author: ■ XjEABNED, OP. J. I

text:
    ALFRED B. WOODWORTH and others, Respondents, v. EDWARD C. SEYMOUR, Appellant. SAME v. WILLIAM B. DOUGLASS and others, Appellants.

      Judgment in a former action — when it ¿loes not prevent the bringing of a second one — General assignee cannot convey property assigned until he has filed a bond —1860, ch. 348, § 3.
    In October, 1878, the plaintiffs brought an action in a justice’s court, against the defendants in the second of the above entitled actions, to recover damages for the conversion of certain wheels belonging to them. The plaintiffs having recovered a judgment, the defendants appealed to the County Court, where a new trial was had, and a verdict rendered in favor of the defendants. The defendants in that action, besides denying the plaintiff’s ownership of the wheels, claimed to have a lieu upon them for work and labor thereon. Thereafter these actions were brought to recover for the conversion of tbe same wheels.

      Held, that the former judgment only showed that some one of tbe defenses interposed by the defendants in the former action had been decided in their favor, and that it constituted no bar to the second of the above entitled actions. Quaere, as to whether it was admissible for the plaintiffs to show that the county judge had, in his charge, decided the question of ownership in-their favor, and taken that question from the jury.
    A conveyance of property made by a general assignee for the benefit of creditors, before he has filed the bond required by section 3 of chapter 348 of 1860, is a nullity, and may be questioned and set aside, not only by the creditors of the assignor, hut by the successors of the assignee.
    Appeal in the first of tbe above entitled actions from a judgment in favor of tbe plaintiffs, entered upon tbe verdict of a jury. Tbe second action came before tbe court upon a motion for a new trial, upon a case and exceptions ordered to be beard in tbe first instance at tbe General Term.
    Botb actions were brought to recover certain articles of personal property formerly belonging to William J. Allen and Charles D. Ubl.
    In October, 1878, these plaintiffs bad brought an action against tbe defendants, in tbe second of the above entitled actions, in a justice’s court, for tbe conversion of tbe same property, and recovy .ered a judgment therein. Tbe defendants appealed to tbe Country Court, where a verdict was rendered in their favor, upon which a judgment was entered. It was claimed that this judgment was a ' bar to the maintenance of the second of the present actions.

      J. De Motte Smith, for the appellants.

      William Austin, for the respondents.
   ■ XjEABNED, OP. J. I

In the second case a question is made which does not arise in the first; that is, whether a previous action between the parties was a ¡bar to the action. In that previous action these plaintiffs sued the fiefendants Douglass in justice’s court to recover certain wheels. •'The action was appealed to the County Court, and, on a trial there, •■¡the defendants had a verdict, and judgment was entered thereon. 'Afterwards the plaintiffs commenced this action in this court for .the same wheels. It appears that among other defenses set up in the answer in that former action was the defense that the defendants had a lien on the wheels for work and 'labor thereon. And the charge of the county judge was given in evidence to show "•that the question of the existence of such a mechanic’s lien was submitted to the jury, and, indeed, to show that it was the only question. (Doty v. Brown, 4 N. Y., 71.) That charge shows that «the county judge took from the jury the question of ownership, ■deciding that in favor of the plaintiffs. But whether or not the «charge was properly admitted, the record itself only showed that •some one >of the several defenses had been adjudicated in favor of the defendants, not that all of them had been so decided. We ifchink, therefore, that the former judgment was no bar to this action.

The other question, presented in both cases, respects the title to sbhe property. Allen & Uhl, the original owners of the property, made .a general assignment for the benefit of creditors, without «preferences, November 29, 1876, to Nathaniel A. Ayers. On February 20, 1877, Ayers, Allen and Uhl conveyed the same property to the plaintiffs. This, therefore, shows a good title jpri/ma facie. .The objections made are several.

¡First. .It appears that Ayers never filed a bond or made .schedules. But that does not prevent the assignment from vesting in him. (Brennan v. Willson, 71 N. Y., 502.)

Again. Allen & Uhl, on December 2, 1876, made another gen.•eraJ assignment without preferences, dated back to November 29, 1876, to Ayers and the defendant in the first action. And it .appears that after this assignment both Ayers and the defendant acted as assignees.

Subsequently, on February 6, 1877, Allen & Uhl were adjudged ■ bankrupts, and afterwards, on February 14, a proposition for composition, under section 5103 (U. S. R. S.) of the bankrupt act was made by the plaintiffs, by which they offered to guaranty thirty cents on the ■dollar to the creditors of Allen & Uhl. Many of the creditors ae-cepted this offer voluntarily; among them the firm of Pratt & Seymour, of which the defendant Seymour was a member. The defend.ant himself signed their name. But as all of the creditors did not accept, a meeting of creditors was called and held under section 17 -of the Bankruptcy Amendment Act, November 17,1877, and their resolution accepting the composition was recorded in the court ,August 13, 1878.

It was for the purpose of carrying out this proposed compromise that Ayers, Allen and Uhl conveyed the property to the plaintiffs .as above stated; and such conveyance was the consideration of their agreement to secure the thirty per cent, to the creditors of -Allen & Uhl.

On May 28,1877, and after the conveyance aforesaid to the plaintiffs, the defendant in the first action, as assignee of Allen & Uhl, filed his individual bond with sureties for the faithful discharge of his duty .as assignee. The learned justice held, in the first case, that the plaintiffs were entitled to recover from the defendant the property ■or avails which he had received in his alleged character of assignee, less the proper expenditures. When the property was demanded by the plaintiffs of the defendant he made no objection to their •title, but said that he was ready to give up the property if they would pay his expenses and give him a bond of indemnity.

The subsequent assignment to Ayers and the defendant Seymour -■did not change the title to the property. That remained in Ayers. When the debts were paid it would revert to Allen & Uhl; and therefore they properly joined in the conveyance to the plaintiffs. Nor did the bankruptcy proceedings affect the assignment to Ayers. (Haas v. O'Brien, 66 N. Y., 597.) The only question, then, is-this : whether the failure of Ayers to file a bond affects the conveyance made by him, so far as these defendants are concerned. The object of the provision of section 3, chapter 348, Laws 1860r is the protection of the creditors. As to them Ayers would be-responsible for conveying the property before the execution of a. bond. (Juliand v. Rathbone, 39 N. Y., 375.) This was the view taken by the court below in the second case. But the language of' the Court of Appeals in Brennan v. Willson goes much further. It says, that the act of selling by an assignee before execution of a. bond is a nullity, and may be questioned by the trustees who succeed him, as well as by the cestuis que irust. We are reluctantly-compelled to follow this decision. The justice of these present cases is with the plaintiffs. And if it were not for the decision-above referred to we should have seen no error in the result. We-should have said, as was said by the learned justice who tried the-second case, that “the transfer of Ayers to these plaintiffs, though invalid as against creditors, vested a title in the plaintiffs.” But iff the act be a nullity, as held in that decision, of. course, it conveyed nothing. Nor can we say that the trusts of the assignment had been fulfilled, and therefore the property had become re-vested in Allen & Uhl. For there is no evidence in either case that all their-debts had been paid, and in the first case there, was affirmative evidence offered that debts remained unpaid. Nor is it proved that the debts have been discharged by bankruptcy proceedings. The-composition proceedings do not affect secured debts (Rev. Stat. of U. S., 5103, a), nor does the resolution of the creditors bind those-whose names do not appear. (Same section.) Thus it cannot beheld, on the facts as they now appear, that the trusts of the assignment to Ayers had been ended by the discharge of all debts.

For the reason, therefore, that the decision above cited holds-that the transfer of Ayers was a nullity and not merely an act. void as against creditors, we must reverse the judgment in the first and grant new trials in both cases, costs to abide the event.

Present — Learned, P. J., Eockes and Follett, JJ.

First case; judgment and order reversed; new trial granted, costs-to abide event.

Second case; new trial granted, costs to abide event.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    MARY B. HAGADORN, Respondent, v. THE CONNECTICUT MUTUAL LIFE INSURANCE COMPANY, Appellant.

      Juror- — what opinion or belief does not disqualify a person from acting as— Hearsay evidence — what statements inadmissible as being — Opinion of eccpert as to insanity — ‘must be based upon a hypothetical case.

    In this action, brought by the plaintiff upon a policy of insurance issued by the defendant to her upon the life of her husband, one of the defenses was that the husband had committed suicide, and thereby avoided the policy. When the case was brought on for trial, several of the jurors stated, on being examined by the defendant’s counsel, that they should consider the-fact that a man had committed suicide as some evidence of insanity; some-stating that they should so consider it in some cases, and all stating that they should require other and additional evidence to establish it.
    Held, that the 'jurors were competent, and that a challenge interposed by the-defendant’s counsel was properly overruled.
    Upon the trial, a brother of the deceased was called by the plaintiff, and testified that he himself was subject to attacks of disease, during which he-remained unconscious for half an hour, or thereabouts. He was then asked whether he knew from the statements of others what he did while thus-unconscious.
    Held, that the evidence was inadmissible, as being merely hearsay.
    A physician, called by the plaintiff, having testified that he had been present-in court during all the testimony, and had heard the evidence as to the symptoms exhibited by the deceased, was asked the following question: “Assuming the statement in reference to the condition of Charles Hagadorn and his history up to the time of his death, what is the opinion of the witness in respect to the condition of his mind at the time of his death ?”

      Held, that it was error to allow the witness to answer the question.
    Atpeal from a judgment in favor of tlie- plaintiff, entered upon tbe verdict of a jury, and from an order made at a Special Term, denying a motion for a new trial made upon a case and exceptions.

      Tlie action was brought upon a policy of insurance issued by the -defendant to the plaintiff, upon the life of hor husband. The insured hung himself while temporarily confined in a jail for drunkenness. The defenses were that the policy had been avoided by the intemperate habits of the deceased, by his alleged suicide, and by reason of misrepresentation contained in the application for the policy.
    When the case was brought on for trial, four of the jurors, who were examined by the counsel for the defendant, stated that they ■considered suicide evidence of insanity. . One testified that he ¡should so consider it in some cases, and all stated that they should require other and additional evidence to establish the fact of insanity.

      8. O. Millard, for the appellant.

      John Murdoch, for the respondent.
   Learned, P. J.:

Certain of the jurors, being examined as to their competency, testified that they thought a man’s committing suicide was evidence of insanity. They were challenged for that cause, and were admitted. The defendant excepted. It does not appear whether this challenge was intended as one for principal cause or for favor. Assuming it even to have been a challenge for favor, there was nothing to show that the jurors were not indifferent between the parties. They had formed no opinion on the case in controversy. The opinions expressed were abstract, simply as to the effect of ■certain evidence. And as to that evidence, no one said that he ¡considered it conclusive. (See Boileau v. Life Ins. Co., cited 6 Abb. New Cas., 19.) One said only he should consider it such evidence in some cases; the others said that they should require ■other evidence to say that there was insanity. And certainly it •cannot be said that, under no circumstances, is suicide any evidence whatever of insanity. Some persons, perhaps, are of the opinion that no sane man ever commits suicide. And we will not say that such persons might not properly be excluded as jurors in a case of this kind. But these jurors expressed no such opinion.

The next objection is that an allegation in the complaint, that the defendant waived a certain provision oí the policy as to intemperance, was itself an admission that the deceased had violated this provision. This objection is untenable.

A brother of the deceased was called by the plaintiff and examined as to his own liability to certain attacks of disease. The ohject of this was to show that the deceased was suffering under a similar attack when he took his own life. The witness testified that during these attacks he was unconscious for half an hour or thereabouts. He was asked whether he knew from the statements of others what he did while he was thus unconscious. This was objected to and the objection was overruled. We think this evidence was inadmissible. The witness was merely stating what others had told him. If the facts were competent they could have testified to them.

Another witness, Ralph Parsons, testified that he had listened to the evidence showing the symptoms in Hagadorn’s case, and had been present in court during all the testimony. He was asked, assuming the statement in reference to the condition of Charles Hagadorn and his history up to the time of his death, what was the opinion of the witness in respect to the condition of his mind at the time of his death? This was objected to on the ground that much of the evidence was not evidence from which an expert could speak to a jury. The objection was not perhaps as accurately stated as it might have been, but its meaning sufficiently appears. The question asked the opinion of the witness on the evidence in the case. In the case of Reynolds v. Robinson (61 N. Y., 589), the witness had heard the testimony of other witnesses as to certain services rendered by the plaintiff:; he was personally acquainted with the value of such services, and he was asked the value of these services. It was held that this was improper, and that a hypothetical question should have been put. The question in the present case is much more objectionable. It did not appear which part of the evidence the witness believed, or on which he formed his opinion. It put him in the place of the jury. One plain objection to every such question is this. Although the witness has been in court and has heard the testimony it does not follow that he has heard it correctly. He may have misunderstood or misapprehended a witness. When, then, such a question is put in this form, so that the answer must depend on what the recollections and impressions of the witness are as to the evidence which he has heard, it goes beyond the limits of questions to experts. This class of evidence is of a doubtful character at the best, and always tends to substitute the expert for the jury. The same may be said of the question put to Dr. Gregg.

The plaintiff urges that these questions are justified by the decision in McCollum v. Seward (62 N. Y., 316). It may not be easy to draw the distinction between that case and the subsequent case of Reynolds v. Robinson, ut supra. But it will be seen that in McCollum v. Seward the plaintiff had testified to the performance of services, and the Court of Appeals held that the question was, in substance : assuming that the services rendered were as described by plaintiff, what were they worth ?” Here was a single definite statement by a witness of services performed, and the court held that the reference to the testimony of that witness was substantially sufficient to permit a succeeding witness to estimate their value. But the present case is different. Here the witness was asked to draw a conclusion from the testimony of some six witnesses, including the objectionable testimony of the plaintiff’s brother, above stated.

The case of Bonard's Will (16 Abb., N. S., 128), cited by plaintiff, does not touch on the point involved in these questions. The case of People v. Lake (12 N. Y., 358), is opposed to the plaintiff’s position.

For these reasons, without examining any other questions, we think that the judgment and order should be reversed and a new trial ordered, costs to abide the event.

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

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


text:
    HENRY L. HINCKLEY and FREDERICK T. BARTO, Plaintiffs, v. HORACE G. COOPER, Defendant.

      .Assessment roll — when the affidavit of the assessors is fatally defective — 1851, oh. 176, § 8.
    To the assessment roll of the town of Ulysses was attached, in attempted compliance with section 8 of chapter 176 of 1851, the following affidavit of its assessors, “ We, the undersigned, do severally depose and swear that we have set down in the foregoing assessment roll all the real estate situated in the town of Ulysses, according to our best information, and that, with the exception of those cases in which the value of the said real estate has been changed by reason of proof produced before us, we have estimated the value of said real estate at the sums which a majority of the assessors have decided to be the assessed value thereof; and also that the said assessment roll contains a true statement of the aggregate amount of the taxable personal estate of each and every person named in such roll, over and above the amount of debts due from such- person respectfully, and excluding such stocks as are otherwise taxable and such other property as is exempt by law from taxation, at the value thereof, according to our best knowledge and belief.”

      .Held, that the substituting of the words “ the assessed value thereof,” for the words “the full and true value thereof, and at which they would appraise the same in payment of a just debt due from a solvent debtor,” the omission of the words “full and true,” before the words “value thereof,” and the substitution of the word “ knowledge ” for “judgment,” rendered the affidavit fatally defective, and any tax levied by the board of supervisors upon the said assessment roll wholly void.
    Controversy «submitted upon an agreed statement of facts in pursuance of sections 1279-1281 of tbe Code of Civil Procedure.'
    From tbe statement of facts it appeared that tbe plaintiffs are individual bankers, doing business in tbe name of “ Henry D. Barto and Company’s Bank,” pursuant to tbe laws of tbe State of New York, and at tbe times hereinafter mentioned were, as such bankers, doing business with a capital of $30,000, of wliicb about $3,000 was invested in real estate acquired by them in tbe process of ■securing debts contracted to them in the ordinary course of their said business. The said business at the times hereinafter mentioned was, and now is, transacted, and their banking bouse located, .in tbe town of Ulysses, Tompkins county, New York. The defendant, at tbe times hereinafter mentioned, was tbe supervisor of the said town of Ulysses, and as such was a member • of the board of supervisors of Tompkins county during the year 1879. On or about September 1, 1879, the assessors of the said town of Ulysses delivered to the said defendant, as the supervisor of the said town, the assessment roll of the said town of Ulysses, which roll, among other things, contained an assessment against the plaintiffs, as such bankers, as aforesaid, in the words and figures following, to wit:—
    “ 1 Barto & Co.’s Bank .... I lot I personal I am’t i » | | 2 I $26,200 [ $26,200 |
    To this assessment roll was attached an affidavit made by the said town assessors, in the words and figures following, to wit:—
    “ Tompkins County, ss. :

      “We, the undersigned, do severally depose and swear that we-have set down in the foregoing assessment roll all the real estate situated in the town of Ulysses, according to our best information, and that, with the exception of those cases in which the value of the said real estate has been changed by reason of proof produced before us, we have estimated the value of said real estate at the sums which a majority of the assessors have decided to be the assessed value thereof; and also, that the said assessment roll contains a true statement of the aggregate amount of the taxable personal estate of each and every person named in such roll, over and above the amount of debts due from such person respectfully, and excluding such stocks as are otherwise taxable and such other property as is exempt by law from taxation, at the value thereof, according to our best knowledge and belief.
    “Dated the 19th day of August, 1879.
    “THOMAS BOWER,
    “LUCIUS B. CURRY,
    “JONAH W. KIRBY,

      “Assessors of the Town of Ulysses.

      “ Tompkins County, ss. :
    “ I, Jacob Carman, one of the justices of the peace in and for the Town of Ulysses, do certify that the assessors above named appeared before me, 19tb day of August, 1879, and did severally make and subscribe tbe foregoing oath.
    “Jacob Carman,
    “ Justice of the Peace.”

    This is the only affidavit made by the assessors to the said assessment roll, or at any time attached thereto. This assessment roll, with the aforesaid affidavit thereto attached, was by the defendant delivered to the said board of supervisors (of which board he was an acting member) at the regular meeting thereof held in November, 1879.
    The said board of supervisors afterwards completed the said assessment roll by extending into an additional column thereof the amount of tax to be collected of each person named therein, according to the amount assessed to him; and thereafter the defendant, as the supervisor of the said town, issued to the collector a warrant in the usual form for the collection of the tax assessed to the plaintiff, under which tbe said collector levied upon personal property belonging to the defendant, to tbe amount of $362.53, and took the same and applied it, or the avails thereof, in the payment of the aforesaid tax and the collector’s commissions thereon, the plaintiffs all the while forbidding said levy and taking, and protesting against the same as unlawful and unauthorized, upon the ground that the aforesaid affidavit of the assessors was not a compliance with the statutory provisions thereto appertaining, and did not confer any jurisdiction upon the said board of supervisors to levy the said tax, or to issue the warrant under which the said collector was acting.
    The said amount has not been returned to tbe plaintiffs, nor any part thereof.
    No question was made as to the regularity or sufficiency of any of the proceedings under which the said assessment was made and the said tax levied and collected, excepting only such as appertain to, or depend upon, the affidavit made by the town assessors to the said assessment roll; the question in difference between these parties being whether or not such affidavit was a sufficient compliance with the statute in such case made and provided to confer jurisdiction-upon the said board of supervisors to issue their warrant, as aforesaid, and authorize the collection of such tax from the plaintiffs, .and to protect the said defendant in signing said warrant and delivering the same to the collector.
    Section 8 of chapter 176 of 1851 provides as follows:
    “When the assessors, or a majority of them, shall have completed their roll, they shall severally appear before one of the justices of the town or city in which they shall reside, and shall severally make and subscribe before such justice an oath in the following form: We, the undersigned, do severally depose and swear that we have set down, in the foregoing assessment roll, all the real ■estate situated in the (town or ward, as the case may be) according to our best information; and. that with the exception of those eases in which the value of the said real estate has been changed by reason of proof produced before us, we have estimated the value of the said real estate at the sums which a majority of the assessors have decided to be the full and true value thereof, and at which they would appraise the same in payment of a just- debt due from a solvent debtor, and also that the said assessment-roll contains a true statement of the aggregate amount of the taxable personal estate of each and every person named in such roll, over and above the amount of debts due from such persons respectively, and excluding such stocks as are otherwise taxable, and such other property as is exempt by law from taxation, at the full and true value thereof, according to our best- judgment and belief. Which oath shall be written on said roll, signed by the assessors and certified by the. justice, and shall be in place of the official certificate now required by law; and every assessor who shall willfully swear false in taking and subscribing said oath shall be deemed guilty of, and liable to the penalties of willful and corrupt perjury.”

      Wm. JF. JFoble, for the plaintiffs.

      Bradford AVnvy, for the defendant.
   Learned, P. J.:

The affidavit of the assessors is defective in a material point, and the defect was doubtless intentional. To say that they had estimated the value of the real estate at the' sums which they had •decided to be tbe assessed value thereof, is a plain evasion of the .-statute, and means little or nothing. To omit the clause “ and at. which they would appraise,” &c., leaves out a very important part -of the statutory affidavit. And the remaining omission and alteration carry out the violation of the statute.

In the case of Parish v. Golden (35 N. Y., 462), the omission in the affidavit was only in the words and such other property as is •exempt by law from taxation.” It was held that this was not fatal to jurisdiction.

That case is very different from the present. At the most it was an omission, and, as the word taxable ” appeared previously, the affidavit did not affirmatively state any improper act. (Westfall v. Preston, 49 N. Y., 349.) But the present affidavit is really a statement that the assessors have estimated the real estate at such sums as they arbitrarily chose; while the substitution of the word ■“ knowledge ” for judgment ” limits the assessment of personal property to the narrow extent of their knowledge, exclusive of proof.

The case of Van Rensselaer v. Whitbeck (7 N. Y., 517), applies directly to the present case. The defects are very similar, and were doubtless made with the same object in both cases. That case is recognized as sound in Westfall v. Preston, ut supra. It •cannot be necessary to discuss a question thus settled and settled wisely.

Judgment must be rendered, on the submission for the amount claimed by the plaintiffs, with costs.

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

Judgment rendered, on submission for plaintiffs.


text:
    ELLEN SITTERLY, Respondent, v. ANDREW GREGG, Appellant.

      Payments — upon what debt to be applied.

    Although a debtor may, when making a payment, apply it as he pleases, even upon an outlawed debt, yet the creditor cannot compel its application to-such debt by expressing his wishes to the debtor, unless the latter assent, thereto expressly, or by not objecting to the positive statement- of the creditor as to the application he intends to make thereof.
    Appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury, and from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    , The action was brought by the plaintiff to recover of the defendant money loaned to him at different times.

      8. W. JaeJcson, for the appellant.

      J). 0. Beattie, for the respondent.
   Learned, P. J.:

There was no running account between the parties. The plaintiff lent the defendant-$300, April 1, 1865, and took his note therefor, dated that day, payable at one day. She lent him $200, June 15, 1871;. which he repaid about April 1, 1876. Whether he still oured interest on that loan we need not inquire. For she testifies that the $200 was paid her. She lent him, May 15, 1874, a sum the exact amount of which is in dispute, being either $830 or $820 or $740.

The' defendant testifies that he paid the note some three years after it was given; and he also sets up the statute of limitations. The defendant denies the payment of the note in her testimony. It is not distinctly proved when this action was commenced. But no point is made on that. It was evidently commenced after April, 1878, and probably about May, 1879.

On April 4, 1878, the defendant paid the plaintiff $850. This (amount was not enough to pay the loan of May, 1874, and interest, whatever that loan may have been. Therefore there was^no-’ stir-plus which must necessarily apply on some other claim.

At the time of payment, the defendant took a-receipt "from” the-plaintiff, in these words, “ $850. Received from Andrew'Gregg,' - eight hundred and fifty, to apply on account of his indebtedness-to"me. Dated Schenectady, April 4, 1878. Ellen Bitterly.’? The plaintiff testifies that, at the time of payment, she said'to the defendant that she wanted it applied on the first loan; and that she'-' wanted it all made up then and straightened up then; and that he said he did not want it done then, on account of strangers knowing . that their business was so far back; that he did not say to pay ft-on the old debt. The defendant testifies that he said, at the time,. he did not want it so applied. No actual application by surrender-of the note or indorsement thereon was made. In fact, the present complaint alleges the three loans as the cause, of' action.

We have then a payment insufficient to pay both claims, and even insufficient to pay all of the admitted claims; a statement by: the creditor that he wanted the payment applied on the first debt;-, then outlawed; and a statement by the debtor that he-did not want it done then. There is also testimony of the plaintiff of an interview, the next day, where she says the business was-all figured up. ' But even then the parties disagreed.

Of course, it is the absolute right of a debtor, when making a payment, to apply it as he pleases. He may pay an outlawed debt. He may even pay a claim which he has, as he believes, previously discharged. But the creditor cannot compel the application to such debt as he desires, by expressing his wishes to the debtor. In the present ease the plaintiff herself says that the defendant stated that he did not want it done then. So that he disagreed to the application which she wished. And she gave him a .receipt for-money to apply on account of his indebtedness. This receipt shows that there was no specific application at the time.

A positive statement by the creditor at the time of payment, of the mode of application of the money, not in any way objected to by the debtor, might be construed as the expression of the debtor’s wish. But we do not see that here. The creditor expressed a wish, to which the debtor did not expressly consent, and from which he dissented by the form of the receipt, and the refusal to have it all straightened up then. If there was no application at the time by the debtor, expressly or impliedly, the creditor could not after-wards apply the payment to an outlawed debt. (2 Parsons Cont., 356).

This view of the case becomes stronger when we consider all the evidence. That of the plaintiff has been already given. It is claimed that the testimony of her sister corroborates her. But, in fact, her testimony shows nothing of any agreement or intention of the defendant to apply the payment to the note. She says he proinised to settle up at home, and to give a note for what he owed. O’Neill, who was present, says that the defendaut, after the payment, said he owed the plaintiff more money.' That would have been true, even excluding the note.

On the other hand, the defendant says that, at the time of payment, he refused to apply it on the “ oldest debtthat when she presented the note, he told her it was not good for anything. The defendant also testifies to the actual payment of the note, and, to some extent, this testimony is corroborated by that of James W. Gregg. The plaintiff denies such payment.

There are other conflicts as to the amount of money loaned, which we need not examine in detail.

Now, it is plain that this note is outlawed, unless it was paid by defendant in April, 1818. It rests with the plaintiff to prove this fact. Both she and the defendant are interested witnesses. Her testimony is not corroborated. His is corroborated by the receipt then given, and by the fact that she did not surrender the note,- which she claims was then paid. It was retained by her until the day of trial and then produced.

This ease shows the value of the statute of limitations. The plaintiff claims on a debt thirteen years old, which the defendant claims was paid ten years ago. Which is, in fact, right, it-is difficult to tell. But such stale claims should not be revived on the doubtful testimony of parties. The lapse of time should protect the alleged debtor.

The judgment and order should' be reversed, and a new trial grantéd, costs to abide the event.

Present — Learned, P. J., Bocees and Follett, JJ.

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


author: Bockes, J.:

text:
    ELVIRA C. LYMAN, Appellant, v. ELLA LYMAN, Respondent.

      Devise — consfti'uotion of.

    A testatrix died seized of certain real estate, having acquired title to a portion thereof by a conveyance made to her, and to the remainder .thereof by inheritance.
    Her will contained, among others, the following clause; “I give, bequeath and devise to my granddaughter, Ella Lyman, all my personal property of every description that I may have and be the owner of, at the time of my death, and nil the real estate that I may have title thereto, by deed, lease, or any interest therein.”

      Held, that all her real estate, both that acquired by the conveyance and that acquired by inheritance, passed to the devisee under the said clause.
    Appeal from a judgment dismissing the complaint, entered upon tbe trial of tbis action by the court without a jury. The action was brought to recover the possession of certain land which was claimed by the plaintiff as the heir-at-law of Ann Eliza Goodyear, deceased, and by the defendant as her devisee.

      JET. Stmrges, for the appellant.

      8. S. Burnside, and Amasa J. Parker, for the respondent.
   Bockes, J.:

The parties claim title to the premises in controversy through^ Mrs. Goodyear, the plaintiff as heir-at-law, and the defendant- as devisee‘under her last will and testament.

Mrs. Goodyear at the time- of her decease was seized of certain ■ real estate, holding one portion by conveyance to her, and another portion, being the premises in suit, by inheritance. The clause in Mrs. Goodyear’s will under which the defendant claims is as follows: I give, bequeath and devise to my granddaughter, Ella Lyman, all my personal property of every description that I may have and be the owner of at the time of my death, and all the real estate ■that I may have title thereto, by deed, lease or any interest therein.” Tho plaintiff insists that Ella, under this clause of the will, took only such real estate as the testatrix held by deed or lease; and that the latter died intestate as to that portion held by vnheritance. The, decision of the case turns on the construction to be given the clause of the will above cited. Tho intention of the testatrix, of course, must control, and that intention must, if possible, be determined from 'the language employed by her in the instrument. So, too, effect must bo given to all words and phrases used in it, .with a view .to determine its meaning. Now let us see what was intended by the clause of the will under examination. It reads . thus, “ I .give . . and devise to my granddaughter, Ella Ly•man .... . . all the real estate that I have title thereto by deed, lease, or any interest therein.” Is it not manifest that tho testatrix .intended to devise all her real estate to Ella by this language? As regards,that .portion to which she had title by deed or lease there can be no question; and do not the words “ or any interest therein” .signify-the-same as if they had been “pr in which I have any ■interest”? The words “or any interest therein,” cannot be 'ignored. Some meaning must be given them. They make reference; to lands, other than such as were held by deed or lease. In this case they could only-have application .to lands held,by the testatrix by inheritance. The true reading of the clause seems to be this, “ I give and devise ... all the real estate that I have title .thereto by deed or lease, or in which I have any interest.” So read, the devise would include lands held by inheritance as well as by conveyance. Tho testatrix would then, by plain, and explicit ¿language, ¡have embraced all .-her real estate in the devise ; and this .¡seems;to.have been her obvious .intention. The word “thereto” as here used, means no more or less than “ to; ” and “ therein ” i means plainly “ in which.” The clause-then, with these words substituted, -yjüL .read .thus: “I give, -bequeath .and devise to my .granddaughter, Ella Lyman, all my personal property of every ; description .that-I may have and be the owner of,at the time of my , death, (Cmd;cdl,the real estate that I have title.to by deed or lease, or m which I home any vnt&rest? This construction admits of redundancy of words, but the entire clause above quoted is replete with redundancy. This fault, very common in the drafting of legal •documents, cannot, however, be permitted to abridge or limit their ■effect.

There is another consideration which tends to strengthen the construction above adopted. There is no evidence of an intention ■on the part of the testatrix to die intestate as to any of her prop•ei’ty. She makes a will. It contains no residuary clause. It is laid down in Vernon v. Vernon (53 N. Y., 351) that the law prefers a construction of a will which will prevent a partial intestacy to one which will permit it. So, in Kedfield on Wills (vol. 2, j>. 442) it is said, “ The courts ■ have for a long time inclined very decidedly against adopting any construction of wills which would result in partial intestacy, unless absolutely forced upon them. 'This has been done partly as a rule of policy perhaps, but mainly as one calculated to carry into effect the presumed intention of the testator. For the fact of making a will raises a very strong presumption against any expectation or desire on the part of the testator of leaving any portion of his estate beyond the operation of his will.” The construction above suggested is not forced or strained, but is in accordance with the fair, if not the plain meaning of the language employed to express the intention. We fully concur in the view expressed by the learned judge who tried the case at ■Special Term. He well says, “ This construction gives effect to all the words used, gives them their ordinary meaning, is natural, not inconsistent with any provision of the will, and leaves no-uncertainty of intention.” Besides, if permitted to go outside the language employed, the circumstances surrounding the parties, as ¡evidenced by the will of Mr. Goodyear, and by the settlement of .some difficulties between them, also give support to the conclusion, .above suggested.

The judgment must be affirmed, with costs.

Learned, P. L, and Follett, L, concurred..

Judgment affirmed, with costs.


text:
    JOHN MABEE and ELIZA MABEE, his Wife, Respondents, v. ANDREW CROZIER, Appellant.

      Usury — an agreement to waive it, and not to set it up as a defense, is void.

    In 1878, the defendant, having commenced to foreclose by advertisement a. mortgage given to him by the plaintiff, the latter commenced an action to-have the said mortgage adjudged void for usury, and procured therein an injunction restraining the proceedings then pending for its foreclosure. Thereafter an agreement was entered into between the said parties by which the action was discontinued, and certain changes in the terms off payment of the mortgage made, and by which it was “further covenanted and agreed, that the defense of usury in the loan of the money secured by-said mortgage is forever waived and abandoned, and it is a part of the consideration of this agreement, that under no circumstances shall the said. Mabee set up, interpose, or take advantage of the defense of usury, in defense of any proceeding or action that may hereafter be commenced or prosecuted by the said Crozier, his executor, administrator, or assigns, to-foreclose said mortgage, or to recover the money due, and to grow due-thereon.”
    This action was brought by the plaintiff to restrain the defendant from continuing other proceedings subsequently instituted by him to foreclose the-said mortgage by advertisement, on the ground that it was void for usury.

      Held, that the agreement to waive the defense of usury, and not to set it up-in any subsequent proceedings, was void, and could not be enforced.
    Appeal from a judgment in favor of the plaintiffs, entered upon, the trial of this action by the court without a jury.
    In February, 1878, the defendant commenced proceedings to foreclose by advertisement a mortgage given to him in 1873 by the plaintiffs. The plaintiffs claiming that the mortgage was void for usury,, thereupon commenced an action to have the said mortgage declared; void; and to procure therein an injunction restraining the defendant from continuing the foreclosure proceedings then pending. After-issue had been joined in this action and the cause moved for trial, the-parties entered into an agreement in writing, by which the said action was settled and discontinued, and in which, after making-certain changes as to the times of payment of the amounts to fall due under the mortgage, it was “ further covenanted and agreed,, that the defense of usury in the loan of the money secured by said, mortgage, is forever waived and abandoned, and it is a part of the-consideration, of this agreement, that under no. circumstances shall the said Mabee set up, interpose, or take advantage of the defense of usury, in defense of any proceeding or action that may hereafter be commenced or prosecuted-by the said Crozier, his executor, administrator or assigns, to foreclose said mortgage or to recover the-money due and to grow due thereon.”
    In May, 1819, the plaintiffs, having again made default in the payments due under the mortgage, the defendant commenced proceedings to foreclose the mortgage by advertisement, whereupon the plaintiffs commenced this -action to have the mortgage adjudged void ; and procured an injunction restraining the defendant from foreclosing it.
    The court held the agreement to waive and abandon the defense of usury void, and directed a judgment in favor of the plaintiffs.

      Merritt Kirng, for the appellant.

      J. I. <& G. H. Baker, for the respondents.
   Bockes, J.:

The evidence in support of the alleged usurious agreement is not of the most conclusive character. It must be accepted, however, we think, as sufficient to sustain the finding of the learned judge. On 'the whole, the preponderance of evidence is in favor of the finding. The question then is,'whether effect must be given to the agreement made between the parties on the settlement and withdrawal of the former suit. It was then agreed that the defense of usury set up against the bond and mortgage should be waived, and under no circumstances be interposed or taken advantage of to defeat their enforcement.

It can hardly be claimed that a contract made between parties to a usurious agreement, that the usury should not be insisted on to invalidate it, can be binding. If such a contract may be enforced, the statute against usury may be- easily evaded. This result cannot be permitted on principle. If usurious, the contract is absolutely void, and no agreement between the parties to it can give it vitality,, nor can any valid binding contract be engrafted upon it. The taint of usury permeates all transactions based upon it, and all are void .alike. The bond and mortgage, if usurious, was not rendered valid '.by tbe new agreement. They still remained usurious and void. 'This second agreement was like giving a new security for the payment of the usurious loan, or a new promise to pay the debt. In such case all contracts growing out of the usurious agreement áre •alike, void. This rule of law is quite too familiar to require the •citation of authorities. This is not like the case of a settlement of a disputed claim. The agreement was to waive the usury. There was no concession that usury did not in fact exist; on the contrary, the very agreement not to -insist upon it presupposed its actual existence.

But it is urged that the agreement operated to defeat the defense * "by way of estoppel. But here was no representation or assurance that usury did not in fact exist. Besides, an estoppel has its foundation in good faith, in -the belief of the party to whom assurances are made of their truthfulness. In this case the agreement to waive the usury was between the parties to the usurious contract. The fact as to the alleged usury was known to both parties. There is no ground on which to base an estoppel.

Tbe judgment must be affirmed, with costs.

Learned, P.. J., and Follett, J., concurred.

Judgment affirmed, with costs.


text:
    BYRON GIBBS and FLORENCE A. SHERWOOD, Respondents, v. EDWARD S. ESTY and FRANK MINEAH, Appellants, Impleaded with BARZILLA GIBBS.

      JOower — may be assigned to widow by parol agreement, followed by her occupation —her entry defeats seizin of heirs — wife must be seized in fact, to give husband rights as a tenant by the curtesy.

    On March 5, 1857,-one Garrett S. Gibbs.died seized of certain real estate, leaving him surviving a widow, six children and one grandchild. After his death the widow occupied the homestead building and 'farm, until I860, when the farm was surveyed by the heirs aud persons interested therein, and the homestead building, together with sixty-six acres adjoining it, were set off and assigned to the widow as her dower, from and after which time she occupied and had the exclusive possession of the said buildings and sixty-six acres, down to the time of her death in April, 1870. In November, 1857, one of the heirs conveyed his interest in the real estate to the wife of one of the children, Elias T. Gibbs. Said wife died in 1866, leaving her husband and three children her surviving.
    In an action by two of these children to recover their interest in the land from the defendants, to whom it had been conveyed by their father in 1875,

      Meld, that the setting off of the land to the widow, with the consent and by the agreement of all the parties interested therein, and her actual occupation under and pursuant thereto, was a legal and valid assignment of it to her, as her dower.
    That, thereafter, the seizin of the heirs and of those claiming under them was defeated ab initio, and that the dowress was in of the seizin of her husband as of the time when that seizin was first acquired.
    That the wife of Elias T. Gibbs was never seized, in fact, of the premises, and ' that consequently lier husband had no right therein, as tenant by the curtesy, and nothing passed to the defendants by Ms conveyance to them.
    Appeal Ay-the defendants from a judgment in favor of tbe plaintiffs, entered upon tbe decision of the court after a trial without a jury. Tbe action was in ejectment, to -recover.two-tbirds of an undivided seventh interest in about sixty-six acres of land.
    On March 5, 1857, Garrett G. Gibbs, the ..grandfather of the plaintiffs, died intestate, seized in fee and possessed of a farm of about two hundred acres, situateln Lansing, Tompkins county, New York, of which the one hundred and thirty-two acres described in the complaint formed the westerly part. He left him surviving his widow, Nancy Gibbs, and six children and one grandchild, Henry G. Webster, the son of a deceased daughter, Louisa. -Elias T. Gibbs was one of tbe children, and is still living. Pie is the -father of the two plaintiffs and the defendant, Barziha Gibbs, by his .wife, Sarah L. Gibbs. These three were their only children. On November 23, 1857, the said Henry G. Webster quit-claimed all -bis interest in tbe said real estate to tbe said Sarab L. Gibbs. In April, 1860, tbe beirs-at-law, and all persons -interested in the matter, met and agreed upon a division among themselves-of the .lands, after first assigning to the widow, for her dower,-the north half of the one hundred and thirty-two acres, including the homestead buildings. The remainder they quit-claimed to each other in several parcels. The widow, from the death of her husband to the division in 1860^ occupied the homestead buildings in connection with the whole farm, and thereafter she continued to occupy said buildings, and the sixty-six acres assigned to her as her dower, and had the exclusive possession and enjoyment thereof as her dower continuously until her death. Sarah L. Gibbs died intestate, November 2, 1866, and Nancy Gibbs, the widow, died in April, 1870. After his wife’s death, and after the death of the widow, Elias T. Gibbs (in 1875) sold by warranty deed the one hundred and thirty-two acres (including the widow’s dower of sixty-six acres) to the Willey’s, and they, in the following year) in like manner, sold to the defendant Esty. The sixty-six acres was always treated and described by the heirs and the widow, and particularly by Elias T. Gibbs, as the widow’s rightful dower.
    The only defense insisted on by the defendants on the trial was that Elias T. Gibbs had a right as tenant by the curtesy to his wife Sarah L.’s interest in said sixty-six acres, which was an undivided seventh, and which descended at her death to her three children, the plaintiffs, and the defendant, Barzilla Gibbs.

      P. G. Ellsworth, for the appellants.

      Smith Brothers, for the respondents.
   Bockes, J.:

The only question in this case is whether Sarah L. Gibbs became and was so seized of the one undivided seventh part of the lands set off .and assigned to Mrs. Nancy Gibbs, as and for her dower, as to entitle Elias T. Gibbs, fhe husband of the former, to claim and hold, after his wife’s decease, as tenant by curtesy. The court at Special Term held against the defendant on this question. It was there decided, and we think correctly decided, that Sarah L. Gibbs had not, at any time during her life, such an actual seizin in fact and in deed, of the premises in controversy, as entitled her husband, on her docease, to hold the same as tenant by the curtesy. It is well found that Nancy Gibbs had the actual, sole, and exclusive possession of the sixty-six acres, and the entire benefits thereof, continuously, from and after her husband’s decease until her death, which occurred after the decease of Sarah L., and that she held and •occupied the sixty-six acres from and after the time they were-set off to her in April, 1860, as and for her rightful dower. During all the time after the death of Garrett G. Gibbs until the decease of his widow, neither Sarah nor- her grantor, Webster, had more than a seizure in law. The setting, off of dower to Nancy, with the consent and by the agreement of all parties interested in the matter, and her actual occupation under and pursuant thereto, until her decease, was legal and valid as an assignment of dower. Such is the effect of the decision in Fowler v. Griffin (3 Sandf., 385). It was there held that an assignment of dower other than by a proceeding under the statute, became valid and obligatory upon the lieirs, by the widow’s entiy upon the lands assigned, and by the .adoption and ratification on their part of the assignment. So, too, it was held in Rutherford v. Graham (4 Hun, 796), that the right of dower was given by law, and that assignment of it might be made voluntarily by the heirs and widow; that this was but a mode of fixing the location and extent. (See also Conant v. Little, 1 Pick., 189; and Shuttuck v. Gragg, 23 Id., 88.) A parol partition by tenants in common will be valid and obligatory upon the parties, where followed by exclusive possession and acts of ownership by each tenant respectively. (Wood v. Fleet, 36 N. Y., 499; Otis v. Cusack, 43 Barb., 546.) The widow was in actual possession of the whole from the decease of her husband until her dower was assigned; and after that time, of the premises in controversy .as her' rightful dower. After the assignment, the seizin of the lieirs and of those claiming under them was defeated db ioiitio ; and "the dowress was in of the seizin of her husband, as of the time when that seizin was first acquired. (Lawrence v. Miller, 2 N. Y., 245; Graham v. Luddington, 19 Hun, 246; Lawrence v. Brown, 5 N. Y., 394.) In this last case it was held that the dowress, after .assignment of dower to her, was in possession as of the seizin of her husband ; and that her title related back to the time when her husband became seized.

It follows, therefore, that Sarah L. Gibbs was never seized in fact of the premises in controversy; consequently her husband had no-right by curtesy. (See also Ferguson v. Tweedy, 56 Barb., 168; affi’d in Court of Appeals, 43 N. Y., 543.) Ye find nothing in the cases cited by the appellant’s counsel against this, conclusion. The case of Adair v. Lott (3 Hill, 182), differs from this in hand on the facts, hence is not in point.

The judgment must be affirmed, with costs.

Learned, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.


text:
    JAMES ORMISTON, Appellant, v. HORATIO J. OLCOTT, Respondent.

      Trustee — cannot invest in bonds and mortgages on land out of the State — liability of, for accepting unautlurriaed securities from solvent estate of deceased co-trustee.

    A trustee cannot invest the trust funds in bonds and mortgages on real property situated out of this State, unless expressly authorized so to do by thc court, or by the instrument creating the trust.
    Where a trustee takes from the solvent estate of a deceased co-trustee, in whose hands the funds of the estate have been left, unauthorized securities, instead of money, he stands in the same position as if he had himself invested the funds of the estate in such securities, and is responsible for any loss that the estate may sustain thereby.
    Appeal from a decision of the surrogate of the county of Otsego, rendered on the petition of the appellant.
    Robert Ormiston died, leaving a last will and testament, which was duly admitted to probate by the surrogate of Otsego county, on December 4, 1842, wherein he devised and bequeathed his residuary estate, both real and personal, to "William M. Oliver, Oliver A. Morse and Horatio J. Olcott, as executors and trustees therein named, in trust, to apply the income and interest arising therefrom, to the benefit of his son, James Ormiston, the appellant herein, and his wife, during their lives, and during the life of the survivor of them, and at their decease, to pay over the principal to the grandchildren of the testator. Letters testamentary were granted to the said- Oliver,, Morse and Olcott, and they took npon themselves the execution of the trust on December 4, 1842. William M. Oliver died in the year 1863, and Oliver A. Morse in the year 1870.
    On the petition of Horatio J. Olcott, sole surviving trustee, to the surrogate of the county of Otsego, for an accounting, such proceedings were had in the Surrogate’s Court, that a decree was made therein, which recites that “ there still remains in the hands of said executor and trustee, the sum of §11,071.09, which said sum the said! executor and trustee is hereby ordered and directed to retain and properly invest' in good securities, and pay the income arising: therefrom, annually, on the first of April in each year, to James and Agnes Ormiston, according to the provisions of the said last will and testament, and after the decease of said James and Agnes Ormiston, ho is directed to pay said principal sum to the parties entitled thereto by the provisions of said last will and testament.”
    Olcott did not pay the interest or income due April 1, 1879, except the sum of §200, paid during the year 1878, leaving about §400 due at that date, which was duly demanded on April 1,1879,. and payment thereof refused by him.
    Thereupon, and in the months of May and June, 1879, petitions were filed by the cestui que trust, James Ormiston, before the surrogate of the county of Otsego, praying for an order that the said trustee show cause why he should not pay to the petitioner the amount due April 1, 1879.
    The answer of the said trustee to the said petition and the order thereon granted, is in substance that the said Morse, in his lifetime had sole charge of the trust funds. That he mingled them with his own funds. That after the death of the said Morse, this-trustee took, in the exercise of his discretion, a bond of parties in Toledo, State of Ohio, and a mortgage on lots in said city and State, payment of which was guaranteed by Anna Morse, sole legatee of Oliver A. Morse, who was then solvent, Morse’s estate being then perfectly responsible. That at the time he took the mortgage the value of the premises covered thereby was, in the opinion of competent experts, greatly in excess of the amount secured thereby. That he took the mortgage in good faith and in the full belief that it was the best arrangement he could make.
    The surrogate decided that, the “ mortgagors named in said mortgage have become insolvent, and that said trustee believed it was not good policy or for the interest of said fund to foreclose «aid mortgage, and that by reason of his not having received any income or interest from said fund, he has not been able to pay over any interest or income due April 1, 1879.”
    It was therefore “ ordered that the prayer of the petitioner be ' denied, and that said Olcott is not guilty of such wrong-doing or neglect of duty as renders him personally liable for any loss from his inability to collect the said mortgage or the interest thereof.”

      H. Spurges, for the appellant.
    The taking of the bond and mortgage was unauthorized, and renders the trustee personally responsible. The trustee can only protect himself by making investments recognized by the law and the rules and practice of the court. Perry on Trusts, 453; Spiles v. Beeman, 1 Lans., 90; Stuart v. Stua/rt, .3 Beav. 430 ; Lewin on Law of Trusts, 6 ed., 290 ; Exp. Copeland, Pice Eq., [S. C.,] 69; Matter of Rush, 12 Penn. 378; King v. Talbot, 50 Barb., 453-483; Aelcerman v. Emmett, 4 Barb., 626; King v. Talbot, A0 N. Y., 76 ; Hill on Trustees, 370.)

      Samuel A. Bowen, for the respondent.
   Bockes, J.:

At the death of Mr. Morse there was no investment specifically belonging to the trust. The estate of Mr. Morse was solvent. It was the duty, therefore, of the surviving trustee, Mr. Olcott, to require from the estate of Mr. Morse payment in cash of the amount owing to the trust, or the delivery of securities to that amount, of the kind in which trustees may invest. The acceptance of the Toledo securities was, therefore, a voluntary act of Mr. Olcott, by which he placed the trust estate in that kind of investment.

~W e do not think that a trustee is allowed to invest in bond and mortgage out of the State. Certainly, not without express authority by the court or by the instrument creating the trust. So the rule has always been understood; and the rapid growth of new and «lightly settled States is no reason for relaxing the rule, but rather for adhering to it more firmly. Treating, then, the acceptance of the Toledo bond and mortgage as practically an investment made •by Mr. Olcott, Ate think it was unauthorized.

If the cestui gw trust, being of full age and in a condition to understand his rights, had approved the act when it was done, or, perhaps, aftemards, this might have relieved the trustee. But we •see no sufficient OAddence of this. Mr. Olcott made a voluntary •accounting before the surrogate. In that account he states hoAV the funds are invested. But in the decree of the surrogate, made thereupon, there is no recognition or approval of the investment. The surrogate therein finds that Mr. Olcott has a certain sum in his hands, Avhich he orders him to retain and properly invest in ■good and sufficient securities. Now, if anything is to be inferred from that decree in regard to the Toledo bond, it is that the surrogate, on the hearing of all parties, would not approve of the investment, but would only determine the amount in Mr. Olcott’s hands, and direct him to invest that amount properly. This is the more reasonable view, since it noAv appears that Mr. Olcott had, in addition to the Toledo bond and its collaterals, the personal obligation of the residuary legatee of Mi’. Morse, a person then solvent,

We have no reason to doubt that, in taking the Toledo bond, Mr. Olcott acted in good faith. If the estate of Mr. Morse had been insolvent, it might have been a proper act for Mr. Olcott to take the best securities which he could get, even though they were not of the kind in which trustees may invest.

We think that the order or decree or the surrogate should be reversed, with costs, and the prayer of the petition granted, the form of the proper order to be settled by Judge Bockes.

Learned, P. J., and Westbrook, J., concurred.

Order reversed, with $10 costs, and disbursements; prayer of ■petitioner granted;

order to be settled by Bockes, J.


author: Foldett, J.: Per Curiam:

text:
    ANDREW JOBBITT, as Overseer of the Poor, &c., v. CHESTER GILES, Respondent. TRUMAN M. BROWN, Appellant.

      Action in the name of the overseers of the poor — what does not a/athorize one to-bring it — costs.
    Where a person brings an action, in the name of an overseer of the poor, to-recover a penalty for a violation of the provisions of the excise law, without having first made complaint to the said overseer of the alleged violation, accompanied with reasonable proof thereof, the action is unauthorized, and such person is personally liable to the defendant for the costs thereof.
    To authorize a private person to bring such an action, the complaint made to» the overseer of the poor should be so definite, and should be accompanied with such proof, as to satisfy the overseer that a penalty has been incurred, or to enable him to investigate and decide whether or not there has been a, violation of the statute.
    Appeal from an order made at a Special Term, charging the costs-of this action against Truman M. Brown, by whom this action was brought in the name of the overseer of the poor.
    Brown complained to Jobbifct, the overseer of tbe poor of the town of Montour, that the defendant had incurred penalties for violations of the excise law. The overseer neglecting for ten days-to prosecute, Brown brought the action pursuant to sections 22 and 30 of chapter 828 of Laws of 1857, as amended by chapter 820 of Laws of 1873.
    The following is a copy of the complaint made by Brown to tbe overseer:
    “State oe New York, ) County oe Schuyler, f
    . ' ’
    . “ Truman M. Brown, of the village of Havana, in the town of Montour, and county of Schuyler, and State of New York, being duly sworn, complains upon oath to the overseer of the poor of said town of Montour, comity of Schuyler, and State aforesaid, and alleges and avers upon information and belief, and charges tbe fact to be true, that one Chester Giles, of tbe said town, county and State, has incurred tbe penalty or penalties mentioned and prescribed in the 14th section of the act entitled: ‘ An act to suppress intemperance, and to regulate the sale of intoxicating liquors/ passed April 16, 1857, by selling for and during the months of January, February, March, April, May, and up to the 10th day of June, 1879, in said town, county and State aforesaid, to divers different persons, strong or spirituous liquors or wines, to wit: rum, •gin, brandy, whiskey, wines, ale, lager beer and strong beer, to be drank in his house or shop, or in his out-house, yard or garden appertaining thereto, or has suffered or permitted such liquors or wines sold by him, or under his direction or authority, to be drank in his house or shop or in an out-house, yard or garden thereto belonging, without having obtained a license therefor, as an inn, tavern or hotel keeper, contrary to and in violation of the provision of .the aforesaid act, passed April 16, 1857, and the acts supplementary thereto and amendatory thereof. ■

      “ That said Chester Giles keeps and maintains a saloon in said town, county and State, wherein he keeps strong or spirituous liquors or wines for sale, and that he sells the same, and for and during said months and year of 1879, aforesaid, has sold the same tobe drank in his bouse or shop, or out-house, yard or garden appertaining thereto, without having a license to sell the same, as an inn, tavern or hotel keeper.
    “ That said Chester Giles has no license to sell strong or spirituous liquors or wines in any shape, way or form, or in any quantity whatever, to be drank in his house or shop, or out-house, yard or garden belonging to the same.

      “ I hereby ask and demand that you, as overseer of the poor of said town, county and State aforesaid, prosecute said Chester Giles, for the‘penalty or penalties prescribed by and in the 14th section, of the said act aforesaid.
    “ TRUMAN M. BEOWN.
    Subscribed and sworn to before me, 1 this 14th day of June, 1879. f
    “ M. T. Brodriok,
    “ Justice of the Peace.
    “ To Andrew Jobbitt, as overseer of the poor of the town of Montour, in the county of Schuyler, and State of New York.”

      .• • The overseer moved at Special Term for a dismissal of the action, Upon the ground that the complaint to him was not accompanied by reasonable proof that the defendant had violated the act.
    Brown resisted the motion, but it was granted, with costs of the motion against him. But costs of the action not being asked for against him in the notice of motion, the question of his liability for such costs was reserved.
    ■ In November, 1879, the order dismissing the action was affirmed at General Term. Upon motion at Special Term, it was ordered ■that the defendant recover costs of the action against Brown personally, upon the ground that he brought the action without authority or legal right. From this order Brown appeals.

      L. M. Gonldm, for the appellant.

      8. G. Keeler, for the respondent.
   Foldett, J.:

When a person prosecutes in the name of an overseer of the poor, without having complied with the statute, the action is unauthorized, the act unlawful, and the person instituting the action is chargeable with the costs thereof.

It has long been the law that persons carrying on actions in the name of another without authority, are chargeable with the costs. (Butterworth v. Stagg, 2 Johns. Cases, 291.) Persons not parties to the record are frequently charged with costs. The statute under which this action was brought, authorizes “ any other person to prosecute,” to become the prosecutor in the name of the overseer. Brown became the prosecutor without authority, and is liable for the costs.

' The question of the absolute liability of a person for costs, who, after complying with the statute, rightfully brings an action, but is defeated, is not in this case.

The order appealed from should be affirmed with $10 costs, and the disbursements for printing.

Learned, P. J., and Bockes, J., concurred.

Order affirmed, with $10 costs, aud disbursements.

At the same term a motion was made for a re-argument of the case. The decision of the General Term, affirming the order .dismissing the complaint in this action, was made in November, 1879. Upon the re-argument the following opinion was delivered.

Per Curiam:

"We have examined the papers in this case, and the printed arguments for and against a re-argument; and we see no reason to grant the motion. By chapter 628, Laws of 1857, section 30, -the right to prosecute for penalties is given to any person in case the overseers, &c., shall neglect, for ten days after complaint that a provision of the act has been violated, “ accompanied with reasonable proof of the same.” In this case there was no reasonable proof, we might say that there was no proof presented to the overseer that Giles had violated the act. • The complaint presented was on information and belief; its allegations were of the most general kind, stating-that Giles bad sold liquors during five months to divers persons, not even identifying the kind of liquor, or where it had been drunk. Such a complaint can impose no obligation on the overseer to prosecute. The plain meaning is that the complaint shall be so definite, and shall be accompanied with such, proof as reasonably to satisfy the overseer, or if he is not satisfied, to enable him to investigate and decide whether or not there had been a violation of the statute.

The motion for re-argument is denied with $10 costs against Brown.

Present — Learned, P. J., and Bockes, J..; Follett, J., not ..acting.

Motion for re-argument denied, with $10 costs, and disburse--^ ments.


author: Eollett, J.:

text:
    ESTHER K. PORTER, Respondent, v. WILLIAM H. COBB, Appellant. AND FOUR OTHER CASES.

      Trespass — when successive actions for, cannot be maintained.

    Oa January 2,1878, the defendant, a collector of taxes, in pursuance of a -warrant directing him to collect from one Oliver Porter the sum of $19.30, levied upon a wagon and other property belonging to him, whicli was then upon a lot owned by Porter’s wife, the plaintiff, upon which they then resided, and whereon the said Porter had been accustomed for many years to keep this and other property. On January 19, the defendant, having satisfied tile demand of the warrant by the sale of the property other than the wagon, returned it to the plaintiff’s lot, although she had on January 9 for-hidden him to put it upon her premises. January 19 the plaintiff sued the defendant in a justice’s court for trespass in wrongfully entering upon her premises and leaving the wagon there, and recovered a judgment for .six cents damages, and $6. GO costs. On January 22, 24, 26, 29, and February 4, 1878, the plaintiff brought other actions against the defendant, alleging that he had wrongfully left the wagon on her lot on January 19, and refused to move it on the above mentioned dates, although requested so to do by the plaintiff, in each of which actions she recovered nominal damages and costs.

      Held, that the injury to the plaintiff’s rights was the direct result of a single act of the defendant, in thus entering and leaving the wagon upon her premises, and that tbe judgment recovered in the first action was a satisfaction thereof, and a complete bar to the actions subsequently brought.
    Appeal from judgments of tbe County Court of Cortland county rendered in tbe above entitled actions, upon appeals taken to it from judgments rendered in a justice’s court.
    Oliver Porter resides with tbe plaintiff (who is his wife), in Union School district, number one, in the town of Homer, New York. Tbe defendant is tbe collector of taxes of said district.
    November 9, 1877, a tax warrant .was issued to tbe defendant, by which be was directed to collect tbe sum of $19.30 from Oliver Porter. December 20, 1877, tbe warrant was renewed for thirty days.
    Oliver Porter, upon demand being made, refused to pay bis tax, and January 2, 1878, tbe defendant levied upon a wagon and ether property belonging to him. This property was seized upon, .a village lot owned by tbe plaintiff, on wbicli she and her husband resided; and whereon Oliver Porter had been accustomed, for .some years, to keep this and other property.
    The wagon was not sold, other property seized selling for sufficient to satisfy the demand of the warrant.
    January 9, 1878, the plaintiff forbade the defendant to return the property taken to her premises; but nevertheless, the defendant, January 19, 1878, returned the wagon to plaintiff’s lot, from which he had taken it at the time of the levy.
    January 19, 1878, the plaintiff notified the defendant to remove •the property from her land, and that, if he neglected to remove it, she would sue him for trespass every day while the property remained.
    EIEST ACTION.
    January 19, 1878, the plaintiff commenced an action against the •defendant in a justices’ court, and alleged :
    “That on the 19th day of January, 1878, the defendant wrongfully broke and entered upon said land, trampled upon the same, .and left thereon certain property, and a certain wagon and other articles, to the damage of the plaintiff $51.00.”
    The defendant answered, justifying the taking, and returning, •as collector.
    The action was tried and resulted in a judgment, April 16, 1878, for the plaintiff, for six cents damages and $6.50 costs, which judgment was not appealed from.
    SECOND ACTION.
    January 22, 1878, the plaintiff commenced a second action .against the defendant in a justice’s court, alleging that January 19, 1878, the defendant unlawfully broke and entered plaintiff’s premises, carried and left thereon a wagon; which, January 19, 1878,. the plaintiff requested the defendant to remove; all of which the •defendant refused to do, and that the wagon.remained on plaintiff’s premises during January 21, 1878. The defendant answered, justifying the taking, returning and leaving, as collector, and pleaded the judgment of April 16,1878, in bar.
    The action was tried before a jury, which rendered a verdict for the defendant, and judgment was entered thereon.

      The plaintiff appealed to the County Coux*t, which reversed the-judgment. The defendant appeals to this court.
    THIRD ACTION.
    January 24, 1878, the plaintiff commenced a third action against the defendant in a justice’s court, alleging the same facts averred in action number two, except that the wagon remained on plaintiff’s, premises during January 23, 1878.
    The defendant answered as in' action number two, and also-alleged that several other actions were then pending before the same court, involving the same matters which are a defense to this action.
    FOURTH ACTION.
    January 26, 1878, the plaintiff commenced a fourth action against the defendant in a justice’s court, alleging the same facts averred in action number two, except that the wagon remained on. plaintiff’s premises during January 25, 1878.
    The defendant answered as in action number three.
    FIFTH ACTION.
    January 29,1878, the plaintiff commenced a fifth action against the defendant, in a justice’s court, alleging the samo facts averred in action number two, except that the wagon remained on plaintiff’s-premises during January 27, 1878.
    The defendant answered as in action number three.
    SIXTH ACTION.
    February 4, 1878, the plaintiff commenced a sixth action, against the defendant in a justice’s court, alleging the same facts-averred in action number two, except that the wagon remained on plaintiff’s premises during February 4, 1878. The defendant answered as in action number three.
    Actions numbers three, four, five and six were tried before the justice, who rendered a judgment in favor of the plaintiff for - six cents damages, and three dollars and fifty cents costs in each. The defendant appealed in each action (except number one) to the County Court, which affirmed the judgments. The defendant appeals in each action (except number one) to this court.

      Waters (& Knox, for the appellant.
    The first action extinguished all claims for damages arising from the wrongful act of January 19, 1878, alleged in the first complaint, whether those damages were direct or indirect, immediate or consesequential. (Vedder v. Vedder, 1 Denio, 257; Gates v. Preston, 41 N. T., 113 ; Blcuir v. Bartlett, 75 Id., 150 ; Oromwell v. Goimty ofSae, 94 TJ. S. [4 Otto], 351; 8 Wend., 492; 15 Johns., 229.) This would be so on another principle, to wit: “ Where a party liastwo or more remedies for the same wrong, in which the measure of damages might be different, electing one and pursuing it to judgment is a bar to any other remedy.” (Electing trespass is a bar to-case.) Plaintiff had his election in this case. (1 Denio, 257; 57 Me., 414; 53 Id., 346; 14 Am. R., 565 ; 27 Me., 441; 97 Mass., 15 ; 1 Allen, 47; 9 Id., 472; 6 Cush., 103 ; 3 Gray, 372; 13 Johns., 121.)

      0. Porter, for the respondent.
    New actions may be brought for new injuries accruing from the wrongful act in all cases where-prospective damages cannot be assessed. In the cause in hand, prospective damages could not be assessed. The court could not assume the nuisance would be continued. (Whitmore v. Bisehoff, 5 Hun, 176 ; Smith v. Elliott, 8 Pa. St., 345 ; Eish v. Dodge, 4 Denio, 311— 317 ; Loftin v. McLeucore, 1 Stewart [Ala.], 133; Plate v. New' York Central P. R. Co., 37 N. Y., 472; Merserecm v. Pearsall, 19 Id., 108 ; Greenl. Ev., § 622 ; 1 Addison on Torts, 332; Holmes v. Wilson, 10 Adol. & Ell., 503; 37 E. C. L., 161; Thompson v. Gibson, 7 Mees. & W., 456; 7 E. C. L., 455 ; Bowyer v. Cook, 4 C. 13,,. 236; 2 Waterman on Trespass, 244, § 831; Beckwith v. Griswold, 29 Barb., 291; Hess v. B. N. F. R. R. Co., 29 Id., 391; House v.Cowing, 1 Bans., 288; Shadweil v. Hutchinson, 2 Barnw. & Aid., 97; 2 Hilliard on Torts, 6, § 5, b; Filer v. New York Central R. R. Co., 49 N. Y., 42; Case v. Shepherd, 2 Johns. Cas., 27;. Maha/n v. New York Central R. R. Co., 24 N. Y., 658.)
   Eollett, J.:

The injury to the plaintiff’s rights, if any, was the direct result of entering and leaving the wagon on her premises, — which was a, •single act, and for which the first judgment was an ample satisfaction, and is a complete bar to the subsequent actions. The cases wherein judgments have been recovered for subsequent damages •occasioned by trespasses, are those in which ■ the wrongs are continued and maintained by the defendant to the further actual injury of the plaintiff.

In this case, the defendant’s act was not productive of actual •damages to the plaintiff: only nominal damages are assessed by the judgments. The cases cited by the county judge, and relied upon by the plaintiff, lend no support to these judgments. In Holmes v. Wilson (10 A. & E., 503), the defendant erected and maintained buttresses on the plaintiff’s land for the support of the •defendant’s turnpike. In Bowyer v. Cook (4 C. B., 236), the defendant placed, and continued earth, stumps, and stakes in a ditch, .adjoining the plaintiff’s premises, causing water to flow upon them. .In both cases the defendant continued to maintain the cause of the •injury to the plaintiff’s land, which resulted in actual damages; and the plaintiff was entitled to recover. Such is the law of this State. (Mersereau v. Pearsall, 19 N. Y., 108; Plate v. New York Central R. R. Co., 37 Id., 472.) No case has been cited, and we •think none can be found, holding that a plaintiff may recover successive judgments where only nominal damages have been caused by a signal act of the defendant, which is in no wise continued.

These actions are without merit, and were not brought to redress real grievances. Since the wagon was left upon the plaintiff’s lot, nothing has been done by the defendant to keep it there. The ■defendant neither claims nor exercises any control over it or its lo•cation. IBs warrant having been satisfied, he has, as against the owner, no right to remove it. The license to Oliver Porter to occupy personally and with his property the premises of the plaintiff has not been revoked nor claimed to be. It is apparent that the -plaintiff and her husband sought to put this public officer between two fires by rendering him liable to suit by the wife if he failed to -.remove the wagon, or if he did, to a suit by the husband for removing it. The judgment of the County Court, reversing the judgment of the justice’s court in the action commenced January 22, 1878, is reversed, and the judgment of the justice’s court is affirmed, with costs.

The judgment of the County Court and of the justice’s court in the action commenced January 24, 1878, are reversed, with costs.

The judgment of the County Court and of the justice’s' court in the action commenced January 26, 1878, are reversed, with costs.

The judgment of the County Court and of the' justice’s court in the action commenced January 29, 1878, are reversed, with -costs.

The judgment of the County Court and of the justice’s court in the action commenced February 4, 1878, are reversed, with ■costs.

Present — Learned, P. J., Bocees and Follett, JJ.

Ordered accordingly.-


author: .Follett, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK v. NATHAN BEMAN.

      Certiorari — decision overruling demurrer to indictment — when not reoiewdble l>y.

    A decision overruling a demurrer interposed to an indictment, and directing that judgment be given for the People, unless the accused plead over, cannot be reviewed upon a certiorari before a judgment has been entered on the decision.
    The court cannot review the decision before entry of judgment, even though the counsel for both of the parties agree that it may so review it.
    Certiorari to review a rule or order of the Court of Oyer and Terminer, overruling a demurrer interposed by the accused to an indictment found against him.

      John P. Badger, district attorney, for the People.

      Leslie IF. Bussell, for the defendant.
   .Follett, J.:

One Baker was charged with the crime of arson.' Nathan Beman ■was indicted as an accessory before the fact, lie interposed a demurrer to the indictment, which was overruled, the decision by the Oyer and Terminer being, that judgment be given for the People upon the indictment, unless he plead over. A judgment was not entered. Beman seeks to review the decision of the Oyer and Terminer upon certiorari.

In a criminal case prosecuted by indictment, if judgment be entered on a demurrer, the judgment maybe reviewed upon a writ of error. (People v. Reagle, 60 Barb., 527, 543.) But we find no authority at common law or under the statutes for reviewing a decision of the Oyer and Terminer, overruling a demurrer, upon a certiorari before judgment. The decision sought to be reviewed by this writ is not a judgment, nor a termination of the action. (People v. Walter, 68 N. Y. 409.) This practice being without precedent or authority, we cannot review the decision because counsel are agreed that it may he so reviewed. It might become a troublesome precedent, and it may well be doubted whether any decision made by this court under such circumstances would be binding on the parties. The writ of certiorari must he quashed.

Learned, P. J., and Bockes, J., concurred.

Certiorari quashed.


author: Follett, J.:

text:
    BRIDGET JONES, Administratrix, Respondent, v. THE NEW YORK CENTRAL & HUDSON RIVER RAILROAD COMPANY, Appellant.

      Master — duty of, as to furnishiny his servants with safe machinery.

    A master is not absolutely bound to furnish bis servant with safe machinery, nor does be guarantee that the machinery furnished is perfect. He is only required to use due care and diligence in the selection and use thereof. The degree of care required of him is to he measured by the circumstances of each case, and depends upon the kinds of machinery used, the risks incident to its use, and the hazards of the business in which it is used.
    Appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried, after a verdict rendered in favor of the plaintiff.
    The action was brought to recover damages for the alleged negligent hilling of the plaintiff’s intestate by the defendant.

      Samuel JUcmd, for the appellant.

      Amasa J. Pcvrlcer, for the respondent.
   Follett, J.:

The plaintiff’s husband was employed by the defendant as a brakeman on a freight train. While in this service he was killed. No person saw the accident causing his death.

The complaint alleges that the defendant negligently and carelessly furnished and used a freight car with a defective and unsafe round or step in a ladder on the side of the ear.

The theory of the plaintiff is, that the decedent, while passing up or down the side of this freight car, fell by reason of a defective or unsafe round, or step, and was killed. The court charged the jury: “ Defendant was bound.....to furnish proper and safe machinery and implements, facilities, and materials for the use of its servants.” Again, it was said : “ It was bound to furnish to its servants cars which were in a safe condition to be used by the .servants. If the steps or ladders upon the freight cars . . ’. were unsafe, and in tlicir proper use by the deceased one of the .steps or rounds or rods of the ladder gave way, and by the giving way of such rod or step the deceased fell from the train and was lulled, the defendant is liable, unless his own negligence contributed to the result.”

Again, it was charged: “ It was bound to see that the cars of •others, which they transported, and upon which they placed their own servants to handle them, were in a safe and proper condition to be used by the servants ; not only the cars, but the machinery should be safe, in order to prevent accidents to their employes.”

At the close of the charge the defendant excepted to this proposition, and the court again said: “ 1 charge, as matter of law, it was the absolute duty of the defendant to have those cars in safe condition; whether the inspectors did their duty or not is a question for the jury.” To this, the defendant excepted.

The master is not absolutely bound to furnish his servants with safe machinery. Such a rule would make the master an insurer, and liable for injuries though he exercised the greatest diligence and prudence in the construction or purchase, and in the care and reparation of the machinery. The master does not guarantee that the machinery furnished is perfect. The law only requires him to-; use due care and diligence in the selection and use of the machinery. The amount of care required is measured by the circumstances of each case, depending upon the -kinds of machinery used, the risks-incident to its;use, and the hazard of the business in which used.

To hold the master liable for defects not ascertainable by known tests, and by the exercise of due care, would render him liable for every accident occurring, without the fault of the servant, by the'-, breaking of machinery. In the present case, thirty of the thirty-eight cars in the train were from other roads. The' defendant did not select them, or the materials from which they were-made. All it was called upon to do, and all it could do, was through diligent and skillful servants to exercise proper care to prevent the use of unsafe machinery by its employees.

“ If injury arises from defect or insufficiency in the machinery or implements furnished to the servant by the master, knowledge of the defect or insufficiency must be brought home to the master, or proof given that he was ignorant of the same, through his own negligence and want of proper care. In other words, it must be shown that he either knew, or ought to have known, the defects which caused the injury.” (Wright v. New York Central R. R. Co., 25 N. Y., 566; Warner v. Erie Railway Co., 39 Id., 468; Faulkner v. Erie R. R. Co., 49 Barb., 324; Malone v. Hathaway, 64 N. Y., 5; De Groff v. New York Central & Hudson River R. R. Co., 76 Id., 125; Gibson v. Pacific R. R. Co., 46 Mo., 163; Wharton’s Law of Negligence, §§ 211, 212, 232.)

Tiie ordei denying a new trial is reversed, the verdict set aside, and a new trial ordered; costs to abide the event.

Learned, P. J., and Bockes, J., concurred.

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


text:
    REUBEN COMINS, Respondent, v. JONATHAN W. POTTLE, Appellant.

      Joint undertaleing on appeal — surviving surety liable to the successful pa/rty, in-ease the other surety ¿lies insolvent.

    Where, upon an appeal to tbe General Term, the appellant, in order to stay proceedings during the pendency thereof, gave a joint undertaking with, two sureties, one of whom thereafter became insolvent and died,

      Reid, that upon the affirmance of the judgment appealed from, the surviving" surety was liable to the plaintiff for the amount secured by the undertaking.
    Appeal by tbe defendant from a judgment entered upon tbe decision of tbe court overruling a demurrer to the complaint. -
    The complaint alleged that in March, 1876, the plaintiff herein, recovered a judgment in this court, upon the report of a referee,, against one Samuel A. Iletfield, from which Hetfield appealed to the General Term of this court, where the judgment was, in all things, affirmed with costs, and judgment of affirmance, with $174.81 costs, was duly entered up on December 14,1877. Notice in writing of the entry thereof was served on the appellant’s attorney December 17, 1877.
    That on bringing suclj appeal the appellant Hetfield procured and caused to be executed and filed the usual undertaking, signed and executed by Jonathan Pottle, the defendant here, and one Luther Bedfield, providing that the appellant Hetfield would pay all costs- and damages which might be awarded against him on such appeal, not exceeding $500 ; and the said sureties also undertook, in the usual form, that if the judgment appealed from, or any part thereof, should be affirmed, or the appeal dismissed, the appellant would pay to the plaintiff the judgment, if affirmed, and all damages and costs which should be awarded on such appeal.
    That after such undertaking had been executed, filed and served, Luther Bedfield, one of the sureties, became utterly insolvent, and afterwards died, leaving no property wherewith to pay his debts or liabilities.
    That the appellant in such suit has not paid any costs and damages awarded against him on the appeal, nor any part of tlie judgment which was affirmed.
    The defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action.

      H. JD. Betts, for the appellant.
    The defendant and his coobligor, Nedfield, having contracted merely as sureties, the contract is the measure of the liability of the defendant. (Wood v. Fish, 63 N. Y., 245 ; MoClushey v. Cromwell, 11 Id., 593.) The •defendant’s co-surety, Bedfield, being dead, his estate is therefore absolutely discharged both in law and equity from all liability on account of the undertaking in question. ( Wood v. Fish, supra; Getty v. Binsse, 49 N. Y., 385 ; Risley v. Brown, 67 Id., ICO.) The plaintiff cannot charge the defendant with a several liability upon a joint obligation, he being a mere smety. (Robertson v. Smith, 18 Johns., 459; Olmstead v. Webster, 8 N. Y., 413; Towers v. Moor, 2 Vern., 98; Simpson v. Ycmghn, 2 At., 31; Simpson v. Field, 2 Cases in Ck., 22; Summer v. Powell, 2. Merival, 30; Story Eq. Jur., §§ 163, 164; Perry v. Chestes, 12 Abb. Pr., N. S., 113.)

      R. A. Pazmenter, for the respondent.
   Eollett, J.:

A joint promise is severed by the death of one of the promisors; and the survivor remains liable. (Matter of Rice, 7 Allen, 112, 115; Kennedy v. Carpenter, 2 Wharton, 361.) In the case last cited, two persons became joint accommodation indorsers, and it was said that the survivor was liable on his promise. In Richardson v. Horton (6 Beav., 185), A. and B. were obligors in a joint bond. A., who was alleged to be the principal debtor, died. It was held that the assets of A. were not liable upon the bond ; but that the liability survived to B. Unless B.’s liability to the obligee survived the death of A., B. would have had no cause of action against the estate of A. (Grant v. Shurter, 1 Wend., 148; Godson v. Good, 6 Taunt., 587; Cabell v. Vaughan, 1 Saund., 291, notes; Fort v. Oliver, 1 Maule & S., 242; Weaver v. Shryock, 6 Serg. & R., 261; Getty v. Binsse, 49 N. Y., 385; 2 Chitty on Cont., 11 Am. ed., 1351, note S; 3 Williams on Ex., 6 Am. ed., 1842; Chitty Pl., 16 Am. ed., 49; 3 Robinson Pr., 106; 4 Id., 181.)

The judgment must be affirmed, with costs.

Learned, F. J., and Bookes, JJ"., concurred.

Judgment affirmed, with costs.