author: Landon, J.

text:
    Agnes Ronald, App’lt, v. The Mutual Reserve Fund Life Association, Resp’t.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    il. Benefit societies—Forfeiture—Reinstatement.
    After the certificate in suit had lapsed for over a month the annual dues was paid by the employers of the insured and a receipt taken, which stated that it was given on condition that the member was living and of temperate habits and in as good health as when originally received as a member, and that otherwise the payment, receipt and original certificate should be null and void. The deceased was not of temperate habits and had been ill ten days, and the same evening was removed to the hospital where he died the next forenoon of fatty degeneration of the heart. Held, that defen ¡ant was not liable, as on this state of facts the “satisfactory evidence of good health ” could not be furnished, which was necessary to authorize the executive committee, under the constitution of defendant, to reinstate a delinquent member.

      3. Same—Waiver.
    Defendant furnished the employers of deceased with blank proofs of death, which the latter had filled out under instructions of defendant’s, agent and sent to Scotland, where plaintiff resided, and at the said employers’ request defendant furnished blanks for the certificate of the clergyman officiating at the funeral, and upon it being filled out and returned defendant’s representative said he would lay it before the hoard, and that when the president returned the board would meet and pass upon the claim and it would probably be paid in March following. Held, that these acts of defendant did not constitute a waiver.
    3. Same—Notice oe annual dues.

      It seems that mutual benefit associations are not subject to the act requiring previous notice of the due date of annual dues.
    Appeal from a judgment of the general term of the supreme-court, first department, affirming a judgment at circuit dismissing plaintiff’s complaint.

      Charles B. Myers, for app’lt; Raphael J. Moses, Jr., and F. A. Burnham, for resp’t.

       Affirming 32 St. Rep., 981.

   Landon, J.

The plaintiff was the wife of George Ronald and the beneficiary named in" the certificate or policy of insurance-upon his life in the sum of $5,000, issued to him by the defendant, August 23, 1883. She seeks to recover that sum in this, action. The defense is that the policy was forfeited by the nonpayment of ten dollars, annual dues, which, by the terms; of the policy, became due August 21, 1884. The plaintiff' claims that this cause of forfeiture was waived by the defendant, and the question presented upon this appeal is, whether the facts; hereinafter stated constituted such waiver, or were sufficient to entitle the plaintiff to go to the jury upon the question.

George Eonald died September 26, 1884, of fatty degeneration, of the heart. The day before he died, Matthew Hardenbergh, his employer, acting for him, paid the defendant the ten dollars, and the defendant thereupon gave him a receipt therefor, the material, parts of which are :

“New York, September 26th, 1884.
“ Ecceived for the annual dues ten dollars, according to the-terms and conditions of certificate No. 14744, on the life of George Eonald, from the 21st day of August, 1884, to the 21st day of August, 1885.
“ The time having expired for the payment of the annual dues,, and payment being tendered after the same was due, this receipt is given by the association, and accepted by the member upon the-following conditions, and not otherwise: That said member is now living, and of temperate habits, and in as good health as when originally received as a member of this association under said certificate ; otherwise said payment and this receipt, and said certificate, shall be null and void.”

The constitution of defendant which formed part of the contract of insurance provided: “ If any of the conditions or provisions of the certificate of membership or of the constitution and by-laws are violated by the member, then, and in every such case-such membership shall at once cease and determine, and the cer-. tificate shall be null and void and all payments made thereof forfeited to the association.” “But the executive committee shall have power to reinstate a delinquent member, at any time within one year, for good cause shown and upon satisfactory evidence of good health, and upon payment of all delinquent dues and assessments.” The condition respecting the health of the insured expressed in the receipt was within the terms of the contract. The parties had agreed that Ronald’s membership should cease upon nonpayment of dues. It was competent for them so to agree. Atty. Gen. v. North Am. Life Ins. Co., 82 N. Y., 172-190. But they had also agreed that Ronald might be reinstated in membership upon certain conditions; one was payment of delinquent ■dues, and another was upon satisfactory evidence of good health. The first condition was met; the second remained to be met When Hardenbergh paid the dues, the defendant’s representative .asked him if Ronald was in his usual health. Hardenbergh replied that he knew nothing to the contrary. He testified: “ I explained to him about his foot; something about a swollen foot, I remember I said something about his drinking, that he might have got his foot hurt on his annual little spree that he generally took. I was under the impression that that was the case.”

It appeared that Ronald had been ill about ten days; it subsequently appeared that his mortal illness was not the result of drink. He was at his boarding house and had some money to his credit with his employers and at his request they paid the defendant. The same evening they removed him to the hospital, where he died the next forenoon. His death was unexpected to them and the cause of it was not known until the post mortem ■examination disclosed it to be fatty degeneration of the heart.

It is obvious upon this state of facts that no satisfactory evidence of good health,” the second condition of Ronald’s reinstatement to membership, could be furnished. Possibly he was dying when the defendant received the delinquent dues.

The plaintiff further insists that the defendant, by its subsequent action in respect to the proofs of death, treated the policy as valid and thereby waived the forfeiture. Two days after Ronald’s death Mr. Hardenbergh informed the defendant of the fact, but stated that he could not tell the cause of death, except that he was taken home the week before with a swollen foot, and had been taken to the hospital the night before he died, and that he had been upon a spree. The defendant gave Hardenbergh blanks upon which to make proofs of death. Mr. Hardenbergh subsequently had these blanks filled out, a representative of the defendant giving instructions as to the manner, and they were sent to Scotland where the plaintiff resided, and were executed, returned and delivered to the representative of the defendant, who said they would be laid before the proper board. These proofs stated the true cause of death, and that it was preceded by an illness of about two weeks. Subsequently Mr. Hardenbergh, who had been authorized to act for the plaintiff, called upon defendant's representative, who then asked him to furnish the certificate of the clergyman who officiated at Ronald’s burial, and the representative gave him blanks for the purpose. This certificate Hardenbergh procured and delivered to the same representative, who-thereupon said he would lay it before the board, and that when the president, who was then absent, returned, the board would meet and the claim be passed, and probably would be paid in March following. Hardenbergh then stated more fully the facts relating to Ronald’s death. Subsequently Hardenbergh again called upon defendant’s representative, and then was told that the plaintiff had no claim; that the policy had lapsed because of nonpayment of dues. Subsequently the defendant tendered Hardenbergh ten dollars and the interest from September 26, 1884.

We do not think these acts of the defendant constituted a waiver. A waiver of the forfeiture of a policy, in the absence of any agreement to that effect, results from negotiations or transactions with the insured, after knowledge of the forfeiture, by which the insurer recognizes the continued validity of the policy, or does-acts based thereon, or requires the insured, by virtue thereof, to-do some act or incur some expense or trouble. Titus v. Glens Falls Ins. Co., 81 N. Y., 419. In the absence of an estoppel knowledge of the facts and an intention to waive must exist, provable of course by the circumstances. Robertson v. Metropolitan Life Ins. Co., 88 N. Y., 541; Weed v. London & L. Fire Ins. Co., 116 id., 106; 26 St. Rep., 414; Roby v. Am. Central Ins. Co., 120 N. Y., 510; 31 St. Rep., 560.

The waiver of the forfeiture was conditioned upon “satisfactory evidence of good health ” of the insured when the ten dollars were-paid.

When the defendant received that payment, it also received' some vague information from a layman who did not profess to have any exact information, to the effect that the insured had a swollen foot and had been on his “annual spree.” If the insured was-no worse than this communication imported, the defendant might, be willing to reinstate him, and to waive the forfeiture. But as he suddenly died the next morning, death might have resulted, from illness ante-dating the payment or from some acute attack, subsequent to it and quite apart from anything which .had been, suggested to defendant. It was a condition precedent to the-maturity of the claim of the plaintiff that the proofs of death specified in the contract should be furnished. The acts of the defendant in furnishing blanks in the first instance,- and giving instructions as to the manner of filling them, were acts of courtesy.

The clergyman’s certificate was a proper part of the completed proofs. All the papers constituting the proofs of death and its-cause were part of the evidence proper for the defendant to ask and for the plaintiff to give in order to impart to the defendant that full knowledge of the facts which under the circumstances-was material to the reserved question of Ronald’s reinstatement as a member, and also a condition precedent to any further acts to-be relied upon as a waiver of forfeiture. The promise of payment made by defendant’s representative was conditioned upon-the approval of the board. As the matters relied upon to constitute a waiver were properly required by the defendant to enable it to ascertain the facts and decide as to its position, we think the court properly decided that there was neither a waiver, nor any •evidence tending to prove it that should have been submitted to the jury.

The plaintiff now raises the point, not presented at the trial, that the defendant could not forfeit Ronald’s policy because no notice of the annual dues had been given him in advance of the ■date when the same became due pursuant to chapter 341, Laws 1876, amended by chapter 321, Laws 1877. The defendant is a mutual benefit association doing business upon the co-operative assessment plan. It was originally incorporated under chapter 267, Laws of 1875, and reincorporated December 26, 1883, under ■chapter 175, Laws 1883. Companies organized under the last mentioned act and doing business upon the plan therein described and characterized as the co-operative or assessment plan, are, by § •5, declared to be subject pnly to the provisions of that act; thus it would seem they are not subject to the provisions of the act requiring previous notice of the due date of annual dues. But as the case presents no exception upon this point and only presents such testimony as is material to the exceptions, the question is not properly before us. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Elizabeth J. Dudley, App’lt, v. Edward D. Parker et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    'Cim- DAMAGE ACT.
    One Gage, on Saturday night, being in the company of S., purchased a bottle of liquor of defendants, and the next morning they both drove to M., having said bottle with them. Here S. left Gage and returning in company with a third party and being intoxicated recklessly drove against the carriage conveying plaintiff, overturned it and injured her. Held, that as it did not appear that the defendants were responsible for the intoxication of S. plaintiff could not recover.
    Appeal from order of the general term of the supreme court in the fifth judicial department, granting a motion for a new trial •on exceptions heard there in the first instance.
    The action was brought to recover damages for personal injuries suffered by the plaintiff, occasioned by being thrown from the carriage in which she was riding with her husband on a highway in the county of Cayuga, on October 10, 1886. This was •caused by the act of one Edward Shaw, who, in driving a horse hitched to a buggy, and going in the same direction, recklessly drove against the carriage conveying the plaintiff and overturned it, •causing serious injury to her. The plaintiff, in her complaint, alleged that Shaw was then intoxicated, and that his intoxication was caused in whole or in part by intoxicating liquor which had been sold by the defendants to him and one Cage. The plaintiff had a verdict, aud the exceptions were ordered heard at general term in the first instance.

      Frank D. Wright (James G. Smith, of counsel), for app’lt; James-Lyon (S F. Payne, of counsel), for resp’ts.

       Affirming 28 St. Rep., 338.

   Bradley, J.

The main question presented is whether there was any evidence to justify the submission of the case to the jury, and this arises upon the exception to the denial of the motion for a nonsuit, made on the ground that it did not appear that the defendants sold or furnished any liquor to Shaw. The conclusion was warranted that he was intoxicated at the time in question,, and that the intoxicating liquor which caused or contributed totas intoxication was sold by the defendants, and that the plaintiffs injury was in consequence of such intoxication. The right of action in this class of cases is dependent upon the statute, which provides that “ every * * * person who shall be injured in person * * * by any intoxicated person, or in consequence of the intoxication * * * of any person, shall have a right-of action in his or her " name against any person or persons who-shall, by selling or giving away intoxicating liquors, have caused the intoxication, in whole or in part, of such person or persons.” Laws 1873, chap. 646.

The purpose of this statute was to place the responsibility forth e injurious consequences to others than the intoxicated person upon those who should furnish the liquor which produced the intoxication of the person by whom, while in and by reason of that condition, or in consequence of it, the injury should be caused or suffered. This obligation is one of the incidents imposed by statute upon the liquor traffic. The question, when it arises, is-not one of care or diligence on the part of the seller, but is simply one of cause and effect. And as has been said by this court,, while the statute should not, by judicial construction, be enlarged, it should be interpreted “ according to its true intent and meaning, having in view the evil to be remedied and the object to be attained.” Mead v. Stratton, 87 N. Y., 493. And that “ the-legislature, having control of the subject of the traffic in the use of intoxicating liquors, may make such regulations to prevent the public evils and private injuries resulting from intoxication as in its judgment are calculated to accomplish this end.” Bertholf v. O'Reilly, 74 N. Y., 509, 524.

The statute is one of indemnity for consequences that may-result from the traffic in liquors, consequences attributable to intoxication. But to charge a party, within the meaning of the statute, the furnishing the liquor by him must be in whole or in part the proximate cause of the intoxication to which the injury complained of may be imputable. And for that purpose the-liquor must be furnished by such party to the person whose intoxication is the foundation of the charge of liability for the injury. In the present case the liquor was sold by the defendants - and the question is whether or not there was any evidence tho^ Edward Shaw was a party to the purchase of it. He did nofc participate openly in the transaction of making it, but it is in__ sisted on the part of the plaintiff that the inference was permitted that he was, in fact, a participant in the purchase made by one William Gage. The burden was with the-plaintiff to prove that such was the fact. And for the purpose of proving her case in that respect she relied upon the evidence of those persons, by which it appears that they were engaged as employees in the same manufacturing establishment in the city of Auburn ; that on Friday before the Sunday when the calamity occurred Shaw invited Gage to go with him to Meridan the next Sunday, provided a young lady did not do so; that they were together Saturday evening on the street, and as they came-to the defendants’ liquor store Gage went in, and on his invitation Shaw went in with him ; that the latter stopped inside near the door, and talked with a person there while Gage proceeded thirty or forty feet farther to the counter, and there had his bottle filled with whiskey, as he had before and periodically been accustomed to do; he paid for it, and they both went out together that they soon parted,' and went to their homes; that Shaw repeated the invitation to Gage to go with him. to Meridan the next day, and was informed by the latter that he would let him know in the morning. It does not appear that they drank any of the liquor that night, or that Shaw was informed by Gage of his purpose to get any liquor, or that anything was said on the subject, that evening by either to the other. Nor does it appear that. Shaw knew the purpose for which Gage went into the defendants’” place, unless it might be inferred from the fact that it was a liquor-store. The next morning they met. Shaw procured a horse and buggy, and they together went to Meridan; Gage had with him-the bottle of liquor purchased the night before, and from which they drank on their way there. On their arrival at Meridan Gage-left the buggy, and Shaw took in a Mr. Brown, and with him in it. was driving at the time the collision with the carriage in which the plaintiff was riding, and her injury as the consequence occurred. It is quite evident from,, their manner of testifying, as appears by the record, that those witnesses had no desire to support further than was necessary for them to do so the plaintiff’s alleged cause of action. And there may have been some reason founded upon speculation to apprehend that Shaw understood that Gage-intended to get liquor when they went into the store, and that hehád obtained it when they departed, but those facts, or that it was-intended for their use on the trip the next day, does not appear by any evidence to that effect. In fact the evidence of the witnesses was that it was not definitely concluded until Sunday morning that Gage would go with Shaw to Meridan.

The fact, as claimed on the part of the plaintiff, that they were unwilling witnesses did not furnish any evidence in support of her action, although it might aid in giving construction favorable to the plaintiff’s ease of testimony given by' them having doubtful import. The difficulty is that there was no evidence to the effect or legitimately in support of inference that Shaw was in any sense a purchaser or in any manner participated in the purchase from the defendants of the liquor which produced the intoxication. And therefore it did not appear that the intoxication of Shaw was the proximate effect of the act of the defendants in selling the liquor. But that it was the supply to him by Gage of the liquor purchased by the latter which produced the intoxicatian of Shaw, who while in that condition and in consequence of it did the act which resulted in the plaintiff’s injury. If Gage had been driving the horse at the time and the accident had then occurred as it did, a different question would have been presented. Then there would have been facts to support a recovery against the defendants. It not appearing that the defendants • were responsible for the intoxication of Shaw, the plaintiff was not entitled to recover. The exception to the denial of the motion for non-suit was, therefore, well taken.

There were other exceptions, which, in the view taken, require no consideration.

The order should be affirmed and judgment absolute directed for the defendants, with costs.

All concur.


author: Follett, Ch. J.

text:
    James Singleton et al., Resp’ts, v. The Phenix Ins. Co., App’lt.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

      1. Insurance (Marine)—Eire caused by lime.
    Defendant insured a canal boat, with the privilege of carrying lime in barrels, against the usual peril of inland waters and also against fire. The boat was loaded at Troy and while in a tow at Albany was discovered to be on fire. Barrels of lime on deck were removed, when the deck was found to be so hot that further unloading ceased. The boat was then scuttled. The captain of the boat and his son testified that the lime was not wet when loaded; that the hatches were carefulty closed and the barrels on deck covered with canvas. The boat was built in 1881 and in good repair. Held, that a nonsuit was error and the court was not justified upon the evidence in holding that the slacking was caused by a leak making the boat unseaworthy.

      Ü. Same—Evidence op fire.
    One of the witnesses testified that they found several pieces or heads of barrels that “were burned into charcoal like.” Held, that this in connection with the smoke issuing from the hold, with the deck so hot that the pitch oozed from its seams, makes it reasonably certain that a fire had broken out in the vessel before it was sunk, which was the proximate cause of the loss.
    3. Same—Total loss—Abandonment.
    The proof was that on May 9, L., defendant’s agent, was notified of the loss and examined the wreck. May 10th the captain gave him a verified statement of the loss, and he mailed it to defendant on the 11th. In June, O., defendant’s adjuster, wrote to L. that he had examined the wreck and would in a few days “pick her up,” i. e., raise the boat. July 11, plaintiffs made proof of loss and assigned all their interest in the boat, which assignment wss delivered to and retained by defendant and in September the captain at defendant’s request verified and delivered a further detailed statement of loss. Held, that it was error for the court to hold, as a matter of law, that the boat had not been abandoned by the plaintiffs and that the defendant had not accepted the abandonment.

      Appeal from an order of the general term of the supreme court in the third judicial department, which reversed a judgment entered on an order which dismissed the complaint.
    August 2, 1886, the defendant insured the canal boat “ Mary V. Keenan ” for one year from that date under a Uniform Canal Hull Policy, valued for $1,200, against the “perils * * * of the inland lakes, rivers, canals' and fires that shall come to the-damage of the said vessel, or any part thereof. Excepting all perils, losses, * * * arising from want of ordinary care and. skill in loading and stowing the cargo of said vessel. From rottenness, inherent defects and other unseaworthiness. From gangways and openings through the deck or sides being improperly secured and protected.”
    The policy contained the privilege to carry lime in barrels. At about 8 o’clock A. M., bn Friday, May 6, 1887, the captain of the; boat and his son (who constituted the crew) began loading it with quick lime in barrels at Green Island, which is on the Hudson river and about six miles north of Albany. During that day the-hold of the vessel (except the forward hatch) was filled, the, hatches closed and one car load placed on deck.
    On the next day at about four o’clock in the afternoon the boat was.completely loaded. Nearly twenty-one hundred barrels were taken on board, about nine hundred being on deck. After the-loading was completed the boat was towed to Albany, where it arrived about six o’clock in the afternoon of Saturday, and was-placed in a tow to go down the river. Between seven and eight o’clock of the same evening the captain discovered smoke issuing from the hold in the boat, and on examination it was found that the lime was slacking and had engendered so much heat that the-deck was hot, the pitch boiling out of its seams and crackling sounds were heard in the hold. The boat was immediately towed' to a wharf near by and the lime on deck was hurriedly unloaded. The boat was then towed a short distance down the river and sunk in water about seventeen feet deep in order to prevent a total' loss by fire. It is conceded that there was no other way to prevent the total destruction of the boat by fire, for the hot slacking lime could not be removed, and the use of water in the open air would have accelerated chemical action instead of stopping or retarding it. The fire was extinguished when the boat was sunk.
    This action was brought November 1, 1887, to recover the sum for which the boat was insured. The defendant answered that the loss did not occur from any of the perils insured against, and that the lime was loaded in a rain storm and became saturated with water which caused the lime to slack and started the fire. No witnesses were sworn in behalf of the defendant, and at the-close of the plaintiffs’ evidence they were nonsuited, upon which a judgment was entered, and which was reversed by the general term.

      Richard L. Hand, for app’lt; L. M. Brown, for resp’ts.

       Affirming 32 St. Rep., 594.

   Follett, Ch. J.

The plaintiffs do not assert that the loss was occasioned by any of the perils insured against except fire. The •defendant insists that the fire was caused by some part of the lime being put on board during a rain storm, a,nd that the defendant is exempt from liability under the clause which provides that it shall not be liable in case the loss arises “ from want of ordinary care and skill in loading and stowing the cargo of said vessel.” '

The captain of the boat and his son, who placed the cargo on board, testified that the lime was not wet while it was being transferred from the cars to the boat; that the hatches were carefully •closed and the barrels on deck were well protected by canvas. No evidence was given which tended to contradict the positive testimony of the captain and his son. Under this state of the proof the circuit court could not properly nonsuit the plaintiffs, on the ground that the boat was improperly laden. It is also insisted by the defendant that if the lime was dry and in good order when' taken on board, it must have been wet by means of a leak while the boat was on its trip from Green Island to Albany, and that, therefore, the boat must have been unseaworthy, as no storm-was ■encountered and no accident happened during the trip. The undisputed testimony shows that the boat was built in 1880 or 1881, had been kept in good repair, and was thoroughly overhauled and xepaired late in the summer before the loss. No witness testified to the existence of defects in the boat, and there is no evidence of unseaworthiness unless, as the defendant contends, they are inferrable from the slacking of the lime. In support of the defend.ant’s contention we are referred to Van Wickle v. Mechanics' & T. Ins. Co., 16 J. & S., 95; affirmed 97 N. Y., 350, and to Berwind v. Greenwich Ins. Co., 114 id., 231; 23 St. Rep., 93. In both ■ of these cases it was held at circuit that the boats were unseaworthy when they left their ports. The reports of Yan Wickle’s ease do not agree as to the circumstances attending the loss. The superior court said that the boat sank at its dock after a voyage occupying about forty-eight hours, in fine weather and on a smooth sea, having encountered no sea peril. In the court of appeals it was said that within twenty-four hours after the boat began its voyage it was found abandoned by its master, soon went down, and that it had not encountered any sea peril on the voyage. In Berwind’s case the boat was being towed from South Amboy, N. J., to New York city, and when a few hours out it sank in-a smooth sea, without having met with any accident or sea peril. In-both cases the plaintiffs failed to show that the loss was caused by any peril insured against Those boats were lost by leaks large enough to sink them in a smooth sea and in fine weather a few hours after leaving port. In both cases it was well held that it was shown that they were unseaworthy when the voyages began. But in the case at bar there is no evidence that the slacking of the lime was caused by a leak in the boat of sufficient size to cause it to be unseaworthy, or that it was caused by any leak.

When the boat was tested after it was discovered to be on fire, but one inch of water was found. . No attempt was made to show what care the lime had received before it was delivered from the cars, and some of it may have been sufficiently wet to cause it to begin to slack before it was loaded. We do not think the evidence justified the circuit in holding that the slacking was caused by a leak of sufficient size to make the boat un sea worthy.

Was there a fire on board the boat which caused its loss ? In N. Y. Express Co. v. Traders' Ins. Co., 132 Mass., 377, there was an insurance against loss by fire on goods which were being transported by a steamboat which came in collision with another boat, causing a fire; the boat was sunk before the goods insured were injured by fire, and this was held to be a loss covered by the policy. In City Fire Ins. Co. v. Corlies, 21 Wend., 367, there was an insurance on goods against loss by fire. The building in which they were kept was, by the direction of the city authorities, blown up to prevent the spread of a conflagration. It was found as a fact that the building would have been burned had it not been ■destroyed; the goods insured were destroyed by the explosion, and it was held that'the insurer was liable for the loss. In the ■case at bar it clearly appears that the boat would have been destroyed by fire had it not been sunk. After it was sunk it was found that the sides of the boat looked as wood does after it has been “ afire, kind of black, charred like, and the barrels all swelled up.” A witness who examined the boat about the middle of June with Mr. Owen, the defendant’s agent, testified: “At the time Mr. Owen and I looked into the boat we found pieces of barrel like, and found several pieces of heads of barrels that were burned into charcoal like.” This evidence, which was uncontradicted, -clearly shows that ignition or combustion had begun before the boat was sunk. This taken in connection with the evidences of fire which were discovered before the boat was sunk, the smoke issuing from the hold, with the deck so hot that the pitch oozed from its seams, makes it reasonably certain that a fire had broken ■out in the vessel before it was sunk, and which was the proximate cause of the loss. As was well said in Scripture v. Lowell Mutual F. Ins. Co., 64 Mass., 356-359, “ it may well happen that serious ■damage within the scope of a fire policy shall be done to a building or to its contents, by the action of fire in scorching paint, cracking pictures, glass, furniture, mantel pieces, and other objects, or heating and thus actually destroying many objects of commerce, and yet all this without actual ignition, that is, visible inflammation.” .

In this case the charred wood renders it reasonably certain that there was actual burning by flame, or at least it was not so certain that there was no fire that the circuit was authorized to so decide as a matter of law. May Ins., § 402. The circuit clearly erred in holding that the evidence of burning was insufficient to justify the submission of the question to the jury.

Was the evidence sufficient to warrant the jury in finding that the plaintiffs abandoned the boat as a total loss, and that the defendant accepted of the abandonment? On May 9, 1887, the day hut one after the loss, Mr. Little, the agent who issued the policy, was notified of the accident, and on the same day examined tfie wreck. May 10th, the captain of the boat verified a statement of the circumstances of the loss and gave it to the defendant’s agent,, who, May 11th, mailed it, with a full statement of his own of the-condition of the wreck, to the defendant. These statements were-received on the next day and were retained. In June, Mr. Little received a letter from Mr. Owen, defendant’s adjuster, in which, he stated that he had examined the wreck, and that he would return to Albany in a few days and “pick her up.” The information contained in this letter was communicated to plaintiffs. The term “pick her up” was testified by the witnesses to mean to raise the boat. July 11,1887, the plaintiffs verified formal proofs-of loss and executed an assignment to the defendant of all their interest in the boat, which were delivered to and retained by the insurer. September 5, 1887, the captain, at the defendant’s request,verified and delivered to it a further detailed statement of the-loss. There is no evidence that the defendant did not authorize Little-to act as its agent in this matter, but, on the contrary, it appears-that they paid the expenses which he incurred in the examination of the wreck. . Under this state of the proofs, it was error for the circuit to hold, as a matter of law, that the boat had not been abandoned by the plaintiffs, and that the defendant had not accepted of the abandonment.

The order should be affirmed and judgment absolute rendered, against the appellant, with costs.

All concur, except Land on, J., not sitting.


text:
    J. Frederick Andrews, App’lt, v. The Day Button Co., Resp’t.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    1. Fixtures—Landlobd and tenant.
    Plaintiff leased a factory, engine, etc., to a corporation, with the usual: covenant that the lessee would not malee any alteration. The engine being dangerous, the lessee applied to plaintiff to induce him to enter into-, an arrangement to share the expense of putting in a new one, and not obtaining his assent the lessee assumed the right to take out the old engine and put in a new one in its place. Held, that the lessee had no design of attaching the engine to the freehold, but intended to remove it on the determination of the lease, and was justified in so doing.
    2. Same.
    The substitution of the new engine for use in the place of the old' was not necessarily an alteration or change of the nature of the premises-in any substantial respect, and there was no legal obligation to necessarily charge the lessee by implication with the terms or conditions upon which plaintiff assumed to consent to the change.
    (Pabkeb and Landon, JJ., dissent.)
    Appeal from judgment entered on order of the general term of the supreme court in the second judicial department, affirming judgment entered upon decision of the special term in favor of the defendant.
    The relief sought by the action was that the defendant be restrained from removing an engine from certain premises which. the plaintiff bad, by lease of date March 26, 1886, demised to-The Fox Changeable Button Company for the term of five years -and six months from the first of the then following April. And the lease contained a covenant on the part of the lessee that it would not make any alteration in the premises without the consent of the plaintiff, “ under the penalty of forfeiture and damages.” The demised premises consisted of a brick factory, an engine and boiler house, in which, and covered by the lease, were boilers, •engine, grinding mills, shafting and steam pumps.
    The lessee, soon after the commencement of the term, took out the engine and put a new one in its place to operate the machinery. The defendant afterwards acquired by purchase the rights of the lessee in the demised premises and title to its personal property therein. And before the commencement of the action the defendant had threatened to remove the engine so put in there by the lessee.

      Michael H. Cardozo, for app’lt; Gibson Putzel, for resp’t.

       Affirming 29 St. Rep., 548.

   Bradley, J.

The action was founded upon the charge that the lessee had no right to remove the old engine and substitute the new one without the permission of the plaintiff; that his consent was given upon the condition that the new engine should belong to him ; and that the old engine was taken out and the new one put in pursuant to such consent If the evidence required the adoption of those propositions the plaintiff was entitled to the relief sought by the action. But the trial court refused to find that the lessee made such removal and substitution pursuant to the permission of the lessor, and to such refusal exception was taken. This was an important question of fact. And on that subject evidence on the part of the defendant was to the effect that the engine in the building at the time of the demise was unsound, worn out and dangerous to use; that the plaintiff was advised of its condition and requested to make an arrangement to share with the lessee the expense of taking it out and putting a new one in its place; that he declined to do so, and that the lessee thereupon concluded to do it and advised the plaintiff 'by-letter that it should remove the old engine, protect it from the weather, leave it upon the premises and substitute one of its own to use in place of it.s A few. days after this communication was made to the plaintiff the lessee received from him a letter as follows:

“ New York, April 6, 1886.
The Fox Changeable Button Company:
“Gentlemen.—In regard to engine in my factory at Astoria, I have no objection to your exchanging it for a smaller one, providing you place the engine which - you receive on same foundation and give me a receipted bill for new engine.
“ 1 am yours, truly,
“J. Fi Andrews.”

The old engine was by the lessee afterwards taken out, placed under cover in the yard of the premises, and. the new one placed on the foundation which had supported the one removed. There was no express .agreement of the lessee to vest in the plaintiff title to the new engine. But it is argued that the consent of the' plaintiff was essential to the right to do what was done in that respect, and, therefore, a promise on the part of the lessee to-comply with the condition upon which the permission of the plaintiff, as expressed in his letter, was given, was necessarily implied. This would be so if the lessee must be deemed to have accepted the terms upon which the plaintiff’s consent appeared by his letter to have been given. Then there would have arisen a contract rendered effectual by performance. L'Amoreux v. Gould, 7 N. Y., 349; Willetts v. Sun Mut. Ins. Co., 45 id., 45; White v. Baxter, 9 J. & S., 358, 71 N. Y., 254.

The doctrine of those cases is that a promise without mutuality may be supported by subsequent performance of that in consideration of which the promise was made.

In the present case there was no promise in fact of the lessee to give the plaintiff the benefit of the title to the new engine, but the express declaration of the representative' of the lessee may have been construed as repugnant to the implication of a promise to do so. -And in such case the law will imply a promise only when there is a legal duty or obligation to support it Whiting v. Sullivan, 7 Mass., 107; Central Bridge Corp. v. Abbott, 4 Cush., 473; Earle v. Coburn, 130 Mass., 596. And it may be added that, as a rule, when the owner of property having the rightful power to withhold it and its use prescribes the terms upon which it may be taken, appropriated or used by another, who takes it advised of the terms, the latter will be deemed to have acquiesced and may be charged with the promise to comply with them. The plaintiff’s proposition is that the lessee had no right without his consent to remove the one and substitute the other engine, and having applied to the plaintiff for permission, which was granted upon terms, the lessee must be deemed to have proceeded pursuant, to the right so given, and, as the consequence, he took title.

This view is plausible, and apparently forcible. The evidence,, however, on the part of the defendant tends to prove that the lessee did not apply to the plaintiff for his consent to make the' change, but simply to induce him to enter into an arrangement to-share the expense of putting in the new engine; and that not obtaining the plaintiff’s assent to do so, the lessee assumed the right to take out the old engine, put in a new one in its place and retain title to the latter. And the trial court accordingly found, that the lessee had no design or intention at any time of attaching the engine to the freehold, but on 'the contrary the intention of the lessee at the time of placing it in the engine house was to-remove it on the determination of the lease. This finding was warranted by evidence, and whether it is effectual to support the-defendant’s claim of title to the engine becomes a question of law. As between landlord and tenant, the latter, except so far as his rights are limited by the lease, is at liberty to erect structures for the purposes of carrying on his legitimate business upon the demised premises and remove them within the term, unless the effect will be to commit waste or to do serious injury to the realty. 2 Kent’s Com., 345; Miller v. Plumb, 6 Cow., 665; Ombony v. Jones, 19 N. Y., 234; Globe Marble Mills Co. v. Quinn, 76 id., 23; Kelsey v. Durkee, 33 Barb., 410, Trapper v. Harter, 2 C. & M., 153.

The covenant of the lessee that he would not make any alteration in the premises without the consent of the landlord, was only an undertaking imposed by law, which is to the effect that any material and substantial change or alteration of the nature of the property is waste. Agate v. Lowenbein, 57 N. Y., 604. And it is such, although it may not in its consequences be prejudicial to the landlord. The expression of the chancellor on the subject in Winship v. Pitts, 3 Paige, 259, was that the tenant has no right “ to make improvements or alterations which' will materially and permanently change the nature of the property so as to render it impossible for him to restore the same premises substantially at the expiration of the term.”

The substitution of the new engine for use by the tenant in place of the old one, and the suspension during that time of the use of the latter, was not necessarily an alteration or change of the nature of the premises in any substantial respect. The tenant clearly had the right to place a new engine upon another foundation if room permitted it, and to allow the old one to remain idle. And in such case the right of the tenant to take away the one so placed threre would have been clear.

There was evidence to the effect that the old engine was in no condition for use with safety, and that it was essentially useless for the purposes of the business of the factory. And the findings of the court, supported by evidence, were to the effect that the old engine was so affixed to the foundation on which it rested that it could be removed from it and from the engine house, and the new engine taken in and substituted for it without injury to either the foundation or the building. And the conclusion was permitted by the evidence that it -was so done as to produce no injury to the premises or to the engine so taken out It would, therefore, seem to follow that no substantial alteration was made in the situation, condition or nature of the premises, but that on removal of the new engine the old one could be restored to the foundation from which it was taken. In this view there was no legal obligation to necessarily charge the lessee by implication with the terms or conditions upon which the plaintiff assumed to consent to the removal of the old engine and the substitution of the new one by the lessee. And as the latter did not, in ‘fact, accede to the terms which the plaintiff sought to impose, but proceeded upon the declared purpose to the contrary, the plaintiff took no title to the engine in question.

The determination of the trial court of the questions of fact founded upon conflicting evidence must, for the purposes of this review, be deemed conclusive.

None of the exceptions were well taken. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Parker and Landon, JJ., dissenting.


text:
    Maria L. Daly, Resp’t, v. John S. Wise, App’lt.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    1. Landlord and tenant—Lease—Unsanitary condition.
    In case tile whole of an unfurnished dwelling is leased for a definite term, under a single^ contract which contains no covenant that the premises are in good repair, or that the lessor will put or keep them so, the law does not imply a covenant on the part of the lessor that the dwelling is without inherent defects rendering it unfit for a residence.

      2. Same.
    In an action for rent where the tenant had thrown up the house on account of its unsanitary condition, the defendant testified that when he first went to the house with the plaintiff's agent “ I complained to him, at the time, that I thought some of the plumbing looked old. He said that Mrs. Daly was very stiff, determined not to put in any new; that it was all in good condition; that they had fixed it as they thought it ought to be.” It was not shown that the landlord or agent knew that the representations were false, or that the plumbing was out of order and fraudulently concealed the fact. Held, that this takes the case out of the rule which makes the owner liable for fraudulently representing that the dwelling was in good condition, and the defendant could not escape liability for rent on the ground that the law implied a covenant that the dwelling was fit for habitation.
    Appeal from a judgment of the general term of the court of common pleas of the city of New York, which affirmed a judgment entered on a verdict directed for the plaintiff.
    September 27, 1888, the litigants entered into a written lease by which the plaintiff let to the defendant an unfinished dwelling, known as 334 West Fifty-eighth street in the city of New York, for one year from October 15, 1888, for $1,800, payable $150 October 15, 1888, and a like sum on the 15th day of each succeeding month. The lease contained no covenant in respect to the then condition of the house, nor that the lessor should put or keep it in repair. November 15, 1888, the defendant began to occupy the premises, paid the rent for four months, until January 15, 1889, and continued in occupation until February 2, 1889, when he abandoned them because of their unsanitary condition arising from defective plumbing. February 4, 1890, this action was begun to recover the sums due by the terms of the lease on the 15th days of February, March, April and May, 1889, six hundred dollars in all, with interest. The defendant answered that he was induced to enter into the lease by the oral representation of the plaintiff’s agent, “ that the building on said premises was properly constructed and in thorough repair, the more especially in the matter of plumbing and sanitary arrangements; and that this defendant signed said lease, relying upon the faith of said representation so made as aforesaid.” It was also alleged; “That when defendant entered into possession of said premises it was discovered that said representations were untrue, and that said premises were unfit for the purposes of a residence, in that there existed hidden defects in the plumbing and construction of the sewer and other pipes, and the sanitarian arrangements in the buildings thereon. That such defects were concealed from view and were not discovered until the effect thereof became apparent in the health of the defendant’s family. That by reason of said defects the said building became charged with sewer gas and other foul and poisonous odors, thereby causing the defendant, his wife, children and servants to become sick and in great danger of death, and they so continued sick and in danger until the defendant was evicted from said premises, as hereinafter set out.”
    At the close of the evidence neither party asked to have any question of fact submitted to the jury, but each moved that a verdict be directed in his or her favor. The defendant’s motion was refused and he excepted, but the plaintiff’s motion was granted, and the defendant again excepted. No other exceptions are contained in the record, and the only questions reviewable in this court are those presented by the two exceptions mentioned. A judgment was entered on the verdict for the plaintiff, which was affirmed at general term. No opinion was written, but the case was decided upon the opinion of the same court, 15 Daly, 431; 28 St. Rep., 424, in another action arising over the same lease.

      John S. Wise, for app’lt; Robert Sturges, for resp’t.

       Affirming 33 St. Rep., 1037.

   Follett, Ch. J.

In case neither party requests to have any question of fact submitted to the jury, but each asks that a verdict be directed in his favor, the court is authorized to determine the fact in issue, and upon appeal the disputed facts are deemed to have been determined in favor of- the party for whom the verdict is directed. Kirtz v. Peck, 113 N. Y., 222; 22 St. Rep., 733; Dillon v. Cockcroft, 90 N.Y., 649; Provost v. McEncroe, 102 id., 650. This case must be determined upon the theory that all the disputed facts have been found in favor of the plaintiff.

In case the whole of an unfurnished dwelling is leased for a definite term, under a single contract which contains no covenant that the premises are in good repair, or that the lessor will put or keep them so, the law does not imply a covenant on the part of the lessor that the dwelling is without inherent defects rendering it unfit for a residence. Franklin v. Brown, 118 N. Y., 110; 27 St. Rep., 955. In Smith v. Marrable, 11 M. & W., 5, a contrary rule was laid down by Baron Parke. That case arose out of a contract to let a furnished dwelling for six weeks at eight guineas per week. The tenant moved in, but found the house so infested with bugs that it was uninhabitable, and at the end of , the first week left, paying the rent for that week. In an action brought, it was held in the opinion delivered by Baron Parke, concurred in by Barons Alderson and Gurney, “ that if the demised premises are incumbered with a nuisance of so serious a nature that no person can reasonably be expected to live in them, the tenant is at liberty to throw them up. This is not the case of a contract on the part of the landlord that the premises were free from this nuisance ; it rather rests in an implied condition of law, that he undertakes to let them in a habitable state.”

Chief Baron Abinger concurred upon the ground that: “A man who lets a ready furnished house surely does so under the implied condition or obligation, call it which, you will, that the house is in a fit state to be inhabited.”

The opinion of Baron Parke was rested on the authority of Edwards v. Etherington, Ry. & M., 268; S. C., 7 D. & R., 117, and Collins v. Barrow, 1 M. & Rob., 112, both of which cases, together with Salisbury y. Marshal, 4 C. & P., 65, are expressly overruled by Hart v. Windsor, 12 M. & W., 68, in which Parke, B., said : “We are under no necessity of deciding in the present,case whether that of Smith v. Marrable be law or not It is distinguishable from the present case on the ground on which it was put by Lord Abinger, both on the argument of the case itself, but more fully in that of Sutton v. Temple, 12 M. & W., 52, for it was the case of a demise of a ready furnished house for a temporary residence at a watering place. It was not a lease of real estate merely. But that case certainly cannot be supported on the ground on which' I rested my judgment.”

Smith v. Marrable was decided at Hilary term, 1843, and Hart v. Windsor, and Sutton v. Temple, at Michaelmas term of the same year. The rule laid down in Smith v. Marrable, by Abinger, B., as applicable to furnished houses, has been followed in Campbell v. Lord Wenlock, 4 F. & F., 716; and Wilson v. Hatton, L. R., 2 Exch. Div., 336, but the rule as stated by Parke, B., has not been followed in England or in this state. Franklin v. Brown, 118 N.Y., 110; 27 St. Rep., 955. The defendant caúnot escape liability for rent on the ground that the law implied a covenant that the dwelling was fit for habitation.

Is the evidence contained in the record sufficient to have required the trial court to have held, as a matter of law, that the plaintiff fraudulently represented that the dwelling and its fixtures wrere in good condition, or that she fraudulently concealed from the plaintiff the fact that it was in an unsanitary condition ?

In case the owner of a dwelling knows that it has secret defects and conditions rendering it unfit for a residence, and fraudulently represents to one who becomes a tenant that the defects and conditions do not exist, or if he fraudulently conceals their existence from him, the lessee, if he abandons the house for such cause, will not-be liable for subsequently accruing rent. Wallace v. Lent, 1 Daly, 481; Jackson v. Odell, 12 id., 345; Rhinelander v. Seaman, 13 Abb. N. C., 455; Cesar v. Karutz, 60 N. Y. 229. In the case at bar the defendant testified, and in this he was not contradicted, that when he first went to the house with the plaintiff’s agent, he said: “ I complained to him (the agent) at the time that I thought some of the plumbing looked old. He said that Mrs. Daly was very stiff, determined not to put in any new; that it was all in good condition; that they had fixed it as they thought it ought to be.” This is the only representation which was made by the plaintiff, or her agent, in .respect to the sanitary condition of the dwelling. It was not shown that the plaintiff or the agent knew that the representations were false, or that the plumbing was out of order, and fraudulently concealed the fact. This takes the case out of the rule above referred to in respect to the owner’s liability in case he fraudulently misrepresents the condition of the dwelling, or, knowing that it is in ■ bad condition, fraudulently conceals the fact from the person who becomes the lessee.

Is the plaintiff liable for having stated that a material fact existed which did not exist, i. e., that the plumbing was in good order, upon the theory that she was bound to know whether or not the statement was true.

In case a party, for the purpose of inducing another to contract with him, states, on his personal knowledge, that a material fact does or does not exist, without having knowledge whether the statement is true or false, and without having reasonable grounds to believe it to be true, he is liable in fraud if the statement is relied on and is subsequently found to be false, although he had no actual knowledge of the untruth of the statement. Bennett v. Judson, 21 N. Y., 238; Marsh v. Falker, 40 id., 562; Oberlander v. Spiess, 45 id., 175; Wakeman v. Dalley, 51 id., 27; 2 Pom., Eq. Juris., §§ 887, 888; Story’s Eq. Juris., § 193. It does not appear that the plumbing had not been fixed as stated, nor that the statement that “ it was all in good condition ” was made without actual or supposed knowledge of its condition, nor that it was made in bad faith, and we think the case does not fall within the principle of the authorities last cited. The defendant cannot escape liability on the ground that the statement of the agent amounted to a warranty, because it is not so pleaded in the answer.

The judgment should be affirmed, with costs.

All concur.


author: Brown, J.

text:
    Enoch Morgan’s Son’s Company, App’lt, v. George Waldo Smith et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    1. Contract—Evidence—Counterclaim.
    By a contract between the parties defendants were to have a bonus in case their sales of plaintiff’s goods exceeded those of the year before, but such bonus was to be forfeited if they violated certain conditions. A claim for such bonus being set up as a counterclaim herein, plaintiff replied, alleging a forfeiture. Upon the close of defendants’ evidence, offered to establish. performance on their part', plaintiff’s motion to dismiss the counterclaim on the ground that they had failed to show compliance with the condition of the agreement was denied. Reid, error; that defendants’ proof failed to show the price at which they had sold the goods or the credit given customers, both of which were fixed by the agreement in question, and were essential to their right to recover, and without some evidence upon them no cause of action was established.
    2. Same.
    Letters by defendants to plaintiff containing statements to the effect that defendants had kept the contract in good faith and had sold the goods at full price and without reduction or rebate are not admissible as proof of the performance of the contract.
    (Landon, J., dissents.)
    Appeal from a judgment of the general term of the court of common pleas of the city of New York, affirming a judgment entered upon the verdict of a jury.

      Chas. Steele, for app’lt; James A. Seaman, for resp’ts.

       Reversing 27 St. Rep., 799.

   Brown, J.

This appeal presents the question of the sufficiency of proof to establish a counterclaim asserted by the defendants against the plaintiff.

The counterclaim arose upon the alleged performance of a contract between the parties, which was contained in a letter addressed by the plaintiff to the defendants, the material part of which is as follows:

“New York, April 23, 1887.
Messrs. Smith & Sills,
“ Gentlemen—Your purchases of Sapolio during the year 1886 were equivalent to eight hundred and ninety cases of one-half gross each. In order to more fully interest you and encourage a larger sale we will pay you * * * one dollar for each half gross case and fifty cents for each quarter gross case, 3’ou may purchase for direct shipment during the year 1887, in excess of the number of cases mentioned above, provided you sign and strictly adhere to the terms of' the enclosed agreement, and provided also that your purchases are only for your legitimate wants in the ordinary course of your dealings with the retail trade.
“Yours truly,
“ Enoch Morgan’s Son’s Go.”

The agreement referred to and which was signed by the defendants provided that they would not sell nor allow any of their employees to sell any of the Sapolio for less than $4.50 per case for half gross cases, and $2.25 per case for quarter gross cases,. and that they would not, upon sales of such articles, give longer time or greater discount for cash than generally allowed by them on other goods.

The reply by appropriate allegation put in issue the performance of the contract, and it was therefore incumbent upon the defendants to establish its performance on their part.

This they assumed to do, and upon the close of their evidence the plaintiffs moved to dismiss the counterclaim on the ground that they had failed to show compliance with the condition of the agreement sued on. This motion was denied and the exception taken presents the question for review.

We are of the opinion that this ruling was erroneous. There was no waiver of the condition of the contract by the plaintiffs in the pleadings or upon the trial, and the defendants could not recover without proving full performance of the contract on their part.

It was not every sale of a case of Sapolio that would entitle them to receive from plaintiffs the sum specified.

To entitle them to recover it was essential to prove a purchase from plaintiffs made necessary by their wants in the course of their dealing with the retail trade and a sale thereof for a price not less than that specified, either for cash or upon terms of credit generally allowed by them upon the sale of other goods.

The proof failed to show a compliance with these conditions. It warranted the conclusion that defendants had purchased from plaintiffs 508 one-half gross cases in excess of the quantity purchased in 1886 and that the same had been sold in their ordinary-dealings with the retail trade. But nothing more. There was no evidence as to the price at which the goods were sold or as to the terms of the sales.

These were matters essential to their right to recover and without some evidence upon them no cause of action was established.

The respondent refers us to two letters written by defendants to the plaintiff, forming a part of the correspondence between the parties in relation to the performance of the contract. These letters contain statements to the effect that defendants had kept the contract in good faith and that they had sold all the Sapolio at full price without reduction or rebate whatever.

A party’s own letter cannot be evidence in his own behalf of the facts therein stated when they are not part of the res gestae. These letters were not therefore proof of the performance of the contract and had no other probative force than to show that the defendants claimed that they had performed the agreement.

The facts in reference to the sales were necessarily within the defendants’ knowledge. They must have known who their customers were' and the times and prices for which the Sapolio was sold, and while we do not hold that it was essential for them to prove the details of every sale in order to make out their prima facie case, it was essential that the proof should be sufficient to enable the jury to determine as a fact that the sales were in accord with the terms of the contract.

The judgment must be reversed and a new trial granted.

All concur, except Landon, J., dissenting, and Vann, J., not voting.


text:
    Benjamin Collins, Appl’t, v. Long Island City and Frederick W. Bleckwenn, Treas r., Resp’t.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    Taxes—Assessment—Long Island City.
    The insertion of the name of the owner of lands assessed as non-resident in the assessment roll of Long Island city will not render the assessment void.
    Appeal from an order of the general term of the second judicial department, which reversed a judgment entered upon the report of a referee and granted a new trial.

      J. Ralph Burnett and K N. Anable, for appl’t; George W Stephens, for resp’t.

       Affirming 31 St. Rep., 461.

   Brown, J.

This action was brought to set aside certain tax sales and also to ascertain the amount of taxes and water rates due and unpaid upon several lots of land owned by the plaintiff, and to have the same cancelled upon payment of the amount found to be due.

The appeal presents two questions:

1. Is the plaintiff bound to pay interest on the taxes for the years.prior to 1883.

2. Is the tax for the year 1883 invalid by reason of a defective assessment

The first question depends upon the construction to be given to §§ 15 and 16, of chapter 656, Laws of 1886, and was determined in People ex rel. Flower v. Bleckwenn, 55 Hun, 169; 27 St. Rep. 593; affirmed by court of appeals December 7, 1891, without opinion. 41 St. Rep. 947.

In reference to the second question, it appeared that in the year 1883 the lands described in the complaint were unoccupied and were owned by Mary F. Norwood, who was a resident of the city of New York, and were assessed in her name.

The claim of the appellant is that the insertion of the name of the owner in the assessment roll renders the assessment void.

The charter of Long Island City, chap. 461, Laws 1871, title 6, § 6, provides that assessors, in preparing assessment rolls, shall have all the powers of assessors of towns in the state, “ except that lands of non-residents shall not be separated from the other assessments. And in case of non-payment of county and state taxes, all lands on which such taxes remain unpaid, shall be returned to and received by the comptroller of the state as lands of non-residents.”

It is further provided by chap. 339, Laws of 1880, that no assessment shall be invalid “ by reason of any error, mistake or insufficiency in the owner’s name as set down on any assessment roll of said city, or by reason of such owner’s name being omitted from such rolls.”

We agree with the counsel for the appellant that the law of 1880 has no application to lands of non-residents.

It obviously could have no application to a system of assessment which did not require the statement in the roll of the name of the owner or occupant. Full effect is given to it by limiting it to occupied lands where the purpose of the assessment is ultimately to make the tax a charge against the person assessed, and collect it primarily' from the personal estate, and enforce it against the land only in case of its non-payment or non-collection by levy and sale of personal property.

The charter of the city further gives to the receiver of taxes the same power in the collection of state and county taxes as town collectors possess. Title 6, § 14. And it makes provision for the collection of the city taxes by distress and sale of the goods and chattels of the persons against whom the tax is assessed, and by the sale of lands under direction of the common council. Sections 22 and 23.

The statutes relating to the assessment of lands in towns require the assessors to designate the lands of non-residents in the assessment roll separate and apart from the other assessments. And assessors have no jurisdiction of the person of a non-resident whereby they can initiate a charge against him personally for a tax because of unoccupied lands owned by him in their town. They have power to value the lands, but none to value them against the owner. Hence it follows that they have jurisdiction of the land and may subject it to an assessment and so initiate a lien thereon for a tax ultimately to be laid, but none to charge the-owner with its payment, and the land is to be assessed without :the name of an owner and set down in the roll apart from the names of the taxable inhabitants. And this requirement of a ■classification of resident and non-resident lands is imperative. Whitney v. Thomas, 23 N. Y., 281; Crooke v. Andrews, 40 id, 547; Newell v. Wheeler, 48 id, 486.

Lands of residents are not under the first assessment subjected to the lien of the tax, and it can by virtue of that assessment be collected only from the owner. 1 E. S., 463, § 27. . .

The tax may ultimately be made a lien -on the land and enforced against it, but only by proceedings’ subsequent to the first assessment. Laws 1855, ch. 427, § 5; Newman v. Sup’rs of Livingston Co., 45 N. Y., 676.

But under the charter of Long Island City the requirement of separation does not exist Lands of residents and non-residents, whether occupied or vacant, are to be placed together in the roll and every tax imposed or laid is a lien on the land, and if unpaid all lands may be sold to satisfy the tax. '

If lands are owned by a resident of the city or are occupied they may be assessed personally to the owner or occupant, and the name of such would appear in the first column of the assessment roll among the taxable inhabitants, and the tax could be ■enforced against them by distress and sale of their goods and ■chattels. If the land is vacant and owned by a non-resident of the city the first column of the roll should state instead of the ■name of the owner, such a designation or description of the land :as the statute requires. 1 R. S., 390, §§ 12, 7, 13. In the assessment roll for the year 1883, it is not disputed that every fact essential to a valid assessment upon the lands in question was .stated in the roll, and if the name of the owner had been omitted the assessment would have been a valid one. The question is, therefore, was it rendered invalid by the insertion of the owner’s name.

No reason exists why such should be the result. Every statutory requirement has been followed, and the only ground of complaint is the statement of a fact unnecessary to charge the land with the tax. Assuming that by the manner of making the assessment the owner was named among the taxable inhabitants ■of the city, and so was apparently liable to be personally charged with the payment of the tax, which result being outside of the jurisdiction of the assessors was void,'it by no means follows that the tax was not a lien upon the land. I am not aware that it has ever been decided that when lands are assessed as.those of a nonresident the insertion of the name of the owner in the assessment roll renders the assessment void. The cases cited by the appellant do not so hold.

Hilton v. Fonda, 86 N. Y, 339, was an action against assessors for damages for an illegal assessment, and a levy and sale of goods and chattels to collect the tax.

In that case the lands were assessed as those of a resident and ■plaintiff’s name was placed among the taxable'inhabitants of the town, and the tax was collected by a distress and sale of goods and chattels. It was held that the assessors had no jurisdiction over the plaintiff and none to assess his lands as those of a resident. I do not understand from the report of that case that there* was an attempt to assess the lands as those of a non-resident, or that they were placed in the part of the roll where such lands were designated.

In.Stewart v. Chrystie the assessment appeared in the part of the roll devoted to non-resident lands. The owner was a nonresident and his name was inserted in the roll. But the lands were occupied, and the sole jurisdiction of the assessors was to assess them to the resident occupant. There was no jurisdiction to assess them as non-resident lands.

But in this case there was jurisdiction to assess the lands as those of a non-resident. They were placed in their proper place in the roll and every fact stated essential to make a valid assessment. .

All else was surplusage, and if the statement of the owner’s name had the effect to initiate a personal charge against him, her remedy was ample by proper proceedings to set aside the tax against her, to restrain its collection, or recover damages if it was enforced.

We are of the opinion that there was a valid assessment of lands of a non-resident, and that the tax laid thereon was a lien upon the land.

The order should be affirmed and judgment absolute rendered against the appellant, with costs.

All concur, except Landon, J., not sitting.


author: Parker, J. Follett, Ch. J.

text:
    Jerome J. Gallup, App’lt, v. Jacob Bernd, Resp't.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    Limitation—Vendor and purchaser.
    Plaintiff, in January, 1880, sold a farm by the acre to defendant, part of the consideration being secured by a bond and mortgage, which was-subsequently satisfied, defendant paying the amount due, less $1,364. In, March, 1887, defendant' discovered, by a survey, that instead of the 330 acres supposed to have been conveyed, he was the grantee of only 311 acres, and demanded an appropriate allowance for the lessened acreage. In this action brought to recover the $1,364, and in which defendant in his answer alleged misrepresentation by vendor as to the number of acres, etc., Held, that as it was a case in which before the Code equity had exclusive jurisdiction, the ten year limitation applies.
    (Follett, Ch.-J., dissenting.)
    Appeal from a judgment of the general term of the supreme-court, fifth department, entered on an order affirming a judgment,, entered on the report of a referee.

      M A. Washburn, for app’lt; Myron H. Peck, Jr., for resp’t.

       Affirming 30 St. Rep., 1021.

   Parker, J.

The defendant purchased from plaintiff a farm,, part of the consideration being secured by a bond and mortgage.

Subsequently the bond and mortgage was satisfied, the defend,-ant paying the amount due less $1,364.98. He had agreed to pay all but $800, and to give bis note for that amount. But the money with which the payment on the bond and mortgage was made was borrowed from a savings bank, and the investigation instituted by that institution for the purpose of ascertaining the character of the title tendered, and the value of the property, led to a survey which disclosed that defendant instead of having granted to him over two hundred and thirty acres, was the grantee of only -two hundred and eleven and three one hundreths acres. Defendant then demanded from his grantor an appropriate allowance because of the lessened acreage.

The demand was refused; defendant declined to pay the $1,-364.98, or any part of it; plaintiff commenced this action to recover such sum; defendant in his answer alleged misrepresentation on the part of the vendor as to the number of acres, his reliance thereon, and demanded, among other relief, a reformation of the agreement, so that the consideration expressed should conform to the amount actually due, and a dismissal of the complaint.

On the trial the referee found that the sale was by the acre; the ■representation complained of made; reliance placed thereon by the defendant; his failure to discover the truth until shortly before the commencement of this action, and that defendant is entitled to an abatement from the expressed purchase price in an amount equal to the sum which the plaintiff claimed to recover, and directed a dismissal of the complaint. The facts found, and which come to us approved by the general term, except in so far as they may be said to involve a consideration of the statute of limitations, are in all essential respects like those in Paine v. Upton, 87 N. Y., 327, and therefore need not be discussed.

In his replj7 to the counterclaim set up in defendant’s answer, the plaintiff pleaded the statute of limitations. It appears that the deed was executed and delivered January 5, 1880; defendant’s discovery of the error in acreage occurred later than March 1, 1887, and this action was commenced about June 17, 1887.

On the first trial, judgment was directed in favor of the plaintiff, and in stating the reasons for reversing the judgment, the gen-eral term assumed the six years limitation to be applicable, but ■treated the suit as one in equity to recover a judgment other than ■for a sum of money on the ground of fraud, and therefore held that the statute did not commence to run until the discovery of the fraud.

But the findings of the referee on the retrial which are now before us, as we understand them, do not charge fraud on the part of the plaintiff, but rather that while the representations complained of were made to the defendant by the plaintiff, they were mistakenly made, and that the agreement which ripened into a -conveyance by which the plaintiff undertook to convey, and the ■defendant agreed to pay for,_ a greater number of acres than was in fact conveyed, resulted from a mutual mistake of fact. In Paine's case, as here, the deed had been executed and delivered und a bond and mortgage given for a portion of the purchase price before tlie mistake in the acreage recited in the deed was discovered by the grantee, and the court in a carefully considered opinion delivered by Andrews, Oh. J., held that the general jurisdiction of a court of equity to reform written instruments is not. limited to executory contracts; that the power should be exercised with great caution when invoked on the ground of mistake ; but such considerations address themselves to the chancellor in the exercise of the jurisdiction, and ought not to prevent the interference of equity when the proper occasion for interference arises.

The relief afforded in that case was by way of abatement of the consideration expressed, which was deducted from the sum secured •by the bond and mortgage given for the purchase price.

■ In the case before us, the court has decreed an abatement equal to the balance of the purchase price remaining unpaid. Now it is clear that the defendant had no remedy at law. The contract was executed ; was not procured through fraud; and in law the parties were bound by it. Equity, having a broader jurisdiction, could open the written contract even after it became executed,, to let in an equity and correct an error resulting from mistake.

Such correction could be made as well upon an equitable .defense set up in an answer as in suit brought directly for that purpose. Hook v. Craighead, 32 Mo., 405.

As this is a case in which before the Code equity had exclusive jurisdiction, the ten year limitation applies. Butler v. Johnson, 111 N. Y., 204; 19 St. Rep., 85.

The judgment should be affirmed.'

Follett, Ch. J.

(dissenting).—It is alleged in the answer that: “ The plaintiff falsely stated and represented to the defendant, that said lands contained in the aggregate 230 acres of land, and that the same would, if properly surveyed and measured, exceed that amount” Also, that the defendant relied on the representation and was induced thereby to purchase the farm, take the deed and execute and deliver to the plaintiff the bond and mortgage insecure $11,700. The referee found that the representation was made and that the defendant relied upon it, but he refused to-find that it was fraudulently made. The finding is in this language : “I further find that by the mutual mistake or false representation of the plaintiff and without loches on his part, he (defendant) paid and agreed to pay the plaintiff for 18 97-100 acres of land, which were not conveyed to him by the plaintiff.” As a conelu'sion of law the referee decided : “ I find that by reason, of the mistake made in the quantity of land sold and conveyed by the plaintiff to the defendant, there is nothing due from the-defendant to the plaintiff.” Assuming that the word “ falsely in the answer is used as a synonym for fraudulently, and that the-word “ false ” in the decision is used in that sense, there is no-finding that the plaintiff fraudulently misrepresented the quantity of land contained in his farm.

When a complaint alleges fraud, and only that, a judgment for the plaintiff on the ground of mistake cannot be sustained Mc Michael v. Kilmer, 76 N. Y., 36; Dudley v. Scranton, 57 id., 424. The answer contains no allegation that the original contract of purchase and sale, the deed and mortgage executed pursuant to-it, or the oral agreement of April 21, 1887, sued on, were, or that either was, entered into under a mutual mistake of fact The-answer asks for a reformation of the oral agreement of April 21, 1887, to pay $1,364,98, but it is not alleged that it was entered into under a mutual mistake of any fact, nor does the referee find that this agreement was entered into under a mutual mistake of fact. The defendant must prevail according to the case made by his answer, or not at all. Wright v. Delafield, 25 N. Y., 266; Day v. Town of New Lots, 107 id., 148; 11 St. Rep., 361; Abb. T. Brief, Pldgs., § 1027.

I am unable to see that any equitable defense is interposed in. the answer or established by the decision of the referee. A legal cause of action for the recovery of money only is stated in the-complaint, and a legal counterclaim is stated in the answer which, unfortunately, is barred by the statute of limitations. Code Civ. Pro., § 397. I regret that I cannot see my way clear to concur in. the equitable result reached by the prevailing opinion.

I think the judgment should be reversed and a new trial, granted.

Judgment affirmed, with costs.

All concur, except Follett, Ch. J., dissenting, and Haight,. J., not voting.


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    Sander Harris, Resp’t, v. John H. Strodl, App’lt.

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

    Will—Construction of—Vendor and Purchaser—Title.
    The will of one V. gave his entire estate to his wife for life or until her remarriage, and provided that if she remarried, the executors should sell, the real estate and pay one-third of the proceeds to her and divide two-thirds between.the children, the children of a child “ who may have died”’ to receive its parent’s share, and if the wife died without remarrying, the-estate should be divided among the children, the children of a deceased child to receive the same proportion the parent would have received. He also gave the executors power to sell real estate. Held, that deeds from the widow and children merely conveyed a title subject to be defeated in case any of the contingencies contemplated by the testator should occur, and a deed from the executors under the power of sale given them by the will did not cure the defect, and it was not such a marketable title as a purchaser was entitled to.
    Appeal from a judgment of the general term of the supreme court, first department, affirming a judgment for plaintiff entered upon the decision of the court upon trial at special term.
    The action was brought for the specific performance of a contract made by the parties February 16, 1888, for the sale by the defendant to the plaintiff of a lot in the city of New York for the-price of $24,900, by full covenant deed to be delivered April 15, 1888, conveying to plaintiff title in fee simple free from incumbrances, except as to outstanding tenancies and a mortgage not. ¡here material. The plaintiff paid $1,000 upon the contract at its date, and necessarily expended $224.10 in examining as to the title, and was ready and willing to perform. The defendant tendered ¿a deed of the premises executed by himself, which plaintiff refused to accept, upon the ground that the deed under which defendant claimed did not convey to him full title, for reasons discussed in the opinion. The complaint asks, in case specific performance could not be made, that he recover the $1,000 advanced by him and his said expenses. The trial court directed judgment in favor of the plaintiff for said sums, with costs. Further facts are stated in the opinion.

      F. J. Moissen, for app’lt, David McClure^ for resp’t.

       Affirming 32 St. Rep., 1090.

   Landon, J.

John Gleorge Vix died in 1874, in the city of Flew York, seized of the premises in question as owner in fee simple, leaving his widow Salomea and his three sons, Jacob, .Gleorge and Edward, all of full age, surviving him. He also left a will which was afterwards duly proved, the material parts of which are as follows:

First. I devise and bequeath unto my beloved wife, Salomea Vix, all of my estate, both real and personal, of which I may be seized at the time of my decease. To have and to hold the same unto her for and during the time of her natural life, or until she shall remarry, to receive the rents, issues and profits thereofand apply the same as she shall see fit.
“Second. Should my said wife marry again after my death, then a.nd in such case I do direct that all my said estate, real and personal, be sold by my executors hereinafter named, either at public ■or private sale, and one-third of the proceeds thereof paid to my said wife, and that the remaining two-thirds thereof be divided -equally between my children, share and share alike, the children of any of my said children who may have died to receive the -amount the parent would be entitled to if living.
Third. Should my said wife die without marrying again, then upon her death I hereby direct that my said estate shall be divided between them, share and share alike, the children of any -deceased child to receive the same proportion the parent would have received if living, the devisees in this clause being my chil■.dren or the children of any of them who may have died.
Fourth. I hereby give unto my said executors full power to :sell and convey any and all of my said real estate whenever they may deem it best to do so and upon such terms as they may "think desirable.
Lastly. I hereby nominate and appoint my said wife Salomea to be executrix, and mv friend Michael Schmidt to be executor ■of this my last will and testament, hereby revoking all former wills by me made.”

The widow is living and has not remarried. The three sons .are living, Edward and Gleorge each have children, Jacob has none. Schmidt, the executor, is also living. February 1, 1886, dhe said widow and the three sons of the testator, the wife of ¡¡Edward uniting in the conveyance, conveyed the premises in question to the defendant for the expressed consideration oí $19,500.

Upon the trial the defendant produced a deed dated February 1, 1886, of the said executors of the will of the testator to the-defendant of the premises This deed was acknowledged by one-executor December 5, 1888, and by the other January 31, 1889. This deed recites the consideration $19,500, being the same a"s recited in the deed given defendant by the widow and three sons. It is not claimed that the executors as such received any consideration whatever. The action was commenced in April,, 1888.

It is obvious from the terms of the will that if any of the children of the testator should die before the remarriage of the testator’s widow, or if she should not remarry, or any of them should die in her lifetime, that the children of such deceased child would be substituted in the parent’s place as the ultimate devisees of the portion of the estate which the parent would take i£ living.

The deed from the testator’s children to the defendant conveyed what they had a right to convey, namely, a title subject to be-defeated in case the contingency contemplated by the testator should occur. This position is not contested by the appellant. But it is contended that the power of sale given to the executors, by the fourth clause of the will is ample and that the deed given by them to the defendant cures the defect.

The power is “ to sell and convey * * * whenever they may deem it best to do so and upon such terms as they deem desirable.” It is contended that they deemed it best to convey to-the defendant for the purpose of vesting in him the remnant of the title which remained unconveyed after the conveyance of the widow and children, and that they deemed the confirmation of that conveyance upon the consideration expressed in it desirable terms. This may meet the letter of the power but does not satisfy its spirit. The widow and three children of the testator-having conveyed all their estate in the premises, nothing remained for the executors to convey but the future contingent estates of the grandchildren. Clearly they ought to have so sold these as insecure the proceeds to the grandchildren in the event of the contingency happening making them the ultimate devisees of the-testator. But as the case is presented the executors made the conveyance to the defendant so as to enable the takers of the defeasible estates to keep and convert to their own use the full price of the whole estate, as if their children had no contingent future estate in it. The plaintiff has full knowledge of all these facts. What defense could he make to the claim of the grandchildren if, as is not improbable, they become the testator’s devisees ? McMurray v. McMurray, 66 N. Y. 175.

The question is an important one. The general rule is that to the due execution of a power there must be a substantial compliance with every condition required to precede or accompany its exercise. Allen v. DeWitt, 3 N. Y., 276; Roome v. Philips, 27 id., 357; Russell v. Russell, 36 id., 581; Adair v. Brimmer, 74 id., 539; Syracuse Savings Bank Holden, 105 id., 415; 8 St. Rep., 29.

Two cases recently before this court under the same will illustrate both the valid and invalid execution of a power much like the one before us. Scholle v. Scholle, 113 N. Y., 261; 23 St. Rep., 171; Mutual Life Ins. Co. v. Woods, 121 N. Y., 302; 31 St. Rep., 45.

It may be that the grandchildren will never take under the will, or if they should that a satisfactory answer to the question we have suggested could be made. But the purchaser is entitled to a marketable title. He should be protected against the risk suggested. Moore v Appleby, 108 N. Y., 241; 13 St. Rep., 492; Meth. Epis. Ch. Home v. Thompson, id., 130. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


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    Rebecca Gallagher et al., App’lts, v. Susan Crooks et al., Resp’ts. (2 Cases.)

      (Court of Appeals, Second Division,

      Filed April 19, 1892.)

      A. Will—Clause op disinheritance.
    By the will of G., lie gave liis wife a life estate, subject to a weekly allowance to his brother John if he should be unable to maintain himself; the remainder, after her death, to be equally divided between the children of John Grady and all testator’s relatives by his father’s side that were in the United States at the date of his will. He expressly cut off from inheritance the wife of his brother John, and any person related to her by blood or marriage. Held, that the clause of the will by which testator attempted to disinherit his brother, his wife and their descendants, did not defeat their right to the estate unless the persons to whom the testator attempted to devise the remainder were in existence.
    53. Same—Evidence.
    The widow testified that she knew John Grady, nephew of testator; that he had been dead several years; that he never married, and left no children; that she was familiar with the history of the family of her husband and of his father, and that she had heard the father, John Gallagher, say that he was the only child of his parents who died in Ireland, and that he had no relatives living. Her evidence was corroborated by her sons. Held, sufficient if uncontradicted to establish the fact that testator had no relatives living in the United States at the date of his will or death.
    •Appeals from judgments of the general term of the supreme •court of the first judicial department, which affirmed judgments ■dismissing the complaint on the merits, entered on nonsuits.

      Robert O' Byrne, for app’lts; R. B. Cwillim, for resp’ts.

         Reversing 32 St. Rep., 1098.

   Follett, Ch. J.

Action Ho 1, ejectment, was brought to recover a lot in the city of Hew York known as Ho. 325 Third ■ street, of which James D. Gallagher died seized.

Action Ho. 2, ejectment, was brought to. recover a lot in said •city known as Ho. 34 Scammel street, of which James D. Gallagher died seized.

He left a will executed April 16, 1843, which was duly probated January 29, 1845, by which he devised all of his realty .and. bequeathed all of his personalty to his widow, Ellen Gallagher, ■during life, subject to the payment of three dollars per week (before his widow’s death), for the support of his brother John. H. ‘Gallagher, if he should be unable to maintain himself. After the ■death of the widow he directed that $1,000 should be paid to the Roman Catholic Orphan Asylum; $1,000 should be divided between Edward Harrigan and Bernard Harrigan; and he authorized his widow to bequeath $1,000 to any person she might see fit; “ the remainder, if any, to be equally divided between the children of John Grady and all my relations by my father’s side” that were in the United States at the date of his will, subject to the payment of four dollars per week (after his widow’s death), for the support of his brother John E. Gallagher, if necessary for his maintenance. The will contains the following clause: “ He ■(John H. Gallagher) is to have nothing from my property, and I hereby cut off from inheriting anything or property of mine his wife (Rebecca), or any person in any, way related to her, either by blood or marriage, with the exception of himself, and he only in the way I have stated above.”

It seems to be undisputed that in 1798 John Gallagher emigrat-ed from Ireland to the United States, and soon thereafter became a resident of the city of Hew York where he and Catharine Gallagher intermarried, at which city he died in 1836, leaving his widow and two sons, James D. Gallagher and John H. Gallagher, both born in Hew York, who were his only heirs. About 1842, Catharine, the widow of John and the mother of James D. and ■ John H, died. In 1833, John H. Gallagher and Rebecca Hoe intermarried at the city of Hew York, where they resided as husband and wife until December 4, 1875, when he died leaving Rebecca, his widow, John H., Thomas B., Catharine F., Rebecca T. .and Mary L., his children and only heirs. Mary L. and Charles A. Hammer intermarried and subsequently both died leaving Charles A. Hammer and Horman Hammer, their children and •onljr heirs. Ellen Gallagher, the widow of James D., the. testator, died July 1, 1879.

These actions were begun in 1886 by the heirs of John H. Gallagher, who claimed the fee of the lots, and by Rebecca Gallagher, his widow, who claims a dower right' in them. The defendants answer that Susan Crooks and John Crawford were lawfully seized of both lots in fee, but how they acquired title, if any they have, or possession of the lots, is not disclosed by the answers nor by the evidence. The other defendants are tenants of Crooks and Crawford.

The clause in the will above quoted, by which the testator .attempted to disinherit his brother, his wife and their descendants, does not defeat the right of these plaintiffs to the estate unless the persons to whom the testator attempted to devise the remainder were in existence.

In case a testator fails to make a legal devise of his realty, or if, having legally devised it, the devise fails for any cause, the heir will inherit, notwithstanding there is an express provision in the -'.will that he shall not take any part of the estate. There must be a legal devise to cut of the right of the heir to inherit; mere words of disinheritance are insufficient to effect that purpose. Haxtun v. Corse, 2 Barb. Ch., 521; Chamberlain v. Taylor, 105 N. Y., 185, 193; 7 St. Rep., 525; Fitch v. Weber, 6 Hare, 145; Pickering v. Stanford, 3 Vesey, 493; Johnson v. Johnson, 4 Beav., 318; 2 Jar. Wills, Bigelow’s Ed., 841; 1 Red. Wills, 4th Ed., 425. To entitle the plaintiffs to recover they were bound to establish (1) that John Grady left no children; (2) that the testator had no-relatives by his father’s side in the United States at the date of his will or at the date when the devise of the remainder took effect. These were the facts in issue.

Rebecca Gallagher, the widow of John U., who was seventy-nine years of age when her deposition was taken, testified that she knew John Grady, a nephew of the testator’s wife, and that he-had been dead several years, that he never married, and left no children. This witness also testified that she was familiar with tlie history of the family of her husband and of his father, and. that she had heard the father, John Gallagher, say that he was the only child of his parents, who died in Ireland, and that he had no relatives living. Her evidence was corroborated by' her sons. ”

If this testimony is true, and it was not contradicted, the testator had no relatives living in the United States at the date of his will or death, unless he intended that the words ‘ all my relations by my father’s side ” should include the descendants of his great grandfather, or of some more remote ancestor. It was" not. shown whether the great grandfather left any descendants other than those in the line of the testator’s family, but it was shown that the plaintiffs are all of the descendants of the testator’s-father. Accepting the Mosaic account of the origin of the human race, the testator must have had at the date of his will and at the date of his death collateral relatives on his father’s side, of some degree, in the United States. But such a broad interpretation of the meaning of the word “relations” would render the-devise void for indefiniteness, and it is well settled that the word, when used in wills relating to personalty only embraces persons within the statute of distribution. Edge v. Salisbury, 1 Amb., 70; Crossly v. Clare, id, 397; S. C., 3 Swanst., 320; Harding v. Glyn, 1 Atk., 469; and cases cited in Sander’s note; Goodinge v. Goodinge, 1 Ves., Sr., 231; Varrelly. Wendell, 20 N. Y., 431; Ennis v. Pentz, 3 Bradf., 382; Eagles v. Le Breton, L. R., 15 Eq., 148; Hibbert v. Hibbert, id, 372; 2 Jar. Wills (Big. ed.), 120; 2 Red. Wills (3d ed.), 85; 2 Wm. Ex. (6 Am. ed.), 1205; 4 Kent’s Com. (13th ed.), 537, note A. But whether in case, of a devise the word “relations” embraces only persons within the statute of distribution, as was held in Doe v. Over, 1 Taunt., 263, or only the class within the statute of descent, we will not now decide.. The English cases cited, which relate to devises, arose before, the-English statute of descents, 3 & 4 Will. IV., 106, and when the descent of realty in that country was determined by’the rules of the common law. 1 Steph. Com. (8th ed.), 387; Will. Real Pr. (12th ed.), 100. While the evidence does not make the existence--of relatives of the testator by the father’s side in the United States which were within the classes embraced within the statute of distribution or the statute of descents impossible, it does render the existence of such persons improbable.

It is seldom possible to demonstrate or establish to an absolute certainty the existence or the non-existence of the facts at issue between litigants, and the law does not require such a high degree of proof, but such evidence as renders the existence of the facts in issue, and upon which the right to recover depends, probable, is sufficient to require the party who denies their existence to sustain his denial by evidence. Certainty is not required to convict persons of criminal offenses. We think from the evidence that it is probable that no persons of either class, mentioned In the testator’s will, were in existence at its date, or have been ■since, and that the plaintiffs made out a prima facie case.

The judgments should be reversed and new trials granted, with ■costs-to abide the event.

All concur.