author: Davis, P. J.:

text:
    In the Matter of WALTER BRADY, an Imprisoned Debtor.

      Discharge from imprisonment — meaning of “just and fair ” —what must be shown to prevent discharge — 2 R. S., chapter 5, title 1, article 6.
    Under tlie provisions of the act providing for the discharge of imprisoned debtors, it is sufficient to prevent the discharge of a debtor if it be shown that he has been guilty of the acts which he is required to negative by the form of oath prescribed by section 5 of said act.
    It sufficiently appears that the proceedings of the debtor have not been “ just and fair ” within the meaning of section 8, if it be shown that he has disposed of, or made over any part of his property with intent to injure or defraud any of his creditors, although such acts were committed before the commencement of the action on which he is imprisoned, provided they are shown to be so far connected with the action, as to be the grounds upon which the order for his imprisonment was based.
    It is not necessary that it should be shown that the petitioner was, at the time of the application for a discharge, concealing or attempting to conceal property, or had then in his possession or under his control any property or rights which he then secreted, or had secreted, in contemplation of such proceedings.
    Appeals by two opposing judgment creditors from the order of the Special Term granting to the petitioner a discharge from imprisonment, under chapter 5, title 1, article 6 of part 2 of the Revised Statutes.

      George W. Van SlycJe and Freling FI. Smith, for the appellants.

      Thomas M. North and J. Langclon Ward, for the respondent.
   Davis, P. J.:

The respondent was imprisoned on two executions issued upon judgments severally recovered by the appellants. He was arrested in each of the actions upon orders obtained upon affidavits alleging that he had disposed of his property with intent to defraud his creditors. Motions in each of the actions to vacate such orders of arrest, founded upon affidavits, were made and denied, and an appeal was taken from the order of denial in one of such motions, which order was affirmed by the General Term. (Wheeler v. Brady, 2 Hun, 347.) The application for discharge was made under title 1, chapter 5, article 6 of part 2 of the Revised Statutes (2 Rev. Stat., p. 31 [Edm. ed.] ). The fifth section of the statute under which the proceeding is presented requires that an affidavit shall be made, indorsed on the petition and sworn to by the applicant, stating that his petition and the account of his estate, and of the charges thereon, are in all respects just and true, and that he has not, at any time or in any manner, disposed of or made over any part of his property with a view to the future benefit of himself or his family, or with an intent to injure or defraud any of his creditors. The eighth section of the same statute declares, that unless the opposing creditors shall be able to satisfy the court that the proceedings on the part of the prisoner are not just and fair, the court shall order an assignment as aforesaid and grant a discharge as hereinafter directed.” The court granted the order of discharge. The grounds upon which it was granted appear by the opinion of the learned judge, which is as follows:

DoNohue, J. After the most careful examination of the case, it does not appear to me, that there is any evidence to show that the defendant has in his possession or under his control any property or rights which he now secretes, or has secreted in contemplation of these proceedings. His assignment carries with it any right he may have to all his property. I fully agree with Judge ClerKE, in Matter of Latorie. The law did not intend a perpetual imprisonment, if it appeared that the defendant was now concealing or attempting to conceal property, the imprisonment might continue until he did justice, but it does not appear on this evidence, that any further continuance of it can produce any result. I feel myself bound by the case referred to, and order the discharge asked.”

This opinion shows that the order of the court below was granted, because the opposing creditors failed to show that the petitioner was at that time concealing or attempting to conceal property, or had then in his possession or under his control any property or rights which he then secreted or had secreted in contemplation of these proceedings. We think this was altogether too narrow a construction of the statute under which the petition was presented. He was required by the statute to swear that he had not at any time, or in any manner, disposed of or made over any part of his property with a view to the future benefit of himself or his family, or with an intent to injure or defraud any of his creditors. (Sec. 5,ubi'swp.) We think if the opposing creditors succeeded in establishing that this part of the affidavit indorsed upon the petition was not true, they thereby showed that the proceedings of the prisoner were not just and fair within the meaning of the statute.

Such was the construction of the statute in Gale v. Clark, bj Daly, Oh. J. of the Common Pleas, in an opinion reported in The New York Weekly Digest (vol. 1, No. 10, p. 209), in which he held that, “ by the act the applicant is required to swear that he has not parted with or made over any part of his property with intent to defraud any of his creditors.” And he also held that the act of mortgaging pei’sonal property to a brother of the petitioner, before the commencement of the action in which he was imprisoned, with intent to defraud creditors, was a proceeding not just and fair within the meaning of the statute, as construed by the court in the case of Watson (2 E. D. Smith, 429). It is not reasonable to suppose that the legislature would require an imprisoned debtor to take the oath above set forth, and at the same time provide for his discharge, notwithstanding it should be shown by an opposing creditor that such oath was false, because it was not also shown that he had at the time of the hearing, property which he then concealed, or because it was not shown that he had secreted his property with a view to the particular proceeding for his discharge. The intention was we think, as indicated by the form of the oath, to prevent the discharge of a debtor who has been guilty of the acts which he is required to negative by the oath prescribed by the statute; and that it is enough to show that the proceedings on the part of the prisoner are not “ just and fair,” if the creditor establishes on the hearing that the debtor has disposed of or made over any part of his property with intent to injure or defraud any of his creditors, although such acts were committed before the commencemónt of the action in which he is imprisoned, provided they are shown also to be so far connected with the action as to be the grounds upon which the order for his imprisonment therein was based.

This condition of things was shown by the appellants on the hearing of this case. They produced the affidavits upon which the order was made, and those made upon the hearing of the motion to discharge the orders, which showed the grounds upon which the order was made, to wit, the disposing of the property with intent to defraud creditors, and they proved by the petitioner’s own examination that he had made the disposition alleged in those papers, of his property, and showed other transactions relating thereto which we think the court below, if it had considered these acts as within the statute, would undoubtedly have held to have been fraudulent as to his creditors.

The order of the court below was therefore erroneous and must be reversed, with costs of the appeal.

Dahxels, J., concurred.

Order reversed, with costs of appeal.


source: Caselaw Access Project

author: Dayis, P. J.:

license: Public Domain

text:
    MICHAEL DOLAN, Plaintiff, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Defendants.

      Sdla/i'y — action for, by one unlawfully kept out of office — liability of city for payment.

    On tlie last of December, 1873, the plaintiff, assistant clerk of one of the District Courts of New York, was removed from that office by the justice of the court and one Keeting appointed thereto, who thereafter occupied the office and discharged the duties thereof until March, 1874, when the plaintiff was restored oy virtue of a judgment of ouster obtained by him. The salary established by law was paid to Keeting from January, 1878, to December, 1873; that due for ' the months of December, 1878, and January and February, 1874, still remained in the hands of the defendant.
    In an action by the plaintiff to recover the salary from January, 1873, to March, 1874, helé, that he was only entitled to recover so much thereof as remained in the hands of the defendant; that his remedy for so much as had been paid to Keeting was against the party who committed the wrong by removing and excluding him from the office.
    MotioN for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict directed in favor of the plaintiff.

      Nelson J. Waterbury, for the plaintiff.

      William G. Whitney, for the defendant.
   Dayis, P. J.:

The facts of this case are as follows : The plaintiff on the 24th day of May, 1872, was appointed to the office of assistant clerk of the Sixth Judicial District Court of the city, by Thaddeus IT. Lahe, justice of said court. He entered upon and performed the duties of that office, up to and including the last day of December 1872. On that day, Justice LaNe, removed the plaintiff from said office and appointed one Francis T. Keeting thereto. On the 1st day of January, 1873, Keeting entered upon, and continued to occupy said office, and perform the duties thereof, until March 1st, 1874. On the 1st day of March, 1874, the plaintiff again came in possession pf the office by virtue of a judgment of ouster obtained by him against said Keeting, in an action of quo warranto. The salary of the office was paid to Keeting, from the 1st day of January, 1873, to the first day of December, of that year. The salary for December, 1873, and January and February, 1874, has not been paid to any person. The plaintiff, while Keeting was in possession, and performing the duties of the office, proffered his services to the clerk of the court from time to time which were refused. The salary of the office was fixed at $4,000 per annum, payable in monthly installments. It was admitted that the salary for the months of December, 1873, and January and February, 1874, with interest, amounted to $804.40. Upon these facts the defendants’ counsel requested the court to direct a verdict in favor of the defendants. The court refused and the defendants’ counsel duly excepted. He also requested that judgment be directed for the plaintiff for $804.40, which was refused and an exception duly taken. The court then directed the jury to render a verdict in favor of the plaintiff for the whole amount of the salary from January, 1873, with interest, amounting to the sum of $3,664.40. Defendants’ counsel excepted to such direction, and the court directed the exceptions to be heard at the General Term in the first instance, and in the mean time suspended the judgment.

The question whether the plaintiff can recover for the period during which Keeting was in possession of the office, under the appointment made by Justice LANE, and performed its duties and received the salary, seems to be disposed of by the cases of Mc Veary v. The Mayor (1 Hun [8 S. C. N. Y.], 35), and Smith v. The Mayor (37 N. Y., 518). In the case of The People ex rel. Dolan v. Lane (55 N. Y., 217), which was a proceeding by mandamus instituted by the present plaintiff, to compel Justice LaNE to make certificate for payment of his salary as assistant clerk, the court (Rapallo, J.), said : “ The relator has been actually excluded from the office which he claimed, and another person installed therein, who has ever since discharged its duties. This has been done under color of law, and the legality of the removal of the relator, and of the appointment of the present incumbent, depends upon the construction of a statute, framed in such ambiguous language, as to render its interpretation difficult. The Special and General Terms of the court below, have differed upon the question.” This remark of the learned judge quite justifies us in holding that Keeting was in possession of the office under color of law, and must be regarded as an officer defacto. The exclusion of the plaintiff in this case, from the'office, was not an act of the defendants nor of persons under their control, and it was not the duty of the defendants before paying the salary to Keeting, to test by legal proceedings the' validity of his appointment. They found him in possession of the office and performing its duties by an appointment made under color of law; and under the principles laid down in the cases above cited, they were justified in paying to him the salary pertaining to the office. The remedy of the plaintiff) so far as respects the salary thus paid, must be against the party who committed the wrong by his removal and exclusion.

In respect to the three months for which no payment has been made by the city, a different rule may properly be applied. The title to the office has now been adjudicated by a direct proceeding for that purpose to which the defendants were parties. The payment to Keeting now made, would be with notice that he was an usurper without legal title to the office, and it is clear that Keeting can maintain no proceeding against the city to enforce such payment. We are of opinion, therefore, that the plaintiff is legally entitled to the salary remaining' unpaid. The verdict should have been for the sum admitted on the trial to be due and unpaid for the months of December, January and February, amounting, with interest as admitted, to $804.40.

The motion for new trial must therefore be granted, with costs .to abide event, unless plaintiff stipulate to reduce the verdict to $804.40, with costs; in which case the motion will be denied without costs to either party.

Daniels, J., concurred.

Motion for new trial granted with costs to abide event, unless plaintiff stipulate to reduce verdict to $804.40, with costs, in which case motion denied without costs to either party.


author: Davis, P. J.: DaNiels, J.: BRAdy, J.

text:
    PATRICK H. DREW, Plaintiff, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, Defendants.

      Receipt — ignorance of its contents — acts of receiptor inconsistent with knowledge thereof — evidence—action for salacp.

    The plaintiff was formerly employed to sweep the markets in the city of New York, at sixty dollars per month. Subsequently, the comptroller reduced the pay to fifty dollars per month. This action was brought by the plaintiff to recover the difference, to which he claims to be entitled. Upon the trial, pay rolls signed by the plaintiff, by making his mark, were put in evidence, vVhich stated that the wages were $600 per annum, and containing a receipt in full payment of all services rendered. Plaintiff offered to show that at the time of signing the pay rolls a suit was pending, brought by him to recover the additional ten dollars per month for services previously rendered, in order to show that he was not aware of, and did not assent to the statements contained in the pay rolls. Reid, that the evidence was properly rejected. (Brady, J., dissenting.)
    MotioN for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the defendants directed by the court.
    This action was brought to recover the amount of certain balances claimed to be due on account of the monthly wages of the plaintiff, as sweeper in the public markets of the city of New York. The rate of wages originally fixed by ordinance or resolution of defendants was sixty dollars per month. Plaintiff received sixty dollars per month for such services from defendants up to the time when the claim in this action begins, November 1, 1872, part of such amount, however, being collected by suit against the city, which would appear from the ease to be the suit of which the plaintiff, as hereinafter stated, offered to show the pendency. From that time and during all the time mentioned in the complaint, the plaintiff was paid only fifty dollars a month for the same services, and at the time of each payment he signed a pay roll containing a receipt in full in the following form: “Received from Andrew H. Green, comptroller, the sum hereunder placed opposite my name; in full payment for services rendered by me in the capacity and for the period embraced in this pay roll.” At the foot of the receipt was stated: “Rate per an., $600. Amount, $50.” Defendants denied that there was any more due plaintiff for such services than had been paid, and allege that the plaintiff agreed to take fifty dollars a month for such services. For the purpose of showing that the plaintiff did not agree to receive fifty dollars a month, plaintiff offered to prove that during the time covered by the complaint, he had a suit pending against the defendant to recover a like balance of wages, accrued prior to November, 1872. The cause was tried at Supreme Oourt Circuit, and the court directed the jury to find a verdict for the defendants, to which direction the plaintiff then excepted. The court also directed that the exceptions be heard in the first instance at the General Term, and that judgment in the mean time be suspended.

      Henry Parsons, for the plaintiff.
    The legal right of plaintiff to the balance, ten dollars a month, existed at the end of each month, and the same could only be extinguished by payment or by a technical release under seal. (Ryan v. Ward, 48 N. Y., 204 ; Seymour v. Mi/nturn, 17 Johns., 169; Mechanic^ Panic v. Hazard, 13 id., 353; Blum v. Hartman, 3 Daly, 47; McKnight v. Dunlop, 1 Seld. [5 N. Y.], 537; Acker v. Phoeni®, 4 Paige, 305 ; Cumber v. Wane, 1 Smith’s Leading Cases, p. 439, and notes.) A receipt in full of a sum less than the amount due, in no way discharges the right to recover the balance, and cannot be construed as a contract to accept a less sum thereafter: it is merely a declaration of a fact. {Ryan v. Ward, 48 N. Y., 204; McDougal v. Cooper, 31 id., 498; Hendrieksen v. Beers. 6 Bosw., 639 ; 1 Green!. Ev., § 212 ; Dederiek v. Lemam, 9 Johns., 333; Williams v. Carrington, 1 Hilt, 515; Seymour v. Minturn, 17 Johns., 169; Mechanics’ Bank v. Hazard, 13 id., 353 ; Cumber v. Wane, 1 Smith’s Leading Cases, p. 439, and notes; Geary v. Page, 9 Bosw., 290.) The receipt can be explained or controverted. (Buswell v. Pioneer, 37 N. Y., 312; FilTcins v. Wayland, 24 id., 338; McDougal v. Cooper, 31 id., 498; Coon v. Knapp, 4 Seld., 402; Kellogg v. Pickards, 17 Wend., 116; Tobey v. Barber, 5 Johns., 68.)

      James C. Carter, for the defendants.
   Davis, P. J.:

The court below committed no error in directing a verdict for the defendant. The plaintiff proved no express contract to pay him sixty dollars per month for his services as street-sweeper. He proved that in 1866 the common council passed a resolution fixing the compensation of sweepers employed in the markets at sixty dollars per month, and that in 1867 the then comptroller, Conolly, directed him to go to work as such sweeper, and that he was paid, for a certain period, at the rate of sixty dollars per month. This showed an implied contract to pay him at that rate. But the plaintiff further showed that he was subsequently paid at the rate of fifty dollars per month, and that, from month to month, for. the whole period covered by his claim in this suit, he signed monthly receipts contained in the pay roll of the bureau of markets, in which his wages were set down at $600 per annum for his services as sweeper, and acknowledging the receipt from the comptroller of fifty dollars in full payment for services rendei’ed by him in the capacity of sweeper for the period of the month embraced in each pay roll. This certainly overcame the presumption of a contract to pay sixty dollars for the same period, and showed, by strong inference at least, a contract for fifty dollars per month, or, rather, at $600 per annum, payable monthly. The plaintiff was an illiterate man, and signed the pay roll by making his mark, but he knew what amount of money he got, and that lie gave a monthly receipt, and he made no demand for more, but went on working, and receiving that sum, and signing such receipts during the whole several months covered by his complaint. His assent to the price and terms must be assumed, under such a state of facts, on the production of monthly receipts in full, each stating the rate of compensation per year, and the amount per month at such rate. The court was clearly right in directing a verdict upon such a state of facts.

The only other question is upon an exception to the exclusion of evidence. The plaintiff offered to show that during the time covered by the complaint he had a suit pending against defendant to recover a like balance of wages accruing prior to November, 1872.

This evidence was rightly rejected. It did not change the contents of the receipts given, nor tend to show that plaintiff acted under any mistake as to what he was doing in giving monthly receipts in full. On the contrary, it would tend to show that there was a dispute pending as to the amount of his claim, in full knowledge of which he gave and continued to sign and give the receipts in full at fifty dollars per month, and in that view he should be regarded as adjusting a disputed claim on the terms expressed in the pay roll and receipt.

His own previous declaration that he demanded a balance for former services was not competent, and that was all the fact that he had a suit pending for such services tended to prove in his behalf. His declaration touching such service was not admissible to counteract the effect of his receipts, or overcome the presumptions that legally arise from his subsequent transactions.

There are, in my opinion, no grounds for a new trial, and the motion must be denied, with costs.

DaNiels, J.:

I think that the exclusion of the evidence offered, to show that plaintiff had another action pending for a similar claim accruing before November, 1872, was proper.

If he made no agreement to receive sixty dollars a month he should have offered proof of that fact. The acceptance and receipt for the amount was strong evidence to the contrary. It was the adjustment of a disputed claim and for that reason binding.

A new trial should be denied.

BRAdy, J.

(dissenting):

This action was brought to recover balances claimed to be due on account of the monthly wages of the plaintiff, as a sweeper in the public markets of the city of New York.

The common council, by resolution approved March 20th, 1866, declared the compensation of. these sweepers to be at the rate of sixty dollars per month, and that sum was paid up to the 1st November, 1872, and until December 24, 1873, when fifty dollars only was paid, although no change had been made in the rate of compensation thus established by the resolution mentioned.

On the day last mentioned, namely, the 24th December, 1873, the comptroller, by virtue of the authority conferred by section 28 of chapter 335 of the Laws of 1873, fixed the compensation at $600 per annum, fifty dollars per month. When the payment was made on the first of November, and at all payments subsequent thereto, the plaintiff signed a pay roll in which the rate per annum was stated to be $600, and which contained a statement that it was received in full payment for services rendered in the capacity and for the period embraced in the pay roll. The roll was signed by the plaintiff by making his mark, from which it is to be presumed that he could not write his name. It did not appear whether he could read or not, or whether he had in any way been advised of the contents of the paper he signed beyond its being a receipt for the money given him. In answer to this evidence the plaintiff offered to prove, that during the time covered by the complaint, and at the time when the plaintiff was reappointed by Comptroller Green, in February, 1873, he had a suit pending against the defendant to recover a like balance of wages accruing prior to November, 1'872, and stated that such evidence was intended to show that plaintiff had not and did not agree to receive fifty dollars per month as a settlement of all claims against the city for such services, or to accept that sum in the future, which was objected to and it was excluded. The pay roll, as a receipt, was not conclusive upon the plaintiff. He had the right to controvert or explain it (Ryan v. Ward et al., 48 N. Y., 204); but it would seem to be more than a receipt because it contains a statement that the rate of compensation per annum is $600 and the plaintiff could, if he chose to do so, agree to render the services performed by him for that sum. He was unlettered however, and there is no proof on behalf of the defendants that he knew of the contents of the paper, as already suggested, beyond its statement as a receipt for money paid, while on the other hand the offer rejected tended to show that he did not intend to execute a contract but a receipt. In either point of view it was error therefore, to reject the evidence thus offered. If a contract be incorporated in a receipt, especially when the person signing it is unlettered, it is or it should be incumbent on the party seeking to maintain it, to prove that it was so understood, otherwise undue advantage might be taken or frauds perpetrated, which the laws are careful to guard against. If the plaintiff had an action pending against the defendant to recover a like balance of wages prior to November, 1872, and at the time he was reappointed by Comptroller Green, it would be a strong circumstance, not only explanatory of the pay rolls' as receipts, but in favor of the plaintiff’s ignorance of any contact contained in them to do his work for less than sixty dollars per month, which had been paid him, and which he was entitled to receive under the resolution mentioned.

The right of the comptroller to make a more favorable contract for the city cannot be doubted, but the evidence that it was done should be of such strength as to warrant the inference that it was understanding^ made, and if such an issue was presented all testimony having a legitimate bearing on the subject should have been admitted and the question determined.

Whether, in fact, any such contract was made, and, indeed, whether it was contended on the part of the defendant to have been made, does not distinctly appear. The paper signed by the plaintiff was, in its general characteristics, a receipt only, and was apparently regarded as such on the trial, and if so, the explanatory evidence could not be rejected, as already shown.

A new trial must be therefore ordered, when the issues, whatever they may be, can be fully examined and disposed of, because unless a different contract was made the plaintiff was clearly entitled to the compensation which the defendants declared by resolution should be his, and which was notice to all the employes named or to be selected.

New trial ordered, with costs to abide event.

Motion denied, with costs.


text:
    MICHAEL McPARLIN and others, Respondents, v. EBEN M. BOYNTON, Appellant.

      Warranty — Inspection of goods before delivery — effect of — Penalty.
    Where parties stipulate that articles to he manufactured shall he of a particular kind and quality, and at the same time stipulate that they shall he tested hy some person selected hy the purchaser before delivery, to ascertain whether they are of the specified kind and quality, and such test is in fact made hy him, and the goods are thereupon delivered and accepted, there is, in the absence of fraud and collusion between the manufacturer and the person selected to test the goods, no remedy hy action upon the contract, even though the goods, or some portion of them, are subsequently ascertained not to he equal to the warranty.
    The plaintiff agreed, in writing, to manufacture for the defendant certain saws of the “ best cut steel, hardened and tempered, carefully ground to three gauges thin on hack and filed, set and warranted best in every particular. The saws to he tested hy your man employed for the purpose of filing and finishing-same.” Held, that .the defendant having appointed a man to test the saws in pursuance of the contract was bound by his decision, and could not thereafter set up a breach of the warranty as a defense to an action for the purchase-price.
    The contract further provided, that “ all saws not taken by you in sixty days from completion of their manufacture we shall charge thereon interest at the rate of ten (10) per cent per annum.” Held, that this meant that if, for any'reason, defendant was not in readiness to receive the saws within sixty days, and their delivery was thereby postponed beyond that period, he should pay ten per cent for the period that might elapse between the expiration of sixty days from manufacture and the time of delivery.
    ■Appeal from a judgment in favor of the plaintiff entered upon the report of a referee.

      Erastus New, for the appellant.
    A vendee, in an executory contract of sale, with an express warranty as to the quality of the article contracted for, upon receipt of the article and subsequent discovery of a defect covered by the warranty, is not bound to return or offer to return the article, but may retain and use it, and have his remedy on the warranty. (Dounce v. Dow, 57 N. Y., 16 ; Parle et al. v. Morris Axe, etc., Go., 54 id., 586 ; Day v. Pool, 52 id., 416 ; Foote v. Bentley, 44. id., 166 ; Muller v. Eno, 14 id., 598; Hoe v. Sanborn, 21 id., 553.) It seems to be the settled law in this State, that where there is an express warranty, and no fraud, the vendee cannot rescind and return the property, but his only remedy is on the warranty. (Parle v. Morris Tool Qo., 54 N. Y., 587; Day v. Pool, 52 id., 416 ; Reed v. Randall, 29 id., 358 ; Muller v. Fho, 14 id., 597.) The rule which excepts a patent defect from the operation of a general warranty does not apply where the wai1-ranty is specific, nor where the article sold is not in existence, and cannot.be seen by the vendee at the time of making the agreement of warranty. (Dounoe v. Dow, 57 N. Y., 16; Parle v. Morris Tool Go., 54 id., 586 ; Day v. Pool, 52 id., 416; Foote v. Bentley, 44 id., 166 ; Muller v. Eno, 14 id., 598 ; Ghatfield v. Frost, 3 N. Y. S. 0., 359 ; Birdseye v. Frost, 34 Barb., 367 ; Chitty on Cont., [11th Am. ed., vol. 1], 644; Benjamm on Sales, 535 ; Parsons on Cont., vol. 1, 576, n. h.)

      0. Bainbridge Smith, for the respondents.
   Davis, P. J.:

This is an action to recover a portion of the price agreed to be paid for a large number of saws manufactured by the plaintiffs for the defendant in the years 1867 and 1868. There is substantially no dispute in the case as to the quantity manufactured, the price to be paid, nor as to the delivery of the saws, nor do we think there is any question left for our consideration after the findings of the referee upon the conflicting evidence touching any of the saws except those manufactured under an agreement in writing bearing date July 1st, 1867. That agreement is-contained in° a letter written by the plaintiff to the defendant, and is in the following words:

July lsi, 1867.
E. M. BoyNtoN, Esq.:
Dear Sie.— ¥e enter your order of this date for 1006 cross-cut saws of your patent, viz.: 100 — 6, 100 — 6-¿-, 400 — 7,100—71¿, 6 — 8 feet, at seventy cents per foot to 7 feet, all over 7 feet to 8 feet, 5 per cent advance. Boxing and dray added, payable within sixty days of each invoice delivered at Hamilton, O., then shipped as directed by you. These saws are to be made of Wm. Jessop & Son’s best cross-cut steel, hardened and tempered, carefully ground to three gauges thin on bach, and filed, set, and warranted best in every particular. The saws to be tested by your man employed for the purpose of filing and finishing same, we to furnish room and bench for his use at our shop free, you to furnish him the necessary tools for his work, and in case of your absence will act for you in the payment of his wages from any moneys you may send us at the rate of $2.50 per day. And all saws not taken by you in sixty days from completion of their manufacture we shall charge thereon interest at the rate of ten per cent per annum.
Truly yours,
WOODROTTGH & MoPARLIN.

The plaintiffs manufactured and delivered to the defendant the number of saws of the sizes and kinds required by this contract. The evidence tends to show and there can be little doubt that a very considerable number of the saws so manufactured turned out to be badly tempered, and in consequence soft and useless for the purpose for which they were intended. Many of them were after-wards retempered by the plaintiffs at the expense of the parties from whom they were received, or of defendant, and many others remained on hand undisposed of which were not retempered. The question as to the kind and quality of the steel of which these saws were manufactured, on which the evidence was conflicting but decidedly preponderating in favor of the plaintiffs, was disposed of favorably to plaintiffs, and as we think properly, by the referee. There can be no doubt that the contract contains an express warranty of the saws, upon which the defendant would in the absence of other provisions in the contract be entitled to a recoupment of damages in this action. The warranty is in these words : These saws are to be made of William Jessop & Son’s best cross-cut steel, hardened and tempered carefully, ground to.three gauges thin on back, and filed, set, and warranted best in every particular.”

It is claimed by the defendant that this warranty was broken in three particulars: First, as to the kind of steel used; second, as to the hardening and tempering of the saws ; and, third, as to their being ground to three gauges thin on the back.

The first of these was disposed of by the finding of the referee above referred to, None of then} however, can be disposed of by tbe mere fact that the’ defendant received and sold or used the saws. He had the right to receive them relying upon the warranty, and relying upon his remedy for its breach if it turned out that the warranty was broken. (Dounce v. Dow, 57 N. Y., 16; Parks v. Morris Ax Co, 54 id., 586 ; Day v. Pool, 52 id., 416; and cases cited by these authorities.) Nor can the plaintiffs escape responsibility on the ground that the defect in temper and in thickness were easily discoverable by experienced persons by the use of proper instruments or appliances. These were not of the character of patent defects to which warranties are not applicable. The defendant is therefore entitled to a new trial in this case unless he is precluded from asserting the warranty by certain other provisions of the contract. Immediately following the warranty above quoted, the contract contains these words: “ The saws to be tested by your man employed for the purpose of filing and finishing same, we to furnish a room and bench for his use at our shop, free, you to furnish him the necessary tools for his work.” This raises the question whether the parties have not, by the express terms of the contract, provided a means for determining before delivery whether or not the saws to be manufactured were of the kind required by the contract in conformity to the warranty. It was very clearly in their power to make such an arrangement; and where parties stipulate that articles to be manufactured shall be of a particular kind and quality, and at the same time stipulate that they shall be tested by some person selected by the purchaser before delivei’y to ascertain whether they are of the specified kind and quality, and such test is in fact made by him, and the goods are thereupon delivered and accepted, no remedy by action can be had upon the contract, although the goods, or some portion of them, are subsequently ascertained not to be equal to the warranty. In the absence of fraud and of collusion between the manufacturer and the person selected, his decision upon the test that the articles are such as the contract requires, is conclusive against the purchaser who subsequently receives them. The evidence shows that the defendant sent to the shop of the plaintiffs a person of the name of Carlisle, to act on his behalf under the contract; that he was furnished with a room and bench for his use in the shop of plaintiffs, and such tools as were used by him were furnished by defendant; that be remained while the saws were being manufactured, and that they were sent to his room where he applied or was at liberty to apply such tests as he chose in respect to them. There is conflicting evidence in the case as to whether or not lie had access to the tempering room of the plaintiffs, and gave directions in respect to the tempering of the saws, but on that question the evidence strongly tends to show that he had the fullest opportunities, and did give directions in relation to the tempering, and that the saws all passed through his hands as they were manufactured, and that-some of them were pronounced by him too soft and were returned to the tempering room and again biought to his room for such further process of filing and finishing as he chose to apply. Under this state of facts, we think the referee was right in holding that the delivery of the saws and their acceptance by the plaintiffs, after the action of Carlisle in respect thereto, was a complete performance of the contract, and that no recoupment could be had under the warranty. It would seem, from some of the testimony given, that the defendant supposed that all the duty Carlisle was to perform under the contract related to filing and finishing the saws as they were delivered, from time to time, into his hands; but the contract was in writing. The language is plain, and its construction must be determined by what the writing contains. It says, the saws are to be tested by your man employed for the purpose of filing and finishing same.” All that is said in respect to filing and finishing has only the effect of indicating that the man employed for that purpose shall be the person who is to test the saws. For that person the plaintiffs were bound to furnish a room and bench in their shop free of charge, the defendant to furnish him necessary tools for his work, which work embraces both the testing, and the filing and finishing of the saws. We think the language is hardly capable of another construction. The defendant had the privilege of selecting any person he chose. It was both his interest and duty to select an entirely competent and skillful man. If he failed to do that it was his misfortune or neglect. There can be no doubt that the defendant was not bound to take any of the saws rejected by the person he employed for not coming up to the requirements of the contract in any respect. It is more than probable that the defendant selected an incompetent man, but as all the saws, as they were made, were delivered into his hands and passed upon by him, and subsequently delivered to the defendant, no remedy remained for lack of compliance with the contract, unless on some ground of fraud, which is not alleged. The result of this view of the contract is, that the conclusion of the referee as to the liability of the defendant for the saws manufactured is correct; and his finding that the defects were readily discoverable by the use of certain appliances, becomes immaterial.

The referee has found a balance due from the defendant to the plaintiff of $1,705.24, with interest thereon at the rate of ten per cent from the 17th of November, 1868. He bases the right to recover interest at the rate of ten per cent upon this clause of the contract: And all the saws not taken by you in sixty days from completion of their manufacture, we shall charge thereon interest at the rate of ten per cent per annum.” The previous clause of the contract provides that the price of the saws, adding boxing and drayage, shall be payable within sixty days of each invoice delivered at Hamilton, Ohio. The clause imposing interest at ten per cent applies, in express terms, only to saws not taken by the defendant in sixty days from the completion of their manufacture. The evidence shows that all the saws were taken by the defendant within sixty days from the completion of their manufacture. The clause is somewhat difficult of construction, but as ten per cent is imposed in some sort as a penalty, we are inclined to think it should be strictly construed in favor of the defendant, and held to mean, that if, for any reason, he was not in readiness to receive the saws within sixty days, and their delivery was thereby postponed beyond that period so that the sixty days’ time for payment would not commence to run by reason of non-delivery, he should pay ten per cent for the period that might elapse between the expiration of sixty days from manufacture and the time of delivery. Under that construction the case shows nothing to which the penalty of ten per cent could be applied. The rate of interest should, therefore, have been, in the absence of proof of the legal rate in Ohio, in accordance with the legal rate of our own State. (Leavenworth v. Brockway, 2 Hill, 201; City Savings Bank v. Bidwell, 29 Barb., 325 ; and see note “ A ” to Leavenworth v. Brockway, supra.)

Judgment must be reversed and new trial granted, with costs to abide event, unless plaintiff stipulates to reduce the amount allowed for interest by deducting therefrom $295.55, within twenty days after entry of order, in which case judgment is affirmed for the residue without costs of appeal to either party.

Daniels and Brady, JJ., concurred.

Judgment reversed, new trial ordered, costs to abide event, unless plaintiff stipulates to reduce amount allowed for interest by deducting therefrom $295.55, within twenty days after entry of order, in which case judgment affirmed for residue, without costs of appeal to either party.


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    MYRICK PLUMMER and others, Respondents, v. E. P. BELDEN, Appellant.

      Examination of pa/rty before trial — Attorney — entitled, to notice— Code, § 391.
    Where a party, required to attend before a judge or referee to be examined as a witness, in pursuance of section 391 of the Code, has appeared in the action by an attorney, notice of the examination should be served upon the attorney as well as upon the party.
    Appeal from an order of the Special Term, granting an attachment against the appellant for not appearing to be examined as a witness before a judge of the court, under section 391 of the Code.

      H. Brewster, for the appellant.

      John H. Hull, for the respondents.
   Davis, P. J.:

The only point in this appeal is, whether the attorney of the party is entitled to notice of his examination as a witness in the cause, when summoned for the purpose under the provisions of section 391 of the Code. The provisions of the Code on the subject of such examination of a party are as follows:

“ § 391. Tbe examination, instead of being had at the trial as provided in the last section, may be had at any time before the trial at the option of the party claiming it, before a judge of the court or a county judge, on a previous notice to the party to be examined, and any adverse party, of at least five days, unless for good cause shown the judge order otherwise: But the party to be examined shall not be compelled to attend in any other county than that of his residence, or where he may be served with a summons for his attendance.
“ § 392. The party to be examined, as in the last section provided, may be compelled to attend in the same manner as a witness who is to be examined conditionally; and the examination shall be taken and filed by the judge in like manner, and may be read by either party on the trial.”

The proceedings to compel the attendance of a party for examination under these sections, are to be the same as in the case of a witness who is to be examined conditionally under the provisions of the Revised Statutes. (2 R. S., 392.) An order of the judge is therefore to be obtained upon affidavit and served with the summons for the appearance of the party at the time and place specified in the order. (§§ 3 and 10 of the statutes above cited; Greene v. Herder, 7 Robt., 455 ; S. C., 30 How., 210 ; Central National Bank of N. Y. v. Arthur, 2 Sweeney, 194; Garighe v. Losche, 6 Abb., 284, n.; Hewlett v. Brown, 7 id., 74; S. C., 1 Bosw., 655 ; Draper v. Henningsen, 1 id., 614; 2 Wait’s Prac., 713.)

The provisions of the statute were, when the same were enacted, applicable only to the examination of witnesses and not of parties to actions, and after issue joined in an action no examination of a witness could be had under this section without notice to the attorney of the opposite party.

No express provision is contained in the sections of the Code above cited for notice of such examination to the attorney of the party to be examined, but as an order for such examination is necessarily one made in the suit, we think the better practice requires, that if the party to be examined has appeared in the action by attorney, a copy of such order should be served upon the attorney as well as upon the party. Section 417 of the Code requires that where a party shall have an attorney in the action, the service of papers shall be made upon the attorney instead of the party. But that provision does not apply to the service of the summons or other process for the commencement of an action, nol to any paper to bring a party into contempt. (§ 418 of the Code.) Nor does it excuse notice to the party personally, where, as in section 391, notice to such party is expressly required.

The cases are, to some extent, in conflict on the question whether notice should also be given to the attorney; but as the testimony taken is to have the same effect as though taken upon the trial of the issue, and may be used by either party upon such trial, we think the opportunity for the attorney of the party to appear and cross-examine the witness should be secured by requiring notice to be served upon him, and we see no reasons why the several sections of the Code above cited may not properly be so construed as to allow that course to be the established practice.

We think the order of the court below granting the attachment should, therefore, be reversed; but, as the question is one not heretofore clearly settled by the authorities, the reversal should be without costs to either party.

Daniels and Beady, JJ., concurred.

Order reversed without costs to either party.


text:
    In the Matter of the Petition of THE NEW YORK PROTESTANT EPISCOPAL PUBLIC SCHOOL to Vacate Assessments, etc.

      Aaaéaament — when vacated under chap. 580 of 1872
    Under tie provisions of chapter 580 of 1872, providing that no assessment shall be set aside except in cases in which fraud is shown, a mere defect of authority in the officer contracting for the work is not sufficient to authorize the court to vacate the assessment. Accordingly, upon an application to vacate an assessment on the ground that the commissioner of public works had no authority to make the contract for the work, without a previous resolution of the common council, MU, that whether or not he had authority so to do was immaterial, as a mere defect therein would not authorize the court to vacate the assessment.
    Appeal from an order of the Special Term dismissing a petition to vacate an assessment.

      George 0. Genet, for the appellant.

      Hugh L. Cole, for the respondent.
   Davis, P. J.:

The petition in this case seeks to vacate assessments levied for sewers constructed under contracts made by William M. Tweed, late commissioner of public works. No fraud is alleged or shown, and the principal question presented is, whether the commissioner had power to make such contracts for the construction of sewers without a previous resolution of the common council of the city.

It does not seem to be necessary to pass upon the question of such power, because by section 7 of chapter 580 of the Laws of 1872, it is enacted that “ no assessment hereafter made or imposed, or which shall hereafter be made or imposed for any local improvement in the city of New York, shall be vacated or set aside for or by reason of the omission of any officer to perform any duty imposed upon him, or for or by reason of any defect in the authority of any department or officer upon whose action the said assessment shall in any manner or to any extent depend, or for or by reason of any omission to comply with or carry out any detail of any law or ordinance, or for or by reason of any irregularity or technicality, except only in cases in which fraud shall be shown, and in cases of repavement.” The Court of Appeals, In the Matter of Meyer (50 N. Y., 505), held this section to be constitutional; and amongst other things, in speaking of the section, said : The remedy by petition, under the act of 1858, is preserved, but the grounds for vacating assessments are restricted to actual fraud.” A mere defect of authority, therefore, is not sufficient to justify the court in interfering with the assessment under the act of 1858. The Special Term was therefore correct in dismissing ■ the petition.

We do not consider the question whether the commissioner of public works bad power to make the contract without a previous ordinance or resolution of the common council. The late decisions of the Court of Appeals, in Greene v. Mayer (60 N. Y., 303) and Matter of Blodgett (not yet reported) tend to establish that the power of that officer was independent and unrestricted by resolutions and ordinances.

The order should be affirmed, with costs.

Beaut and Daniels, JJ., concurred.

Order affirmed, with costs.


text:
    CHARLES E. HILL, Respondent, v. NEWICHAWANICK COMPANY, Appellant.

      Dividend payable ai future tíme — who entitled to.

    The board of directors of a corporation passed, on January 25, 1878, the following resolution : “At a meeting of the board of directors, held this day, voted to pay a dividend of four per cent this day, and another of like amount at option of agent from earnings of last year.”
    The plaintiff was on that day the owner of certain shares of the company’s stock, then deposited by him as collateral security with a bank, by which they were, in July, sold at private sale. On the 7th of November, .the company’s agent declared the second dividend of four per cent in pursuance of the resolution. Seld, that the plaintiff was the owner of the stock at the time the dividend was declared, and that he, and not the purchaser, was entitled thereto.
    Appeal from a judgment in favor of the plaintiff, entered on the trial of this action by the court.
    The action involves the question of title to a dividend declared on stock under the following resolution, adopted by the directors of defendant, a manufacturing corporation in Maine, on the 25th day of January, 1873 :
    “At a meeting of the board of directors held this day:
    “Yoted, to pay a dividend of four per cent this day, and another of like amount, at option of agent, from earnings of last year.”
    On that day, the plaintiff was the owner of 275 shares of stock, held by the president of the Park Bank as collateral to a loan. The bank held these certificates until the 22d day of March, 1873, when it surrendered them; and caused the stock to be transferred to its president on the books of the company.
    About the twenty-fifth day of duly, Mr. Kitchen, president of the Park Bank, offered to sell Mr. Burleigh, the agent of the company at whose option the dividend was payable, this stock and Mr. Burleigh bought it. On the 7th day of November, 1873, defendant’s agent declared a four per cent dividend, which was paid to the parties whose names appeared on that day as stockholders on the books of the company.
    On the 23d day of December, 1873, the plaintiff demanded this dividend, which was refused, and thereupon commenced this action, alleging that he was the owner of the stock when the dividend was declared.

      William H. Arnoux, for the appellant.
    Dividends are not sever-able from the stock of a corporation, until the time fixed for the payment thereof; but, until payable, pass with the stock to a transferee, as an incident thereto, in the same manner as rent not due under a lease passes to the grantee of the fee. (.Burroughs v. North Carolina R. R. Co., 67 N. 0., 376; March v. Railroad, 43 N. H., 520 ; Minot v. Paine, 99 Mass., Ill; The City v. Lamson, 9 Wall., 483; Clive v. Clive, 1 Kay, 600 ; Anson v. Towgood, 1 Jac. & Walk., 617 ; Jones v. Ogle, L. K., 8 Oh. App., 192; Hague v. Dandeson, 2 Ex., 741; Wilson v. Harmon, 2 Yes., 672; Sher-rard v. Sherrard, 3 Atk., 502; Pearly v. Smith, id., 260; Browne v. Collins, L. K., 12 Eq., 586 ; Johnson v. Moore, 27 L. j. [Oh.], 453; Kcme v. Bloodgood, 7 Johns. Ch., 90; Clapp'v. Astor, 2 Edw. Oh., 379 ; Hyatt v. Allen, 56 N. Y., 553; Earps’ Will, 1 Pai’s. Eq., 453 ; Goodwin v. Hardy, 57 Me., 143, 145; Yan Winclc-len v. Paulson, 14 Barb., 654; Beebe v. Coleman, 8 Paige, 392.) The resolution of the board of directors amounted to a delegation to Mr. Burleigh of their authority to declare a dividend. This they had the legal power to do. {Barnes v. The Ontario Banlc, 19 N. Y., 157; Hoyt v. Thompson's Executors, 19 id., 216 ; Olcott v. Tioga R. R. Co., 27 id., 557-559.) A dividend has no legal existence until a time is fixed for its payment. (Wright v. Yt. and

      Mass. R. R. Co., 12 Cush., 68, 76, 77; Burns v. Clark, 37 Barb., 496 ; Atkins v. Hiecochs, 1 Atk., 500 ; Andrexo v. K. Y. Bible and Prayer Book Society, 4 Sandf., 173; 1 Boper on Legacies, 562; Caw v. Pobertson, 5 N. Y., 125.)

      Charles D. Adams, for the respondent.
    A dividend declared is a portion of the earnings of the corporation severed from the common fund, and set apart for the benefit of the stockholders at the time of the declaration. (Jones v. Terre Haute and Richmond R. R. Go., 29 Barb., 529 ; affirmed, 57 N. Y., 196.) It becomes henceforth a trust fund in the hands of the corporation for the stockholders at the time, and cannot be devoted to other objects. (Angelí & Ames on Corporations [8th ed.], 541, n.; 2 Kedfield on Bail ways, 529, § 240; King v. Peterson R. Go., 5 Dutcher, 82; and on appeal, 5 id., 504; Phelps v. Farmers and Mecha/nics1 Bank, 26 Conn., 272 ; Garpenter v. FT. Y. and 1V. H. R. R. Go., 5 Abb. Br., 277; Be Roy v. The Globe Ins. Go., 2 Edw. Ch., 657; 57 N. Y., 196.) Declaring a dividend payable at a future day, as corporations usually do, is only fixing the day the debt will be due. The debt itself exists, and is owing from the date of the declaration. (Beers v. Bridgeport Spring Go., N. Y. Weekly Digest, Feb. 14, 1876, p. 8.) The sale and delivery of stock, after the declaration of a dividend and before it is payable, does not carry with it the dividend. (Lombard v. Case, 45 Barb., 95; Specvr v. Hart, 3 Bobts., 420; 65 Barb., 397-; March v. Eastern R. R. Go., 43 N. H., 515.)
   Davis, P. J.:

It is very clear that both dividends were intended to be made and paid out of the earnings of the year 1872. The resolution of the board of directors, passed January 25, 1873, was in these 'words : “Ata meeting of the board of directors, held this day, voted, to pay a dividend of four per cent this day, and another of like amount at option of' agent, from earnings of last year.”

Bead in connection with the statement of the affairs of the company presented by the agent, it is manifest that the directors concluded and decided that the profits of the year' 1872 were sufficient to bear a dividend of eight per cent, and that enough of such profits were in band to pay four per cent presently, and that, whenever the uncollected profits should be realized from the outstanding indebtedness to the company, four per cent more could properly be paid. They therefore declared the second dividend, but left the time of its payment to be fixed at “the option of the agent,” through whom the collections were to be made.

It is expressly admitted in the case, that the agent exercised that option on the 7th of November, 1873, by fixing that time as the day for payment of the second dividend. It does not appear in the evidence that the profits of the year 1872 were not adequate to pay the second dividend. It must be assumed they were sufficient, because that fact is not denied, although the agent is of the opinion that payments of the second dividend were made out of moneys earned in 1873. The moneys earned and received, both in 1872 and 1873, seem to have been used indiscriminately, but that fact is of no importance, unless there be clear proof that the profits of 1872 were not sufficient to pay the dividend.

The only substantial question in -the case is: who was entitled to the second dividend declared for the year 1872, the owner of the stock when the dividend was declared, or the owner when the day of payment was subsequently fixed ? The Park Bank held the legal title of the stock when the dividend was declared by the directors, but as it held the same in pledge as collateral security for a debt of plaintiff, he was the beneficial owner. The record title in the stock register of defendants was in plaintiff, and upon his draft the four per cent payable immediately, was paid to the Park Bank, and placed to his credit. He also gave to the bank an order for the payment of the second four per cent, whenever it should become payable. The bank offered the stock for sale at auction, in Boston, and fixed the price at 115, with the dividend already declared, but, as it'was bid in by the bank, the equitable relations of the parties were not changed, although afterward the president caused the stock to be transferred to himself on the books of the company.

In July following, and while holding such order, the Park Bank sold the stock to one Burleigh who was the agent of the company. Doubtless, Burleigh thought the sale carried with it the second dividend of four per cent, but the terms of the sale were silent on that subject.

After the sale, the plaintiff revoked the order for payment of the dividend to the bank, and the bank gave him a consent in writing that the dividend might be paid to him. He demanded it after the day of payment had been fixed by the agent, but the company paid it to Burleigh the agent, as the owner of the stock.

The learned court below, held that the plaintiff was entitled to the dividend, and gave judgment accordingly. In this conclusion we think the court was correct.

The transaction of sale, it is to be observed, was a private one between the bank and Burleigh. It was not made through the agency of brokers at a board or exchange governed by known usages and rules which enter into and form part of the contract.

It is understood that sales of stock made at the board of brokers in this city at any time before the day fixed for the closing of the books of transfer of the corporation or company declaring a dividend payable at a future day, carry with them the dividend so declared, and the price paid is regulated accordingly. After the books are.closed, the sales are understood to be ex-dividend, and the price is correspondingly affected, by the fact that the seller retains and is to collect the dividend. Those usages or rules have nothing to do with this ease and the offer to prove them was properly excluded.

The dividend of the earnings of 1812, already declared at four per cent, although payable at a day to be fixed by the agent of the company to suit its own convenience, was not a growing incident of the stock, at the time of its sale, but a fixed and determinate indebtedness to the then stockholder, with nothing uncertain about it except the day of payment, which was left discretionary with the agent of the corporation. It would not be transferred to a subsequent purchaser of the stock without special agreement, nor was it necessary that it should be reserved on such sale by special agreement. It was a divided share of past earnings, and became, in law, a severed indebtedness payable to the then owner of the stock, without regard to subsequent transfers of such stock. A different rule would apply to an attempted division of future earnings; but that was not this ease.

We see no error sufficiently material, in the several rulings excepted to on the trial, or to the findings or refusals to find, to call for our interference.

The judgment should therefore be affirmed, with costs.

Beady and Daotels, JJ., concurred.

Judgment affirmed.


author: DANIELS, J.: Beady, J.

text:
    STEWART BROWN and JAMES M. BROWN, Trustees, etc., of SAMUEL NICHOLSON, Deceased, Respondents, v. ELLEN NICHOLSON and others, Appellants.

      Will — vested remainder.

    A testator bequeathed certain money to his two sisters, and upon the death of the survivor directed the same to be “ distributed to or among such of the children of my deceased brother William, or their (said children’s) representatives, as the survivor of my said sisters shall, by will or writing in the nature thereof, direct, and in default of such writing, then that such money be distributed among such children or their representatives per stirpes and not per capita, equally, share and share alike.” Reid, that the fund did not vest in the ultimate' legatees in remainder until the decease of the testator’s surviving sister, and that neither the husbands nor the widows of children who died prior to that time, were entitled to participate in the distribution thereof. (Brady, J., dissenting.)
    Appeal from a judgment entered upon the report of a referee. This action was brought to obtain a construction of the will of Samuel Nicholson, deceased, and to have the accounts of the plaintiffs, as trustees thereunder, passed, and the funds in their hands distributed among the persons entitled to receive the same.
    The plaintiffs’ testator, Samuel Nicholson, a citizen of the United States, died in the city of New York on the 29th of April, 1857, leaving a last will and testament, which was duly proved and admitted to probate, and of which the plaintiffs were appointed executors.
    By his will he directed his executors to pay over the sum of $50,000 to each of his two sisters.
    “ But on the death of one of my sisters, should they both survive me, or on my death, should but one of them survive me, it is my will that my surviving sister take the sum bequeathed to the other of my sisters, and that on the death of such survivor, or on my death, should I survive them both, that the moneys so bequeathed my said sisters be distributed to or among such of the children of my deceased brother William or their (said children) representatives as the survivor of my said sisters shall, by will or writing in the nature thereof, direct, and in default of such writing then that such moneys be distributed among such children or their representatives per stirpes and not per capita, equally, share and share alike; that is to say, I design the sum of one hifndred thousand dollars for my said sisters to be divided between them while both are alive, to pass to the survivor on the death of one of them, and to be distributed on the death of such survivor ais afore provided among the children of my brother William.”
    The survivor of the two sisters left a will by which she attempted to exercise the power of appointment given to her, but the referee found that she did not thereby legally and effectually direct or appoint the distribution of the fund to or among the persons therein named. As to the correctness of this conclusion, no question was raised upon this appeal. The only question discussed was whether the children of William, who were living at the time of the testator’s, death, took a vested remainder, or whether such remainder did not vest until the death of the surviving sister.

      John FT. Whiting, for Ellen Nicholson and others, appellants.

      Foster <& Thomson, for Anna M. Mulligan and others, appellants.

      F. De Peyster Foster, for Rosanna Nicholson and others, appellants.

      Files & Bagley, for James C. Nicholson, appellant.

      S. F. Higgins, for William S. Wallace, appellant.

      FT. Dana Wells, guardian ad litem, for Henry H., Anna R. and Emily C. Nicholson, appellants.

      James P. Lowrey, for the respondents.
   DANIELS, J.:

The learned referee, in substance, held that the testator, Samuel Nicholson, designed that his estate should be distributed on the death of his surviving sister, and for that reason, under a more power of appointment, she could not prevent such a distribution by the creation of an intervening trust. And that conclusion appears to have been warranted by the terms of the testator’s will. By the disposition and division which the referee directed should be made of the fund which constituted the estate, he also held, in substance, that the fund did not become vested in the ultimate legatees in remainder until the decease of the testator’s surviving sister. And concerning the accuracy of that conclusion a difference of opinion appears to exist. If the referee is right, then neither the husband nor the wives of the persons who died during the lifetime of the testator’s surviving sister have any right to participate in the distribution of the fund. Whether he is or not, must depend upon the time when the title in remainder to the fund became vested. If that occurred on the decease of the testator, Samuel Nicholson, then the referee was necessarily wrong in the distribution directed to be made by his report. But if the title in remainder did not vest, until the decease of the testator’s surviving sister, then the conclusion of the referee was right and should not be disturbed.

The testator, in terms, made no present gift of the fund. But he divided it for life between his two sisters, who survived him, while they lived, and gave the whole fund for life to the survivor of them. At the decease of the survivor he directed that the moneys so bequeathed my said sisters be distributed to or among such of the children of my deceased brother William or their (said children) representatives as the survivor of my said sisters shall by will or writing in the nature thereof direct. And in default of such writing then that such moneys be distributed among such children or their representatives per stirpes and not per capita, equally, share and share alike. That is to say, I design the sum of $100,000 for my said sisters to be divided between them while both are alive, to pass to the survivor on the death of one of them. And to be distributed on the death of such survivor, as afore provided, among the children of my brother William.”

The primary purpose of the testator evidently was, that the fund sbonld be distributed among such of his brother William’s children, and their descendants, as should be appointed to receive it, under the power given to his surviving sister. Until that power was either executed, or there was a failure to execute it, the disposition of the remainder in the fund was contingent and uncertain. It was not given to all the children of William and their descendants unless a selection from among them should be made by virtue of the power. But the design was that the persons nominated by his surviving sister should be the recipients of the fund. And it was only in case she failed to exercise the authority given to her over it that the fund was to be distributed among all the children of William and their descendants. Until the time of that failure it could not be known whether the fund was to be distributed among all, or only a portion of the persons referred to. And either distribution, by the clear import of the terms used, was to be confined to the children, and the representatives or descendants of the deceased children, of William. The persons, in any event, who were entitled to participate in the distribution, must be either children or the representatives of children of the testator’s brother William. And that was to be their relation at the time when the distribution was required to be made, which was on the decease of the surviving sister of the testator. They were then to be children, or the representatives of the children of William, and that, as well as the contingency resulting from the power of appointment, excluded those who died before the decease of the testator’s surviving sister. That was apparently the intention of the testator. It was quite clearly indicated by the terms used for- the purpose of defining and controlling the gift, as they were employed in the will. It was made to take effect at the decease of his surviving sister, and then only to extend to all the children and their descendants, in case she failed to exercise the power of appointment given to her. Futurity was annexed to the substance of the gift, and for that reason it did not and could not vest until it should become known who were the persons to receive the property designed to be given. (Everitt v. Everitt, 29 N. Y., 39, 75 ; 2 Redfield on Wills [2d ed.], 10-12.) The case of Barker v. Woods (1 Sandf. Ch., 129), is not controlling in a controversy of this description, for the reagpn, that the remainder, after the expiration of the life estates, was not given to other persons within the signification of the rule there mentioned. It was given to no one until the decease of the surviving sister of the testator, and then it was restrained and confined to the persons who should, at that time, be either children or the representatives of deceased children of his brother William. Such of those children were intended to participate in the distribution as the surviving sister should appoint, or if no appointment were made then all were to enj oy the bounty of the testator from whom the selection might be made. That power of selection was limited to the children living when it might be exercised; and the right to participate in the distribution of the fund in no event was to extend beyond them.

The judgment entered upon the referee’s report should therefore be affirmed.

Davis, P. J., concurred.

Beady, J.

(dissenting, in part only):

All of the questions, save two, so thoroughly discussed on the argument of this appeal, were properly disposed of by the referee in an able and comprehensive opinion, and it is deemed unnecessary to reiterate, in different phrase, what he has so clearly expressed. It may be that his conclusions can be sustained by more numerous authorities than he has cited, as illustrated by the brief of Messrs. Poster and Thomson, and A. J. Yanderpoel, Esqs., submitted on the argument, in support of his views, but that is not material. It is enough that he was right.

The effect of the findings is, that the trust fund is appropriated as the donor designed it should be, and his intention, therefore, which is the guide in the construction of wills, prevails.

He meant that the children of his brother, William Nicholson, and their representatives, should have and enjoy the trust fund upon the death of his sisters, and he did not contemplate, unless some excellent reason existed which justified it, that any distinction should be made between them. He exhibited no preference himself, and there is nothing in the case from which the inference of prejudice can be fairly drawn.

The views of the referee are adopted, therefore, as a careful and correct exposition and application of the law which governs this case, and this result renders it necessary only to consider the claims of Elizabeth Nicholson, widow of John Nicholson, sixth child of William Nicholson; Eliza Nicholson, widow of Robert George Nicholson, fifth son of William Nicholson; Rosanna Nicholson, widow of Henry K. K. Nicholson, son of Thomas Nicholson, eldest son of William Nicholson; and of William S. Wallace, husband and administrator of Hannah K., the daughter of Thomas Nicholson, all allusion to which seems to be omitted in the opinion of the referee. The questions presented in relation to them are, whether these widows are entitled to a distributive share of the husband’s portion, and whether Wallace is entitled to a part of the share of his wife.

The testator, Samuel Nicholson, conferred upon . his surviving sister the power of distributing the trust fund among such of the children of his deceased brother William, or their representatives, as she should select, but he declared that, in default of such choice, then such moneys should be distributed among such children, or their representatives, per stirpes and not per capita, share and share alike. And further, in order that there should be no misapprehension, he said: That is to say, I design the sum of $100,000 for my said sisters, to be divided between them, while both are alive, to pass to the survivor on the death of one of them, a/nd to Toe distributed on the death of such survivor, as aforesaid, among the children of my brother William.”

The intention of the testator was, that the sum set apart for his sisters should ultimately be given to some or all of the children of his brother William, or their representatives, and the right of selection only was given to the surviving sister. In case of the failure to select, the whole was to be distributed among them all, and they all took a vested interest in the subject of the gift, therefore liable only to be divested by the exercise of the power to appoint or select from among them. The surviving sister had not the power to divest the interest, except in the manner provided by the instrument creating the power, and having failed properly "to exercise the duty or right given her, the provision of the will applies and is as if it were written thus: Upon the decease of my surviving sister, I direct the said sum of $100,000, to be distributed among the children of my brother William, or their representatives.” The fund was disposed of absolutely, subject only to the trust which was created for the benefit of the testator’s sisters, and the power which ought, perhaps, to be called a trust. This subject is treated fully by Perry, in the chapter devoted to trusts that arise by construction from powers” (§ 248, et seq.), which contains a correct exposition of the law applicable to a case like this. Under the statute of distributions the widow has always been entitled to share in the personal estate of the deceased husband (Eng. Stat., 2 Black. Com., 515; 2 R. S., 96, § 75), and the authorities sustain her right to receive her portion of the personal estate belonging to the husband, allotted them under the statute of distributions, according to the facts proved. (Cotton v. Cotton, 2 Beav., 67; Merchants' Ins. Co. v. Hinman, 34 Barb., 410 ; see Knickerbacker v. Seymour, 46 id., 198; Luce v. Dunham, 14 S. C. N. Y. [7 Hun], 202.)

For these reasons we think the widows named are entitled to such part of the husbands’ share as would have been distributed to them under the statute, had the money been in possession of the husband at the time of his death.

The claim of William S. Wallace seems to be well founded, to a portion of the funds. The right of the husband to administer upon the personal estate of his deceased wife is a positive right, notwithstanding the statutes of 1848 and 1849. (McCosker v. Golden, 1 Brad., 64; Ransom v. Nichols, 22 N. Y., 110; Barnes v. Underwood, 47 id., 351; Hatfield v. Sneden, 54 id., 287; 2 R. S., 75, § 29.) Under the amendment of the Revised Statutes, passed April 25,1867, chapter 782 (Laws, vol. 2, p. 1926), the provisions respecting the distribution of estates were applied to the personal estates of married women dying leaving descendants then surviving, and the husband of any such deceased married woman became entitled to the distributive share in the personal estate of his wife to which a widow is entitled In the personal estate of her husband by the provisions of that chapter, and no more.

Prior to the amendment, the provisions mentioned were declared inapplicable to the personal estates of married women, but it was also declared that their husbands might demand, recover and enjoy the same, as they were entitled by the rules of the common law. (2 R. S., vol. 2, p. 97, § 79.) The statute of 1867 was regarded as restrictive, but the Court of Appeals, determined that it did not affect the rights of the husband, except in the case therein specified, namely, of the wife dying leaving descendants. (Barnes v. Underwood, 47 N. Y., 351.)

Mrs. Wallace left no descendants. The decree should be modified by making the necessary changes to meet these claims, but otherwise it is affirmed. The costs of the appeal should be paid out of the fund.

Judgment affirmed.


text:
    CHARLES W. NASH and NELSON H. FULLER, Respondents, v. ISABELLA H. MITCHELL, Appellant.

      Married woman — sepa/rate estate — Oontraats — benefit of sepwate estate —presumption of lana.

    Where a married woman, who has a separate estate and carries on business in relation thereto, keeping a hank account in her own name, draws a check upon such account payable at a future day on which she borrows money, the law presumes, in the absence of evidence to the contrary, that such money was borrowed for the benefit of her separate estate, and holds her liable therefor.
    Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.

      James E. Wheeler, for the appellant.

      Samuel J. OrooTts, for the respondents.
   Davis, P. J.:

On the 4th day of November, 1872, Charles Mitchell, the husband of the appellant, received from the plaintiffs their check on the Park Bank for $500, payable to his own order, and which was indorsed by him and paid on that day, and in exchange therefor he gave to the plaintiffs a cheek for the same amount on the Central Bank of Westchester County at White Plains, postdated November 9th, 1872, signed I. H. Mitchell by C. H. Mitchell, attorney.” This check was duly presented at maturity and payment was refused by the bank and the check was protested. This suit is brought upon the last named, check. Mrs. Mitchell kept an account in the Central Bank of Westchester county before and at the time of the making of the check; and she had previous to that time deposited with the cashier of that bank a power of attorney, dated February 1st, 1872, empowering Charles H. Mitchell to make, sign, indorse or accept checks, notes, drafts and bills of exchange for the defendant and in her name.” She had at that time a separate estate, consisting of a house and ten acres of land situate in Westchester county, and of lands in New Jersey; and her husband, acting as her agent, employed persons to carry on the place in Westchester county, and he received and disbursed money for the estate in New Jersey. The learned referee having, in substance, found these facts, also found that “ in the giving and exchange of said checks the said Charles H. Mitchell acted as the agent and attorney of said defendant.” In his conclusions of law, in addition to the conclusion that the defendant is liable for the amount of the check, the referee decides,' “ that the same was drawn upon her separate account, and for the benefit of her separate estate; that the defendant was then carrying on business in her own name, for her own benefit, the said C. H. Mitchell acting for her therein as her agent.” It seems to have been clearly shown, that the husband had been constituted the agent of his wife, for the purpose of drawing checks in her name and on her account, by a formal power of attorney. The finding of the learned referee, that, in the giving and exchange of the checks, he acted as the agent and attorney of the defendant, seems to put the case precisely upon the same gTound as though Mrs. Mitchell then being a married woman, had herself made the postdated check, and received from plaintiffs their check to be exchanged therefor. Had she in fact executed the check in suit herself, the question in the case would have been, whether the transaction was one made by her for the benefit of her separate estate. A married woman who authorizes an agent to incur a liability, is to be held responsible precisely on the same ground where the agent has created an indebtedness, and to the same extent, as though she herself had performed the act in person. Assuming, therefore, that she gave the check, it cannot be said that she made herself liable upon it by thereby charging her separate estate, because the check, being postdated, was in its nature an executory contract, payable at a future day, and not an instrument drawn upon an existing and specific fund, payable presently. The case turns, therefore, upon the question, whether the transaction can be deemed one made by her for the benefit of her separate estate, or for her separate business. The referee has not passed upon this question as one of fact, although he says, as one of his conclusions of law, that the check was drawn upon her separate account, for the benefit of her separate estate, and that she was carrying on business in her own name, for her own benefit. From the form in which he states these “ conclusions of law,” we ought to regard them as legal deductions from the facts previously found by him and stated in his report, and not as facts intended to be found by him. The case, therefore, seems to turn upon the solution of this proposition: Where a married woman who has a separate estate, and carries on business in relation to such estate, and keeps an account in bank in her own name, draws a cheek upon such account payable at a future day, on which she borrows money, what presumption of law arises? Is it that such money is borrowed for the benefit of her separate estate, or for use in her separate business, or on a general liability, independently of such separate estate or business ? If the law presumes the latter, then the defendant.would not be liable in this case until the plaintiff showed that the money loaned was in fact for the benefit of her separate estate or her separate business. If the former presumption prevails, then the liability would arise against her, unless she showed affirmatively that the money was not obtained by her agent for the benefit of her separate estate or business. In our opinion the presumption is, that the money was borrowed by the agent for the benefit of her separate estate and business, and that liability arises against her upon the facts found by the learned referee. The grounds stated in The Manhattan Brass and Manufacturing Co. v. Thompson (58 N. Y., 80) upon which a married woman’s liability may be enforced, are: First, when created in or about carrying on trade or business of the wife. (Barton v. Beer, 35 Barb., 78; Frecking v. Rolland, 53 N. Y., 422.) Second, when the contract relates to or is made for the benefit of her separate estate. (Owen v. Cawley, 36 N. Y., 600; 27 id., 35.) Third, when the intention to charge the separate estate is expressed in the instrument or contract by which the liability is created. (Yale v. Dederer, 18 N. Y., 265; S. C., 22 id., 450; Maxon v. Scott, Ct. App., not reported.) ” If we are right in the position that, upon the facts in this case, a presumption arises that the debt was created in or about the carrying on of a trade or business of the wife, or for the benefit of her estate, the fact that it was made by the authorized agent of the wife makes no difference with her liability.

The referee has found that the agent was authorized, and the power of attorney given to him by the defendant was broad enough in its language to justify such finding. It empowered him to make, sign, indorse and accept all checks, notes, drafts and'bills of exchange for her and in her name, which language we think is broad enough to include the postdated check in question.

It follows that the judgment appealed from should be affirmed, with, costs.

Brady and Daniels, JJ., concurred.

Judgment affirmed.


author: Beady, J.:

text:
    HENRY A. MOTT and others v. THADDEUS P. MOTT and others.

      Easement — union of servient and dominant estates — grant of lot on street — fee to center, when passes.

    Where a right of way over a private street or lane exists in favor of the several lots fronting thereon, and all such lots are subsequently acquired by one person, the easement is thereby extinguished.
    Where the owner of land conveyed lots fronting on a private lane, the deed describing them as running “ to the side of a lane twenty feet wide, thence along the same,” and then providing “and also the privilege of using from time to time and at all times hereafter * * * the said lane,” the grantee to pay his proportional part of the expenses of keeping the lane in repair, held, that there was no intention in the grantor to reserve to himself the lane, and that one acquiring title to all the lots fronting thereon became the owner thereof in fee, and was entitled to devote the same to any use he might think proper.
    Appeal by Frederick EL Cossitt, from an order of the Special Term requiring him to complete his purchase of certain lots.

      TJnder the decree of tbis court in the main cause, the lands whereof Dr. Yalentine Mott died seized were sold, at public auction, in April and May, 1874, by Henry A. Mott and John Chet-wood, executors of his will, and James McQuade, united with them as referee, sales being made by city lot numbers as shown upon maps, published and circulated at the sale.
    The petitioner, Cossitt, purchased several parcels. The aggregate of the several purchases was $93,050, and Mr. Cossitt paid ten per cent thereof, and the auction fees, and obtained one receipt therefor, and signed one memorandum at the foot of the terms of sale, which however expressed that the lots were sold in separate parcels. He refused to pay the remainder of the purchase money and complete his purchases, claiming that Dr. Mott was not seized of the “fee simple to a strip of land twenty feet in width,” stated to be “ a lane or right of way, originally laid out-by the heirs of Charles Ward Apthorpe, deceased,” and not to have been conveyed in fee simple by the deeds executed by them. And he stated as the objection respecting the lots numbers thirteen and four, that there was no title to these lots. No other defect or objection was alleged by him, but it was claimed that his purchases were of an entirety, and that the objections alleged against the title of the lots covered by the lane, and of numbers four and thirteen, were sufficient to relieve him from the purchases of all the parcels.
    The lane in question crossed or touched the lots numbers seven and eight, and those lots only. And upon the same map the lots numbers four and thirteen, also objected to, appear as sections of the westerly half of Bloomingdale road. The sale map, a copy of which was annexed to the answer, did not exhibit the twenty foot lane.
    By deeds executed to him by Samuel Oakley in 1833, and by Uhomas D. Carpenter in 1834, it is conceded that Dr. Mott acquired perfect title in fee simple to all the lands adjoining the lane throughout its extent. And thenceforward he was in undisputed possession of these lands, and also exercised sole dominion and control over the lane itself, keeping it in fence and repair, using it at pleasure for pasturage and other purposes, maintaining locked gates across it, extending it through his own land to the river, and collecting tolls for business use of it.

      The purchaser claimed that Mott never acquired the title in fee simple to the strip of land twenty feet in width, running from east to west across the' premises purchased by him, and in proof thereof, produced the deeds from the heirs of the original owner, Charles Apthorpe, to the grantor of Mott. In one deed made in 1799, the boundaries of the premises conveyed, so far as they affect this question, are as follows: “ Thence south twenty-eight degrees thirty minutes west, nine chains seventy-five links to the side of a lane twenty feet wide; thence along the same south fifty-eight' degrees east, ten chains sixty links to the Bloomingdale road; thence along the said road north twenty-eight degrees thirty-nine minutes east, nine chains seventy-five links to the place of beginning.”
    This deed also contains the following provisions: “And also the privilege of using, from time to time, and all times forever hereafter, with servants, laborers, horses, oxen, cattle, wagons, carts and carriages, as well the said lane leading to Striker’s as the lane of twenty feet wide on the said map particularly delineated; the said David M. Clarkson, his heirs and assigns, always bearing and paying in common with the heirs of the said Charles Ward Apthorpe, and their heirs and assigns, his, her or their proportional part of the expenses of keeping the said lane leading to Striker’s and the said lane of twenty feet in proper repair.”
    And in the second deed the boundaries of the premises, so far as they affect this lane, are as follows: “ Thence along the same (the Bloomingdale road) north thirty-two degrees east, five chains forty-two links to a lane on the south side of Clarkson’s land; thence north fifty-five degrees west, twenty-three chains forty links to Hudson river; thence,” etc.

      Charles Jones, for the appellant.

      C. A. Hand, for the respondent.
   Beady, J.:

The testator, Yalentine Mott, was, during his life, the owner of the land on both sides of the lane from beginning to end, which forms part of some of the lots bought by the petitioner, and had been in possession thereof as owner for more than thirty years prior to bis death. The lane was an easement created for adjoining owners, and as between them it could not be changed in its character or design. When the several owners yielded their estates bordering upon it, they centered in one person; the-servient character was subject to his will. He might use it or not, for the purpose originally designed, as he thought proper. It was not a public but a private road or lane, .leading from the Bloomingdale road to the Apthorpe or He Peyster mansion, and when the earlier grantors regarded and protected it by provisions in the deed, it was not to reserve in themselves, or their heirs, any estate in it, but to secure it as a necessary way or easement for the beuefit of the owners along its line. This is evidenced by the provision contained in the deed from Charles Apthorpe to Clarkson, to the effect that the latter would always bear and pay, in common with the former and his heirs and assigns, the expense of keeping the lane in proper repair.

There can be no doubt that when property thus conveyed is united in one person, even though several parcels are described as commencing at or running to the side of the private road, or lane, the fee to the center of the way passes from the grantors. (Bissell v. N. Y. C. R. R. Co., 23 N. Y., 61; Perrin v. N. Y. C. R. R. Co., 36 id., 120; Corning v. Gould, 16 Wend., 531.) To hold otherwise would, in effect, be to declare that a man could not close a private road or lane running .through 1ns land, although it was made with express reference to and for such land, and although he has secured by grant the use of it in perpetuity, and although it formed a part of the estate to which it was an incident.

The original grantors could not claim any interest in the bed of the land or private road, because it is evident that the grants by them were not intended to withhold the absolute title to the center of the lane or road, except so far as to. secure the use of its bed for the purpose mentioned, as long as the several owners required it. Questions of boundary are to be determined by the palpable intention of the parties as it appears from all the circumstances. (Perrin v. N. Y. C. R. R. Co., supra.)

The sale of the adjoining land, by the several owners, was a surrender of the right and an abandonment of the use of the lane to the grantee, to be employed by him or not as he pleased. (Bissell v. N. Y. C. R. R., supra.) The purchase of the whole land adjoining made the purchaser master of the whole tract. He became the owner of the whole of the dominant estate to which the servitude or easement was due. (Case supra.) He closed the lane and used it as a pasture ground, and rented the use of it. If a right of way be from the close of A. to the close of H, and both closes be united in the same person, the right of way as well as all other subordinate rights and easements, is extinguished by unity of possession. (3 Kent, 423 [marginal paging].) In the case of Bissell v. N. Y. C. R. R. Co., in which it appeared that the grantor had laid out a plot of land in lots and a street, which was used as access to them, the lots being bounded on the street, Justice MasoN said : “ There is no more reason, it seems to me, to infer an intention in the grantor to withhold his interest in or title to the land covered by the street, after pawling with all his right and title to the adjoining land, than there is in the case of a deed bounded by a public highway.” Indeed the object of the reservation considered in this case with regard to the intention of the grantors gathered from the surrounding circumstances, appears to haye been only to secure the use of the lane for the owners on its line so long as it was necessary for or demanded by them, and it is not well to be questioned that there is no distinction to be drawn between the lane under consideration, and the street in the case of Bissell v. N. Y. C. R. R. Co., which was used for a purpose similar to that which caused the laying out of the lane. The object secured by it has ceased, both as a convenience and necessity, and there is neither of these elements in favor of the continuance of it.

Why should the grantors, having parted with all the adjoining land, be permitted now to claim a fee in the bed of the land, against the undoubted intention of the grants to part from all interest in it when they sold the adjoining land?

Is it not clear that, as between themselves and their grantees, they intended to convey to the' center of the lane, as declared in Bissell v. N. Y. C. R. R. Co.? These interrogatories seem to admit of but one answer. The objection discussed is therefore of no avail to the petitioner.

The further objection to the title to lots four and thirteen, forming part of the Bloomingdale road, proves valueless, because the respondent did not sell any more than the right, title and interest of the testator and- his representatives in them. They claimed an interest in them under a conveyance and the provision of the act of 1867 (chap. 697), granting the fee of the road to adjoining owners, and it was that interest which the petitioner bought. He was bound by his bid. If he desired to know what the interest was, the information should have been demanded at the sale. Having chosen to buy, without that or an examination for himself, he takes the consequences.

It is manifest that the order made at Special Term was correct, and it must be affirmed.

Davis, P. J., and DaNIels, J., concurred.

Order affirmed.