text:
    Eugene Smith, Executor, Resp’t, v. Fredericka Rentz, App’lt.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Evidence—Books produced on notice and inspected are evidence against the party calling for them.
    " Where a hook or document is produced on notice and the party giving the notice inspects it, it becomes evidence in the case, and it may be used as such, if material.
    8. Same—Proof required to make books admissible.
    The fact that accounts relate only to transactions in money do not make books containing such accounts inadmissible where the other proof, customary in such cases, is made.
    Appeal from judgment on the report of a referee,

      Leopold Leo, for app’lt; H. B. Closson, for resp’t.
   Daniels, J.

The action was brought to recover an alleged balance of account for money paid out by the testator for the de fendant. It was proved, to a reasonable degree of certainty, that she deposited moneys with him from time to time, and that he paid them out for taxes, repairs and other expenses for her, incurred in and about her property and the management of her household affairs. He died on the 24th of September, 1887, and for a period of years before that he is stated by the defendant’s witness, Zimmerman, to aave been at her house three or four times a week, and when persons were working there he directed them what they should do. For bills sanctioned by her he made payments to her creditors, and the same thing took place as to other bills which were authenticated by persons performing the services and delivering materials, which were not expressly sanctioned by her. And to make definite proof of the amounts from time to time paid on her account the books of the testator were produced and offered in evidence. In support of the offer, evidence was given tending to establish the facts that the testator himself kept these books, or directed the entries to be made in them when that was done by another person, and that the books were correct, so far as other persons had settled their accounts with the testator from them. It was also proven that the plaintiff was examined as a witness on behalf of the defendant, under an order obtained by her before the trial. And on that examination the books and papers of the testator were produced in compliance with a notice requiring them, served by the attorney for the defendant upon the plaintiff’s attorney. When they were produced before the justice and the examination was in progress, the defendant’s attorney asked leave to inspect them, and he was permitted to do so in compliance with his request, and did examine the ledgers and other papers. The referee, after proof of these facts, received the books in evidence. But afterwards, when it was agreed that there had been no inspection of the cash book, he struck that out as - evidence, on the motion of the defendant’s counsel. It 'is evident, therefore, that' the ledgers were retained solely because of their production under the notice, and their inspection by the attorney and counsel of the defendant. The other evidence relating to the cash books as well as the ledgers, in the final judgment of the referee, must have been considered insufficient to render the books admissible. If it had not been, it is clear that it would not have been excluded from the case, because of the fact that it had not been inspected after it had been produced. The admissibility of the ledgers must, therefore, depend upon this production and inspection of these books.

That these facts rendered them evidence for the plaintiff has ■ not been clearly sustained by the authorities in this state. The rule allowing books and papers to be received, after their inspec tion by the adverse party, was not approved by Spencer, J., in Kenny v. Clarkson, 1 Johns., 385, 394, nor by the justice writing the opinion in Carradine v. Hotchkiss, 120 N. Y., 608; 31 N. Y. State Rep., 951. But the point was there left undecided as it was not important to settle it for the purposes of the decision. But in the case of Williams v. Davis, 7 Civ. Pro., 282, the fact that the testator’s books were present and made the subject of reference in the course of a conversation between the executor and the defendant was held sufficient to entitle them to be used as evidence against the latter on the trial. And that authority goes far towards sustaining the ruling of the referee in this case. That production pursuant to notide and the subsequent inspection," would not, without further proof, entitle the party producing the books or papers to read them in evidence, was held in Withers v. Gillespy, 7 Sergt. & Rawle, 10, and in Austin v. Thomson, 45 N. H., 113, where a very full examination of the authorities then existing on the subject was made.

But in the later cases of Calvert v. Flower, 7 C. & P., 386, the rule was so declared by Lord Denman as to entitle the evidence to be received. And the same conclusion was followed in Anderson v. Root, 8 Sme. & M., Miss., 362, and a very decided approval of it was expressed in Jordan v. Wilkins, 2 Wash. C. C., 482. The rule as it was given in the opinion in Penobscot, etc., Cor. v. Lamson, 4 Shepley, 224, “ is that if a book or document be called for by a notice to produce it, and it be produced, the mere notice does not make it evidence; but if the party giving the notice takes it and inspects it, he takes it as testimony, and it may be used if material to the issue." And that was adopted as a correct statement of the law in the later case before the same court of Blake v. Russ, 33 Maine, 360. And the same result was reached after a consideration of earlier cases, in Long v. Drew, 114 Mass., 77. The preponderance of the authority was, therefore, with the referee, and the exception to this ruling cannot be sustained.

The testator had no clerk, in the sense in which that word has been used in the cases defining the proof under which the books of the party will be received as evidence. The entries made by his brother were by the direction of the testator when made in the cash book of original entry. And so were the postings made in the ledgers. And these services rendered by another will not exclude the books as evidence. McGoldrick v. Traphagen, 88 N. Y., 334. In all other respects the evidence brought these books within the general rule entitling them to be received as evidence. But the referee probably acted under the impression, when he rejected the cash book, that the books were inadmissible under the established rule, because the accounts were wholly of transactions in money. And in Case v. Potter, 8 Johns., 211, it was passingly said that the books kept by the party himself were not evidence of money lent But the entry there was of a single transaction, being a loan of ten dollars. The question was not presented whether the books of a party kept by himself, would be evidence when his business was dealing in money, as that of the testator was. If it had been, there is a probability that such books would have been held to be evidence. For the rule, broadly stated, was ■declared to apply “ to the regular entries of the party in the usual course of his business.” Id., 213. And the entries in these books were of that description. And no sound reason presents itself requiring their exception. They were equally the books of a trader, carrying on his business, and keeping his accounts himself with his customers, which included others besides the defendant. And so it has already been held in Burke v. Wolfe, 38 N. Y. Supr. Ct, 263, and Young v. Jones, 8 Iowa, 219. ■ And the principle was applied to cash items not exceeding §6.67 in Bassett v. Spofford, 11 N. H., 167. But if the books are admissible to that extent, then there is no other than an arbitrary dictum for that restriction, and they should be allowed as evidence so far as to comprehend all the entries strictly in the course ■of the business of the party. The necessity and reason for the latter is equally as decisive as it is in the other case.

These books should all, therefore, have been retained as evidence by the referee. But as the items in the cash book were all posted into the ledgers, he did notwithstanding the exclusion of the cash book have all the evidence before him which the books could furnish. The ledgers were the complement of the cash book, and as such legally forming a part of this species of evidence to be produced. Bonnell v. Mawha, 37 N. J., 198. And the defendant could not object to their use without the cash book, as long as that book had been excluded from the evidence upon the motion of her own counsel. The ledgers contained all' that was essential, and could be intelligently acted upon as the evidence. And as the true construction of the rule will include the books of apnoney dealer, and these books were proved as that requires it should be done, Dooley v. Moan, 57 Hun, 535; 33 N. Y. State Rep., 118, they were evidence in the case although their admissibility was finally placed upon the fact of their inspection, by the counsel for the defendant.

The accounts, as they have been transcribed from the ledgers, appear to have been consecutively, as well as carefully, entered, and they exhibited the balance found by the referee to be owing from the defendant. To subject these books to discredit the defendant produced and proved a statement made by the testator that he had received from her the sum of $2,500 and bad placed it to her credit on his books. And the antecedent credits contained in the accounts confirm this statement. After that he added to the statement the acknowledgment of five additional sums of $100 each, and they appear by corresponding credits to her in his accounts. This evidence, therefore, rather confirmed, than disaffirmed, the correctness of the books.

- A further statement made by the testator, extending from the 12th of January, 1887, on the credit side, to the last of May in the same year, and on the debit side from July 10, 1886, to April 18, 1887, was produced in evidence by the defendant. A balance in her favor of $21 was brought down as the result of the items. This was commenced with a credit of $100 on the day of the last credit for the same amount on the preceding statement. And it was probably for the reason that it was a repetition that a line had been drawn though it. But all the items on this statement formed parts of the accounts supplied by the books, which stated a balance in the testator’s favor on the 20th of January, 1887, eight days after the first credit on the statement, of $3,951.59. It is apparent, therefore, that this was not intended as a full or complete statement of the condition of the accounts, but only of certain items contained in it The accounts on the books showed a larger balance then than finally remained and was allowed by the referee. That was fully maintained by the items, and it cannot be presumed, with any degree of probability in favor of its correctness, that the testator designed to disclaim his right to this balance by this partial and incomplete statement. It is much more probable that it was made and delivered to answer some special inquiry, or object, not now capable of being clearly developed by evidence.

A large number of checks drawn by the testator were allowed, against the objections and exception’s of the defendant’s counsel, to be given in evidence. They were undecisive evidence at the most, where they were unattended with any act on her part But many were given to pay what appeared to be her debts, and generally they were coincident with charges made against her. They were paid with funds subject to his order, and were admissible, certainly, to prove that these moneys had been paid out by him. To some slight extent, at least, they supported his charges, and the rulings under which they were received cannot be held to have been erroneous.

Questions were asked of the defendant, as a witness in her own behalf, which, in several instances, she seems to have been competent to answer. But her evidence was afterwards received, and the exceptions in that manner obviated. Proof was also given of the payment of the testator’s check for $17,100, on the purchase price of the residence of the defendant The sum of $15,000 of this amount was shown to have been obtained from the sale of a dwelling on Fifteenth street, which she had sold.

She was asked where the residue of the money came from, and answered that it was “ saved money I had.” This was, on motion of the plaintiff’s counsel, stricken out And in a subsequent answer she testified that the rest was her money, and that also was stricken out on like motion. But it is not necessary very specially to discuss the regularity of these rulings for the reason that the answers, standing by themselves, would have been of no advantage to the defendant. In a general sense it was her money that was paid for the place, but that this difference was in fact paid by her to the vendor, or placed specially with the testator for that payment, these answers did not tend to prove. If it was designed by them to create the impression that she had .given the difference to the testator, and that made the full amount of his check, then it was incompetent for her to give the evidence against the plaintiff as the representative of the other party to the transaction. But in no view was the defendant injured by rejecting these answers.

A very large number of other exceptions were taken to the rulings of the referee and to his final decision. But they do not seem to merit special consideration. For the referee seems to have been right in his determination, which really depended upon the principles which have been applied. The judgment should be affirmed, with costs.

Yam Brumt, P. J., concurs.


source: Caselaw Access Project

author: O’Brien, J. Daniels, J.

license: Public Domain

text:
    Clara A. Lamb et al., Resp’ts, v. Samuel T. Lamb et al., App’lts and Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

      1. Will—Residuary clause—What passes under it.
    The will of a testator devised a life estate in real property to his daughter and provided for its further disposition in case she married and had children. She married and had no children. Held, that the testator did not die intestate as to this property, but that the same fell into the residuary estate of the testator and passed under a general residuary clause of his will; although the word “devise" was not used in said clause, and although the clause apparently related only to the division of certain personal property.
    2. Same—Construction.
    The intention of the testator is controlling, and where from a reading of the will it is apparent that he did not intend to die intestate as to any of his property, this consideration will outweigh any arguments based upon strict rules of law or upon the use of or the failure to use particu- „ lar legal expressions.
    Appeal from an interlocutory judgment rendered upon the report of a referee.

      William B. Hill, Merrill & Rogers, R. W. Townsend, Spencer Clinton and Herman Dike, for app’lts ; Amundson & Ward, G. G. & F. Reynolds, Alexander & Green, George F. Martens and Frederic A. Ward, for resp’ts.
   O’Brien, J.

Seldom is difficulty found in determining the rules that should govern in cases involving the construction of wills, but when we attempt to apply these rules to a given case, the difficulty at once becomes manifest.

The present furnishes a good illustration. The referee in his opinion correctly states the facts and the questions in controversy as follows:

“ This action is brought for the partition of certain real property situated in the city of New York. All parties claim through one Anthony Lamb, who died in May, 1885, seized of the premises in question, and leaving him surviving five children, and the descendants of four other children, who died in his life-time.
“ By the will he devised the property in question to his daughter Sarah, subject to a life estate therein in favor of the testator’s wife Violetta. The language of the devise to his daughter Sarah is that ' she have and hold the same, with the rents, issues and. profits thereof, during her natural life, and for her sole, separate and peculiar use, and, should she marry, not to be liable for or charged with the debts of her husband, and, should she marry and have children, I give and devise said lots at her decease to her descendants then living, if more than one, to be divided among them in the same manner as if she had died seized of the same intestate, but, if only one, then to such only descendant.’ Sarah Lamb thereafter intermarried with the defendant, Adam O. Gillespie, and departed this life September S, 1886, childless, having made a will whereby she devised and bequeathed all her property, real and personal, to her husband. Violetta Lamb died in October, 1889.
“ The important question for consideration in this suit is whether the said, real property upon the death of Violetta Lamb, and by reason of the prior death of Sarah Lamb Gillespie without leaving any children, became part of the residuary estate of Anthony Lamb; or whether there was an intestacy as to this portion of his property, and if so, what right or interest therein does the defendant Adam 0. Gillespie take by reason of the will made in his favor by Sarah L. Gillespie.
“ It is evident from a perusal of the will of Anthony Lamb that almost every possible contingency was provided for, except the one that actually occurred, namely, the decease of Sarah L. Grilles-pie without leaving children, and the language of the will in those clauses which apparently refer to the ' rest, residue and remainder ’ of the testator’s estate, after the specific devises to his children had been made, does not use the word ‘devise,’ but apparently contemplated only a division of certain personal property. It is, therefore, claimed that the property in question cannot fairly be included in that residue of the estate which was in the testator’s mind at the time of the execution of his will.
“ I am, however, of opinion that under the law of this state this, property forms part of the residuary estate.”

The learned referee bases his conclusion on the cases of Floyd v. Carow, 88 N. Y., 560; Riker v. Cornwell, 113 id., 115; 22 N. Y. State Rep., 151, and Cruikshank v. Home for the Friendless, 113 N. Y., 337; 22 N. Y. State Rep., 738.

These contain a review of the earlier cases, and, apart from their able¡ studied and careful treatment of the questions involved, are the latest, and so far as applicable, the controlling authorities. We can, therefore, as did the referee after a statement of the facts in this case, rest our conclusion upon the principles laid down in these cases.

An examination of the will shows it to be, as claimed, an exceedingly well and carefully drawn instrument, and a master piece of thoughtful foresight and technical precision. It was evidently prepared by a skillful lawyer, and is in every respect a model will. In it every word is used in its accurate and legal sense and in its proper technical connection. Every point is covered and every contingency provided for so far as human foresight could accomplish.

Wherever real estate is sought to be affected the language is of the utmost technical precision, and where only personal property is sought to be affected the language used is strictly accurate. The testator, besides much personal property, had a great many different and distinct parcels of real estate, each one of which was specifically devised to particular persons. At first blush it might seem as if no portion of this real estate was intended to form part of the residuary estate.

This view is strengthened by the absence in the residuary clause of technical words strictly applicable to real estate and inferences that can be drawn from other parts of the will, as instanced by the clause marked “ Seventhly.” This clause after directing the conversion of the real estate in Pearl street into personalty in trust for his son Anthony, further directed that in case his son Anthony should die without leaving any descendants, then the said “ principal sum shall revert to and form part of my residuary estate.” As we find no similar provision with reference to the devises made of the balance of the real estate, the rule of expressio unius est exclusio alterius would seem to be applicable. Again we find that the devises made are everywhere accompanied by the same language, creating the same estates. It would thus follow that any other parcel of real estate devised to children or grandchildren would, as in the case of his daughter Sarah, upon a failure of any of the conditions on which it was limited, fall, as it is claimed this does, into the residuary. These' after all are but arguments drawn, it is true, from the will itself, but which are answered by other provisions of the will and by principles which must be held to outweigh them.

As has been oft repeated, the intention of-the testator is first to be ascertained and then carried out.

Such intention is to be determined by the entire instrument, and when ascertained “it is the pole star by which courts must be directed in the administration of justice.” Van Kleeck v. Dutch Church, 20 Wend., 457.

The presence in the residuary clause of language more peculiarly applicable to personalty than to real estate • is not controlling, nor the fact that we there find no technical words of descent or power of sale.

If the real meaning and intention of the testator and his plain and definite purposes are endangered by inapt or incorrect modes of expression, and we are sure that we know what the testator meant, the court may reject words and limitations, supply them or transpose them, to get at the correct meaning. Phillips v. Davies, 92 N. Y., 204; Pond v. Bergh, 10 Paige, 140.

Where an intention, therefore, is apparent, little weight is to be given to arguments based upon the use of inapt phraseology. The main reliance of the appellants in claiming that the residuary clause does not cover this land is the failure to use apt or technical language upon the part of the testator. As stated, however, no matter what words a.testator uses to express his intention, that intention when it can be ascertained must govern. Allen v. White, 97 Mass., 504.

The care observed by the testator in providing for every possible contingency shows that he had no intention of dying intestate. It may be true that it did not occur to the testator that any portion of his real estate, which he had specifically devised with limitations ovér, would lapse so as to fall within the residuary estate. Mevertheless, the residuary clause is sufficiently broad in its language and scope to embrace either real or personal property, or both, and the intention of the testator is sufficiently clear to justify the conclusion that all his property, both real and personal, which for any reason should fail to take effect or lapse should constitute a portion of such residuary estate. His language thrice repeated is, “ all the rest, residue and remainder of my estate.” As said by Lord Campbell in the case of O'Toole v. Brown, 3 Ell. & Bl., 572: “ The rule is well settled * * * that the word ‘ estate ’ in the will is sufficient to carry real as well as personal estate, and that this force is to be given to it unless something appears upon the will to show that it was used in a less extensive signification * *” and again, “ although there be no indicatory words intimating expressly an intention to dispose, of the whole of this property, real and persohal, is there anything to show that he meant to die intestate as to real estate, if he bad any.

“Reliance was placed upon the absence of the word ' devise,’ which is technically applicable to real estate; but the words ‘give’ and ‘ bequeath’ are quite sufficient"

The rule thus stated which prevails in England is similar to the one which is applied in this state.

In case of doubt the law prefers that construction which will prevent a partial intestacy to one which will uphold it Vernon v. Vernon, 53 N. Y., 351; Thomas v. Snyder, 43 Hun, 14; 6 N. Y. State Rep., 592.

It is likewise well settled in this state that a general residuary clause includes all property of the testator not otherwise disposed of, and that there is no difference between lapsed legacies and lapsed devises as re'spects the operation upon them of a general residuary clause. The presumption is that a general residuary clause includes everything not otherwise well disposed of and the burden rests upon the heir-at-law or next of kin to show that the testator did. not intend his residuary clauses to include such property.

As said by Andrews, J., in Floyd v. Carow, 88 N. Y., 568, “A general residuary devise carries every real interest, whether known or unknown, immediate or remote, unless it is manifestly excluded. The intention to include is presumed, and an intention to exclude must appear from other parts of the will or the residuary devisee will take.”

In Riker v. Cornwell, 113 N. Y., 115; 22 N. Y. State Rep., 151, Gray, J., says: “A general residuary clause not circumscribed by clear expressions in other parts of the will, includes any property or interest of the testator'which are not otherwise perfectly disposed of, and all that for any reason eventually falls into the general residue.”

The general scope of the will under consideration, and the general scheme disclosed by it, negative the idea that the testator intended to die intestate, either as to the residuary real estate generally or as to this particular property or any reversionary interest therein.

By this will the testator meant to dispose of his whole property of every kind. There certainly is no clear indication of any contrary intention. The language used in reference to his residuary estate is general and in no way restricted.

While he may have failed to recognize that certain possible interests in real estate might not vest, still the general intent is apparent in the residuary clauses, to dispose of whatever was left, whatever it might be. Words indicating a particular consideration of each item or class of property aré not essential. Language showing the general intent is all that is necessary.

We do not find any limiting words in the residuary clause confining it to any particular fund or description of property, or to any certain residuum, which is present in the cases relied upon by appellants.

Having, therefore, reached the conclusion upon the reading of the will itself that the property involved passed under the residuary clause, it remains only to consider what weight should be given to the arguments derived from the circumstances that certain of the respondents upon the accounting of the executors and by the allegations in their complaint in this action, occupy a different/position from that which by the judgment is secured to them.

It would be a harsh rule indeed in a proceeding for an accounting taken by executors or in an action brought for the construction of a will, to apply the doctrine of estoppel so that parties who in ignorance of their rights, and of their legal position, by honestly setting forth what they regarded their interests in the litigation to be, should thereby be prevented from obtaining the benefits derived from a judgment in their favor, which determined that their interests were greater than originally claimed by them. When we consider the character of executors’ proceedings upon an accounting or the nature of an action brought for the construction of a will, persons who submit their rights to the court, accompanying them, it may be, by a statement of their claims, should not thereby be estopped from subsequently obtaining the benefit of a judgment which determines that their rights are .greater than those originally claimed or asserted by them.

Another question passed upon by the referee related to the claim advanced by the defendant Adam 0." Gillespie. His failure to appeal would justify our omitting all reference to his com tention; but it may be as well to dispose of the issue of law raised on his behalf

He claims that the fee in the lots in question immediately on the death of Anthony Lamb vested in the children and heirs-at-law of Anthony Lamb, subject only to the devise in favor of and upon the birth of children to his wife, Sarah, and that the fee having so vested, Sarah could devise her one-ninth interest in the lots to him. This contention cannot be sustained, whether the conclusion reached is that this property passed to the residuary devisees or by reason of intestacy went to the heirs-at-law, for the reason that the will gave to Sarah a life estate only, and that in the whole premises. She was not to have, therefore, a fee in one-ninth. Having but a life interest there was no interest to pass under the will to her husband.

The judgment of the referee should, therefore, be affirmed, with costs and disbursements.

Daniels, J.

I think the testator intended to include real as well as personal property in his final directions. What he referred to was his estate and that aptly included all he had to finally dispose of, whether personal or real property.

The judgment should be affirmed.


author: Dykman, J.

text:
    Lazarus Belfer, Resp’t, v. Morgiana Ludlow et al. Joseph Ryan, Impl’d, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Mechanics’ Lien.
    Plaintiff contracted to do the glazing in eight houses, which work was performed and a mechanic’s lien filed. Prior to the filing of the lien all the houses had been sold except three, on one of which a mortgage had been given. On foreclosure of such mortgage plaintiff was made a party defendant, but withdrew his answer on its being stipulated that the foreclosure should not affect his lien. The property .sold for less than the mortgage, and the assignee of the mortgage also took the other two houses. In an action to foreclose the lien, plaintiff recovered for the amount of glazing done on these three houses. Held, that the judgment was right.
    Appeal from a judgment entered on the decision of Justice Pratt The action was brought to foreclose a mechanic’s lien. The plaintiff contracted with the defendant Ludlow and one Holt to do the glazing in eight houses on the southerly side of Bush-wick avenue between Wierfield street and Halsey street in the city of Brooklyn for the sum of $875. The glazing in the two corner houses was worth $150 each, and in the six inner houses was worth eighty-five dollars each. The lien covered all the eight houses.
    The plaintiff was paid $150 when the work was finished, but made no special application of the payment On the 16th day of May, 1888, the plaintiff filed a notice of mechanic’s lien with the clerk of Kings county. Prior to the filing of the lien all the houses had been sold and conveyed to bona fide purchasers except two of the inner houses and the house on the southeasterly corner of Wierfield street and Bushwick avenue. A mortgage given on May 7, 1888, to secure $2,000 and assigned to the defendant Byan was foreclosed by Byan on the Wierfield street house and the plaintiff was made defendant in the foreclosure action.
    His answer therein was withdrawn on a stipulation being given that the judgment therein should not be res adjudicata against him in an action to foreclose his lien. The property was sold for less than the amount of the mortgage to Byan, who also took deeds of the other two pieces of property.
    Plaintiff recovered judgment against defendant Ludlow for the balance due on his contract and for a foreclosure and sale of the three houses for the glazing done upon them, with interest, amounting to $314.20.

      Horace Graves, for app’lt; William J. Gaynor, for resp’t.
   Dykman, J.

This judgment from which the appeal is taken is right and. should be affirmed. The claim of the plaintiff is just,“and it is unfortunate that he could not have it all secured by his lien.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.


text:
    Silas L. Griffeth, App’lt, v. Andrew H. Green et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Manufacturing companies—Stockholders—Increased stock.
    In an action to enforce the liability of stockholders of a manufacturing company for its debts on the ground of a failure to file a certificate of payment of increased stock issued by the company, where it appears that certificates of payment of the original stock and an increase thereof to a certain amount had been duly filed, the burden of proof is upon the . plaintiff to show that defendants’ stock was increased stock of a subsequent issue.
    8. Same—Limitation—Laws 1848, chap. 40, § 24.
    A suit against the company on notes given by it is not a suit for the < ollection of the debts for which the notes were given, within the meaning of the statute requiring such actions to be brought within one year.
    Appeal from judgment dismissing the complaint on the merits.

      A. M. & G. Card, for app’lt; Dixon, Williams & Ashley (Mornay Williams, of counsel), for resp’ts.
   Dykman, J.

The action was brought by a creditor of theMillerton Iron Company, a trading corporation formed under the laws of this state which provide for the organization of mining and manufacturing companies. The object of the action is to enforce the personal liability of the stockholders for the debt of the corporation.

The ground on which the liability is sought to be enforced is-that no proper certificate of the payment in full of certain increased stock issued by the company was ever filed. It was conceded, however, that the original stock of the company and the increase thereof up to $70,000 was fully paid, and the certificate duly filed, and the trial judge so found, and he also found that no proof was given as to whether any of the stock held by the defendants was increased' stock, and be decided as a conclusion of law that the burden of proof rested upon the plaintiff to show that the stock of the defendants was increased stock of an issue subsequent to the issuance of the first $70,000 of stock.

This last conclusion is fully sustained by the case of Veeder v. Mudgett, 95 N. Y., 295, and seems to be decisive of this ease.

We also concur with the conclusion of the trial judge that the suit against the company upon the notes was not an action for the collection of the debt such as the statute contemplates. Parrott v. Colby, 6 Hun, 55; S. C., 71 N. Y., 597.

The judgment should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


author: Barnard, P. J.

text:
    In the Matter of the Judicial Settlement of Accounts of Benjamin S. Mills, Ex’r.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Executors and administrators—Accounting—Limitation.
    Where an executor or administrator pays the assets to the next of kin in advance of the final settlement, and there are costs incurred in an action in which the executor failed to recover, the statute of limitations is no defense to a proceeding to compel him to account, brought by the party in whose favor the costs were awarded.
    Appeal from order of surrogate denying application that the-executor of the estate of Clarissa Darling pay to the petitioners: the amount of a judgment for costs in a suit instituted by him 'against them.
    In 1886, as such executor, he instituted a proceeding against the petitioners herein, administrators of the estate of Elizabeth Jayne, deceased, to recover the amount of a note held by said Clarissa Darling against said Elizabeth Jayne, and as the result of the litigation, a judgment for $426.11, for costs, was rendered ■against said Benjamin S. Mills, as executor, etc., in September, 1889.
    On this proceeding the executor filed an account showing that the assets had all been distributed among the heirs in 1871 and 1872; that the debts were paid and the children agreed on the division of the property, and none of it ever came into the hands -of the executor, and set up the statute of limitations.
    The surrogate sustained this defense and denied the petitioners’ motion.

      Thos. J. Ritch, Jr., for app’lts; George F. Stackpole, for resp’t.
   Barnard, P. J.

An executor or administrator cannot pay the ■assets to the next of kin in advance of the final settlement. If he do so and there be costs and charges put upon the estate in an .action where the executor or administrator failed to recover, the •statute of limitations is no defense to an accounting by the administrator or executor. The executor may be even bound by the statute as between himself and the heir or next of kin; but it has no relevancy to the petitioners’ claim to be paid out of the estate.

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

Dykhan and Pratt, JJ., concur.


author: Pratt, J.

text:
    The E. G. Blakslee Mfg. Co., Resp’t, v. The E. G. Blakslee’s Sons’ Iron Works, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    1. Ejectment—Land Grants.
    A grant from the state of lands under water will support an action of ejectment for such lands. 'Ihc grant is presumptively regular and creates a presumption that the patentee was the owner of the upland.
    3. Same—Deed by riparian owner.
    A mere riparian owner, as such, has no estate in the lands under water, but simply a right to apply to the state for and obtain a grant as owner of the upland, and when he sells the upland the right ceases, notwithstanding an attempted reservation thereof in his deed.
    Appeal from judgment in favor of plaintiff.

      Francis Larkin, for app’lt; Taylor & Parker (Alfred Taylor, of counsel), for resp’t.
   Pratt, J.

This is an action of ejectment for land at Sing Sing under a grant from the state to plaintiff March 18, 1889. The locus in quo is land under water. Defendant is in possession of part of the premises covered by this grant. Ejectment is, nevertheless, the proper remedy, and, generally speaking, a grant from the state will support the action. The grant is presumptively regular and creates a presumption that the patentee was the owner of the adjacent upland.

Defendant alleges that this grant to plaintiff is void, on the ground that it was not the owner of the adjacent upland when it was made.

Reuben Quimby was common source of title of both parties, so far as the adjacent upland is concerned. Plaintiff’s title to this upland is from Quimby to Gregory & Mead, March 15, 1853; to McCord, December 2, 1854; to Jones, February 27, 1856; to Jones, through a referee, February 6, 1860; to Sawyer, September 14, 1885; to Bunting, September 26, 1885; to plaintiff, February 6, 1886. Defendant’s title is by mortgage to Curtis, September, 1854; to David Quimby, through foreclosure, May 1, 1863 ; to Larkin, July 1, 1863; to Larkin, November 1,1873; to Blakslee, September 14, 1883, and thence to defendant.

It thus appears that Quimby’s deed to Gregory & Mead (May 15, 1853,) antedates this mortgage to Curtis, September, 1854. It is claimed, however, that while Quimby sold the upland adjacent to the locus in'quo to Gregory & Mead, he reserved all water rights, etc., in front of that land, and that the rights thus reserved passed to David Quimby, and so on to defendant, under the mortgage and foreclosure.

The difficulty is that the Gregory & Mead grant made them riparian owners. It carried all that Quimby owned. He had then no grant of land under water. He owned nothing in the water of the river. He was a mere riparian owner, and as such had no estate whatever in. the land under the water. He had simply a right to apply to the state for and to obtain a grant as the owner of the upland. But when he sold the upland that right ceased. Gregory & Mead then became the owners of the upland, and as such they and their grantees were entitled to apply for the grant of land under water.

We fail to see how the state could grant that land under water to anybody except the grantees of Gregory & Mead. To say that the state could not grant it to them would be to say that it could never be granted, by the state at all, and that simply because Quimby chose to write some words in his deed indicating that he claimed rights in the land under water, which he never owned at all.

It seems to have been claimed that the locus in quo was covered by an ancient grant from the state to Hunter, in 1787, and hence that Quimby, a grantee thereunder, did own the land under water which he reserved from his conveyance to Gregory & Mead. But that was a question of fact on the evidence, and the finding is against defendant on this point. We do not find any specific request upon this point, and in the absence thereof we cannot say that any error of law was committed in this respect. Indeed, we think the evidence sustains the findings.

We have examined the other questions suggested on appellant’s, points, and fail to find error.

The judgment should therefore, be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


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    John Copcutt, Resp’t, v. The City of Yonkers et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Municipal corporations—Assessments.
    An assessment cannot tie legally imposed for the grading and regulating of an alleged street, or portion of a street, which has never been laid out, opened or made a public highway, street or road.
    Appeal from judgment of special term, setting aside and declaring void certain -assessments for the grading of Walnut street, in the city of Yonkers, levied upon the plaintiff’s land, and cancelling certificates of sale and enjoining the issuing of leases under said sale.

      Joseph F. Daly, for app’lts; Ralph E. Prime, for resp’t.
   Pratt, J.

This suit is to prevent the threatened sale of plaintiff’s lands to pay an assessment for grading Walnut street in the city of Yonkers.

There is no substantial dispute about sufficient material facts to determine this controversy.

It was found by the judge who tried the case, among other facts, that, 3d, the so-called Walnut street was not, nor has any part thereof, ever been laid out, opened, regulated, graded or worked by the trustees of the village of Yonkers, or by any authority of said village. That, 4th, the so-called Walnut street was not nor has any part thereof ever been laid out, opened or worked or made either in fact or law a public highway, road or street by the commissioners of the town of Yonkers or by any authority of the town of Yonkers. And, 6th, that part of so-called Walnut street which lies between Ashburton avenue and the southerly line of the Croton aqueduct property, has never been laid out, opened or made a public highway, street or road by the common council of the city of Yonkers, or by any officer or authority on behalf of the city of Yonkers.

The city of Yonkers succeeded to the village of Yonkers, which was carved out of the town of Yonkers.

It appears beyond question, I think, that at least eight hundred feet of Walnut street was never a public street or road ; to that extent the findings of the trial judge are sustained by the proof. Therefore the work upon that part of the street was a trespass, the expense of which no legal assessment could be laid to pay. Matter of Rhinelander, 68 N.Y., 105; Matter of Cheesebrough, 78 id., 233, 238 ; Peo. ex rel. Williams v. Haines, 49 id., 587.

A person who pays an assessment for work upon a street has a right to insist that it shall be a lawful public highway.

No laches or consent in this case can be imputed to the plaintiff, as he protested against the work, sued the city for the trespass and commenced the present suit as soon as the city threatened to give the deeds.

The cases of In re. Ingraham, 64 N. Y., 310, and Moore v. The City of Albany, 98 id., 396, cited by appellant, are distinguishable from the case at bar. In both of those cases the improvement for which the assessment was laid was in a public street, and the trespass complained of in each case was upon property of a third party, who made no complaint, and in neither did the plaintiff show any special injury to himself.

If the foregoing views are sound, there is no necessity of adverting to any other point in the case.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    Edward Jacoby, Resp't, v. Henry Ockerhausen, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Animals—Liability op owner op vicious dos.
    Plaintiff called at defendant’s house to collect a bill and was attacked and severely lacerated by four mastiff dogs who were unmuzzled and unsecured. Á servant of defendant testified that he would not dare to go in the place though the dogs knew him, and it appeared that one of them had bitten another person in defendant’s presence. Held, that their ferocity and defendant’s knowledge thereof were sufficiently shown to render him liable for not securing or controlling them.
    Appeal from judgment in favor of plaintiff entered upon a verdict for $700.
    The plaintiff Edward Jacoby, in the course of his lawful business, went, on the 8th day of January, 1890, to the defendant’s house early in the afternoon to collect a bill, where defendant’s four mastiff dogs attacked him without the slightest provocation; before the plaintiff was rescued from his perilous position they had thrown him to the ground, tearing his clothing, severely wounding him and lacerating his flesh in a terrible manner.
    Finally a man who said he was an employe of Mr. Ockerhausen appeared with a heavy stick and rescued the plaintiff.
    The plaintiff was then taken to his physician who attended him for some weeks; but so serious were his wounds thjit it was weeks after the services of the physician were dispensed with before he was able to get about comfortably.

      Fred. E. Anderson, for app’lt; Clarence M. Smith, for resp’t.
   Dykman, J.

Keeping ferocious dogs without confinement or restraint and in a condition to gratify their disposition to do mischief is negligence which is nearly allied to criminality. It manifests a disregard for human safety and even human life which merits and receives the condemnation of the law.

The liability of owners of animals for the injuries which they perpetrate is based upon their propensity to do mischief, and it is, therefore, the duty of all persons who keep animals which are mischievous or savage to so control them as to incapacitate them from committing injuries, and if they fail in the performance of that duty they become liable to respond in damages for the injuries they perpetrate.

In this case the plaintiff went to the residence of the defendant in the day time for a legitimate purpose, and while he was at the front door he was attacked by four dogs belonging to the defendant and was severely lacerated and torn by them, and even his life seems to have been placed in jeopardy. The dogs were unmuzzled and unsecured, and their ferocity is fully .established by their attack upon the plaintiff. Besides that the servant of the defendant said he would not dare go into the place even though the dogs knew him, and the wife of the defendant told the plaintiff she did not want him to come in for fear of the dogs.

The knowledge of the defendant of the savagery of the elder of the dogs which tore the plaintiff is established by the fact that she bit another person in his presence some time before she bit the plaintiff.

The evidence thus brought the case fully up to the requirements of the law and the jury gave the plaintiff a verdict which might well have been much larger.

All vicious dogs should be either killed or confined and persons who keep them are held to a rigorous rule of liability, because it is a grave offense against the law and against society to keep ferocious dogs and expose human life and human safety to their ferocity.

The judgment and order denying 'the motion for a new trial, should be affirmed, with costs.

Pratt, J., concurs; Bardard, P. J., not sitting.


text:
    In the Matter of the Alteration of the Four Corner Road in Richmond County.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Highways—Opening.
    Where it appears that a proposed road will run through orchards, house enclosures and a school; that it will benefit very few persons and very slightly; that the cost will be heavy, and the road it will displace is sufficient for the public use, consent to its opening should not be granted.
    Application to confirm order of the county judge of Richmond county, affirming decision of commissioner of highways “ that the public interest will be greatly promoted by the laying out and opening of a road ” from the Four Corner road to the Richmond road.
    The proposed road is about 1,500 or 1,700 feet long, starting from the present junction of the Four Corner road and Richmond road, and running in a curved line until it intersects the same road again at the top of the hill, ostensibly for the purpose of avoiding an alleged inconvenient grade of the present road, but really, as claimed by the respondents, for the purpose of opening up and improving certain lands of George and H. B. Cromwell, through which it passes, at the expense of the town.
    The only other lands through which it passes belong to Mrs. Mary A. Yreeland and the trustees of school district bio. 3 of Middletown and Southfield, who all oppose the application.
    If the order is affirmed, it will take the school house and grounds now occupied and used as a school, and the door yard and orchard of Mrs. Yreeland, within a few feet of her dwelling house, and so cutting up and dividing the premises as to substantially destroy their value.

      Besides the door yard and orchard of Mrs.Vreeland, it passes for about 500 feet through other land of hers, detached and enclosed and used as a pasture for her cattle.
    The lands of the Cromwells, through which it passes, are enclosed and improved lands. They did not join in the application before the commissioner, and although Mr. George Cromwell states in his testimony before the county judge that he and his brother consent, they have not given their consent in writing, as required by § 1, chap. 481, Laws of 1875, nor executed any release of damages.

      Sidney F. Rawson, for highway com’r and the Cromwells; George J. Greenfield, for resp’ts.
   Barnard, P. J.

The consent of the county judge ought not to have been granted upon the merits of the application. The road asked for takes orchards and house enclosure and a schoolhouse. By the general law in rural districts a highway could not be laid out through these lands. In cases of great public importance and convenience the property owners must give way to the public necessity. The present "case does not fill these requirements. The road benefits very few people, and very slightly. The cost will be quite heavy, and the road, which this one is to displace, is sufficient for the public use.

The order should be reversed, with costs, and motion denied, with costs.

Pratt and Dykman, JJ., concur.


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    Charles S. Higginson, Pl’ff, v. The Second National Bank of the City of New York, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)'
    1. Release—Consideration—Disputed claim.
    A dispute as to the validity of a claim is both a good and valuable con- ’ sideration to support a release thereof.
    2. Same.
    Shortly after the death of one F., the defendant, in ignorance thereof, paid to one C. a check apparently drawnlby deceased. 0. was the confidential adviser of F.’s administratrix, and claimed to have a demand against her. Four years later the administratrix brought action against defendant for the amount of such check, but on the eve of trial executed a release, and the action was discontinued. Held, that the release was supported by the doubtful character of the claim, and was valid.
    Exceptions ordered héard at general term in the first instance after verdict in favor of defendant directed by the court.
    Action to recover the sum of $1,710, with interest, which sum had been deposited with defendant by one J. B. Fuller, now deceased. The claim in question was assigned to plaintiff by the administratrix of Fuller’s estate in payment and satisfaction of a judgment On the trial a release of said claim, executed by the widow and former administratrix on the discontinuance of an action brought by her, was introduced in evidence, and the court directed a verdict for defendant upon the release, to which plaintiff excepted.

      Edwin W. Sanborn, for pl’ff; Butler, Stillman & Hubbard, (John Notman, of counsel) for deft.
   Barnard, P. J.

J. B. Fuller a check on the defendant bank where he had a deposit just before his death or some one forged his check on this bank for $1,710. The check was not presented at the bank until after Fuller’s death. The check was presented in regular course of business and was paid by the bank in ignorance of the fact that Fuller was then dead. The payee of the check was H. B. Crosby. The check was dated February 13th, 1879, and was paid February 15th, 1879,by a deposit to Crosby on that day. Crosby had been in some sort of business relation with Mrs. Fuller after her husband’s death. On the 24th of April, 1883, Mrs. Fuller, as administratrix of the deceased, brought an action to recover the $1,710 of the defendant. The defendant denied the claim and the action was referred on the eve of trial. The plaintiff then discontinued the action and executed a general release designed to extinguish the right of action. This arrangement was perfected by an order discontinuing the action upon payment of costs to the plaintiff’s attorney and referee. This order was entered the 10th of October, 1883. In the early part of that year the attorney for the bank had found out Mr. Crosby, fie was a confidential adviser in some way of the administratrix but claimed to have a demand against her for services and money paid. Mrs. Fuller had an individual claim also against Crosby. Under this state of the facts the administratrix discontinued the suit and relinquished the claim against the bank. Is the release good? There is no proof of fraud in procuring the release. It is evident that the whole facts in respect to the check as between the deceased, his widow and Crosby, are not known. There seems to be no reasonable ground for a belief in the forgery of the check. It was honorably given and paid in good faith in ignorance of the death of the giver of the check. No doubt the family had the money, for the widow was late in bringing her action if it was a forgery. At any rate the question of the bank’s liability was an open one and was represented thus by Mrs. Fuller who with her daughter was then supposed to be next of kin. The release is good. A disputed claim is the subject of a release. Home Insurance Company v. Watson, 59 N. Y., 390.

The administratrix was not bound to go to trial in her action if she knew that she had no real claim and put the estate to the costs of the defense. The rule is the same where the party makes or defends a disputed claim as a trustee or an individual only. In no case will a mere release without consideration discharge the claim; but a dispute as to the validity of the claim is both a good and valuable consideration to support a release. Palmerton v. Huxford, 4 Den., 167; Pierce v. Pierce, 25 Barb., 243 ; Wehrum v. Kuhn, 10 Alby. L. J., 239.

The exception should therefore be overruled and judgment given for the defendant upon the verdict, with costs.

Dykjian and Pratt, JJ., concur.


text:
    Frederick W. Davis et al., Resp’ts, v. George W. Evans, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Adjoining owners—Improper use op land.
    Defendants piled a quantity of sand against plaintiff’s brick wall, which afterwards fell, and no other adequate cause was assigned for such fall except the presence of the sand. Held, that the use of his premises by defendant in such manner as to injure plaintiffs property was wrongful and rendered him liable for the resultant damage.
    Appeal from judgment of the county court in favor of plaintiffs, entered upon the verdict of a jury for $248.
    The action was brought in a justice’s court where defendant recovered judgment, but upon a new trial in county court the judgment appealed from was rendered.
    The plaintiffs were the lessees of premises on Eutledge street, in the city of Brooklyn, used and occupied by them as an iron foundry. The defendant was the lessee of the premises adjoining said foundry, which he used as a storage yard for gravel and other materials used in his business as gravel roofer.
    Defendant piled up against plaintiffs’ brick wall a heap of gravel forty-six feet long, fifteen high and twenty-five wide.
    On the 13th day of December, 1887, the wall of plaintiffs’ foundry gave away under the great pressure and weight of this gravel, and fell in on plaintiffs’ premises, destroying their tools,' implements, machinery and goods to the damage of $250.
    The wall was a solid, strong briclc wall twelve inches thick with sixteen inch buttresses at short intervals.
    Defendant claimed that the fall was caused by the weight of a gallery erected by plaintiffs on their side of the wall on which were stored the moulds used in their business.

      J. Stewart Ross, for app’lt; Alexander McKinny (Sidney V. Lowell, of counsel), for resp’ts.
   Dykman, J.

There was no defense to this action and there is no merit in the appeal from the judgment. The defendant piled a quantity of sand against the brick wall of the plaintiff’s building, and the pressure was sufficient to push in the wall. The fact of the breach was undisputed and no adequate cause was assigned therefor except the pressure resulting from the bank of sand, and with the verdict of the jury in favor of the plaintiff we must assume that to have been the cause.

The use by the defendant of his premises in a manner that injured the property of the plaintiff was wrongful and rendered the defendant liable for the damage which resulted from such use.

The judgment and order should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    David Parry, Resp’t, v. The Citizens’ Water Works Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 9, 1891.)

    Watercourses —Diversion.
    Defendant, a corporation formed under Laws 1873, chap. 737, constructed a reservoir on a stream above plaintiff for the purpose of storing the water and of conducting it in pipes to supply the owners and occupants of other lands, discharging a part only into the stream below plaintiff’s lands. By so doing the water has been lessened in the stream, and the drainage from houses, etc., formerly carried off has accumulated and become offensive. Held, that this constituted a diversion, and that an injunction pendente lite was properly granted.
    Appeal from order granting an injunction.

      Bangs, Stetson, Tracy & Macveagh, for app’lt; A. H. F. Seeger, for resp’t.
   Pratt, J.

This is an appeal by defendant from an order made at the Dutchess special term, August 9, 1890, after hearing on the merits, restraining defendant, during the pendency of the action, from using any of the water of Buttermilk Falls Brook in the town of Highlands, in Orange county, for the purpose of supplying water to the village of Highland Falls, on the ground that such use would be a diversion. The defendant is a water works company organized under chap. 737 of the Laws of 1873. Section 3 of that act provides that these companies shall have power “to take and hold real estate for the purpose of their incorporation, and may have, hold and occupy any waters of this state; provided, however, that nothing herein contained shall be deemed to infringe upon any private right which shall not have been the subject of an agreement and lease or purchase by said corporation,” etc.

The defendant does not justify its taking of the water upon the ground of any agreement, lease or purchase from the plaintiff, who is a lower riparian owner on this brook.

The plan of defendant’s works is to store the water of this brook in reservoirs above plaintiff’s land and thence conduct it through its pipes to supply the owners or occupants of lands which do not abut the brook; and to discharge a part thereof into the brook below plaintiff’s lands, and a part thereof is not to be returned to the brook at all. It is, therefore, obvious that a part of the waters of the brook are to be diverted from following in their natural course through plaintiff’s property.

In the absence of any agreement, lease or purchase, defendant’s claim of right to such use of the water must rest solely on the ground that it does not “ infringe upon any private right of the plaintiff; ” and such, we understand to be the defendant’s contention, i. e., that being a riparian owner upon this brook and its tributaries at points above plaintiff’s lands, it has the right thus to divert some of its waters and run a part thereof wholly around and the other part wholly away from the plaintiff’s land. The theory seems to be that it may do this with what it calls the surplus. But what is the surplus ? Obviously it does not depend upon the present use to which plaintiff has devoted the water of this brook. Non constat his place may be rendered far more valuable than it is at present esteemed by use of these waters to their utmost capacity; certainly no man has the right to deprive him of these advantages by diverting them or any material part thereof from his premises.

It should be noted in the first place that defendant does not propose to utilize the water thus taken upon any land of which it is a riparian owner. It proposes to make use of its own lands only for the purpose of storing these waters and leading them away to the lands of others, there to be sold to others who could not otherwise obtain them at all. Hence, it cannot be said that the water thus diverted is to be used upon or for the benefit of defendant’s land. Indeed, it may well be doubted if defendant would have any power to make use of the water, even on its own lands, except for fairly incidental purposes.

This view of the case, as it seems to us, fully justified the learned judge at special term in holding that the purposed use of the water was a diversion within the legal meaning of that term as applied to riparian rights. We think this view fully sustained by the reasoning of Danforth, J., in Garwood v. N. Y. C. & H. R. R. R. Co., 83 N. Y., 405-6.

The defendant, if a natural person, might use the water of this stream to a reasonable extent on its own land abutting the stream, for irrigation, or domestic, or even manufacturing purposes; and the fact that somé of it was thus permanently lost to the stream would not be regarded as diversion provided it was not material to the lower riparian owner. But how can such diversion be held immaterial in this case where it is plainly regarded by this company and the town authorities of this village as sufficient for the permanent establishment of a business, and a reasonable water supply for a “ thickly settled hamlet? ” More than this, the waters of this stream, in their natural flow, seem to have been hitherto sufficient to carry away the drainage which naturally settled into it from houses, stables, etc., when, as it now seems, that the accumulations from this cause are' becoming offensive. Again, the waters of the brook seem to have been hitherto sufficient to enable plaintiff to run a hydraulic ram, by which he supplied his own premises with water from the brook; and defendant’s affidavit indicates that the ram has ceased to force water by reason of insufficient supply.

It is not to the purpose to say that the plaintiff’s dam is insufficient. Such an appliance may be and often is made to work successfully by merely turning the nose of a supply pipe into a pool in a brook without any dam at all.

Defendant certainly has no right to predicate any property in these waters upon the fact that plaintiff has built a dam to aid in operating his ram.

It should be observed that the mere storage of water in reservoirs by means of dams is not per se an unreasonable use of the water of a stream by an upper riparian owner. Indeed, it would require a very strong case of such use of water to constitute diversion, even though there might be some temporary obstruction while the reservoir was being filled. • The trouble here is not from that cause. It lies rather in the tendency of the" defendant’s use of the waters of this stream, which have been already felt by plaintiff. Hence, since the use of the water by defendant is not within the limitations of its riparian proprietor’s life, it follows that that use is a wrong. It is a wrong which has already resulted in inconvenience and some injury to plaintiff. ' The success of defendant’s business scheme will inevitably increase that injury. Its extent is something which we cannot foresee. The chief trouble is that it cannot be measured with accuracy either by hindsight or foresight. It will be a continuing injury, hence a multiplicity of suits will result before redress can be given.

It is, therefore, plain upon the points submitted that plaintiff’s bill was properly filed for preventive relief, and hence that the injunction was justified, at least until the court by means of a trial could more carefully inquire into the extent of the injury, and either permanently restrain the diversion or prescribe some conditions which will protect plaintiff against future injury.

The order appealed from should, therefore, be affirmed, with costs and disbursements of this appeal to the plaintiff.

Dykman, J., concurs; Barnard, P. J., not sjtting.


author: Van Brunt, P. J.

text:
    Annie M. Delaney, App’lt, v. Annie A. McGuire, Impl’d, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Will—Devise by implication.
    The will of a testatrix devised to her executor real estate in trust to use the income to support her niece during minority; it then proceeded, “ but in case my said niece should die before the age of twenty-one years, without lawful issue, and should not at the time of her death have lawful issue, then I give the said house and lot to my lawful heirs." The niece has arrived at the age of twenty-one years. Held, that the intention of the testatrix was, that the niece should, during her life, have the use of the property, and that upon her death it should pass to her children if she left any, and if not that it should go to the heirs of the testatrix.
    Appeal from order confirming report of referee respecting surplus moneys.

      Hamilton B. Squier, for app’lt; William J. Lardner, for resp’t.
   Van Brunt, P. J.

This proceeding was to ascertain the priorities of lien upon certain surplus moneys arising from the sale under foreclosure of a house and lot, No. 125 East Seventy-third ■street, in the city of New York, which was owned by one Margaret B. Duffy at the time of her death. The said Margaret died on the 14th day of March, 1882, leaving a last will and testament, which was duly proved before the surrogate of the county of New York and letters testamentary issued thereon to one James Boyle, "the father of the testatrix. In September, 1883, the said Boyle died, and thereafter, in February, 1884, letters of administration with the will annexed were duly issued to one Thomas Smyth, the brother-in-law of the testatrix. At the time of these proceedings the respondent, Annie A. McGuire, and Jane Smyth and James Smyth, infants, were the only heirs at law and next of lcin of the testatrix, and said infants claim a share in said surplus-moneys, the whole balance of which has been by the order appealed from awarded to the said Annie A. McGuire. The claims-above mentioned arise under the said will of Margaret B. Duffy r which is, so far as it affects this controversy, as follows:

First. That I hereby direct my executor hereinafter named to pay all my just debts, funeral expenses and testamentary charges as soon after my decease as the same can be done.
Second. I hereby give, devise and bequeath unto James Boyle as trustee of my niece, Annie McGuire, my house and lot of land situated on the northerly side Seventy-third street, between Lexington and Fourth avenues, and now known by the street number 125 East Seventy-third street, in the city of Mew York, to use the income thereof during the minority of my said niece, to pay the interest on the mortgage now on said property, and the taxes, insurance., water rents and repairs necessary on said premises, and after paying said charges, to use the balance, if any there should be, for the support, maintenance and education of my said neice; but in case my said niece should die before the age of twenty-one years, without lawful issue, and should not at "the. time of her death have lawful issue, then I give the said house and lot to my lawful heirs. I hereby authorize and empower the aforesaid, trustee of my said niece to sell and convey, by good and lawful deed, the house and lot if, in his judgment, it will be for the best interest of my said niece, at any time, for all cash or part cash and part mortgage.
And I hereby authorize and empower him to mortgage or lease the said house and lot as such trustee, if needful or necessary in his judgment at any time.
If the said trustee should exercise the power of sale contained herein as to the said house and lot, the same may be at public auction or private sale.
Third. I hereby authorize, empower and direct my executor hereinafter named to sell and convey by good and lawful deed or deeds all the rest, residue and remainder of my real estate at public or private sale as soon after my death as the same can be done for cash, or part cash, and part on bond and mortgage may remain as shall be agreed upon, the same to remain at lawful interest, and the proceeds of the sale of such real estate shall be invested by my executor on good real estate in the city of Mow York, and the income thereof used for the support of my father, and the support, maintenance and education of my niece, Jane Smyth, my nephew, James Smyth, and my niece, Annie McGuire,, and my executor hereinafter named is hereby appointed trustee to receive and disburse the said income and invest the said principal.

It is urged upon the part of the appellants that by the second clause of the will Annie McGuire only took an estate during her minority in the premises out of which the surplus proceedings arise, and it is claimed by the respondent, and was so reported by the referee, that upon her arrival at twenty-one years of age she became seized and possessed in fee simple of the premises in question.

There are no words of gift to Annie McGuire contained in the clause in question, but it is claimed that it was the manifest intention of the testatrix to give these premises to her upon her attaining the age of twenty-one years, and therefore she takes by implication. And we are cited to various cases in the English courts, and in our own, going to show that such construction is correct.

An examination of these cases, however, will show that in all of them there was some plain indication of an intention that the devisee should enjoy the whole estate. The latest case in our courts upon this subject is Masterson v. Townshend et al., 123 N. Y., 462 ; 34 N. Y. State Rep., 104, where it was held that there was a devise by implication. In that case the will contained a power of sale with a direction to pay upon the happening of a certain contingency the whole of the proceeds to the person to whom it was held there was a devise by implication. It was the plain intention that the party should, take absolutely upon the "happening of the contingency, and although there were no express words of gift except upon a sale, it was held that a gift was plainly intended.

In the case at bar there is not only no intention expressed of an ■absolute gift, but the language of the will expressly excludes such an intention.

The testatrix gives the premises in question to her executor as trustee of her niece, Annie McGuire, to use the income during the minority of her niece in the manner specified, and then says, “ but in case my said niece should die before the age of twenty-one years without lawful issue, and should not at the time of her death have lawful issue, then I give the said house and lot to my lawful heirs.” The said niece has arrived at the age of twenty-one years. It is plain that the time of death intended by the testatrix did not mean death during her lifetime, because the language is inapplicable to any such construction. Death at any time before twenty-one years of age, without lawful issue, gave the estate to the lawful heirs of the testatrix. The testatrix intended evidently that Annie McGuire should, during her life, have the use of this property, and upon her death it was to go to her children if she left any, if not it was to go to the heirs of the testatrix. This ■construction it seems to us is reinforced by the clause of the will next occurring after the provision referring to death during her minority; it says “ and should not at the time of her death have lawful issue, then I give, etc.” If the word “or” is substituted for the word “ and,” the meaning at once becomes apparent, and such was undoubtedly the intention of the testatrix. If she should die during minority without lawful issue, or should not at the time of her death, whenever it may occur, leave lawful issue her surviving, then the estate was to go to the lawful heirs of the testatrix. This shows an intention upon the part of the testatrix that Annie McGuire should enjoy this estate during her life, and if she left issue her surviving that she should have the right to dispose of the same as she saw fit, but if she died without lawful issue her surviving she could enjoy the estate during her life, it going upon her death to the lawful issue of the testatrix.

This interpretation is in harmony with the views expressed by the court of last resort in the case of N. Y..L. & W. R. R. Co... 105 N. Y., 89; 6 N. Y. State Rep., 851.

If the referee had seen that rule 64 of the general rules of practice had been complied with, as was his duty, and had required certificates of the clerk as to the appearances in the action and notice of claim to the surplus moneys, and proof of service of notice of the proceedings before him upon such persons, so that we could have seen that the proper parties had received notice of these proceedings, we might now make the proper order distributing this surplus, but as no attention seems to have been paid to the requirements of the rules as to notice, we can simply reverse-the order appealed from, with ten dollars costs and disbursements,, and remit the proceeding to the special term for further action, where it is to be hoped that it will be seen to that the proper evidence is produced jhat the parties entitled to notice have received the same.

This result to be, however, without prejudice to the right of' Patrick J. Lynch to claim payment of his debt out of the surplus, upon such proof as would charge the heir in the payment of this debt because of receipt of assets.

Daniels and Lawrence, JJ., concur.


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    The People ex rel. St. Stephen’s Church, Relator, v. James Blackhurst as Treasurer, Def’t.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    Religious societies—Committee of avestby, ousted from their offices AS VESTRYMEN, CANNOT BIND THE CHURCH.
    The vestry of a church appointed by resolution at a special meeting a. committee, consisting of three of its number, to adopt the requisite legal means for consolidating the parish with another. By legal proceedings-these three persons were ousted as members of the vestry. Subsequently they brought this action to compel the treasurer of the church -to affix its seal to an agreement for such consolidation. ‘ Held, that the import of the resolution and of the proceedings of the vestry showed that the members of such a committee must also be members of the vestry, and that upon being ousted from the latter- office their powers as a committee of the vestry to act for the church ceased.
    Appeal from order denying motion to dismiss proceedings for mandamus.

      W. H. Hamilton, for app’lt; Wager Swagne, for resp’t.
   Van Brunt, P. J.

This proceeding was originally instituted in August, 1890, for a peremptory mandamus to compel appellant to affix the corporate seal of the relator to an agreement for the union and consolidation of the relator with the Holy Trinity church of Harlem.

The application for a peremptory writ was denied, but in pursuanee of leave given, an alternative writ of mandamus for the same relief was issued in November, 1890.

One of the grounds upon which said application for the peremptory writ was opposed was that the proceeding was initiated without the authority of the relator, notwithstanding which objection the alternative writ was granted.

The latter writ was duly served on the defendant in January, 1891. On a petition signed by three of the appellants claiming to be officers of St. Stephen’s church and upon affidavits an order was obtained to require the relators therein named to show cause why these proceedings should not be vacated and the writ dismissed. It also contained a provision extending the defendant’s time in which to make return to said alternative writ until ten days after the hearing and determination of said motion. The said motion came on for hearing before the same justice who had heard the motion for a peremptory mandamus, and he having denied the same upon the merits, from the order entered thereon this appeal is taken by the defendant as well as the petitioners.

It is claimed on behalf of the respondents that this proceeding was instituted and has been carried on under the direction and authority of a committee appointed by the vestry of the relator corporation under certain resolutions for consolidation passed at a meeting of the vestry in February, 1890, whereby the relator was authorized to appoint a committee of three, among other things to adopt the requisite legal means for consolidating the union of the two parishes. The attorney for the relator in this proceeding has appeared for the corporation under the retainer and authority of said committee.

It further appears that prior to the initiation of this proceeding, certain proceedings in the nature of quo warranto were had against certain members of the vestry of the relator corporation, among whom were the three members of the vestry appointed by the relator pursuant to said resolution, and the members of the said committee were ousted from their office as vestrymen together with four others, being three vestrymen and one warden, making seven in all; leaving thus only two vestrymen and one warden in office.

If it is suggested that the above mentioned action only declared the election of the members of said committee at the election in 1890 void, and that they held over under their election of 1889, it may be answered that the right to so hold over was attempted to be established in the quo warranto action wherein Cook and others were relators, and Fleming and others defendants, and it was ad. judicated in that case that no such right existed.

It is claimed, upon the part of the respondents, that as no resolution abridging the powers or rescinding the appointment of the committee had been passed, such committee remained in full exercise of its powers, and has a right to discharge its duties and has continued to discharge the same down to the present time, and that the petition upon which the motion to dismiss was founded has never been authorized by the vestry of the relator, nor at any meeting of the petitioners or other persons claiming to act as a vestry.

In support of the application upon the part of the respondents it is urged, first, .that the corporation had the authority to delegate the power which it had to this committee of three, and that the powers of such committee did not expire with the term of the appointing body.

It is clear, and no question is raised but that such delegation of power by a corporation to a committee is proper, but it seems to us that the committee is appointed to be a committee of the vestry, and, although the resolution does not say that the committee was to be a committee of the vestry, it was the clear import of the resolution that such committee should be members of the vestry, and the rector, in his appointment, only named members of the vestry, and hence their office of committeemen was conferred upon them because of the fact of their being members of the vestry; and they having ceased to be members of the vestry, and being committeemen only because they were members of the vestry, it is clear that their office of committeemen also ceased.

A committee of the vestry cannot be a committee of persons who-are not members of the vestry, and the sole authority conferred upon the rector was to appoint a committee of the vestry, which is, as already said, the plain import of the resolution, and is what the rector understood at the time of making the appointment to be its import.

Such being the case, how is it possible for this committee to exercise its functions after they have been ousted from the office which authorized them to act as committeemen? As well might an executive committee of a business corporation claim that because a resolution had been passed by the corporation for the appointment of such committee, and that they had been appointed such committee, they had a right to exercise their powers as an executive committee of the corporation after they had ceased to be trustees or directors.

,But it is urged that the powers of the committee did not expire with the term of the appointing body, and this undoubtedly would be true if these committeemen had been mere agents of the corporation, because the rule is well settled that the authority of the agent of a corporation does not expire simply because the board of directors who appointed them have gone out of office.

But the distinction between the case at bar and the cases cited by the learned counsel for the appellant is that the committee in the case at bar .was a committee of the vestry. They were not mere agents of the corporation, except because of the official character which they bore to the corporation, being, as already stated, like the executive committee of a corporation whose power clearly expires with the term of their office. We think, therefore, that as soon as these men were ousted from their office, because of which they had been appointed on this committee, that their powers as committeemen ceased.

But it is urged that the appellants had no standing in court to present the petition; that they had no right to represent the corporation; that they were not competent to conduct any business ; and that there was no meeting of the vestry which authorized the presentation of their application.

This may be entirely true so far as authority to represent the corporation was concerned, but they, being officers of that corporation, had a right to call the attention of the court to the fact that there was no body of men who had a right to represent that corporation and that the people who were assuming to represent the corporation were absolutely without authority and were imposing upon the court. When that fact was presented to the court by anybody, it was the duty of the court to dismiss the proeeedings, because the court will never entertain an action or proceeding when it is authoritatively informed from any source that it is being initiated without authority upon the part of the person or corporation in whose name it is pretended to be brought.

It is urged further that the alleged objections to these proceedings were presented to the court at special term before the issuance of the alternative writ, and overruled; and that the defendant if he desired to raise the point should have appealed from that decision, and not having done so was concluded. But it does not appear from the order appealed from that any such objection was taken at the hearing of the motion, and if it were it was overruled by the court who had determined the original application which was necessarily equivalent to the granting of leave to renew the motion, and the application of the petitioners was denied upon the merits, and not because of any former adjudication.

The point that the appellant was estopped from objecting to the maintenance of the proceedings because of having obtained an extension of time to make a return/, is not necesssarily fatal to the proceeding. The court might in a proper case deny the application upon that ground.

But the record in this case does not present any such case as would justify the court in denying the application for any such reason. The court is informed and the facts are conceded, that this proceeding is being initiated under what in our opinion is an authority which has terminated. It would be the duty of the court at any stage of these proceedings, as soon as it learned this fact, to dismiss the whole proceeding, because it was binding upon nobody.

A decision in this application for a mandamus under the circumstances adverse to the corporation of St. Stephen’s Church would not be binding upon the church, because the proceeding was entirely unauthorized and was instituted without any authority whatever from the corporation. Hence the court would not continue to entertain the application after it had been informed that it was instituted without authority.

We are of opinion, therefore, that because of the want of authority to institute these proceedings, the application to dismiss should have been granted; and the order appealed from must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Daniels, J., concurs.


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    Enoch P. Hincks et al., Resp’ts, v. Aaron Field et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed April 17, 1891.)

    1. Chattel mortgage—Not void because mortgagors agree to mortgage new stock.
    The mortgagors in a chattel mortgage covenanted that if required to do so they would execute a similar mortgage upon all merchandise purchased to replenish the stock. Held, that such a covenant did not make the mortgage void upon its face.
    2. Same—Mortgagor dealing with mortgaged property as his own.
    Where persons gave their debtor a chattel mortgage, hut thereafter continued to deal with the property as their own, paying the debtor nothing, and it appeared that a sale of the business was contemplated by all parties, and that there was no understanding, contemporaneous with the giving of the mortgage, that the mortgagors should continue to deal with the property as before, Held, that the mortgage was not void.
    Appeal from judgment entered upon decision after trial by the court without jury.

      Lyon & Smith, for app’lts ; W. J. Fanning, for resp’ts.
   Van Brunt, P. J.

It appears that prior to June 7, 1889, the plaintiff had sold and delivered to one L. D. Groldsbury goods amounting in value to $2,850, for which the latter had given his promissory notes for $1,050, $900, and $900 payable in four, five and six months respectively.

At this time said L. D. Groldsbury was a partner of L. D. Groldsbury’s Sons, who did a hardware business in the city of Mew York, and said Groldsbury individually carried on a livery business also in said city. In the early part of June, 1889, none of the said notes having matured, Groldsbury applied to the plaintiff for a loan of $3,500, and offered to secure the payment thereof, and of the notes above mentioned, by a chattel mortgage upon the stock of goods contained in the store of L. D. Groldsbury’s Sons. The plaintiffs thereupon agreed to and did loan to L. D. Groldsbury $3,500, taking from Groldsbury the notes of the firm for that amount, payable in four months, and also a chattel mortgage upon all the property of the firm to secure the payment of $6,421.49, being the aggregate of the indebtedness of L. D. Groldsbury to them. This mortgage contained a provision that the firm should remain in possession of the property until default in the payment of the notes, or some portion thereof; and also a provision that in case the plaintiffs should at any time deem themselves unsafe they might take possession of the property, and sell the same previous to the time mentioned for the payment of the debt.

The mortgagors also covenanted, if required by the mortgagees, to execute and deliver to them a chattel mortgage with like conditions and covenants upon all stock and merchandise or goods of all descriptions purchased for or brought into the store to replenish or extend the stock therein.

Subsequent to the giving of this mortgage, the business of L. D. Groldsbury’s Sons was carried on as before; goods were sold and the money received for them was deposited in the Mount Morris Bank to the credit of L. D. Groldsbury’s Sons; checks were drawn against that account to various persons as occasion required, and goods were purchased for the store and paid for out of the money received and the collection of bills.

On the 30th of August a sale of the stock of goods not having been effected as was contemplated, a new mortgage was executed by L. D. Groldsbury’s Sons upon the same property to secure the same indebtedness. This mortgage provided that the property should remain in the possession of the mortgagors, who were thereby appointed agents of the mortgagees, and as such agents were authorized to sell the property, or any part thereof, for cash, and to account for the proceeds to the mortgagees, and to apply the proceeds to the payment of the notes, and the mortgagors agreed to act as such agents, and to account for the proceeds of all sales of such goods as aforesaid.

It appeared that subsequent to the giving of this mortgage the plaintiff visited the store and examined the books and saw what money was taken in. Some members of the firm of L. D. Groldsbury’s Sons were paid a salary out of the business during that time and the expenses of the business were paid out of the moneys received.

The firm of Smith, Lyon & Field, for whom the defendants are sureties, being creditors of the firm of L. D. Groldsbury’s' Sons for goods sold, on the 11th of September, 1889, procured a warrant of attachment, which was levied on the chattels covered by the mortgage. Subsequently a judgment was entered and execution upon the judgment issued and the property contained in said store seized thereunder.

The plaintiffs replevied the property in this action and the coroner took the goods; and the question presented upon the trial was whether the mortgages in question were fraudulent as to the creditors of L. D. Groldsbury’s Sons. The court having decided that they were not, from the judgment thereupon-entered this appeal is taken.

The point is made by the iespondents’ counsel that certain exceptions which are contained in the case upon appeal cannot be considered because they do not appear in the notice which was filed containing the exceptions to the findings of the court

Without expressing any opinion upon the necessity of entering an exception to a refusal to find until upon the making up of a case or exceptions upon appeal, it is sufficient to say that we find the exception in the case and we cannot disregard it If the party was dissatisfied with the appearance of the exception in the case he should have moved to have had the case resettled or amended in that regard, if he was entitled to have the exception stricken outz

The learned court below has found that this loan of $3,500 was made to the firm of L. D. Groldsbury’s Sons. In respect to this we think that an erroneous conclusion was arrived at It appears distinctly that the loan was to L. D. Groldsbury and that the plaintiffs had no transactions with the firm of L. D. Groldsbury’s Sons prior to this time and that the money was paid to L. D. Groldsbury and not to L. D. Q-oldsbury’s Sons; and L. D. Groldsbury deposited the same to his own private account And therefore it seems to us that the question involved upon this appeal is to be considered upon the basis that this was a loan to L. D. Groldsbury and that as security for such loan the firm of L. D. Groldsbury’s Sons gave their note and the chattel mortgages in question.

We do not see, however, because of this condition of affairs, that the plaintiffs did not acquire a lien upon this property pledged as security for the loan which they made. This security was offered and it was upon the faith of it that the money was loaned, and it is immaterial to the holder of the security what became of the money .or how it was applied. If A is the owner of a piece of real estate and B applies to C for a loan and offers as security A’s mortgage upon his real estate and such mortgage is accepted and the money loaned to B ; even if A may have creditors it does not affect the security of the loan any more than the holder for value of accommodation paper which has been issued by a firm would be precluded in case of the failure of the firm from participating in the distribution of its assets.

It is claimed, however, by the appellants that the first mortgage was void on its face as matter of law; also that both mortgages were void because the mortgagors were left in possession and sold for their own benefit; and that if the first mortgage is out of the way the second is void for want of consideration.

It is claimed that the first mortgage was void in law on its face because of the provision contained therein requiring the mortgagors to execute and deliver a chattel mortgage upon all stock, merchandise and goods purchased or brought into said store to replenish or extend the stock therein.

In the case of Brackett v. Harvey, 91 N. Y., 214, a mortgage was under consideration which provided that the mortgagors might use a part of the avails of the sales to replenish their stock; but, if they did, the substituted property was to be placed by monthly renewal mortgages in the room and stead of that which was -sold to procure it, and, this is all we think that seems to have been contemplated by the provision in the first mortgage in the case at bar. In the case cited it was held that such a provision did not make the mortgage void upon its face. Whether this conclusion seems to be logical or not it is not material to consider.

It is further urged upon the part of the appellant that the first mortgage is fraudulent in fact, as well as in law, in that the evidence shows there was an agreement or understanding which permitted the sale of the mortgaged goods for the benefit of the mortgagors. It is undoubtedly true that the mortgagors carried on the business in the same way as before, by and with" the knowledge of the plaintiffs; and none of the money that was received was paid over to the plaintiffs; nor was any demand even made of them for it. Debts were paid and goods purchased for sale, for which payments were made from the money's received and collections of bills. And we are cited to the case of Southard v. Benner, 72 N. Y., 424, as an authority to show that such circumstances rendered the mortgage void.

In that case, however, the evidence was held to establish the fact that the mortgages were made to secure advances to enable the mortgagor to continue his business, which made it a question for the jury whether this continued dealing with and sales of the mortgaged property was not in pursuance of an arrangement between the parties contemporaneous with the giving of the mortgage, that the mortgagor should continue his dealings with and sales of the property as before the existence of the mortgage.

In the case at bar, the court, standing in the place of the jury, has refused to find that there was any such understanding; and the court of appeals in the case cited would have sustained the verdict had the jury found to the contrary of that which they did. Consequently as a question of fact, there being ample evidence to sustain the conclusion of the judge, this court will not interfere with it.

But even if this was a question which was before us now for determination for the first time, we cannot find in the evidence that this mortgage was given in order to enable the mortgagors to continue their business, because it appears that it was in the contemplation of the parties that this business should be sold, and if the business was continued, it was for the purpose of having it in such condition that it might be sold in bulk; a very different case from Southard v. Benner.

In Frost v. Warren, 42 N. Y., 204, it is expressly held that the fact that the mortgagor continues to sell the mortgaged property with the knowledge of the mortgagee, in the absence of proof that this was an agreement between the parties, does not render the mortgage fraudulent in law as against their creditors.

The claim that if the first mortgage is void the second cannot stand because without consideration cannot prevail, because as a condition of the loan by the plaintiffs to L. D. Gfoldsbury it was provided that a mortgage upon the property of L. D. Gfoldsbury’s Sons should be given. That meant a valid mortgage, and if for any reason except an actual fraudulent intent, the first mortgage was defective, the plaintiffs had a right to claim the execution of that agreement by the delivery of the second. And this was all that was done. It was found that the first mortgage would not effectuate the object; that the property could not be sold in bulk as contemplated. The second was thereupon made which put the mortgagees in possession of the property, and made all sales for their benefit, the proceeds thereof being applicable to the payment of the debt.

There is no question but that if fraud in fact entered into the arrangement by which the first mortgage was given, that then the second would be tainted with the same defect. But where the object (a lawful one) sought to be accomplished cannot be carried out, there is no reason why by subsequent instruments efficacy may not be given to it.

Daniels, J., concurs.

We think, however, that neither of the mortgages were fraudulent, and that the judgment must.be affirmed, with costs.