text:
    CELESTIA MEEKER, Administratrix, and HENRY MEEKER, Administrator, with the Will annexed, of the Estate of SAMUEL DAILY, Deceased, Appellants, v. CORDELIA WRIGHT and NELSON WRIGHT, Respondents.

      Convey anee to husband and wife — power of husband to sell to wife — mortgage by wife ■ to husband.

    Certain real estate having been conveyed to a husband and wife jointly, the former conveyed the same to the latter, who gave hack to him a mortgage for the consideration-price thereof. After the death of the husband his administrator brought this action ^to foreclose the mortgage. Held,

    That the deed from the husband to the wife was void at law.

      That in any event it conveyed only the interests of the husband and wife during their joint lives, and that the same and no greater interest passed to him by the mortgage executed by the wife.
    Appeal from a judgment in favor of the defendants, entered upon the trial of this action at a Special Term.
    This action was brought by the plaintiffs, as administrator and administratrix, with the will annexed, of the estate of Samuel Daily, deceased, to foreclose a mortgage executed by the defendant Cordelia Wright (then Cordelia Daily) to the said Samuel Daily, in his lifetime, upon lands in the town of Coventry, in the county of Chenango.
    At the time of the execution of said mortgage the defendant Cordelia and the said Samuel Daily were husband and wife.
    The mortgage was executed by the defendant Cordelia April 1, 1870, to secure a portion of the purchase-money on the conveyance to her by the said Samuel Daily of the premises .described in the said mortgage.
    The piece or parcel of said land described in said mortgage and also in said deed was conveyed to the said Cordelia Wright, then Cordelia Daily, and the said Samuel Daily, by Clarissa Smith, the mother of the said Cordelia, September 22, 1865, said Cordelia then being the wife of said Samuel Daily.
    The action was brought to trial at a Special Term of this court held at Norwich, New York, August 25, 1875, before Mr. Justice Murray, who, on the twenty-eighth of August thereafter, rendered his decision, whereby he ordered judgment that the complaint be dismissed, with costs to be paid out of the estate of the deceased.
    From the judgment entered upon said decision this appeal is had.
    0.. 77. Kellogg, for the appellants.

      William H. Hyde, for the respondents.
    The husband and wife took as tenants of the entirety, being but one person in law, and both the deed and mortgage were void. (Blackstone’s Commentaries [Cooley], vol. 1, book 2, 182; 5 Term R., 654; Hoe v. Parrot, 2 Yernon [Chancery], 120; Grenelefs Gase, Coke’s R., vol. 4, part 8, p. 284; Green v. King, 2 Black. R., 1211; Gase of Alton Woods, Coke’s R., vol. 1, part 1, page 76, note [E. 1], and cases cited; 2 Kent’s Com, pages 118, 119 [10th ed.]; Co. Litt., 137; 2 Yern., 120; Jackson v. Stevens, 16 Johns. R., 115; see, also, Rogers y. Benson, 5 Johns. Ch. R., 431; Barber v. Harris, 15 Wend., 611; Jackson v. McConnell, 19 id., Ill; Sutleffv. Forgey, 1 Conn., 89 ; Doe v. Howland, 8 Cow., 283; Torrey v. Torrey, 14 N. Y. [4 Kernan, 430]; Goelet v. Gori, 31 Barb., 314; Farmers and Mechanics' Hational Bank of Rochester v. Gregory, 14 Barb., 162; Freeman v. Barber, 3 N. Y. Slip. Ct. R., 515, decided 1814; Dwvn v. Hornbeck, 14 N. Y. Sup. Ct. R. [1 Hun], 629 ; Beach v. Hollister, 5 N. Y. Sup. Ct. R., 511, decided 1815 ; Dimer v. Dimer, 56 Penn., 106; McDuff v. Beauchamp, 50 Miss., 531; Fisher y. Brovin, 25 Mich., 350; Ketcham v. Wadsworth, 5 Wis., 102; Shorn y. Hearsey, 5 Mass., 521; reaffirmed, Wales v. Coffin, 13 id., 215; Damis y. Clark, 26 Indiana, 428.)
   Learned, P. J.:

The deed from Samuel Daily to Cordelia, his wife, was void at law, because made directly to her. (White v. Wager, 25 N. Y., 328; Winans v. Peebles, 32 id., 423.)

It was void, also, for another reason. The husband and wife held the land as one person. They were both necessary to make one grantor, and the deed of one without the other was merely void. (Doe v. Howland, 8 Cowen, 277; Jackson v. Stevens, 16 Johns., 115 ; Jackson v. McConnell, 19 Wend., 175 ; Torrey v. Torrey, 14 N. Y., 430.)

The old rules as to the effect of a conveyance to husband and wife are not affected by the married-women acts. (Farm, and Mech. Bank v. Gregory, 49 Barb., 155.) The husband, it is true, was entitled to possession during their joint lives ; and it is said that he might alien their interests during their joint lives. But his conveyance could have no further effect. If the deed, then, of Samuel Daily to some third party would have conveyed only the interests of the husband and wife during their joint lives, his deed to his wife could have had no greater effect. The same may be said of the mortgage of Cordelia Daily to Samuel. Even assuming that his deed conveyed, in equity, the right of possession during their joint lives; still, as to the remainder, after their joint lives, it was necessary that both should unite in a conveyance. (Doe v. Howland, ut supra.)

Tbe estate which she had, by virtue of the conveyance to her and and her husband, was in no sense her separate estate. By the married-women acts she could not take from her husband a separate estate. (Laws of 18á9, chap. 375.) We are not called on, therefore, to decide whether her mortgage, not acknowledged according to the statute applicable to married women, was valid.

This does not seem to.be a case in which any equitable considerations should induce the court to sustain conveyances which are not valid at law. It is sufficient to hold both the deed and mortgage to have been binding in equity, on the interests of the parties, husband and wife, for them joint lives. These interests have been terminated by his death; and neither deed nor mortgage affected the title by survivorship. The present estate of Cordelia Daily (now Wright) is that which she took by virtue of the original conveyance to her and her husband. What she mortgaged to Samuel Daily was that which passed to her (in equity) by his conveyance — that is, the estate for their joint lives.

The judgment of the court below was correct, and should be affirmed, and the motion for a new trial should be denied, with costs.

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

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. -I.:

license: Public Domain

text:
    NANCY A. HILL, Appellant, v. WARREN HANFORD, Guardian, Respondent.

      Step-fatJier — right to chrn'ge fo'i' support of step-son — Pension.

    A widow, at tbe time of her remarriage, was entitled, as the guardian of a child seven years old, to receive a pension for him of about seventy-five dollars per year until he arrived at the age of sixteen. It was agreed that the child should live with the step-father, and it was understood between the step-father and mother that the pension should be given to the former for the support of the boy. The pension was accordingly given by the mother to the step-father and the boy was supported by him until after he arrived at sixteen years of age, after which he voluntarily left him.
    In an action by a new guardian of the boy to compel the mother to account for the pension received by her, held, that she was entitled to be credited with tbe reasonable value of tbe support and maintenance of tbe boy while be lived witb tbe stcp-fatber.

      Williams v. Hutchinson (3 N. Y., 317) distinguished.
    Appear from a decree entered in the surrogate’s court of Tompkins county, upon a final accounting.
    Nancy A. Hanford, the widow of Irus Hanford, and the mother and general guardian of Charley Hanford, when Charley was seven years old, married Wesley F. Hill. Charley was entitled to a pension, commencing at that time and continuing till he was sixteen. She received that pension, as his guardian, every six months. He is now over sixteen, and, by a new guardian, asks an accounting for this money, in all $659.83. She charges him for board and education furnished by Mr. Hill. The surrogate disallowed the charge, and she appeals.
    It appears that before the marriage, and before the boy went to live at Mr. Hill’s, the mother said to Mr. Hill that she would like to keep the boy with her, and he said he was willing to do this. She then brought the boy from her sister’s, where he had been. Afterwards, when she was appointed guardian and Mr. Hill signed her bond, she said, or it was said in her presence, that he was safe in signing the bond, because he would have the pension money to pay for taking care of the boy till he was old enough to work and support himself. Mr. Hill bought and paid for the boy’s clothing during all the time that he lived with Mr. Hill and till he went away of his own accord; and Mr. Hill boarded and supported him. Mrs. Hill was accustomed to hand the pension money to Mr. Hill, as it was received.
    Mr. Hill testified that his wife paid him at the rate of twelve shillings per week for the boy’s board and clothing; but he adds that there was no arrangement between him and his wife about the money being paid for the support of the child. He did not keep an account against the boy because, as he says, he took the boy as his own to bring up. He lived on a farm. Mrs. Hill testifies that she gave this money to her husband to board and clothe the boy.

      Jerome Howe, for the appellant.

      Kmg c& Montgomery, for the respondent.
   Learned, P. -I.:

The surrogate disallowed the guardian’s claim on the authority of Williams v. Hutchinson (3 N. Y., 317) and of similar cases. These cases hold that, in the absence of express agreement, if a stepfather takes a step-child into his family and educates and supports him as his own, the law will imply no promise on either side; neither on the child’s part to pay for his support and education, nor on the father’s part to pay for services rendered.

But the present question is different. It arises between the guardian and the ward. The question is whether she was justified in appropriating his income, as received, to the compensation of the step-father.

Now Mr. Hill knew that the ward was entitled to this income. When the mother was appointed guardian, Mr. Hill was told that he would have the money to pay for taking care of the boy until he was old enough to pay for himself. And so, as a matter of fact, he did receive, every six months, this money from the guardian. It is not necessary, therefore, as in the other class of cases, to imply any promise to pay the step-father. Because, in fact, the guardian has been paying him, from time to time, as this support has been rendered. And there is no evidence that the money was received by him in any other way than on account of the support which he was furnishing.

It is true that Mrs. Hill says that it was a part of the consideration of the marriage that Mr. Hill was to take the boy and treat him as one of his own family. But this is explained by the statement, subsequently made, that Mr. Hill would have the pension money, or what was necessary, to pay for taking care of him. If Mrs. Hill had not married, she would undoubtedly have applied all this pension money, of abont seventy-five dollars per annum, to the support of this boy. It was not unreasonable, when Mr. Hill married her and took into his family this boy, then seven years old, that both Mr. Hill and the mother should take into account the fact that this pension money would help to compensate him during the boy’s younger years.

In the case of Sharp v. Cropsey (11 Barb., 221) the doctrine of Williams v. Hutchinson (ut supra) is again laid down. It was held that the step-father could not recover against the step-son, under similar circumstances, for support. But it also appeared in that case that the court of chancery allowed the step-father and mother maintenance for the infant, out of his property, during a part of his minority. And so, in the present case, it seems to me that there is evidence that the guardian, who had control of the ward’s property, did in fact apply it, from time to time, to the payment of the support' furnished by Mr. Hill, as far as should be necessary. There may have been no definite agreement, but such is the fair understanding from the circumstances. And the application was just what was done by the court of chancery in the case last cited.

For these reasons, I think that the reasonable value of the support and maintenance should have been allowed, and that the decree should be reversed and the matter sent back to the surrogate to ascertain, determine and allow the same.

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

Decree overruled and matter sent back to surrogate to settle.


author: Per Cv/ria/m:

text:
    SYLYESTER M. BEARDS and others, Appellants, v. JOHN A. WHEELER, Respondent.

      Offer of judgment— Code, § 385 — when fraudulent.

    A judgment obtained upon an offer made by a defendant under section 385 of the Code win not be held fraudulent, where no actual fraud is shown, simply because it was entered by the consent of the defendant, with intent to give priority to the plaintiff therein, even though the defendant was at that time insolvent to the knowledge of the judgment creditor.
    Appeal from au order denying a motion to set aside certain judgments in favor of the defendant and the executions issued thereon, on the ground that they were fraudulent, as against the plaintiff.
    John A. Wheeler became indebted to Beards & Co. in about the sum of $784.76, evidenced by five promissory notes. Two matured October 26, 1876, and three afterwards, and prior to December 1, 1876. October 26, 1876, Beards & Co. brought an action in the Supreme Court against Wheeler to recover a judgment upon the first two notes. Between November 3 and November 9,1876, four actions were brought by different plaintiffs against Wheeler for the recovery of debts, in which actions Wheeler appeared by attorney and offered to compromise, pursuant to section 385 of the Code. These offers were made, accepted and judgments entered on the day of the commencement of the actions, except in one case, which was but three or four days after its commencement. Executions were immediately issued upon the judgments and delivered to the sheriff of Schuyler county and a levy made upon the property of Wheeler.
    At this time Wheeler was insolvent, which the plaintiffs in the four actions then knew, and also knew of the action of Beards & Co. The four actions were commenced, judgments recovered and executions issued, with the intent by the plaintiffs to gain, and by Wheeler to give, a priority over the judgments thereafter to be recovered by Beards & Co.
    November 16, 1876, Beards & Co. recovered judgment against Wheeler by default. December second they recovered a second judgment, and December 23, 1876, a third, upon which executions were immediately issued to the sheriff of Schuyler county. Wheeler’s property being insufficient to pay all of the executions, Beards & Co. ask for an order that the four judgments recovered upon offers of compromise and the executions issued thereon be set aside, or at least postponed, until after the payment of the executions of Beards & Co.,, upon the ground that the recovery by compromise, with the intent of the parties to give priority, is fraudulent.
    It is not claimed that the causes of action upon which the four judgments were recovered are fraudulent, or that there was any fraud between the parties except the agreement to give preference in this way with full knowledge of Beards & Co.’s action and Wheeler’s insolvency.
    The following opinion was delivered at the Special Term:
    Follett, J. Two methods of obtaining judgments by the consent of defendants were provided by the old practice upon warrant of attorney, and upon cognovit actionem. (2 Chitty’s Archbold’s Pr. [12th ed.], 942; Graham’s Pr. [2d ed.], chap. 4.) The Code has substituted judgment by confession for the first and judgment upon offer to compromise for the second. (Ross v. Bridge, 24 How., 164.)

      There is much force in the argument that judgment upon offér to compromise was intended to afford a method whereby defendants, finding themselves without an available defense to the whole or some part of the claim, sought to be recovered by actions commenced without their concurrence, and with the intent on the part of the plaintiffs to reach a judgment by the usual processes incident to an action, might offer to compromise, and thereby save further costs: and that judgment by confession is the method provided for reaching a judgment by the mutual consent of the parties. If such were the law the rights of creditors would undoubtedly be better protected, the Code providing, in cases of judgment by confession, for filing a statement, verified by the defendant; stating concisely the facts out of which the cause of action arose, thereby giving creditors some means of information as to the good faith of the transaction.
    By using an offer to compromise, a judgment may be recovered upon the most general of complaints, for money loaned, or goods sold, and without the support of an affidavit by any person. The inspection of such a roll affords little information to an inquirer as to the good faith of a transaction.
    The objections to this use of an offer to compromise are cogently stated by Allen, J., in Bridenbeclcer v. Mason (16 How., 205, 206), but the learned justice did not feel authorized to set aside a judgment so obtained as á fraud upon the proceses provided by law or the rights of subsequent judgment creditors.
    The entry of judgments upon cognovit, is an ancient practice, and many have been entered under circumstances similar to those disclosed in this ease, but no precedent has been found for setting aside a judgment so obtained because of the use of this method resulting in preferring one creditor to another.
    In Boss v. Bridge (24 How., 164) it is said: “ There can be no doubt that the court has the right to set aside a judgment entered upon an offer of judgment, and would exercise it in a case in which it should be made to appear that such a proceeding was taken collvrsi/veby between the plaintiff and defendant for the purpose of evading the provisions of sections 382 and 383.”
    It is evident the learned justice did not mean quite what his language may be construed to imply; for, though the facts as disclosed by the report were similar to those in the case at bar, the court refused to set aside the judgment. “ Collusively,” as used in the paragraph quoted, must refer to some deceitful act suffered or done, other than the recovery of a judgment by offer to compromise. Giving priority to one just debt over another, has always been permitted by the law of this State, and though the method adopted to effect the preference may not have been the most satisfactory, still, it having been sanctioned by the practice of many years, it cannot, on account of the method employed be declared fraudulent.
    The case does not fall within section 1 of title 3 of chapter 7, part 2, Revised Statutes. (2 R. S., 137.)
    The motion is denied, with costs.

      M. M. Mead, for the appellants.
    /S’. O. Keeler, for the respondent.
   Per Cv/ria/m:

The only question is whether a judgment obtained by offer of the defendant, under section 385 of the Code, should be held to be fraudulent as against subsequent judgment creditors, simply on the ground that it was really a judgment obtained by consent of the defendant. It is not claimed that there was any actual fraud.

We think the opinion of the Special Tenn is satisfactory, and we need add nothing to it.

The order is affirmed, with ten dollars costs and printing disbursements.

Present- — ■ Learned, P. J., Bocees and Boakdman, JJ.

Order affirmed, with ten dollars costs and disbursements.


author: Learned, P. J. :

text:
    CATHARINE WOOD, as Administratrix, etc., of JOHN WOOD, Deceased, Plaintiff, v. THE INCORPORATED VILLAGE OF ANDES, Defendant.

      Oontributory negligence — what sufficient to establish.

    This action was brought to recover damages for the death of plaintiff’s intestate, occasioned by his falling from a bridge alleged to have been left out of repair by defendant. It appeared that he started to cross the bridge, which was out of repair, on a dark rainy night in winter when very much intoxicated; that he was warned that the bridge was unsafe, and that there was another bridge which he could have crossed, which was safe, and within a few feet of the one from which he fell.
    He was found dead on the ice in the morning, no evidence as to the manner of his fall being given. Held, that the facts found showed him to have been guilty of contributory negligence and that plaintiff was not entitled to recover.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff.
    The action- was brought to recover damages for the death of the plaintiff’s intestate, occasioned by his falling from a bridge which the defendant had allowed to remain out of repair.
    It appeared that there were three bridges crossing-the stream at this point, the middle one, a new double-track bridge, and on each side of this a foot bridge, the upper one (from which the accident occurred) being separated from the main bridge by a space of five feet and ten inches and having no guard or railing. On a dark night of January when it was raining and hailing together, the deceased while very much intoxicated, started to cross the stream after having been warned and notified that the foot bridge was not safe to cross. In the morning he was found on the ice near the bridge in question under circumstances that tended to show that he had fallen therefrom.

      F. Jacobs, Jr., for the plaintiff.

      John A. Scott and W. H. Johnson, for the defendant.
   Learned, P. J. :

In Reynolds v. New York Central and Hudson River Railroad Company (58 N. Y., 248) the Court of Appeals decided that, in this class of cases, it was necessary to a recovery that it should be affirmatively shown, by direct proof, given by the plaintiff, or from the circumstances, that the injured party was not guilty of contributory negligence; and that, where there was no evidence whatever on that point, the plaintiff could not recover.

Applying that principle to this case, we must hold that the plaintiff should have been nonsuited, for there was no evidence showing that the intestate had not been negligent. As in the Reynolds Case, so here, the deceased was found dead, and there was no proof that his own negligence had not contributed to the act.

Put the present is a still stronger case; the plaintiff’s intestate, at the time of the accident, is proved to have been very much intoxicated, and there is no contradictory evidence on that point. It is also proved that he was warned that the bridge was not safe; and this is not disputed. It also appears that there was another bridge which was safe, and which was within a few feet of that from which the accident happened. No necessity, therefore, compelled him to cross that from which he is supposed to have fallen. In crossing it after he had been warned of the danger, and while he was intoxicated, and when he could have safely crossed on another bridge, a few feet below, he was proved, affirmatively, to have contributed, by his own negligence, to the accident.

Without, therefore, passing on the question as to the defendant’s liability, under other circumstances, for the alleged imperfections of the bridge, we think, for the reason above stated, that there must be a new trial, costs to abide the event.

Present- — -Learned, P. J., Bocees and Boardman, JJ.

Motion for new trial granted, costs to abide event.


author: Leajrned, P. J.:

text:
    LE ROY MOWRY, JOHN T. MASTERS and WARREN BRIGGS, Appellants, v. JESSE K. SANBORN, Respondent.

      Foreclosure by advertisement— 2 S. S., 547, § 14 — defeats in affidavits required by— commot be supplied by parol evidence.

    Under the provisions of the Revised Statutes providing for the foreclosure of mortgages hy advertisement, defects in the affidavits, required hy section 14 (2 R. S., 547), cannot he supplied by parol evidence.
    Defects in other affidavits required'in such proceedings, e. g., the affidavit of service of notice upon the mortgagor, may he so supplied.
    Such affidavits are to he strictly construed.
    Appeal from a judgment in favor of tbe defendant, entered upon a nonsuit directed by the court.
    Tbe action was commenced March 16, 1871, to. recover .the possession of certain real estate in tbe village of Sandy Hill. The plaintiffs claimed title to tbe premises by virtue of a conveyance from tbe Washington County Bank, which bad purchased them at a sale bad under tbe foreclosure of a mortgage given to it by tbe defendant, dated July 7, 1857. Upon the first trial, in 1871, tbe plaintiff introduced in evidence a deed of tbe premises from George Bradley to tbe defendant, dated in 1852, and a mortgage thereof from him to tbe president of tbe bank, and also affidavits and papers showing tbe foreclosure of this mortgage by advertisement, and tbe conveyance of tbe premises to tbe bank and from it to' tbe plaintiff. Judgment was entered in favor of tbe plaintiff, which was affirmed at tbe General Term (62 Barb., 223), but subsequently reversed in tbe Commission of Appeals (65 N. Y., 581), on tbe ground that the' affidavit of service of notice of tbe foreclosure upon tbe mortgagor was defective, in that it stated that tbe deponent served tbe notice upon him by depositing it in tbe post-office, addressed “ Jesse K. Sanborn, Sandy Hill, Washington county, N. Y.,” and that “ at that time each of said persons resided, as this deponent is informed and believes, at tbe respective places to which their said notices were so addressed; ” tbe Commission of Appeals bolding that tbe affidavit did not furnish presumptive evidence of service, and that to have that effect tbe affidavit must be of a person who speaks from personal knowledge as to the residence of the persons served, mere knowledge and information being insufficient. The action was again tried June 29, 1875. Upon this trial the plaintiffs were allowed, against the defendant’s objection and exception, to prove by parol, in connection with the affidavits of service, that the mortgagors did in fact reside at Sandy Hill, N. Y., at the time of the mailing of the notice. Upon an appeal from a second judgment in favor of the plaintiff, the General Term reversed it on the ground that this evidence was inadmissible. (7 Hun, 380.) Upon a further appeal to the Court of Appeals the latter court decided that oral evidence was admissible for this purpose, and directed a new trial.
    Upon the third trial it was claimed by the defendant that the affidavit of publication was defective. The following 'is a copy of the affidavit, viz.:
    “ State oe New York,

      “Washington Cownt/y,
    “John EL Waterbury, of the town of Greenwich, county of Washington and State of New York, being duly sworn, deposeth and saith that he is the foreman of the printer of the newspaper called the People’s Journal, a public newspaper printed and published in the county of Washington, where the premises described in the annexed printed notice of sale or a part thereof are situated. Deponent further says that the notice of the mortgage sale, of which a printed copy is hereto annexed, was published for twelve weeks successively, at least once in each week prior to the time specified in said notice for the sale of said premises, said publication having been commenced on the 23d day of April, in the year 1868, and continued for twelve weeks, at least, successively, at least once in each week.
    “ JOHN M. WATERBURY.
    “ Subscribed and sworn to before me,' and certified by me, this 17th day of ►
    July, 1868,
    “ Jambs I. Lourie,

      “Wota/cy Public.”
    Defendant’s counsel objected to the affidavit, on the grounds that the affidavits of publication and sale were made before a notary public, and sucb affidavits could only be made before a judge of a court of record, a commissioner of deeds or justice of tbe peace; tbat tbe affidavit of publication does not sbow or state any publication of tbe notice of sale in any public newspaper or in any newspaper, and does not sbow or state tbat tbe notice of sale was published in tbe newspaper called tbe People’s Journal; tbat there is no sufficient affidavit to sbow any publication of notice of foreclosure or sale, and there is no affidavit on tbat subject tbat complies with tbe statute in tbat respect. Plaintiffs’ counsel offered to sbow by parol evidence tbat tbe publication referred to in tbe affidavit was in fact made in tbe People’s Journal, tbe paper referred to in tbe affidavit.
    Defendant’s counsel objected to tbe evidence offered upon tbe ground tbat it was incompetent and inadmissible. Tbe court sustained tbe objection, and plaintiffs’ counsel duly excepted.

      Samuel Hand, for tbe appellants.
    Tbe affidavit of "Waterbury is sufficient proof of publication. (Judd v. O'Brien, 21 N. Y., 186; George v. Arthur, 2 Hun, 406; Oandee v. Burke, 1 id., 546; Howard v. Hatch, 29 Barb., 297; Baloom, J., 62 id., 223-229.) Tbe affidavit being required to be made by tbe foreman of tbe printer of tbe newspaper in which tbe notice was inserted, and to state tbe fact merely of publication, tbe statute was complied with, and any proof to identify tbe affiant as sucb printer, or tbe People’s Journal as tbe newspaper in which tbe publication :vs|as made, if necessary, was proper and should have been admitted. (See Bocees, J., Mowry v. Sanborn, 7 Hun, 384; see Baloom, J., 62 Barb., 223 ; Dwight v. Phillips, 48 id., 116.)

      Hughes <& Northup, for tbe respondents.
    A foreclosure of a mortgage is a statutory proceeding, and tbe statute must be strictly pursued, and an omission to comply with any of its material requirements will render tbe foreclosure irregular and void. To be a valid foreclosure it must be “conducted as herein prescribed.” (Lawrence v. Farmers', etc., 13 N. Y., 200; Lockett v. Dili, 1 Wood’s O. C. R., 552; Potter’s Dwarris, Rule 21, p. 146 ; Powell v. Tuttle, 3 N. Y., 396, 401; Sharp v. Spear, 4 Hill, 76, 84; Thatcher v. Powell, 6 Wheat., 119; S, C., 5 Pet, Oon, R., 31; Sherwood v.
      Beade, 4 Hill, 431, 434; Bloom v. Burdick, 1 id., 141; Sharp v. Johnson, 4 id., 92, 99; Striker v. Kelley, 2 Den., 323, 330; see, also, Van Stylce v. Sheldon, 9 Barb., 278; Doughty v. Hope, 3 Den., 594, 598; S. O., 1 N. Y., 79 ; People v. Board of Police, 6 Abb., 162,-164; Stanton v. Ellis, 12 N. Y., 575, 578 ; Ex parte Bank of Monroe, 7 Hill, 177, 179 ; 10 N. Y., 329, 330; 2 Robt., 153 ; 42 How., 116; 43 N. Y., 107,121; 23 id., 285, 286; 12 Abb. [N. S.], 161, 169; 19 N. Y., 496; 39 id.) 196, 369 ; 45 id., 781-784; see, also, opinion in this ease of Reynolds, C.) The affidavits of a proper foreclosure, showing an absolute and actual compliance with the requirements of the statute, are the title of the purchaser, and if they are not made as provided for by the statute the purchaser acquires no title. {Layman v. Whiting, 20 Barb., 559 ; People v. Becker, 20 N. Y., 324.) The court properly excluded oral proof that notice was published in the People’s Journal. Parol proof cannot be given to supply any defect in affidavits of publication, posting on court-house door, or of the sale. (Arnot v. McClure, 4 Den., 41; op. of Ct. of App. on second appeal.)
   Leajrned, P. J.:

A statutory foreclosure is the execution of a power of sale given in the mortgage. The provisions of the statute, therefore, only regulate the execution of a power granted by the mortgagor. They do not (like some statutory proceedings) authorize the taking away of one’s property without any authority from the owner.

It would seem reasonable, therefore, that proceedings taken under this statute should be sustained, when the power of sale has been fairly exercised; and that, in a court possessing common-law and equity jurisdiction, any apj>arent defects in the papers should be supplied by common-law proof if it could be given. (1 R. S. [m. p.], 737, § 152; 2 R. S. [m. p.], 547, § 14.) That statute enables purchasers for a valuable consideration to have relief in equity against a defective execution of a power.

But a different doctrine seems to have been established. (Arnot v. McClure, 4 Den., 44.) And when the present case was in the Commission of Appeals (65 N. Y., 581), a very strict rule of construing the affidavits, was adopted. On the second appeal, the Court of Appeals, with that decision before them and referring to the same, practically adopted it; a minority only of the court expressing dissent therefrom.

And in the opinion then delivered, while the court limited the rule which excluded common-law proof, and held that it is not applicable to those affidavits which are not mentioned in section 14, they, by implication, left this rule in force as to those affidavits which are mentioned in that section. They say that oral proof was admissible, “ unless the affidavit of service was a part of the statute conveyance provided for in section 14.” From this it is to be inferred that oral evidence is not admissible to establish matters which should be in affidavits, which are a part of that statute conveyance.

The case then stands thus : The Commission of Appeals decided that these affidavits must be construed strictly. Applying that rule to the affidavit of publication, it is defective ; much more than the affidavit of service, which that court' held to be bad. Former cases have held that common-law evidence, is not admissible to supply defects in the affidavits. The Court of Appeals have modified these decisions, by holding that such evidence is competent as to defects in the affidavits of service, because those are not mentioned in section 14. The affidavit of publication is mentioned in that section. And we therefore feel compelled to hold, whatever our own judgment might be, that the evidence offered was properly excluded. And that the judgment should be affirmed with costs.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment affirmed, with costs.


author: Learned, P. J.:

text:
    SARAH J. SCHERMERHORN, Plaintiff, v. WILLIAM A. TYLER, Defendant.

      Evidence — opinion of witness as to damages — inadmissibility of.

    Upon the trial of an action brought to recover damages for injury occasioned to some cattle by their escape while under defendant’s charge, a witness, having stated that he knew the effect of fat cattle getting out and wandering around, and that he had heard the evidence as to these cattle, was asked what, in his judgment, would be the shrinkage of such cattle from such a tramp. Eeld, that the question was inadmissible.

      Having stated that he had heard the cattle described by another witness, he was again asked, aside from the shrinkage, how much is the damage on such cattle, how much are they worth less per hundred ? Held, that this question was also inadmissible.

      MaOolVum v. Seward (63 N. Y., 316) distinguished.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the General Term after a verdict in favor of the plaintiff.
    Objections were taken by the defendant, to a class of questions, asked for the purpose of proving damages; and were overruled.
    The action was brought to recover damages alleged to have been occasioned to cattle, by their escape from the lot of the defendants, in whose care they were claimed to have been placed. A witness, who had been in the business of buying fat cattle, and carrying them to the city, was asked if he knew the effect upon fat cattle of getting out and wandering about; he was further asked how much fat cattle, weighing 1,500 pounds, would shrink, if they were to get out of control in the streets for twenty-four hours. He was again asked whether he had heard the evidence as to these cattle, and having answered that he had, he was then asked what, in his judgment, would be the shrinkage of such cattle from such a tramp. He answered from fifty to 100 pounds. He was again asked whether he had heard the cattle described by another witness, and answered that he had. He was then asked, aside from shrinkage, what is the damage on such cattle; how much were they worth less per hundred. And he answered one dollar. He was again asked how much less per head would they be worth in consequence of such a tramp — such cattle as had been described by another witness — how much per hundred less ; and he answered, five to ten dollars.

      Michcvrds <& Sessions, for the plaintiff.

      jHotchkiss <& Milla/rd, for the defendant.
   Learned, P. J.:

If the witness had seen the cattle, he, as a man acquainted with cattle, might have testified as to their value. Yalue of marketable property is so far a matter of fact, that it may be proved by witnesses. The witness, however, was not asked as to the actual injury to these cattle, but as to the injury which would ordinarily be occasioned to such cattle, by a similar exposure. To admit this, was to extend the admission of evidence by experts too far. There could be no difficulty, in this case, in showing the actual injury to the cattle, which followed their escape and their wandering about. If they had shrunk in weight, or had been injured in appearance, these facts could have been proved by those who saw them. For these were plain and conspicuous results. To prove what is the usual effect of such an escape on such cattle, is to substitute conjecture for certainty. It is like asking, in an action for assault and battery, for the purpose of proving the plaintiffs’ injury, what would be the usual effect of knocking down a man of the size of the plaintiff. The subject of the proposed injury, was a matter of common observation, on which the lay, or uneducated mind is capable of forming a judgment.” (Milwaukee and St. P. R. W. Co. v. Kellogg, U. S. Sup. Ct., 15 Alb. Law J., 408.)

Again, the witness having heard the owner of the cattle describe their appearance, was asked to estimate the loss on such cattle as he had described. These questions, or some of them, seem to have been intended to obtain the judgment of the witness as to the damage sustained by these cattle, assuming the plaintiff’s description of them to be true. And the plaintiff claims that this was admissible under McCullum v. Seward (62 N. Y., 316). In that case, a plaintiff, having described the services that he had performed, was permitted to ask a witness what such services as he described were worth. This was only inquiry as to marketable value. But in the present case the witness, who had never seen the cattle but had heard the plaintiff describe them in his testimony, was asked to estimate the damages they had sustained. That was the duty of the jury.

"Without looking at the other questions, I think there must, for these reasons, be a new trial, costs to abide the event.

Present — Learned, P. J., and Bookes, J.; Boardman, J., not sitting.

New trial granted, costs to abide event.


author: Boaudman, J.: Learned, P. J.

text:
    THOMAS KAIN, Appellant, v. JOHN G. SMITH, Respondent.

      Receiver of railroad — lease of cmothen' road by — liability of to employes, for negligence ■— official not personal.

    Prior to the 24th of February, 1870, the defendant Smith and others were appointed receivers of the Vermont Central Railroad Company by the Court of Chancery of that State. On the 24th of February, 1870, the said receivers, by the authority of the court, and the Vermont and Canada Railroad Company, leased the Toad of the Ogdensburgh and Lake Champlain Railroad Company, a New York corporation, for a term of years, at a stipulated rent, agreeing to fulfill all the obligations of the latter road either by statute or at common law, as common carriers or otherwise, and to indemnify it from any claim for any accident that might occur upon the road.
    This action was brought against the receiver Smith, individually, to recover damages for injuries sustained by the plaintiff, who was employed on the Ogdensburgh and Lake Champlain Railroad in coiisequenfce of being supplied with inadequate tools and machinery. No personal negligence of Smith was alleged. Held,

    (1) That the action, if maintainable, could be properly brought against one receiver alone; and
    (2) That the receiver acted officially and as an agent of the Vermont company in mailing the lease, and that he was not personally liable for the negligence of his employes. (Learned, P. J., dissenting.)
    Appeal from a judgment in favor of tbe defendant, entered upon a dismissal of tbe complaint at tbe Circuit.
    Tbe action was brought to recover damages for an injury to tbe plaintiff while in tbe employment of tbe lessors of tbe Ogdensburgh and Lake Champlain Railroad Company, arising from tbe alleged carelessness and negligence of tbe employers in not furnishing proper and adequate appliances or machinery for tbe business or labor in which tbe plaintiff was engaged. It was stipulated upon tbe trial that tbe Ogdensburgh and Lake Champlain Railroad Company was a corporation duly created and organized under tbe laws of tbe State of New York; that on and since tbe 24th day of February, 18J0, tbe Yermont and Canada Railroad Company was a corporation duly created and organized under tbe laws of tbe State of Yermont, and as such owned and operated a railroad from St. Albans, Yt., to Lake Champlain, there connecting with tbe raüroad of said Ogdensburgb and Lake Champlain Railroad Company ; that prior to said 24th day of February, 1870, the Yermont Central Railroad Company was a corporation duly created and organized under the laws of the State of Yermont, and as such owned and operated a railroad from White River Junction, Yt., to St. Albans, Yt., there connecting with said Yermont and Canada Railroad, and forming with said other railroads a continuous line from White River Junction, Yt., to Ogdensburgh, N. Y.; that prior to said 24th day of February, 1870, by proceedings duly had in the Court of Chancery of the State of Yermont, John Gregory Smith, Benjamin P. Cheney, Joseph Clark and Lawrence Brainardwere duly appointed receivers and managers of said Yermont Central Railroad Company, to hold and operate said Yermont Central Railroad as officers of said court, and not otherwise; that on the 24th day of February, 1870, said Yermont and Canada Railroad Company, and said receivers and managers of the Yermont Central Railroad Company, being thereunto duly authorized by the laws of the State of Yermont, and by the orders and decrees of said Court of Chancery, entered into a certain contract with said Ogdensburgh and Lake Champlain Railroad Company for the leasing of that road; that from the 1st day of March, 1870, until the 1st day of July, 1873, the said railroad in the complaint mentioned was operated, and the said depot and station, grounds, repair shops and other buildings, railroad tracks and cars in said complaint mentioned were used and possessed by the parties of the second part, in said contract named, in the operation of said railroad, and in the business of transporting passengers and freight thereon under and in pursuance of the terms of said contract, and not otherwise; that Lawrence Brainard, one of said receivers and managers, died prior to the commencement of this action; that the summons in this action has been served only upon the defendant, John Gregory Smith, and none of the defendants except said Smith have appeared herein. The plaintiff read in evidence the contract referred to in said stipulation, of which the following are portions:
    “Articles of agreement between the Ogdensburgh and Lake Champlain Railroad Company, a corporation organized under the laws of the State of New York, party of the first part, and the Yermont and Canada Railroad, a corporation organized under the laws of the State of Yermont, and the managers and trustees of tbe Yermont Central Eailroad Company, who have tbe possession and management of tbe Yermont Central Eailroad by virtue of decrees of courts and tbe laws of the State of Yermont, parties of tbe second part. * * *
    “It is covenanted between said parties jointly and severally as follows : That the parties of tbe second part, either by themselves or in connection with other railroad corporations, by virtue of business contracts, regulating tbe business from said Ogdensburgh and Lake Champlain Eailroad Company, shall bave tbe possession and control and use of tbe Ogdensburgh and Lake Champlain Eailroad, with all its.branches and all its locomotives, cars, engines, etc. * * * All tbe gross receipts of, and from, tbe business and traffic of, or upon, tbe Ogdensburgh and Lake Champlain Eailroad after tbe 1st day of March, a. d. 1870, shall belong to tbe parties of tbe second part, and be collected by tbe managers aforesaid, and disposed of as tbe said parties of tbe second part shall direct. * * *
    “ Tbe parties of tbe second part jointly and severally covenant and agree to and with tbe parties of tbe first part, its successors and assigns, to keep up and maintain in good order and condition by repairs and renewals, as tbe same may be needed, all tbe present equipment of tbe party of tbe first part, and to add such new cars and engines as may be necessary to provide for waste and depreciation, as tbe same may from time to time occur. * * *
    “ Tbe parties of tbe second part jointly and severally agree to and with tbe party of tbe first part that in addition to tbe foregoing * ,* * they will, fulfill all obligations of tbe party of tbe first part specified in schedule B, and assume all tbe obligations of tbe parties of tbe first part, either by statute or at common law, as common carriers, warehousemen or otherwise, and will indemnify and save harmless tbe party of tbe first part from all costs, damages or loss by reason of any failure to fulfill said obligations, and by reason of any claim that may be made for any neglect, accident or default happening upon, or in connection with, tbe road of tbe parties of tbe first part, and save tbe party of tbe first part and its successors and assigns, from all loss, damages, costs and expenses, for or by reason of any thing to be done or omitted on its part under its charter and existing laws from and after tbe day this contract goes into effect, except that this article shall not apply to any demand or claims against the party of the first part for past transactions, or for any thing for which the consideration is passed. * * *
    “ In testimony whereof, * * * Lawrence Brainard and Joseph Clark, trustees, and John Gregory Smith, trustee and one of the managers, and Benjamin P. Cheney,' one of the receivers and managers of the Yermont Central Bailroad, have hereunto set their hands and seals on this twenty-fourth day of February, in the year
    of our Lord one thousand eight hundred and seventy. * * *

      “ The Ogdensburgh and Lake Champlain Bailroad Company by
    “ JOHN O. PEATT. [n. s.]

      “ The Yermont and Canada Bailroad Company by
    “ JOHN POBTEB,
    “ Vice-President, [l. s.]
    “ and SAMUEL ATHEBTON,

      “Director.

      “ The trastees and managers of Yermont Central and Yermont and Canada Bailroads,
    (Signed) , “ J. GBEGOBY SMITH, [l. s.]
    (Signed) “ B. P. CHENEY.” [l. s.]
    Upon the pleadings and this proof, and without waiting for the plaintiff’s full case, the defendant Smith moved for a nonsuit upon the ground that an action of this kind, by a servant for an injury, could only be maintained against the master, and that the defendant Smith did not occupy that relation as to the plaintiff. From the opening of counsel for plaintiff it appeared that such a ease existed in favor of the plaintiff as would entitle him to submit it to the jury, if the liability of the defendant Smith to the plaintiff were the same as if Smith were the sole proprietor and operator of the railroad. But it was conceded by the plaintiff’s counsel that the defendant Smith was not present at the time, plaintiff received his injury, and that no personal negligence of Smith contributed thereto. The foregoing was all the proof offered to connect said defendant with the plaintiff or with the subject-matter of this action.
    The motion was granted, whereupon the plaintiff duly excepted.

      L. Hasbrouck, Jr., for the appellant.
    An action for injury sustained through the negligence of several persons will lie against any one or more of the wrong-doers. {Low v. Mvmford, 14 Johns., 426; Creed v. Hartman, 29 N. Y., 591; Webster v. Hud. R. R. R. Co., 38 id., 206; Barrett v. Third Ave. R. R. Co., 45 id., 628, 631; Roberts v. Johnson, 58 id., 613, 616; Chipman v. Palmer, 9 Hun, 517.) The defendant Smith was personally liable. {Rogers v. Wheeler, 2 Lans., 486, 489; affirmed, 43 N. Y., 592; Blumenthal v.Bra/mard, 38 Yt.,402; Podge v. Smith, 99 Mass., 395 ; Sprague v. Smith, 29 Yt., 421; Barter v. Wheeler, 49 N. H., 9 ; Ballou y. Farnvm, 9 Allen, 47; Lamphear y. Buckingham, 33 Conn., 237.)

      Edward C. James, for the respondent.
   Boaudman, J.:

It is conceded that a case existed in favor of the plaintiff, which would entitle him to its submission to the jury, if the defendant, Smith, was liable. The action was brought to recover damages for personal injuries incurred by plaintiff, through the negligence of defendant’s as his employers, in supplying him with inadequate tools and machinery. If defendant was an employer of the plaintiff in such sense as to create an implied contract to exercise ordinary care not to expose him to unreasonable risks and dangers, then the defendant might be liable in this action. But if the defendant was not such an employer, and the relation of master and servant did not exist between them, then defendant is not liable. It is also conceded by the plaintiff that, defendant, Smith, was not present at the time plaintiff received his injury, and that no personal negligence of Smith contributed thereto.

Undoubtedly an action for an injury caused by the negligence of several persons, will lie against one or more of them. (Creed v. Hartmann, 29 N. Y., 591; Roberts v. Johnson 58 id., 613.) The nonsuit could not, therefore, stand upon any defect of parties. Hence the nonsuit must be justified, if at all, upon the ground that Smith was not the master of the plaintiff, and was improperly sued as such.

The question is novel and no authority is found covering the point here presented. The defendant Smith was one of the receivers and managers of the Yermont Central Eailroad, appointed by the courts of Yermont. As such and by the authority of the court and for and on behalf of the Yermont Central Railroad, a lease of the Ogdensburgh and Lake Champlain Railroad, was made to the Yermont railroad companies, in the hands of such receivers and managers. The defendant with others signed such lease, not on his own behalf, but for the companies he represented. He acted as agent and not as principal. He did not personally become the owner, nor was he entitled personally to the earnings of the Ogdensburgh and Lake Champlain Railroad, under the lease. His relations to the Yermont roads were purely official, and in such official character he was authorized to, and did act in leasing the Ogdensburgh and Lake Champlain Railroad. The Yermont roads expected to derive advantage from the act done by Smith, and therefore must answer for injuries occasioned thereby. (Hall v. Smith, 2 Bing., 156.) The work was carried on for the benefit of the roads and not of the defendant. (Bush v. Steinman, 1 B. & P., 404, 407.) The defendant was an agent and not an owner. He was an agent in the same sense and of the same character with a director or superintendent or other officer of a railroad company. His acts are the acts of the corporations he represents, and as they receive the benefit, upon them must rest the responsibility, in the absence of any personal negligence of the defendant.

Several of the cases cited by the plaintiffs counsel arose under contracts made by the defendants, and the defendants were held personally liable for their fulfillment. But as the plaintiff properly contends, this is an action for a tort, and the contract which is implied is only inducement to the charge of wrong.

Other cases are cited by the plaintiffs counsel where the defendants are, in law, the owners of the property, and the responsibility for injuries arose from such ownership. Such are the cases of executors, administrators and trustees, having possession and perfect title although for the ultimate benefit of others. (Ballou v. Farnum, 9 Allen, 47; Lamphear v. Buckingham, 33 Conn., 237.) But in none of these cases do I find it held, that persons acting in a representative character, are held liable for injuries occasioned by negligence unless such persons are the owners and proprietors of the property through which 'the injury arose, and the master of the person injured. I think the principles enunciated in the learned opinion of Judge Allen, in Cardot v. Barney (63 N. Y., 281), sustain the views I have taken. At least it so seems to me, and I therefore conclude the judgment should be affirmed, with costs.

Bookes, J\, concurred.

Learned, P. J.

(dissenting):

The Ogdensburgh and Lake Champlain Railroad Company is a corporation under the laws .of New York. The Yermont and Canada Railroad Company is a corporation under the laws of Yermont. The Yermont Central Railroad Company was a corporation under the same laws, but prior to the time of the alleged cause of action the defendant and others, by the Court of Chancery of Yermont, had been appointed receivers and managers of said Yermont railroad company, to hold and operate the same as officers of the court and not otherwise.

Prior to the time of the alleged cause of action the Ogdensburgh and Lake Champlain Railroad Company, as parties of the first part, and the Yermont and Canada Railroad Company and the managers and trustees of the Yermont Central Railroad Company, as parties of the second part, entered into a written contract. The Yermont Central Railroad Company was not itself a party to this contract; but the same was signed by the defendant and another, styling themselves trustees and managers; and they are described therein as having the possession and management of the Yermont Central Railroad Company under the decrees of the courts and the laws of the State of Yermont. The defendant describes himself in this contract not as a receiver but as trustee and manager.

By this contract the parties of the second part are to have possession and control and use of the Ogdensburgh and Lake Champlain Railroad Company. All the gross receipts are to belong to them and to be collected by said managers, and to be disposed of as the parties of the second part shall direct. The parties of the second part jointly and severally covenant to keep up and maintain in good order all the present equipment, and to keep in repair the tools and machinery. ■ They jointly and severally covenant to pay the party of the first part a certain rent; to assume all the obligations of the parties of the first part, by statute or common law, as common carriers or otherwise; to indemnify and save them harmless by reason of any claim that may be made for any neglect, accident or default happening upon, or in connection with, the road of the parties of the first part.

Now, in the first place, it seems to me that the defendant cannot be called an agent of the Yermont Central Railroad Company. He does not name himself receiver in the written contract; but I assume, from the stipulated evidence, that he may have been appointed receiver of the Yermont Central Railroad Company by a Yermont court. As such receiver he is not, as I think, the agent of the corporation. The corporation cannot control or remove him. He is simply an officer of the court. The ground of the appointment of a receiver is that the corporation shall no longer be permitted to manage the property, and that the court will take control of it.

As is said in Cardot v. Barney (63 N. Y., 281), “ the property was in the court for management and administration, and the defendant was an officer of the court obeying its orders and carrying out its directions.” And, in that case, it was because the position of the defendant therein was entirely official that he was held not to be liable in an action for negligence, in the management of a railroad which was under his control, as receiver, wheré no personal neglect was imputed.

But again — and here lies the distinction between the present case and that cited above — the defendant is not receiver of the Ogdensburgh and Labe Champlain Railroad Company, in the management of which this accident occurred. He has no official position what • ever, in respect to that railroad. The gross receipts, by the terms of the contract, belong to him and his co-lessees ; and are to be disposed of as they shall direct. It is very possible, that in this receipt of income and in this management of the Ogdensburgh and Lake Champlain Railroad Company, he acts as trustee and in a representative capacity. But this is unimportant. (Rogers v. Wheeler, 43 N. Y., 598; Ferrin v. Myrick, 41 N. Y., 315; Cardot v. Barney, ut supra, at p. 288.) In doing this, he is in no sense a receiver or officer of the court, but he has voluntarily assumed to operate the road, and thus has assumed all consequent liabilities.

In regard to the duties imposed on one as receiver, the courts go so far in protecting its officers that he cannot be sued except by permission of the court. But where one who has been appointed by tbe courts of another State, a receiver of a railroad company in that State, comes into this State and obtains the control of another railroad, and one incorporated by our laws, and manages that, and receives its income; he is not entitled to the immunities of a receiver in respect to such road and its management.

Furthermore, by the very letter of this contract, he agreed (and the agreement was several, as well as joint), to assume all the obligations of the company and to indemnify the company against any neglect, accident or default, happening upon, or in connection with, the said road.

In Blumenthal v. Brainerd (38 Vt., 402), in regard to these same receivers, the court held, that if they were in fact common carriers, it was no defense to an action for a breach of duty or obligation, that they were managing the road as receivers. In Paige v. Smith, (99 Mass., 395), the same rule was adopted in Massachusetts as to these same receivers.

But whatever may be the defendant’s liability in respect to the management in Yermont, of the road of which he is supposed to be receiver ; when he comes into this State and obtains complete control of a railroad, not by virtue of his appointment as receiver, but by a contract, which he voluntarily made; when he takes possession of this railroad, and agrees to assume the duties of the company as a common carrier, and when he receives the earnings, to be disposed of as he directs, he is, as it seems to me, the owner and proprietor, during the time agreed upon, of the property, and the master of the persons employed by him in performing the duties thus assumed.

Concurring with my brother Boardman, on the question as to the defect of parties, I think that, for the reasons above stated, the judgment should be reversed and a new trial granted, costs to abide the event.

Judgment affirmed, with costs.


text:
    CHARLES W. MILES, Respondent, v. GEORGE FRALICH, Impleaded with JOHN I. COX and others, Appellants.

      Mortgage on timber land — exception of timber upon sale of land, — sale of timber thereafter subject to mortgage —lien of mortgage.

    One Oox executed to the plaintiff a mortgage, for the purchase-money of certain lands. By the mortgage Oox covenanted that the premises should not be reduced in value by the removal of any of the timber, until its value should have been paid on the mortgage: Subsequently Oox sold a portion of the land to one person and the residue to another, in each case reserving and excepting all the hemlock trees and bark. Thereafter his assignee in bankruptcy sold the hemlock trees to the plaintiff subject to the mortgage, and the same were subsequently disposed of by him for more than the amount of the mortgage.
    In an action by the plaintiff to foreclose the mortgage upon the land, held,

    (1) That the hemlock timber having been sold subject to the mortgage, and being the last of the mortgaged property sold by the mortgagor, was primarily held for the amount of the mortgage.
    (2) That the sale of the timber to the plaintiff, subject to the mortgage, operated as a satisfaction thereof.
    Appeal from a .judgment in favor of the plaintiff, entered upon the trial of this action at the Special Term in an action brought for the foreclosure of a mortgage.
    The defendant John I. Cox, on the 9th day of May, 1861, executed to the plaintiff a bond and purchase-money mortgage.
    The mortgaged premises were a tract of 186 acres of land in the northerly part of division number twenty-three, great lot number two of the Hardenbergh patent, with this exception: “ Excepting and reserving the hemlock bark on said premises, together with such privilege to procure said bark as is contained in a conveyance of the above-described premises from the said second party to the said first party to this instrument.” " In the mortgage Cox covenanted that the premises should not be reduced in value by the removal of any of the timber until its value should have been paid in installments of the purchase-money.
    Subsequent to the recording of the mortgage the defendant Cox conveyed a portion of the mortgaged premises to Anton Engert and the residue to George Eralich.

      In both the conveyances to Anton Engert and to George Eralich the hemlock trees, timber and bark upon the granted premises, with the right to remove them, were reserved, with the exception that as to the land conveyed to George Eralich sufficient timber to build a barn thirty by forty feet was to be left thereon.
    The hemlock timber on the mortgaged premises was subsequently sold by the assignee in bankruptcy of the defendant Cox to Miles & Miles, of which firm plaintiff was a member, subject to the mortgage. They subsequently sold it to John R. Kellam, and the last of it was taken from the premises in the winter of 1874 or 1875. Miles received for the timber more than the face of the mortgage.

      John F. Anderson, for the appellants.
    The plaintiff had a lien upon two funds for the payment of the mortgage debt, while the defendant Eralich had an interest in but one of those funds without any right to resort to the other. In such case equity will compel the creditor to take his pay out of the fund in which he alone has an interest, so that both parties may, if possible, escape without injury. (Cheesebrough v. Millard, 1 Johns. Ch., 409; Stevens v. Cooper, id., 425; Hayes v. Ward, 4 id. 123; Everson v. Booth, 19 Johns., 486 ; 4 Hopkins, 460; James v. Hubbard, 1 Paige, 235 ; Ingalls <& Stockman v. Morga/n, 10 N. Y., 178, 186.) The timber released by the plaintiff was primarily hable to pay the mortgage debt, not only because it was set apart as a special fund for the payment of that debt, but for the reason that it was the last of the mortgaged premises aliened by the mortgagor. (5 Johns. Ch., 235, 241; Schryver v. Teller, 9 Paige, 173; Stuyvesant v. Hall and others, 2 Barb. Ch., 151; 8 N. Y., 271.) The plaintiff will not be allowed to enforce his hen against the defendant Eralich’s land without first deducting the v-alue of the timber which has been released by him. (Howard Insurance Compamy v. Halsey, 8 N. Y., 271; Stuyvesant v. Hall, 2 Barb. Ch., 151; 5 Johns. Ch., 235 ; 10 N. Y., 178, and cases cited.) At the time the plaintiff became the purchaser of the equity of redemption in the hemlock timber in question he bought it subject to the hen of his mortgage and the legal presumption is that he only paid the value of the equity of redemption, and the property thus purchased is the primary fund for payment of the mortgage debt. (McEinstry v. Curtis, 10 Paige, 503; Tice v. Amvrn, 2 Johns. Ch., 125 ; Weaver v. Toogood, 1 Barb., 238, 213; Oox v. Wheeler, 7 Paige, 218, 257; Matthews v. Aikim,, 1 N. Y., 595, 601; 15 Barb., 71; 12 N. Y., 519, 533, and eases cited.)

      J. A. Thompson, for the plaintiff.
   Learned, P. J.:

The mortgage from Cox to Miles was for the purchase-money. It excepts the hemlock bark on the premises, with such privilege to procure the bark as is contained in a conveyance of the premises by Miles to Cox. Although that conveyance is not produced, it is evident that Miles reserved to himself, on the sale, the hemlock bark; and the mortgage only repeats the reservation.

In the mortgage, Cox covenanted that the premises should not be reduced in value by the removal of any of the timber, until the value should have been paid in installments of the purchase-money. This covenant shows (if any proof were needed) that the exception of the bark was not an exception of the timber; and that Cox had a right, under the conveyance, as owner, to remove the timber, except so far as he restricts himself by this covenant. There is nothing peculiar in the effect of this covenant. Courts restrain mortgagors in proper cases, even without such covenants, from diminishing the security to the injury of mortgagees. (Ensign v. Colburn, 11 Paige, 503.)

After the execution of this mortgage, the mortgagor conveyed a •part of the lands to Engert. In this conveyance he reserved all the hemlock trees and bark, with the right of ingress and egress to procure the same at the convenience “ of the owner thereof.”

Subsequently he conveyed the rest of the lands to Fralich, excepting and reserving the hemlock bark, and also all the hemlock timber, except such parts as the party of the first part may see fit to leave, and timber sufficient to build a thirty by forty barn.”

Thus, after this conveyance, the mortgagor Cox owned none of the mortgaged property, except the hemlock timber; while Engert and Fralich owned the land, but not the timber.

Subsequently, on the 12th of July, 1869, the assignee in bankruptcy of Cox, the mortgagor, sold this hemlock timber, subject to the mortgage aforesaid. It was bought by the plaintiff for the firm of Miles & Miles, of which he was a member. The plaintiff, at this time, knew of the purchase of the land by Engert and Eralich, and of their possession thereof.

The learned justice who tried the case finds that the price was $1,000. But there seems to be no evidence on that point, except that the plaintiff is proved to have said that he had released his mortgage on the timber for $1,000, and had indorsed that amount on the mortgage. If, however, as is proved and not denied, the sale by the assignee in bankruptcy was made subject to the-mortgage, a releasing of the mortgage on the timber for $1,000 was not a payment of that price to the assignee on the sale.

The plaintiff subsequently sold the timber for more than enough to satisfy the mortgage; even if we deduct from the avails the $1,000 which the plaintiff credits on the mortgage, as above stated.

Now, it is a familiar principle that when a mortgagor has conveyed a part of the mortgaged property and retains another part, the latter must first be applied to pay the debt, for the exoneration of the previous purchasers from him.

We need not inquire how this rule could, in every case, be applied to a reservation of timber on a sale of land. Because in the present instance not only did Oox, the mortgagor, reserve the timber on the sale to Engert and Eralich; but his assignee in bankruptcy sold it as a thing distinct from the land, and the plaintiff bought it in the same manner. He cannot say, therefore, that the timber could not be thus severed. For he assumed to purchase the timber as distinct from the land. Furthermore, he bought the timber subject to the mortgage. Thus he acknowledged that the timber was subject to the mortgage, and he knew that Engert and Fralich had bought and were in possession of the land.

Having, therefore, subsequently sold the timber thus purchased for more than the amount of the mortgage, the avails of such sale must first go to satisfy this mortgage, for which it had become the primary fund.

Furthermore, as the plaintiff bought the timber subject to the mortgage, he is presumed to have paid only its value, less the lien of the mortgage, and such a purchase again makes the timber the primary fund for the payment of the mortgage. As the plaintiff owned the mortgage. And bought the timber subject to the mortgage, this operated as a, satisfaction of the mortgage; without reference to the amount for which the plaintiff subsequently sold the timber.

The answer of the plaintiff to these familiar doctrines is that the mortgage was never a lien on the timber, because the hemlock bark had been reserved. This is not the true construction of the mortgage. The bark was probably reserved by Miles in his conveyance to Cox. But, 1. The covenant by Cox not to remove the timber shows that he was the owner, and that the timber was a part of the mortgage security. 2. The sale by the assignee and the purchase by the plaintiff, subject to the mortgage, shows that the timber was so subject. 3. The release'by the plaintiff of the timber from the mortgage shows that he claimed that the timber was subject to the mortgage.

For the reasons above stated the judgment must be reversed and a new trial granted, costs to abide the event.

Boardman, J., concurred.

Bookes, J., dissented.

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


author: Bockes, J.: Learned, P. J.:

text:
    WILLIAM DOLSON, Plaintiff, v. SILAS SAXTON, Sheriff of the County of Ulster, Defendant.

      Sheriff — fmlv/re of to return execution — damages — proof of— Duty of sheriff to seise property — if indemnified — Chattel mortgage — retention and sale of property by mortgagor.

    The plaintiff, in an action against a sheriff for a failure to return an execution, is only entitled to recover the damages sustained by the neglect of the sheriff; and where, in such a case, it appears only that there was a small amount of property of the judgment debtor upon which a levy could have been made, it is error for the court to direct a verdict for the full amount of the execution, unless it ■ appear, beyond dispute, that the full amount thereof could have been realized therefrom.
    Where, after an execution has been issued to a sheriff, the plaintiff directs him to levy upon property in the possession of the defendant, which is claimed hy a third person, and offers to indemnify him, the sheriff is not hound to seize the same, provided he acts in good faith and shows that the property did not in fact belong to the defendant.

      LommisY. Kcmon (43 Barb., 373) followed; Van Gleef y. Fleet (15 Johns., 175), Qu/rtts v. Patterson (8 Cow., 65) overruled.
    In an action against a sheriff for a neglect to return an execution, it appeared that at the time it came to his hands there was property in the possession of the debtor, mortgaged to third persons, whose title thereto had then become absolute by the terms of the mortgage; that the debtor retained and sold the property, although, as claimed by the defendant, subject to an obligation to apply the proceeds to the discharge of the debt. Meld, that the question as to the good faith and validity of the mortgage should have been submitted to the jury.

      Quaere, as to whether the fact that the judgment debtor had, during the time the execution was in the hands of the sheriff, money deposited in a bank which the plaintiff might have secured by supplementary proceedings, was sufficient to prove that the latter had sustained damages by the neglect to return the execution.
    Motion for a new trial on exceptions ordered to be beard in tbe first instance at tbe General Term, after a verdict in favor of tbe plaintiff directed by tbe court.

      Wm. Lcnmsberry, for tbe plaintiff.

      Chas. A. Fowler, for tbe defendant.
   Bockes, J.:

At tbe trial tbe court directed a verdict for tbe plaintiff; and tbe case comes before us for review on exceptions, ordered to be beard in tbe first instance at General Term.

Tbe action is against tbe defendant as sheriff, for not returning two executions issued to bim upon judgments in favor of tbe plaintiff. One against Isaac L. Signor alone, for $321.20; tbe other against Signor and others for $151.19, exclusive -of interest.

Tbe evidence introduced on tbe trial by tbe defendant, was submitted with a view to show that tbe defendants in tbe executions bad no property from which tbe money thereby directed to be collected, or any part of it, could have been made. But the court held it wholly insufficient to maintain tbe defense, declined to submit tbe case to tbe jury and directed a verdict for tbe plaintiff, for tbe full amount of tbe executions.

The proof showed that the defendants in the executions were, or that one of them was, in possession of leviable property in the defendant’s county when the executions came to his hands; but that all of it (save a very insignificant part, amounting in value to about eight or ten dollars), was under mortgage to third parties, by whom it was claimed; that the mortgagee’s title had become absolute, by the terms of the mortgage before the issuing of the executions; and, that the property was subsequently sold thereunder and was insufficient to satisfy them.

There was also evidence showing, and tending to show, that the mortgagor retained the possession of the mortgaged property, with permission from the mortgagees to dispose of it; but it was insisted on the part of the defendant, that under the proof the mortgagor’s right to dispose of it was coupled with a duty to apply the avails, in case of sale, in satisfaction of the mortgage debts. It was shown that the plaintiff directed the defendant to proceed and sell the property under the executions and gave him indemnity. It is also proper here to remark that there was evidence other than that above alluded to bearing on the bona fides of the mortgage, but none of an entirely conclusive character in that regard. The defendant insisted that a case was made for the jury on the evidence, on the question of the bona fides of the mortgages. But the court held otherwise and directed a verdict for the plaintiff for the amount claimed.

The learned judge ruled as follows : That when a judgment debtor is in possession of property which is apparently his, over which he is exercising dominion, and such property is claimed by a third person under a chattel mortgage, the law pronounces that fraudulent, and the sheriff with execution, is bound to proceed and sell the property upon sufficient indemnity being given him, and that if he fail so to do, he becomes liable to the plaintiff for the amount of the execution. He further ruled that the mortgage to Morey, one of the claimants of the property, was, under the evidence in the case, fraudulent as matter of law, hence the bona fides of that mortgage was not a subject of examination by the jury as a question of fact, and still further, that until the mortgagee had reduced the property to actual possession, there was a leviable interest in the mortgagor, Which the sheriff could seize under execution against him, and that he was bound to do so, and that if he omitted this he became liable. 'He therefore declined to submit the case to the jury as to the bona fieles of either mortgage, and directed a verdict for the plaintiff for the entire amount claimed.

It is not supposed necessary here to examine each of these propositions separately, for, as it seems, the leading and controlling question is, whether the learned judge was right in the general conclusion that the case presented no question of fact for the jury on the evidence.

It was undoubtedly true that the plaintiff fully and clearly established his right of action for nominal damages, and perhaps for the value of the ice also, proved to have been worth some eight or ten dollars. The defendant had omitted to make return of the executions, as by law he was required to do, and he was liable prima facie in the full amount of the executions in his hands so unreturned. The amount of the executions vras prima facie the measure of damages. (Ledyard v. Jones, 7 N. Y., 550 ; Swezey v. Lott, 21 id., 481; Bowman v. Cornell, 39 Barb., 69.) But it lay with the defendant to mitigate by showing that the plaintiff had suffered no injury through his neglect. The action is given by the statute for damages sustained,” and while the sum directed to be collected on the executions was prima facie the true measure of damages, the defendant was at liberty to mitigate the amount by showing affirmatively that such full sum could not have been collected in the exercise of due diligence. (Bank of Rome v. Curtiss, 1 Hill, 275 Pandee v. Robertson, 6 id., 550 ; Humphrey v. Hathorn, 24 Barb., 278.) In the last case cited it was held that the sheriff might prove, for the purpose of reducing damages, that the defendant in the execution had no property, or not sufficientpropertp, out of which he could have satisfied the execution by using the diligence required of him.

The action is given for “ the damages sustained,” whatever these damages may be. Therefore, in this case, the court was not authorized to direct a verdict for the full amount of the executions simply because there was indisputably a small sum which might have been made on them. The verdict could be directed only for such sum as by the evidence stood incontestably proved as the damages sustained. If there was a question on the proof as to the amount, the case was for the jury.

It is proper here to remark, inasmuch as the point is raised by counsel, that the damages were a legitimate subject of proof under the pleadings.

Ve are, then, brought to the question, whether the learned judge was right in holding that the mortgages were fraudulent and void in law, as against the creditors of the mortgagor, and in refusing to submit their bonafides to the jury as a question of fact.

In this ruling I am of the opinion he was in error. The mortgages were in due form, and had been duly filed and renewed. Their consideration, as sworn to by the witnesses, was not in any respect illegal. The circumstances under which the property was permitted to remain in the possession of the mortgagor were given to the jury, and such evidence was admissible, as it bore on the question of the bona fides of the mortgages. Now, let it he admitted that the mortgagor was allowed to retain the property and use it in his business, and even to sell it for the purpose of raising money to pay off the mortgage debts, and the bona fides of the transaction became a question of fact for the jury. It then became a question of intent whether the mortgages were made or were kept on foot to hinder, delay or defraud the creditors of the mortgagor. True, it stands decided that an agreement' between the mortgagor and mortgagee, to the effect that the former may sell and dispose of the mortgaged property as his own, and appropriate the proceeds to his own use and benefit, the debt remaining unpaid, renders the mortgage fraudulent and void as to his creditors. (Griswold v. Sheldon, 4 N. Y., 581; Russell v. Winne, 37 id., 591, and other cases.) But it is also equally well settled that if the agreement be that the mortgagor may sell and pay over the proceeds to apply on the mortgage debt, the agreement will not render the mortgage fraudulent $er se. (Conkling v. Shelley, 28 N. Y., 360; Ford v. Williams, 24 id., 359; Miller v. Lockwood, 32 id., 293; Chatham Bank v. O'Brien, 13 N. Y. Sup. Ct. Rep. [6 Hun], 231; Frost v. Warren, 42 N. Y., 204.) Hnder such agreement (as these cases held) the question of good faith is for the jury. (See cases above cited, especially remarks of Denio, J., in Ford v. Williams.) Now, the proof here tended to show an agreement between the mortgagor and mortgagee of the character last mentioned; hence, according to the decisions cited, the case was for the jury on the bonafides of the mortgages. The learned judge, therefore, erred in holding those instruments fraudulent and void as to the plaintiff, as matter of law. Pie should have submitted the bona fides of those instruments to-the jury as a question of fact.

It is further insisted that the court was right in directing a verdict for the full amount claimed, because the plaintiff indemnified the defendant against injury growing out of a sale under the executions; that being indemnified, the defendant was bound to proceed and sell. In support of this proposition, we are cited to Van Cleef v. Feet (15 Johns., 175) and to Curtis v. Patterson (8 Cow., 65). Those cases, with others, however,, were examined in the more recent case of Lummis v. Kasson (43 Barb., 373), and in so far as they have application to this in hand, are there overruled. It is there decided that a sheriff is not bound to proceed, although indemnified, provided he acts in good faith; but may protect himself by proving a want of property in the defendant from which to satisfy the execution. The case of I/wrrwms v. Kasson received careful consideration by Mr. Justice Smith, whose opinion was concurred in by both of his associates; and I will add, that for myself I am satisfied with his conclusion. It is a General Term decision, and we should follow it until condemned by the 'appellate court.

These conclusions necessitate a new trial in this case, and we need not now examine the point that one of the defendants in the small execution had money in bank, which, by possibility, might have been reached on proceedings supplementary to execution had the defendant made return as he ought to have done. This suggestion only applies to the small execution, and however the question in that regard should beMetermined, it would not here obviate the necessity for a new trial. "We shall not, therefore, here consider that question. Perhaps on the retrial the case on this point may be quite different from the present.

A new trial must be granted, with costs to abide the event.

Boardman, J., concurred in the result.

Learned, P. J.:

I concur in the result of the foregoing opinion of my brother Bocees, but I wish to remark that the- defendant’s evidence is solely in miUgaUon of damages. The argument of the defendant must be that the plaintiff has not been injured, because the judgment debtor was worth nothing. Where, as in this case, a judgment debtor is shown to have had, at the time when the execution was in the sheriff’s hands, money lying in the bank, more than enough to pay the execution, I am not prepared to say that proof that the judgment debtor had no leviable property establishes the fact that the plaintiff has not been injured. The plaintiff, until the return of the execution, would hardly be expected to attempt to reach property not leviable. And as the defendant, by neglect to return the execution, violates his official duty, he must show that no harm has been occasioned, “by showing the inability of the debtor to pay.” And it is well said in Ledyard v. Jones (7 N. Y., 550) that he cannot mitigate damages by showing that the plaintiff can still collect the debt out of the judgment debtor.

New trial granted, costs to abide event.


author:
Bockes, J.:
      Leakned, P. J.

text:
    DANIEL M. DIBBLE, Respondent, v. LE GRAND HATHAWAY, Appellant.
    “ Branding,” meamng of — chap. 559 of 1865.
    The word “brand, ” as used in chapter 559 of the Laws of 1865, forbidding the alteration or defacement of the brand required by that act to be placed by the manufacturers upon all butter-tubs, only means that the name and weight shall be marked upon it in a legible and distinct manner, e. g., by a stencil plate and a chisel, it is not necessary that they be actually burned into the tubs. (Learned, P. J., dissenting.)
    “To brand” has now become equivalent with “to stamp” and “to mark.” (Learned, P. J., dissenting.)
    Appeal from a judgment of the County Court of Otsego county, in favor of the plaintiff, and from an order denying a motion for a new trial made upon a case and exceptions.
    This action was brought to recover the amount of seven penalties for an alleged violation of an act of the legislature of the State of New York, entitled “An act in relation to the weights and marks on casks and packages containing butter,” passed April 2d, 1865.

      The action was originally brought in a Justice’s Court where a verdict was rendered for defendant. The plaintiff appealed to the County Court where a new trial was had before the court and a jury on the 4th day of December, 1873, and the .jury brought in a verdict for the plaintiff for seventy-five dollars, the amount of three penalties.
    The following is the statute under which the action is brought:

      “ Section 1. Every cooper or manufacturer of firkins, tubs or other vessels manufactured of wood for the package of butter shall brand in legible letters and characters upon every such firkin, tub or vessel made of wood, by him manufactured, his name, together with the actual and true weight of such firkin, tub or vessel, as aforesaid, rejecting fractions of a pound; and if any cooper or manufacturer shall dispose of any such firkin, tub or vessel without such brand, or shall falsely brand the same, he shall forfeit and pay to any person who shall prosecute for the same the sum of twenty-five dollars for every package disposed of without being marked, or with a false mark thereon, to be recovered by civil action in any court having jurisdiction of the person and subject-matter; one-half of such penalty to go to the superintendent of the poor of the county for the support of the poor in the county where such action shall be commenced.

      “ Sec. 2. It shall not be lawful for any person knowingly to sell and dispose of any butter packed or placed in any firkin, tub or vessel made of wood, and manufactured or made for such purposes, in this State, unless such firkin, tub or vessel shall be correctly branded in the manner provided in the first section of this act; and if any person shall disregard this provision, or shall alter or purposely deface the brand which may be made under the direction of this act, every such person shall forfeit and pay the sum of twenty-five dollars for every package so marked to such person as shall sue for the same, to be recovered by civil action in any court having jurisdiction of the person and subject-matter; one-half of such penalty to go to the superintendent of the poor of the county for the support of the poor of the county where such action shall be commenced. But nothing herein shall prevent the rebranding, according to correct weights, of any firkins, tubs or vessels, after their original contents shall have been used.”

      The complaint averred that the tubs were “ properly branded,” etc., and that the defendant “ altered, changed and purposely defaced the said brand,” etc., “ by marking them at a less weight.”
    The evidence showed, and was wholly uncontradicted, that the only “ brand ” of the name was “ Culver,” with a “ stencil plate,” and the weight was “ cut in ” by a chisel or sharp instrument.
    It was insisted by the defendant that such a marking was not a branding within the meaning of the statute.

      Bundy <& Seramblmg, for the appellant.
    This being a penal statute it must be strictly construed in favor of the defendant. (The American Iñfe and Trust Co. v. Dobbin, Lalor’s Sup., 252; Sprague v. Birdsall, 2 Cow., 419 ; Seward v. Beaeh, 29 Barb., 235; Doughty v. Brill, 3 Keyes, 612; The People, ete., v. Sehoonmaker, 50 Barb., 44; The People, etc., v. The Supervisors of Ulster, id., 83 ; Chase v. New Pork Central Rantroad Go., 26 N. Y., 523; The Perona Central Cheese Go. v. Murta/agh, 50 id., 314, 317; Potter’s Dwarris on Statutes, 245.) This statute is imperative that the cooper, etc., “ shall brand,” etc., “ his name, together with the actual and true weight,” etc. As to the meaning of the word “ brand ” see Webster’s Unabridged Dictionary. It is a well settled rule that if a statute direct a thing to be done in a certain or particular manner that thing cannot be done in any other manner. (Cook v. Kelley, 12 Abb., 35 ; 14 id., 466, where the same case is affirmed; Adams v. Houghton, 3 Abb. [N. S.], 46, 48.) If the manufacturer of the tubs failed to brand them strictly in accordance with the statute, then there can be no violation of the terms or provisions of the statute by changing such marks as he may have put on them, and consequently no penalty could be incurred. (Campbell v. Beek, 50 111., 171; cited in 1 Abb. U. S. Digest [N. S.], 560; Qreene v. The Mayor, ete., 1 Hun, 24; The People ew rel. Bagley v. Greene, id., 1.)

      K. Countryman, for the respondent.
    The meaning of the word “ brand ” in the statute is to be ascertained from an examination of the policy of the statute and the mischiefs it was intended to remedy. Obviously the statute was designed to prevent fraud in overcharging the weight of butter contained in packages upon the sale and transfer thereof in market. To accomplish this purpose it required a plain and permanent mark to be made on the packages by the manufacturer. It required the maker to ascertain and mark the weight, because he would have no interest in marking it incorrectly; and it required him to add his own name as a guaranty that the weight had been impartially determined. The word “ brand ” was used in describing the mark merely to indicate that it should be made in a durable and legible manner; and the phrase in section 1 (“ shall brand in legible letters and characters ”) is, therefore, equivalent to a direction to “ plainly mark ” the name of the maker and the weight of the package. It is apparent that the word was used in the same sense in the statute. According to the ordinary rule of construction whatever is within the spirit and intent is within the statute, even if against the letter. (White v. Wager, 32 Barb., 253; People v. Utica Insv/ramce Oompamy, 15 Johns., 358; Holmes v. Oorley, 31 N. Y., 290.) The title declares the act to relate to “weights and marks on casks and packages containing butter.” And in each section of the statute the words “brand” and “mark” are used interchangeably in the same sense.
   Bockes, J.:

The court held, in effect, that the placing of the name of the manufacturer on the tubs in legible letters with a stencil plate, and indicating the weight by characters made with a chisel or other sharp instrument, was a brcmdi/ng within the meaning of the act giving the penalties recovered in this action. Such ruling presents the only question before us on this appeal.

It is a very familiar rule of law that penal statutes must be strictly construed; at the same time, they are to receive such construction as will render them effectual according to the intention of the legislature, when that result may be obtained without doing violence to the language employed. So it is the duty of courts so to construe statutes as to meet the mischief which the law was intended to remedy, and to advance the remedy, when this may be done without violating fundamental principles. (Hart v. Cleis, 8 Johns., 41-44.) It was also laid down in Maillard v. Lawrence (16 How. [U. S.], 251), that the popular or received import of words, furnishes the general rule for interpretation of public laws. And again it was said in McCluskey v. Cromwell (11 N. Y., 593-601), that statutes should be read and understood according to the natural and most obvious import of the language, without resorting to subtle and forced construction, for the purpose of either limiting or extending their operation. It is further laid down as a sound general principle in the exposition of statutes, that less regard be paid to the words that are used than to the policy which dictates the act. Then let us first examine the policy of the law now before us, by taking note of the mischief it was intended to remedy. It is entirely manifest that this act was designed to prevent fraud, in overestimating the weight of butter contained in packages upon its sale and transfer in market. So to effectuate this purpose, it was provided that the manufacturer of the tub, firkin or other vessel in which butter was to be packed, should ascertain and mark the weight thereon, and to give such mark verity, he was also required to add his name. The marking in a legible and distinct manner was what was desired and intended to be secured. The language is, that the manufacturer “ shall brand in legible letters and characters upon every such firkin, tub,” etc., his name and the weight of the vessel. The object to be attained would be perfectly answered by marking, as was done in this case, by stencil plate and chisel. To brand, in common parlance and according to common acceptance at this day, means to mark. Indeed, what was formerly generally done by a hot iron in the way of marking packages, is now done by the more convenient and very common use of the stencil plate. The purpose to be attained by the statute is equally well answered by such use. In referring to marks placed upon packages of merchandize, it is denominated branding quite as often as otherwise. To brand has become an equivalent expression with to stamp, and to mark. It is quite obvious that the word “ brand,” was used in this sense in the statute; certainly it was used in this sense within the spirit of the law. That this is so, is also made apparent on referring to the title of the act, as “ an act in relation to the weights cmd ma/rhs on casks and packages containing butter.”

The ruling of the court was correct as we think, and the judgment must be affirmed, with costs.

Boardman, J., concurred.

Leakned, P. J.

(dissenting):

Aside from the statute, the defendant had, of course, the right to deface any thing on his own tubs. The simple question then is, whether he violated the statute. And that depends on this: whether the painting of the maker’s name on a tub and the cutting of marks thereon with a chisel are branding.”

The word brand ” itself shows its meaning. It is a piece of wood burning, or partly burnt — hence, a mark made by burning with a hot metal. Excluding the poetical and figurative use of the word, I find no definition which does not include the idea of burning. (See Webster’s Dictionary and Richardson’s Dictionary.)

In modern times the branding of articles has, to some extent, given place to the marking them by means of a stencil plate. But neither such marking, nor the cutting of characters with a chisel, is branding.

The statute is penal and can not be extended by implication or construction to cases within the mischief, if they are not, at the same time within the terms of the act fairly and reasonably interpreted.” (Verona Cheese Co. v. Murtaugh, 50 N. Y., 317.)

It is quite possible that the legislature may have intended to require this peculiarly permanent kind of marking. If they had intended to permit other kinds, they would have said mark or brand.” This is the language which they did use in regard to bales of hay (Sess. Laws 1860, chap. 155.) And again, in chapter 415 (Sess. Laws 1877): Shall distinctly and durably stamp, brand or mark upon every tub,” etc. Thus they have showed their knowledge of the meaning of this word brand.” So the sealers of weights are to seal and mark,” thus being allowed to use any proper kind of marking. And the witness Culver, in this case, who made the tubs, testifies : I did not brand them, either name or weight.” Erom which it appears that he, too, understood that while a brand might be a mark, yet every mark was not a brand.

In my opinion then, the stenciled name was not a brand,” and more plainly the chisel cuts, supposed to indicate weight, were not “ brands.”

There is, I think, another defect. It appears that the only marking supposed to indicate weight was with two parallel, perpendicular lines,” It does not appear that there was any thing marked on tbe tubs to show that these two lines indicated tbe weight. They might stand for pints, or pounds, or ounces, or the day of the month. The statute requires the branding with “the true and actual weight.” Two parallel perpendicular lines, without any thing more, do not mean two or eleven pounds.

We have nothing to do with the defendant’s supposed intent to defraud. He is civilly liable for any fraud. We have only to inquire whether he altered or defaced a “ brand ” made under the direction of that statute. I think that he did not, and that the judgment should be reversed.

Judgment affirmed, with costs.