sheriff. The defendant procured a stay of all proceedings till January,T879, when the sheriff advertised certain real estate belonging to the defendant for sale on March, seventh. The defendant thereafter commenced an action to restrain the collection of the judgment, and on the seventh of March procured therein an injunction restraining the plaintiffs and the sheriff from all further proceedings for the collection of the judgment or the sale of the real estate, “except to adjourn the sale from time to time, as they may be advised, until the determination of the action or the further order of the court.” In September, 1879, the plaintiffs herein moved to vacate the injunction and the defendant to modify it so as to stop the advertisements of the sale. Both motions were denied and the injunction was continued “until the trial and judgment” therein. The sheriff adjourned the sale from time to time (twenty-two adjournments being had) until January 15, 1881, when (the injunction suit having been decided against the plaintiff therein) he sold the premises. These adjournments were made by the sheriff, acting under the advice of his counsel and not at the request of the plaintiffs who refused to give him any instructions in the matter.

      Seld, that the defendant having procured the injunction and so prevented an earlier sale, and the adjournments being necessary to preserve the lien of the judgment after November 15, 1879, as against purchasers and mortgagees in good faith, the postponements must be regarded as made at his request within the meaning of subdivision 9 of section 3307 of the Code of Civil Procedure, and the expense of continuing the publication and of publishing the notices of postponement must be paid by him.
    Appeal from an order made at a Special Term setting aside a sale nnder an execution.
    A judgment was recovered in this action against the defendant, November 15, 1869. An execution thereon was placed in the sheriff’s hands in February, 1877. Stays of proceedings were obtained by the defendant until January, 1879, when the sheriff advertised the land for sale under the execution on the eighth of March. The defendant claimed that he had a defense to the judgment, and he commenced an action against the plaintiffs to restrain the collection thereof. In that action he obtained, on the seventh of March, an injunction, restraining the plaintiffs from proceeding further in the collection of the judgment on the sale of the real estate, “ except to adjourn the sale from time to time as they may be advised, until the determination of the action or the further order of the court.” The sheriff on being served with the injunction order, postponed the sale for about five weeks, at the expiration of which time he again postponed it, and continued so to postpone it for periods of between five and six weeks, until January 15, 1881, when the sale took place. There were twenty-two postponements. The advertisement with the postponement, was continued, making the printing disbursements over $500.
    In September, 1879, the plaintiff moved at Special Term to dissolve the injunction. The defendant asked for a modification of the injunction, so as to stop the advertisements. This was refused by the court. On the hearing of the motion the same was granted, unless the plaintiff would consent to' a reference. On his consenting, the injunction was “ continued in full force and effect until the trial and judgment in this actionand the action was referred to Mr. Towner to hear and decide. The action was tried before him; and on the 7th of January, 1881, he rendered his report, dismissing the complaint with costs. Final judgment thereon was entered January 31, 1881.
    At the sale the defendant tendered the sheriff $1,080 in gold, in satisfaction for the execution, which tender has been kept good. The tender was refused on the ground that it was insufficient in amount.
    Neither of the plaintiffs requested the sheriff to make these postponements; nor did their attorney. He notified the sheriff that the plaintiffs would not withdraw the execution; that the judgment was nearly ten years old; that the extension of time by reason of the injunction did not apply to' a purchaser, creditor or mortgagee in good faith; that the sheriff could take such course as he Should be advised. The sheriff took advice of counsel, and acting on that advice, thought it his duty to keep the sale adjourned.
    On the last postponement, January 8, 1881, the defendant told the under sheriff that he had been beaten ; that he hoped the postponement would be for long enough to look at the case and see whether he would appeal — about two weeks. The under sheriff told him that he would give him a week, and adjourned the sale to the fifteenth. On that day the sheriff sold the premises for $1,600.02,
    The defendant moved to set aside the sale made by the sheriff, and the Special Term set aside the sale'; ordered that the certificate be canceled ; ordered that the sheriff (then the late sheriff) pay baek to the purchaser the money received from him, with interest; that Trainor, on receiving said moneys, pay over on demand to the sheriff the moneys, $1,080, brought into court and by consent deposited with him; that such payment be in full satisfaction of the judgment and of the sheriff’s fees on the execution.
    From this order the sheriff (or late sheriff) appeals.

      James B. Olney, for the appellants.

      James H. Yan Celder, respondent, in person.
   Learned, P. J.:

The question in dispute relates to the sheriff’s right to collect the printer’s fees for the postponements. The defendant makes several points, of which only two are discussed by the learned justice who decided the motion. ' The others may be examined briefly.

Fwst. The defendant insists that there is no indorsement on the execution of a levy within sixty days after issue. The cases cited by the defendant refer to levies on personal property. No formal levy on real estate is needed. ( Wood v. Colvin, 5 Hill, 228.)

Second. The alleged irregularities in the postponements are not such as to invalidate the sale.

Third. The signing of some of the notices by the title of “sheriff” instead of “late sheriff,” is a mere irregularity, of no importance to any one.

Fourth. The defendant claims that the sheriff should have sold in parcels. It appears that, on the day of sale, the defendant himself made a demand for the sale in parcels. On an examination of the affidavits in reply, it appears that the two parcels are not distinct or separate; that there is not even a fence between them. They seem to be pieces of the whole lot, arbitrarily cut off by means of the description and separating the house from the road. If the diagram is a fair representation, the demand ought not to have been granted. It is not easy for us to understand the description contained in the execution. But it appears to describe only one lot. And, when the defendant made the demand, he was informed that the descriptions in his demand did not compare with the premises advertised, and that the plaintiff’s attorney did not know that they were parts thereof. Judging from the diagram and the time when the demand was made, the object of the demand was to embarrass the plaintiffs in their sale. There is no evidence that these premises consisted of several “known lots, tracts or parcels.”

Fifth. The defendant insists that the sheriff cannot collect his fees until they have been taxed, if demand be made. (Code Oiv. Pro., § 3287.) The defendant made no demand until just on the day and at the time when the sale was to take place. And the sheriff afterwards noticed his bill for taxation before a justice of the court. The sheriff was ready to sell. The defendant did not then reqnest a postponement of the sale. So that, according to his argument in this case, the defendant could not have been required to pay the costs of a postponement of the sale, if it had been postponed to allow a taxation of the sheriff’s fees. This statute, which was intended to protect defendants, should not be used for the purpose of embarrassing and delaying plaintiffs. It was the duty of the sheriff to collect the execution. And we do not think the sale should be set aside on the ground of the demand for taxation.

Sixth. It is urged that the sale was in violation of the injunction. Before the union of law and equity in one court, if such an injunction had been violated, the remedy would have been by punishment for contempt in the equity court. W e are referred to no authority which holds that a sale would have been void because made in violation of an injunction. Perhaps, since law and equity are administered in the same court, a sale in violation of an in junetion might, in a proper case, be set aside. But yet, as the injunction order was in another action and there was no stay of proceedings in the present action, the sale was not irregular. We think that the party claiming to be injured should be turned over to the ordinary practice of punishment for contempt. Because really, in the present case, the violation of the injunction was only technical. The sheriff was restrained until the further order of the court. The report of the referee stands as a decision of the court. (Code Civ. Pro., 1228.) If the action had been tried by the court, and its decision had been made, such decision could not afterwards be changed or modified. (Peters v. Carpenter, 32 Sup. Ct. N. Y., 529, Nov. 1881.) The entering of a judgment thereon would be only a formal act to be done, of course. And after a court had, by its decision, dismissed the complaint and had decided that the plaintiff was not entitled to an injunction, it would be very inconsistent t® punish a defendant for a violation of an injunction previously granted, merely on the ground that the formal judgment roll had not been perfected.

Seventh. The defendant insists that the sheriff was not entitled to be repaid for the amount he had paid the printer for advertisements beyond six weeks. (Code Civil Pro., 3307, sub. 9.) This is the important question in the case. The language of the section is, “ where the notice is published more than six weeks, or the sale is postponed, the expense of continuing, the publication or of publishing the notice of postponement must be paid by the person requesting it.” Now, there is no proof that the plaintiffs requested any postponement. On the contrary, it is proved that they did not request, as they certainly did not desire, any postponement. They were under no obligation to do anything, or to give any direction to the sheriff. They had issued the process which directed the sheriff to collect. It was his duty to use all means in his power to collect the debt, except so far as he was restrained. The defendant applied to the court and obtained an injunction forbidding the sale only. The sheriff then, so far as we can see, could not have safely returned his execution or stopped his advertisement. Por. if the injunction had been dissolved in a few weeks (as it might have been) the plaintiffs could probably have held the sheriff liable for not continuing ready to sell.

The plaintiffs had a valid judgment which they had a right to collect. The defendant had no defense or equity against that judgment. Rut upon allegations, which have proved to be groundless^ he attempted to stop the plaintiffs in their collection. The court at his request went so far as to enjoin the sale but not the advertisement. The defendant took that injunction, to the limited extent to which it was allowed, knowing that it permitted a continuance of the advertisement, and he acted upon it, serving it on the plaintiffs and on the sheriff. In all fair construction this was a request by him for the postponement. It was the defendant who did not wish the sale to take place at the time originally appointed. It was for his convenience that it was postponed in order that he might litigate a claim which has proved to be groundless. The duty of the sheriff was to sell as soon as he could. When, therefore, the defendant put an obstacle in the way of the sale, the duty still remained on the sheriff not to abandon the advertisement already made, but to remain ready to sell as soon as the obstacle was removed.

The defendant could have prevented any difficulty. He could have paid in the money. (Code Civil Pro., 613.) He could have allowed the sale to go forward, and could have recovered his claim in the suit which he had commenced. It was therefore his own choice to accept and use an injunction which restrained the sale only.

If the sheriff, at his own instance or by the plaintiffs’ direction, on being served with a copy of the injunction, had discontinued the advertisement, and if the defendant had been (as he was) unsuccessful in his injunction action, how could the fees of the sheriff and his expenses for printing, accrued when he discontinued the advertisement, have been recovered ? The defendant might have tendered the amount of the judgment and interest. He could have said, with truth, that the discontinuance of the advertisement was voluntary on the part of the sheriff or of the plaintiffs, and that they had thus lost all claim for fees or expenses then accrued. (See the form of bond; Code Civil Pro., §§ 613, 618.)

The plaintiffs were, in this case, in more than ordinary difficulty. The judgment lien is only for ten years. (Old Code, 282; Code Civil Pro., 1251.) It would expire, therefore, November 15, 1879. The stays of proceedings from February, 1877, to January, 1879, extended the lien, but not against a purchaser, creditor or mortgagee in good faith, so that after November 15,1879, the defendant could convey or encumber free from the lien. The injunction was obtained March 7, 1879, therefore only about eight months remained during which the lien continued as against everyone. On the 20th September, 1879, a motion was made to dissolve the-injunction. If that had been granted the sheriff could have sold under the advertisement and postponements. If he had abandoned the advertisement when served with the injunction he would have had less than two months within which to advertise again.

This question seems to have been in one form raised on the motion to dissolve the injunction. Upon that motion the defendant asked a modification of the injunction so that the advertisements and postponements be enjoined. The plaintiffs opposed and the court refused to modify. If the court had held that it was the sheriff’s duty to abandon the advertisements, the injunction would have directed him to do so. The court would have had no power to direct affirmatively the advertisements to be continued, or to direct the costs thereof to abide the event.

Every reason of justice requires that the defendant and not the sheriff should pay these expenses.

"We think the order should be reversed, with ten dollars costs and printing disbursements.

Rumsey, J"., concurred.

Present —Learned, P. J., and Rumsey, J.; Osborn, J., not sitting.

Order reversed, with ten dollars costs and printing disbursements, and motion to set aside sale denied, with ten dollars costs.


source: Caselaw Access Project

author: Rumset, J.: Learned, P. J.

license: Public Domain

text:
    NATHANIEL M. BENNETT, Appellant, v. MARY A. BATES and CHESTER S. BATES, Respondents, Impleaded with FANNY K. SIMONS.

      Assignee of a mortgage — what defenses a/re available against him — when one purchasing subject to a mortgage may attack the same — when the purchaser cannot set up damages sustained by his grantor.

    One Allen owned certain lands covered by two mortgages amounting to $11,196.67, which were held by Eanny K. Simons. It was agreed between them that Allen should convey the premises to her for- the price of $15,000, which she was to pay by satisfying the two mortgages and giving him a new one for the balance. Through the fraud of Allen, Mrs. Simons was induced to satisfy the two mortgages and give a new one to him for $15,000, which he assigned to Hill, who thereafter assigned it to the 'plaintiff. Thereafter Mrs. Simons entered into a written agreement to exchange the mortgaged premises with Mrs. Bates for other lands. The mortgaged premises were valued at $24,050, and were to be taken subject to the $15,000 mortgage and interest; the lands to be taken from Mrs. Bates were valued at $8,000. Thereafter the mortgaged premises were conveyed to Mrs. Bates, the deed providing that the conveyance was made “subject to a certain mortgage executed by the party of the first part to Thomas E. Allen for the sum of $15,000, bearing date May 10, 1876, if there shall be found anything owing and unpaid upon the same.”
    In an action brought by the plaintiff to foreclose the mortgage:

      Meld, that Mrs. Bates, under the terms of the clause assuming the mortgage, could set up the fraud practiced upon Mrs. Simons, and have the mortgage reduced to the amount for which it should have been given. (Learned, P. J., dissenting, on the ground that both the oral negotiations and the contract [under which Mrs. Bates went into possession of the premises], entered into prior to the delivery of the aforesaid deed, showed that the mortgage was recognized as a valid existing mortgage for $15,000 and interest.)
    After the making of the contra’ct for the exchange of the lands, and after the assignment to the plaintiff in this action of the $15,000 mortgage, the mortgaged premises were sold, and purchased by Mrs. Simons, under the foreclosure of a prior mortgage thereon given by Allen, which Allen, at the time of his sale to Mrs. Simons, had told her was paid and discharged.

      Held, that Mrs. Bates could not set-off the damages thereby occasioned to Mrs. Simons, as against thg plaintiff’s mortgage.
    Appeal from a judgment, entered on a trial by tbe court without ■a jury.

      Samuel Hand, for tbe appellant.

      Charles S. Lester, for tbe respondents.
   Rumset, J.:

The action is brought to foreclose a mortgage for $15,000 given by the defendant, Fanny IL Simons, to one Allen, and afterward assigned to the plaintiff.

It appears from the case that Allen was the owner of the premises covered by the mortgage, and that Mrs. Simons held two mortgages given by Allen amounting to the sum of $11,196.67. That an arrangement was made between them by which she was to buy the premises of Allen for $15,000, and pay him by satisfying her mortgages and giving him her bond and mortgage for the remainder; that when the contract was executed, the two prior mortgages were satisfied, but through the fraud of Allen the amount of them was not deducted from the agreed price, but Mrs. Simons gave her bond and mortgage for the full sum of $15,000. It further appears that at the time of this transaction there was upon the premises a prior mortgage for $1,000, which Allen fraudulently represented to Mrs. Simons was paid, but that in fact an action was then pending to foreclose it, and that Mrs. Simons was compelled to bid the premises in on the foreclosure sale and pay $1,436.58,«the amount due on that mortgage. On the 9th day of February, 1877, Mrs. Simons contracted with the defendant, Mary A. Bates, to exchange the mortgaged premises for certain lands owned by Mrs. Bates. The price fixed for these mortgaged premises was $24,050. Mrs. Bates was to take the premises subject to the plaintiff’s mortgage and interest, and the value of the lands to be conveyed to Mrs. Simons was fixed at the difference between $24,050, and the amount then estimated due on the mortgage. In September, 1877, Mrs. Simons completed the transaction by conveying the premises to Mrs. Bates. The deed contained the following clause: “ Subject to a certain mortgage executed by the party of the first part, to Thomas E. Allen, for the sum of fifteen thousand dollars, bearing date May 10,1876, if there shall be found anything owing and unpaid on the same.”

In 1879 the plaintiff brought this action to foreclose the mortgage. Mrs. Simons answered setting up the fraud in the transactions between herself and Allen, and claiming that the mortgage should be reduced by the amount which Allen had defrauded her. After she had answered, she was by order of the court and with consent of plaintiff released from any liability on her bond. Mi’s. Bates also answered, setting up the same defenses as were pleaded by Mrs. Simons.

Upon the trial the learned justice found the facts substantially as stated above, and held that Mrs. Bates was entitled to have deducted from the amount of the mortgage, the damages which Mrs. Simons sustained by the two frauds of Allen, and that the mortgage was a lien only for the difference,-deducting a payment made on it, and ordered judgment of foreclosure for that amount. From the judgment entered on this decision plaintiff appeals.

As to the question whether a deed was delivered from Mrs. Simons to Mrs. Bates before the deed of September 25, 1877, we see no reason to dissent from the conclusion of the learned justice at Special Term. He had the witnesses before him, and could judge better than we, of the credit to be given to them.

The serious question presented is upon the effect of the provision of the deed of September 25, 1877. There can be no doubt that if the deed had said simply that the land was conveyed subject to the mortgage of $15,000, and that sum had been deducted from the price, the case would be within Freeman v. Auld (44 N. Y., 50), and Mrs. Bates could not question that the whole sum was due. But the deed contains more. It is said that the land is conveyed subject to that mortgage of $15,000, if there shall be found anything due and owing upon it. We must give effect to this clause, .and we are clear, as matter of law, that by reason of it, Mrs. Bates stands in the same condition as if she had purchased the premises subject to the mortgage exactly as it was in truth, without regard to the amount of the purchase-price. In that case there is no doubt that Mrs. Bates can question the aqiount due to the same extent as Mrs. Simons might. (Russell v. Kinney, 1 Sandf. Ch., 34, 39; Hartley v. Tatham, 10 Bosw., 273.) The rule is well settled that the plaintiff took this mortgage subject to all defenses in the hands of the mortgagor. (Trustees of Union College v. Wheeler, 61 N. Y., 88.) He holds it subject to the equities attending the original transaction. (Crane v. Turner, 67 N. Y., 437.) Looking at the original transaction, we see that there never was $15,000 due. The whole sum due upon it when it was given was but $3,803.33. That was in fact the sum due and owing,” the amount legally demandable upon it, and as to which, it was in fact a lien. As to all the remainder there was a perfect defense to the mortgage. And this defense was not personal to Mrs. Simons, bnt arose from the fact that there was .a failure of consideration.

We think the court at Special Term was right in holding that this sum of $11,196.67, was not owing upon this mortgage, and that it was not a lien upon Mrs. Bates’ premises to that extent. We are ■also quite clear that the payment of $1,050, made May 10, 1877, was properly deducted from the amount of the mortgage. No such amount of interest was due on that day, and as the payment was greater than the interest, the excess was properly credited on the principal.

But the amount of the Taylor mortgage stands on a different ■footing. Upon the facts found, the right to recover from Allen for that fraud was a separate and independent cause of action, which belonged to Mrs. Simons. (Gillespie v. Torrance, 25 N. Y., 306; Henry v. Daley, 17 Hun, 210.) It never was the property of Mrs. Bates, and there is nothing to prevent Mrs. Simons asserting it now against Allen. Besides that, we do not think that it existed as a •cause of action in favor of Mrs. Simons when this mortgage was assigned by Allen. It is true that Allen had then made the fraudulent representations, but no damage had come to her. If he had afterward paid the mortgage, or if it had been extinguished, no damage would have resulted. Till there is damage there is no cause of action. It is the concurrence of fraud and damage which gives the right of action. (Hubbard v. Briggs, 31 N. Y., 518, 529; Cooley on Torts, 62; People v. Stephens, 71 N. Y., 557, per Allen, J.) Mrs. Simons suffered no damage until she bid off the premises on the foreclosure sale in July, 1877.

The plaintiff then owned this mortgage. His rights had before that attached, and the right of action then arising against Allen could not affect him. (Code of Civ. Proc., § 502, sub. 1.)

The purchase by Mrs. Simons at the sale upon this mortgage did not extinguish the lien of the plaintiff’s mortgage. She was then the owner of the fee, but she had contracted to sell and she was bound to pay the Taylor mortgage, and she bought the premises at that sale simply as a way of carrying out her contract. Her subsequent conduct shows that she did not intend to extinguish plaintiff’s mortgage, for she conveyed subject to it, and Mrs. Bates having taken subject to that mortgage cannot now question its existence or validity. (Jones on Mortgages, §§ 735, 736.)

We do not think that the court erred in excluding the evidence of Bates’ declarations a year after the transaction. It did not appear that when he made them he was acting in his wife’s business, and therefore they were not original evidence. (Abb. Trial Ev., 327.) It appears by the case to have been offered for no other purpose.

For the error in regard to the Taylor mortgage the judgment must be reversed and a new trial ordered, costs to abide event, unless the defendant shall stipulate to modify it by adding to the amount for which the mortgage is to be deemed a lien the sum of $1,041.41, with interest at seven per cent from May 10,1876, being the amount then deducted for the Taylor mortgage. Such stipulation, if made, to be given in twenty days after service of this order. If such a stipulation is given the judgment as modified' is affirmed, without costs of this appeal to either party.

Osborn, J., concurred.

Learned, P. J.

(dissenting):

Mrs. Simons had sold the property in question to Allen, and had taken back a mortgage. Afterwards she lent him money and took another mortgage on the premises, making in all $10,500 of principal. Then Allen sold the premises with the furniture thereon, etc., to Mrs. Simons at the price of $15,000. She satisfied her two mortgages, and if the bargain had been fairly performed she should have given him a mortgage for the difference, say $4,500. But by Allen’s fraud and her mistake she gave him a mortgage for the whole $15,000, which was dated May 10, 1876. Allen had also executed on the premises another mortgage of $1,000, called the Taylor mortgage. This he falsely asserted to her had been paid. The next day after the execution of this $15,000 mortgage Allen assigned it to Mr. Hill, who had acted as attorney and had prepared the papers and was familiar with the whole transaction, and a month or so afterwards, June 17,1876, Hill assigned it to the plaintiff with a guaranty of collection.

Afterwards, on the 9th of February, 1877, Mrs. Simons, having previously learned of the existence of this $15,000 mortgage, made a contract, under hand and seal, with Mary A. Bates, the defendant. TTill acted for Mrs. Simons, and Mrs. Bates’ husband for her. This contract was the result of previous negotiations, by which Mrs. Simons was to sell the premises, with certain personal property, for $25,000, and was to take certain property from Mrs. Bates in payment.

The contract recited that Mrs. Bates had purchased the real estate and personal property of Mrs. Simons; that the deed of conveyance had been made out, and was in the hands of Hill; that Mrs. Bates had sold to Mrs. Simons certain land, the deed for which was also deposited with Hill for Mrs. Simons. It stated that Mrs. Bates was to have actual possession April 20, 1877; that all matters were considered as consummated, as of the date of the instrument; and either party was at liberty to make sales from that time. It also contained the following clause: “It is further understood that a certain mortgage of $15,000, dated the 10th of May, 1876, upon the premises conveyed to the said Mrs. Bates by Mrs. Simons, an extension of the payment of the interest due thereon shall be made until the 15th day of August, 1877; and, in consideration therefor, the said Bates shall execute and deliver a chattel mortgage, covering the personal property conveyed to her by Mrs. Simons as collateral security for the payment of the interest on said $15,000 mortgage, which will become due May 10, 1877, to the holder of said mortgage.” It appears, by an examination of the original contract, that, as first drawn, it read: “As collateral security for the payment of said $15,000 and interest to the holder of said mortgage.” This fact is important to show that the mortgage was recognized as valid to its full amount.

Testimony was given by Hill that Mrs. Simons had executed and put in his hands a deed of the premises m February, 1877, about the date of the contract, in which he inserted the name of Chester S. Bates, the husband of Mrs. Bates; that he showed it to Mrs. Bates, who said that it should be to Mrs. Bates; that Hill corrected it accordingly, and that about May 1, 1877, he delivered that deed. Mr. Bates denies this delivery, but not the existence of such a deed, and testifies that the only deed of the premises delivered was that dated September 25, 1877, and on this conflict of evidence the learned justice found with the defendant.

The Taylor mortgage above mentioned was foreclosed and the premises were sold July 3, 1877, to Mrs. Simons. Afterwards Mrs. Simons executed a warranty deed, dated September 25, 1877, to Mrs. Bates for the consideration of $25,000, as expressed, by which she conveyed the said premises with this clause: Subject also to a certain mortgage executed by the party of the first part to Thomas E. Allen for the sum of fifteen thousand dollars, bearing date the 10th day of May, 1876, and recorded in the Saratoga county clerk’s office on the 12th day of May, 1876, if there shall be found anything owing and unpaid upon the same.”

Mrs. Bates paid the $1,050 interest on the $15,000 mortgage which came due in the spring, but she paid no other sum on the mortgage. It was testified by Mr. Bates that in making the bargain in behalf of his wife for the purchase of these premises he dealt with one Jones, as agent of Mrs. Simons; that both Jones and TTill told him that there was a mortgage of $15,000 on the property which Bennett, the plaintiff, held, on which $1,050 would be payable May tenth. He testified that he was to pay for the house and furniture $24,050; that, deducting the $15,000 and the $1,050, there was a balance of $8,000, for which he arranged by the conveyance of certain property; that he was to take the premises subject to the mortgage of $15,000 and to pay the balance, $8,000.

It is very evident that a gross fraud was practiced by Allen on Mrs. Simons, and if the question now before us arose between him and her, or between his assignee and her, there could be little doubt what justice would demand. But Mrs. Simons is not the owner of the premises, and therefore has no interest in the question of the extent of the mortgage. She has been released frdm any liability on the bond, and therefore has no interest in any matter here involved. The fraud practiced upon her cannot in any way be redressed in this action, whatever be its result. Mrs. Simons might evidently, if she chose, waive the fraud that had been practiced upon her and ratify the mortgage. If she sold the premises and made them expressly subject to the full amount of this mortgage, the purchaser would have no right to insist that that full amount was not payable. If we look, then, at the transaction between her and Mrs. Bates we find in the first place that Mrs. Bates’ agent testifies that the bargain was that Mrs. Bates was to give $24,050 for the property; that the mortgage of $15,000 and the accumulated interest of $1,050 were to be deducted from that amount, and that Mrs. Bates was to pay Mrs. Simons $8,000, being the balance. That balance, and only that balance, Mrs. Bates paid. Mrs. Bates, therefore, accepted the property charged with the full amount of the $15,000 mortgage. Then, when that bargain was reduced to writing it is stated therein (though with some inaccuracy of language) that this $15,000 mortgage is on the premises; and, putting the matter beyond all doubt, Mrs. Bates agrees to give collateral security for the payment of the next interest on the said fifteen thousand dollar mortgage.” The alteration in the instrument shows that it was first requested by Mrs. Simons’ agent that this security should be for the payment of the said $15,000 and interest This is only, material as it corroborates the other testimony to the effect that the mortgage was treated by the parties as good for the full' amount.

Now, this written and sealed agreement recites an actual purchase, not merely a contract to purchase, and an actual execution by Mrs. Simons of the deed. And. it declares that matters are consummated as of its date. Mrs. Bates, as her husband testifies,, went into possession of the premises under that contract, and ever since April 19, 1877, has been in possession thereof. Mrs. Bates’ title, therefore, at least in equity, was good from that date, by virtue of the contract and of her payment and her possession; and it was good, even if the deed, which the contract admits to be in Mr. Hill’s hand, was in fact never delivered. That such a deed was in existence Mr. Bates himself testifies. For he says that, after the contract was executed, he saw in Hill’s office a deed indorsed Fanny K. Simons to Chester S. Bates, and opened it and told Hill the deed should be made to his wife. This is the deed which Hill says he corrected accordingly and delivered. Both the oral negotiation, therefore, and the sealed contract establish the fact that Mrs. Bates accepted the land, subject to the $15,000 mortgage. (Freeman v. Auld, 44 N. Y., 50.) So, too, Mrs. Bates paid the interest (payable annually) on $15,000, which came payable that spring, and for which she had given, or had agreed to give, collateral security. By giving this security she obtained an extension of time on this interest for some three months. If she had not agreed that the premises were subject to the whole $15,000, then she would not have paid a year’s interest on that amount. But it is urged by the defendant that the clause contained in the subsequent deed of September twenty-fifth has changed the right.s of the parties. Assuming that no previous deed had been delivered, it must still be noticed that Mrs. Bates had been in possession for some five months under a valid and sealed contract; and that, as early as February 8,1877, she had paid for these premises by the execution of deeds of the property, given in exchange. Her rights were complete, certainly in equity'. By the agreement with Mrs. Simons, she had bought property estimated at $24,000, for $8,000 actual payment, because it was incumbered for $15,000 and $1,050 interest.

The case cited by the defendant of Russell v. Kinney (1 Sand. Ch., 34) was one where the 'court held that there was in fact no defense to the mortgage. The question of estoppel as to a purchaser did not arise. In the case of Hartley v. Tatham (10 Bosw., 273; S. C., 1 Keyes, 222) the mortgage was assigned to plaintiff May 13, 1862. On the 3d of May, 1862, Tatham, the holder of the equity of redemption, by taking an assignment from one Arinent of a certain claim, did practically pay a certain amount on the mortgage. Tatham’s deed was in terms subject to the mortgage. There is nothing in the case to show that in purchasing the premises from one Smith, Tatham in any way agreed upon the amount payable on the mortgage. These are the only cases cited which seem to bear on the point. The defendant insists that the present case is similar to one of a partial payment made upon a mortgage. But there is a very decided difference. A' payment on a mortgage pro tanto discharges it and reduces the amount thereof. It may be doubtful whether any transaction between the mortgagor and a third party could do away with the effect of an actual payment, or make the mortgage a lien for more than the balance actually due thereon. But this is not the case of payment. It is the case of a fraud. And it lies with the defrauded party to assert the fraud in such way as she may choose. She might sue Allen, and perhaps Hill, for damages by reason of the fraud, instead of setting up the fraud as a defense to the mortgage. If the defendant’s position is sound, then Mrs. Simons can never obtain redress for the fraud practiced upon her. Because, if the darhages sustained by her are admitted in this action to reduce the amount of the mortgage, the only person who is thereby benefited is Mrs. Bates And Mrs. Simons’ right of action against Allen and Hill will be lost; inasmuch as it will then appear that she had sold, the property, subject only to so much as might be payable on the mortgage after deducting the damages occasioned by the fraud. And the inference will necessarily be that she had obtained (say) $10,100 more for the property than she would have obtained, if the mortgage had been valid for $15,000. So that the result of allowing this defense is to take (say) $10,500 from Mr. Bennett and give it to Mrs. Bates; and further, to deprive Mrs. Simons of any future opportunity to recover damages against Allen or Hill.

Mrs. Bates did not personally agree to pay the mortgage. No question, therefore, arises as to the power of the grantor, Mrs. Simons, to release Mrs. Bates from a liability thus assumed. (Knickerbocker Life Ins. Co. v. Nelson, 78 N. Y., 137.) Nor is there any pretense that, in this case, the land has. not been made the primary fund for the payment of the mortgage debt. It was such by the contract, and it was such by the deed. Nor can it be doubted that by the contract of February, 1877, fully performed at that time, and by the possession taken in April following, Mrs. Bates accepted this property with an incumbrance thereon, agreed to be $15,000 of principal. If the deed of September, 1877, was intended to change the effect of that bargain it was of no avail for that purpose. Like the releases and covenants in Hartley v. Harrison (24 N. Y., 170), a case which seems to be analogous.

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

Judgment reversed, new trial granted, costs to abide event unless defendant consents to modify as stated in opinion. If defendant so modifies, then affirmed, without costs. .


author: Learned, P. J.:

text:
    JOHN H. PLATNER, Appellant, v. HIRAM R. LEHMAN and JOHN LEHMAN, Respondents.

      Tender — plea of— the payment of the money into court is not an issuable fact.

    To make an answer of tender, before action brought, good, the defendant should pay the money into court and notify the plaintiff thereof either by the answer or otherwise.
    Where, however, the plaintiff takes issue upon an answer which does not allege the making of payment into court he thereby waives the irregularity, and the only issue is whether or not the money was tendered before the action was commenced, the payment of the money into court not being an issuable fact.
    Appeal from a judgment in favor of the defendants for costs, entered upon the trial of this action by the court without a jury.

      S. I. Mayhctm, for the appellant.

      A. B. Coons, for the respondents.
   Learned, P. J.:

The plaintiff sued on a note. The defendants admitted the note and pleaded tender before suit. In pleading tender they averred that defendants tendered a certain sum (sufficient in amount) to the plaintiff’s agent in payment, and that the plaintiff refused to receive it; that the defendants deposited the sum with a certain person, naming him, for the plaintiff, and notified the plaintiff thereof, and that he might obtain the same whenever he chose; and that the defendants had been ever since ready and willing to pay the plaintiff said sum; and that the defendants now bring said sum into this court ready to be paid to the plaintiff.”

At the time of pleading tender, the defendants did not deposit the money in court. The plaintiff took issue on the answer by replying, and the case came on for trial before the court. On the trial the tender was proved, and the deposit in a third person’s hand, and the court gave judgment for the defendant with costs. To make an answer of tender before suit good, the defendant should pay the money into court. (Brown v. Ferguson, 2 Denio, 196.) The defendant must give notice of such payment into court. Probably this notice may be contained in the answer. (Becker v. Boon, 61 N. Y., 317.) If this is not done, the plaintiff may treat the answer as a nullity and return it. (Simpson v. French, 25 How. Pr., 464; Sheriden v. Smith, 2 Hill, 538.) But if the plaintiff takes issue on the answer, he waives the irregularity that the money was not paid into court at the time of serving the answer. (Sheriden v. Smith, ut supra) Then the only issue is, whether or not the money was tendered before action commenced. The payment of money into court is not an issuable matter, but a matter of practice. Now, in the present case, the defendants did not pay the money into court at the time of answer; nor did they give notice of such payment; nor did they aver the same in.the answer. The answer plainly shows that they had not paid the money into court, but that they had placed it in the hands of a third party. In fact, the third party had it in his possession at the time of the trial. The averment that they now bring the said sum into court, ready to be paid, etc., is clearly not a notice that the money had been actually paid into court. It is mere pjrofert in curiam. Therefore, under the decisions above cited, the plaintiff might have treated the answer of tender as a nullity. But he did not. He waived the irregularity and went to trial. On the trial the tender was proved; the money was produced which had been tendered and kept for the plaintiff, and it was handed to the clerk. Thus the answer of tender before action commenced was established. (Knight v. Beach, 7 Abb. [N. S.], 241.) And the defendants were entitled to judgment for costs.

The .judgment is affirmed, with costs.

Present — Learned, P. J., and Rumsey, J.; Osborn, J., not sitting.

Judgment affirmed, with costs.


author: Learned, P. J.

text:
    ISRAEL P. GRANT and WRIGHT DE WATERS, Appellants, v. JOHN BURCH, Respondent.

      Sale — 'agreement to take a machine on trial — when the purchaser is not required to give it a reasonable trial.

    Appeal from a judgment of tlie Chemung County Court, entered in favor of the defendant on the verdict of a jury, and from an order denying a motion for, a new trial, made upon the minutes of the court.
    The action was brought to recover the price of a reaper claimed by the plaintiffs to have been sold to the-defendant.
    After considering some, objections to the receipt of evidence, the court at General Term said: “ The last objection urged by the plaintiffs is, that the judge refused to charge, at their request, that if the defendant took the reaper on trial he was bound to give it a reasonable trial. The defen dant insisted (and that presented one of the issues and the principal issue) that the bargain was, that the reaper should be left there for him on trial, and that if he liked the machine and was suited with it, he was to keep it and pay for it. The plaintiffs insisted that the defendant was to purchase the machine, and that if it did first-class work he was to pay for it; if not he was' to notify the plaintiffs, and they were to put it in order. Now, we cannot say that the judge erred in his refusal. If the machine was, as the defendant claimed, only left on trial, and was to be kept only if the defendant was suited with it, we cannot say that the defendant was under any obligation at all to make a trial. 'Such an arrangement gives the expected purchaser the privilege of trying the machine, but it leaves it quite to his own judgment whether he is suited. And if it is for his own judgment to decide whether he is suited, then the giving a fair trial is of no consequence. If the bargain had been, that if the reaper worked well the defendant was to keep it, then he might be bound to give it a fair trial. But if the bargain was only, that if it suited him he was to keep it, then the keeping it was left to his choice. He was to determine, and not a jury, whether or not it suited him.”

      Smith dt Robertson, for the appellants.

      S. S. Taylor and David B. Hill, for the respondent.
   Opinion by

Learned, P. J.

Present — Learned, P. J., Osborn and Bumsey, J J.

Judgment and order affirmed, with costs.


author: Per Curiam.

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JAMES CAPEN, Appellant.

      Excise law — sale of liquor in violation of it — at what place a sale is to he regarded as made. '

    Appeal from a judgment, entered upon the conviction of the defendant at the Saratoga County Sessions, upon the trial of an indictment for selling lager beer at the town of Corinth, in that county, in violation of the excise law.
    The defendant was in the employment of and sold the beer for one Bibby, who resided and carried on a business at dens Falls, Warren county.
    The court at General Term said: “ The defendant, as the servant of Bibby, took an order for a case of lager beer in Corinth, Saratoga county, where no licenses were granted for the sale of beer or liquors. He took such order to his master' at Glens Falls. The order was'filled by the master by giving to his servant the quantity of beer ordered, by whom it was taken to Corinth, delivered to the purchaser and pay therefor received. We think this was a sale at Corinth, and as the defendant had no license for the making of such sale at Corinth he was properly convicted.
    “ The court on the facts so held as a question of law, and at first instructed the jury to find the defendant but afterwards seems to have submitted the ease to the jury, which rendered its verdict of guilty.

      “ There was an exception to so much of the charge as held that it was a sale of beer at Corinth. This we have already indicated was correct. No exception was taken to the apparent direction of a verdict of guilty. From that fact, and also from the recitals of the record touching the charge, we think it is fair to say that such direction was withdrawn and the case properly submitted to the j™7-

      “ Upon the whole case we think it would be a violation of law to send liquors from one town where a license permits a sale to-an other town where the sale is unlawful, by an agent or servant of the seller to be delivered and pay therefor collected of the purchaser. Such is the present case, and we think the judgment is correct and should be sustained.”
    Learned, P. L, concurred.

      A. J. Gheritree, for the appellant.

      John Van Rensselaer, district-attorney, for the respondent.
   Opinion

Per Curiam.

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

Judgment and conviction affirmed.


text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. CHARLES P. BRAGLE Appellant.

      Proper mode of reviewing a, conviction at the General Sessions — when a conviction will not be set aside because of the temporary voluntarry absence of the prisoner — Attempting to defrcmd a county by presenting an appan'enlly verified bill- — the authority of the officer to administer oaths need not be shown

    Appeal from a judgment of the Court of Sessions of the county of Albany, convicting the defendant of attempting wrongfully to obtain money from the county of Albany, and adjudging that he be imprisoned in the Albany County Penitentiary for the term of eighteen months at hard labor.

      The attempt to defraud the county was made by presenting to the board of supervisors of Albany county a bill purporting to be for the burial and taking charge of the bodies of dead persons, the bill being apparently sworn to in due form. The bill was disallowed. ^
    The court at General Term said: “We pass over the question whether this case should have been brought here by writ of error or by appeal, inasmuch as the parties have argued it upon the merits.
    “As to the alleged error in respect to the absence of the defendant during a few minutes of the trial, we are of the opinion that there was not such absence as would vitiate the trial. The defendant being present in the court room was informed that there was some occasion for his going into an ante-room to communicate by telephone with a witness. He went into this ante-room, and against the suggestion of the district attorney the defendant’s counsel proceeded with the cross-examination of a witness then on the stand. In a minute or two the defendant returned. The ante-room into which he went was separated from the court room only by swinging doors. Thus the defendant cannot really be said to have been absent from the court room. Nothing could be done of which he could not have instant notice. His going into the ante-room was voluntary. The testimony given while he was there was given by his counsel’s cross-examination of a witness who had been on the stand when the defendant went out. It would be a straining of the rule to hold that this act of the defendant invalidates the trial.
    “ The questions asked by the district attorney as to certain items in the defendant’s account not set forth in the • indictment were properly allowed. No attempt was made to prove the falsity of these items, and that object was disavowed by the district attorney. The questions were intended only to give meaning to those items which were the basis of the indictment.
    “ There was no error in admitting the defendant’s bill without proof that the person before whom it purported to haye been verified was an officer authorized to administer oaths. The indictment was not for perjury but for an attempt to obtain money, etc., by fraud or falsity. The attempt was shown as much by the presentation of a false bill purporting to be verified as by a false bill actually verified.”

      Galen JR. Hitt, for the appellant.

      D. G. Herrielc, district-attorney, for the respondent.
   Opinion

Per Curiam.

Present — Learned, P. J., JBoardman and Landon, JJ.

Judgment and conviction affirmed.


author: Rumsey, J.;

text:
    EDWIN GROAT and WILLIAM S. VAN BROCKLIN, Respondents, v. WENDELL MOAK, Appellant.

      Bescrmtion ofarightto takewater — construction of it — whenno onebut The People can complain of a nuisance.

    Appeal from a judgment in favor of the plaintiffs, entered on the report of a referee.
    The action was brought to recover damages occasioned by the defendant’s wrongfully using water belonging to the plaintiffs.
    In 1841 the Phoenix Cotton Manufactory owned a dam and two parcels of land. The dam was erected across the Susquehanna river under a privilege granted by the legislature, to erect a dam “ not exceeding in height eight feet from the bottom of the river,” by chapter 149 of 1811, chapter 20 of 1835 and chapter 551 of 1864. The plaintiffs claim, under the Phoenix company. On the twelfth day of August in the year 1841, the company conveyed to the defendant’s grantor a parcel of land with a grist mill thereon. The deed contained the following recital: “ Provided, nevertheless, and everything herein contained is upon the express condition that the party of the first part * * * expressly reserve to themselves the right at all times to use so much of the water in the river and dam, which now is or may hereafter be therein, or in any dam erected hereafter, as shall be necessary to operate the present or any additional machinery which may be hereafter put in the building now used by them for the manufacture of cotton cloth, or in any building to be erected on the site thereof of the like or less dimensions.” The dam was, at the time the water was taken by the defendant, more than eight feet high, and he claimed to be entitled to any water which would have passed over the dam had it been maintained at the legal height.

      The court at General Term said : “ Tlie first question arises on the construction of this exception, for such I think it is substantially.

      “ In that construction we must take into consideration the situation of the parties, the state of the country and of the thing granted at the time of the grant, to ascertain the intention of the parties. [Adams v. Frothingham, 3 Mass., 352; Com. v. Roxlmry, 9 Gray, 493.) The intent, of course, when ascertained, will control in this, construction. (,Jackson v. Myers, 3 John., 388.) The Phoenix manufactory retained from the operation of its grant the right to-use so much water as might be necessary to operate any machinery which could be put into the building. That specification operated as a measure of the quantity of water to be used. (Wakely v. Davidson, 26 N. Y., 387; Comstock v. Johnson, 46 N. Y., 615.) It is plain that the power was the principal thing, and that the-party of the first part intended to retain the right to use so much of the water which might at any time flow in the river as was needed to produce the power to operate the specified machinery,, and the party of the second part got the surplus only. It was not the surplus which might flow over a dam eight feet high, but the surplus after fully supplying the machinery in the cotton mill. We think the referee wTas right in his conclusion that, as against the defendant, plaintiffs had the right to keep up the dam to any height required to obtain the water necessary to run their machinery.
    “Defendant’s counsel objects that the height of the dam being-limited by statute to eight feet, its maintenance at a greater height is a nuisance, and the court will not lend its aid to a recovery which is based upon the existence of a nuisance.
    “We do not think that upon the facts appearing in this record we-can say as matter of law that this dam at its present height is a public nuisance, and if it were it does not follow that anyone can complain of it except the people, or some riparian owner who is specially injured by it.” (People v. Gutchess, 48 Barb., 656, 666;. Fort Plain Bridge Co. v. Smith, 30 N. Y., 44, 63.)

      Samuel A. Bowen, for the appellant.

      F. M. Harris, for the respondents.
   Opinion by

Rumsey, J.;

Learned, P. J., and Osborn, J., concurred..

Judgment affirmed, with costs.


author: Rumset, J.;

text:
    OLIVER LAROCK, Appellant, v. THE OGDENSBURG AND LAKE CHAMPLAIN RAILROAD COMPANY, Respondent.

      Negligence — when the relation of master and servant does not exist — when a corporation is not liable to the servant of a contractor, sustaining injuries by reason of Hie contractor’s negligence.

    Appeal from a judgment in favor of the defendant, entered on a nonsuit directed at the circuit.
    One Newmyers took a contract to do the mason work upon a round-house which the defendant was constructing.
    At the time of his making the contract he had some conversation with the master mechanic of the defendant about the scaffold to be used by Newmyers. At that conversation it was arranged that Newmyers was to build his own scaffold with materials to be furnished by defendant; that defendant would have to build a scaffold for the use of the carpenters, which would not, however, be strong ■enough for the mason work, but that Newmyers could use it if he wished after the carpenters had finished, but that he would do so, if at all, upon his own responsibility; that when the scaffold was built, Newmyers, if he saw a board going in that was not fit, told them not to put it in, and they did not. The carpenter of the defendant testified that when he had finished with the scaffold, he told Newmyers it was not strong enough for the masons to use.
    The masons, however, did use it without any additions, and while they were so using it, it fell, and plaintiff who was upon it in the employ of Newmyers, was hurt, and to recover for that hurt he brings this suit. At the trial he was nonsuited.
    The court at General Term said: “ The relation of master and servant did not exist between Newmyers and defendant, or between defendant and the plaintiff. (Ring v. IT. Y. G. and II. R. R. R. Co., 66 N. Y., 181.) The defendant was therefore not liable for the negligence of Newmyers, and it was not liable for the injury to the plaintiff, unless the defendant violated some duty which it owed him. But it assumed no duty toward plaintiff. The contract expressly provided that Newmyers was to build his own scaffold. It is true the defendant permitted the contractor to use its scaffold, but it was with a warning that its scaffold would not be strong enough for the masons, and upon Newmyers’ express contract to take it at his own risk.
    “Newmyers was to see that the scaffold was sufficient, and its failure was due to the' neglect of the contractor to put it in proper condition to do the work. The case differs from Ooughtry v. Globe Woolen Co. (56 N. Y., 124). In that case the defendant expressly assumed to furnish the scaffold, and the court held that it was bound to use proper diligence in constructing it, and that, as the defendant provided the scaffold, and by implication invited the workmen to go upon it, it would be liable independently of the contract.
    “Neither of those elements existed here. Defendant refused to provide a proper scaffold for the mason work, and the contractor was told that the scaffold which was there was not to be used by the masons, unless it was strengthened by them. If it be said that defendant was to supply materials of which to build the scaffold, the answer is that there is no evidence that proper materials were not supplied. Newmyers did not use proper materials to-strengthen the scaffold, but no fault of the defendant appears in that regard.
    “ The case of Kvng v. Railroad Company, above cited, seems to us to control this one, and within the rule laid down in that case the nonsuit was right.”

      Leslie W. Russell, for the appellant.

      L. Hasbrouoh, for the respondent.
   Opinion by

Rumset, J.;

Learned, P. J., and Osborn, J., concurred.

Judgment affirmed, with costs.


author: Osborn, J.;

text:
    ABRAHAM P. SMITH, Appellant, v. LEWIS E. FELLOWS, Respondent.

      Complaint on a promissory note — when it is sufficient.

    Appeal from an order made at Special Term sustaining a demurrer to the complaint and from the judgment entered thereon.
    The allegations of the complaint were that on the 1st day of April, 1876, the defendant made and executed a note as follows:
    “$500. Kjnderhook, N. Y., April 1, 1876.
    “ One year after date, for value received, I promise to pay to the order of Abraham P. Smith five hundred dollars at the National Bank of Kinderhook, with interest.
    (Signed) “LEWIS E. EELLOWS.”
    Then came the allegation that “ Fellows (the maker) delivered said note to the plaintiff, who is now the owner and holder of the same, and that there is now due and owing from the defendant to the plaintiff the sum of five hundred dollars with interest from the first day of April, 1878, no part of which has been paid.
    “ Wherefore the plaintiff demands judgment for the sum of five hundred dollars with interest from the first day of April, 1878, besides the costs of this action.
    “W. II. SILVERN AIL,

      “Attorney for Plaintiff A

    The court at General Term said: “ The ground of the demurrer is that the complaint does not state facts sufficient to constitute a cause of action. The decision at Special Term is based wholly, as appears by the memorandum of the learned judge, on the ground that technically the language used in the complaint is not strictly according to the suggestion of the Code of Civil Procedure (§ 534). But there is another provision of the Code that still remains in effect, viz.: ‘ The complaint shall contain a plain and concise statement of the facts constituting the cause of action.’ No other cause of action is attempted to be set up than the note in question. No other facts or allegations appear from which it could be assumed for a single moment that there was anything upon which plaintiff claimed to recover other than the note sued on. If the complaint had said ‘ there is now-due and owing on said note ’ no question could possibly arise. Or if it had said £ there is now due and owing the plaintiff thereon,’ it would have been good. Or if in the demand for judgment it had stated that the sum demanded was so much on account ‘ of such note,’ or £on account of the matters above alleged,’ no possible objection could have been urged to the complaint.
    “ The note is fully and distinctly set forth. There is no pretense of uncertainty or indefiniteness about it. The pretense that the allegation of indebtedness or the demand for the judgment does not set forth or state that it is upon the note, the only indebtedness alleged in the complaint, makes the complaint demurrable, as not stating facts sufficient to constitute a cause of action, is without sound reason or authority. [Prindie v. Garuthers, 15 N. Y., 431; Allen v. Patterson, 3 Seld., 480:)
    “ To show that section 534 did not intend to require the very language employed therein to be set forth in a complaint on a promissory note (see Ketéltas v. Myers, 19 N. Y., 233) referred to in the opinion of the learned judge who sustained the demurrer. In that case the words ,set out, after reciting the note and how it came to plaintiff, were £ that the said sum of five hundred dollars was due,’ ” etc.

      Wm. II. Silvernail, for the appellant.

      G. L. Beale, for the respondent.
   Opinion by

Osborn, J.;

Learned, P. J., and Rumsey, J.,. concurred.

Judgment reversed, with costs, and judgment given for plaintiff' on demurrer, with costs, with leave to defendant to answer in twenty days on payment of costs.


text:
    MARY M. SMITH, Appellant, v. WILLIAM ULMAN, Respondent, Impleaded, etc.

      Evidence — a pa/rty cannot testify as to a conversation heiween the deceased anda third person, if he took any part therein —• Code of Gvml Procedure, sec. 829.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    The parties are the heirs-at-law of Frederick Ulman, who died intestate prior to the commencement of this action, having the title in fee to certain real estate sought to be partitioned in this action.
    This defendant William Ulman alone defends. He claims that by an arrangement with his father, a man far advanced in years, he was to move upon and occupy and work the premises on which he lived, and take care of his father as long as he should live, and in consideration thereof he was to have the property claimed by him as his own. This was a few years prior to his father’s death. That he did move on and fully perform this agreement, which was not in writing, and insists in his answer that he is the equitable owner thereof, and asks that by the judgment he may be decreed to be the legal owner of such premises. This cause was tried before a, referee, who found the agreement substantially as claimed, and that defendant Ulman was entitled to the judgment prayed for. From the judgment entered on this report an appeal is taken to this court.
    The court at General Term said: “Defendant William was sworn as a witness in his own behalf, and was permitted to testify to a conversation between his father and one Race, as follows : c Father told Andrew Race that he had made a bargain with me to come and take care of him during his life, and that he had told Race’s wife that she could stay a year according to agreement. Race said the work was rather hard, and he would rather leave right away. He told Race I was to come with my family and take care of him during his life time. I took some part in the conversation,• father commenced it. I told Race Tie could stay, and he said he would not remain between father and child.’
    “ Now it would seem that Race and his wife had been living on the place prior to, and were so living at the time of the conversation. The objection was that this evidence was inadmissible under section 829 of the Code, as a conversation' or personal transaction' with the deceased.
    “We are aware that the courts have held that a party disqualified under this section to swear to a conversation or transaction between himself and the deceased, may do so when the conversation is between the deceased and a third party, which he may see or hear and in which he in no manner participates. In the language of Bockes, J., in Holcomb v. Holcomb (20 Hun, 159), after a careful review of all the cases, ‘ if the transaction be one wholly independent of the witness, neither induced by his solicitation or supported by his action, one with which he in no way interferes or joins, it cannot be one of a personal character as regards him.’ But in this conversation the defendant did participate. He swears distinctly that he took some part in it. He states some things he said, but does not pretend that it was by any means all that he said. But if he said nothing more, it was still inadmissible. The deceased was speaking of the contract between himself and the witness; of the bargain that had been made between them. This was in the presence and hearing of the witness. Suppose the father had lived many years, and the value of the property was entirely inadequate to compensate for the care and maintainance bestowed, so that a claim against the estate could have been established for a much larger amount, and he had undertaken to make such a claim, which was resisted by the estate, on the ground that he had made this agreement, and was entitled to nothing more, would not this evidence have aided, and if the representatives of the estate believed it, have entirely defeated the allowance of such claim ? If he had remained entirely silent, would it not have been treated as an assent on his part to the agreement as thus stated by the deceased to the witness Bace? Clearly so. If a party stands by and hears another state over an agreement in which he has an interest; if not true, and it is to his prejudice, is he not bound to speak at once, or forever after keep his mouth closed ? But here defendant admits that he went farther than to remain silent, and impliedly admitted that the agreement as stated was correct, and that he was willing to carry out the agreement which his father had made with Bace and his wife; in a word, it is a convernation in which all three participated. The deceased stated the agreement to Race. Race then made his statement, and the defendant "William assented in express words to it. As before stated, this was clearly inadmissible under the section above referred to, and in direct violation of its spirit and meaning, as well as its express language.”

      J. W. Winne and II. Krum, for the appellant.

      W. O. Lamont, for the respondent.
   Opinion by

Osborn, J.;

Learned, P. J"., and Rumsey, J., concurred.

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


text:
    HENRY L. ROGERS, Administrator, etc., of HIRAM CRANDALL, Deceased, and JAMES S. SQUIRES, Respondents, v. FRANK J. SQUIRES, Appellant.

      Administrator —power of, to assign assets of the estate — right of the assignee to sue thereon.

    Appeal from a judgment in favor of the plaintiffs, entered on a verdict directed at the circuit, and from an order denying a motion for a new trial, made on the minutes of the justice before whom the action was tried.
    This action was brought on eight promissory notes and a recovery had for the aggregate amount thereof. These notes were all given by the defendant herein named to the payee therein named, D. C. Squires, and weie outstanding and unpaid at the time of his, the payee’s death, and represented a portion of his estate. One Jerome Squires was appointed administrator of the estate of D. C. Squires, the payee named in the notes. After the death of the payee and the appointment of Jerome as administrator, these notes, which had come into Jerome’s hands as administrator, were transferred by him to the original plaintiffs, Hiram Crandall and James Squires, to secure them for their liability on the bond given by Jerome as the administrator of D. C. Squires, as well as for a judgment or claim of $3,200 or $3,300, which had been obtained or presented against the estate of D. C. Squires, which had been paid or secured by them.
    The court at General Term said: “ So far as the defenses set up in the answer are concerned, we are satisfied that they were correctly disposed of at the trial by the learned judge who presided thereat, except so far as the question which is fairly raised and presented for our consideration is concerned, viz.: Whether the plaintiffs had such an interest in the notes as to enable them to maintain this action. They were notes given to D. 0. Squires by his son, the defendant. All but two of them were non-negotiable. As such on the death of the payee they became the property of his estate, and of course came into the hands of Jerome as the regularly appointed administrator, as assets to be collected and disposed of according to law. He probably had no legal right to divert them from this purpose by any transfer of the same for his own benefit, like turning them out as security for his own personal benefit, to secure his own debts or to indemnify friends who had seen fit to become sureties upon the bond which the law required for his faithful performance of his duty as such administrator. Still he was made such administrator and gave the bond required by law. If he diverted any of the assets of the estate to its prejudice, or the prejudice of creditors or heirs interested therein, he was bound to account for every dollar of the assets so diverted, or if personally irresponsible so to do, the sureties on his bond would be obliged to do so. If any of the assets had been turned over to them it would "be no excuse for them to say that they held such assets for their own personal benefit or indemnity for becoming such sureties.
    “ The only question then is, did the plaintiffs have such an interest in the notes as to enable them to maintain the action? This question we think can only be answered in the affirmative. The defendant owed the estate these notes, and the administrator was entitled to insist upon their payment, even if the distributive share of the defendant in his father’s estate after the payment of all debts and expenses might- equal or exceed the amount thereof. The administrator Jerome could have appointed the plaintiff his agents or attorneys to collect such notes, and payment to them would have discharged the defendant. No one can doubt but that the administrator could have sold such notes, receiving the full amount due thereon, to a third person, and such sale would have operated as a perfect transfer of the notes, and the right of the transferee to collect could not legally be questioned. In this case the title of the plaintiffs was two-fold: First. As security to the plaintiffs for becoming sureties upon the bond of the administrator. Second. To secure them for $3,200 oils,300 actually paid for the benefit of the estate.
    “As more than intimated heretofore, if this operated as any diversion of the funds or injury to the estate, the administrator would not be relieved or absolved. He was obliged to account for every dollar represented by these notes, and any failure to do so would give the parties, or any of them interested in the estate, the right to look to and hold the sureties for the amount of such injury or diversion. In a word, we think the defendant was in no position to set up, or defend these notes on the ground of, any failure of interest in or ownership thereto on the part of the plaintiffs. The title of the plaintiffs was sufficient to maintain this action. (Nelson & Sturges v. Edwards, 40 Barb., 279; Nelson and others v. Wellington, 5 Bosw., 178; Leitch v. Wells, 48 N. Y., 585-595; Middlebrook v. Merchants' Bank, 41 Barb., 490; Barlow v. Myers, 24 Hun, 290.)
    “ Some of the cases above cited sustain the proposition (if indeed authorities are necessary on such a question) that an executor or administrator is vested with the legal title to all the assets and may sell or pledge them at his pleasure. His responsibility, and that of the sureties upon ,liis bond, is to the parties interested for any failure or neglect to faithfully execute his trust whereby injury or loss is sustained.”

      B. T. Wright, for the appellant.

      Waters eft Knox, for the respondents.
   Opinion by

Osborn, J.;

Learned, F. J., and Rumsey, J., concurred.

Judgment and order affirmed, with costs.


text:
    The People of the State of New York ex rel. James H. Pierce, Appellant, v. Oatman Covill and others, Respondents.
   Order reversed and order granted directing trial of the traverse at circuit, costs to abide event. Order to be settled by Learned, P. J. Opinion by

Learned, P. J.


author: Osborn, J.

text:
    In the Matter of the Application of the Attorney-General of the State of New York v. The Guardian Mutual Life Insurance Company.
   Appeal by claimant Helena M. Tucker. Order affirmed, with ten dollars costs and printing disbursements. Opinion by

Osborn, J.


text:
    Lester Eckler, Executor, etc., Appellant, v. Orange Eckler and others, Respondents.
   Decree of surrogate reversed in accordance with opinion of Osborn, J. Order to be settled by

Osborn, J.


text:
    Daniel P. Van Court, Appellant, v. James C. Armstrong and another, Executors, etc., Respondents.

   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Naomi S. Harris, Executrix, etc., and Naomi S. Harris, Respondents, v. Horace Hiscock, Appellant.
   Judgment affirmed, with costs. Opinion by

Osborn, J.


text:
    James K. P. Sprague, Respondent, v. Eunice Norton (now Eunice Norton Van Vulson), as Administratrix, etc., Appellant.
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.


author: Rumsey, J.

text:
    Louisa Cushman, Appellant, v. William Burritt, Respondent.
   Order affirmed, with costs. Opinion by

Rumsey, J.


text:
    Erastus Corning, Respondent, v. James T. Walker, Appellant.
   Judgment reversed. Referee discharged, new trial granted, costs to abide ev'ent. Opinion by

Osborn, J.;

Learned, P. J., not acting.


author: Learned, P. J.;

text:
    Peter D. Platz, Respondent, v. The City of Cohoes, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Learned, P. J.;

Osborn, J., not acting.


text:
    George Mark, Respondent v. The Guardian Fire Insurance Company of New York, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Osborn, J.


text:
    George Mark and others, Plaintiff, v. The Hudson River Bridge Company, Defendant.
   Judgment and order reversed on plaintiff’s appeal, new trial granted, costs to abide event. Opinion by

Rumsey, J.


text:
    Mary Conway, Appellant, v The City of Albany, Respondent.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.;

Osborn, J., not acting.


author: Learned, P. J., and Osborn, J.

text:
    Patrick Ronan, Respondent, v. This Hudson River Bridge Company at Albany, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J., and Osborn, J.


author: Bumsey, J.;

text:
    The Albany City National Bank, Respondent, v. The City of Albany, Appellant.
   J udgment affirmed, with costs. Opinion by

Bumsey, J.;

Learned, Jr. J., not acting.


text:
    John L. Perry, Jr., Executor, etc., Appellant, v. The Community of Sisters, Respondent
   Decree affirmed, with costs against the executor personally. Opinion by

Learned, P. J.


text:
    The National Bank of Rondout, Respondent, v. Benedict Dreyfus and others, Appellants. John M. Dodd and Alexander Ross, Respondents, v. Benedict Dreyfus and others, Appellants.

   Judgment affirmed, with costs in both cases. Judgment to be settled before Osborn, J. Opinion by

Osborn, J.


text:
    George R. Bell, Survivor, etc., Respondent, v. The Lycoming Fire Insurance Company, Appellant.
   Judgment and order affirmed on opinion of court below.


text:
    Casendania Sanford and Livonia Smith, Respondents, v. Thurman D. Ellithorp and Pascal D. Ellithorp, Appellants, Impleaded,

   Judgment affirmed, with costs. Opinion by

Osborn, J.


text:
    Henry Taylor, Appellant, v. Amos N. Fitch, Respondent.
   Judgment reversed, new trial granted; referee discharged, costs to abide event. Opinion by

Osborn, J.


text:
    Susan A. Rogers, Appellant, v. The Village of Sandy Hill and James Merrihew, as Collector of said Village, Respondents.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Learned, P. J.


text:
    In the Matter of the Accounting of John Consalus, as Executor of Amelia W. Hall, Deceased.
   Decree affirmed, with costs. Opinion by

Learned, P. J.


text:
    Mary Monahan, Respondent, v. The City of Cohoes, Appellant.
   Judgment and order affirmed, with costs. Opinion by

Bumsey, J.;

Osborn, J., not acting.


text:
    Addie M. Smith, Respondent, v. Louis H. Cramer, as Receiver of Taxes, etc., and others, Appellants.
   Judgment modified by declaring tax of 1819 unauthorized and illegal, and setting aside sale and enjoining conveyance. As modified affirmed, with costs. Opinion by

Learned, P. J.


text:
    Elizabeth Snyder v. Sylvester Snyder and others.
   Judgment reversed. Beferee discharged, new trial granted, costs to abide event. Opinions by

Learned, P. J., ana Osborn, J.; and by Bumsey, J., dissenting.


text:
    E. Clark Carley, Respondent, v. John J. Wheaton, Appellant, Impleaded, etc.
   Motion for new trial denied and judgment ordered on verdict for plaintiff, with costs. Opinion by

Osborn, J.


text:
    Frederick Wheeler, Respondent, v. Merritt King, Appellant.
   Judgment and order reversed, new trial granted, costs to abide event. Opinion by

Osborn, J.


author: Eumsey, J.

text:
    Amanda Lewis and others, Appellants, v. Frank Manning and Pierson D. Ogden, Respondents.
   Order reversed, with costs. ' Opinion by

Eumsey, J.


text:
    Alfred Stout and others, Respondents, v. Lewis M. Smith, Appellant.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    William B. Fitch, as Survivor, etc., Respondent, v. William J. Best, Appellant, Impleaded, etc.
   Judgment affirmed, with costs. Opinion by

Rumsey, J.


text:
    James M. Randall, Appellant, v. Aaron W. Dunbar and others, Respondents.
   Order affirmed, with costs. Opinion by

Learned, P. J.


text:
    Nathaniel F. Green, Appellant, v. Betsey E. Green, Respondent.
   Order affirmed, with costs. Opinion by

Osborn, J.;

Eumsey, J., dissenting.


author: Eumsey, J.;

text:
    William D. Mead, Respondent, v. Thomas A. Shea, Appellant.
   Ordered, that ease be sent back to be properly made and settled. No costs to be taxed for the printing-of this case. Neither party to have costs of November term. Opinion by

Eumsey, J.;

Osborn, J., not acting.


text:
    Jane A. Weed and Fannie S. Weed, Appellants, v. Charles O. Root, Respondent, Impleaded, etc.
   So much of judgment as declares rights of parties, reversed. Dismissal of complaint affirmed, with costs to defendant and with costs of this appeal. Opinion by

Learned, P. J.


text:
    Charles B. Perry, Appellant, v. Cyrus Strong and others, Respondents.
   Judgment affirmed, with costs. Opinion by

Osborn, J.


text:
    Curtis G. Hussey and others, Appellants, v. Belden Noble, Respondent.
   Judgment affirmed, with costs. Opinion by

Learned, P. J.


text:
    Mary J. Mann, Respondent, v. Delos H. Mann, Appellant.
   Judgment reversed, new trial granted, costs to abide event. Opinion by

Osborn, J.


text:
    In the Matter of the Mercantile Trust Company.
   Motion denied.


text:
    The Board of Supervisors of Saratoga County, Respondents, v. Andrew Seabury and others, Appellants.
   Motion for reargument denied, with ten dollars costs.


text:
    Amy W. Heartt, Plaintiff, v. Malinda Clothier and others, Defendants.
   Motion denied, with ten dollars costs.


text:
    Helling v. Rosback.
   Motion to dismiss appeal denied, without costs.


text:
    John W. Dean, Plaintiff, v. Seymour Bates, Defendant.
   Motion denied, with ten dollars costs, unless plaintiff pays ten dollars costs, in each case, of last term and ten dollars costs of this motion.


text:
    James Chaffee, Respondent, v. Frances M. Swan, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Sarah A. Beecher, Plaintiff, v. Hosea Duell, Executor, etc., Defendant.
   Order affirmed, with ten dollars costs and disbursements. Mem. by

Learned, P. J.


text:
    Pamelia Turner, Plaintiff, v. Canal Railroad Company, Defendant.
   Motion denied, with ten dollars costs.


author: Landon, J.

text:
    Helic Trembly, as Administrator, etc., Appellant, v. Gouverneur Pulp Company, Respondent.
   Order affirmed, with ten dollars costs and disbursements. Mem. by

Landon, J.


text:
    Abram L. Soudder, Appellant, v. Almon T. Burrows, Respondent.
   Order affirmed, with the dollars' costs and disbursements. Mem. by

Landon, J.


text:
    Paul Cushman, as Trustee, etc., Respondent, v. Charles E. Knowlton, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Frank P. Shean, Respondent, v. Heman P. Matthews, Appellant.
   Order reversed, with ten dollars costs and disbursements, and motion denied with ten dollars costs. Mem. by

Learned, P. J.


text:
    James A. Turner, Appellant, v. Edward C. James, Respondent.
   Order reversed, with ten dollars costs and disbursements, and motion denied with ten dollars cost. Mem. by

Landon, J.


text:
    The People of the State of New York, Defendants in Error, v. Henry Moett, Plaintiff in Error.
   Order affirmed. Mem. by

Learned, P. J.


text:
    George Worthington, Respondent, v. The People of the State of New York, Appellant.
   Award and judgment affirmed, with costs on authority of Donalds v. People (4th department).


author: Boardman, J.

text:
    Andrew Kehn, Appellant, v. The People of the State of New York, Respondent.
   Award affirmed, without costs, according to memorandum of Boardman, J. Order to be settled by

Boardman, J.


text:
    Bernard Grimes, Appellant, v. The People of the State of New York, Respondent.
   Same as last case.


author: Landon, J.;

text:
    Adelaide B. Lampman, Respondent, v. James Adams, Appellant.
   Judgment affirmed, with costs. Mem. by

Landon, J.;

Learned, P. J., not acting.


text:
    John E. Twogood, Plaintiff, v. James K. P. Pine, Administrator, etc., Defendant.
   Judgment affirmed, with costs. Mem. by

Learned, P. J.


text:
    Washington Akin, Respondent, v. Eugene Hyatt and Bradley Fish, as Executors, etc., Appellants.
   Judgment reversed, new trial granted, costs to abide event; referee discharged. Mem, by

Boardman, J.


text:
    Peleg Sweet, Appellant, v. Gilbert Steer, Respondent.

   Judgment of County Court reversed and that of justice affirmed, with costs. Mem. by

Boardman, J.


text:
    Abram Vandenburgh, Respondent, v. Lucy J. Sinclairs, Appellant.
   Judgment affirmed, with costs. Mem. by

Learned, P. J.


text:
    William D. Mott, Respondent, v. Charles C. Abeel, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements.


text:
    Charles Ramsey, Plaintiff, v. Edward Ramsey, as Administrator, etc., Defendant.
   Orders affirmed, with costs against appellants on the appeal from the appointment of administrator.


text:
    Lorenzo B. Clark, Respondent, v. Willis S. Nelson, as President, etc., Appellant.
   Judgment affirmed, with costs.


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

text:
    Peter Harper, Respondent, v. George D. Sherman, and La Fayette Sprague, Appellants.
   Judgment affirmed, with costs. Mem. by

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


text:
    The People of the State of New York ex rel. Napoleon X. Archambault, Respondent, v. The Board of Supervisors of the County of Ulster, Appellant.
   Order affirmed, with ten dollars costs and printing disbursements, on authority of People ex rel. Baker v. Supervisors (9 Hun, 440), and action continued to the Court of Appeals.


text:
    Cornelius Fonda, Landlord, etc., Respondent v. Frank S. Peters, Tenant, etc., Appellant.
   Appeal dismissed, with ten dollars costs and printing disbursements.


text:
    Jacob H. Clute, Respondent, v. Elizabeth Crounse, Appellant.
   Order affirmed, with ten.dollars costs and printing disbursements.


text:
    Elizabeth Fish and Frothingham Fish, Administrators, etc., Appellants, v. E. Judson Hawley, Respondent, Impleaded, etc.
   Order affirmed, with ten dollars costs and printing disbursements.

Landon, J., not acting.


author: Davis, P. J. :

text:
    JOSEPH HART and Another, Plaintiffs in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendant in Error.

      Advertisement of lotteries — the act prohibiting it is not unconstitutional — 1 M. 8., 665, sec. 28 • — • Constitution, o/rt. 1, sec. 8.
    Section 28 of 1 Revised Statutes, 665, provides that “no person shall by printing, writing, or in any other way, publish an account of any such illegal lottery, game or device, stating when and where the same is to be drawn, or the prizes therein, or any of them, or the price of a ticket or share therein, or where any ticket may be obtained therein, or in any way aiding and assisting in the same.”

      Held, that the words “an account” were modified and controlled in their signification by the language which followed them; that the statute prevented the publication of such accounts only as were intended to operate as advertisements or notices of illegal lotteries, and to aid and assist them; that it did not prevent the publication by any newspaper, as a matter of news, of any narrative or statement showing the existence of an illegal lottery and where the same is carried on, for the purpose of denouncing and exposing the same, though such narration or statement may contain any of the several particulars mentioned in the statute, and that it does not therefore conflict with section 8 of article 1 of the Constitution declaring that every citizen may freely speak, write and publish his sentiments on all subjects.
    Writ of error to tlie Court of General Sessions of the city and county of New York, to review its judgment upon a demurrer to an indictment.

      Wm. F. Howe and Louis F. Post, for the plaintiffs in error.

      Dcmiél G. Rollins, for the defendant in error.
   Davis, P. J. :

The plaintiffs in error were indicted for printing and publishing in the newspaper called “ Truth ” an advertisement of a certain illegal lottery called “ The Louisiana State Lottery,” purporting to be set on foot and conducted by the Louisiana State Lottery Company, which advertisement sets forth when and where the lottery* or the prizes therein were to be drawn, the price of tickets, and where the tickets could be obtained in the city of New Orleans and also in the city of New York, and where information in reference to the lottery company would be given. The indictment was based upon the twenty-eighth section of the statute entitled “ Of raffling and lotteries,” which is as follows:

“Section 28. No person shall by printing, writing, or in any other way, publish an account of any such illegal lottery, game or device, stating when and where the same is to be drawn, or the prizes therein or any of them, or the price of a ticket or share therein, or where any ticket may be obtained therein, or in any way aiding and assisting in the same. Whoever offends against this provision shall be deemed guilty of a misdemeanor; and on conviction, be subject to a fine not exceeding one hundred and fifty dollars, or to imprisonment not exceeding three calendar months.” (1 P. S., 665, § 28.)

The indictment alleges the publishing of “ an account,” describing the same substantially in the language of the statute, and then sets forth the advertisement at length and in full, as the account so published. The plaintiffs in error demurred to the indictment, and the district attorney joined in demurrer. The court overruled the demurrer and rendered judgment against the plaintiffs in error* imposing on each of them a fine of fifty dollars.

The section of the statute under which the indictment was found in this case, and similar sections of the same statute, have on several occasions been before the courts for consideration upon similar indictments. In The People v. Sturdevant (23 Wend., 418) it was held that the several provisions of the statute apply to all lotteries,. whether set on foot in this or some other State or country, so far as relates to the selling of tickets or the publishing of an account of any lottery within this State. In The People v. Charles (3 Denio, 212) it was held that publishing in this State an account of a lottery to be drawn in another State or country is indictable under the statute, though the lottery be lawful in the place where it is drawn; and that if an advertisement so published be set forth in hcee verba in the indictment, and it shows that the lottery was made for the purpose of disposing of money or property, the indictment will be sufficient, though the object of the lottery is not otherwise averred. This judgment was affirmed by the Court of Appeals in respect to all of the questions considered by the court below. (Charles v. People, 1 N. Y., 180.) It must therefore be considered as settled by authority in this State that an indictment will lie for publishing and printing such an account as is prohibited by section 28 of the statute.

But the precise question now presented was not raised in the cases above cited. It is now insisted that section 28 of the statute against lotteries is unconstitutional because in conflict with and violative of the provisions of the Constitution designed to secure the liberty of the press.

The Constitution of this State, by section 8 of article 1, declares that “ every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right, and no law shall be passed to restrain or abridge the liberty of speech or of the press.”

An ingenious argument is made by the learned counsel for the plaintiffs in error, based upon the meaning of the words an account,” contained in section 28. It is insisted that the effect of the section is to forbid the publication by any newspaper, as a matter of news, of any narrative or statement showing the existence of an illegal lottery, and where the same is carried on, for the purpose of denouncing and exposing the same, when such narrative or statement happens to contain any of the several particulars mentioned in the statute; and that, inasmuch as it embraces such a publication, the statute is void under the Constitution, because it operates to restrain or abridge the liberty of the press to publish as matter of news violations of law, or to expose or condemn them. But we think that the statute is not aimed at publications of the character mentioned, and that they are not embraced within its penalties, unless resorted to for the purpose of accomplishing the acts forbidden by the statute.

The language of section 28 is: “ No person shall, by printing, writing or in any other way, publish an account of any such illegal lottery, game or device, stating when and where the same is to be drawn, or the prizes therein or any of them, or the price of a ticket or share therein, or where any ticket may be obtained therein, or in any way aiding or assisting in the same.”

The words an account ” are clearly modified and controlled in their signification by the language which follows them, and the manifest purpose of the statute is to prevent publications to a.id and assist lotteries by publishing accounts to operate as advertisements or notices of illegal lotteries, and to point out in some form when the same are to be drawn, or the prizes therein, or the price oí tickets or shares, or where tickets may be obtained, or in some other way to aid and assist them. The character of the prohibited account is thus distinctly defined, and is shown not to mean an editorial or other commentary upon the law or its violation, or one pointing out offenders and condemning their conduct, or a mere narrative of such violations as matter of news. Under this construction the supposed restriction of the liberty of the press does not exist. And although the word “ account ” might in one of its significations be held to include the just and wholesome criticisms of the press condemning and exposing violations of the law, yet when its true meaning is discovered by its immediate context, courts are not required to fasten upon the other sense as a reason for overthrowing a salutary statute. Lotteries are expressly forbidden by the provi- ■ sions of the Constitution. J3y section 2, article 7.of the Constitution of 1821, it was declared that no lottery should thereafter be authorized in this State, and that the legislature shall pass laws to prevent the sale of all lottery tickets within this State, except in lotteries already provided for by law. In 1833 all lotteries were declared unlawful and made public nuisances (Laws of 1833, chap. 306, p. 484), and by section 10 of article 7 of the Constitution of 1846 it was pi’ovided that no lottery should thereafter be authorized or the sale of lottery tickets allowed in this State. The provisions of the Constitution imposed upon the legislature the duty of providing for their enforcement, and laws intended for that purpose cannot properly be deemed unconstitutional if their scope and object be limited to the prevention of acts inhibited by the Constitution itself.

An act of the legislature to prevent the press from discussing the legality or propriety of lotteries, or from exposing their existence as violations of law, and calling the attention of the public authorities to them, or criticising the acts or neglect of public officials in regard to enforcing the laws against them, would be violations of the constitutional rights and liberties of the press. But it is a very different thing to prohibit the publication of accounts, or notices or advertisements which are designed to aid and assist in the promotion of lotteries, by informing persons desirous of engaging in such enterprises where such lotteries are to be drawn, what are the prizes therein, what are the prices of tickets or shares and where tickets may be obtained, or otherwise aiding and assisting the unlawful act of maintaining and carrying on such violations of the statute.

Since lotteries are regarded as public evils, in their nature so injurious as to require express constitutional prohibition, there can hardly seem to be a doubt that laws in aid and execution of the provisions of the Constitution cannot properly be pronounced by the courts repugnant thereto and therefore void.

We are of opinion, therefore, that the judgment of the court below in overruling the demurrer was right and should be affirmed.

Brady and Daniels, JJ., concurred.

Judgment affirmed.