author: Follett, Ch. J. Bradley, J.

text:
    Alexander McFadden, App’lt, v. Van Buren Allen et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. .Moetgage—Fobeclostjee—When pebsonal pbopeety goes with ' LAUD.
    Plaintiff took possession of certain premises by virtue of an oral agreement by which he was to have a deed when he had paid the mortgage, and to make such improvements as he chose, with the right of removing them if he failed to pay the mortgage. He occupied the property eight years, adding new buildings and machinery. While in possession the plaintiff and his father gave a second mortgage, and the mortgagees, who had no notice of the oral agreement, were made parties to the foreclosure of the first mortgage and became the purchasers at the sale, and conveyed to defendant. Meld, that plaintiff cannot be permitted now to assert as against the mortgagees of the second mortgage that the buildings and machinery were not fixtures.
    3. Same.
    Plaintiff’s position was that of a beneficial owner, subject to the mortgage, and all improvements which he made upon the property were subject to the rules of law applicable to mortgagors and mortgagees.
    (Pabkeb, J., dissents.)
    Appeal from a judgment of the general term of the third judicial department, affirming a judgment dismissing the complaint on the merits which was entered on a nonsuit.

      C. A. Kellogg, for app’lt; John C. Keeler, for resp’ts.

       Affirming 20 St, Rep., 366.

   Follett, Ch. J.

In determining, as between mdrtgagor and mortgagee, whether articles are or are not fixtures, the same rules .prevail which are applicable to cases arising between grantors and grantees. Snedeker v. Warring, 12 N. Y., 170. Gardner v. Finley, 19 Barb., 317; Laflin v. Griffiths, 35 id., 58; Robinson v. Preswick, 3 Edw. Ch., 246; Main v. Schwarzwaelder, 4 E. D. Smith, 273 ; 1 Dart. V. and P., 6th ed., 607; 1 Jones Mort., § 428. And as between mortgagor and mortgagee the same rules are applicable to articles placed on the mortgaged premises by the mortgagor after the execution of the mortgage. Gardner v. Finley, 19 Barb., 317; Rice v. Dewey, 54 id., 455, 472; Sullivan v. Toole, 26 Hun, 203 ; Walmsley v. Milne, 7 C. B., N. S., 115, 135; Winslow v. The Merchants' Ins. Co., 4 Met., 306; Ex park Belcher, 4 Dea. & Ch., 703 ; Ex parte Reynal, 2 M., D. & De Gex, 443; 1 Jones Mort., § 436 ; 1 Sug. Vendors, 7 Am. ed., 37, note 1; Phoenix Mills v. Miller, 4 St. Rep., 787. In the case last cited the rule was well stated as follows: “A mortgagee of real property is entitled to have his lien respected as to all that was realty when he accepted the security ; also, as to all accession to, the realty; save, perhaps, when the accession is made under an agreement with the party that its purchase price or expense shall be secured and is secured by a lien thereon.”

The same rules apply to articles annexed to the premises by a subsequent grantee or vendee in possession under an executory contract to purchase. Eastman v. Foster, 8 Met., 19; Lynde v. Rowe, 12 Allen, 100; Glidden v. Bennett, 43 N. H., 306; Cooper v. Adams, 6 Cush., 87 ; Ogden v. Stock, 34 Ill., 522; Poor v. Oakman, 104 Mass., 309, 318; 1 Wash. R. P., page 2, par. 4.

Bearing these general rules in mind, it remains to apply them to the particular facts involved in the case at bar, which briefly are as follows: Jeremiah McFadden was the owner in fee of eighteen acres of land, upon which was a mill pond, saw mill, •dwelling and barn. December 11, 1878, he mortgaged the property to Orson Wallace to secure the payment of $400 five years thereafter, with semi-annual interest, which mortgage was duly recorded September 2, 1879. The plaintiff, a son of Jeremiah McFadden, occupied the premises from December, 1879, until May 21, 1887, when he was ejected by a writ of assistance, issued in and in pursuance of a sale made by virtue of a judgment foreclosing said mortgage.

The plaintiff testified that it was orally agreed between himself and his father that the former should take possession of the property, have the use of it, and when he had paid the mortgage he was to have a deed. The son was to make such improvements as he chose, with the right of ■ removing them if he failed to pay the mortgage and acquire the property. Under this contract the son occupied the property for nearly eight years, and' added to it some new buildings and machinery. Under this contract the plaintiff became the equitable owner of eighteen acres, and on paying the mortgage could have compelled a conveyance of the legal title by his father. Freeman v. Freeman, 43 N. Y., 34. The plaintiff could have devised the land, and had he died intestate, his interest held under this oral contract would have descended to his heirs subject to the dower right of his widow. Cogswell v. Cogswell, 2 Edw. Ch., 281—289 ; Griffith v. Beecher, 10 Barb., 432; Warren v. Fenn, 28 id., 333 ; Dayton’s Sur. (3d ed.), 630. While in possession of the eighteen acres under this arrangement with the father, the plaintiff and his father-, with their wives, executed a mortgage on the eighteen acres and another parcel of thirty-seven acres, June 16, 1885, to secure $634.26, to Frances L. and Anna'M. Harrison, who were made defendants in the action to-foreclose the first mortgage, and they became the purchasers at the sale and afterward conveyed to the defendant. It is not asserted that Wallace, the first mortgagee, or the Misses Harrison had notice, actual or constructive, of the alleged contract between the father and the son. The son, by the execution of the mortgage, treated the eighteen acres as his own and the building» and the machinery as a part of it, and he cannot now be permitted to assert, as against the Misses Harrison, or the defendant, their grantee, that the buildings and machinery were not fixtures.

The plaintiff, his wife, Jeremiah McFadden, his wife, Frances L. Harrison and Arma-M. Harrison were defendants in the action-brought by Orson Wallace to foreclose his mortgage, and were personally served with the summons and complaint in that action, The complaint contained this allegation : “ The plaintiff further shows upon information and belief that Alexander McFadden, Lunetta McFadden, Frances L. Harrison, Anna M. Harrison and Truman Jones, have, or claim to have, some interest in or lien upon said mortgaged premises, or some part thereof, which interest or lien, if any, has accrued subsequently to the lien of said mortgage."

Hone of said defendants appeared in the action and a judgment of foreclosure was recovered by default, pursuant to which ° the sale before mentioned was made, and the writ of assistance was issued.

The plaintiff’s rights in the eighteen acres were subsequent in time to the mortgage given to and foreclosed by Wallace, which was alleged to be a lien on the property prior in law and equity to the rights of the plaintiff in this and the defendant in the foreclosure action. If the plaintiff intended to assert title to the fixtures he was bound to do it in that action and he could not lie by until a judgment had been entered declaring his rights inferior to the mortgage, and then assert as against the purchaser under the judgment or his grantee that his claim to the buildings and machinery was prior to the lien of the mortgage. On the trial of this action the plaintiff testified that July 7, 1886, he “stated in writing to the Ames Engine Manufacturing Co., for the purpose of obtaining credit, that he owned in fee the fifty-five acres of land covered by said two mortgages, and that March 3. 1887, he wrote to the agents of the Misses Harrison (the second mortgagees), that he had paid his father-for the eighteen acres and held a deed thereof subject to the mortgage.

This statement was made for the purpose of obtaining a further loan from them. This evidence is entirely inconsistent with the plaintiff’s present claim that he was merely the occupant of the premises, with the right to remove betterments, instead of the •equitable owner with the right to have the legal title upon the payment of the Wallace mortgage; the plaintiff testified that he was not a tenant of his father, and paid no rent. His posiuon was that •of a beneficial owner, subject to the mortgage, and all improvements which he made upon the property were subject to the rules of law applicable to mortgagors and mortgagees.

As an authority for the position that the agreement between the father and son impressed the character of chattels upon the buildings and machinery, we are referred to the case of Tyson v. Post, 108 N. Y., 217; 13 St. Rep., 503. An examination of the record in that case shows that the owner of the premises conveyed them for $70,000, of which $10,000 was paid down, and $60,000 was rsecured' to be paid by the grantee to the grantors by two mortgages on the premises. Post paid to the grantors $6,200 of the $10,000, and then took a deed of the premises from the first "grantee, it being orally agreed between him, the mortgagees and Post, that he might remove the railway; and machinery whenever he chose. This was held sufficient as between the mortgagees and Post to change the railway and machinery, which were immovables or fixtures, into movables or personal chattels, and relieve them from the lien of the mortgages.

In the case at bar, if the mortgagees and the owners of the fee had agreed with the plaintiff upon a sufficient consideration that he might remove the buildings and machinery, then they, as between' the parties to the agreement, would have ceased to be fixtures, would have become movables, and relieved from the lien of the mortgage. But the mortgagees in the case before us were not parties to the alleged agreement between the father and son, who could not by an agreement between themselves affect the lien of the mortgages or the rights of the holder of them.

The judgment should be affirmed, with costs.

Bradley, J.

The mortgage, through the foreclosure of which the defendants derived their title, was prior to the agreement between the mortgagor and the plaintiff. The title taken by the foreclosure vested by relation as of the time mortgage was made. Rector, etc., v. Mack, 93 N. Y., 488; Batterman v. Albright, 122 id., 484 ; 34 St. Rep., 131. It does not appear that the mortgagee in any manner assented to such agreement.

In Sheldon v. Edwards, 35 N. Y., 279, the arrangement that the property there in question should be treated as personal was made between the mortgagor and mortgagee.

In Tifft v. Horton, 53 N. Y., 377, there was a stipulation of the mortgagee made before the- sale that the legal rights of the plaintiff should not be changed by the foreclosure sale.

In Globe M. M. Co. v. Quinn, 76 N. Y., 23, the plaintiff was assignee of lease of the premises made prior to the mortgage, and in Tyson v. Post, 108 N. Y., 217; 13 St. Rep., 503, the mortgagee was a party to the agreement that the property in controversy there should remain personal.

I concur in affirmance.

Judgment affirmed, with costs.

All concur, except Parker, J., dissenting, and Landon, J., not sitting.


source: Caselaw Access Project

author: Brown, J.

license: Public Domain

text:
    Wells Paine, Resp’t, v. Jeremiah W. Chandler, App’lt.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Easements—Right to water.
    Plaintiff in 1886 owned two contiguous farms, A. and B., which he used and cultivated as one. He conveyed both farms to defendant, but continued to reside on A., and repurchased it from defendant. In 1867 a pipe had been laid by the then owner of the two farms from a spring on the B. farm to the barnyard on the A. farm, and sufficient water ¿owed through the pipes for stock and domestic use on the A. farm. The deed to defendant made no mention of the spring, and in 1887 defendant diverted the water from the spring by digging a well, so that it ceased to flow to the A. farm. After the water was cut off, plaintiff dug a well upon his premises, and failed to procure sufficient water for his stock, and he was compelled to drive them a considerable distance to a stream to water them. Held, that the facts justified the court in holding that the plaintiff took under his deed by implication a right to the use of the waters of the spring, and the act of intercepting the flow of water of the spring was an interference with the rights of plaintiff acquired under the deed, and defendant was liable therefor.
    Appeal from a judgment of the general term of the fifth judicial department, which affirmed a judgment entered upon a decision of the special term.
    The judgment appealed from directed the restoration to certain water pipes of the waters of a spring on defendant's farm so that it would flow as it had theretofore done to the plaintiff’s premises, and awarded damages for the diversion of the water, and in case the waters could, not be restored to the spring gave damages for injury to the freehold.
    Prior to March 26, 1886, plaintiff owned two contiguous farms in Livingston county which he used and cultivated as one, and which are referred to in the evidence as the “ Grimes farm ” and the “Paine farm.” On March 26 he conveyed both farms to defendant. He was then living on the Paine farm, and before removing therefrom, and on April 9, 1886, he re-purchased that ‘farm from defendant. In 1867 a pipe had been laid by the then owner of the two farms from a spring on the Grimes farm to the barnyard on the Paine farm, and from that time until the date of the conveyance to the plaintiff sufficient water flowed through said pipes to water the stock kept on the Paine farm and also to-supply other domestic uses. The deed to the plaintiff from the defendant made no mention of the spring or pipes connected therewith. It described the land and conveyed it with the appurtenances. About a year after the conveyance the defendant diverted the water from the spring so that it ceased to flow to the Paine farm.
    The court found that the uninterrupted flow of water through the pipe as constructed and in use at the time of the conveyance to plaintiff was essential'to the full enjoyment of the'estate conveyed to him, and that the defendant’s act in stopping the flow of water was malicious and done with intent to injure the plaintiff.
    Other facts appear in the opinion.

      Chas. J. Bissell, for app’lt; E. A. Nash, for resp’t.

       Affirming 38 St. Rep., 1036.

   Brown, J.

The judgment in this action rests upon the rule of Lampman v. Milks, 21 N. Y. ,505, that when the owner of land sells 'a part thereof he impliedly grants to the grantee all those apparent and visible easements which are necessary for the reasonable use of the property granted and which are at the time of the grant used by the owner of the entirety for the benefit of the part granted.

The learned counsel for the appellant does not attack the principle, but his contention is that the easement involved in this controversy is of the class known as discontinuous, and such an easement passes by implication only when absolutely necessary to the enjoyment of the property conveyed. To use his own language, “the rule contended for has been confined to cases where the easement claimed was something without the use of which the premises would be practically^worthless.” The rule is not confined in its application to continuous éasements, but applies to those artificial arrangements which openly exist and affect materially the value of the respective parts of the estate at the time of the sale. Lampman v. Milks, supra; Curtiss v. Ayrault, 47 N. Y., 73-79.

To support his argument upon the claim of ^absolute necessity, the appellant, in part, relies upon Massachusetts cases. It was said in the opinion in Buss v. Dyer, 125 Mass., 287, that if an easement existed by implication, it was because it was absolutely necessary to the enjoyment of the estate. But that remark was not necessary to the decision, as the verdict of the jury was in the defendant’s favor, under a charge that there was no easement unless there was a reasonable necessity therefor. The learned judge who delivered the opinion in that case conceded that his statement of the rule was in conflict with the decision of the courts of England and of the state. In this state, the rule of strict necessity is applied to implied reservations, but not to implied grants. In the recent base of Wells v. Garbutt, 132 N. Y., 430; 44 St. Rep., 592, it was said : “As a grantor cannot derogate from his own grant, while a grantee may take the language of the deed most strongly in his favor, the law will imply an easement in favor of a grantee more readily than it will in favor of a grantor.”

This distinction between implied reservations and implied grants there pointed out is well founded in the law, although in some of the reported cases it has apparently been overlooked. In Johnson v. Jordan, 43 Mass., 234, Chief Justice Shaw, after stating the rules applicable to the construction of a grant, said, “ If a man owning two tenements has built a house on one and annexed thereto a drain through the other, if he sell and convey the house with the appurtenances, such a drain may be construed to be de factoannexed as an appurtenance and pass with it, because such a construction would be most beneficial to the grantee; whereas if he were to sell and convey the lower tenement, still owning the upper, it might reasonably be considered that as the right of drainage was not reserved in terms it could not be claimed by the grantor. The grantee of the lower tenement, taking the language-of the deed most strongly in his own favor and against the grantor,, might reasonably claim to hold his granted estate free of the incumbrance.” See, also, Wheeldon v. Burrows, L. R. 12 Ch. D., 31,. 39 : Washburn on Easements, 4th ed., p. 105-106 ; Burr v. Mills,. 21 Wend., 290.

In Johnson v. Jordan, supra, to which appellant refers, the conveyances of the dominant and servient tenements were simultaneous and the right to the easement was denied upon a construction given to the deeds and the circumstances attending their delivery.

In Buss v. Dyer, 125 Mass., 287, the chimney in which an easement was claimed had worn out and had been taken down, and the jury found as a fact that the plaintiff at a reasonable cost could have built one on his own property ; and the facts of the case amply justify the decision without reference to the rule of strict necessity.

Undoubtedly an easement to pass by implication must be necessary to the enjoyment of the estate granted, but the necessity required is a reasonable, not an absolute one. Mere convenience would not be sufficient to create or convey the right.

The privilege or right implied must be of value to the estate granted which the grantee has estimated as an advantage to the estate and paid for in his purchase.

In Curtiss v. Ayrault, 47 N. Y., 73, the essential question of fáct there involved was stated to be whether the grantor of the plaintiff in arriving at the price he would pay considered and had a right to consider as an element of value of the land he was buying the ditch across the tract giving the supply of water through it. See, also, Simmons v. Cloonan, 81 N. Y., 557-566 ; O'Rorke v. Smith, 11 R. L., 259; Washburn on Easements, 4th ed., pp. 110-111.

Root v. Wadhams, 107 N. Y., 384; 12 St. Rep., 30, cited by the appellant, was distinguished by. the court in its facts from Lampman v. Milks, and kindred cases, and nothing must be added to what was there said on this subject.

The trial court in this case found as a fact that the uninterrupted flow and use of the water through the pipes- from the-spring on the Grimes farm was essential to the enjoyment of the-estate conveyed to the plaintiff, and this finding has ample support in the evidence. After the water was cut off, plaintiff dug a. well upon his premises and failed to procure sufficient water for his stock, and he was under the necessity of driving them a considerable distance down a hill to a stream in order to water them. The court further found that the loss of the flow of water in the barnyard impaired the rental value of the farm fifty dollars a year, and depreciated the fee value six dollars per acre, and it is .apparent, therefore, that the use of the water was a substantial and valuable right and not a mere convenience.

The facts, therefore, justified the court in holding that the plaintiff took under his deed by implication a right to the use of the waters of the spring.

It appeared that the diversion complained of was not caused by any direct interference with the waters in the spring, but that the ' defendant, upon his own land and upon ground higher than the spring and a few feet therefrom, dug a well, and from it a ditch extending north about twelve rods, parallel with the pipes leading to the Paine farm, and about ten feet therefrom.

That as a result of this act the body of the water in the spring was diminished and fell below the mouth of the pipe leading to the Paine farm, and the court found that this was done maliciously and with the purpose of depriving the plaintiff of the use of the water.

The fact that the defendant’s act was with malice towards plaintiff is of no importance in determining its legal character. Unless it interfered with a legal right of the plaintiff it was not actionable because done maliciously. A person may do what he pleases upon his own land, and, so long as he violates no legal duty that he owes to his neighbor, he is not liable although he may perform the act for the sole purpose of injuring his neighbor. The question presented, therefore, is, was the act of intercepting the flow of water to the spring an interference with the rights of the plaintiff acquired under his deed.

The appellant contends it was 'not, and cites us to Bliss v. Greeley, 45 N. Y., 671. In that Case the plaintiff had acquired by deed the right to use a spring of water upon defendant’s property, and tó carry the same through a pipe to his house on adjoining land. The defendant by excavation on his farm a short distance from the spring intercepted the flow of water thereto, and plaintiff’s right was destroyed. The court held that the plaintiff’s rights were no greater than if he had owned the fee of the land in which was the spring, and upon principle of law applicable to adjoining lands, when neither one has any easement or right in the land of the other, held that the plaintiff could not recover.

In Johnstown Cheese Manufacturing Co. v. Veghte, 69 N. Y., 16, Bliss v. Greeley was distinguished from the case then before the court, and because in the latter case there was a grant of the use •of the water which at the time of the grant was being conducted to the spring, and the intent of the parties was to secure a continuance of that supply as a thing necessary tó the operation of the cheese factory, the defendant was restrained from digging on his land and intercepting the flow of water to the spring from which plaintiff’s supply was drawn. In this case the rights of the parties under the implied grant of the hse of the water are to be •determined by a consideration of the circumstances surrounding it, the situation of the respective farms with reference to it, with a view to ascertain the true intent of the parties.

The general rule is that a man who owns land subject to an easement has a right to use his land in any way not inconsistent with the easement, and the extent of the easement is to be determined by a true construction of the grant creating it, aided by such circumstances surrounding the estate and parties as have a legitimate tendency to show the intention of the parties. Onthanh v. L. S. & M. S. R. R. Co., 71 N. Y., 194.

Under this rule the rights of the owner of the easement are-paramount to the extent of his grant. There is no joint use of land contemplated in the sense that the rights of the grantee of the easement must under certain circumstances give way to those-of the grantor.

The intent of the parties under the implied grant to the-plaintiff was that plaintiff should have the use rof the water in his farmyard as a thing not only beneficial to the estate purchased by him, .but necessary to the full enjoyment thereof. If deprived of that use, he loses that which was an open and visible appurtenance to his property, or which represented a part of the-consideration for which he paid the purchase price to the defendant. By the acts of the former owner, the defendant’s land became servient to the plaintiff’s to such extent as was apparent at the time of the conveyance to the plaintiff. And plaintiff’s legal right was that the water should continue to flow to bis barnyard as it flowed when he acquired his title. . Any act of defendant’s which impaired that right was actionable. Defendant, could not lawfully, by direct means, lower the water in the spring below the pipe leading to plaintiff’s property, nor could he lawfully .divert the water from the spring and thus deprive-plaintiff of its use. Such acts would be in violation of his implied contract and actionable. A Substantially this same question.was raised in Curtiss v. Ayrault, p. 81, and Simmons v. Cloonan, p. 566, supra.

In the first case, in discussing the point that defendant’s acts-being upon his own lands were" not in violation of plaintiff’s-rights, it was said: “It matters not how the diversion is effee-. ted, whether by digging a new ditch or deepening an old one. The reciprocal rights of the parties are to have the status of the tract maintained as it was when Uewbold sold.”

The full enjoyment of the property purchased by the plaintiff: was the thing contemplated by the parties. This could not be-had if the flow of water was stopped. That the defendant could do this without incurring any liability would be destructive of the contract implied in his deed, and reduce the grant to a mere-license, revocable at his will.

We are of the "opinion that the defendant’s acts were clearly an interference with the legal rights of the plaintiff, and were: actionable.

The judgment must be affirmed.

Judgment affirmed, with* costs.

All concur.


author: Haight, J.

text:
    James C. French et al., App’lts, v. John George Bauer et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    1. Mechanic’s lien.
    A lien cannot be perfected by a person furnishing material and doing: work for a sub-contractor as against the owner after he has in good faith paid the contractor, and the contractor has paid the sub-contractor in full for such work and material.
    2. Same.
    B. contracted with S., to build a house, and to be paid therefor in sis: instalments, the fifth due when the cellar was concreted and the sidewalk and estertor iron and stone work was completed. F. & B. contracted with S. for the iron work and they sublet a portion thereof to plaintiff. This-work being completed, B. paid S.", the-fifth instalment and the latter paid. F. & B., both acting in good faith. F. & B. made an assignment, and plaintiffs subsequently filed a lien for their work. Held,, that there was-nothing to which the lien could attach, as the fifth instalment had been paid, in good faith, and no claim could be made under the terms of the contract to the sixth instalment.
    Appeal from a judgment of the general term of the court of common pleas of the city and county of New York, affirming a judgment rendered in the district court of that city;

      Edward D. McCarthy, for app’lts; James R. Angel, for resp’ts.

       Affirming 32 St. Rep., 326.

   Haight, J.

This action was brought for the foreclosure of a mechanic’s lien.

The defendant Bauer was the owner of premises known as No-3467 Third avenue in the city of New York, and as such entered into a contract with the defendant Peter Spoonheimer to erect- and complete a building thereon, for which he was to pay in six instalments. The fifth instalment was to become due when the-cellar was concreted and the sidewalk and exterior iron and stonework was completed.

Spoonheimer contracted with the firm of Findlay & Bowman to do the iron work and the sidewalk.

The plaintiffs, on or about the 13th day of October, 1888, contracted with Findlay & Bowman to furnish certain materials and do certain work as required by their contract They completed the performance of their contract on or about the 24th day of October, 1888.

The work called for by the contract, which entitled the contractor to the payment of the fifth instalment, was completed on or about the 29 th day of October thereafter, and on that date the architect gave his certificate to that effect to the contractor, and the defendant Bauer thereupon paid to Spoonheimer the fifth instalment, due according to its terms.

On November 2d, thereafter, Spoonheimer paid Findlay & Bowman the amount due them as sub-contractors by giving a. check dated November 5th, which check was on that or the following day paid. ;

On November 3d, Findlay & Bowman made an assignment for the benefit of creditors, and on the 7th day of November, thereafter, the plaintiffs demanded payment of their claim from the defendants Bauer and Spoonheimer, which they refused, at the same time notifying them that they had paid Findlay & Bowman in full. On November 9th, the plaintiffs filed the lien upon which this action was brought. At that'time the last instalment under the contract had not become due and payable.

It appears that the fifth' instalment was due and payable at the time of payment by Bauer to Spoonheimer ; that Findlay .& Bowman had performed their part of the contract with Spoonheimer, and the amount going to them was due and payable at the time of the payment to them.

The question of the good faith of the payments by Bauer to Spoonheimer, and by Spoonheimer to Findlay & Bowman, was submitted to the jury, and was by the verdict determined in favor of the defendants.

The question is thus presented as to whether a lien can be perfected by a person furnishing material and - doing work for a subcontractor, as against the owner, after he has in good faith paid the contractor, and the contractor lias paid the sub-contractor in full for such woi’k and material.

We regard the case of Lumbard v. The Syracuse, Binghamton & New York Railroad Company, 55 N. Y., 491, as controlling upon this question.

In that case it was held that one who has furnished materials ■or done work upon a building under a contract with a sub-con■tractor for a portion of the work can acquire no lien therefor against the owner after the contractor has paid the sub-contractor for the work done under the sub-contract according to its terms, although the owner is indebted to the contractor upon the contract for the whole work after the completion of the building to an amount sufficient to satisfy such a demand. It is true that the court in that case had under consideration chapter 366 of the Laws of 1864, as amended by chapter 788 of the Laws of 1866, known as the Onondaga Lien Law; and that the act under which *the plaintiffs seek to establish their lien in this action is chapter •342 of the Laws of 1885, as amended by chapter 420 of the Laws of 1887, and that the two statutes are in many respects different; but as to the question under consideration, it appears to us that they are in substance the same, and that the same rule should prevail in reference to the latter that has been declared in reference to the former statute.

Under the former, it was provided that: “Any person who shall, in pursuance of any contract, express or implied, either with the owner of the property, or any contractor, perform any labor or furnish any material in building, altering, or repairing any house or other building or appurtenance to any house or other building in the county of Onondaga, to the amount of twenty dollars or over, or any person who has made a contract for the same, shall, until the end of three months after the performance of such labor or furnishing of materials, be deemed to have an equitable lien for the same upon such house or building or appurtenances, and the land upon which the same may be situated. * * * When such labor or material is performed or furnished to the contractor or sub-contractor, all payments made by the owner to either, in good faith, to apply upon his contract, shall operate to extinguish-the lien aforesaid, unless written notice of the lien is served on the owner of the premises before such payment.”

Under the latter, it is provided that: “Any person or persons, firm or firms, corporation or association, who shall hereafter perform any labor or service, or furnish any material which have been used or which are to be used in erecting, altering or repairing any house * * * with the consent of the owner as hereinafter defined, or his agent, or any contractor or sub-contractor,, or any other person contracting with such owner * * * may,, upon filing .the notice of lien prescribed in the fourth section of this act, have a lien for the principal and interest of the price and value of such labor and material, etc. * * * But in no case-shall such owner be liable to pay by reason of all the liens filed pursuant to this act a greater sum than the price stipulated and agreed to be paid in such contract, and remaining unpaid at the time of the filing of such lien, or in case there is no contract then the amount of the value of such labor and material then remaining unpaid, except as hereinafter provided.”

The provision “ hereinafter provided ” is to the effect that if the owner shall, for the purpose of avoiding the provisions of the act, pay by collusion the contractor in advance of the terms of the contract for the purpose of defeating persons who have furnished materials or done work upon thp building, he shall, notwithstanding such payment, be liable, etc.

It will be observed upon reading the two acts that whilst they differ in phraseology, they are the same in substance. The policy, as disclosed in both, is to the effect that except in cases of fraud and collusion the owner cannot be compelled to pay any greater sum for the completion of his building than that which by his-contract he had agreed to pay, and the same is true of a contractor who has in turn in good faith paid the sub-contractor the amount due him after the same has become due and payable. The effect of the statute is to take from the owner the money owing by him on his contract and to apply it in payment for the labor and materials furnished by others in the performance of the contract, and the same rule should be applied to the case of a. contractor who has paid to a sub-contractor all that he is entitled to.

The case of Lumbard v. The Syracuse, Binghamton & New York Railroad Company followed the case of Carman v. Mclncrow, 13 N. Y., 70, and has been followed by Crane v. Genin, 60 N. Y., 127 Hagan v. The American Baptist Home Mission Society, 14 Daly, 131, and Larkin v. McMullin, 120 N. Y., 206; 30 St. Rep., 902.

The judgment should be affirmed, with costs.

All concur.


author: Parker, J. Bradley, J.,

text:
    Benjamin F. Dingley, App’lt, v. The Star Knitting Co., Resp’t.

      (Court of Appeals, Second Division,

      Filed October 1, 1892.)

    Master and servant—Negligence—Suitable machinery.
    Upon the trial of an action for injuries to plaintiff’s son received from a machine suddenly starting, through the belt slipping from a loose to a tight pulley on a carding machine while the boy was cleaning out waste from thereunder, it was shown that he had worked in other mills, in which he had operated similar machines, and after going into defendant’s employment had had charge of the machine in question for several weeks; that .none of the machines were fastened to the floor; that his brother when previously running the same machine at one time had had the belt slip back three times before he could make it stay on the loose pulley, and Anally had to throw it off and tie it up. It was not shown that defendant made any repairs or did any work affecting the movement of the machine, nor was defendant’s assertion disputed, that from and after the accident, without repair or alteration, the machine continued to operate perfectly. JEeld, that plaintiff could not recover.
    (Bradley and Vann, JJ., dissent.)
    Appeal from judgment of supreme court, general term, third department, entered on an order affirming judgment entered on a nonsuit.

      J. F. Crawford, for app’lt; E. Countryman, for resp’t.

       Affirming 34 St. Rep., 989.

   Parker, J.

The action was to recover for loss of service to ■plaintiff of his minor son, occasioned by an injury to him which plaintiff alleges to have been due to the negligence of the defendant.

At the time of the accident the defendant operated a knitting mill in which plaintiff’s son, then about fifteen years of age, was employed.

He had charge of the running of the seven second breakers, sometimes called cards, operated by water power. A line of shafting, extending along one side of the building, was connected with the card by a belt, which ran on a tight pulley when it was desired to keep the card in motion, and it was transferred to a loose pulley when the purpose was to stop the card. The pulleys were located side by side, each being about five inches wide. The machine is stopped by pressing the hand against the driving belt, and running it off from the tight pulley on to the loose one. The machine is .started by pressing the belt back on the tight pulley.

It was a part of the duty of the injured boy to clean out the waste which accumulated under each machine, and as we must .adopt the view of the evidence most favorable to the plaintiff, it must be assumed that in the performance of this duty he was required by the defendant to reach under the machine with bis hands.

On the 1st of October, 1884, while he was operating the machine, he changed, as he claims, the belt from the tight to the loose pulley, and commenced with his hands to remove the waste from the machinery, as was his custom, and in accordance with his duty as defendant's employee, and while in that position the machine started, and in the revolutions of the cylinder his hand was caught and seriously injured.

The injured boy, prior to the accident, had considerable experience in the operation of machines of this character. He had worked in other mills, in which he had operated similar machines, .and after going into defendant’s employment he had had charge of the machines in question for several weeks. There is no basis, therefore, on which to predicate negligence of the defendant in failing to inform Dingley of the dangers incident to the operation of the machines, nor is such claim made.

The sole question, then, is whether the evidence adduced would support a finding of fact that the defendant failed to perform its duty towards Dingley in selecting suitable machinery for his use, and keeping it in repair. The machine in question was such as was in ordinary use; it was operated in the usual way. No attempt was made to point out the specific defect which the plaintiff •claims the defendant negligently permitted to exist. It was proven that the machine was not fastened to the floor. But neither were any of the other machines in the building; nor is there any proof that such machines are ordinarily and commonly fastened to the floor. And in this connection it should be said that the •evidence does not tend to show that this machine was situated with reference to the shafting differently than such machines usually are.

It is contended by the appellant that there is evidence which would authorize the jury to infer that there was some defect, •either in the pulleys or in the location of the machine, because: First, plaintiff testifies that on the occasion of the injury he had run the belt off from the tight pulley on to the loose one ■about seven minutes before the starting of the' machine which •caused the injury. Second, Dingley’s brother testifies that he was formerly employed by the defendant in the operation of these machines, and, on one occasion, about two months before the injury complained of, he ran the belt off the tight pulley ■on to the loose one and started to go home, but was stopped by Mr. Dunlap, the superintendent, who directed him to go back .and stop the machine. That he went back and pushed the belt off the tight pulley on to the loose one again, after which >he started to go out, only to be again stopped by Mr. Dunlap, who directed him to go back and stay until the machine stopped running. This was again repeated, and finally the witness threw •off the belt and tied it up, Mr. Dunlap saying he would fix the •card in the morning.

Mr. Dunlap denies most emphatically any such occurrence, or that the machine was ever out of order to his knowledge. But his testimony is of course of no importance on this review, because the jury might possibly have believed the witness Dingley. The witness also testified to two other occasions when he claims the machine started without interference on his part, but he kept the information to himself, and it is not claimed that the defendant became aware of it

Adopting, as we must, the most favorable view to the plaintiff of the evidence to which we have alluded, the situation is as follows : The machine was such as was in ordinary use, and for aught the evidence discloses the best known; it was situated, with reference to the shafting, as were the other machines in that room, and in other mills; no special defect in its situation or construction was pointed out; no one pretended to be able to assign with certainty the cause of the transfer of the belt from the loose-to the tight pulley, if it was in fact so .transferred, but because the machine started on this and three other occasions, it is insisted that the jury had a right to infer that there existed a defect of some kind, which the defendant was negligent in not providing against, notwithstanding the precise defect was then and has since remained unknown. In other words, that the jury may find that'the defendant failed in the discharge of his duty towards his employee, by omitting to provide against an alleged defect in a machine in ordinary use which so far no one has been able to point out. A proposition which, if sustained, extends the liability of the master to his servant far beyond its present boundaries, and would be without reason to support it.

In attempting to ascertain what inferences may properly be drawn from the testimony under consideration, other facts than those to which we have alluded must be borne in mind. It appears that for several years before the accident the machine worked as well as other machines, with the exception of the three occasions testified to by the injured boy’s brother. John Hamilton operated it the day following the accident, and he testified, that “ it worked just the same as any other card ; it ran all right; no difficulty about the belt slipping from one pulley to the other; I cleaned the machine at night in the usual way; I stopped the card; I took my hand and shoved the belt over oh the loose pulley; I waited until the card stopped; then I pulled the waste from under the card.”

John Dunlap, the superintendent of the room, testified: “ I found the clothing all bruised and torn up where his arm went in; it took me half a day, I think, to clean it and repair it; which had to be repaired before the machine could _ be run; this clothing is made of small wire set in leather, it covers the cylinder; this clothing was not out of order at any other place than where his hand went in; I suppose that was caused by the accident; there was nothing else out of order about the machine ; the pulleys were not out of order, nor the belt; as soon as that was repaired the belt was put on, and the machine started up immediately; no repairs were made to that, it was started and used. * * * I never heard any more about that machine after the accident, no-complaint about it while I was there ; it operated all right after that up to the time I left the company. It ran just as smooth and perfect as before; no trouble with it whatever.”

Van Bramer, a former employee' of the defendant, said: “I never knew from any source that it (the belt) slipped from its own accord and set the machine in motion; I was there and noticed how the machine worked after the accident the next day; after Dingley went home and the new man operated the machine, It worked right after Mr. Dunlap had fixed the wire clothing; I never heard any complaint or seen anything wrong about the belting or the pulleys; it had not to my knowledge run off and starts- the machine running from the loose pulley, or of its own accord •on to the fixed pulley, either before or after this accident.”

Ho attempt was made to show that the defendant made any repairs, or did any work affecting tire movement of this machine, after the accident to Dingley, nor was any attempt made to dispute the assertion of the defendant’s witnesses that from and after the accident, without repair or alteration, the machine continued to operate perfectly. In this connection evidence of another character should be considered; one Cummings, an expert witness, and the only one produced by the plaintiff, was inquired of as to the weight which the subsequent good conduct of the machine should have in determining the probable cause of the accident. He said: “I could not expect the machine to work all right the next morning if started up again just as it was left the night before.

“Q. You would not. expect it to continue to work all right for the next two or three weeks? A. Well, sometimes there is cause for that; if it was true that that belt at night, when you were closing up the works, had slipped from the loose pulley on to the fixed pulley three times, so you could not stop it without tying up the belt, I would not expect that machine to run all right next day, and the next two weeks, without running off."

The witness Butler, who had operated this machine about eight months, was inquired of as to whether there was any difficulty in stopping the machine. He replied: “Hot when I took pains in shifting the belt; and shifting it properly; it would be shifted properly by giving it time to reverse on the upper pulley, the two pulleys at the same time; if you did not give it time, the chances would be that sometimes it would go back on the tight pulley and set the machine going; I should say that that would be the result of mismanagement in shifting the belt."

George Davis, who operated this machine subsequent to the injury for about a year, said: “It operated all right; when I did not properly stop this particular breaker on which Dingley was hurt, I had difficulty with the belt running from the loose to the fixed pulley; sometimes going home I would be in a hurry, and I would not shift the belt off entirely, and it would run on again; when I shifted it off entirely, I never had any trouble in its going back.”

How in the light of the evidence to which we have referred, it seems to be apparent that, assuming it to be true that the machine started on the three occasions testified to by Dingley, that the inference legitimately deducible from it is not that the machine was defective, but rather that in his haste to go home, of which acknowledgment is made, he failed to shift the belt entirely from the tight to the loose pulley, thus making it possible for it to run on again and start the machine in motion. Certainly that inference is the more reasonable and natural one to be drawn from the evidence considered as a whole, than would be one declaring that the machine was in some manner defective.

But if the one could be drawn as readily as the other, it would still be our duty'to affirm the judgment. McCarragher v. Rogers, 120 N. Y., 526; 31 St. Rep., 595, is not in conflict with the position here taken. The general term correctly points out one important difference between that case and this.

The judgment should be affirmed.

Bradley, J.,

(dissenting).—The burden was with the plaintiff to prove that the injury suffered by his minor son was occasioned by the negligence of the defendant, and without any contributory negligence of the person injured. The question is whether or not there was any evidence to support those propositions of fact. When the plaintiff’s son Joseph went into the defendant’s service he assumed the ordinary hazards incident to it, and the defendant undertook to use reasonable care in providing and maintaining suitable machinery and implements for his use, with a view to his protection against danger of injury from them while duly engaged in the work assigned to him. The boy was engaged in operating what may be termed a carding machine, which was propelled by power communicated to it and applied by means of a belt extending from a line of shafting to a pulley, and the method of stopping this machine was by pushing the belt on to a loose pulley. These two pulleys were close together, and the shifting from one* to the other was done with the hand.

It was his duty from time to time to clean out the apparatus, which he says he was required to do with his hands and for that purpose to get down under the card. While he was thus engaged on the occasion in question the machine started in motion, causing a severe injury to his hand and arm. Taking his statement as the fact, he was not chargeable with contributory negligence, but whether or not he was free from such negligence was a question for the jury. His evidence is to the effect that he shoved the belt on to the loose pulley; that the machine stopped, and before he proceeded to the cleaning beneath it the machine had remained passive for three or four minutes, he having in the meantime been engaged cleaning other portions of it. But that while he was down cleaning the lower portion of the apparatus the machine suddenly started up and caused the injury. The machine was then set in motion by the belt slipping or passing from the loose to the tight pulley by which it was operated. This being done without any manual aid tended to indicate that it was the result of some defective condition which caused the transmission of the belt from the one to the other pulley, assuming, as the evidence tended to prove, that it had been properly transferred by him to the loose one. And it may be accounted for by the fact that the alignment of the machine and gearing may have been or become disturbed and imperfect. The inference was permitted that such was the cause for the shifting of the belt and the consequence which followed. The machine was not fastened to the floor otherwise than by its own weight, nor were the other machines in the establishment. The fact that it may by its vibration have been moved sufficiently to place it out of the true line with the driving belt, and thus causing it to slip on to the tight pulley was not of itself sufficient to charge the defendant with negligence. But if the defendant had been advised that a like difficulty had existed, and that in consequence the belt was liable to* slip from the loose to the other pulley and put the machine in motion, it would seem that the duty devolved upon the defendant to use due care to prevent it, in view of the danger in which the employee might by such occurrence be placed while engaged in cleaning the machine in the manner the plaintiff’s son says he was required to perform that service.

There was evidence given on the part of the plaintiff tending to prove that sometime before this boy commenced work there, the belt had in like manner passed from the loose pulley to the tight one and set this machine in motion ; that the superintendent of the defendant was present on one occasion and saw it so operate, when ineffectual effort was made to cause the belt to remain on the loose pulley and prevent its slipping from it and starting the machine, and when it became necessary to tie up the belt; and that the superintendent then declared his purpose to fix it The injured boy testified that he had, at the time of his injury, received no information that the belt had before so slipped from one pulley to the other, or that it was liable to do so. Assuming, as we may, for the purposes of the question here, that the cause of the shifting of the belt, and thus starting up the machinery, was that before mentioned, a proper adjustment of the pulleys in line with it would have obviated the difficulty; and if, as evidence tended to prove, the defendant, through its superintendent, had notice that the machine was liable to be set in motion by the casual shifting of the belt for such cause,' it was the duty of the defendant to use due care to see that the machine retained its place, and that the proper adjustment of the belt in its line with and relation to the pulleys was maintained, or at least to advise the boy of the danger, that he might take the precautionary means requisite to his protection. And whether the injury to the plaintiff’s son was or not-occasioned by the negligence of the defendant in that respect was a question of fact which should have been submitted to the jury. Donahue v. Drown, 154 Mass., 21.

Evidence on the part of the plaintiff essential to the support of his action was contradicted by that on the part of the defendant The comparative weight of the evidence is not the subject of consideration here.

These views lead to the conclusion that the nonsuit was error, and that the judgment should be reversed and a new trial granted, costs to abide the event.

Judgment affirmed, with costs.

All concur, except Bradley and Vann, JJ., dissenting, and LANDON, J., not sitting.


author: Dykman, J.

text:
    The People ex rel. Andrew D. Baird et al., App’lts, v. G. Cochran Broome et al., Members of the Board of Supervisors of' Kings Co., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed September, 1892.)

    1 Election—Apportionment op assembly districts.
    The board of supervisors of a county is invested with full power to make the division of the county into assembly districts in the exercise of their discretion and clothed with full authority for that purpose, and their action is final and cannot be reviewed by the courts or controlled by mandamus.

    2. Same—City wards.
    The wards of a city are not towns within the meaning of the provision of the constitution prohibiting the division of towns in the formation of assembly districts.
    Appeal from order denying motion for a writ of -'eremotory mandamus.

      Jesse Johnson, for app’lts; M. Meyenburgh and W. C. De Witt, for resp’ts.
   Dykman, J.

This is an appeal from an order of the special term which denied an application for a peremptory writ of mandamus commanding the members of the board of supervisors to convene and divide the county of Kings into assembly districts in the manner required by the constitution and the statutes of the state.

It appears from the papers presented by the relators that the defendants met on the nineteenth day of July, and divided the county of Kings into eighteen assembly districts, but their action is challenged because the assembly districts made by them are unequal in population and are not in accordance with the requirements of the constitution and partially disfranchise a portion of the electors, and that towns were divided in the formation of the districts.

No attack is made upon the enumeration or the statute making the apportionment of assemblymen to the county of Kings.

The provision of the constitution involved is as follows: “The assembly shall consist of one hundred and twenty-eight members, elected for one year. The members of assembly shall be apportioned among the several counties of the state by the legislature as nearly as may be according to the number of their respective inhabitants, excluding aliens, and shall be chosen by single districts. The assembly districts shall remain as at present organized until after the enumeration of the inhabitants of the state in the year eighteen hundred and seventy-five.

“ The’ legislature, at its first session after the return of every enumeration, shall apportion the members of assembly among the several counties of the state in manner aforesaid, and the board of supervisors in such counties as maybe entitled under such apportionment to more than one member, except the city and county of New York, and in said city and county the board of aldermen of said city, shall assemble at such times as the legislature making such apportionment shall prescribe and divide their respective counties into assembly districts, each of which districts shall consist of convenient and contiguous territory, equal to the number of members of assembly to which such counties shall be entitled, and shall cause to be filed in the offices of the secretary of state, and the clerks of their respective counties, a description of such-districts, specifying the number of each district, and the population thereof, according to the last preceding enumeration, as near as can be ascertained, and the apportionment and districts shall remain unaltered until another enumeration shall be made as herein provided. No town shall be divided in the formation of assembly districts.”

There is no requirement for an arrangement of assembly districts which shall contain an equal number of inhabitants, and the silence upon that subject is more significant because the section as it stood previous to amendment did contain such a requirement in the following language :

“ Each assembly district shall contain as nearly as may be an equal number of inhabitants.”

The reason of the omission obviously was that the board of supervisors were invested with full power to make the divisions in the exercise of their discretion, and clothed with full authority for that purpose, and it would not be assumed that they would fail to secure equality.

The appellants claim also that towns have been divided in the construction of the election districts in violation of the constitutional interdiction, but the position is sought to be sustained by inference drawn from the contention that the wards of the city are towns of the county, and so fall within the inhibition against division.

Further, in this same connection, it may as well be stated that the boundaries of the city wards were changed by the common council on the 11th day of July, 1892, pursuant to chapter 455 of the Laws of 1892, and in the construction of the assembly districts-none of the wards as so changed and constituted were divided.

As to that, however, the appellant maintains that the statute of 1892 did not confer upon the common council the power to change the wards because they were towns of the county, and the power to alter them could not be delegated to the common council.

It will conduce to brevity and perspicuity to determine, first, whether the wards of the city are towns of the county within the meaning of the constitutional prohibition against division, for, if they are not such, then both arguments are faulty and will not prevail.

The argument of the appellant is based upon the provision of the constitution which forbids the division of towns in the formation of election districts, Section 5, article 3, and the provision of the statute that “ the said wards shall be considered and are hereby declared to be towns of the county of Kings.” Laws of 1892, ch. 57, § 30.

Towns, as political organizations, were formed early in the New England settlement with governments vested in a town meeting, and when that method became cumbrous, officers were chosen to administer the affairs of the town, and that was the mode from the first in the state of New York, and now they are practically corporations.

The people of the town elect their own officers to administer their own affairs independently of all other jurisdiction.

The towns and their town meetings have ever been deemed of paramount importance in the preservation of local self-government, and the great safeguard against centralized despotism, because they maintain inviolability in the parts without a sacrifice to the centre.

The legislature has clothed the wards with no powers of local self-government which are possessed and exercised by towns. They can neither incur corporate obligations, nor sue or be sued, nor exercise any of the' functions of a corporation.

Excepting supervisor and constable, they elect no officer whose duties are analogous to those of town officers. They possess none of the powers, and are subject to none of the liabilities of towns.

Perhaps the most distinguishing feature is the absence of the town meeting, which is essential to the autonomy of the town.

None of the statutes pertaining to towns have force or application to city wards.

We think, therefore, the wards of the city are not towns within the purview of the constitution and statutes under consideration, and that consequently there is no prohibition against the division of wards in the formation of assembly districts in Kings county.

If it had been the intention of the legislature to transfigure the wards of the city into towns in all that term implies, and clothe them with the powers and bestow upon them the privileges of county towns, it would have been easy to do so by the use of appropriate language, and in the absence of words indicative of such design we cannot infer such intention.

For what purpose a city ward is to be deemed a town except for the election of a supervisor and constables we cannot determine, but it is quite plainly a town in a very' limited sense, and not within the constitutional provision invoked by the relators.

We conclude, therefore, that the wards are not towns in any sense which exempts them from division.

Let us pause for a moment to examine the contention of the relator that the electors are partially disfranchised by the action of the defendants.

The exercise of the elective franchise has been called a right by some and a privilege by others, but whichever it may be it accrues in this way.

In this country all political power is vested in the people, but as the exercise of that power by the people themselves is impracticable, it must be exerted by representatives, under an organized government representing the collected will of the people, and as they are the agents of the people, the right to a voice in their selection is the right of every qualified elector and is his portion of political power.

It is the mode by which power eminates from its source, and is delegated to agents ; that delegation of power is called suffrage, and if the right of suffrage is ensured to every qualified elector, his rights are protected, because they have that extent and no more.

The right of suffrage is limited because the people limit themselves by their constitution, which regulates and restricts the right. It must be exercised at a specified time and place, and in a particular manner by certain persons, and the enforcement of such limitations and restrictions is not disfranchisement in any legal or constitutional sense.

If more electors vote for a representative in one district than in another, that impairs no right of suffrage. The aggregate number is chosen, and that seems the important aim.

In the formation of government it is important that all should be represented, and that end is secured by the constitution.

This view discloses no disfranchisement by the action under review.

Beyond the questions discussed, however, there is another view. The board of supervisors was required to assemble and divide the county of Kings into eighteen assembly districts of convenient and contiguous territory, and file a description of the same. The performance of the duty so imposed upon the board required the exercise of large discretion, bordering upon judicial power.

The duty has been performed, and the discretion has been exerted, and it is not made subject to any judicial control.

It is the office of a writ of mandamus to compel action by inferior bodies and tribunes, but it cannot be sent to dictate any particular action. It is not a remedy for erroneous determinations or decisions.

“ Where a subordinate body is vested with the power to determine a question of fact, the duty is judicial, and it cannot be compelled by mandamus to decide in any particular way, however clearly it may be made to appear what the decision ought to be.” People ex rel. Francis v. Common Council of Troy, 78 N. Y., 33.

Where, as in this case, a particular duty is addressed to the discretion and judgment of a particular body, in a case where the decision when made must be conclusive, and subject to no appeal or review, the rule must prevail which makes the decision final. Cooley Constitutional Lim., 5 ed., 52; Abrams v. Town Auditors, 10 St. Rep., 378; Talcott v. City of Buffalo, 125 N. Y., 280; 34 St. Rep., 871.

Finality must be reached somewhere. The machinery of government will not be arrested by the courts until all possible errors are subjected to judicial review. Its exigencies will admit of no such delay, and the writ of mandamus cannot be allowed to obstruct the movement of governmental action.

The board of supervisors has discharged the duties imposed upon it by the fundamental law; and as if to insure finality to such action, and as an admonition against judicial interference, the same great law which directs the action declares in the same section that “ the apportionment and enumeration and districts shall remain unaltered until another enumeration shall be made as provided.” Any other course would subject the discretionary action of all local officers and bodies to judicial review against well settled principles.

The constitution requires the members of assembly to be apportioned among the counties “as nearly as may be” according to their inhabitants, excluding aliens, and where a county is entitled to more than one member under such apportionment, the board of supervisors is required to divide their counties into assembly districts, to consist of convenient and contiguous territory equal to the number of members to which the county is entitled.

In such division contiguity and convenience are to be attained, and irregularity in territory and inequality in numbers are unavoidable. It cannot be made according to mathematical rules.

The constitutional requirement obviously implies the exercise of discretion by the boards of supervisors and not by the courts. If the courts can interfere and set aside the work of the boards because they have exerted their discretion unwisely, then they must exercise their own discretion and substitute their judgment for that of the boards in determining the division to be made, and so in effect wrest the authority from the body to which it was delegated by the fundamental law.

In the division of power among^the great departments of government in this state the legislative power is vested in the senate and assembly and the executive power is vested in the governor; and although it is not so expressly declared by the constitution, it is yet a well recognized principle that the judicial power has .been committed to the judiciary.

Each of these powers is independent of the other; a legislative discretion is no more subject to judicial review or control than a judicial discretion ts subject to legislative control. Both are independent in their sphere, and responsible to the people only for the manner in which they discharge their duties. It is important, therefore, that each should confine itself within the bounds of its legitimate authority.

In no view, therefore, can the relators succeed on this appeal, and the order should be affirmed, with ten dollars costs and disbursements.

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


author: Pratt, J.

text:
    Ophelia J. Cuthbert, Resp’t, v. Cordelia D. Chauvet et al., Resp’ts, and The New York Life Insurance & Trust Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed September, 1892.)

    Trustee—Testamentary—May be compelled to join in compromise by BENEFICIARIES OF LITIGATION OVER THE WILL.
    The court has power to compel a testamentary trustee to execute a compromise of litigations concerning the validity of the will entered into hy the beneficiaries, and the trustee cannot prevent such compromise and. settlement in order to he allowed to earn commissions.

      Appeal in an action of partition by the New York Life Insurance & Trust Company, as trustee under the will of Francis W. Lasak, deceased, from an order directing said company to become a party to a compromise agreement entered into by all parties interested in the property partitioned, except the appellant as such trustee. The facts of the case are as follows:
    This is an action to. partition real estate of which Francis W. Lasak died seized. He left him surviving four daughters, to wit: Ophelia J. Outhbert, Cordelia D. Chauvet, Victoria A. McKenzie, Antoinette L. Schermerhorn, and a granddaughter, Margaret S. Ives, his only heirs at law. He left a will by the terms of which he gave to the plaintiff one-third of his estate, to the Hew York Life Insurance & Trust Company, as trustee, "one-third thereof in trust for Mrs. Outhbert for life, and disposed of the balance of said one-third by a bequest to Albert Chauvet of $50,000, and the remainder to the Children’s Aid Society and the American Female Guardian Society and Home for the Friendless, and the remaining one-third he gave to said trustee in trust for Mrs. McKenzie for life, with the remainder to such children as she might leave her surviving.
    The will also contains monetary bequests to Mrs. Schermerhorn and Mrs. Ives in amounts, however, less than their share of the estate would be if Lasak had died intestate.
    The partially disinherited heirs instituted numerous actions of ejectment which are now pending for the purpose of defeating said will, and upon the trial of one of said actions of ejectment the jury disagreed as to the validity of said will.
    To escape further litigation all of the adults in any manner interested in the property of which Lasak died seized have reached a compromise by which the will was to be allowed to stand as to the personal estate, and be declared null and void as to the realty; the real estate partitioned and sold, and the proceeds divided and held in trust in certain specified proportions. The only other necessary party to such compromise agreement is the Hew York Life Insurance & Trust Company ‘ as trustee under said will, the only cestuis que trusts who have not signed such agreement of compromise being Clarence McKenzie, an infant, and such children as may hereafter be born to Mrs. McKenzie.
    On that state of facts Mrs. McKenzie in this action of partition presented to this court her petition asking authority and a direction to the said trustee to enter into said compromise. The court, after an examination of the facts, concluded that the said compromise would be beneficial to the said infant and to such unborn issue and directed the trustee to enter into said agreement.

      R. S. Emmet, for app’lt; Edgar M. Johnson and F. R. Minrath, for resp’t Cuthbert; Calvin Frost, in person; Charles F. Mac Lean, for resp’t Ives; Aaron Kahn, Christopher Fine and Robert Sewell, for resp’t Schermerhorn ; Geo. G. Reynolds, for resp’ts McKenzie et al.; Charles Donohue, for resp’ts Chauvet; F. A. Ward, guardian ad litem; F. B. Van Vorst, for Children’s Aid Society; Bartlett, Wilson & Hayden, for American Female Guardian Society.
   Pratt, J.

This is an appeal from an order made at special term, authorizing a settlement of various litigations between the parties and ordering the defendant, the New York Life & Trust Company, a trustee under a certain will, to execute a compromise made by the beneficiaries under said will.

The litigations were numerous and several trials in different courts have been had.

The contention that a trustee can prevént the settlement of litigations agreed upon by the beneficiaries in order to be allowed to earn commissions seems monstrous.

If a will is declared void it is the equivalent of no will and no trust or trustee.

The settlement was evidently greatly to the benefit of the beneficiaries, and it is sought to be prevented in order that the trustee may have fees it has not yet earned.

The power of the court to grant the order appealed from cannot be questioned. It is among the chancery powers devolved upon this court Bryan v. Knickerbacker, 1 Barb. Ch., 409, 428; Ireland v. Ireland, 84 N. Y., 321; see also note, 5 Abb. N. C., 353.

The propriety of the order cannot be criticised; here were parties of full age seeking to obtain what is concededly their own speedily and at a saving of great expense. See case of Wood v. Wood, 5 Paige, 596 and 607: approved in Leitch v. Wells, 48 N. Y., 599.

We think that the demand of the trustee for commissions upon property that has never come into its possession, and probably never will, is unreasonable.

It is clear, as stated in the order, that the trustee has had awarded to it all it deserves for services to the estate either as administrator or trustee, and no claim can justly be made that will prevent carrying out the settlement made by the parties.

Order affirmed, with costs and disbursements.

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


author: Cullen, J.

text:
    Belle J. Woodrick, App’lt, v. William Woodrick, Resp’t.

      (Supreme Court General Term, Second Department,

      Filed September, 1892.)

    Divob.ce—Evidence.
    In an action brought by a wife for a separation on the ground of physical violence and unfounded charges agninst her chastity, where the answer denies the ill treatment and asks for an absolute divorce, testimony by defendant as to statements made to him against the wife’s fidelity and of conversations with her on the subject is competent on the issue of ill treatment and cannot be legally excluded, even though it may tend to prejudice the plaintiff on the issue of adultery.
    Appeal from judgment of divorce in favor of defendant, granted after trial of the issues by jury.

      Patrick Keady, for app’lt; K. A. Monfort, for resp’t.
   Cullen, J.

The plaintiff instituted this action for a separation, alleging physical violence on his part and also unfounded charges by him against her chastity. The defendant denied the ill treatment and asked for a divorce, charging the plaintiff with adultery. The cause was tried before a jury who found the issue of adultery against the plaintiff. On this finding a judgment of divorce was granted to the defendant, and from that judgment this appeal is taken.

There was sufficient evidence to justify the verdict of the jury, and the judgment should not be disturbed unless there was error committed on the trial of the action. The main complaint of the plaintiff is that the defendant was permitted on the trial to testify to statements made to him against the wife’s fidelity, and also to ■conversations with her upon the subject. The defendant was, doubtless, an incompetent witness to prove his charge of adultery against the plaintiff. But the trial court in allowing the evidence expressly ruled that it was admissible solely on the issue of the ill treatment of the plaintiff, not on the issue of her adultery.

The evidence, doubtless, may have tended to prejudice the plaintiff’s case on the latter issue, but both issues were on trial, and if the testimony was competent on any issue we do not see how it could have been legally excluded. The true way to avoid the evidence going beyond its legitimate effect would be to try the issues separately.

The case seems strictly analogous to that of De Meli v. De Meli, 120 N. Y., 485; 31 St. Rep., 704. There the action was by the wife for a separation, and a counterclaim by the husband for a divorce for adultery. As the law stood at the time of the trial of that action the party charged could not testify in her own behalf to disprove the adultery. Yet the wife was allowed to testify in denial of the adultery, and the ruling of the trial court was upheld by the.court of appeals, on the ground that the testimony was competent on the wife’s own cause of action to show that the ■charge against her was made maliciously. So here, if the defendant made the charges against his wife wantonly, it was cruel treatment, but if the husband had reason to suspect the wife of infidelity, it is neither cruel nor inhuman to charge her with it.” Kennedy v. Kennedy, 73 N. Y., 369.

The plaintiff, in support of her own case, had testified to these accusations made by her husband. It might well have been that the jury would acquit the wife of adultery, and then, upon the •defendant, in answer to the plaintiff’s cause of action, would be cast the onus of showing that the charges were made by him on reasonable grounds. Upon this branch of the case he was a competent witness, and we do not see how he could defend himself unless he was allowed to show both what occurred between himself and his wife, and also what information he had received from others.

We, therefore, conclude that the testimony was properly received and that no error was committed by the learned trial judge.

The judgment appealed from should be affirmed, with costs.

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


author: Per Curiam.

text:
    The People, Resp’ts, v. James H. Phyfe, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed September, 1892.)

    Constitutional law—Laws 1892, chap. 711.
    Chap. 711, Laws 1892, providing that ten hours work in twelve hours-shall he considered a day’s work, and if employed longer the employee shall receive proportionate extra compensation, is not unconstitutional.
    Appeal from judgment rendered on conviction of a misdemeanor in violating the provisions of chap. 711, Laws 1892.

      Frank Loomis, for app’lt; W. Popham Platt, dist. att’y, for resp’ts.
   Per Curiam.

This is an appeal from a judgment of the Westchester oyer and terminer rendered on a conviction of a misdemeanor in violating the provisions of chap. 711, Laws of 1892. The defendant admitted the commission of the act charged in the indictment and offered no evidence in justification, resting his defense on the claim that the statute is unconstitutional and void. The parties being anxious to obtain the judgment of the highest court on the question have favored us with neither arguments nor briefs.

We, therefore, do not feel called upon to more than state briefly the conclusion we have reached and the reasons therefor without elaboration.

The presumption is in favor of the validity of legislative enactments. We think that the statute in question can be construed so as to render it constitutional and, if so, that construction should be given to it. The statutory penalty seems by § 4 confined to violations by corporations or their agents. We do not admit that in the case of corporations the control of the legislature is absolute. The franchise granted a railroad company is irrepealable and vested property. People v. O'Brien, 111 N. Y., 1: 19 St. Rep., 173.

At the same time, a railroad can be operated legally in this state only by a railroad corporation. 80 N. Y., 27.

As to other corporations, it may be that they must comply with any regulations the legislature may see fit to prescribe, or give up their corporate franchises (if any) as individuals. Railroad companies, however, do not seem to have this option. But the statute does not necessarily interfere with the private property rights of the company. It provides that ten hours work in twelve hours shall be considered a day’s work, and that if employed longer the employee shall receive “ comparative ” (proportionate ?) compensation for the extra service. The act does not prescribe what rate of wages shall be paid. The company may make such compensation as it sees fit and at which it is able to obtain employees. Nor does the statute prohibit making contracts otherwise than by the day. The company may employ by the “ job ” or “ piece ” or “ hour.” In this respect the case at bar differs radically from that of People v. Gillson, 109 N. Y., 389; 16 St Rep., 185. In fact it may be that the only effect of this statutory provision is to create a liability on a, contract which the law implies in the absence of an agreement between the parties to the contrary, and to punish a failure to discharge such liability. If this be the limit of legislative power, then such is the construction which should be placed upon the statute. This question could only be raised by evidence offered by the defendant to show that the employee'agreed to work the overtime without compensation or for a different rate of compensation than that prescribed by law. The question is not in the case now before us and we, therefore, decline to pass upon it

The conviction and .judgment thereon should be affirmed.

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


author: Lewis, J.

text:
    The People, Resp’ts, v. Anthony Cole, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

      1. False pretenses.
    Upon the trial of defendant, who was indicted for the crime of obtaining the signature of one H. as an endorser upon a promissory note by false pretenses, with intent to cheat and defraud him, it was properly left to the jury to decide whether the representations which defendant was shown to have made to H. were made for the purpose of inducing him to endorse the note, and with intent to cheat and defraud him, and whether they were false and calculated to deceive him.
    2. Same—Evidence.
    In such case, evidence of the procuring of H. to endorse other notes from time to time to a large amount, and which finally resulted in his financial ruin, is competent, as bearing upon the motives of the defendant in procuring the endorsement alleged in the indictment.
    Appeal from a judgment of conviction of the crime of obtaining a signature by false pretenses, rendered against the defendant at the Monroe county sessions, March 14, 1891, and also from an order denying the defendant’s motion to set aside the verdict, and for a new trial. .

      George A. Benton, dist. att’y, for resp’ts; Raines Brothers, for app’lt.
   Lewis, J.

The defendant was convicted at the Monroe county sessions of the crime of obtaining the signature of one George E. Harmon as an endorser upon a promissory note by false, pretenses, with the intent to cheat and defraud the complainant Harmon, under § 566 of the Penal Code.

The indictment fully and sufficiently states the acts the defendant is alleged to have done, which constitute the crime he was ■charged to have committed.

It will not be necessary nor profitable to rehearse the testimony adduced upon the trial tending to prove the allegations of the indictment. There was sufficient evidence to establish them. The devices resorted to by the defendant to induce the complainant to endorse the note as charged in the indictment, and also to endorse a large number of other promissory notes from time to time, were of such a character as to excite our surprise that Mr. Harmon was deceived by them. We should suppose that a person having had the experience in the affairs of the world Mr. Harmon was shown to have had would have at once discovered the fraudulent intentians of the defendant and would have seen that the transaction was a fraud and a sham. It is, however, a matter of history that, frauds are frequently and successfully practiced upon ordinarily intelligent people by devices and schemes which to the most of us-seem so transparently fraudulent as to excite our surprise that any one could be deceived thereby.

It does not lessen the criminality of the rogue that his victim, was credulous and unwary. The law is intended to protect all classes from the wiles of criminals. It was properly left to the jury to decide whether the representations which the defendant, was shown to have made to Mr. Harmon were made for the purpose of inducing him to endorse the note and with the intent to-cheat and defraud-him, and whether they were false and were calculated to deceive him. The procuring of Mr. Harmon to endorse-other notes from time to time to a large amount, and which finally resulted in his financial ruin, was competent evidence bearing upon the motives of the defendant in procuring the endorsement, alleged in the indictment. The evidence of the assignment made-by Harmon for the benefit of his creditors was competent as a part of the history of the case, though not of any great significance. The rule of law as to what was necessary for the People to prove to convict was fully and correctly stated to the jury in the charge of the court.

We find nothing in the record calling for a reversal of the conviction.

The judgment and order appealed from should be affirmed, and the proceedings remitted to the court of sessions of Monroe county with directions to proceed thereon.

Dwight, P. J., and Macomber, J., concur.


text:
    In the Matter of the Judicial Settlement of the Accounts of John E. Lee, Executor.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Will—Construction—Bequest of demands against legatee.
    Testatrix by her will bequeathed to L., who was named executor, “all debts, dues and demands of eveiyname, nature or kind soever I hold against L. and his wife," and, with a few small exceptions, gave all the residue of her estate to her infant son. Several years prior to the execution of the will, L. and wife gave a bond and mortgage of $1,200 to F., who assigned them to testatrix, and L. and wife conveyed the property so-mortgaged to C., subject to the mortgage. At the time of the execution-, of the will L. and wife were indebted to testatrix in various sums in addition to the bond. The entire estate amounted to about $6,000. Held, that the bequest to L. did not include the bond and mortgage.
    Appeal from a decree of the surrogate’s court of Allegany county, judicially settling the accounts of the executor of the will'of Carrie E. Dwight, deceased.
    The decree was entered February 9, 1892, and determined that the sum secured to be paid by a bond and mortgage given April 3, 1885, by John E. Lee, the executor, and his wife Emma A-Lee, to Edward J. Farnum, and by Farnum assigned to the testatrix, did not belong to the executor, and that he should account for the same as an asset of the estate.
    On the 11th day of July, 1889, Carrie E. Dwight, then residing at Wellsville, N. Y., made and published her last will and testament, and in the month of October following she died. The will was duly admitted to probate; it provided for the purchase of a lot in the cemetery, the erection of a suitable headstone, the payment of funeral charges, and expenses of administering the estate, the payment of her debts, and bequeaths her property as follows : “ I will, devise and bequeath to Effie Dwight my organ, family Bible, one set of silver teaspoons, one bed and bedding. 1 will and bequeath two oil paintings and willow rocking chair to Mrs. Nett Goff, of Potter county, Pa. I will and bequeath to my sister, Mrs. Nina Hulbert, all my wearing apparel. I will and bequeath to John E. Leo all debts, dues and demands of name, nature or kind soever I hold against him and his wife, my trunk, and any keepsakes he may wish. I will, devise and bequeath to my dear and beloved son, Joseph N. Dwight, my gold watch and chain, best bed room set and bed complete, silver plated knives and forks, and all the rest, residue and remainder of my estate, except the remainder of my household furniture, which is to be divided as my executor thinks best, or sold. In case the same is sold, the proceeds to belong to my son.” The will then provides for the appointment of a guardian to take charge of the property for the son, and invest the same, and pay to him - yearly, or oftener, the interest, for his education and support, and appoints John E. Lee-executor.
    Mrs. Dwight was, at the time of making her will and at her death, a widow. Joseph was her only child and only next of kin. Her estate was worth about seven thousand dollars.
    It appears by the decree entered, that after allowing for all the increase, the total amount of the property to be distributed, including the bond and mortgage in controversy, was $5,994.20.
    In April, 1885, Mrs. Lee and her husband, John E. Lee, gave-to Edward J. Farnham a bond conditioned to pay the sum of $1,200, and as collateral thereto gave a mortgage upon lands in Pennsylvania. In September, 1887, Farnham assigned the bond and mortgage to the deceased, who continued to own the same until the time of her death. In April, 1888, Mrs. Lee and her husband conveyed the mortgaged lands to S. E. Crittenden. Crittenden retained out of the purchase price of the land a sum equal to the amount of the mortgage with interest. On the 12th of April, 1889, Crittenden • paid to John E. Lee, as agent for the deceased, twenty-five dollars to apply upon the interest on the mortgage.
    Mrs. Lee was indebted to Mrs. Dwight at the date of the will in the sums of $170 and $53, in addition to her indebtedness-upon the bond aforesaid. Mr. Lee owed the deceased at the time of her death seventy-five cents. There was unpaid upon the; bond and mortgage at the date of the inventory $1,246.

      Caleb S. Hall, for app’lt; Clarence A. Farnum, for resp’t.
   Lewis, J.

The question is, were the bond and mortgage included in the bequest to John E. Lee?

It is true, as contended by the appellant’s counsel, that the language of the will is sufficiently broad to carry the bond and mortgage to Lee, but we are at liberty in giving construction to this provision to look at th^ surrounding circumstances, the situation, condition in life of the testatrix, the amount of the -estate, and the condition of those naturally dependent upon her bounty.

Where there are two equally probable interpretations of the language of a will, “ that one is to be adopted which prefers the kin of the testator to strangers." Quinn v. Hardenbrook, 54 N.Y., 83 ; Wood v. Mitcham, 92 id., 375.

Words in general, whether technical or popular, are to be taken in their plain and usual sense unless a clear intention to ■use them in another sense can be collected and that sense as■certained. Schouler on Wills, § 472.

A broad or restricted meaning may be given words to arrive at the intention. The terms that are used in a will are to be construed according to the ordinary acceptation of language in the transactions of mankind. Williams on Executors, § 1080.

The bequests to Effie Dwight, who we assume was a relative of the deceased, and to her sister and Mrs. Goff, were of small value.

She was providing in her will for the education and support of her only child, twelve years of age. The amount that she could leave him in any event was small; his welfare was undoubtedly the chief thing she had in mind. Mo reason appears why she should give to Mr. Lee, who, so far as appears, had no claim upon her bounty, nearly one-fourth of her entire estate. Had she intended to bequeath to Lee the bond and mortgage she would naturally have mentioned them specifically. A person learned in the law would-have understood that the words used included the bond which represented the indebtedness and carried the -mortgage given as collateral to it, but it may well be doubted if Mrs. Dwight so understood it.

Mrs. Dwight knew that the real estate upon which the mortgage was a lien had been transferred to Crittenden. He had, "three months before she made her will, paid interest thereon to Mr. Lee, the testatrix’ agent. We assume that he paid it to Mrs. Dwight, as it was his duty to do. Knowing that Critten■den had purchased the land upon which her mortgage was a lien, .and that he intended to pay the mortgage, she undoubtedly had been informed that he had retained from the purchase price a sum equal to the amount of the mortgage, under the circumstances she would naturally.look to him as the person to pay the mortgage and not to Mr. and Mrs. Lee. The language used in the be•quest to Lee, to the comprehension of a person in- the station of life of Mrs. Dwight, would include only the indebtedness of Mr. and Mrs. Lee mentioned, amounting to $200, and a small amount ■due from Lee. As she intended to make Mr. Lee the executor of lier will, she was willing to forgive him and his wife their- indebtedness to her, but had not in mind, we think, to include the= bond and mortgage. Such a purpose on the part of the testatrix would excite surprise and inquiry as to her reasons, for giving so large a proportion of her estate to one having, so far as appears, no, claim upon her bounty, to the detriment of a son whose welfare we must assume was a matter of solicitude to her.

This construction makes the plan and purpose of the will harmonious.

The construction given to the will by the surrogate meets with our approval, and the decree appealed from should be affirmed,, with costs to the respondent, to be paid out of the estate.

Dwight, P. J., and Macomber, J., concur.


text:
    George W. Crouch, Jr., App’lt, v. Gustave Muller, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 21, 1892.)

    Contract—Order guven by contractor—When not notice to owner-
    A building contractor gave to plaintiff an order on defendant for a sunn of money due to him on his contract. The order was presented to defendant, who was a German and unable to read or understand English, and he was informed simply of its amount, that it was an order and he should sign it to secure the moneys therein mentioned to plaintiff. , He was not. informed as to the fund it was drawn against. Held, that this was not such notice to defendant of an assignment of moneys due or to grow due on his contract as bound him to withhold payment from the contractor or, in default of so doing, to pay so much of his debt a second time.
    Appeal from a judgment entered upon a verdict directed by the court at the Monroe circuit, February 23, 1892.

      C. F. Dean, for app’lt; George F. Yeoman, for resp’t.
   Lewis, J.

This case, in its essential features, is the same as; when it was before this court upon a former appeal.

It was then held, opinion by Dwight, P. J., that it was incumbent upon the plaintiff to show, in order to recover anything beyond the sum remaining in the defendant’s hands, to wit, $153.90,, notice to the defendant of the drawing of the order by Schenck, its amount, and that it was payable out of the moneys due or to-grow due from the defendant to the contractor Schenck.

The plaintiff, on the second trial, pfoved a notice to the defendant of the drawing of an order and the amount thereof, but failed; to show that it was drawn upon any fund.

The testimony of both Babcock and Miller tends to show that, the defendant was not informed that the order was on any particular fund, but, on the contrary, they testify that the defendant, was told that it was an order drawn by Schenck upon the defendant generally.

. The defendant could neither read English nor understand it, when spoken. He understood that the paper presented to him . was a promissory note, which they wished him to sign.

Defendant testified, as a witness called by. the plaintiff, that Babcock read it (the paper) and Miller translated it into German, but as he did not understand what Babcock said yhen reading the paper, and does not testify what Miller said when translating the paper, and as he testifies that he understood it to be a note for a thousand dollars which they wanted him to sign, the case was left without any evidence of notice to the defendant that the paper was an order upon the fund mentioned. If it was simply a general order, to bind the defendant, it was necessary to bind him that he should accept it in writing. Brill v. Tuttle, 81 N. Y., 457; Crouch v. Muller, 37 St. Rep., 325.

The direction of the verdict for the sum of $173.95 only, being the amount unpaid upon the contract, was right, and the judgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.