author: BoaedmaN, J.: LeaeNBD, P. J.

text:
    MARY QUAIN, Appellant, v. MOSES RUSSELL and MORTIMER RUSSELL, Respondents.

      Oiml damage act— Oluvp. 646 of 1878 — when cause of action exists under.

    It is not essential to the existence of a cause of action, under chapter 646 of 1873, against the vendor of liquors, that an action should also be maintainable against the intoxicated person; it is sufficient if Ihe wife has been injured in her means of support through the intoxication of the husband.

    MotioN for new trial by plaintiff, after a dismissal of the complaint at the Circuit, upon the ground that it did not state facts sufficient to constitute a cause of action. The exceptions were ordered heard in the first instance at the General Term.
    This action was brought to recover damages, under and by virtue of the provisions of chapter 646 of the Laws of 1873, entitled “An act to suppress intemperance, pauperism and crime,” commonly known as the “ civil damage act. ” The complaint showed that the plaintiff was the wife of James Quain, and was his wife, and was living with him as his wife and depending on him for her support at the times of the injuries complained of. The defendant Moses Russell was a .hotel-keeper, and rented and kept a building for the purpose of keeping a hotel and selling liquor therein. The defendant Mortimer Russell was the owner of such building, and rented the same to the defendant Moses Russell for the purpose of a hotel, and had knowledge of the sale of intoxicating liquors therein. The defendant Moses Russell sold and delivered intoxicating liquors to said James Quain, the plaintiff’s said husband, in said building. The said James Quain drank the said liquors in said building, and became intoxicated, and spent his money upon which the plaintiff relied for her support, and by reason of his intoxication the plaintiff was iuj ured in her means of support.

      Burke & Kilburn, fo the plaintiff.

      Albert Hobbs, for the defendants.

       See ante, p. 151, note. — [Rep.

   BoaedmaN, J.:

If the complaint were technically defective the more appropriate treatment would have been to have moved to make it more definite and certain, or to have allowed an amendment of course upon the trial. When the defendant answers, he impliedly admits the sufficiency of the complaint as to mere matters of form, and when the issues come down to trial before the jury, objections to the sufficiency in mere matters of form will be regarded with slight favor. But upon authority I think the complaint in the case was sufficient. (Peterson v. Knoble, 35 Wis., 80; Schneider v. Hosier, 21 Ohio, 98.)

I suspect, however, that the complaint was dismissed upon the broad ground that no right of action can exist against the vendor of liquors except in cases where it would also lie against the intoxicated person. The learned judge was inevitably led to such decision by the unfortunate manner in which Hayes v. Phelan, owing to an omission in the list of decisions sent to the reporter, was reported in 4 Hun, 733. As that report is corrected in 5 Hun, 335, it will be seen that no such principle was adopted by the court. Apart from such error, there appears to be no such doctrine sanctioned by authority. In Baker v. Pope (5 S. C. R., 102), the contrary view is taken, though it is obiter. In the leading case of Schneider v. Hosier (supra), it is distinctly held that the loss of means of support by the wife, through the intoxication of the husband, gives to the wife a cause of action against the vendor of the liquor. The exercise of legislative power in such respects is very ably considered by Dixon, C. J., in State ex rel. Henshall v. Luddington (33 Wis., 107).

Although a new trial was granted the defendant in Dubois v. Miller (5 Hun, 332), it was not suggested that a cause of action founded on loss of support could not be sustained. The precise question has not, I think, been decided by any General Term in this State unless in Jackson v. Brookins (5 Hun, 530). But I think I am justified by the language of the statute, and the decisions and opinions of judges and courts in this State and other States, in holding that a cause of action was stated in the complaint.

It follows that the dismissal of such complaint was error, and a new trial should be granted, with costs to abide the event.

LeaeNBD, P. J.

(dissenting):

The constitutionality of this statute is not an open question in this court. (Baker v. Pope, 9 S. C. N. Y. [2 Hun], 556.)

Does the present case come within the statute ? This does not give a right of action to a wife, as sueh. It gives it to every husband, wife,” etc., “ or other person who shall be injured,” etc. The test, then, whether the action can be maintained, must be whether the plaintiff' has been injured.

The language of the statute is, injured in person or property, or means of support.” I suppose that “ injured ” implies injury in the legal sense of the word, and in no other. If a person were, by virtue of this statute, to sue the vendor of liquor to recover damages for injuries done by the intoxicated purchaser to property, I suppose the plaintiff would have to show ownership of the property, and such a wrongful act done to it as would, without the statute, create a cause of action against some one. Otherwise, the plaintiff in such an action could not be said to have been injured. And hence he would have no right of action against the immediate perpetrator of the supposed act, and none against the vendor of the liquor.

The question then arises, has a wife such an interest in her husband’s ability to work, that she can recover damages for an act which incapacitates him from working ? If a man assaults another, and so injures him as to prevent him from performing the ordinary work by which he is accustomed to support his wife, can she maintain an action against the wrong-doer, on the ground that she is “injured in means of support?” I think not. She does not own her husband’s wages after they are earned, nor his capacity to earn them before. In like manner, it seems to me, that, where the husband’s inability to work has been caused by intoxication, the wife is no more, in a legal sense, injured in means of support, than she is so injured where the inability has been caused by violence.

If the plaintiff’s husband had earned a sum of money by his wages, and it had been taken from him, his wife could not have sued for it. The loss might have occasioned her much suffering, but not a legal injury. If it had been taken from him by an intoxicated person, could she recover, under this statute, damages against the vendor of the liquor ?

The wife has, I think, no legal interest in the earnings of her husband. Hence, to disable him from the power of working, inflicts no legal injury on her.

And it seems to me that this statute makes no change in the law in this respect, but that it only makes the vendor of liquor (the remote cause) liable for damages on account of those acts for which, without the statute, the intoxicated person (the immediate cause) would alone have been liable.

Present — LeabNed, P. J., JBoabdmajbt and Booees, JJ.

New trial granted, costs to abide the event.


source: Caselaw Access Project

author: BoaedMAN, J.:

license: Public Domain

text:
    WILLIAM ANDREWS, Administrator, etc., Respondent, v. SILAS BETTS and others, Appellants.

      Sale of vessel, owned by tenants in common — power of Supreme Court to direct— Jurisdiction of admwcdty courts — Partition of personal property.

    Where a vessel is owned, in unequal proportions, hy several persons, who cannot agree upon the sale or for the working of it, the Supreme Court of this State has jurisdiction over an action brought by one owner to procure the appointment of a receiver, the sale of the vessel, and the division of the proceeds among the owners thereof.

      Semble, that the admiralty courts do not exercise jurisdiction to order the sale of a vessel owned by tenants in common, except in those cases in which the opposing interests are equal.

      If they hare jurisdiction in cases where the interests are unequal, it is not exclusive hut concurrent with that of the common-law courts.
    A court of equity has jurisdiction over an action, brought to secure a partition of personal property between tenants in common thereof.
    Appeal from an order overruling the defendants’ demurrer to plaintiff’s complaint in this action.

      3. Hcmd, for the appellant.

      Esek Gowen, for the respondents.
   BoaedMAN, J.:

Plaintiff and defendants are owners, in unequal portions, of a propeller, which is being used and run by the defendants upon the Hudson river under, an enrollment and license under the acts of Congress. The parties are unable to agree upon the sale, or for the working or operation of the same. Plaintiff also claims by his complaint, that the only way in which he can obtain his rights, as against the defendants, is by a sale of the vessel. Under such circumstances this action in equity is 'brought, whereby, among other things, the plaintiff asks that a receiver of said vessel may be appointed by this court, and that the same may be sold, and the proceeds divided among the owners according to their respective interests. To such complaint the defendants demur on the grounds: first, that this court has no jurisdiction of the cause of action; and second, that the complaint does not state a cause of action.

Upon the hearing at Special Term, such demurrer was overruled, and the defendants now appeal to. the General Term.

As to jurisdiction, it is claimed by defendants, that if the power to sell exists at all, it is vested by acts of Congress in the admiralty courts which have exclusive jurisdiction. The authorities which I have been able to examine indicate beyond doubt, that admiralty courts do not exercise jurisdiction to sell vessels owned by tenants in common, held in unequal shares, upon their dispute as to the employment of the vessel. In such case the majority of the owners control the use of the vessel, and admiralty courts only take jurisdiction to compel security to be given to the minority of the owners, for the safe return of the vessel. If the majority refuse to use the vessel, the court will give its use to the minority upon the same conditions. (Steamboat Orleans v. Phoebus, 11 Pet., 181; Grant v. Poillon, 20 How. [U. S.] Rep., 168; Ousten v. Hebden, 1 Wilson Rep., 101; 3 Rent Com., 152; Tunno v. The Betsina, 5 Am. Law Reg., 406.)

But when the opposing interests are equal so that no majority can control the conduct of the vessel,- admiralty courts have ordered the sale, and a distribution of the proceeds. Such action is apparently taken to secure the employment of the vessel in the general interest of commerce, and not out of any consideration for the controversy about the title. (Story on Part., 431-439 ; Davis v. The Seneca, 18 Am. Jurist, 486, etc.) I find no other instance in which admiralty courts have ordered a sale of vessels, on account of disputes among the owners. The case of Skrine v. Sloop Hope (Bee Adm. R., 2), is not accessible to me. But assuming that it declares the jurisdiction of admiralty to sell in both classes of cases alluded to, I think I am justified in saying that it is at variance with the elementary authorities and reported cases. (Ousten v. Hebden, 1 Wils., 101; Story on Partner., §§ 438, 439; Strelly v. Winson, 1 Vernon [m. p.], 297; 3 Kent Com., 153, note 6; Tunno v. Betsina, 5 Am. Law Reg., 406, where its authority is questioned; 1 Pars, on Partner., 560.) The case of Tunno v. The Betsina (ante), contains a very interesting review of the subject.

I can see no reason why admiralty courts ought not to possess and exercise jurisdiction to order a sale in case of disagreement between owners, irrespective of their shares. Such a power exercised in the discretion of the court, could scarcely fail to subserve the interests of the well disposed owners, and defeat the malice or stupidity of the evil disposed owners.

But .if it should be conceded that admiralty courts possessed such power, is their jurisdiction exclusive? By section 563, subdivision 8, United States revenue laws, District Courts have exclusive jurisdiction of all civil causes of admiralty and maritime jurisdiction, “saving to suitors in all cases the right of a common-law remedy when the common law is competent to give it.”

By this exception admiralty and common-law remedies may be concurrent in some cases, and if so the right to the common-law remedy is not taken away. The mode of proceeding would be very different, but the end is the same. In admiralty the proceeding is against the vessel only; at common law the action is between the owners of the vessel, touching their ownership, or liability as owners of the vessel. The judgment or decree at common law-affects only their interest in or title to the vessel. Admiralty seizes the vessel and proceeds against it by name, to enforce maritime liens growing out of maritime contracts or torts, and in such cases only is its jurisdiction exclusive. (The Belfast, 7 Wall., 624, 644; In re Josephine, 39 N. Y., 19.) But when vessels are within the territorial jurisdiction of the States, they are not exempt from the operations of the State laws for the collection of claims or the creation or enforcement of liens not founded upon maritime contracts or torts. (Brookman v. Hamill, 43 N. Y., 557.) This doctrine is well illustrated in the case of mortgages on vessels, which admiralty courts will not undertake to enforce (Bogart v. Steamboat John Jay, 17 How. [U. S.] R., 399), by reason of want of jurisdiction.

No reason is seen, therefore, why equity may not entertain jurisdiction for the partition, by sale and distribution of the proceeds of the vessel in controversy, if partition of personal property may be sought in equity.

This court, in the seventh district, has decided that very question in Tinney v. Stebbins (28 Barb., 290). Justice E. D. SMITH in that case says: “A court of equity is competent to give relief in such eases by decreeing the partition of the property, or a sale thereof where partition is impracticable, and a division of the proceeds.” Citing Smith v. Smith (4 Rand., 95); Kelsey v. Clay (4 Bibb, 441). The case of Tinney v. Stebbins was an action in equity for the partition of personal property held by the parties in common. In Tripp v. Riley (15 Barb., 334), Mr. Justice JohN-soN says, tenants in common of personal property “ were compelled to resort to equity, when they could not agree upon severance of their respective interests, and the common property was not in its nature severable.” This language is cited with approval by Mullett, J., in Fobes v. Shallock (22 Barb., 570). The same idea is conveyed by the opinion of Judge PeiNDLe in Lobdell v. Stowell (37 How. Pr., 88; affirmed by the General Term of the sixth district, and approved by JonNSON, J., in note to Channon v. Lusk, 2 Lans., 211, 216). Only one of these cases was an action in equity for partition, and hence the language quoted was not necessary to the decision of such cases. They indicate, however, the sentiment and feeling of the courts.

By the civil law the same result is attained under an implied promise that the property held in common shall be sold, in case the owners cannot agree as to its management or disposition. (Just. Inst., lib. 3, tit. 27, 3.) So when liquids were mixed by consent or accident, the product became common property, termed confusio, and any owner could recover his own share by bringing an action, eommwii dividendo. (Domat, bk. 2, tit. 5; Institutes, mite.)

Under the authority of Tinney v. Stebbins (ante), which is directly in point, we must hold that an action-for the partition of personal property may be brought in equity. The question has received little attention by the courts, but it is of very great consequence. Its importance will demand the review of the decision of this court by the Court of Appeals.

We have thus attempted to establish, as a principle of our law, that a court of equity has jurisdiction to entertain an action for, and decree a partition of, personal property between tenants in common.

We consider this power, however, like many other branches of equity jurisdiction, to be somewhat discretionary with the court, and we are not prepared to say that a tenant in common of personal property, as a matter of right, may, in all cases, bring a partition suit. It is enough, however, that in the present instance, goó'd grounds are shown why the court, in justice to all parties, should entertain the action.

The order appealed from is, therefore, affirmed, with ten dollars costs and printing expenses.

The same decision is given in the cases of Wm. Andrews, Admr., v. Silas Betts et al., and John S. Robinson v. Silas Betts et al., the three cases being argued as one, and the same order to be made in each.

Present — LearNEd, P. J., BoaRdmaN and Booees, JJ.

Order affirmed with ten dollars costs and printing, with leave to answer, etc.


author:
Boakdhan, J.:
      LearNed, P. J.

text:
    HORACE H. HICKS and another, Plaintiffs, v. GEORGE C. MARSHALL, and JOHN BOYER, Committee, etc., of GEORGE C. MARSHALL, Defendants.

      Inquisition — ptima fame evidence of unsound mind — Promissory note made by lunatic— action upon — burden of pn'oof in.

    This action was brought by the plaintiffs against the mater of a promissory note, which they had purchased, before maturity, in good faith, and for full value. Upon the trial the proceedings upon an inquisition, had after the making of the note 'and the commencement of this action, were given in evidence, by which the defendant was declared to be of unsound mind at the tirne he made the same. Held, that the inquisition established, prima facie, the insanity of the defendant at the time of the making of the note, and that, in order to recover, the plaintiffs must show either that he was sane at that time, or that he had received such a consideration for the note as that justice and equity required it to be paid out of his estate.
    Motion for a new trial upon exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiffs.
    The action was brought upon a promissory note executed by Marshall to one Hunt, and by him indorsed to plaintiff.

      W. W. Hare, for the plaintiffs.

      H. A. Maynard, for the defendants.
   Boakdhan, J.:

This action was originally brought against Marshall upon his promissory note for $250. Marshall put' in an answer. Sometime afterward, by proceedings duly had, Marshall was declared to be a person of unsound mind, and for that cause is incapable of the government of himself or the management of his affairs * * * and that he has been in that same state for one year and a-half past; that he has, during the last seven years, on several occasions, been afflicted with mental alienation.” The inquisition is dated March 2, 1874, and the note sued upon is dated June 18, 1873. Boyer was duly appointed committee. On the 4th of August, 1874, by order of the court, Boyer was made a party defendant, with leave to put in a supplemental answer setting up Marshall’s unsoundness of mind as a defense. This was done.

Upon tbe trial, tbe note was read in evidence. A stipulation was also read, to tbe effect that plaintiffs purchased said note before it became due, paid full value therefor, and are bona fide holders thereof; that they had no knowledge of the consideration of the note, and did not know defendant, nor of him, except that he was a farmer and reputed to be good. The plaintiffs then rested. The defendants then gave in evidence the proceedings on the inquisition, and appointment of Boyer as committee, and rested.

The defendants, by various requests, asked the court to hold and decide that, upon the evidence given, a defense was established, and a verdict should be given to the defendants. This was refused, and a verdict was ordered for the plaintiffs for the amount of the note and interest. It is alleged that such decisions of the court were erroneous, and therefore a new trial should be had.

This court is called upon to determine whether the inquisition so put in evidence constituted a legal defense to the action.

Persons of unsound mind are not necessarily relieved from the obligation of their contracts. When they or their estates have been benefited by their contracts, they will be held liable. A person dealing with them under such circumstances, in good faith, without fraud and without notice of any mental unsoundness, may create a valid claim. (2 Kent, 451, note 6.) Still, upon the appearance of incapacity it is in the discretion of a court of equity, upon the facts shown, to order the debt paid or not, as shall seem just. In this case there is no evidence what the consideration of the note was; it is therefore presumptively good and valid in the absence of the inquisition. If the note was given for money lent, or property purchased, whereby defendant’s estate was increased and benefited, equity would compel its payment. The inquisition has found Marshall of unsound mind ; it does not follow that he should not pay his debts honestly contracted prior to that date, though the inquisition overreached the time when the debts were created. If it be shown that he was cheated, defrauded or taken advantage of, the courts will be very ready to protect him and his estate from the consequences thereof.

In this case the plaintiffs’ cause of action was complete when it was begun. They were bona fide purchasers for full value, and before the maturity of the note in suit. Did the inquisition, afterward taken without their knowledge, and to which they were not parties, destroy the plaintiffs’ rights, or were the defendants bound to go further, and attack the consideration or the bona fieles of the plaintiffs? (1 Pars, on Notes, 276.) I apprehend the supplemental answer, and the order allowing Boyer to be made a defendant and put in such answer, is equivalent to permission by the court that the validity of plaintiffs’ claim might be tested at1 law, and that the 'Committee should be permitted- to take care of Marshall’s rights during the litigation. In the discharge of this duty the defendants have seen fit to rest the ease upon the findings of the inquisition. It is insisted that such evidence is sufficient to defeat plaintiff’s action. It is the only evidence touching Marshall’s mental condition. Such evidence is not conclusive; it may be rebutted, but until it is overthrown, it will constitute prim,as faoie evidence of the fact. (Sergeson v. Sealey, 2 Atk., 412.) Such I understand is the settled doctrine of our courts. Judge BeoNSON says, in Osterhout v. Shoemaker (3 Hill, 516): I see no principle upon which the inquisition taken upon a commission of lunacy can be given in evidence to defeat the rights of third persons who were strangers to the proceedings. * * * But it seems to be settled that such evidence is admissible though not conclusive.” Hart v. Deamer (6 Wend., 497), is also directly in point, the inquisition having been taken after the date of the contract and overreaching it. (Sergeson v. Sealey, 2 Atk., 412.) In Goodell v. Harrington (3 N. Y. S. C., 345), it is held that an inquisition is prima fcocie evidence of defendant’s insanity before the contract made, and the burden was cast on plaintiff to show the contract was made during lucid intervals, or that the inquisition was erroneous. (See, also Hoyt v. Adee, 3 Lans., 173; Van Deusen v. Sweet, 51 N. Y., 378, 386; Griswold v. Miller, 15 Barb., 523.)

Prom these authorities, it follows that the inquisition was competent evidence to establish the mental incompetency of Marshall, at the time he signed the note; that being so, the burden of proof was thrown upon the plaintiff to overcome the presumption arising from the findings of the inquisition, and to establish the mental competency of Marshall at the time the note was made.

The case of Lancaster Co. Nat. Bank v. Moore (12 Alb. Law Jour., 185), is relied upon by the plaintiff, but in that case the action was sustained, upon the principle that the money obtained by the defendant from the plaintiff was in the nature of necessaries, and was applied to the payment of his debts; the consideration was presumptively good, and beneficial to the defendant’s estate. In the case under consideration we have, upon the evidence, a defendant incapable of making a valid note at the date of the note in suit; we are not informed of the consideration for which the note was given. Under such facts, we think courts ought not to presume the adequacy of the consideration in order to sustain this judgment against the lunatic. I understand this action is now pending in effect against George 0. Marshall alone, because the committee cannot be sued at law. That the committee is permitted to attend to the defense of Marshall, and by the answer interposed is so doing; that the action is being prosecuted for the information of the court, and to determine whether the plaintiffs’ claim is founded, in justice, and ought to be paid out of the defendant’s estate; that a recovery is founded, first, upon the sanity of the defendant when the note was given, but even if then insane, a recovery may still be had if the consideration moving to the defendant was of that nature which justice and equity require to be paid. When the defendant rested the burden of proof was on plaintiffs, to show the nature and fairness of the transaction and sufficiency of the consideration. The presumption arising from the possession of the defendant’s note is overcome by the findings of the inquisition. Unless the plaintiffs show the defendant sane when the note was executed, or that the consideration was such as should be upheld in equity, the defendant would be entitled to a verdict upon the prima faoie defense established by proof of the inquisition.

In other words, this trial is for the information of the court, and by its results the future action of the court will probably be governed ; but in no view, as I understand the law, can a verdict be allowed against Boyer, the committee; he is an officer of the court, and acts only through its orders; an action begun against the committee would be in contempt of the court.

For the reasons given, I think the verdict should be set aside and a new trial granted, costs to abide the event.

LearNed, P. J.

(dissenting):

The following facts were proved and not disputed: Tbe plaintiffs were tona, fide holders, for full value, of a negotiable promissory note, made by Marshall and transferred to them, before it was payable. They had no knowledge of Marshall’s alleged lunacy. After the note was due, and after this action had been commenced, and after Marshall had put in a verified answer, not averring lunacy, proceedings in the nature of a writ de lunático were had, and Marshall was declared to be a lunatic, and to have been a lunatic for a year and a-half previous. This time included the date of the note. No'other fact was proved. There was then no question for the jury. The court directed a verdict for the plaintiff. The defendants appeal. If the court was in error, then it follows that the verdict should have been directed for the defendants.

We have then this question: When a negotiable promissory note is made by a person, against whom no proceedings de hmatico have been taken, and that note, before it is payable, has passed into the hands of a Iona fide holder, for full value, who has no knowledge of the maker’s alleged lunacy, is proof of such lunacy, without any proof of the payee’s knowledge of the same, and without .any proof of fraud upon the maker, a defense to the note ? I think it is not.

In Brown v. Joddrell (1 Moo. & M., 105), it is said: “The defense (of lunacy) will not avail unless it te shown that the plaintiff imposed on the defendant.”

In Dana v. Lady Kirkwall (8 C. & P., 679): “ It is not enough that Lady Kirkwall was of unsound mind, you must be satisfied that the plaintiff knew it and took advantage of it.”

In Molton v. Camroux (2 Exch., 487; affirmed 4 id., 17), it is said that where a person, apparently of sound mind and not known to be otherwise, enters into a contract which, is tona fide and which is executed and completed, and the property which is the subject of the contract cannot be restored so as to put the parties in statu quo, the contract cannot be set aside for alleged lunacy. (To the same effect, Baxter v. Portsmouth, 5 B. & C., 170.)

In Elliot v. Ince (7 De G., M. & G., 475), the chancellor said: The result of the authorities seems to be, that dealings. of sale and purchase by a person apparently sane, though subsequently proved to be insane, will not be set aside against those who have dealt with him on the faith of his being a person of competent understanding.”

The same doctrine may be found in the courts of this country. “No contract,” say the court in Young v. Stevens (48 N. H., 133), “ can be rescinded, until both can be restored to the condition in which they were before the contract was made.”

In Beals v. See (10 Penn. State, 56), it was decided that an executed contract by a merchant, for the purchase of goods, is not avoided by proof of lunacy, unless there was fraud by the vendor, or knowledge of the lunatic’s condition.

The court cites the familiar doctrine that, when one of two innocent parties must suffer, the loss should fall on him by whose act it is occasioned. This was not a purchase of necessaries.

In Lancaster Co. Bank v. Moore (12 Alb. Law Jour., 185), a case in the same State, the plaintiff was allowed to recover upon the note of the defendant, who had been adjudged a lunatic. The court say: ■ “ The bank had, in good faith, loaned the money; the contract was executed, so far as the consideration is concerned; it would be derogatory to law and good morals that the defendant should He allowed to retain the money.”

In Behren v. McKenzie (23 Iowa, 343), an action was brought upon an injunction bond, which, of course, was not an action for “ necessaries.” This was held to be an executed contract, and the plaintiff recovered. And the court say: “But, with respect to executed contracts, the tendency of modern decisions is to hold them (persons of unsound mind) liable in cases where the transaction is in the ordinary course of business, is fair and reasonable, and the mental condition was not known to the other party, and the parties cannot be put in statu quo.”

In the present case there is no evidence that the payee, Hunt, knew or suspected Marshall to be a lunatic. It is positively proved that the plaintiffs knew nothing of his lunacy. The parties cannot be put in statu quo, because the plaintiffs have paid their money to Hunt, the payee of the note.

This is the case of an executed contract. . The note recites, and isjprima facie evidence of a good consideration, received by the maker. (Edwards Prom. Notes, 56.) Indeed, as to Iona fide holders, like the plaintiffs, it is conclusive evidence, as a general rule, of such good consideration. On the proof as it stands, Marshall must be presumed to have received a good or valuable consideration. Iiis lunacy is no evidence to the contrary. The plaintiffs are entirely without fault. Even if Marshall be equally innocent (which is the most favorable supposition for him), yet it is his act which occasioned the loss, and, on that ground, he should bear it.

But, in order to defeat the plaintiffs, we must presume that Marshall received nothing; or, at least, must presume that Hunt knew that Marshall was a lunatic; and not only this, but further, we must presume that Hunt defrauded him. This is to reverse the rule that fraud is not to be presumed.

It will be seen, by several of the cases above cited, that the liability of the lunatic is not confined to an indebtedness for necessaries. (See, also, Campbell v. Hooper, 3 Sm. & G., 153.) And therefore it is not necessary for the plaintiffs to show that the debt was contracted for that cause.

In 1 Parsons on Bills, 150, it is said, on the authority of Sentance v. Poole (3 C. & P., 1), that the note of one, known to the payee to be insane, is void, even in the hands of a bona fide holder. The case cited hardly goes to that extent. But there is no evidence in the present case that Hunt knew or suspected Marshall’s lunacy. In the absence of all proof on the subject, it is a reasonable presumption that no man is suspected of lunacy by those who deal with him, prior to the taking of proceedings de limatico.

The innocent holders of negotiable paper are, I think, entitled to the benefit of that presumption. They have a right to call on the defendant, before he can successfully defend this action, to show not merely his lunacy, but Hunt’s knowledge or suspicion of it, and the fraud, if any, ¿practiced upon him. If he was not defrauded, he ought to pay.

Present — LeabNed, P. J., Boabdmae and Bogues, JJ.

New trial granted, costs to abide event.


author: LeabNed, P. J.:

text:
    THE PEOPLE ex rel. WILLIAM E. DEMAREST and others, Appellants, v. CHARLES S. FAIRCHILD, Attorney-General of the State of New York, Respondent.

      Quo wctA'ranto — Oode, § 432 — Aitin'ney-General can/not be compelled to bring action of.

    The right to remove one who has unlawfully intruded into a public office is vested in the State alone, and its decision, as to whether or not an action shall be brought to remove such intruder therefrom, is final and cannot be reviewed by the courts.

      People v. Attorney-General (22 Barb., 114) followed.
    Appeal from an order made at the Special Term, denying a motion for a writ of peremptory mandamus.
    This is a motion for a peremptory writ of mandamus, to compel the respondent, as attorney-general, to institute and prosecute to final judgment an action in the nature of a quo warranto, in the name of The People, on behalf of the relators, to determine the title of Samuel A. Lewis and others to the office of alderman for the city of New York, and to determine their right, as a board of aldermen, to exercise the powers and discharge the duties of the common council, and to oust them therefrom, and to establish in the office of alderman and assistant alderman these relators, and to invest them collectively with the right to exercise the powers and discharge the duties of such common council.
    The relators allege that they were duly elected aldermen and assistant aldermen of the city of New York, pursuant to the charter of said city, and that as such were duly sworn, and on the first Monday of January last the boards of aldermen and assistant aldermen duly organized and notified the mayor, who refused to recognize them as such.
    That the act of 18J3, chapter 335, section 2, and the amendments thereto, abolishing the board of assistant aldermen, and merging the duties thereof into the board of aldermen, and establishing what is called the minority system of electing- the members of such board of aldermen, is unconstitutional.
    That Samuel A. Lewis and others, claiming to be elected aldermen, under said unconstitutional acts, on the first Monday of January, 1876, organized as such, and have ever since pretended to discharge the duties of the common council, and said mayor has so recognized them.
    The attorney-general having refused to bring an action of quo warranto, this application was made to compel him to do so.

      Wilson F. Wolf, for the appellants.

      Charles 8. Fairchild, respondent, in person.
   LeabNed, P. J.:

The views expressed by Judge Harris, in People v. Attorney-General (22 Barb., 114), are sound. When a person intrudes into an office, it is the right of the State, as sovereign, to remove him. Individuals have no such right. This is still the law, although officers are elected and not appointed. Hence the State has the right to decide whether it will or will not remove the intruder. The right to make that decision must be vested in some one. It is vested in the Attorney-General.

As is pointed out by Judge HARRIS, the Court of King’s Bench sometimes restricted the exercise of this power, but it never compelled its exercise. So, by the present law, in certain actions, it is only by leave of the court that the attorney-general may sue. But there is nothing to show that the court can ever compel him to bring an action in any of these or similar cases.

If this mandamus could be granted, then one of two results must follow: either the court must decide, in each case, whether under all the circumstances a quo warranto ought to be brought; or the. court must, as matter of right, in all cases direct the attorney-general to bring the action.

The first alternative throws on the judiciary a duty which belongs to the administrative part of the government. The second assumes ' that it is the right of individuals, and not the exclusive right of the State, to remove intruders from offices usurped by them.

It is suggested that the attorney-general may neglect his duty. That must always be possible when a matter is left to the discretion of an officer, as it often is. Far greater evils would arise if the court were to assume the exercise of a discretion not intrusted to them, or if they were to allow any individual whatever to compel the commencement and prosecution of actions of quo warranto against officers of the State.

A quo warra/nio should continue to be, as it always has been, an action by the State to oust an alleged intruder. It should not degenerate into a personal contest between two claimants of an office. And therefore the State, in its administrative capacity, should have the right to bring a quo warranto against intruders into public offices, in its own discretion.

The order appealed from should be affirmed.

Present — LeARNBd, P. J., Bocees and Boardhan, JJ.

Order affirmed.


author: LeaeNed, P. J.:

text:
    CHARLES McKINNEY and SHERMAN D. PHELPS, Respondents, v. HORATIO N. HOLT, Appellant.

      Lease —possession under — defense to action upon — Quantum meruit.

    In May, 1870, the defendant entered into an agreement with one D., the owner of a coal yard, by which he was to deliver coal at the yard for D. to sell, to remain defendant’s property until sold and paid for, and to place a man in the office, as his agent, to hold the coal and receive the proceeds of the sale thereof, which proceeds after certain deductions for expenses as provided for in the agreement, were to be divided between defendant'and D. In pursuance of this agreement defendant had, October 14th, 1870, deposited a large quantity of coal in the yard. On that day plaintiffs purchased the yard upon the foreclosure of a mortgage, and leased itto the defendant until April 1st, 1871. Subsequently defendant sold the coal in the yard and assigned his lease to O. who thereafter demanded possession of the yard and office from D., who refused to give up the possession of the office and portions of the yard, claiming that he was entitled to occupy the yard and sell the coal under the agreement with defendant. G. before April first sold all the coal sold to him by defendant, and stored other coal in, and sold' the same from the yard.
    In this action to recover rent due under the lease, defendant defended on the ground that the plaintiffs had failed to deliver to him possession of the demised premises. Held, 1. That if the claim of D., that he was entitled to possession under his agreement with defendant, was rightful, then defendant was kept out of possession through his own fault, and so could not complain thereof.
    3. That if such claim was unfounded, then D. was a -wrong-doer and defendant should have removed him.

      3. That as defendant’s assignee occupied a portion of the premises for the entire term, he was, in any event, liable for the value of the portion so occupied.
    Appeal from a judgment in favor of the plaintiffs, entered upon the report of a referee.
    This was an action to recover the rent secured by a lease given by the plaintiffs to the defendant. The referee found that in May, 1870, the defendant and one Devereux entered into an agreement with reference to a coal yard owned by Devereux. By this agreement defendant was to have the use of the yard, and was to furnish coal for him to sell and share the profits with him, defendant to have the right to employ a man to remain on the premises to look after his interests. In pursuance of this agreement defendant delivered large quantities of coal, and had in the yard on October 14th, 1870, about 2,200 tons of coal belonging to him. On that day the yard was sold upon the foreclosure of a mortgage given by Devereux and purchased by the plaintiffs, who, on the same day, leased the same to the defendant until April 1st, 1871. On the same day defendant assigned the lease and sold all the coal to one Gilmore, who sold and disposed of all the coal to his customers. Devereux objected to the sale of the coal to Gilmore and refused to give up possession of the office and certain portions of the yard, upon the ground that he was entitled to sell the coal and remain in the yard under his agreement with the defendant. The referee found, as conclusions of law, that upon the sale under the mortgage the plaintiffs became the owners in fee, and entitled to the immediate possession of the yard.
    <£ That upon said sale and purchase being perfected, the defendant had a lawful right to surrender and deliver up to the purchasers all his right to, and possession of said coal yard.
    That by taking a lease of said premises from the purchasers while he was in possession of some part thereof, the defendant is deemed to have held under them from the date of the lease, and cannot claim to have been in possession from that time in hostility to their title.
    In giving the lease in question, there was an implied obligation on the part of the lessors, that the lessee and his assigns should have possession of the entire premises leased.
    That the lessors did not give, nor did the defendant or his assignee acquire possession of the entire premises leased, but only of a part thereof, and there was a breach on the part of the lessors of their obligation.
    That by reason of such breach of the obligation of the lessors, the defendant or his assignees had the right to surrender to them said lease and the possession held thereunder, and the defendant would be exempt from all liability to pay rent to the plaintiffs, but by retaining during the term of the said lease, the possession acquired under the same by the defendant or his assignee, the defendant is liable to the plaintiffs in this action.
    That the plaintiffs are entitled to a judgment in their favor against the defendant for the sum of $457.64, being the amount of the stipulated rent, less the damages sustained by reason of the breach of the obligation of the lessors before mentioned, with interest upon the difference, besides costs.”

      Alfred 0. Ooxe, for the appellant.

      Cf. W. Hotchkiss, for the respondents.
   LeaeNed, P. J.:

By the agreement of May, 1870, between the defendant and Devereux, then owner of the premises, defendant obtained “ the free use of” the premises, so far as necessary for the purposes of that agreement. The defendant was to place coal there, which was to remain his until sold, and was to put a man in the office as his agent, to have possession of the coal for him. In pursuance' of that agreement defendant entered into the possession and use stipulated by the agreement, and deposited large quantities of coal on the premises.

While this agreement was in force, and on the 14th of October, 1870, the plaintiffs became the owners of the premises undel a statute foreclosure of a mortgage made by Devereux. On the same day, they leased the premises to the defendant, who then had 2,203 tons of coal thereon. The defendant assigned the lease to Gilmore, and sold him the coal. Gilmore obtained a partial possession, but was prevented by Devereux from obtaining full possession. Dev-ereux claimed that under his contract with the defendant he had certain rights in the office, as well as in the coal on the premises.

Admitting that the lease implies a covenant of quiet enjoyment, how has there been any breach ? Devereux claims no title paramount to that of the plaintiff. His claim is under his agreement with the defendant. If valid, the defendant is to blame. Mack v. Patchin (42 N. Y., 161), was a case not only of eviction under a paramount title, but really of eviction by the lessor himself.

Christopher v. Austin (11 N. Y., 216), was also a case of wrongful eviction by the lessor.

In the present case the defendant made the agreement, under which Devereux asserted (rightfully or not) certain claims. If rightfully, then the defendant himself is at fault for his being kept out of possession; if not rightfully, then Devereux was a wrongdoer, and defendant should have removed him. (Gardner v. Keteltas, 3 Hill, 330.)

Nor is the present a case where a lessee is kept out of possession of a part by a person holding under a prior lease, executed by the same landlord. (Christopher v. Austin, 11 N. Y., 216; Lawrence v. French, 25 Wend., 443.) And even if it were considered analogous to those cases, the defendant has had the benefit of the principle therein established. The plaintiffs have recovered not for the whole rent, but as for a quamtum meruit.

It may be that if Devereux had been holding adversely to the. lessors, the lease would have been void. (Livingston v. Proseus, 2 Hill, 526.) But the referee has allowed the plaintiffs to recover rent only for that part of which the defendant, or his assignee, obtained possession. Even then if we assume that, at the time of the execution of the lease, the defendant was not, and Devereux was, in possession, still the referee has done no injustice to the defendant. So far only as the assignee of the defendant obtained possession, has the defendant been adjudged to pay. I have examined the exceptions to the admission and rejection of evidence. In the view above taken they are not material.

The judgment of the referee should be affirmed with costs.

Present — LeabNed, P. J., Bookes and Boaedmax, JJ.

Judgment affirmed with costs.


author: By the Court :

text:
    In the Matter of ISAAC B. CULVER and SAMUEL A. HETFIELD, Appellants, v. THE VILLAGE OF FORT EDWARD, Respondent.

      Tillage of Fort Edward, — Town, bonds ■— majority of tamable inhabitants — rote of —r what constitutes— Ohap. 953 C/T867— chap. 317 of 1868.
    Chapter 953 of 1867 as amended by chapter 317 of 1868, authorizing the village of Fort Edward to issue bonds, requires that notice of the special election, provided for in said acts, should he published for at least two weeks previous to the time appointed for such election.
    No bonds can he issued under the provisions of said acts unless a majority of all the taxable inhabitants of the village shall vote so to do. The consent of a majority of all those who attend the meeting is not sufficient.
    Appeal from an order made at the Special Term, denying a motion for a peremptory mandamus commanding the respondent to issue its bonds for $20,000 in aid of the Glens Falls Railroad Company, as authorized by chapter 953 of 1867, as amended by chapter 317 of 1868.

      Beach <& Brown, for the appellants.

      Milliman ds Matthews, for the respondent.
   By the Court :

The application for a mandamus was properly denied if the modes prescribed by the legislature, as conditions to the issue of the bonds by the village, were not complied with. The ends to be accomplished being in derogation of the common law and of the rights of the citizens not consenting thereto, should be strictly construed.

By the act of 1867, chapter 953, notice of the meeting of the taxable electors was required to be published “ for at least two weeks previous to the time appointed for such election.” Within the time required for action by this law nothing was done. By chapter 317 of the laws of 1868 the statute of 1867 was amended, extending the time within which action might be taken by the village of Fort Edward, “ by publishing a notice of such meeting in all the newspapers published in said village.” By the third section of the act “all the provisions of said act (of 1867) as to the qualifications of voters and the mode of voting and holding of the election not inconsistent with the foregoing provisions, and all the other provisions not inconsistent herewith, are hereby made applicable to the village of Fort Edward.”

We think this made it necessary to publish the notice in all the papers “for at least two weeks previous to the time appointed for such election,” and that a publication eleven days previous would not be a compliance with the requirements of the law. This seems to us the natural and fair construction of the two acts in this respect.

By section 1 of the act of 1868, it is provided that “ the taxable inhabitants of said village may at such meeting by a majority vote decide to raise,” etc. By section 2 this expression is used: “ And in case a majority of the taxable inhabitants shall vote,” etc.; “the trustees shall' be commissioners,” etc. The trustees contend that this language requires a majority of all the taxable inhabitants and not merely a majority of such as choose to attend and vote at such meeting. It is conceded that a majority of all the taxable inhabitants did not vote to raise the money or issue the bonds.

This view of the trustees seems to us to be correct. We do not think it was” the intent of the legislature to allow this obligation to be created against the corporation by a minority of the taxable inhabitants. Such a purpose would be in hostility to all similar legislation touching the bonding of towns, cities and villages in aid of railroads, and if intended, would have been made clear by the use of language indicating such intent, as for example: a majority of all the taxable inhabitants voting at such meeting. The language used plainly imports a majority of all the inhabitants, whether voting or not voting. This construction is confirmed by a reference to chapter 32 of the Laws of 1868, relating to this same subject, whereby it was required that the majority of the taxable inhabitants required should represent a majority of the taxable property to be determined by the last assessment roll. This last requirement was struck out by the provisions of chapter 317 of that year, enacted a month later, but in other respects chapter 32 is followed by chapter 317.

For these reasons we think the legislature intended to require, and by chapter 317 did require, a majority of all the taxable inhabitants of said municipality as a condition precedent to the right of the trustees to issue bonds or raise money in aid of this railroad.

If these -conclusions are correct it is unnecessary to consider the other points taken by counsel, and the order appealed from should be affirmed, with ten dollars costs and expenses of printing.

Present — Learned, P. «L, BoabdMAN and BooKbs, JJ.

Order affirmed, with ten dollars costs and expenses of printing.


author: LEARNED, P. J.:

text:
    MARTIN W. PALMER, Plaintiff, v. SCHUBEL P. MINAR, Defendant.

      Promissory note — Patent right — sale of, consideration for — Statute of Pennsylvania — Lam of another State — knowledge of existence of — a question of fact, not of law.

    Section 8 of tlie act of April 12, 1872, passed by tie legislature of Pennsylvania, provides, tliat ■whenever a promissory note is given in consideration of the sale of a patent right, “ the words ‘ given for a patent right ’ shall be prominently and legibly written or printed on the face of such note, * * * and such note or instrument in the hands of any purchaser or holder shall be subject to the same defenses as in the hands of the original owner or holder.” Held, that the words, “ such note or instrument,” in the last clause of the sentence, mean a note or instrument having on its face the words “ given for a patent right,” and do not include one which, although given upon the sale of a patent right, does not bear those words.
    This action was brought against the maker of a promissory note, purchased by the plaintiff (who knew that the original consideration of the note was the sale of a patent right, but not the Pennsylvania law upon that subject), in this State, before maturity and in good faith. The defendant alleged that the note having been given in the State of Pennsylvania upon the sale of a patent right, and not having the words “ given for a patent right ” upon its face, was void under section 4 of the above act, which declares it to be a misdemeanor for any person knowing the consideration of a note to be the sale of a patent right, to “take, sell or transfer” the same unless it has the words “given for a patent right ” upon its face.

      Held (1), that the act did not in terms forbid the making of such a note, but only its sale or transfer; (2), that the statute did not affect the validity of such anote. when purchased in this State before maturity and in good faith; (3), that where a purchaser in this State did not know of the existence of the said statute, his right to recover upon the note was not affected by the fact that he knew that it was given upon the sale of a patent rigirEP"~

      MotioN for a new trial, on exceptions ordered to be beard in the first instance at the General Term, after a nonsuit ordered by the court.
    This is an action by the indorsee of a promissory note, made in Pennsylvania by the defendant. It is in the usual form, with the words “ without defalcation ” added. The answer sets up that the consideration of the note was the sale to the defendant of a certain patent right; that by the laws of Pennsylvania all notes given for such a consideration are required to have upon them the words ■ “ given for a patent right; ” that all such notes are, hy said laws, subject in the hands of any purchaser to the same defenses as in the hands of the original owner; that by said laws, it is a misdemeanor to take, sell, or transfer any such note not having said words thereon, knowing the consideration thereof; that therefore the transfer of the note alleged in the complaint was, and the plaintiff took the same, subject to the equities and defenses, in the hands of Phelps, the original holder. The answer further alleges agreements on the part of said Phelps, as a further consideration of the note, made at the execution and delivery thereof, and a breach of the same bjr Phelps and a loss thereby to the defendant, whereby the consideration of the note failed; and the answer says that the defendant will insist on these facts as a defense, and as a recoupment or counter-claim.
    On the trial of the cause, the plaintiff proved the note and also a statute of Pennsylvania, February 12, 1797, in regard to notes containing the words “ without defalcation,” and also a case decided in that State. {Lewis v. Reeder, 9 S. '& R., 193.) The defendant gave in evidence another statute of that State, April 12,1872, being ■that set up in the answer; and proved that the note was given in consideration of the sale of a patent right.
    Sections 3 and 4 of 'said act are as follows, viz.:

      “ § 3. Whenever any promissory note or other negotiable instrument shall be given, the consideration for which shall consist in whole or in part of the right to make, use or vend any patent invention or inventions claimed to be patented, the words £ given for a patent right,’, shall be prominently and legibly written or printed on the face of such note or instrument, above the signature thereto, and such a note or instrument in the hands of any pur-cbaser or bolder shall be subject to the same defenses as in the hands of the original owner or holder. ■
    “ § 4. If any person shall take, sell or transfer any promissory note or other negotiable instrument not having the words ‘ given for a patent right,’ written or printed legibly and prominently on the face of such note or instrument above the signature thereto, knowing the consideration of such note or instrument to consist in whole or in part of the right to make, use or vend any patent invention or inventions claimed to be patented, every such person or persons shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be fined in any sum not exceeding $500, or imprisoned in the county jail not exceeding sixty days, or both, in the discretion of the court.”
    The defendant offered to show an agreement by Phelps, as a part of the consideration, to furnish models, etc., and a breach thereof. The conveyance of the patent, in consideration of which this note was given, was made to the defendant and to one Allend. The court excluded the évidenceon the ground that the claim of recoupment was a joint claim of defendant and Allend. In rebuttal the plaintiff testified that he knew nothing of this law of Pennsylvania when he purchased the note.
    The plaintiff asked the court to direct a verdict for him. The court held that the note was void in its inception, and nonsuited the plaintiff without any motion by the defendant.

      H. Boardman Smith, for the plaintiff.
    Ignorance of the statute law of another State, is ignorance of fact. (8 Barb., 233; 40 id., 474, 475; 5 Seld., 53; 15 N. Y., 193; 1 ITall, 80.) Grant, for the argument, that this note was illegal, and that the taking and the making of it, were even felonious; this is no defense against the note, in the hands of an innocent purchaser for value, before maturity, “ unless the note is expressly declared void by statute.” {Grimes v. Hillenbrcmd, 4 Hun, 354; Hill v. Norihrup, 4 N- Y. S. O. [T. & O.], 120; Vallett v. Parker, 6 Wend., 615; 2 R. S., 691, § 6; Stoney v. Am. L. Ins. and T. Go., 11 Paige, 635; Hoek-well v. Charles, 2 Hill, 499 ; Merahanti Bank v. Spaulding, 5 Seld., 53 ; Oneida Bank v. Ontario Bank, 21 N. Y., 495, CoM-stook, J.; Sanford v. Wyekoff, 4 Hill, 442; Oity Basik of N. Y.
      v. Barnard, 1 Hall, 80-84; Bissell v. M. 8. and N. 1. B. B. Co., 22 N. Y., 273, ComstocK, J.; Story’s Promissory Notes, § 192; Edwards on Bills [m. p.], 337.) And the law of commercial paper is held to be the same in the State of Pennsylvania. (Greed v. Stevens, 4 Wharton, 223; linger v. Boas, 1 Harris, 601.) It is conceded law that a note may be enforced by an innocent holder, who purchases it for value before maturity, even of the one who has gotten it by highway robbery, and from the pocket of the maker, who had never issued it. (Hall v. Wilson, 16 Barb, 548 ; 2 Parsons’ Notes and Bills, 267, 268; Story’s Promissory Notes, §§ 191,192.) And the law is so held in Pennsylvania. (Kuhns v. Gettysburg Nat. Bank, 68 Penn. St., 445.)

      D. B. Hill, for the defendant.
    The note having been made, executed and delivered in the State of Pennsylvania, and by its terms payable there, it is governed by the laws of that State. (Curtis v. Leavitt, 15 N. Y., 227 and eases cited ; Story on Conflict of Laws [2d ed.], § 361, etc.; Bowen v. Neioell, 13 N. Y., 290; Waldron v. Bitohings, 9 Abb. [N. S.], 360; Chapman v. Bobert-son, 6 Paige, 627; 2 Kent’s Comm., 457.) ■ The fact that the note was subsequently purchased by the plaintiff in this State, does not change the rule. (Cloyes v. Hooker 6 N. Y. S. C. [T. & C.], 448; Jewell v. Wright, 30 N. Y., 259.) The note was void in its inception. It was given in violation of a statute. It is settled law in this State, that a contract founded upon an unlawful act, whether it be malum prohibitum, or malum in se, cannot be enforced, but is void. (Pennington v. Tovmsend, 7 Wend., 275; Hallett v. Novion, 14 Johns., 272; Barton v. Port Jaekson andUnion Falls Plank-road Co., 17 Barb., 397; Berra/n v. Tuanot, 5 Sandf., 153 ; Porter v. Havens, 37 Barb., 343 ; Griffith v. Wells, 3 Denio, 226 ; Ferdon v. Cunningham, 20 How., 154; Best r. Bander, 43 id., 176; Hoyt v. Allen, 2 Hill, 322; Conderman v. Hieles, 3 Bans., 108.) It was not necessary, to prevent the plaintiff being considered a bona fide holder, that he should know that the consideration was illegal." It is sufficient if he knew what the consideration was. Knowing the facts he was bound to know the law. (Shotwell v. Murray, 1 Johns. Ch., 512; Storrs v. Ba/rker, 6 id., 166 ; Holman v. Johnson, Cowp., 341; Story on Conflict of Laws [3d ed.], § 274.)
   LEARNED, P. J.:

There was no evidence of any failure of consideration, for the defendant was not allowed to prove the facts which might have shown this. The nonsuit was simply on the ground that the note was void in its inception.

Section 3 of the Pennsylvania statute enacts that whenever any promissory note shall be given, the consideration of which shall consist, etc., “ the words given for a patent right ’ shall be prominently and legibly written or printed on the face of such note or instrument above the signature thereto, and such note or instrument in the hands of any purchaser or holder shall be subject to the same defenses as in the hands of the original owner or holder.” These words, “ such note or instrument,” in the place where they are last used, must mean a note. or instrument bearing the words “ given for a patent right.” They do not include a note given for the consideration of a sale of a patent, which does not bear these words. On this ground the learned justice excluded, in the present case, the evidence of failure of consideration and the like. This must be the correct construction. For if notes, not bearing these words, were open to such defense in the hands of bona fide holders, the requirement of the statute that these words should be written on the note would be needless.

The fourth section of the same act declares that it is a misdemeanor punishable by fine and imprisonment, for any person knowing the consideration of such note or instrument to consist of such right to use a patent, to “take, sell or transfer” any note, etc., not having on it the words above mentioned. Nothing is said in this section of the making of such a note.

The taking of this note by the plaintiff and the transfer to him do not appear to have taken place in Pennsylvania, and are therefore not affected by this act. The only question is as to the effect on the plaintiff’s rights of the taking this note in Pennsylvania by Phelps, in whose hands it had its inception.

It is not necessary to dispute the proposition that in the hands of Phelps this note would have been void. (Swords v. Owen, 43 How., 176, and cases there cited ; and Conderman v. Hicks, 3 Lans., 108.) Put all those cases were decided between the original parties, or between those wbo stood in no better position than the original parties.

But in the hands of a bona fide holder, without notice, illegality of consideration is not necessarily a defense. (Grimes v. Hillenbrand, 11 S. C. N. Y., 354; Hill v. Northrup, 4 N. Y. S. C. [T. & C.], 120 ; Vallett v. Parker, 6 Wend., 615 ; Safford v. Wyckoff, 4 Hill, 442.) And this statute does not declare the note void, nor does it even declare the giving of the note to be a misdemeanor.

The defendant, however, insists that these cases do not apply; because he says that the plaintiff knew what the consideration was. Now, if the invalidity of the note depended on the laws of this State, then one who here took the note, knowing the facts which made the note illegal, would, of course, be chargeable with knowledge of the illegality. But, in the present case, the alleged invalidity depends on the statute of Pennsylvania. The existence of such statute is a matter of fact, not a matter of law, as to persons living, and entering into contracts, here. The plaintiff proved affirmatively that he did not know of this statute. The bona fides, then, in the purchase of the note is not taken away by his mere knowledge that the note was given for a patent right.

And it must be further noticed that in this case there is not even any illegality of consideration. It is only the tahmg of the note which is to be in violation of a statute. And, in addition to the plaintiff’s want of knowledge of the Pennsylvania statute, it does not appear that he knew the fact that the taking of the note by Phelps was within that State. Beyond the limits of that State such taking would not be a misdemeanor.

There should be a new trial, costs to abide the event.

Present — LearNed, P. J., BoaedmaN and BooKes, JJ.

New trial granted, costs to abide event.


author: Bocees, J.:

text:
    GEORGE PHILLIPS, Appellant, v. CHARLES E. DUSENBERRY and JESSE B. ANTHONY, Impleaded, etc., Respondents.

      Infant — judgment against — effect of — Guardian ad litem — neglect of, to plead

    A judgment rendered against an infant who is duly summoned and has a guardian ad litem appointed, who accepts the trust, will hind and conclude him as if he were an adult.
    The practice of giving minors six months after coming of age to show cause against decrees rendered against them during their minority, applied only to actions in equity, and not to actions at law for the recovery of money due on contract, and this rule is now abrogated by statute, providing for the appointment of guardians ad litem.

    Appeal from a judgment in favor of the defendant entered upon a trial before the court at Special Term. The plaintiff, one of the firm of E. & G. Phillips, was, previous to July 30, 1874, sued by the defendants before a justice of the peace of Montgomery county. The summons was personally served, and upon his failure to appear, a guardian ad 1/item was appointed for him and judgment was afterward entered against him. No appeal was taken from the judgment. This action was brought in equity to set it aside on the ground of the infancy of the plaintiff at the time of the rendering of the judgment against him. The guardian ad litem knew that the plaintiff was an infant, but did not interpose that defense. The case was affirmed at the General Term, upon the following opinion of BooKes, J., delivered at the Special Term.

       Decided May term, 1876.

   Bocees, J.:

The judgment rendered by the justice of the peace against the plaintiff (then a minor) and his partner, Ervin Phillips, was neither void nor erroneous. The action was on contract. The amount claimed was within the jurisdiction of the court. The summons was duly and personally served on both defendants, and a guardian ad litem was appointed for the minor (the present plaintiff), and he accepted the trust. Thus it appears that the justice had jurisdiction of the person and subject-matter of the action, and all the proceedings required by law were observed. Nor is the judgment attacked for fraud. It is not alleged that the judgment was fraudulently obtained.

The right to have the judgment- stayed or discharged as to the plaintiff, is put on the sole ground of his infancy at the time the debt was contracted, and when the judgment was rendered against him, with the- additional facts, perhaps, that the debt was not for necessaries ; that he remained a minor after judgment was rendered until the time to appeal had elapsed, and that the judgment was rendered in Justice’s Court, wherein he was remediless by any proceeding which could be there taken.

The plaintiff was summoned to answer before the justice where he could have interposed the defense of infancy. This he and his guardian ad litem omitted to do, and judgment went against him. Is he concluded by such judgment 1 It is undeniable that the defense of infancy is personal to the infant. He may or may not insist upon it to defeat his contracts. A party cannot plead the infancy of his co-defendant.

"With these preliminary remarks it is proposed to examine a few of the many cases bearing more or less directly upon the subject under examination. The defense of infancy, like other matters of defense, should be put forward on the first opportunity.

In Graham v. Pinckney (7 Robt., 147), the defendant, who had appeared by guardian, was in default in interposing an answer. The court refused to let him in on the defense of infancy, and denied a motion to set aside the judgment entered against him by default for want of an answer. I do not approve of this decision, as I think the motion, having been in the action against the infant and the default excused, should have been granted on terms covering the expense of the default and motion. Rut the case is cited to show that the defense of infancy should be interposed on the first opportunity.

In Blake v. Douglass (27 Ind., 416), it was held that infancy, being a personal privilege, might be waived, and that if not pleaded, a judgment against an infant would be binding upon him. The action was brought to enforce a judgment. The defendant set up, by way of defense, that at the time of the rendition of the judgment, he was a minor and did not appear in the action, either in person or by attorney, and that the judgment was taken against him by default. The court overruled this alleged defense, holding that the facts averred only showed error in the original judgment, which should have been corrected in that suit. ■ In the opinion of the court, it is stated “ that the infancy of the appellant might have been a good defense, if he had appeared and set it up in the original suit; that it was a personal privilege, and having failed to avail himself of it at the proper time, by suffering judgment to be taken against him by default, the judgment is binding on him.

The action in Wrisleys v. Kenyon (28 Vermont, 5) was audita querela to set aside a judgment rendered before a justice of the peace. The ground of proceeding was that the party was a minor, and that no guardian ad litem was appointed for him before the justice. It turned out on the trial, that the minor was sued before the justice jointly with his hither in an action of trespass ; that his father, his natural guardian, appeared and took upon himself the defense of the suit, for the infant as well as for himself. The judgment was held to be conclusive upon the infant.

In this case, the action before the justice was trespass, and infancy was therefore no defense ; but the case is an authority on the question of the conclusiveness of a judgment against an infant who is summoned and defends by guardian.

To the same effect is the decision in Robinson v. Swift (3 Vermont, 283). Mr. Wait, in his Law and Practice (vol. 2, p. 279), says in effect, that a judgment against an infant, who appears and defends by guardian, will be deemed as effectual as if rendered against an adult.

In the ease of an infant his proper defense devolves upon his guardian ad litem, who, by accepting the trust, becomes obligated to its due performance.

So it was held in Knickerbacker v. De Freest (2 Paige, 304), “ that if a guardian neglect his duty in consequence of which the rights of the infant are not properly attended to, or are sacrificed, he may be punished for his neglect, and he will also, in such case, be liable to the infant for all damages he may sustain.” These authorities seem to settle the point, that a judgment rendered against an infant who is duly summoned and has a guardian ad litem appointed, who accepts the trust, will bind and conclude him the same as if he were an adult. The practice which gave minors six months after coming of age within which to show cause against decrees rendered against them during their minority, had application to actions in equity (Tyler on Inf. and Cov., § 148, and cases there cited); never, as I am aware, to actions at law for the recovery of money on contract. And there existed at one time the right of the parol to demur, the effect of which was to stay proceedings in the action against the infant until he should arrive of full age. The form of this plea is given in Plasket v. Beeby (4 East, 485). This subject, the right of the parol to demur and the giving a day to the infant after he shall arrive of age to show cause, is considered in Harris v. Youman (1 Hoff. Ch., 178). But it is sufficient here to say that neither of these proceedings has any application to the case in hand, as will be seen on reference to section 148, Tyler on Infancy, above cited, with the authorities there alluded to. The statute providing for the appointment of guardians ad litem for infant defendants seems to have superseded, to a very great extent, if not entirely, such practice. (Fenier v. Wyse, 3 Bland’s Ch. [Maryland], p. 51.) Nor am I aware of any case in this State where a judgment for the recovery of money due on contract has been set aside, or stayed by a new suit, after the infant defendant had arrived of full age, on the ground that it was rendered against him while yet a minor. Relief will be granted to infants and adults alike for fraud in the obtaining of judgments. (State of Michigan v. Phœnix Bank, 33 N. Y., 9, 25 et seg. and eases there cited.) But as Judge Geovjer remarks, in New York and Harlem Railroad Company v. Haws (56 N. Y., 175-181): “Equity does not interfere to restrain-the collection of a judgment upon the gtound that it was erroneously rendered, but only upon the ground that enforcing it would be contrary to equity and good conscience, as shown by facts of which the party could not avail himself as a defense, or where he was prevented from so doing, without any fault of his own, by the fraud of the other party.” (Truly v. Wanzer, 5 How. [U. S.], 141.) A judgment cannot be impeached for error by collateral action. On this point the authorities are numerous and uniform.

I am cited to several cases holding that an infant is not bound by the answer or the admissions of his guardian. The following are a few of them: Wright v. Miller (1 Sandf. Ch., 103); Stephens v. Van Buren (1 Paige, 479); James v. James (4 id., 115); Howell v. Mills (53 N. Y., 322). The points decided in these cases and in others where similar language is employed, is, that the court will not make a decree against an infant on the answer or admission of his guardian ad litem; but will require all the material facts necessary thereto, to be proved. As was said in one of the cases cited, where there are infant defendants, and it is necessary, in order to entitle the complainant to the relief he prays, that certain facts should be before the court — such facts, although they might be the subject of admissions on the part of the adults, must be proved against infants. It would be improper, perhaps erroneous, to receive admissions of such facts from the guardian ad litem against his ward.

But these cases do not hold, nor am I aware of any which do hold, that in case the court should improperly and erroneously act upon the answer or admission of the guardian, without other proof of the facts, the judgment based thereon could be impugned for such cause by the infant in a new suit brought hy him for that purpose. The judgment in such case would be conclusive on all the parties to it, until reversed on writ of error or appeal. In case the judgment should be assailed for fraud, and it should be alleged that it was fraudulently obtained through connivance and complicity of the guardian who should reap advantage therefrom, then the fact that he procured the judgment or decree on his own admission, without other proof of the material facts, would have significance as bearing on his alleged fraudulent conduct. But, as has been above observed, this action is not brought to vacate and set aside the judgment rendered by the justice, on the ground that it was fraudulently obtained. The cases cited to the effect that the answer and admissions of a guardian ad litem will not be held binding on the infant by the court, as a basis of a judgment or decree, have no application to the case in hand.

The question in this case rests on the sole ground that the plaintiff in this suit was an infant when the judgment was rendered against him and his co-defendant in the Justice’s Court, and that his guardian ad litem neglected to interpose for him the defense of infancy.

As above stated, fraud in the obtaining of the judgment is not alleged; hence all consideration bearing on such a case may be laid aside or passed over. Nor is it a case for a bill of review (2 Barb. Ch. Prac., 90, 91); nor can the action be sustained in the nature of an audita querela. This common-law proceeding may now be resorted to where something has occurred since the rendition of the judgment, making its enforcement unjust or inequitable, or when some fact exists which could not have been pleaded in the former suit. (Mallory v. Norton, 21 Barb., 424-435 ; 3 Blacks. Com., 405.) This case is not brought upon either of these grounds. There is no pretense that any thing has occurred since the rendition of the judgment by the justice making its enforcement inequitable, nor that any fact now exists which could not have been pleaded before him. The defense of infancy could have been interposed in the former suit, and, that was the proper place to set it up. I am referred to a remark of the chancellor in Mason v. Denison (15 Wend., 64, 68), to the effect that an infant may have relief by audita querela against a judgment rendered against him on setting up his infancy. The remark, is as follows : íC lie may also obtain relief, so far as his interest in the property is concerned, by the common-law writ of audita querela.”

The observation was made as to an infant defendant who had not been summoned, but against whom a recovery had been had as a joint debtor, his co defendant having been served with process. On this judgment the joint property of the defendants was liable to seizure and sale, and the question under consideration by the chancellor was, how the infant in such case could avail himself of his infancy to protect his individual interest in the joint property. It will be observed that the infant was not summoned ; consequently had not been called upon in court to answer. On studying the case, it will be seen that the chancellor put the right to an audita querela on such fact. Not having been brought in as a defendant in the former suit, he had had no opportunity to plead his infancy ; hence a fact constituting a defense, his infancy, could not have been pleaded in that suit, and consequently, as the chancellor remarked, he could have relief on audita querela. Not having been summoned, he had had no opportunity to plead his infancy, and it was not competent for his co-defendant to set it up. (Van Bramer v. Cooper, 2 Johns., 279 ; Hartness v. Thompson, 5 id., 160; Slocum v. Hooker, 13 Barb., 536.) It may be well, perhaps, to follow the chancellor a little in his reasoning, as it will be seen at once that he put stress on the fact that the infant had not been summoned; and he concluded (doubtless correctly), that in such case the infant might have an audita, querela to obtain relief against a judgment rendered against him ; to adopt his own language, “ upon the ground that he had no day in the court of law, and would not be admitted to make his defense there.” In citing a case where relief had been obtained on audita querela, the chancellor said, that he presumed the judgment against the infant as to which relief was sought, must have been rendered against him “without actual notice and appearance by guardian” — justly and fairly implying that if the infant had been served with process and had appeared by guardian, he would be -^deemed to have had his day in the court of law, and therefore could- not thereafter be heard on audita querela.

Now, in the case at bar, the infant was summoned, and appeared in the court of law by guardian. He was called upon according to the forms of law to answer, and put forward his defense to the plaintiff’s claim. The evident purpose of the statute requiring the appointment of guardians ad litem for infant defendants, was to put them to their defense immediately, whatever the defense might be, and to conclude them when represented by guardian in regard to their defenses. What is gained by the action if the judgment rendered therein may be impeached by the infant at will by a new suit for that purpose ? The object of appointing a guardian ad litem for an infant, is to place him on equal footing with adults as regards any matters of defense which he may have. It is the duty of the guardian to interpose for him all his defenses, and having accepted the trust, he becomes liable for all damages occasioned by his neglect. It was said by the chancellor, in Knickerbacker v. De Freest (2 Paige, 304), above cited, that it was his duty in every case to ascertain from the infant and his friends, or from other proper sources of information, what are the legal and equitable rights of his ward; and that if a special answer be necessary or advisable for the purpose pf bringing the rights of the infant properly before the court, it is his duty to put in such an answer. What need of all this care and attention if the judgment to be rendered in the action is to have force and effect only at the option of the'infant, thereafter to be exercised by him ? The law requiring the appointment of guardians ad litem for infant defendants was intended, in my judgment, to place them before the court, in the same situation as to their defenses as if they were adults ; and it follows that they must put forward their defenses, being called upon, and having the opportunity to do so; and that the judgment regularly rendered against them concludes them the same as it would persons of full age. If I am right in this conclusion, the complaint in this case must be dismissed.

J. H. Dewey, for the appellant.

Henry A. Merritt, for the respondents.

The two other cases (Phillips v. Hier et al. and Phillips v. Hicks et al.), submitted at the same time with this one, above considered, resting on the same state of facts, substantially, must have the same direction.

Present — LearNed, P. J., and BoardmaN, J. Booees, J., not acting.

Judgment affirmed with costs.


author: LeakNed, P. J.

text:
    ANNIE E. EVERETT, Respondent, v. FRANK L. LOCKWOOD, Appellant.

      Payment of installments under contrast — in action of ejectment brought for non-payment — burden of proof as to payments.

    ■ Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The action was ejectment, brought by the plaintiff as heir at law of Richard Everett, deceased, to recover the possession of certain premises which the defendant occupied under a written contract of purchase from the deceased. The complaint set up the contract, possession under it and a failure to pay installments. The answer admitted the contract and possession, averred payment of an installment, and full payment of all that was due on the contract at the time of commencing the action. The principal question presented by the appeal was, whether it was incumbent upon the plaintiff to prove that the payments had not been made, or upon the defendant to show that they had.
    The court at General Term say: “ Under these pleadings, the averment of payment was an affirmative allegation on the part of the defendant; and, like other averments of payment, it should be proved by the party who alleges it. The only issue on the pleadings appears to be the issue of payment on the contract. And on pleadings thus framed we think that it was for the defendant to prove the payment which he had averred.”

      Youmcms & Wiles, for the appellant. Gilbert c& Maynard, for the respondent.
   Opinion by

LeakNed, P. J.

Present — Leaened, P. J., Bocees and BoaRdman, JJ.

Judgment modified by reducing damages to six cents, and as modified affirmed, without costs of appeal.


author: BoardMAN, J.

text:
    THE PEOPLE ex rel. ASA STANTON, Appellant, v. LUCIEN HORTON, and others, Referees, etc., Respondents.

      Garden, meaning of — Highway—land taken for — 1 B. 8., S74, § 67.
    Appeal from an order or judgment of tbe Special Term, confirming the proceedings of the defendants as referees, in affirming an order of commissioners of highways in the alteration of a highway, whereby a portion of relator's land was taken, which he claimed to be a garden.
    The court at General Term say: “ The only objection urged is, that a portion of relator’s garden was taken in the process of widening and straightening the highway. The statute forbids, that where the part taken has been used as a garden for the previous four years. (1 R. S., 574, § 57.) It is not claimed that the relator consented. Upon this point a number of witnesses were examined upon each side. The commissioners, jury and referee all decided from such evidence, aided by an inspection of the premises, that the part taken never had been cultivated as a garden for the period required. This being a decision upon a conflict of evidence, must be conclusive upon the court. (Baldwin v. Qity of Buffalo, 35 N. Y., 375; 1 R. S., 519, § 89.)
    But upon the evidence taken, it is quite evident that the strip of land taken had not been used as a garden. It had • been planted with potatoes and corn, and constituted part of an inclosure in which was a garden, and in that sense only was a part of a garden. Such is the weight of the evidence given on each side. This does not make it a garden within the meaning of the statute. That, in the language of Judge Eael, ‘is a piece of ground appropriated to the cultivation of herbs or plants, fruits and flowers. * * * It is not sufficient that the land is inclosed with a garden, but it must be a part of a cultivated garden.’ (People ex rel. Goohe v. Oomms. of Highways, 57 N. Y., 550.) The same idea is conveyed by BroNSON, J., in People v. Judges of Dutehess (23 Wend., 361). ‘ It does not follow that the whole field is an orchard because there are fruit trees in some part of it.’
    The conclusion that this was a garden should be irresistible to induce the court to reverse the decisions of the commissioners and referees who have had the advantage of personal inspection of the premises taken, and have seen and heard the witnesses who have testified upon the subject. The evidence falls far short of any such urgent force, and as I have said impresses me in quite the contrary direction.
    The order or judgment appealed from should therefore be affirmed, with costs against the relator. (People v. Fuller, 40 How., 37.)”

      PL. Bostmiek, for the appellant. D. T. Easton, for the respondents.
   Opinion by

BoardMAN, J.

Present — LbaeNbd, P. J., BoardMAN and BooKEs, JJ.

Order and judgment affirmed, with costs against the relator.


author: Bocees, J.;

text:
    OLIVER FLEMING and HENRY C. GREGORY, Respondents, v. THE PRESIDENT, Etc., OF THE DELAWARE AND HUDSON CANAL COMPANY, Appellants.

      Evidence — Damages—amount of, to he determined hy the eomt — witness should not he asleed to state it.

    Appeal from a judgment in favor of the plaintiff, entered on the direction of a referee.
    The complaint charges that, on or about the 24th day of April, 1873, the plaintiffs delivered to the company, at Unadilla, N. Y., a ear load of cattle, on an agreement with the company to carry them over the railroad run under its management, to the city of Albany, promising to have the cattle at the latter place the following morning, in time for transhipment to Newburgh; that the company omitted and neglected so to convey the cattle, by reason whereof they were injured, and the plaintiffs were put to increased expense. The answer was a general denial, and, further, that tlie cattle were conveyed under a special agreement, exempting the company from the injuries and damage complained of. On the trial evidence was given, on the part of the plaintiffs, tending to prove the alleged contract, also the delay, and consequent damages. Answering evidence was given on the part of the company.
    Upon the trial, the following questions were put on the part of the plaintiffs, to wit: “ As it was, what expenses were you necessarily put to in feeding and taking care of the cattle at Albany, until the next Newburgh boat went out ? How much less were these cattle worth on their arrival at Albany, by reason of this unusual shrinkage ?” The questions were both allowed against the defendants’ objection, and exceptions to the rulings were duly entered. The answer to the first was, “ twenty dollars twenty-five cents, or twenty dollars seventy-five cents; ” and to the second, “ from three dollars to five dollars per head on the cows.”
    The referee found for the plaintiffs, awarding $108.25 damages, allowing, probably, the medium between three dollars and five dollars, to wit, four dollars per head on the twenty-two cattle, for the “ unusual shrinkage,” and twenty dollars twenty-five cents for the expenses “necessarily put to in feeding and taking care of the cattle at Albany,” until the Newburgh boat went out.
    The court at General Term say: “ In regard to one question, the witness had been interrogated as to the time and circumstances of the delay at Albany, and as to the fact of feeding and caring for the cattle there. This was all well and proper. Then came the question : £As it was, what expenses were you necessarily put to in the feeding and taking care of the cattle at Albany, until the next Newburgh boat went out? ’ The answer was: ‘ Twenty dollars and twenty-five cents, or twenty dollars and seventy-five cents.’ Thus the entire subject of that damage was left to the answer of the witness. His evidence declared the amount of damage. He was allowed to state the facts of the ease, and to determine the question of necessary expenses, and then taking .the case ‘ as it was,’ to instruct the referee as to the amount of damages he should allow; and judging from fair inference, the referee accepted the witness’ conclusion. The amount of damage, after the facts of the case were fully detailed, rested with the referee. His judgment on that question was invoked, and it was improper to yield it to the opinion of tbe witness. In effect, the witness was allowed to state how much the plaintiff's ought to recover in that case for feeding and taking care of the cattle at Albany. Witnesses cannot be allowed to give their opinion upon questions which belong exclusively, like a question of damages, to a jury or referee. This rule as to the admission of evidence is too familiar to admit of the citation of authorities. The other question, admitted against objection, was also of doubtful propriety, to sajr the least of it. It was as follows : ‘ How much less were these cattle worth, on their arrival at Albany, by reason of this unusual shrinkage ?5 The answer was: £ From three dollars to five dollars per head for the cows.’ Was not this simply giving the damages ; simply aggregating the amount ? It was for the referee to find from the evidence whether or not there was an unusual shrinkage, the cause of it, and the amount of damage in case he should find the party liable for the damage. Now, was not the witness permitted to cover all these subjects by his answer?
    ■ I am inclined to the opinion that the ruling of the referee as regards this question to the witness was erroneous; but not so palpably erroneous as to be entirely free from doubt, and did the decision of the case turn on this point solely, I should hesitate somewhat before consenting to a reversal of the judgment. Still, I am under the impression that it was improperly allowed. ”

      Bundy <& Soramling, for the appellants. Belknap db Edson, for the respondent.
   Opinion by

Bocees, J.;

BoaedMAN, J., concurred. LbaeNed, P. J., not voting.

Judgment reversed, new trial ordered; reference discharged, costs to abide the event.


author: Per Ouriam.

text:
    THE TOWN OF ESSEX, Appellant, v. THE NEW YORK AND CANADA RAILROAD COMPANY and others, Respondents.

      Irrelevant matter — striking out of— OAscrretwriary — when improper.

    Appeal from an order of the Special Term, striking out portions of the complaint as irrelevant and redundant.
    The court at General Term say: “ Irrelevant and redundant allegations hurt no one. It is not, therefore, an absolute right to have them stricken out. The court should exercise a discretion. It might reasonably strike out matter which is plainly and on the first glance seen to be impertinent. But it should use this power with reluctance and caution. There is little benefit in motions of this kind, and there may be much harm. Immaterial evidence can always be rejected at the trial. It is best that the plaintiff have great latitude in setting forth in his complaint whatever, in good faith, he thinks may be important; especially in cases like this, where the relief demanded is of an ecjuitable character.
    We do not decide as to the materiality of the allegations stricken out. But for the reasons above expressed, we think that the portion of the order appealed from should be reversed, with ten dollars costs and printing.”

      Samuel Ha/nd, for the appellant. Waldo, Tóbey de Grover, for the respondents.
   Opinion

Per Ouriam.

Present' — -Leaened, P. J., Boones and Boardman, JJ.

Order reversed, with ten dollars costs and printing.'