author: Per Curiam. Tappajst, J.

text:
    Pauline Friedlander, App’lt, v. The Delaware & Hudson Canal Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 28, 1890.)

    EAsement—Mebgbb.
    Where the dominant and servient estates are acquired by the same person an easement is merged and extinguished by the unity of estate and possession and upon a subsequent conveyance by the owner or lessee (in this case a railroad corporation), the question whether its grantee or assignee still has the easement is to be determined, not from .the covenants and agreements contained in deeds or leases creating the easement executed before the merger, but from the instrument of assignment and conveyance itself and from the situation of the property at the time the latter instrument was made.
    Appeal from judgment entered on decision dismissing the complaint, with costs.
    Action to compel defendant to remove a certain fence in front of plaintiff’s premises- and a railroad gate across Washington street, Saratoga Springs.

      John C. Hulbért, for app’lt; EdwinYoung,.for resp’t..
   Per Curiam.

The learned justice, who tried this case, wrote a very able, clear and exhaustive opinion.

We think it unnecessary to add anything to what he said; and we, therefore, affirm the judgment on his opinion, with costs.

Tappajst, J.

—The defendant is a railroad corporation organized under the laws of this state and is the lessee of the railroad and franchise of the Rensselaer & Saratoga Railroad Company, and the Saratoga & Schenectady Railroad Company, and is in the use and occupation of such railroad.

The track of the last named railroad crosses a public street in the village of Saratoga Springs, known as Washington street, nearly at right angles, said street running easterly and westerly and said railroad track northerly and southerly.

The plaintiff is the owner of a lot of land with the buildings thereon situated on the northerly side of the said Washington street and westerly side of said railroad.

Upon said lot on the northerly side of said street there are six brick dwelling-houses and on the easterly portion of said lot adjoining said railroad track is a wooden block containing six dwelling-houses, the southerly tenement in said block being also upon the northerly side of said street; also a wooden building occupied as a store and dwelling-house, said last named block and building being two stories high.

In the summer of 1880 the defendant erected two picket fences, one near the easterly and the other near the westerly side of its said lands occupied by it for railroad purposes; said fences are 6 feet 2 inches high, built of posts set in the ground 6 inches square, set on the westerly side of the westerly fence and on the easterly side of the easterly fence 6 feet apart, to which rails 2 by 4 inches are attached horizontally 4 feet apart; upon these rails pickets 2 inches wide and seven-eighths of an inch thick are nailed perpendicularly 2 inches apart; at the' bottom of the pickets is a base board placed horizontally nailed to the posts. Vaughn’s diagram given in evidence at the trial is a correct representation of such fences.

The said fence built by defendant on the westerly side of its tracks from the north side of Washington street northerly towards Division street, commences at the north-east corner of the northerly gate-post at the distance of 61} feet easterly of the westerly line of its said strip of land 60 feet wide between said streets, and runs thence northerly in a straight line 299 feet 9 inches to a point opposite the northeasterly corner of the said Barber lot which is 6 feet 2% inches east of defendant’s westerly line; a tight board fence runs thence westerly 6 feet 2£ inches to the northeasterly corner of said Barber lot; thence northerly on the westerly line of defendant’s said strip of land said picket fence runs to the defendant’s gate-post on the southerly side of Division street where the southerly line of that street intersects the westerly line of defendant’s said strip of land.

The said fence built by defendant on the easterly side of its tracks commences at the northerly post of its easterly gate across Washington street and extends thence easterly along the northerly line of said street 9 feet and 9£ inches; thence northerly, parallel with the westerly line of the United States hotel property and & feet 8 inches distant and westerly therefrom, to the defendant’s gatepost standing in the south line of Division street.

In 'the summer of 1880, defendant erected two gates across. Washington street, one easterly and the other westerly of its tracks; said gates were structures of timber, lumber, and iron rods, about 24 feet in height and occupying the whole width of the street; each gate supported by four posts of timber about 20 feet high, the northerly of said posts is 12 inches wide east and west and 19 inches wide north and south; the southerly of said posts are of the same dimensions; the end posts were placed outside the line of Washington street on defendant’s said land; between the inside gate-posts the space in said street is 26 feet 5-¡- inches, and the space for the sidewalk between the outside and inside posts is 12 feet; the gates across the sidewalk are about 4£ feet high with two bars across; one above and one below with pickets running from one to the other; such pickets are about 1¿ inches in diameter and 6£ inches apart, the gates across the highway between the sidewalks are made with a top and bottom rail with upright pieces 4 to 5 feet apart with an iron rod one-half inch in diameter running across diagonally. There is a superstructure of timber, iron plates and iron rods holding the sections together and making them one structure over the walks and carriage-way; at the top is arranged a covering for machinery to be used in raising the gates; when the gates are down the opening from the top of the same to such superstructure above is 13 feet and 3 inches.

The gates are raised at will by the use of machinery, and when raised to their usual height go into an opening above the said space of 13 feet and 3 inches and below the covering.

The gates are balanced by weights supported upon pulleys at the top of the structure; all the gates in the structure and at the same crossing in the two structures are opened and closed together by one man who operates a crank communicating motion to the gates by wheels, gears and shafts; such gates are ordinarily opened or closed in about five seconds.

Yaughn’s and Cramer’s diagrams put in evidence upon the trial are fair representations of the structures and gates.

Defendant at the same time erected a similar frame and posts, gates and superstructure from the north to the south line of Division street embracing the easterly and westerly track of their road.

The northerly of said gate-posts on the westerly side of the defendant’s tracks in Washington street is at least 3 feet east of the westerly line of defendant’s strip of land between Washington and Division streets and 6 feet easterly of the south house on plaintiff’s, said lot.

All the gate-posts are inside of defendant’s line of railroad; the inside posts are within the line of Washington street; said last named northerly'post is 10 feet 4 inches from the corner of plaintiff’s nearest house; and stands 3 feet 6 inches northerly of the northerly line of Washington street.

Plaintiff, in her complaint, alleges that this last mentioned gate prevents the free and uninterrupted passage of the public, the Elaintiff and her tenants along Washington street, and is a great indrance in the use of the street and sidewalk and obstructs a fair view of her said premises from the east side of defendant’s track in Washington street, and obstructs the light from her windows in the store and dwelling on the corner westerly of said structure, and has greatly lessened the rental value of said premises and buildings thereon; also, that the erection of the said fence westerly of defendant’s track prevents the free and uninterrupted access of the public, said plaintiff and her tenants, to and from her said premises, enjoyed for over twenty years, and has thereby greatly lessened the salable value thereof.

Also, that on the west side of defendant’s railroad track and the easterly line of her said premises, and intersecting Washington street on the northerly side thereof, a street or way for the free and uninterrupted passage of wagons, sleighs, other vehicles, horses, teams and pedestrians has been left opened, and used by the defendants and their grantors, the plaintiff and her grantors,, and the public, for the purpose of transit to and from Washington street, to and along the east side of her premises and other premises located northerly and to defendant’s depot and Division street, for a period of over twenty years, and that such gates and structures on Washington street and such fences have obstructed the use of said street or way to plaintiff’s great damage.

Plaintiff prays judgment directing the removal of the said structures on Washington street, and of the said fences, and also for damages suffered by her in the loss of rents and other use to the amount of $5,000, and for such other and further relief or judgments as seems just and equitable.

If the defendant has only built a fence upon its own land in which plaintiff had no right or title, and over which the plaintiff had no right to pass, although its motives were bad and plaintiff suffered injury from the act therein; no right to recover. Pickard v. Collins, 23 Barb., 445 ; Mahan v. Brown, 13 Wend., 261; Parker v. Foote, 19 id., 309; McKeon v. See, 4 Rob., 467; Phelps v. Nowlen, 72 N. Y., 39; Chenango Bridge Co. v. Paige, 83 id., 178, 188, 190; Wehle v. Conner, id., 232, 238; Kiff v. Youmans, 86 id., 324; Moak’s Underhill on Torts, 455; Gallagher v. Dodge, 48 Conn., 389, 391; Falloon v. Schilling, 29 Kan., 292; Dent v. Auction Mart Co., L. R., 2 Eq., 245; Swett v. Troy, 12 Abb., N. S., 100; Black River, etc., Co. v. Barnard, 9 Hun, 104.

A railroad company is not liable for consequential damages caused by acts authorized by the legislature and necessary to the exercise of its franchise, the consequence of which acts lessens the value of the property of others, provided it used due care and skill in the exercise of such authority and in the performance of such acts, i. e., unhealthiness and uncomfortableness proceeding from noise, smoke, etc., from an engine house adjacent to the dwelling house. Cogswell v. N. Y., etc., R. Co., 48 N. Y. Supr. Ct., 31.

And a railroad company is not liable for the manner in which surface water is affected by its embankment. Wagner v. Long Island R. R. Co., 2 Hun, 633 ; Morrison v. Bucksport, etc., R. Co., 67 Me., 353.

The gates across Washington street are common, usual railway gates of the most approved and effective kind, reasonably and skillfully adapted to their purpose, and were opened, closed and used in a proper manner.

Such gates when constructed were, and ever since have been, necessary for the protection and safety of ’the public and for the proper conduct of the defendant’s railroad business at Saratoga Springs.

The trustees of the village of Saratoga Springs have the authority of commissioners of highways over the streets of that village; they have the right to determine what is an obstruction to said streets at the point where the said railroad authorized by statute crosses them.

It is a question between such authorities and the defendant whether the gates are proper and necessary to guard and protect the public. Hayes v. Michigan Central R. R. Co., 111 U. S., 228 ; Textor v. Baltimore, etc., R. Co., 59 Md., 63 ; 2 R. S. 7th ed., 1253-4, §§ 102, 103, 104.

As the gates are permitted by the public authorities, and are necessary for public protection and safety and to enable the defendant to carry on its lawful business in a proper manner, although from their nearness to plaintiff’s property they cause more interruption and injury to her than to others, and in some degree injure her property, she is not necessarily entitled to recover for the injury any more than for other injuries to the property near the said road referred to in the cases above cited arising from the carrying on of railroad business. Chenango Bridge Co. v. Paige, 83 N. Y., 178, 188, 190; Benson v. Chicago, etc., R. Co„ 78 Mo., 504; Beals v. Stewart, 6 Lans., 408, 410 ; 1 Rorer on Railroads, 403.

The fence was not an unusual or unskillfully constructed fence for the purpose for which it was intended, and is not a structure of which plaintiff can complain unless defendant is restrained by some covenant from constructing and maintaining it. Nowell v. Boston Academy, 130 Mass., 209 ; Laws of 1854, p. 611, § 8.

Hothing is submitted in the brief of the plaintiff’s counsel ■claiming that the gates or fences were not carefully constructed upon the proper plan; her contention is that defendant can rightfully maintain no gates or fences, but is obliged to keep its grounds easterly of her premises whereon their tracks are located open and not obstruct the street near her premises.

The strip of land sixty feet' being the land used for tracks has been used by the defendant and. the railroad companies of whose rights it is the successor in the conduct of their business and under their control; that they allowed the public to pass over such grounds, keeping out of the way of the cars, locomotives and business of the companies, is no evidence of dedication of-any right to the public, or that the public use was adverse to that of the companies, but rather that such use was by permission of the railroad companies partly in furtherance of their own business in their interest and partly for the convenience of others under circumstances doing little or no injury to them.

Such use of itself never confers rights. Turra of the Harvest Manufacturing Co. v. Asa States, S. C. Dork, No. 2, 37, 8, and cases there cited.

The plaintiff in the brief submitted by her counsel has not made claim to recover upon any such grounds, but solely upon the breach of the covenant contained in certain deeds and durable leases hereinafter referred to.

On May 24, 1854, Samuel Freeman and James M. Marvin as executors and Harriet Marvin as executrix of Thomas J. Marvin, deceased, leased in perpetuity to the Saratoga & Schenectady Railroad company the lands described in the plaintiff’s complaint, together with all the ways, profits and advantages and hereditaments whatsoever to said premises belonging or which to and with the same now are or at any time heretofore have been held, used or occupied as a part or member thereof, reserving a yearly rent of $280 to be paid by the lessee to the lessor.

Soon after 1854, the said railroad company built a freight house upon this leased land, which" it continued to use as such freight house until the assignment of such lease as hereinafter mentioned, March 25, 1870. The particulars of such use are shown by the several findings made at the request of the parties, not necessary to be referred to here.

On June 13, 1860, the Saratoga & Schenectady Railroad Company leased all of its property in perpetuity to the Rensselaer & Saratoga Railroad Company.

On March- 25, 1870, said last named railroad company “in consideration of $2,000, to it in hand paid by Solomon Friedlander, granted, assigned and set over unto him such indenture of lease of the property therein described with its appurtances and all its right, title and estate of, in and to the same, to have and to hold the same with the appurtances thereof as therein described unto the said Solomon, his executors, administrators and assigns, for the residue of the term mentioned under the yearly rent, covenants and agreements therein reserved and contained, and under the further covenant and agreement, and this assignment is made only upon this express condition, that during the continuance of this lease there shall be no building erected on the property thereby ' demised to be used or which shall be used as a saw mill, planing mill, iron foundry, grist mill, tannery or brewery, but otherwise as fully and absolutely and in the same manner as the grantor hereof could be holden of the same under the said lease herein described and conveyed.”

All the rights of Solomon Friedlander in the. property described in the complaint were conveyed to plaintiff February 25, 1880.

The defendant is correct in its construction that the lease by Freeman and Marvin of plaintiff’s lot to the said railroad company above mentioned was a perpetual lease reserving a rent charge without reversion, and vested the fee in the company, with no estate in the lessors unless they should re-enter pursuant to the provisions in that regard in the lease itself, on forfeiture of such lease and the estate thereby granted. Van Rensselaer v. Hays, 19 N. Y., 68 ; Van Rensselaer v. Dennison, 35 id., 393, 399.

A portion of plaintiff’s land is part of lot Mo. 53 of the Putnam lots.

On August 10, 1833, John Dusty held this lot under a durable lease of the character of the lease above referred to. He then conveyed a portion of that lot to the Saratoga & Schenectady railroad then and still used as land for the said road.

That deed provided “ this conveyance being made with the express condition that the said railroad company, their successors or assigns, are not to erect or build any buildings or other erections on the said portion of the lot hereby conveyed, so as to injure oridepreciate the value of the other jiortion of the said lot not included in this conveyance.”

By mesne conveyance Dusty’s title to the portion of the lot Mo. 53 retained by him came to Thomas J. Marvin and Samuel Freeman, by deed from John Clark, about October 1,1847, and before the 1st of March, 1849.

On December 10,1832, Lewis Benedict and Thomas J. Marvin conveyed to the Saratoga & Schenectady Railroad Company a strip of land sixty feet wide, commencing at the Putnam line and running northerly to Division street, and thence in a curve to Broadway near the Arlington house, to be used and occupied only for the Saratoga & Schenectady Railroad Company. The grantors reserve their right to lay out and use any public street or streets which they may deem proper, crossing said main and branch railroad or either of them, also with the condition that if any part of the premises conveyed should cease to be used and occupied by the said company for the purposes for which they were thereby conveyed, that then such indenture should be void, and the said premises revert and become the sole property of the grantors, their heirs and assigns.

By resolution of the board of directors of said last, named railroad company, passed August 16, 1836, it was resolved to change the then landing place for passengers from Division street, on the branch railroad, to the main railroad; and to accomplish this object a certain preliminary agreement was entered into between the said railroad company and Benedict and Marvin, dated October 13, 1836, and the final arrangement was completed by deed dated October 17, 1836, from said Benedict and Marvin to the railroad company, and agreement between said parties, dated the day last named.

After careful examination of these deeds and agreements, I conclude that the failure to use the strip of land from Division street to Broadway for said railroad purposes would have caused the whole premises conveyed by said deed of December 10,1832, to revert to Benedict and Marvin, and while the deed and agreement of October 17, 1836, waived the right of such forfeiture, still the covenants in these instruments are impressed upon the land as effectually as though said deed of December 10, 1832, had not been made.

Also, that the only covenant that applies to the lands of Benedict and Marvin, between the Putnam line and Division street, is the following in the deed of October 17, 1836:

“ The portion of said strip of land lying south of the north side of Division street; to be used and occupied only by the said railroad company for the purpose of laying platforms, rails or tracks, and no buildings or erections to be placed upon the same.

“ And the said parties of the first part, their heirs and assigns, to have the privilege of passing and repassing upon and over the same without obstructing the passage of the cars upon said road.”

Also, “ they, the Saratoga & Schenectady Bailroad Company agree that piazzas on the east side of the new carriage house about to be erected by the Saratoga & Schenectady Bailroad Company, north of Division street, may extend ten feet in width up on the west side of said new street. In consideration of which the' said company are prohibited from laying' or having any track or rail within ten feet of the east line of the lands of the said parties of the first part, west of the strip heretofore conveyed to the said party of the second part to this indenture.”

The reference to this in the agreement from the said railroad company to Benedict and Marvin, of the same date of and referred to in said deed, is as follows : After referring to the two lots and the strip of land on the north side of Division street as having been conveyed to the said railroad company, it continues: “And also of a strip of land upon which this main railroad of the said company is now constructed, being sixty feet in width, to be used only for the purpose of laying rails or tracks upon the same.”

“ They (the said company) also covenant and agree that no rail or track shall be laid or had within ten feet of the east line of the lands of the said parties of the second part, west of the strip conveyed to the said parties of the first part by the annexed conveyance.”

This covenant did not apply to the Putnam lots, part of the plaintiff’s property, which were not purchased by Benedict and Marvin until between October 1, 1837, and March 1, 1849.

It could be operative only upon lot Ho. 1 of the Benedict and Marvin land described in the twenty-ninth finding made at plaintiff’s request, twelve feet of which was bounded on the east by the last mentioned strip of land conveyed by Benedict and Marvin to the said railroad company.

Did the lease from Freeman and Marvin to the said railroad company, dated May 24, 1854, convey the benefit of the covenant contained in the deed from Benedict and Marvin to the said railroad company, dated October 17, 1836, and the benefit of the covenant in the deed from John Dusty to the said railroad company, dated August 10, 1833 ?

It did not in terms, and I think that it did not in fact.

The lessee in such lease was the party whose land, then held and used by it, was bound by these covenants; when made it needed no such covenants for the benefit of the lands to be granted and demised. It was to give the lease land for a purpose inconsistent with="the restriction to lay no track within ten feet of its west bounds. As soon as such land vested in it under the proposed lease any easement for its benefit over their adjoining railroad lands, and any covenant restricting the use of such land, inconsistent with the use contemplated by the lease, was extinguished.

The lessee acquired nothing and nothing was granted to it by the lease except the ordinary rights of a lessee of the entire lot as a whole. Stevens v. Dennett, 51 N. H., 329. The easements were merged and extinguished' by unity of estate and posses- . sion of both pieces of land in the sam.e parties, the said railroad company. Whalley v. Tompson, 1 Bos. & Pull., 371; Parsons v. Johnson, 68 N. Y., 65-6; Pierce v. Selleck, 18 Con., 321.

Whether Solomon Friedlander ever had and the plaintiff, his successor, has an easement of' the character claimed by her over the defendant’s land is to be determined from the assignment itself and the situation of the property at the time it was made, irrespective of the covenants in the deeds and agreement herein-before referred to. James v. Plant, 4 Ad. & E., 749.

The phraseology of the assignment from the railroad company to Solomon Friedlander, dated March 25, 1870, is peculiar.

After reciting that it is made subject to the payment of rent, etc., and inserting conditions about buildings, it grants, assigns and sets over such indenture of lease of the property therein described, with its appurtenances, and then says in substance that the same are held “ as fully and absolutely, and in the same manner, as the grantor hereof (the railroad company) could be holden of the same under the said lease herein described and conveyed.”

While the said railroad company held the property there were no easements in its favor over its lands easterly, used for its tracks, and the assignment gave to the assignee the right to hold the property only in the same manner that the said railroad company could hold it, and did hold it, under the lease assigned. Treating the assignment as a grant of the estate to the railroad company, no right of way of necessity passed to Friedlander.

The leased premises had a frontage of 193^ feet on Washington street, and was bounded 112 feet on the said railroad land. The freight house, the only building upon the property when the assignment was made, fronted on Washington street, and was accessible therefrom; there was a space between the north line of the lot and the freight house; there was access to the whole length of the freight house along the west side thereof. It must have been in the contemplation of the parties that the freight house would no longer be used for business connected with the railroad.

• Under such circumstances Friedlander could arrange his buildings as he pleased upon his own land; whatever he did, gave him no right of access thereto or therefrom over the defendant’s land.

It does not appear that the railroad company was informed that Friedlander was building under claim of any right of defendant’s adjoining land, or that it any way encouraged or invited his acts. The railroad company is not estopped from claiming that plaintiff has no right- upon the lands. Snow v. Williams, 16 Hun, 468; Christianson v. Linford, 3 Rob., 215, 224; 19 Abb., 221; Corning v. Troy Iron Co., 40 N. Y., 191; affirming same case reported below, 22 How., 217; Pike v. Butler, 4 N. Y., 360; Rice v. Dewey, 54 Barb., 456; Adams v. Popham, 76 N. Y., 410, 413; Miller v. Platt, 5 Duer, 273.

The plaintiff’s complaint should be dismissed upon the merits, with costs. Ordered accordingly.

Judgment affirmed, with costs.

Learned, P. J., Landon and Mayham, JJ., concur.


source: Caselaw Access Project

author: Lakdow, J.

license: Public Domain

text:
    Frederick R. Farwell et al., App’lts, v. Lucien J. Prescott, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 28, 1890.)

    Pbaud—Bona vide purchaser.
    M., doing business in Canton, went to Ogdensburgh and there by bill of sale at 4 p.m. transferred to defendant, to whom he was justly indebted, the stock of goods “on sale” in his store at Canton, defendant surrendering notes held by him. Neither party knew exactly what was in the store. At 2 p.m. there was delivered by railroad at this store flour of plaintiffs which was sold on thirty days and which M. did not intend to pay for, he knowing himself to be insolvent. The same night defendant went to the store and took possession. Held, that defendant was a bona fide purchaser and could hold the flour as against the plaintiffs.
    Appeal from a judgment entered upon the decision of the court upon trial without a jury at the St. Lawrence circuit.
    The action was brought to recover the possession of flour worth $64.50 alleged to be the property of the plaintiffs and wrongfully ■detained by the defendant.
    Prior to October 29, 1889, Ellis J. McIntosh was keeping a grocery store in Canton, FT. Y. He was insolvent and knew it. He owed the defendant $1,500 upon a note due October 15th previously. The defendant on that day at Ogdensburgh, twenty-five miles distant from Canton, met Me Intoshand pressed him for payment or for security. McIntosh’s father was present. The defendant held a note of $800 against the father, which the father had given the defendant as an accommodation to his son. Various propositions were made. The result was that Ellis J. McIntosh at four o’clock in the afternoon executed and delivered to the defendant a bill of sale of his entire stock of goods “ on sale ” in his store in Canton. The defendant in payment thereof delivered up to the son his note against him for $1,500 and to his father the said note of $800 which he held against him, and promised to -pay the amount of the sou’s overdraft at the bank which proved to be $120. The defendant subsequently paid this overdraft. The defendant returned to Canton and took possession of the stock of goods and store that evening. Flo question is made that the consideration paid was not ample.
    At two o’clock on the afternoon of the same day a cartman drew from the railroad depot in Canton and delivered at the store the flour in question. Ellis J. McIntosh ordered it of the plaintiffs, who did business at Watertown, by letter dated Octobefl 19th, on the usual credit of thirty days. It reached the depot at Canton at ten o clock October 29th. McIntosh when it was delivered did not intend to pay for it. It had not been delivered when McIntosh left Canton for Ogdensburgh, October 29. Neither McIntosh nor defendant knew that it was in the store when the bill of sale was delivered. It was received during McIntosh’s absence, by his clerk. The defendant did not know except in a general way what was in the store when he took the bill of sale.
    The following is the opinion delivered by the trial court:
    Putnam, J.—Had McIntosh not parted with the possession, of the flour in question, under the facts proven, the plaintiff could have reclaimed it Testimony was given from which the inferences are that, being insolvent, McIntosh purchased the flour with intent not to pay for it
    The question in this case is, has defendant shown he is a purchaser in good faith and for value ? He is clearly a purchaser for value. Paddon v. Taylor, 44 N. Y., 371-2.
    It is an old rule that a fraudulent buyer may convey to a bona fide vendee for value good title. Simpson v. Del Hoyo, 94 N. Y, 194.
    And also, that no duty of active vigilance is cast upon the vendee, requiring him to suspect or investigate the motives of the vendor. Parker v. Conner, 93 N. Y., 119. '
    In this case defendant testifies in effect that he was a purchaser in good faith. It may be assumed that he had notice that McIntosh was insolvent, but there is no proof that he knew that McIntosh had bought the goods without intent to pay for them or fraudulently. The testimony is that McIntosh represented to .him that he owed no debts except an overdraft at the bank,, and should I find as requested by plaintiff I should be compelled tó presume fraud as against defendant in the absence of testimony showing its existence.
    I do not think that defendant’s title to the flour is affected by the fact that when he received the bill of sale of McIntosh he did not know that the flour in suit was delivered at the store. It. seems that he had taken no inventory of the articles in the store. He did not, in fact, know what was there. He paid the consideration on the faith that he was buying all the goods the title to-which was transferred to McIntosh that were in the store. On the faith that he was obtaining title to all the goods the bill of sale covered and which McIntosh represented were worth $2,500.
    I have reached the above conclusion with some hesitation, and hence conclude that- the judgment should be dismissed, with costs.

      Nelson L. Pobinson, for app’lts; John C. Keeler, for resp’t.
   Lakdow, J.

We adopt the opinion of the learned trial court. As between McIntosh and the plaintiffs, the fraud of McIntosh in not intending to pay for the flour gave the plaintiffs the better title to it. The fact that McIntosh after delivery had the right to reject the flour if upon inspection it should not be found to conform to his order, was McIntosh’s right, and not in any respect a right of ^he plaintiffs. The plaintiffs’ delivery was complete, and McIntosh thereupon could instantly sell the flour to a bona fide purchaser for value. Defendant was such a purchaser. The plaintiffs, however, contend that since neither McIntosh nor defendant knew at the time the bill of sale of the stock of goods was delivered to defendant that the flour had been delivered at the store, therefore no part of the consideration paid by the defendant for the stock of goods on sale was paid for the flour, and hence the case is not brought within the rule, that only he who has paid value or made advances, or incurred responsibilities upon the credit of goods obtained from the owner by fraud, can claim to own them as against such owner. Barnard v. Campbell, 65 Barb., 286; 55 N. Y.. 456; 58 N. Y., 73. But the fact is the defendant bought the stock of goods hastily, without an inventory, without previous expectation of buying them, and at best with but a rough and imperfect estimate or knowledge of the specific articles composing the stock. He bought them under the influence of a fear that unless he bought them McIntosh would manage to evade payment of the debt he owed him. He took the risk of the stock of goods being more or less than was estimated, but he certainly parted with the consideration upon the credit of whatever goods there actually were in the store. His reliance was that whatever were actually there on sale became his. To say that because he did not know about this flour, he did not deal upon the credit of it, would be to enunciate a principle which if applied in detail to the items of his stock might deprive him of them one by one. He dealt upon the credit of the mass of goods, and the flour proved to be a part of it.

Judgment affirmed, with costs.

Learned, P. J., and Mayham, J., concur.


author: Learned, P. J. Mayham, J.

text:
    James McNutt, Resp’t, v. William Shafer, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 28, 1890.)
    Lease—Eviction.
    Where one leased a farm to another but reserved to his own use an acre of ground and a considerable portion of his house, slight acts of the lessor by which the lessee’s rights were invaded, not objected to at the time and for which the lessee could prove no damages at the trial, do not amount to an eviction.
    (Mayham, J.,dissents.)
    Appeal from judgment in favor of plaintiff.
    Action to recover rent of a farm for quarter ending September, 30,1889, accruing under a written lease. Defense, denial, payment, breach of contract, eviction, etc.

      M. O G-. Nichols (Migene Burlingame, of counsel), for app’lt; D. J. Norton ( William F. Beutler, of counsel), for resp’t.
   Learned, P. J.

The general rule of law as to the effect of an eviction, total or partial, by the landlord is undisputed. The question here is: whether there can be said to have been a partial eviction ; that is, an eviction of the shed attached to the barn ; or of any other part of the leased premises.

We must bear in mind that the lessor reserved from the lease a large part of the house, an acre of land, the privilege of removing his hen house, stable room for a horse and some other matters. So that it is evident that both lessor and lessee were to live on the leased farm, and that the lessor was to be allowed to use certain parts of it.

Under these circumstances, it would not be strange if the two parties should occasionally infringe, one upon the other, in using their respective parts and privileges. Acts might be done by the lessor which were beyond the rights he had reserved. But if those acts were done without any objection by the lessee they ought not to constitute an eviction. ' °

In regard to the shed, it seems that plaintiff put in a front, doors and windows, and kept his hens there till, as a witness says, “ late this fall.” Then he built a new hen house in the orchard, and took his hens there, according to the privilege of the lease. It does not appear that the defendant objected. A tenant of defendant’s asked' for this place, and plaintiff refused it until he had built his new hen house, about the latter part of October. But it does not seem that the defendant interfered or objected to the use which plaintiff made of the shed.

It is said that plaintiff put a lock on the door. But he explains that this was to prevent the stealing of his chickens at night.

The learned judge offered to submit the question to the jury, how much deduction there should be for these trespasses on defendant’s rights, but the defendant declined this, claiming that there was an eviction, or at least claiming to go to the jury on the question'of eviction as a full defense to the action.

And while the general rule above referred to may apply" where there is a lease with reservation of certain parts of the premises and privileges therein to the lessor, still more distinct and clear proof of such eviction should be made in that case. For, as above suggested, the right of the lessor to go on the premises, to have possession of part, and to enjoy privileges over other parts, may easily go beyond its strict, bounds, without any intent to deprive the lessee of what belongs to him.

In this view it seems to me that the holding of the learned judge should be sustained and the judgment affirmed, with costs.

Laedoe, J., concurs.

Mayham, J.

(dissenting)—This action was upon the covenants in a written lease under seal, for the recovery of an alleged balance due plaintiff on rent.

The lease was for ten years of a farm from April 1st, 1888, and contained reservations to the lessor of the first story and all except three rooms of the second story of the main building of the dwelling-house, also about one acre of land in the rear of the hén house, with privileges of moving the hen house to the orchard; also stable room for one horse.

The lessee covenanted to pay $450 rent per annum in equal quarterly payments.

The claim in the complaint was for one quarter’s rent alleged to be due September 30, 1889.

The answer alleged denial, payment, breach of contract of letting, . eviction, offset, counterclaim for trespass and for use and occupation and demanded an affirmative judgment for defendant.

The proof showed that one quarter’s rent was in arrears at the time of the commencement of the action.

The evidence of the defendant tended to show that the plaintiff had kept all the stalls in the horse stable, except the one in which his horse stood, filled with leaves used for bedding for his horse, that he had the bay in the barn filled with his hay and occupied by him in that manner since the commencement of the lease to the exclusion of the defendant, and also some portion of the time the other bays in the barn had been occupied by plaintiff as a drying place for grain and screening which he procured at the malt house and used for feed, and also the barn floor for the storage of provisions, tools and farming utensils, to such an extent as to prevent or obstruct the defendant’s free use of the same.

The proof also showed that the plaintiff since the defendant’s occupancy under the lease has closed up a shed adjoining the barn formerly used by defendant for sheltering his stock, put in windows and a door and has kc¡Dt the door locked, using the same as a hen house and shelter for his horse. Other trifling instances of occupancy and interference with the premises by the plaintiff were also proved by the defendant.

The defendant insisted at the trial that these acts of the plaintiff constitute an eviction and bar the plaintiff’s right to recover rent, and upon that ground moved for a dismissal of the complaint.

The court denied the motion, and the defendant declining to give any evidence upon the question of damage for the alleged interference with his rights under the lease, the court directed a verdict for the plaintiff for the amount of the rent.

The rule that a wrongful eviction of the tenant by the landlord, of the whole or a part of the demised premises, suspends the right of the lessor to recover rents during the continuation of that eviction seems too well settled in this state to admit of discussion.

But in order to relieve the tenant from the payment of rent, under the covenants in the lease, there must be an actual physical eviction, either in whole or in part, from the demised premises.

A trespass upon the premises by the lessor not resulting in an actual exclusion of the premises, or any part of the same, will not have the effect of suspending the entire rent, while it may give a right of action to the lessee for the injury sustained by him.

In Dyett v. Pendleton, 8 Cow., 730, Spencer, Senator, in his opinion in the court of errors, lays down the general rule governing this class of actions, as between landlord and tenant, which was concurred in by the chancellor and has been uniformly followed since, as follows: “If the land demised be recovered by a third person by superior title, the tenant is discharged from the payment of rent after eviction by such recovery.

Second. If a part only of the lands be recovered by a third person such eviction is a discharge only of such rent as is in proportion to the value of land evicted.

Third. If the lessor expel the tenant from the premises, the rent ceases.

Fourth. If the lessor expel the tenant from a part only of the premises the tenant is discharged from the payment of the whole rent, and the reason for the rule why there should be no apportionment of rent is that, in this case, as well as in that of eviction by a stranger, it is the wrongful act of the lessor himself; that no man may be encouraged to injure or disturb his tenant in his possession who, by the policy of the feudal law, he ought to protect and defend.”

It is true in this case there was an abandonment by the tenant of the entire premises by reason of the maintenance by the landlord of a nuisance which rendered the occupation of the premises by the defndant improper.

In Lawrence v. French, Nelson, chief justice, says: “It is a familiar rule that if the landlord enter wrongfully upon,, or prevent the tenant from the enjoyment of a part of the demised premises, it suspends the whole rent until possession is restored.”

In Christopher v. Austin, 11 N. Y., 218, Parker, J., in delivering the unanimous opinion of the court of appeals, says: “The rule is that if a landlord enter wrongfully upon, or prevent the tenant from the enjoyment of a part of the demised premises, the whole rent is suspended until possession is restored.”

In Carter v. Byron, 49 Hun, 300; 17 N. Y. State Rep., 700, the court hold that when a part of the demised premises are wrongfully taken possession of by the lessor, without the permission of the tenant, the whole rent is suspended until the possession is restored.

These cases are not in conflict with Ogilvie v. Hull, 5 Hill, 52; Lounsbery v. Snyder, 31 N. Y., 514; Campbell v. Shields, 11 How., 365, or Boreel v. Lawton, 90 N. Y., 293, cited by the plaintiff.

In Ogilvie v. Hull, the landlord posted notices on the premises that they were for rent, and offered to let them before the expiration of the tenant’s term. Held, no eviction, because there was no act by the landlord or any one under him interfering with the use or occupation of the premises.

In Campbell v. Shields, 11 How., supra, the court held that if the landlord evicted the tenant, in whole or in part, his right to rent .was suspended ; but a mere trespass by the landlord upon the demised premises when he does not evict by taking possession or compel the tenant to leave the premises by the creation of a nuisance, the tenant is left to his action and must continue to pay rent.

In Lounsbery v. Snyder et al., supra., the court held that a mere trespass by the landlord, not interfering with the substantial enjoyment of the lessee, is not equivalent to an eviction.

To constitute an eviction of the tenant there must be an actual or constructive exclusion of the tenant from the possession or beneficial enjoyment either of the whole or some part of the demised premises.

In Boreel v. Lawton, supra, the court holds that to constitute a breach of covenant of quiet enjoyment an eviction, there must be actual or constructive, and that there cannot be a constructive eviction without abandonment of possession.

From these authorities it would seem that the acts or omissions of the plaintiff in allowing his geese, fowls and hees to remain upon the demised premises, or in not removing his ha)r, grain or farming utensils therefrom, while they might give the defendant a right of action for trespass or storage, would not amount to an eviction so long as the defendant remained upon the premises, and such interference with the full and complete enjoyment by the defendant of the demised premises would not constitute a bar to the right of the plaintiff to recover rent.

But the evidence discloses and it is not denied, but seems conceded that the plaintiff took exclusive possession of the shed attached to the barn, a building twenty-six by thirteen feet, which the defendant was accustomed to use as shelter for his teams, enclosed the same and locked the door, thus takingexclusive possession and necessarily excluding the defendant from the same.

This, unexplained, was a wrongful physical eviction of the defendant from a portion of the demised premises.

It does not appear from the evidence what the use of this shed thus inclosed and from which the defendant was excluded, was worth, and the court is asked to assume that it was so trivial in value as not to amount to a substantial eviction of the lease for the plaintiff to take exclusive possession of it, and the plaintiff seeks to apply the maxim “ de minimis non curat lex" and in support of this contention we are referred to the case of Lounsbery v. Snyder, supra.

But that case is clearly distinguishable from this, in that there was in that case no actual interference with the tenant’s enjoyment of the whole demised premises.

I do not think under the authorities, or in the due administration of justice between suitors under the law, the court would be permitted to speculate as to the extent of the injury to the tenant from an eviction, when an eviction has actually occurred.

To do so would be to unsettle established rules of law, and encourage parties in the violation of their contracts, and thus open a field for a vast amount of uncertain and unprofitable litigation.

With the question in the case as to whether or not the plaintiff has wrongfully evicted the defendant from any portion of the demised premises, we think the learned judge erred in directing a verdict.

Judgment reversed, and a new trial ordered, costs to abide the event.

Judgment affirmed, with costs.


text:
    John H. Sheehan, Survivor, App’lt, v. David W. Fleetham, Impl’d, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed November 28, 1890.)

    Partnership—Facts authorizing inference of.
    When one carrying on a business of buying and selling assigns half of the property, including accounts, to another, and goes on with the buying and selling as before with the knowledge of the assignee, there is strong evidence from which a jury may infer that the assignee is a partner.
    (Mayham, J., dissents.)

      Appeal from judgment in favor of defendant, entered on verdict directed by the court.
    This action was brought by John H. Sheehan and Philip Sweeney, as partners, to recover the amount' of an account alleged in the complaint to be due from the defendants as copartners.
    The defendant Hutchins failed to answer, and the defendant Fleetham answered denying the existence of any copartnership with Hutchins, and Hutchins had no right or authority to bind him as such or to create any liability on his part to the plaintiff.
    Pending the action, Sweeney, one of the plaintiffs, died, and the action was prosecuted by Sheehan, as survivor.
    The case discloses that in 1886 the defendant Hutchins, in partnership with one Aldrich, opened a drug store and continued the business until June, 1888, when Aldrich sold out his interest, talcing Hutchins’ note for the same, and soon thereafter the defendant Fleetham gave his check to take up the note.
    The case does does not disclose who negotiated the purchase of Aldrich's interest, nor to whom it was transferred, except as the same may be inferred from the fact that Hutchins gave his note, which was, however, paid -by Fleetham by his check. After the purchase of Aldrich’s interest Hutchins continued the business in his own name.
    On the 27th of October, 1888, Hutchins informed defendant Fleetham, who was his brother-in-law, that he was about to be sued, and proposed to turn his interest in the drug store over to Fleetham, to protect the creditors of the store, and on that day a “ bill of sale ” was executed by Hutchins to Fleetham of all the right, title and interest of Hutchins in the store, goods, furniture, fixtures, accounts and' interest of Hutchins in the drug business, in which property he asserts, in said bill, that he is the one-half owner.
    The consideration expressed was $1,800, the receipt of which was acknowledged by the assuming and payment of Hutchins’ one-half indebtedness for drugs, goods and all property connected with the drug business carried on by vendor, in Canton.
    The case does not show that this paper was personally delivered to Fleetham, but the same seems to have been brought to his knowledge by Hutchins.
    On the 28th of February, 1889, the defendant, Fleetham, executed a “ bill of sale ” of the property mentioned in the bill of sale to him, and upon a like consideration, to Helen Hutch-ins, wife of defendant Hutchins, which was filed in the St. Lawrence county clerk’s office on the 13th day of March, 1889.
    This “ bill of sale ” was never delivered personally to the vendee named in it, but was executed by Fleetham and filed by him without the knowledge either of Hutchins or his wife.
    There is a sharp conflict in the evidence as to whether or not Fleetham ever treated Hutchins- as a partner or in any manner recognized the existence of that relation with him.
    The plaintiff gave evidence tending to establish that relation, and defendant Fleetham positively denied the existence of that relation in his testimony, and gave evidence that Hutchins, after .the dissolution of the partnership with Aldrich, conducted all the business in bis own name, and that plaintiff charged the account in suit to him solely.
    At the conclusion of the evidence the defendant moved for a dismissal of the complaint.
    The plaintiff at the same time asked the court to direct a verdict for the amount of the plaintiff’s claim.
    The trial judge held and decided that the plaintiff was not entitled to recover, and directed a verdict for the defendant.
    The plaintiff thereupon asked the court to submit to the jury or find that the plaintiff relied upon the statement made in the “ bill of sale.”
    Also asked the court to submit to the jury the proposition, that the fact that Hutchins made this bill of sale to Fleetham, who permitted the business to go on in Hutchins’ name, Fleetham having knowledge of the fact, rendered him liable to any person who sold goods to Hutchins knowing that he was a half owner.
    Also to send to the jury the question whether the parties were actual partners.
    Also requested the court to give the jury the question that the parties being engaged in committing a fraud were liable to persons injured thereby.
    Each of the plaintiff’s requests were refused by the court and the plaintiff duly excepted.

      Nelson L. Robinson, for app’lt; George G. Sawyer, for resp’t.
   Learned, P. J.

This is aá action for goods sold and delivered. The learned trial justice directed a verdict for defendant and plaintiff appeals.

Hutchins, one of the defendants, had carried on a drug business. He also had a half interest in the furniture business carried on by defendant Fleetham, brother of Hutchins wife.

On the 27th of October, 1888, Hutchins being in danger of a suit executed to Fleetham an assignment of all the drugs, fixtures, furniture and accounts, etc. of which said property I am the one-half owner.” The assignment was in consideration of Fleetham’s assuming and paying off “ my one-half indebtedness for drugs, goods and all property connected with the drug business of which I am the half owner.” The business continued in the same name.

On the 13th of March, 1889, Fleetham executed an assignment to Hutchins’ wife. This recited the assuming and paying “ of my one-half indebtedness for drugs, goods and all property connected with the drug business,’’ etc., “ of which I am one-half owner ” and conveyed to Mrs. Hutchins all of Fleetham’s right in the drugs, etc., and accounts “ of which I am one-half owner.”

The plaintiff’s firm from June 2, 1888, to March 8, 1889, sold goods for this drug store amounting to $644.84. There was paid to them October 3, 1888, $120; February 5, 1889, $100.

About the 1st of November they learned through a commercial agency of the sale by Hutchins to Fleetham. In reliance on that information they made the subsequent sales.

Their account was still kept in the name of Hutchins. About April 16, 1889, plaintiff saw Fleetham, and asked him if he was a half owner of Hutchins’ drug store, and he said he was.

Mr. Bookstaver, a witness, testified that about that time he saw Fleetham, and asked him if he was not a partner in the Hutchins concern; he replied that he was a half owner; had been a half owner from June previous till October (as the witness thought), then that he bought out the other half and owned the whole; that he had sold out the business or was about to sell out the business that day. Being asked why he was not going to pay the claim represented by Mr. Bookstaver, he said that while he was a partner, he wás not liable, because he had not ordered Hutchins to buy these particular goods, and had not ordered them himself.

The witness says that Fleetham told him distinctly that he was a partner from J une previous till a certain period; the witness thought October; then that he purchased the balance and became sole owner. Mr. Kenyon testifies to the same effect.

Thus we have the testimony of these witnesses that Fleetham admitted that he was a partner in the business from June, 1888, and that in October (as the witness thinks) he bought out the balance and became the sole owner.

With these statements the assignment from Hutchins harmon-' izes, inasmuch as Hutchins calls himself the half owner and speaks of Fleetbam’s securing and paying Hutchins’ “ one half indebtedness.” Who was the other half owner and whose the other half indebtedness ?

It is true that Fleetham denies that he said what these three witnesses state; but that made a question for the jury.

It is undoubted that from October 27, Fleetham was either half owner, or whole owner, of 'the business and property, including the accounts and account book.

Of course it is possible for two persons to be joint owners of property, and yet not partners. But when one carrying on a business of "buying and selling, assigns half of the property, including accounts, to another, and goes on with the buying and selling as before with the knowledge of the assignee, there is quite strong evidence from which the jury may infer that the assignee consents to share in the business as a partner. Still more if the assignee himself had previously been a half owner of the business.

It is not necessary to decide whether or not the learned justice should have directed a verdict for the plaintiff. There was certainly evidence to go to the jury on the question of partnership.

The judgment should be reversed, and a new trial granted, costs to abide the event

Landon, J., concurs.

Mayham, J.

(dissenting).—The evidence in this case did not establish a partnership in fact between the defendant Fleetham and Hutchins. To constitute such relations there must be reciprocal agreement between the parties, not only to unite their stock, but to share in the risks of profit or loss upon the disposition thereof. Baldwin et al., v. Burrows et al., 47 N. Y., 206.

The most that can be claimed from the evidence in this case is that Fleetham, if he accepted the bill of sale of October 27, 1888, became one-half owner of the stock at that time in the store, and of the accounts, and assumed the payment of one-half of the debts then existing, which he subsequently, on the 28th of February, 1889, transferred to Hutchins’ wife.

If by the first bill of sale the title vested in him of one-half of this stock, he under this agreement became but a tenant in common of the property, and not a partner in the business, and that would be so until a partnership in fact was formed, even if at the time of the purchase the parties intended at some future time to form a partnership; until that was done, they would continue to hold in severalty. In Baldwin v. Burrows, supra, the court says: “ Though goods be bought by several under an agreement to hold in aliquot shares, but with the intention of subsequently forming a copartnership in respect to them, yet until the partnership agreement is actually made, the purchasers are not copartners, but only 1 tenants in common.’ There is still a locus penitentiaz.

“ The partnership may never be formed; either party may withdraw before the arrangement is consummated.

“ Neither of them before that time has power to bind the other by his contracts.”

Applying this rule to the case at bar we do not see how the defendant Fleetham can be bound by the contract of Hutchins, made in his own name with the plaintiff, who charged the goods to him upon the assumption that Fleetham’s purchase of half of the stock made him a partner, in fact, with Hutchins.

The plaintiff claims to have been led to the belief of the formation of a partnership between Fleetham and Hutchins by the report of the “ bill of sale ” by E. Gr. Dun & Oo. commercial agency to the plaintiff.

We need not say that such a report could not bind Fleetham as a partner when that relation did not exist in fact

That proposition is self evident.

If therefore the evidence was insufficient to establsh the existence of the relation of partners in fact between the defendant Fleetham and Hutchins, the court committed no error in withholding that question from the jury, as the court would have been bound to set aside the verdict if found against the evidence or unsirpported by it. Herr v. Hoppock, 15 N. Y., 409, 415.

But the plaintiff insists that even assuming that Hutchins and Fleetham were not partners in fact, still the court should have •submitted to the jury the question whether the defendant Fleet-ham had not so held himself out to the world and to this plaintiff, having given credit to Hutchins upon the faith of the existence -of that relation founded upon the acts of Fleetham, that he is now as to the plaintiff estopped from denying the existence of that relation.

It is quite true that when an individual, though not a member -of a firm, holds himself out to another as such, so that the plaintiff had reason to believe, and did believe, he was a member, and on the faith of his representation trusted the firm, he will be estopped from denying that he was a partner and liable on that grouhd. Vibbard v. Roderick, 51 Barb., 616.

But the principle invoked by the plaintiff, we think, is not applicable to this case.

There is no proof that the plaintiff ever had any business intercourse or relation with the defendant Fleetham, or that he ever, in any way, led them to believe that he was a partner, except they inferred that fact from the execution - to him of the bill of sale, as communicated to plaintiff by the mercantile agency.

As we have seen, the purchase of one half interest in the stock did not make Fleetham a partner in fact, and the plaintiff had no-warrant from that fact for coming to the conclusion that a partnership in fact existed, as Fleetham did not, by that act, hold himself out to the world, or the plaintiff, as a partner of Hutchins.

To establish a liability against Fleetham, as a partner, for the acts of Hutchins, it must be made to appear that a copartnershipwas formed by express agreement, or that there was an authorization in advance and consent to be bound by such act as a partner, or a ratification of the act after performance with the full knowledge of all circumstances, or some act by which an equitableestoppel has been created. Central Savings Bank v. Walker et al., 66 N. Y., 424.

None of these conditions exist in this case unless the acceptance- and making of the bill of sale constituted an equitable estoppel. “To give rise to an equitable estoppel, there must be a willful representation by one party made with an intent that it should be acted upon by the other.” Herman’s Law of Estoppel, § 327, p. 340.

True, it is not necessary to an equitable estoppel that a party should intend willfully to mislead; but whatever may be the intent, if he make such a representation as a sensible man would take to be true and believe that it was meant that he should act upon it, and he does so act, the party making the representation is precluded from testing its truth. Continental National Bank v. The National Bank of Commonwealth, 50 N. Y., 575.

Tested by these rules, it cannot be said that the defendant Fleetham is estopped in this case from denying his liability to the plaintiffs for credit given by them to Hutchins. The credit was given to Hutchins on plaintiffs’ accounts.

Fleetham made no representation to them before the credit was given. He made no representation to the mercantile agency, on whose'report plaintiffs claim to have acted, that he was a partner of Hutchins, and as to plaintiffs he is not estopped from denying the existence of a partnership.

We see no error in excluding the evidence offered by plaintiff' that Fleetham obtained a note of Mrs. Hutchins, and that she did not know that she had signed it, or that the bill of sale was-filed. It is difficult to see how such evidence, if received, was pertinent or material to the issue.

The remaining question is, did the court err in refusing to submit the questions to the jury as requested by plaintiff ?

We think not. These requests were made after the court had: denied plaintiff’s request that the court direct a verdict for the plaintiff, and after the court had directed a verdict for the defendant.

The action was not tried by the plaintiff upon the theory that the defendant Fleetham had assumed and agreed to pay one-half of plaintiff's accounts against Hutchins existing at the time of the execution of the first “ bill of sale ” or chattel mortgage, but upon the ground that the defendant Fleetham was liable as partner, and the court was not asked to submit that question.

Nor do we think the plaintiff was in a situation in this action, under the issue as it stood, to insist that the recital in that bill of sale that the consideration was paid “by the assuming and payment of my one-half indebtedness for drugs, goods and all property connected with the drug business ” would inure to the benefit of the plaintiff, so that in this action they could recover of Fleetham one-lialf of their claim, or any other amount .

It was not an agreement to answer for the debt of the defendant Hutchins, which could make Fleetham liable to be prosecuted in an action at law by any one who might have a debt for that class of goods against Hutchins.

On the whole case we think it was properly disposed of by the learned trial judge and the judgment should be affirmed, judgment affirmed, with costs.

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


author: Mayham, J.

text:
    William H. Applebee, Resp’t, v. The Albany Brewing Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 28, 1890.)

    Master and servant—Agency to employ—Evidence.
    In an action to recover for services plaintiff, to show agency, was allowed to prove that G. hired him and turned him over to R. who assigned him work, and that G-. also discharged him ; that G. was “ boss” and that R. “was superintendent and was called so by the bookkeeper and others.” Held, no error ; such evidence is a statement of facts and not the expression of an opinion, and from it a jury has a right to draw inferences.
    Appeal from the judgment of the Albany county court, entered upon the verdict of a jury.
    The action was to recover upon an alleged contract to work one year for the defendant, which plaintiff claims that the defendant broke at the end of ten (10) weeks, and the plaintiff was damaged by reason of such break.
    The answer denied the contract, and the main contention on the trial was whether there was a special contract for a year’s service and employment.
    The plaintiff testified that on the 7th of April, 1888: “ I went up to the Albany Brewing Company; saw William Gray there and Charles Rowe; William Gray was the man generally in the office; he was in the office before the desk; he was not doing anything when I went in; Mr. Rowe went out of the office into ■the yard behind the brewery.”
    “ Q. Who is Mr. Rowe ? A. He is president of the brewing company.”

      “ Q, You. don’t mean president, do you ?”
    Objected to by the defendant as calling for witness’ conclusion.
    The Court.—“ If he knows, he can state. If he don’t know he can’t state. He can’t state what he has heard.”
    “Q. Do you know Mr. Eowe? A. Yes,sir.”
    “ Q. What is he? A. He is boss there.”
    “ Q. Do you know what position he holds, or if he holds any position in the Albany Brewing Company; do you know if he holds any position ? A. Ho, sir.”
    “ Q. What ? A. Ho, sir.”
    “Q. Well, you say you saw Mr. Gray and Mr. Eowe, both in the office ? A. Yes, sir; Mr. Eowe went out and Mr. Gray asked ,me if I wanted to go to work; I told him I did not know whether I wanted or not; he said if I would go to work he would guarantee me a year’s work; I told him I guessed I would go to work for him; he told my father-in-law to take me out, and Mr. Eowe would appoint me a team of horses; I went out and saw Mr. Eowe in the back yard, and went out to the stable and assigned me a horse; something was said about the compensation. I was to receive ; I told Eowe I did not want to come in and take the Knights of Labor’s place for fear they would not stay ; he says, you must, not be afraid; these men are paid off and cannot come back; you get a steady job for a year if you behave yourself.”
    “Q. For how much? A. Two dollars a day.”
    The plaintiff further testified that he started and worked ten weeks and one day; saw Eowe there after that; the same Eowe I have spoken of; he was walking around and seeing things kept right; I expect I took my orders from him; I worked ten weeks- and one day, then I was discharged ; Wm. Gray discharged me ;. the same man that hired me; and that I had the conversation of hiring with.
    “ Q. What did he say.”
    Objection by defendant to witness stating he was discharged, as-being a conclusion; an exception.
    “ Q. What was said to you by Mr. Gray at the time you were discharged ? A. He said he was sorry to lay us off, they were losing their custom by keeping us, and had to take their old hands back.”
    Plaintiff further testified that he went back, saw Gray and told him he was ready to fill his contract; he told us to go away from the brewery and not to come back there any more; afterwardswent back there again and he told me to get out of there, and I never went back after the last conversation.
    Wm. H. Sinclair, another witness produced by the plaintiff, testified substantially to the conversation and transactions between plaintiff and Gray and Eowe as detailed by the plaintiff except more fully as to price, he used this language: “He (Gray) says you want to work for us, and he said I don’t know whether I do- or not; Gray said if you go to work for us you have a good job here and steady work for a year if you behave yourself ; if you drive a team it will be $13.00 a week, and if you drive one horse it will be $12.00 a week; he says you are used-to horses; he says-I have driven some; he says, can you write ? yes, he says, if you work m the cellar it will be $12.00 a week, and he finally consented to go; he told me to take him to Eowe, and he would assign him a team; we met Mr. Eowe in the yard near the shed.
    “Q. Who is Mr. Eowe? A He is superintendent; he had acted as such and is called so by the bookkeeper and others.”
    Defendant objects to the answer and asks to have it stricken out as improper, merely a conclusion, an opinion of the witness and immaterial and incompetent. Overruled. Defendant excepts.
    In the progress of the trial various other questions were asked plaintiff’s witness by his counsel and rulings made by the court, to which exceptions were taken by the defendants, which are assigned by the defendant as error on this appeal.

      De Witt & Spoor, for app’lt; Olíase & Delehanty, for resp’t
   Mayham, J.

We discover no sufficient grounds for reversal of this judgment on the ground stated in the defendant’s motion for a new trial upon the minutes; if the evidence was properly received on the trial the verdict is abundantly sustained by it, but if it were not, as there is no certificate that the case contains all the evidence, the court would be required to assume that other sufficient evidence was given on the trial to uphold the verdict, so that the question for consideration and examination on this appeal is confined to exceptions taking to rulings of the judge as to the admission of evidence.

We are also of the opinion that, as between the plaintiff and defendant, the evidence established the authority of William Gray to bind the defendant by contract with employes, unless the evidence by which that authority was sought to be proved was erroneously received. Cox v. Albany Brewing Co., 56 Hun,. 489; 31 N. Y. State Rep., 666, and cases there cited.

The counsel for the appellant insists that in various questions-put to the plaintiff and his witnesses to establish Gray’s agency, the witnesses were asked for, and permitted to testify to their conclusions that he was such agent, and not to the facts from which, the jury could determine whether or not such agency existed.

After the plaintiff had testified to a portion of the conversation, .with Gray, in which Mr. Eowe’s name was used, he was asked: “ Who is Mr. Eowe ?” to which he answered without objection, “ He is the president of the brewing company, I believe.”

“Q. You don’t mean president, do you?" This last inquiry was objected to by defendant, and the court ruled: “ If he knows, he may state; if he don’t know, he can’t state; he can’t state what he has heard.”

We see no error in this ruling. The witness was confined to his own knowledge, and hearsay was excluded.

But the question was not answered, another question was asked, to which no objection was made, and the witness said, in substance, that Eowe was boss there, and followed that by an answer that he did not know whát position in the Albany Brewing Company Eowe occupied.

After the plaintiff testified that he was discharged by Gray, he was asked by his counsel: What did he say to you?

To this question defendant objected as follows: Objection by defendant to witness stating he was discharged, as being a conclusion.

The objection was overruled and an exception was taken, but it will be observed that no such question as was embraced in the objection was asked, and no motion was made to strike out the plaintiff’s testimony upon that subject, which was received without objection.

The question put, what did Gray say? was clearly proper, if Gray’s agency was established, and that we think was a question to be determined by the jury under proper 'instruction from the court.

The next objection to this class of evidence was to the answer to the question put by plaintiff’s counsel to the witness Sinclair.

“Q. Who is Mr. Rowe? A. He is superintendent; he has acted as such, and is called so by the bookeeper.”

Defendant’s counsel objects to that answer, that Mr. Rowe has acted as superintendent, and asks to have it stricken out as improper, merely a conclusion or opinion of the witness, and immaterial and incompetent.

This objection and motion were overruled and defendant excepted.

It was, probably, a material inquiry and subject of investigation on this trial to show what relation Rowe bore to the defendant and its business, not so much to prove that he was authorized to employ workmen as to show the authority of Gray, that he was authorized to hire men and send them to Rowe whose province it was to assign them to duty, so that, the plaintiff might urge and the jury might infer that if Gray, in fact, employed hands, and Rowe assigned them to their work, and the company allowed them to continue in service and paid them for the same, it would be a fair inference that these two men were the agents of the company to perform the duties which the proof shows they in fact undertook to and did perform.

In that view of the case we do not see that the testimony that Rowe acted as “boss” was the expression of an opinion.

It seems to me to be more the statement of a fact, than expression of an opinion.

The rule that witnesses must state facts, and not opinions, except in certain cases,- when expert opinions may be given, is as contended for by the learned counsel for the defendant, and is too well settled to admit of doubt or require citation of authorities, but we do not think it applies to the questions put and answered here. Hardenburgh v. Crary, 50 Bab., 32.

A boss is one who oversees or gives directions. To say that Rowe acted as boss is another way of saying he gave directions in reference to the work, and this it appears he did, because the witness goes on to say, that Mr. Gray sent me here with this man, and Rowe said he could have a goob job, etc., and took him over to the barn and assigned him a horse, and the witness says that he saw Mr. Rowe bossing, giving men orders, and telling them what to do.

Nor do we see that any error was committed by the learned judge in overruling objections and allowing evidence given by witness Cox.

He swears he was employed by Gray and worked ten weeks and one day, for which he was paid by the defendant.

He also testified without objection that he knew Rowe and characterized him as superintendent.

He was then asked: “What does he do?”

That question was objected to, but we think the objection was not well taken, for the reason given above.

He also swears that he knew of a great many men being hired by William Gray. This evidence was received under defendant’s objection, but the judge received it and we think correctly as evidence proper to go to the jury upon the general question of authority of Gray to hire men for the defendant.

Our attention is called by the learned counsel for the defendant to the cases of Merritt v. Briggs, 57 N. Y., 651; Nichols v. Kingdom Iron Ore Co., 56 id., 618; People v. Sharp, 14 N. E. Rep., 319; 12 N. Y. State Rep., 217; Nichols v White, 41 Hun, 152; 3 N. Y. State Rep., 784, and Nicolay v. Unger, 80 N. Y., 54, in each of which the opinions and conclusions of witnesses are held not competent evidence, but we fail to see their application to the case at. bar, as the witnesses in this case were not asked to, and did not testify to conclusions or opinions.

Nor do we see any error in the charge of the learned county judge for which the judgment should be reversed.

It follows that the judgment must be affirmed

Judgment affirmed, with costs.

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


text:
    The People, Resp’ts, v. Thomas Williams et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed November 28, 1890.)

    Larceny—Evidence.
    Defendants were convicted of petit larceny ; the evidence showed that they went into complainant’s store and bought a small amount of candy, offering in payment a twenty dollar bill. After receiving the change they walked to the front of the store and then said they had found enough money in their pockets to pay for the candy and thereupon tendered back the change" first given them. Subsequently it was discovered that a ten dollar bill had heen abstracted from this latter amount. Upon the trial the people were allowed to show that upon the same day the defendants had performed the same trick in other places in the same city, the attendant circumstances being almost identical. Held,, no error.
    Appeal from a conviction by and before the court of special sessions of the city of Albany, on a charge of petit larceny, alleged to have been committed in stealing ten dollars ($10.00), the property of one George A. Dayton. The evidence of the complainant shows that on the morning of the day of the alleged larceny he counted the bank bills kept by him in a package in the inner compartment of the safe in his store, and that there were in that package $224 in bills, the denominations of which he could not state.
    That he locked the inner compartment where the money was with a key and put it under a shelf ; that the outer door of the ■safe was locked by a combination lock; that in his business as ■confectioner he was assisted by his wife and a Miss Eeed; that he did not at any time during the day, from the time of counting the money in the morning until the time of the alleged larceny, interfere with that package, except once to put with it a two dollar ($2.00) bill and take out a one dollar bill.
    That about seven o’clock in the evening Ferguson and Williams came into the store and asked to purchase some candy, and on being served, handed a $20.00 bill in payment, and on being asked if they had anything smaller, answered in the negative, whereupon complainant went to the safe, opened the inner compartment and took out $19.00 and handed it with the change to Ferguson and received the $20 bill; defendants then walked towards the front of the store and complainant towards the safe, when Ferguson addressing complainant asked him to return the $20.00 as he had found change, and did not like to be carrying about small change, and pursuant to that request complainant returned to the defendant the $20.00 bill and received back what he at the time supposed was the money he had parted with, but which he returned to the safe without counting.
    Soon after that he was asked by a detective if he had lost any money ; and on examining the package in the safe found that it contained but $215.
    On his cross-examination the complainant said he'paid his help that day and would not swear positively how many times he put bills in or took them out of that package that day; don’t remember how many times he went in the safe and made change from these bills, positively.
    Miss Eeed and Mrs. Dayton, who assisted in the store, both testified that they did not interfere with or take any bills from this package in the inner compartment of the safe that day.
    This is the substance of the evidence tending to establish the corpus delicti.

    The prosecution then called as a witness a druggist, who was permitted by the court under defendant’s objection to testify, that on the same evening of the occurrence charged in the complaint, the defendants Ferguson and Eodgers bought a cake of soap and tendered a twenty dollar bill in payment, and on being asked if they had any thing smaller answered in the negative, and the bill was taken and $19.80 returned to them in change. Ferguson requested the return of the $20 bill and offered the change for the soap, but was refused, and before leaving the defendant Eodgers bought a stick of licorice and tendered in payment .a five dollar bill, and the clerk refused to change it and told him to pay at some other time.
    The prosecution proved, under like objection, that on the same evening the defendants, Ferguson and Williams, called at a tea store and purchased a half pound of tea for twenty-five cents, and Ferguson handed in payment a $20.00 bill and received in change $19.75, and after receiving it said he could pay for the tea in change and requested the return of the $20.00 bill; the clerk looked over the money which defendant 'proposed to return and then got the $20.00 bill and gave it to Ferguson. Defendant Dodgers came in the store while the other two defendants were there, and purchased a pound of sugar at seven cents and paid for it, but did not speak to the other defendants.
    Under a similar objection by the defendants the people also proved that on the same evening Ferguson and Williams went into a restaurant and bought twenty-five cents’ worth of cigars, and handed a $20.00 bill in payment and received $19.75 in change, after which one of them found he had a quarter and requested the return of the $20.00 bill, and it was given them; they shoved back the change which was put in the draw, and on making the account later in the evening the account was found to be short $10.00.

      James 0. Matthews, for app’lts; Andrew Hamilton, dist. attorney, for resp’ts.
   Mayham, J.

We think the evidence sufficient to establish a corpas delicti and that the finding of the jury that the crime charged was committed is fully sustained by the evidence.

The appellant insists that the learned recorder erred in admitting, under objection, the evidence of the acts of these defendants at other stores on the same evening of a somewhat similar character to that at the store of Dayton.

This evidence was doubtless offered by the people for the purpose of showing the motive of the purchasers in tendering the twenty dollar bill, and receiving other and necessarily smaller bills in exchange, so that they might abstract one or more of the smaller bills, and return the balance unobserved in exchange for the twenty dollar bill, and thus steal the bill or bills so abstracted; such a device artfully practiced by a shrewd operator might easily deceive the unsuspecting tradesman in the hurry of business, and there is some evidence in this case that it has become one of the methods of larceny under the name of “ flim-flam.”

The defendant’s counsel relies upon The People v. Corbin, 56 N. Y., 363, and Coleman v. The People, 55 id., 81, as authorities in support of his objections to this evidence.

In the case first above cited, the court held that it was not proper on the trial of an indictment for forgery to prove that the defendant had admitted that he had committed other forgeries, and in the latter case that it was not competent on the trial of an indictment for receiving stolen goods to show, for the purpose of proving the scienter, that the prisoner had received other stolen ¡property.

Neither of these cases come entirely within the principle under which the evidence in the case at bar was offered and received.

They were not offered to be shown proximate in time, nor precisely identical in character, with the crimes charged in the" indictment.

We think the case now before this court is more nearly in principle like the case of Weyman v. The People, 4 Hun, 517 ; aff’d 62 N. Y., 623, and the cases there cited.

In that case it was held to be competent for the People to show that on the day of the alleged commission of the crime charged, and on the next day, the prisoner in the same way, and by the same means, procured similar articles of other persons, and the court says such evidence “ is competent to show that the party accused was engaged in other similar frauds about the same time, provided that the transactions are so connected as to time, and so similar in their relations that the same motive may reasonably be imputed to them all.” See, also, Hall v. Naylor, 18 N. Y., 588; Hennequin v. Naylor, 24 id., 139.

This kind of evidence is frequently resorted to in the trials of indictments.for passing counterfeit money, and the object of such testimony is to prove that the act is not an isolated or accidental occurrence, but that it was done by deliberate design.

We think this evidence under the circumstances of this case was proper, and that the exception to its admission was not well taken.

We discover no error in the admission- of evidence or in the charge of the recorder to the jury; and the jury having found the defendants guilty upon evidence sufficient to uphold the verdict, we think the judgment of conviction and sentence pronounced was -proper.

It is quite true, as is urged by the counsel for the defendants, that the right of trial by a jury is guaranteed to the defendants, and they are in no way responsible for the failure of two previous juries to agree, and that fact alone should not aggravate their punishment.

But the judgment and sentence pronounced was within the limits of the jurisdiction of the court which pronounced it, and we do not think it is the province of this court on this appeal to criticise or interfere with it.

Judgment of conviction is affirmed.

Learned, P. J., and Landon, J., concur.'


author: Matham, J.

text:
    George E. Firth, Resp’t, v. Cornelius Veeder, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed November 28, 1890.)

    Justice’s covbt—Jurisdiction—Possession oe land.
    While the right to the possession of land cannot he inquired irtto in justice’s court, the question of actual possession may he.
    Appeal from judgment of county court, affirming judgment of a justice of the peace.

      B. B. Fish, for resp’t; H. B. Oushney, for app’lt
   Matham, J.

This is an appeal from the judgment of the Montgomery county court, affirming the judgment of a justice of the peace.

The action was for alleged wrongfully entering upon lands in possession of the plaintiff and removing therefrom personal property of the plaintiff.

The defense is a general denial. The plaintiff recovered before the justice and the judgment was affirmed on appeal in the county court, and the defendant appeals to this court.

The case shows that the plaintiff placed his wagons and sleighs in a place designated in the proof as the “ Tremper coal yard,” in the village of Fultonville, and that the defendant without the consent of the plaintiff removed them from that place into the street.

Upon these facts there is no conflict.

There was no answer of title interposed, and the only question which could be litigated on this trial, assuming that it was an action of trespass quare clausum fregit, was who was in actual possession of the premises on which the wagons and sleighs were located at the time of the alleged removal of the same.

The defendant insists that the plaintiff proved no possession in himself, and therefore failed to prove a cause of action under his complaint; that at most his proof only established a license, and that did not establish,such a possession as would authorize him to maintain an action of trespass on land.

Within the technical rules of pleadings, it might have been better if the plaintiff had complained in trespass de bonis asportatis, but that question is not before us, and we must examine the case as it is presented.

The plaintiff in this testimony says: “ I am theplaintiff in this action, and know the premises referred to in the complaint, known as the Tremper coal yard. About the 23d of December I was in possession of the east side shed, and there had stored wagons and sleighs; five or six wagons and three sleighs, one pair bob sleighs. I saw them there myself and had them placed there some time previous to the middle of December, 1889.” •

He further testifies that on the 30th of December he found that they had been removed and placed in the street, and that defendant told him he had placed them there.

This was competent evidence, and raised a question of fact which the jury were-called upon to consider. Knapp v. Smith, 27 N. Y., 277. In Hardenburgh v. Crary, 50 Barb., 32, Hogeboom, J., in delivering the opinion of this court, holds that a question of possession is a question of fact and not a conclusion of law; a question that is determined by ocular observation, and not by a process of reasoning.

It does not involve a question of right to the premises, but the mere question of who was upon them; and he held that the exclusion of the question, “ who was in the actual possession of the field spoken of at, and immediately previous to, the assault and battery mentionéd,” was error. Citing Parsons v. Brown, 15 Barb., 590.

It is true that there was some evidence tending to show the possession in the defendant, but such evidence only tended to, present a disputed question of fact which the jury must have found in favor of the plaintiff, and with which this court should not interfere.

With that question of fact in the case, it was not error for the justice to refuse to nonsuit the plaintiff.

The question of actual possession in fact, and not the right to the possession, could be inquired into in justice’s court.

The right to the possession involves a question of title to land, and could only be raised by an answer showing that title to land is in question, which would oust the justice of jurisdiction.

No such answer was interposed in this action, and if it had, alleging a superior right of possession, it would have raised a question of title, and the justice would have been ousted of jurisdiction. Ehle & Sort v. Quackenboss, 6 Hill, 537.

It was competent to try the question of actual possession, but not the right to possession, in this action.

The proof does not disclose the extent of the injury, if any, to the plaintiff’s property, but we do not think the recovery so large as to justify the reversal of the judgment on that ground.

Judgment affirmed, with costs.

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