author: Countryman, J. :

text:
    MARY E. COLE, Executrix, etc., of EDGAR B. COLE, Deceased, Respondent, v. JOHN M. NILES and another, Executors, etc., of DAN NILES, Deceased, and another, Appellants.
    Legacy, given to discharge debt of testator, does not la/pse by death of legatee.

    Defendant’s testator bequeathed to one Cole the sum of $1,500, upon condition that he should not render any account against his estate. The legatee died before the testator, who was at the time of his death indebted to Cole’s estate to an amount less than $1,500. The plaintiff notified the defendants of her acceptance of the legacy. Held, that the legacy did not lapse by the death of , Cole; that upon its acceptance by the plaintiff, a contract was completed by which she became entitled to the legacy, not as a bounty, but as the purchase-price of the claim which was thereby canceled or abandoned.
    Appeal from a judgment in favor of the plaintiff, entered upon the trial of this action by the court, without a jury. Dan Niles, the defendant’s testator, left a will, bearing date April 6, 1870, which contained among others, the following provision : “ I will and bequeath to my son-in-law, who married my daughter Wealthy, now deceased, of Waterford, the sum of $1,500, to be paid to him at my decease by my executors, upon the express condition that the said Edgar Cole shall not render any account against my estate.” Edgar B. Cole, the person referred to in this provision of the will, died November 10, 1871, not being a child or other descendant of the testator, and leaving no child or other descendant him surviving. Dan Niles died in the month of December, 1871, leaving an estate exceeding the sum of $10,000, and more than sufficient to pay all the legacies. Edgar B. Cole was, at the time of his death, a creditor of the said Dan Niles to an amount not exceeding the sum of $1,500, and no account has ever been rendered or presented therefor against the estate of said Dan Niles. The plaintiff, as executrix of Cole’s estate, in due time demanded- payment of the bequest from the defendants, as executors of the estate of Dan Niles, which was refused, and the defendants have since settled and distributed the entire estate. The plaintiff then brought this action against the defendants, as executors, and the residuary legatees, to recover the amount given in the will, and recovered a personal judgment therefor against the executors, who appealed to this court. No questions were raised as to the form of the action, or on the practice pursued.

      John Gadman, for the appellants.

      E. IF. Paige, for the respondent.
   Countryman, J. :

This legacy must be regarded as lapsed, unless it can be sustained' as a provision for the payment of a debt due from the testator to the deceased legatee. As it does not fall within the exceptions created by the Revised Statutes, saving certain classes of legacies from lapsing, the question must be determined under the rule at common law. The provision in question is, in terms, a mere proposition to adjust a claim held by the legatee against the testator, upon the' basis of the legacy, which is directed “to be paid * * * upon the express condition "that he shall not render any account against the estate.” From the facts found below, it appears that the testator was indebted to the legatee in an amount not exceeding the legacy; that the estate has been settled and distributed, and no claim presented to the testator’s estate on behalf of the estate of the legatee; and that due notice was given by the plaintiff, before the final settlement, to the defendants of the acceptance of the legacy, and a demand made for its payment. The legacy was given on condition that it be accepted in payment of the claim held by the legatee against the testator, or as a satisfaction of the debt. Payment of the claim could have been enforced against the testator or his estate, as well by the personal representatives of the legatee after his death, as by the legatee in person if alive, and the representatives could also as well adjust the claim by accepting the proposal of the testator and receiving the legacy in payment. The reason of the rule for a lapse in the case of an ordinary legacy — that there is no one in whom the legacy can vest at the time of the testator’s death—has, therefore, no application, as it was not intended that the bequest should vest; and it would not have vested in this case, if the legatee had survived, except upon the condition that it was accepted in absolute payment. And, as already stated, this acceptance could be given" as effectually by the personal representatives of the legatee after his decease, as by him in person during his life. Where it is the intention of the testator that the legacy shall be deemed a satisfaction of a pre-existing debt, the acceptance of the legacy will extinguish the debt. The legacy is the price, or value, put by the testator upon the opposing claim, which is submitted for acceptance at his decease. The final, acceptance of the proposal involves the relinquishment of the claim, and forms a good consideration for the legacy. A contract is thus completed by which the-legatee or his representatives become entitled to the legacy; not as a bounty, but as the purchase-price of the claim which has been canceled or abandoned. This exception to the ordinary rule, that a legacy must lapse whenever the legatee has died before the death of the testator, has been repeatedly recognized in the English courts; and provisions of this character have invariably been sustained. It is, doubtless, true that the legal definition of a legacy embraces “a thing given either as a gratuity or as a recompense,” and therefore includes “ as well one made in lieu of dower and in satisfaction of an indebtedness,” as one which is wholly the bounty of the testator. But it is equally true that different rights attach to these different classes of legatees, both as between themselves and with reference to the estate. In case of a deficiency of assets, legacies founded on a previous indebtedness or other valuable consideration, do not abate ratably with other general legacies, but must be first paid in full. These legatees take their legacies as purchasers, and they are only liable to abatement as between themselves. TTpori the same principle such a legacy must be enforced when accepted by the representatives 'of a deceased legatee, notwithstanding his death occurred before the death of the testator. The judgment of the Special Term must be affirmed, with costs.

Present — Boceles, P. J., Land on and Countlryman, JJ.

Judgment affirmed, with costs.

       3 Rev. Stat. (5th ed.,) 116, § 52.

       Williams v. Crary, 4 Wend., 444.

       Williamson v. Naylor, 3 Younge & Collyer’s R., 208; Philips v. Philips, 3 Hare’s Ch., 281; Turner v. Martin, 7 De Gex, McN. & Gor., 429; In Matter of Trustees of Will of Peter Somerby, 2 Kay & Johns., 630.

       Orton v. Orton, 3 Keyes, 486.

       Wood v. Vandenburgh, 6 Paige, 278; Williamson v. Williamson, 6 id., 298.


source: Caselaw Access Project

author: Countryman, J.:

license: Public Domain

text:
    GEORGE M. ROUNDS, by his Guardian, etc., Plaintiff, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Defendant.

      Trespasser—rights of—Acts of agent—when principal bound by—“ WiUfuUy”amd “maliciously"—meaning of.

    This action was brought to recover damages for injuries sustained by the plaintiff in being pushed from one of the defendant’s cars. Upon the trial it appeared that the plaintiff, in violation of the rules of the company, got upon the rear platform of the baggage car of a train, standing in the depot at Norwich, in order to ride down to the round-house, to which place the cars were to be backed to make up a new train. Along the west side of the track there was a pile of wood, over 100 feet long. Just as the cars arrived at the wood-pile, the baggage master, who was in charge of the train, discovered the plaintiff and ordered him off; the plaintiff replied that he could not get off on account of the wood, whereupon the baggage master kicked him, so that he fell, first against the wood-pile and then under the cars, which passed over and crushed one of his legs. The court charged that, although the plaintiff was a trespasser, yet, if the baggage master, in pushing him from the train, acted as the employe of the defendant, in good faith and in the discharge of a duty he owed it, the company would be responsible for bis carelessness and negligence, but that if he acted willfully and maliciously, then he alone would be responsible. On appeal, held, that the charge was correct; and that, as the jury had found a verdict for the plaintiff, he was entitled to judgment thereon. Semble, that, in law, the words “ willfully ” and “ maliciously ” have essentially, if not precisely, the same meaning.

      Semble, that a principal is responsible for all acts of his agent performed in the line of his duty, whether the agent was acting in good or in bad faith, negligently or willfully; the act, and not the manner in which it is performed, or the mental condition of the actor, determines its relation to the service in which he is employed.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term. This action was brought to recover damages for an injury received by the plaintiff in being thrown or pushed off one of the defendant’s cars. Upon the trial of the action at the circuit, the plaintiff recovered a verdict of $5,000
    The accident occurred at Norwich, Hay 3, 1872. The defendant operated a hroad-guage railway from Binghamton to Norwich, and a narrow-guage road from Norwich to Utica. The passenger train from Binghamton on this occasion, as usual, ran to the depot at Norwich, and transferred the passengers and freight to the Utica train, and then backed south on a switch a distance of about sixty rods to the round-house, to make up the new train, which was to run hack to Binghamton. The train consisted of the engine, an express ear, a baggage and smoking car (one car divided into two compartments), and one passenger car. The conductor of the train got off with the passengers at the depot, and left it in charge of the baggage-man, to run back on the switch and make up the new train. While the train was unloading and transferring the passengers at the depot, the plaintiff, a boy twelve years old, living near the depot, got on the platform of the baggage and smoking car, at the rear end, to ride down to the round-house. A quantity of wood was piled at one point along and near the west side of the track for a distance of over 100 feet. While the train was hacking down the track, and when it arrived at the wood-pile, the baggage-man in charge of the train discovered the plaintiff on the platform, and ordered him off. According to the plaintiff’s testimony, he replied, “ I can’t, the wood is right here; I want you to help me. He (baggage-man) said, no, damn you, I will kick you off sooner than I will help you. I had my overcoat on, and he hit that, and I fell over against the wood-pile, and fell back, and one leg went under the cars.” Cross-examined: 61 How long after he stepped out of the baggage car before he kicked you off ? He did it right after we had the talk. Where did he hit you with his foot ? A little below the seat of my breeches. Did it land you right against the wood? Yes, sir.” Re-direct: “ When he hit you with his foot, he hit you under the overcoat ? Yes, sir. Irhad it buttoned up pretty tight, and his 'toe went under that, and he hit it and gave me a shove.” A printed notice was posted up in the baggage car, and another one near where the plaintiff was standing on the platform, as follows: No person will be allowed to ride on this baggage car, except the regular train men employed thereon. Conductor and baggage-men must see this order strictly enforced.” Another printed notice was contained in the posted time-cards, as follows: “ Train baggage-men must not permit any person to ride in the baggage car, except the conducter and news agent connected with the train. Conductor and baggage-men will be held alike accountable for a rigid enforcement of this rule.”
    At the close of the plaintiff’s evidence, the defendant’s counsel moved for a nonsuit, upon the grounds: 1. That the plaintiff was a trespasser, or wrongfully on the cars of the defendant, and was not entitled to recover. 2. That the plaintiff by his own negligence, contributed to the accident. 3. That upon the evidence the defendant was not guilty of any negligence or wrongful act in reference to the plaintiff; that the acts of Grow (baggage-man) which caused the injury, were not authorized by the defendant, but were a willful and wanton assault by Grow upon the plaintiff, and that for these acts and their consequences the defendant was not responsible to the plaintiff. The court denied the motion, and ruled that it was a question for the jury whether the baggage-man was there acting within the authority of the company, in putting the boy off, or whether he acted willfully and wrongfully; to which the defendant excepted. After the defendant had given evidence contradicting the plaintiff’s testimony, and at the close of the case, the defendant’s counsel renewed his motion for a nonsuit on the same grounds, and also on the ground that no right of action was made out against the defendant, and that the evidence did not warrant a submission of any question of fact to the jury which would authorize a recovery. The motion was denied, and the defendant excepted. The court then submitted the following questions to the jury, to which the defendant also excepted : 1. Did Grow put the boy off the cars ? 2. Was he acting within the authority given him by the defendant % 3. Was he acting maliciously and in excess of his authority %

    The court then charged the jury, among other things, that the plaintiff was a trespasser on the car; but if the baggage-man, nevertheless, in the discharge of his duty, pushed him off the train in an improper manner, and at a dangerous place, the defendant was liable; to which the defendant excepted. The- court also charged the jury, that if the baggage-man pushed the boy off the train, and in doing so was acting as the employe of the defendant, in good faith, in the discharge of a duty he owed the- company, the defendant would be liable for his careless and negligent discharge of his duty (to which the defendant also excepted); but if - he was acting willfully and maliciously toward the plaintiff, outside of and in excess of his duty, then the baggage-man, alone, would be responsible, in law, for the consequences. To which the defendant excepted.
    The court further charged as follows: “ If you hold the- defendant liable, the remaining - question will be the amount of damages to which the plaintiff is entitled. This should be compensation for the injury and loss which he has sustained, as well as for the suffering he has endured. This sum is in your discretion, but should be arrived at by the exercise of your good sense. The defendant, though a corporation, is entitled to the same treatment as an individual. You should not allow any prejudice or hostility toward railroads, to warp your judgment or aggravate the damages. Your verdict should be the unbiased and deliberate expression of your honest judgment; such a verdict as a sound public sentiment will approve and sustain.” To which last expression, in reference to a sound public sentiment, the defendant excepted.

      E. E. Prindle, for the plaintiff.

      F. Kernan, for the defendant. .
   Countryman, J.:

The point is clearly presented on the various rulings at the trial, to which exceptions were taken, whether any relation existed between the defendant and the plaintiff at the time of his misadventure, which imposed on the defendant any duty or obligation of care or protection toward him, at least as against personal injury directly caused by the positive' acts of its own agents or servants. It must be allowed that the plaintiff had no right to be on the ear at the time and place, and under the circumstances disclosed by the evidence. He was not a passenger or servant, nor entitled to be recognized as such for any purpose. He was not, when discovered by the agent, where the public had a right to be, so that the company, on that account, owed him any special duty whatever. He had entered the car without the knowledge or permission of the agents of the company, and in violation of its regulations, while its servants were engaged in the performance of their legitimate duties. Is the defendant liable, under such circumstances, for an injury to the plaintiff, which resulted from the wrongful acts of its servants while thus engaged in its service ? It will be observed that the question is confined to the positive or affirmative acts of the servants, directly producing the injury, in contra-distinction to mere' remissness or negligence on their part in the ordinary routine of duty which might have indirectly caused the same result, as by a collision or running off the track. In the latter case it must now be regarded as settled in this court, that no liability would have attached to the company. The Commission of Appeals, in the case of Eaton against this defendant, not yet reported in the regular series, very fully considered the latter question, and distinctly decided that the company could not be held responsible for an injury to a person while riding on a coal train, even by permission of the conductor, but against its regulations, when the injury was the result of a collision caused by the negligence of its servants in the management of the train. As the plaintiff had no right on the train, and the conductor had no power to consent to his being there (such is the reasoning of the court), the company owed him no duty as a passenger, and he remained there at his own risk in reference to all the ordinary perils of the road. But the case is different when the injury is the immediate result of the personal interference • and positive act of the servant, who was endeavoring at the time in an improper manner to enforce the rules of the company. It was, doubtless, the right and duty of the baggage-man, in pursuance of his instructions, to remove the plaintiff by force, if necessary, from the train, but this was not a duty to be performed regardless of time, place, or circumstances. Even a wrong-doer has sonde rights which are entitled to protection. The lad had not by his indiscretion forfeited his life or his right to exemption from needless exposure to peril, and notwithstanding he was a trespasser, the baggage-man was bound to exercise Iris right with reason, and use proper care and prudence in putting him off-the train. The servant, in thus removing the plaintiff, was engaged in the line of his duty, and obeying the instructions of the company; and to shield the defendant, therefore from liability, the instructions must have been reasonable and proper, with reference to the rights of the plaintiff, and must have 'been executed, under all the circumstances, in a reasonable and proper manner. Having made suitable regulations, the defendant was also bound to see that they were properly executed. The principal must necessarily be answerable, within reasonable limitations, for the manner in which his instructions are carried into effect. This responsibility does not originate, in a case of this character, in any special relation the principal has assumed to the other party, by virtue of an agreement between them, express or implied, but is founded on that primary obligation which every person in society owes to every other, to inflict as little injury upon an aggressor as is consistent with the preservation of one’s own rights. It is immaterial to this- inquiry, whether the plaintiff was rightly or wrongly on the train. As a wrong-doér, the principal would have been justified in removing him, but in doing so would have been bound to act with reasonable caution suitable to the circumstances, so as not to inflict unnecessary injury. This power can be delegated to an agent, but the agent in its exercise is subject to the same restrictions, and the principal is equally bound by the acts of the agent as if they were performed in person, while the agent is engaged in the execution of the power. And the principal must necessarily be bound by any lack of judgment or discretion of the agent, whereby he acts improperly and inflicts unnecessary injury. This rule has been recognized, and the liability of railroad companies rigidly enforced, in several precisely similar cases. The learned judge was, therefore, strictly correct in his charge to the jury: “ That although the plaintiff was wrongfully and a trespasser on the train, yet if the baggage-man, in the discharge of his duty, pushed him off the train in an improper manner, and at a dangerous place, the defendant was liable.”

It is insisted, however, that the evidence on which the verdict must now be sustained, conclusively shows that the act of the baggage-man, in expelling the plaintiff’ from the train, was willful, if not malicious, and that the defendant in any event was not liable for the willful acts of its servants. The court, in denying the motion for a nonsuit, ruled that it was a question for the jury whether the baggage-man, “ in putting the boy off the train, acted willfully and wrongfully or within the scope of his authority from the defendant; ” and finally charged the jury on this subject as follows: In doing that act was he acting as the employe of the defendant in good faith in the discharge of a duty he owed the company, or was he acting willfully and maliciously toward the plaintiff outside of and ip excess of his duty ? In the former case, the defendant would be liable for his careless and negligent discharge of his duty. In the latter case, Grow alone would be responsible in law for the consequences.” This was excepted to, and it is stated that the defendant’s counsel “ insisted ” that the instruction * * * “ was too unfavorable to the defendant; that it was not requisite that Grow should have acted maliciously, as the defendant was not liable if he acted willfully and wantonly without any authority.” But no request was made to submit any other or different proposition to the jury, nor was there any ruling or exception in reference to the proposition upon which the counsel insisted. It is evident from all the rulings on this subject and the charge, taken together, that the learned judge understood and used the words “ willfully and maliciously ” as conveying in a legal sense, essentially, if not precisely the same meaning. And it is not clear that he was in error. A “ malicious injury ” is defined to be an injury committed wantonly, willfully, or without cause.” The intentional doing of a wrongful act with knowledge of its character, and without cause or excuse, is malicious, It is not necessary to constitute express or actual malice, that the act should proceed from hatred or ill-will, but it may be inferred from an apparent mischievous intention of the mind, or from inexcusable recklessness. Malice, in the sense of the law, means willfulness. But if the language or the connection in which it was used, was liable to misconstruction, it was the duty of the counsel to have made a specific request to charge the particular proposition which he desired to have submitted to the jury, and having omitted to do so, he should not now be permitted to raise a point founded upon a hypercritical rendering of the charge. It does not appear that the court declined to charge the proposition in question, or that any exception was taken which presents the point, whether the defendant was liable if the act of the agent was willful but not malicious. The charge, as made, was in accordance with the rule often asserted, and recently reaffirmed in this State, It would be a fruitless task to undertake to harmonize all the cases bearing on this question, even in the. court of last resort. While all apparently recognize the same rule, many of them havé turned upon distinctions which are exceedingly astute and arbitrary. But all the authorities agree, in requiring the court to submit the question to the jury, whether the act of the agent was willful or malicious, whenever there is room for discussion as to the motives which prompted its performance. In this case it was clearly a question of fact upon all the evidence, and the verdict cannot therefore be disturbed. It may well be doubted whether the chief difficulty in the application of the rule, by which the liability of the principal is to be determined, h^s not arisen from the needless effort to characterize and classify the acts and motives of the agent, as willful and malicious or the contrary. The true criterion of his liability, it would seem, should be whether the act of the agent was performed in the course of his employment, or while he was immediately engaged in the business of his employer. The aet and not the mariner in which it is performed, or the mental condition of the actor, should determine its relation to the service in which he is employed. If the act itself be in the line of his duty, and result in injury to another, the principal should be responsible whether the agent was acting in good or bad faith, negligently or willfully. It cannot, on principle, affect the quality of a given act, so far as its relation is concerned to the business or service which is the bond of connection between the employer and employed, whether it was the result of negligence, carelessness or malice. In 'either event, the act, i/pso facto, was or was not within the scope of his employment, without reference to the motives with which it was performed. The reason of the distinction, as commonly recognized, is tersely stated by Cowes, J., in Wright v. Wilcox, as follows: “ The law holds such willful act a departure from the master’s business * * * and a going into the servant’s own independent business.” With due deference, this reasoning seems to be inconclusive and unsatisfactory. The same act is held to be within the master’s service when performed with a good motive, and a departure from his service in a new and independent business of the servant when performed with a bad motive. How can the act of an agent resulting in injury to another, which is within the line of his duty when carelessly or recklessly performed, be taken out of such business or employment when repeated under the same circumstances with a similar result, by the mere fact that it was performed from malicious -motives ? If a principal will employ an agent of reckless disposition, irascible temper, or ungovernable passions, in a responsible position, requiring intelligence, tact, and judgment, he should be answerable for his willful or malicious conduct, as well as negligence, especially to those with whom he is brought in contact solely by means of such employment, and while directly engaged in performing his duties; and to the same extent as if he himself were possessed of the same temperament, and had, while performing the service, committed, in person, the identical injuries. And the tendency of the later decisions seems to be in this direction, But it is unnecessary to pass on this question in this case, as it must he assumed on the verdict that the act of the baggage-man was neither willful nor malicious

It is also insisted that the court erred in its remarks to the jury, in relation to their rendering such a verdict as a sound public sentiment would approve and sustain.” If this could be regarded as a direction to the jury to consult public sentiment, and be governed by it in arriving at their verdict, it could not be sustained. But such is not the meaning óf the remark, as is evident when it is read in connection with the preceding sentences in the charge. It-was made in reference to the subject of damages, and in the interest of the defendant. It was the conclusion of some deprecatory allusions to the prevalent prejudice and hostility to railroads, followed by an expression of confidence that the jury would not allow their judgments to be warped by such prejudice 01* hostility, but would render a verdict which should be the unbiassed and deliberate expression of their honest judgments; such a verdict as a sound public sentiment would approve and sustain.” The remark was in no wise calculated to injure or prejudice the defendant. The motion for a new trial must be denied, and judgment ordered on the verdict, with costs.

Landon, J.,. concurred. Bocees, P. J., dissented from the conclusion arrived at in the discussion of the last proposition of the opinion.

New trial denied, and judgment ordered on the verdict, with costs.

         Robertson v. New York and Erie R. R. Co, 33 Barb., 91; Eaton v. Del., Lack. and Wes. R. R. Co., 13 Amer. Law Reg., 665, Commission of Appeals; Flower v. Penn. R. R. Co., 69 Penn. St., 210; 8 Amer., 251.

        Supra.

       Lovett v. Salem, etc., R. R. Co., 9 Allen, 557; Holmes v. Wakefield, 12 id., 580; Kline v. Central Pacific R. R. Co., 37 Cal., 400; Sanford v. Eighth Avenue R. R. Co., 23 N. Y. 343.

       2 Burrill’s Law Dic., 175.

       Commonwealth v. York, 9 Metc., 93,104; Wiggins v. Coffin, 3 Story, 1, 7; Etchberry v. Levielle, 2 Hilt., 40.

      Rex v. Harvey, 2 Barn. & Cress., 268; 1 Russell on Crimes, 483, note i; 6 Amer. Law Reg., 322; Etchberry v. Levielle, 2 Hilt., 40.

       Dexter v. Spear, 4 Mason, 115.

         Jackson v. Second Avenue R. R. Co., 47 N. Y., 274; Higgins v. Watervliet Turnpike Co., 46 id., 23.

      19 Wend., 343, 346, 347.

       Howe v. Newmarch, 12 Allen, 49; Ramsden v. Boston & Albany R. R. Co., 104 Mass., 117; Higgins v. Watervliet R. R. Co., 46 N. Y., 38; Jackson v. Second Avenue R. R. Co., 47 id., 274.


author: Landon, J.:

text:
    BENJAMIN SALTERS, Administrator, etc., Plaintiff, v. THE PRESIDENT, Etc., OF THE DELAWARE AND HUDSON CANAL COMPANY, Defendant.

      Baüroad—Common and target switches—duties to employes and passengers—Evidence of acts done by railroad company after accident.

      A. railroad company is under no obligation to its employes to provide its tracks with target switches; a common switch is adequate and sufficient.
    A railroad company is bound to place its employes under no risk from imperfect or inadequate machinery or other material means or appliances, known, or which hut for their negligence would have been known to them.

      A railroad company is not bound to employ mechanical appliances to protect one servant from injuries liable to result from the negligence of another. The rule is otherwise as to passengers.
    The admission of evidence to show that after an accident, a railroad company changed the character of its switch, is error.
    Motion for a new trial, on exceptions ordered to be heard in first instance at General Term. The action was brought to recover damages for the death of the plaintiff’s intestate, who was killed while employed as fireman on a locomotive of the defendant, which ran into an open frame switch, and was overturned. The cause was tried at the Albany Circuit, and a verdict was rendered in favor of the plaintiff for $3,000/ The defendant moved for a new trial, which was refused, and the exceptions were ordered to be first heard at the General Term.

      Amasa J. Parker, for the plaintiff.

      Henry Smith, for the defendant.
   Landon, J.:

The switch was not open in consequence of any defect in its construction, or for want of proper repair. It was an adequate and sufficient switch, so far as the adjustment of the tracks to each other was concerned, and that seems to be the chief office of a switch. It was a common switch. This court held in Piper v. N. Y. Central & H. R. Railroad Co., that a common switch is as safe as any other, if properly cared for. The target switch differs from it in having a longer handle, to which signals are attached, which indicate how the tracks are adjusted.

The plaintiff claims that the defendants were negligent in not having provided a target switch. The defendants’ counsel requested the court to charge the jury that the defendants were not liable for not getting such a switch. “By the court: I decline in that form ; I leave it to the jury to say whether the company provided suitable signals.” The court also charged, that if more suitable signals (referring to the target switch) could have been seen, then the defendants were liable. The question is directly presented, whether the defendants were properly found guilty of negligence because they did not provide a target switch. We think they were not. The defendants, as masters, owed to the deceased, as their servant, the duty to place him under no risks from imperfect or inadequate machinery, or other material means or appliances, known, or which but for their negligence would have been known to them. The question here presented, is, whether the switch here employed was an adequate machine or appliance; or, to use the language of the court in Ford v. Fitchburgh Railroad Co., “a suitable instrumentality.” As before remarked, it was, if properly cared for. Nearly every mechanical appliance needs proper care to make it both safe and suitable. The absence of proper care is not a defect in the machine or appliance, but is the negligence of the party whose duty it is to bestow it. Grant that the presence of a target would indicate to one servant that his co-servant was negligent, and thus insure the safety of the former; to require its presence as a matter of right, is to require that the master shall, by mechanical appliances, exempt one servant from the negligence of another. We are cited to no case which goes to this length. It does not seem to be in harmony with the rule which subjects one servant to the risk of the exceptional negligence of another.

In the case of passengers, railroad companies are bound to avail themselves of all new inventions and improvements known to them, which will contribute materially to the safety of their passengers, whenever the utility of such improvements has been thoroughly tested and demonstrated, and the adoption of which is within their power, so as to be reasonably practicable. Doubtless, the passenger has the right to demand such mechanical appliances as are known, by sufficient test and experience, to indicate the negligence of a servant, and obviate its consequences. But the passenger has the right to demand exemption from risk on account of the negligence of the servant, and may, therefore, demand such suitable mechanical appliances as shall suffice to make good his exemption. But the servant undertakes his employment, relying upon the fact that the appliances are safe, if carefully used; and he knows that their careful use depends upon himself and his fellow servants who may be assigned to operate and guard them. In consideration of his wages he takes the risk that his fellows will do their duty as he agrees to do his. Clearly, this fireman came to his death in consequence of the management of the switch, not in consequence of the switch itself. Of that management, so far as it was chargeable to his co-employe, he voluntarily incurred the risk. He placed no dependence upon the target, for he knew none was there.

The plaintiff was permitted to give evidence to the effect that, after the accident, the defendants substituted- a target switch for the common one. Within the ruling in Dongan v. Champlain Tr. Co. this seems to be error. Whether the defendants were negligent, was a question to be decided upon the facts as they existed at the time of the injury. What the defendants did afterward was immaterial, unless their acts could be construed as equivalent to their declaration that they were negligent at the time of the injury. But the question appears to be settled by authority, and not open for discussion in this court. As there must be a new trial for th¿ reasons assigned, it is not necessary to discuss the question whether the management of the switch, under the circumstances, could be considered so far the act of the defendants, as masters, as to relieve the switchman from the charge of negligence. The verdict must be set aside and a new trial granted.

Present — Bookes, P. J., Landoit and Couhtrymaij, JJ.

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

       1 N. Y. S. C. Rep., 290,

      Laning v. New York C. Railroad Co., 49 N. Y., 521.

       A. L. Jour., vol. 10, No. 22; to appear in 110 Mass.

       Hegeman v. Western Railroad Corporation, 13 N. Y., 9; Smith v. New York & Harlem Railroad Co., 19 id., 127.

      56 N. Y.


author: Landou, J.:

text:
    JAMES T. McCOMBS, Respondent, v. WILLIAM C. BECKER, Appellant.

      La/ndlord and tenant—what agreement between, transfers title to wops — Sale on execution—presumption as to levy.

    An agreement made by a tenant “to take good care of the cows,” and in case the hay raised upon the demised farm should fail to be sufficient to winter them, his landlord should supply the deficiency at the rate of three dollars per ton, and if there should be a surplus the landlord should have it and pay the tenant three dollars per ton for it, does not place the title to the hay in the landlord.
    The presumption is, that a sheriff who sells property on execution has previously made a levy.
    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee. The action was brought for the alleged conversion by the defendant of about seventeen tons of hay, the property of the plaintiff.
    The defendant rented to one Burnham a farm under an agreement, by the provisions of which, among other things, the defendant was to furnish certain cows, etc., and “ said Becker is to have all the butter and cheese manufactured on said farm; also, to hold all of the grain raised on said farm, or enough sufficient to pay all rent; said Burnham is to work all the milk of said forty cows on the farm into butter and cheese; to take possession of said farm on the 1st day of March, 1872, and have it one year, or to the 1st day of March, 1873; is to take good care of said cows, and to deliver up said cows and farm to said Becker, on the 1st day of March, 1873; said cows are to be in good condition and in good flesh; said Becker is to furnish, on the first day of March, twenty-eight of said- cows, and on or before the 1st day of April, 1872, twelve more good cows; Burnham is to pay to Becker three dollars per ton for all hay that is required to winter, of 1872 and 1873, and to feed through the spring of 1873 to the fifteenth day of May, the said forty cows and one tea/m of horses, after the 1st of March, 1873, till 1st of June, 1873, and also one more team through the month of May, 1873, provided there is a deficiency of hay on sand farm, and Becker is to pay, in case more tha/ri hay enough to

      keep the afore-mentioned horses and cows through the winter of 1872 and 1873, and spring of 1873, the amownt of three dollars per ton for all surplusP

    The plaintiff purchased the hay in question, which was raised and sold upon the demised premises, at a sale had under an execution upon a judgment recovered against the tenant Burn-ham. Afterward the defendant converted the hay to his own use. The referee found that the plaintiff was entitled to recover the value of the hay so converted, and from the judgment entered on his report an appeal was taken to this court.

      John G. MoOartin, for the appellant.

      V. P. Abbott, for the respondent.
   Landou, J.:

The plaintiff is the purchaser of a quantity of hay, sold by the sheriff upon an execution against the property of the tenant of the defendant. The defendant, who, after the sale, converted the hay to his own use, claims that, by virtue of the agreement and lease between him and his tenant, he, and not his tenant, was the owner of the hay. If his claim can be sustained, then the judgment against him should be reversed.

It was entirely competent for the defendant and his tenant to agree that the hay to be raised upon the demised premises, should be and remain the property of the defendant until the rent should be paid, and the conditions of the lease satisfied by the tenant. Instead of the tenant mortgaging the crop to be grown, as security for the rent, he may agree that the crop shall be the landlord’s until the rent be paid. In the one case the agreement is, that the crop shall be the landlord’s if the tenant does not pay the rent; in the other, that it shall not be the tenant’s property until he does pay it. The case of Johnson v. Grofoot, does not hold otherwise, but does hold that the terms of the contract in that case gave the land lord only a chattel mortgage interest which was defeated for want of due filing.

The difficulty with this defendant’s case is, that he did not, by his agreement with bis tenant, provide that the title to the hay should remain in him. He made such au agreement as to the butter and cheese and grain, and this agreement as to them, -discloses more strikingly the lack of it as to the hay. The tenant simply agreed “ to take good care of the cows,” and in case the hay raised upon the demised farm should fail to be sufficient to winter them, his landlord should supply the deficiency, at the rate of three dollars per ton, and if there should be a surplus the landlord should have it and pay the tenant three dollars per ton for it. So long as the tenant “ took good care of the cows,” the landlord could not complain of the disposition he made of the hay. If he sold it, and starved the cows, the landlord’s remedy would not be against the purchaser of the hay, but against the tenant for condition broken, in not taking good care of them. True, the landlord was to have the surplus hay and pay three dollars per ton for it, but this was an executory contract for its purchase, the breach of which would be compensated in damages. It follows that the hay was the tenant’s, and subject to sale upon execution against him.

We see no force in the objection that the levy was not sufficiently proved. The indorsement by the deputy sheriff upon the execution, shows that he levied upon the hay within the lifetime of the execution. The presumption is that a sheriff who sells property on execution has previously made a levy. The judgment should be affirmed, with costs.

Present-—Bookes, P. J., 1 andón and Countjryman, JJ.

Judgment affirmed, with costs.

       Andrew v. Newcomb, 32 N. Y., 417; Van Hoozer v. Cory, 34 Barb., 9.

       37 How., 59

       Hartwell v. Root, 19 Johns., 845; Smith v. Hill, 22 Barb., 656.


text:
    OTTO J. HINTERMISTER, Respondent, v. THE FIRST NATIONAL BANK OF CHITTENANGO, Appellant.

      National Bank—usurious contract made by—right of borrower to recover interest paid under — Act of Congress of 1864, chapter 106, section 30.
    An action cannot be maintained against a national bank, located in this State, to recover back twice the amount of interest paid upon a usurious contract, where such contract related exclusively to the private affairs of the bank, and where, in making it, the bank was in no sense acting as the agent of the general government. The act of congress (section 30, chapter 106 of 1864), regulating the rate of interest and prescribing penalties for usury, has no application to the private contracts of national banks made in this State.

      First National Bank of Whitehall v. Lamb (50 N. Y., 95) followed; Matter of Wild, (8 Alb. Law Jour., 235) and Tiffany v. The National Bank of Missouri (18 Wall., 409) distinguished.
    Appeal from a judgment in favor of the plaintiff, rendered at the Madison Special Term, in October, 1812. The action was brought against the defendant, a banking association organized under the national banking act of June 3, 1864, to recover, under the provisions of the thirtieth section, twice the amount of interest paid by the plaintiff on a certain loan, and the renewals thereof made to him by the bank, which were usurious under the federal act and the laws of this State. The court found as facts, that the several transactions, consisting of the loan and various renewals, were usurious, and allowed a recovery for twice the amount of interest paid therefor, under the objection and exception of the defendant’s counsel. The plaintiff had judgment for $588.04 and costs, and the defendant appealed.

      D. I). Walrath, for the appellant.

      W. E. Lansvng, for the respondent.
   Countryman, J.:

The question is, whether the penalty imposed by section 30 of the national banking act, is applicable to contracts made in this State • between banking associations organized under the act, and other citizens, when such contracts relate exclusively to their own private concerns, and do not involve matters in which the associations may be acting as the agents of the general government. When this case was decided at the Special Term, it had been held in this court, that the usury laws of the State had no application to loans or contracts made by the national banks, and that these associations were only subject to the restrictions, and amenable to the penalties, prescribed in the act of congress. But that judgment was afterward reversed, and the doctrine repudiated, in the Court of Appeals, The precise point involved in that case was, whether the usurious contract was governed by the provision of the federal statute limiting the forfeiture to the interest on the loan, or by -the law of the State, imposing as the penalty the loss of the entire debt, principal and interest. And it was authoritatively declared that the congressional provision, regulating the rate of interest and prescribing the penalties for usury, had no application to the private contracts of national banks, made in this State, and were not intended to have any force, except in those States and Territories where there is no local legislation on the subject. It is true that the decision did not necessarily involve both of the clauses composing the sentence in the act of congress by which the penalties for usury were imposed; the first clause declaring a forfeiture of the entire interest reserved on the loan, which could not therefore be allowed in an action for the principal, and the second providing for a recovery back of twice the amount of interest which had been paid by the borrower on the contract. But the latter clause of the provision, imposing the penalty in question, is equally within the reasoning of the court and the principle of the decision. It was held that, as the State authority had made full provision on the subject of the rate of interest and the penalties for its violation, the national banks were wholly subject to the local law in all their private dealings with third parties within our jurisdiction; it being the intention of congress, in the enactment of the federal statute, to leave all contracts made in States and Territories where usury laws exist, to be dealt with according to those laws, and at the same time to impose restrictions * * * in respect to the rate of interest * * * in those States and Territories whose internal policy is such as to leave the subject of interest on money free from legislative regulation.” Now, .our local statute does contain a precisely similar provision to that in question, and allows .an action to be brought by the borrower to recover back any excess he has paid upon the contract above the legal rate of interest, The case cited is, therefore, a direct authority against the right to maintain this action, which is brought to recover the penalty given in the federal statute. We are bound, upon a question of this character, by the decision of our highest local court, made after full discussion and mature deliberation, until it is expressly overruled by.the supreme tribunal of the nation.

The more recent decision of the Circuit Court of the United States for the Southern District of New York, does not conflict with these views. In that case it was held, in harmony with the doctrine declared in the Court of Appeals, that the congressional provision prescribing the penalty for usury, applied to a contract made in this State between two corporations, one of which was a national bank. But the decision was placed on the ground that there were no local regulations on the subject of interest, nor penalties prescribed for usury, in cases where the contracts or obligations were made or incurred on behalf of corporations, whether foreign or domestic. Judge Woodruff pointedly declined to express an opinion upon the question whether the forfeiture and right to recover back can, in any circumstances, be applicable to the case mentioned in the previous clause of the section in the act of congress, to wit: when the national bank reserves or receives a greater rate of interest than is allowed by the laws of a State in which a rate is fixed and limited by the State laws; ” which is the very point involved in the present case. Nor does the case of Tiffany v. The National Bank of Missouri, overrule the decision, swpra, of the Court of Appeals. The question here presented does not seem to have been raised or considered in that case; and the decision does not necessarily involve the assertion of the doetrine that the provisions of the federal statute were controlling and conclusive as against the laws of the State. The action was brought under the federal statute, to recover back twice the amount of interest paid on a contract made in Missouri, and reserving nine per cent as such interest. It appeared in evidence that the local law limited the State banks to eight per cent, but allowed ten per cent as the general rate of interest. The question was, whether the national banks were governed by the special or the general rate of interest prescribed by the State; which, according to the opinion of the court, turned on the construction to be given to the first sentence of section 30 of the act of congress; and it was held that they were allowed to take the same rate of interest as natural persons, generally, in the State, and a higher rate if the State banks were allowed to do so. It did not appear whether the local statute limited the special rate of interest, in terms, to the banks organized under the laws of the State, and therefore did not include national banks ; nor whether there were any penalties prescribed in the local statute for a violation of its provisions. It is true, the case was decided purely on the construction of the federal statute; but as the question here presented was not raised or considered by the court, and as the result reached was a dismissal of the action, the same as if this question had been argued and the point sustained, we cannot regard that case as an authority for the plaintiff.

It is urged that the provisions in question of the act of congress are now in force in this State, even if that act was not ipso facto controlling, by virtue of a subsequent act of the legislature approving and adopting them. But the latter act is limited, in terms, to banking associations organized under the local laws, and has no application to national banks. And it has been decided by the Court of Appeals, since the argument of this case, that the act of 1870 does not change the status of the State banks in reference to the laws regulating the rate of interest and the penalties of usury. The act was merely passed to provide against the inequality temporarily created between the State and national banks by the decision of this court in the case of The National Bank of Whitehall v. Lamb, before it was reversed in the Court of Appeals; and the statute became nugatory, by its terms, with that reversal, when the occasion for which it provided had passed away.

The judgment of the Special Term must be reversed and a new trial granted, costs to abide the event.

Present—Bocees, P. J., Lahdon and Cototbvmah, JJ.

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

       13 U. S. Statutes at Large, 99, 110.

       First National Bank of Whitehall v. Lamb, 57 Barb., 439.

       50 N. Y., 95.

       50 N. Y., 100,101.

       3 R. S. (5th ed.), 73, § 3.

       In the Matter of Wild, a Bankrupt, 8 Alb. Law Journal, 335.

       18 Wall., 409.

       Laws of 1870, chap. 163.

       Farmers’ Bank of Fayetteville v. Hale, MS. opinion.

       57 Barb., 429.

       50 N. Y., 95


text:
    ADELIA P. FLETCHER and others, Appellants, v. ELEANOR D. UPDIKE, Respondent.

      Money of wife received by husband—when he is not liable to account for it—Statute of limitations.

    Appeal from a decree of the surrogate of Schuyler county, allowing to the respondent the amount of the claim made hy her against the estate of her deceased husband. It appeared that the money was received by the husband from his wife, during coverture, in small sums and at various times between February, 1847, and June, 1852. Held (1), that, in the absence of any agreement on the part of the husband to refund these moneys, they became his absolute property by virtue of his marital rights; (2), that, even if they were received under an agreement to refund them, they constituted a claim or debt against the husband, then due, and that the same was barred by the statute of limitations.
    Appeal from a decree of the surrogate of Schuyler county, allowing to the respondent, against the estate of her deceased husband, the sum of $2,491.21, the amount of her claim presented to that officer for allowance.

      Hurd & Fletcher, for the appellants.

      M. J. Sunderlin and S. L. Rood, for the respondent.
   Opinion by Bookes, P. J.

Present—Bocees, P. J., Landon and Countryman, JJ.

Decree reversed and proceedings remitted, etc., with costs of appeal to abide the result:


text:
    EDWIN L. JONES and others, Heirs at Law, and LUCY D. JONES and another, Administratrix and Administrator, etc., of DUDLEY H. JONES, Deceased, Appellants, v. ELBERT O. SMITH, Respondent.

      JSjectment—Patent line—what evidence admissible to establish—what sufficient to „ establish a lime by acquiescence.

    Upon the trial of an action of ejectment, in order to establish a patent line, evidence as to its location was given by persons who had been conversant with the patents, and with their recognized boundaries, for many years, and who knew the line between them by tradition; knew of its recognition by those owning lands bounded by such line, and had also traced it by ancient maps purporting to represent it. Held, that the evidence was properly admitted.

      Van Rensselaer v. Vickery (3 Lans., 57) followed.
    To establish a line by practical location, it must appear that it has been actually created and acquiesced in for a long period of time, generally not less than twenty years; and mutual recognition of the line, and acquiescence in it by the parties, are necessary requisites,

    Appeal from a judgment in favor of the defendant, entered upon the trial of this action at the circuit.

      It. L. Hand, for the appellant.

      Francis A. Smith, for the respondent.

       Reed v. Farr, 35 N. Y., 113.

       Corning v. Troy Iron and Nail Factory, 44 N. Y., 577; Hubbell v. McCullough, 47 Barb., 287.

   Opinion by Bookes, P. J.

. Present—Bookes, P. J., Hardin and Countryman, JJ.

Judgment affirmed, with costs.


text:
    LOVELLA SCOTT, Respondent, v. DANIEL STEVENSON, Appellant.

      Agent—authority of—how proved.

    In an action brought upon a promissory note, alleged to have been transferred by the payee, through the agency of one Hunt, to the plaintiff, the defendant interposed the defense of payment. Upon the trial plaintiff testified that the note was brought to her by one Hunt; and she was also allowed, against the objection and exception of the defendant, to state what was said by Hunt at that time. Ho evidence was given to show that Hunt had any authority to act for the payee. Held, that the declarations of Hunt were improperly received; that his authority could not be proved by his own declarations; nor could it be implied from his possession and delivery of the note.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.

      Charles Hughes, for the appellant.

      E. F. Bullard, for the respondent.

       Marvin v. Wilber, 52 N. Y., 270.

   Opinion by Countryman, J.

Present — Hardin and Countryman, JJ.

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


text:
    JACOB P. MILLER, Appellant, v. WILLIAM IRISH and another, Respondents.
    Appeal from a judgment in favor of the defendants entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the judge’s minutes.
    The action was brought to recover the value of services rendered by the plaintiff, as broker, in effecting the sale of certain real estate for the defendants. Upon the trial evidence was given tending to show that the plaintiff was acting in the interests of the buyers, to which the plaintiff objected on the ground that the evidence related to occurrences subsequent to the completion of his contract as broker. The General Term held, that as both the fact of the plaintiff’s employment, and the extent of such employment, if any, were put in issue by the defendants, the evidence was proper to go to the jury.

      W. O. Benton, for the appellant.

      Gaul (É Esselstyn, for the respondents.
   Opinion by Bookes, P. J.

Present—Bookes, P. J., Landon and Countkyman, JJ.

Judgment and order affirmed, with costs.


text:
    CONFUCIUS L. GEER, Respondent, v. JOSHUA D. LEGG, Appellant.

      Mtojppel—False representations.

    The defendant sold to plaintiff certain logs to which he claimed to have title by virtue of a chattel mortgage, stating that all the logs were covered by such mortgage. In fact, a portion of such logs were not covered by the mortgage. The plaintiff took the logs, relying upon such representation. ' Afterward, one Larkin claimed title to that portion of the logs not covered by the mortgage, and threatened to bring suit therefor. The defendant directed the plaintiff to hold the logs, and gave him the following agreement : “ I hereby agree to make good to C. L. Geer the title to a lot of maple and hemlock logs; said logs being the same as covered by a mortgage given by Marvin W. Thomas to J. D. Legg, on the 9th of August, 1867.” At the same time, he claimed that all the logs were covered by the mortgage. Larkin brought suit for a portion of the logs, and recovered judgment therefor. The referee in the above entitled action directed judgment in favor of the plaintiff, Geer, against the defendant, Legg, for the amount of the judgment and costs recovered by Larkin, including costs on an appeal commenced upon the advice of the defendant, but abandoned by the plaintiff. The court, at General Term, were of opinion that, though the defendant did not expressly warrant the title to the logs, and not being in possession of them no warranty was implied, yet he undertook to sell them; represented that they were embraced in the mortgage (and had such representation been true plaintiff’s title would have been good); afterward agreed to defend the title to the logs embraced in the mortgage; that defendant acted upon such representation; and that upon such state of facts plaintiff was estopped from setting up that such representation was false, and that the logs were not embraced in the mortgage, and affirmed the judgment.

      Alex. Gumming, for the appellant.

      Wm. Gleason, for the respondent.
   Opinion by Landon, J.

Present—Bookes, P. J., Landon and Countryman, JJ.

. Judgment affirmed, with costs.


text:
    THE NATIONAL LIFE INSURANCE COMPANY OF THE UNITED STATES OF AMERICA, Appellant, v. PHILIP MINCH, Administrator, etc., or ANNA C. MINCH, Deceased, Respondent.
    Appeal from a judgment in favor of the defendant entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the judge’s minutes. The action was brought to-recover money paid by the plaintiff to the defendant, as administrator of his wife, upon a policy of insurance. The case has airead}7 been before the Court of Appeals, and is reported in 53 IS! ew York, 144. Upon this appeal, the court held that the verdict was against the weight of evidence, and ordered a new trial.

      J. E. Dewey, for the appellant.

      J. M. Carroll, for the respondent.
   Opinion by Hardin, J.

Countryman, J., concurred; Bookes, P. J., took no part.

Order and judgment reversed and new trial granted, costs to abide the event.


text:
    LAURA GARLOCK, Appellant, v. WILLIAM CLARK, Jr., Respondent.
    Appear from a judgment in favor of the defendant, entered upon the report of a referee. Bookes, P. J., in delivering the opinion of the General Term, says: “ It is sufficient for the disposition of
    this appeal, to say that the judgment directed by the referee, is the necessary and logical sequence of the facts found; and that all disputed facts are found in favor of the defendant on a conflict of evidence.”

      J. M. Ocurroll, for the appellant.

      J. jS'. Dewéy, for the respondent.
   Opinion by Bookes, P. J.

Present—Bookes, P. J., Landón and Countryman, JJ.

Judgment affirmed, with costs.


author: Daniels, J.: Davis, P. J.:

text:
    DUNCAN D. TEMPLETON, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

      Experts—evidence of— what weight to he gimen to — direction to disregard, error.

    The eflect of competent evidence is a matter to be disposed of by the jury, particularly in criminal cases.
    The evidence of experts who are brought upon the stand to sustain a theory, is justly exposed to a resonable degree of suspicion, and forms a very proper subject for the expression of a reasonably guarded opinion by the judge, but it is error to direct the jury to put no reliance upon such evidence It is error to instruct the jury that the opinions of experts are not entitled to any more weight than those of other persons whom the law does not permit to give their opinions.
    Wbit of error to the New York Court of General Sessions.

      John D. Townsend, for the plaintiff in error.

      Daniel G. Rollms, Jr.,'for the defendants in error.'
   Daniels, J.:

The prisoner was convicted of committing an assault upon his wife, with intent to kill. The perpetration of the act constituting his offense was substantially conceded on the trial, but it was claimed in his behalf that he was at that time insane. The peculiar form of the disease which he was alleged to be affected by, was that of delusion, concerning supposed or assumed danger to the virtue of his wife, and her exposure to improper influence's in that respect from the purposes and inclinations of her family relatives. There was evidence given, tending, in some degree, to show that to have been his mental condition before and at the time when the criminal act was charged to have been committed by him. While the defense made in his behalf was by no means a strong one, there was still enough of it, as long as the charge imputed a crime, to render it the subject of consideration and decision by the jury; and it was so regarded, for it was submitted to them in that view by the learned judge presiding at the trial.

An important part of the evidence upon this subject, was given by Meredith Olymer, a witness who was sworn and examined on behalf of the prisoner. He was a physician, professing to understand the indications and symptoms of the existence of the form of insanity by which it was claimed the prisoner was affected, and he testified that the facts relied upon in his favor, indicated unsoundness of mind. When the case was submitted to the jury, the. learned judge stated to them, that he placed no reliance whatever upon Dr. Olymer’s testimony, except what is due to the testimony of a sensible and honest gentleman; but I have equal respect for the opinion of you, gentlemen, who, as men of the world, having attained a mature age, and seen life in many of its phases, are quite as competent, perhaps, to pass upon this testimony as experts, as is Dr. Olymer.” This was not a positive direction to the jury to disregard the evidence of the witness, although quite a decided opinion that it was their duty to do so. A mere expression of opinion as to the weight or effect of the evidence, which still allows the jury to be guided and governed by their own convictions, forms no proper ground for an exception. That may be proper, and even necessary, under certain circumstances, to enable the j nry to give appropriate consideration to evidence requiring their judgment. The evidence of witnesses who are brought upon the stand to support a theory by their opinions, is justly exposed to a reasonable degree of suspicion. They are produced not to sw.ear to facts observed by them, but to express their judgment as to the effect of those detailed by others, and they are selected on account of their ability to express a favorable opinion, which, there is great reason to believe, is, in many instances, the result alone of employment and the bias arising out of it. Such evidence should be cautiously accepted as the foundation of a verdict, and it forms a very proper subject for the expression of a reasonably guarded opinion by the court. That is often necessary to prevent the jury from being led astray by giving too much weight to evidence really requiring to be suspiciously watched, and which, in many instances, has induced unwarranted verdicts, discreditable to the administration of justice, as well as exceedingly detrimental to the public interest. When the comments of the court are extended no farther than that, no fault can be found with them on the part of the accused. But in the present case, what was said upon the subject, was supposed by the prisoner’s counsel to go so far beyond the mere expression of an opinion, as to constitute a positive direction that the jury should disregard the evidence given by this witness; and an exception was taken to it because it was believed to be of that character. The proposition was presented by the exception, that the court could not properly direct the jury, that no reliance should be placed in Dr. Clymer’s testimony, the jury having as much capacity to determine upon that as Dr. Clymer. The statement of the point excepted to, was clear and explicit, that the jury could not be directed to put no reliance on the testimony of this witness. That had not been done, but the point was taken by the exception, that such a direction should not be given. And it was immediately followed by the response, that “ There is no more reliance to be placed upon it, than upon the testimony of any other person in this case; I regard you, gentlemen of the jury, as equally skilled, as much skilled, and as able to decide, from the evidence, whether or not the prisoner was insane, as Dr. Clymer.” This was more than a mere comment, by way of opinion, as to the effect which might be given to the statements of the witness. It was equivalent to a direction to disregard it, by giving it no weight whatever. And that presented the point taken by the exception, just as effectually as if the exception had been again repeated. It was to the controlling direction which in the end was given, that the exception was taken. And, as it was taken to the proposition itself, there was no need of repeating it again after that had been stated by the court. The direction was excepted to, and that is all that is required, to entitle thé prisoner to present it for the determination and decision of this court. That it was erroneous, is too clear for doubt. For, under the well settled rules of law, the effect of competent evidence is a matter to be disposed of by the jury, under all the circumstances and probabilities of the case. That is particularly their province in the trial of criminal charges, where the question of guilt is exclusively to be decided by them. And they must be left at liberty to exercise their judgment on the subject, without being controlled by any positive direction by the court. That freedom was not afforded them, concerning that portion of the case which was affected by the evidence of the witness Clymer.

The other exceptions presented by the prisoner’s counsel, do not appear to rest upon any substantial foundation; but if either of them could be plausibly supported, it would be unnecessary to consider it, as long as the one referred to will necessarily require another trial of the indictment. The judgment of the court of General Sessions should be reversed, and a new trial ordered. .

Davis, P. J.:

The evidence of medical experts is admitted on questions of insanity, on the ground that jurors are not deemed equally skilled, or as much skilled, and as able to decide whether the alleged insanity existed, as are such experts. The law holds that there is more reliance to be placed upon their opinions than the same testimony given by other persons, and therefore it does not permit other persons to give the same kind of evidence. The jury is, in all cases, to determine what weight is to be given to such testimony; but to instruct them that the opinion of experts is entitled to no weight, or to no greater weight than the opinions of persons not allowed to give any, or to instruct the jury that they are deemed equally skilled and as able to decide from facts proven, whether such facts are indications of the disease known as insanity, as experts in that branch of medical science, is to overturn the theory of the law and the established rules of evidence on that subject. I think the learned recorder committed a serious error in his charge. My only difficulty is, in holding that the exception reached the error. But I am inclined to think that the safer course is to apply the exception to the instruction given, which was immediately enunciated in response to the exception. I shall concur therefore with my brother Daniels.

Beady, J., concurred.

Judgment reversed, and a new trial ordered.

       1 Greenl. on Ev. (12th ed.), § 49 and note, § 160; Firemens’ Ins. Co. v. Walden, 12 John., 513, 519; People v. Quin, 1 Parker Crim. Rep., 340; Breen v. People, 4 id., 380; Duffy v. People, 26 N. Y., 588.


text:
    THE PEOPLE ex rel. JAMES DOYLE, Respondent, v. THE NEW YORK BENEVOLENT SOCIETY OF OPERATIVE MASONS, Appellant.

      Incorporation—presumption of— Writ of mandamus—its use to restore corporator to membership—Notice of trial for violation of by-law—By-law requiring member to join in strike—void, as against public policy.

    Where a society is proceeded against by a name not inappropriate as a corporate designation, and the application is resisted by it in that name, and no denial of its corporate character is contained in the papers, it will be presumed that it is in fact a corporation.
    It is a proper use of the writ of mandamus to restore a person to membership in a corporation from which he has been improperly expelled.
    The by-law of the society provided that no member should be expelled until he had been notified to appear and show cause. The plaintiff received no notice until after a fine had been imposed upon him for an alleged misconduct, and that notice was simply to appear and pay the fine or show cause. He was tried by a committee of the society without notice of the charge on which he was fined, or opportunity given to him to defend himself against it. Held, that this could not, on general principles or under the by-law, justify his expulsion.
    By-laws of a society which forbid a member to work at his trade at such prices as he chooses to accept, and compel him to join in a “ strike ” by punishing him for refusing so to do, are void as against public policy. (Davis, P. J.)

      Appeal from an order directing a writ of peremptory mandamus to issue, requiring the appellant to reinstate the relator in all the rights, privileges and benefits which, finder the constitution and by-laws of the defendant, a society formed for benevolent purposes, belong to a member of it in good standing.

      8. B. Garvim, for the appellant.
    The remedy by mandamus is granted only when there is no other, to prevent a failure of justice. (Clark v. Miller, 54 N. Y., 534.) Plaintiff’s proper course is to bring his action. (People ex rel. Dilcher v. German Church, 53 N. Y., 103.) Where a voluntary association have jurisdiction, the courts will not interfere, but regard their decision as final and conclusive (Connitt v. Dutch Churoh, 54 N. Y., 551); and whatever the decision of the 'society, whether just or unjust, there is no appeal except such as is provided in the by-laws of the society. It is like an award—just as valid and conclusive as a judgment. (12 N. Y., 9; 9 Johns., 212; 14 id., 96.)

      Breen dé Gearon, for the respondent.
    Under the constitution and by-laws of this society, and under the laws of this State, the relator was entitled to due notice and an opportunity to be heard in his own defense, against any charge that might be made against him. (See MS. opinion of Judge Barrett in The People ex rel. O'Dowd v. N. Y. Benevolent Society of Operative Masons; MS. opinion of Judge Ingraham in The People ex rel. Corrigan v. Y. M. Father Matthew T. A. B. Society.)

   Daniels, J.:

Although it was not distinctly alleged in the affidavits used in support of the application for a peremptory writ of mandamus, that the society was a corporation, they must be accepted as sufficient in that respect, in the disposition of the present appeal, because no objection was made to them, as defective on that account, when the application was heard upon them by the Special Term. If it had then been made, it is probable that it could have been removed by supplying legal evidence of the fact at that time, under such terms as could then have been prescribed. For that reason, the objection should now be treated as waived by the omission to urge it when it might have been in .the applicant’s power to correct it by means of further proof as to the fact. It may now, with propriety, be inferred from that omission and the circumstances, that the society was proceeded against by a name not inappropriate as a corporate designation; that the application was resisted by it in that name, and that no denial was contained in the papers of its corporate character; that it was in fact what its acts indicated, a corporation. For those reasons, the appeal should be disposed of, with that fact assumed against the appellant. From the applicant’s affidavit, which, in this respect, was allowed to pass entirely uneontroverted, it was shown that he was expelled from the society for an alleged violation of one of its by-laws; and no distinction was either shown, or claimed to exist between membership in the corporation and membership in the society. But, on the other hand, it may be inferred from the papers, that the society and the corporation are one and the same entity. The substance of the application, therefore, was, that by means of the writ of mandamus, the applicant should be restored to his position as a member of the corporation itself. The case of People v. German United Saint Stephen's Church was relied upon as an authority opposed to such a use of the writ of mandamus. But the decision in that case did not go to that extent. For the application which was there made, was so construed as to be limited to a claim to be restored to membership in the ecclesiastical body known as the church, as distinguished from the corporate society itself. It was from the ecclesiastical body that the relator had been expelled, and not from the congregation, as a corporator. And as membership in that was controlled entirely by the discipline of the church, as a merely religious association, and it was in no sense a corporate body, it was held that the writ of mandamus could not be lawfully issued, to restore the relator to membership in it.

The application in this case was of an entirely different nature. In substance it was to restore the applicant to membership in a corporation, formed under the statute of this State for benevolent purposes, and that involved a legal and proper use of the writ of mandamus. It was the only mode in which, by legal proceedings, he could secure such restoration; and "its use for that purpose, has been sanctioned and maintained by judicial authority.

The real cause of the applicant’s removal and expulsion, was an asserted violation of the thirty-first article of the by-laws. For he was relieved of the other ground of complaint against him, on the production of his affidavit denying its truth. And that violation consisted, according to the by-law, either of going in on a regular strike, or taking a brother member’s place, who had been discharged for upholding the laws of the society. The penalty authorized by way of punishment, was expulsion or a fine of twenty dollars, as the society might determine. That was explicitly provided by article thirty-one of the by-laws. It was not both which could be imposed upon the offender, but one or the other! And as it was shown by the affidavit of O’Callahan, produced on the part of the society, that a fine of twenty dollars was imposed, it would seem to follow that there was no authority for adding expulsion to it. The power of the society to expel the applicant could not, under the terms of the by-law, be executed in the case after the fine had be.en inflicted. By the first section of article thirty of the by-laws, it was provided that no member should be expelled, until he had been notified to appear and show cause; and the applicant swears that he never received any notice or intimation that either charge, found in the report of the committee, was about to be brolight against him. This statement was not contradicted by anything contained in the papers produced on the part of the society. The notice produced upon the hearing was not qf the character required by the by-law. For it was not served until after the fine was imposed, and did not propose that his conduct should be investigated, but simply that he should appear and pay the fine, or show cause. For what he was expected to show cause, was not stated nor in any way shown. It was not apparently designed to afford him an opportunity to be heard, as to the justice of the fine. For, when he did appear before the society, at a subsequent time, he protested his innocence of the charge, and stated that he could prove it; but no attention, he states, was paid to him by the society. It appeared that he was tried by the committee without notice of the charge on which he was fined, and from which he was not afterward relieved. That was unreasonable and unjust, and could not, either on general principles, or under the language of the by-law, justify his expulsion from membership.

The failure to pay his dues was equally groundless as a reason for expulsion. For he offered to pay those which had accrued on the seventeenth of December, and the society declined to receive them. He had not been lawfully convicted of having done anything up to that time, depriving him of the right to make payment; for his trial and conviction had been conducted without notice to him of the proceeding. And for that reason it was not effectual against him for any purpose whatsoever. The society could not, because of his conviction, decline to receive his dues, and, in that manner involve him, for such a period, in arrears, as to justify his expulsion, as long as no notice was given him, which enabled him to contest or disprove the charges made against him. Ho reason for his expulsion "was shown on the hearing of the application, authorizing or justifying that act under the provisions contained in the by-laws.

The order should therefore be affirmed, with ten dollars costs, besides disbursements on the appeal.

Beady, J., concurred.

Davis, P. J.:

I concur on the grounds expressed by Justice Daniels, and also on the ground that the by-laws under which the relator was expelled, and which, in effect, forbade the relator to work at his trade at such prices as he chose to accept, and compelled him to join in a strike ” by punishing him for refusing so to do, are void as against public policy.

Order affirmed, with ten dollars costs besides disbursements on appeal.

      53 N. Y., 103.

       People v. Saint Franciscus Benevolent Society, 24 How. Pr., 216; People v. Erie Co. Medical Society, 25 id., 333; S. C., 32 N. Y., 187.

       People v. Saint Franciscus Society, 24 How. Pr., 216.


author: Daniels, J.:

text:
    THE BOWERY SAVINGS BANK, Respondent, v. EDWARD C. RICHARDS, Executor, etc., and others, and ANDREW B. HINE, Appellant.

      Mortgage,foreclomre—Oontempt in collecting rents after appointment of receiver)'— Tenant—remedy of receiver against one not a pa/rty to the action — Attoi'nment.

    It is not sufficient, to justify a commitment for contempt: to show an appointment of a receiver of the rents, etc., of mortgaged premises; notice of it, to the party alleged to be in contempt, who claimed the rent under an assignment from the owner of the equity of redemption, subsequent to the recording of the mortgage and prior to the appointment of the receiver in the foreclosure suit, to which he was not a party ;• that thereafter such party collected rent from a tenant of the mortgaged premises, not a party to the foreclosure suit, and that he refused to pay such rent to the receiver.
    If the property is in the possession of a third person, who claims the right to retain it, the receiver must either proceed by suit in the ordinary way to try his rights, or must make such third person a party to the foreclosure suit, and apply to have the receivership extended to the property in his hands.
    The proper practice, when the tenant is not a party to the foreclosure suit, is to compel him to attorn to the receiver.
    Appeal from two orders; one directing a reference to determine the injury sustained by a receiver appointed in this action, by reason of the appellant, Andrew B. Time’s contempt of court, in collecting rent from the tenants of certain mortgaged premises; the other imposing a fine upon the appellant, and directing his commitment until payment, for a contempt. The four actions in which these proceedings were had, were brought to foreclose four mortgages. A receiver of the rents and profits of the mortgaged premises was appointed. Prior to the foreclosure, the owner of the equity of redemption bad assigned the rents of the premises in question to Hin'e, Cole and Gray (not parties to the foreclosure suits). After notice of the receiver’s appointment, Hine collected rents and refused to pay them to the receiver.

      Albert Smith, for the appellant.
    The right to proceed against Hine, as for a contempt, depends upon the question, “ Whether the receiver, either by himself, or his agents or tenants, was in possession of the property,” at the time it is alleged to have been interfered with by Hine, “ and not upon the mere right to reach such property by creditor’s bill?” (Noe v. Gibson, 7 Paige, 513; Albany City Bank v. Schemerhorn, 9 id., 377.) He was not; put in possession of the rents and profits by the order appointing him, for this could only reach property in the possession of an adverse party, i. e., a party to the action. (Code, § 244, sub. 1.) No one shall be deprived of property without due process of law. (U. S. Con.) The assignment to Hine, Cole and Gray, vested in them the rents and profits as an actual property and right of possession, distinct and separate from the reversion. (Demarest v. Willard, 8 Cow., 206; Willard v. Tillman, 2 Hill, 274; Moffatt v. Smith, 4 Com., 126.) The tenants had been paying rent to Hine, Cole and Gray, who were therefore actually in possession, as well as by operation of the statute. (3 Rev. Stat. [5th ed.], 30, § 166.) The statute never contemplated holding any one guilty of contempt for maintaining a legal right. (Rev. Stat., § 1, tit. 13, part 3, ch. 8.) A receiver cannot take property that is the subject of the action from one who is not a party to the action, and one not a party to the action is not to be punished as for contempt, for not obeying an order issued in it. (1 Madd. Ch. Pr., 145; Watson v. Fuller, 9 How. Pr., 425; Field v. Ripley, 20 id., 26; McCarthy v. Peake, 9 Abb. Pr., 164; 18 How. Pr., 138.)

      William G. Wilson, for the respondent.
    Hine being merely an assignee of rents, took no interest whatever in the land, and had neither possession nor right to the possession of the premises. He was not, therefore, a necessary party either to the suits or to the motion for a receiver. (Huerstel v. Lorillard, 6 Robt., 260; Demarest v. Willard, 8 Cow., 206.) By the appointment of the receiver, the premises passed into the charge and custody of the court. (Steele v. Sturges, 5 Abb. Pr., 442.) The order being regular on its face must be respected while in force, and the receiver holds the rents collected subject to the order of the court. (People v. Compton, 1 Duer, 542.) The conduct of Hine was a contempt, and properly punishable as such. (2 Rev. Stat., 534, § 1, par. 4; Hull v. Thomas, 3 Edw. Ch., 236.)
   Daniels, J.:

The contempt, for which the punishment of the appellant has Been directed, consisted in the collection of rents by him, arising out of the occupancy of mortgaged property, for which a receiver had been appointed, during the pendency of an action for the foreclosure of a mortgage. The appellant claimed the rent as assignee of the owner of the equity of redemption, under an assignment made subsequent to the, execution and recording of the mortgage, and before the appointment of the receiver. And it was probably subordinate to the rights of the plaintiff under his mortgage; but that question it is not either necessary or proper to consider or decide for the purpose of disposing of the present appeal. The appellant was not a party to the suit, nor to the proceeding in which the order was made, appointing the receiver, and that order never appears to have been served upon or exhibited to him. The most that was done in that respect, was, to inform him that the appointment had been made, which information was accompanied by an offer to exhibit to him a certified copy of the original order. That, however, was not done, apparently for the reason that Hine claimed that he was "not bound by the order, and was entitled to collect and receive the rents under the assignment made to him. The affidavits used as the foundation of the orders appealed from, are exceedingly barren in their disclosure of the facts upon which the proceeding was instituted on behalf of the receiver. They simply show his appointment, notice of it to Hine, and that he, by virtue of summary proceedings for the dispossession of the tenant, collected the rent due, after the latter had been informed of the appointment, and that the receiver claimed the rent of him. They do not show that the tenant ever undertook to pay him the rent, or in any other possible way attorned to him in his capacity of receiver. The subject-matter of this proceeding, consequently, was never brought within the control of the receiver, nor subjected to the power of the court, so far as to be within its protection, by means of its power to punish the appellant for contempt. He had an assignment of the rent, apparently for a fair consideration, as between himself and the owner of the equity of redemption. And, so far as possession could he predicated of an intangible thing, it seems to have been acquired by him. The receiver never secured possession or control; and he took no measures to compel an attornment of the tenant to him. He was not therefore disturbed by Hine in the enjoyment or exercise of his official functions, so far as to render him subject to the process of the court for contempt. To bring him within the reach of the power of the court to punish him in that manner, the receiver should have secured the attornment of the tenant, or the action should have been extended by amendment so far as to make Hiñe a party to it. The rule upon this subject was declared by the chancellor to be as follows : If the property is in the possession of a third person who claims the right to retain it, the receiver must either proceed by suit, in the ordinary way, to try his right to it, or the complainant should make such third person a party to the suit, and apply to have the receivership extended to the property in his hands; so that an order for the delivery of the property may be made which will be binding upon him, and which may be enforced by process of contempt, if it is not obeyed.”

The proper practice, in a case of this description, where the tenant is not a party to the action for the foreclosure of a mortgage, is to compel him to attorn to the receiver. Then the court can protect the person paying, as well as the officer claiming the rent, from the "improper interference of all other persons. But where the tenant is not a party to the action, and no attornment to the receiver has taken place, the jurisdiction over the subject by way of process for contempt cannot be maintained, In a case where levies had been made by sheriffs,- on property claimed by a receiver, the court held, that if the tenants had attorned to the receiver, or had agreed to account to him for a share of the crops, etc., belonging to the landlord before the sheriffs levied their executions thereon, the appellants were not authorized to disturb such constructive possession of the receiver. And they may be compelled to restore the property, or the value of it in this summary way. On the other hand, if the receiver was not in possession, either by himself or his tenants by attornment, or by his agents, he cannot enforce a delivery of this property to him by proceedings as for a contempt against the sheriffs who have levied thereon; although he may have an equitable right to recover the same by bill in this court, founded upon the previous order to appoint a receiver.”

The facts shown in- support of the application made, were not sufficient to justify the orders for the punishment of Hine, the appellant, within the principles maintained by these authorities. The orders should consequently be reversed, with ten dollars costs, besides disbursements, and the motion denied with ten dollars costs, without prejudice to any further proper proceedings for the recovery of .the fund in dispute.

Davis, P. J., and Beady, J., concurred.

Ordered according!}.

       Parker v. Browning, 8 Paige 388, 390.

       Sea Ins. Co. v. Stebbins, 8 Paige, 565.

         Albany City Bk. v. Schmerhorn, 9 Paige, 372, 377.