text:
    Joanna Lane, Resp't, v. Peter A. Young et al., App'lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    1. Landlord and tenant—Estoppel.
    A tenant is estopped to deny the title of his landlord so long as it remains as it was when the tenancy commenced; but he is not estopped from proving that such title has expired' by its own limitation, if it was a limited title, or was aliened by the landlord or extinguished by a paramount title in his lifetime and after entry by the lessee.
    2. Justice’s court—Title to real estate.
    In an action for rent brought by the heir of the lessor, where the tenant disputes that the lessor was the owner at the time of his death, it is necessary for the plaintiff to prove such title in the lessor at the time of his death, and the title to real estate necessarily comes in question, and it is the duty of the justice to dismiss the complaint.
    Appeal by defendants from a judgment of the county court of Cattaraugus county, reversing the judgment of a justice of the peace of the town of Olean.

      M. B. Jewell, for app’lts;

      EL Donnelly, for resp’t.
   Dwight, P. J.

The action was for rent. Issue was joined in the justice’s court by written pleadings. The complaint alleged that one John S. Lane, in his lifetime, rented the premises to the defendants at a monthly rental which they agreed to pay in ad'Vance, on the first day of each month from Aug. 1, 1889; that on the 3d day of ¡November," 1889, the lessor died intestate, leaving the plaintiff his only heir at Mw; that since his. death the defendants had paid the rent accruing to the plaintiff, except the balance due, for which this actidn was brought. The answer was a general denial, and a plea of payment.

On the trial the plaintiff produced one Cornelius Lane as a witness, who testified that the deceased, John S. Lane, was a son of the plaintiff; that he died ¡November 3, 1889, leaving ho wife or children ; that since his death the witness had collected the rent from the defendants, for the plaintiff; and, under the defendants’ objection, that John S. Lane was the owner of the premises at the time of his death. At this point the defendants gave notice that they disputed that John S. Lane was the owner of the premises at the time of his death, and thereupon moved that the complaint be dismissed on the ground that the title to real property was in question on the plaintiff’s own showing, and that the title was disputed by the defendants. The justice granted the motion, the complaint was dismissed, and judgment was entered accordingly, from which the plaintiff appealed to the county court. That court reversed the judgment of the justice, and from its judgment this appeal was taken.

We think the complaint was properly dismissed and that the reversal of the judgment of the justice was error. The complaint made a case in which the defendants were estopped to deny the title of the deceased, John S. Lane, at the time of the letting, and in which, that title being presumed to continue until the contrary was shown, the plaintiff had succeeded thereto by descent. The complaint also contained allegations to the effect that the defendants had attorned to her and were thus estopped to deny her own title. Both of these allegations were denied by the answer and the plaintiff might recover upon establishing either.

Under the former of the two allegations, viz.: that the plaintiff has succeeded to the title of her deceased son, it was necessary that it should appear, either by direct proof or by implication, that title was in the son at the time of his death ; and this it was which the defendants proposed to dispute; and this they were entitled to dispute. They admitted the title of their lessor at the time, by entering into possession under a lease from him, and they are estopped to deny what they have thus admitted. But the estoppel goes no further. Jackson v. Rowland, 6 Wend. 670; Despard v. Walbridge, 15 N. Y., 374; Hilbourn v. Fogg, 99 Mass., 12. In the first of these cases the court says: “A tenant cannot dispute the title of his landlord so long as it remains as it was at the time the tenancy commenced; but he may show thatthe title under which he entered had expired or been extinguished.” In the Massachusetts case, the court, in an opinion by Justice Gray, says: “The well settled rule of law by which a tenant who has entered into possession under an oral lease is estopped, so long as he continues in possession under the lease, to deny the lessor’s title at the time of making the lease, as against the lessor, his heirs and assigns, is founded on the injustice of allowing a person who has obtained possession by admitting the title of another to deny that title, and, in ease of failure in proof of it, hold the premises himself. The rule applies in every form of action by which the lessor may seek to assert the rights reserved or promised to him in his lease. But it is equally well settled that the tenant is not estopped to deny that since his entering into possession his lessor’s title has expired, either by its own limitation, by the act of the lessor, or by eviction by title paramount; and that when the estoppel is set up by one claiming as assignee of the lessor, the tenant may show that such assignment was ineffectual to pass the lessor’s title.” To this proposition Judge Gray cites, among other authorities, the case of Despard v. Walbridge, supra.

In that case Judge Selden quotes the language of the court (as above) in Jackson v. Rowland, and himself states the rule limiting the estoppel in the words, “ the tenant can be estopped only from denying what he has once admitted.”

The defendants in this case, therefore, were not estopped to deny that the title of their lessor which they admitted when they entered into possession under a lease from him, either expired by its own limitation, if it was a limited title, or was aliened by himself, or extinguished under a paramount title, in his lifetime and after their entry as lessees; in either of which cases the plaintiff would take no title, as heir, at his death. For the defendants to dispute the title of the lessor at the time of his death was only a mode of disputing the title of the plaintiff at the time of the commencement of the action, which was within the issues joined by the pleadings.

The case seems, therefore, to have been brought, distinctly, within the provisions of § 2956 of the Code of Civil Procedure, viz.: where it appeared from the plaintiff’s own showing, on the trial, that the title to real estate was in question, and the title was disputed by the defendants. Such being the case it was the duty of the justice to dismiss the complaint, as he did, and render judgment against the plaintiff accordingly.

The fact that, possibly, the plaintiff might have made a case under her allegation of attornment to herself by the defendants, did not change the duty of the justice. The plaintiff chose to proceed under the other allegations of her complaint and give evidence tending to show that she had succeeded to the title as heir of her son, and the defendants had a right to try that question, if at all, before a court having jurisdiction.

The judgment of the county court should be reversed and that of the justice affirmed.

Judgment of the county court of Cattaraugus county reversed, and that of the justice affirmed, with costs of the two appeals to the defendants.

Macomber and Lewis, JJ., concur.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Henry McLean, App'lt, v. The Standard Oil Company of Indiana, Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1893.)

    Master and servant—Negligence—Unsafe scaffolding.
    Plaintiff, who was an iron worker, while putting on the top of a tank for defendant and standing inside it on a scaffolding erected by other servants, fell and was injured so severely that he could not recall the particulars of the accident. No one saw him fall, but the plank upon which he had been standing was found at the bottom of the tank broken. It was cross grained and was from the heart of the tree. Held, that the circumstances were sufficient to show that his fall was occasioned by the breaking of the plank, and that defendant had neglected its duty to furnish him with a safe scaffolding on which to work.
    Appeal from a judgment entered on an order directing a non-suit and dismissal of the plaintiff’s complaint on the ground that the plaintiff had failed to establish a cause of action.

      Charles B. Wheeler, for app’lt;

      George J. Bicard, for resp’t.
   Lewis, J.

The action was brought by the plaintiff to recover

damages for injuries sustained by him while in the employ of the defendant as a mechanic aiding in the construction of iron oil tanks at the defendant’s works at Whiting, Indiana. Plaintiff was a boiler maker, and was injured by a fall in a tank in which he was working at the time, caused, as claimed by him, by the breaking of a plank in the scaffolding in one of the tanks upon which he was at the time standing. No one saw the plaintiff fall. He testified that he was at work upon the scaffolding which had been constructed by the defendant to facilitate putting on an iron roof upon the tank. The sides of the tank had been completed to the height of thirty feet. The platform of the scaffolding was a foot and a half to two feet below the tops of the sides of the tank and rested upon a framework of wood inside the tank. The platform consisted of plank twelve to fourteen feet in length, ten to twelve inches wide and two inches thick. Plaintiff testified that he was standing in about the center of the platform, and was engaged in putting into position one of the iron plates forming the roof of the tank. He was so seriously injured by the fall that he was not able to recall at the time of the trial any of the particulars of the accident; he could not even remember that he did fall.

Other witnesses who were in the immediate vicinity of the tank at the time of the accident testified that within a minute or two after the accident they saw the plaintiff; that he had fallen upon the floor of the tank, and was so seriously injured that he was unconscious. A plank was found lying upon the floor of the tank broken into two pieces of about equal length.

The breaking was caused by the splitting of the wood with the grain or fiber of the plank. The grain at the place of breaking ran across the plank at so sharp an angle that the two broken ends if placed together would overlap each other only eight or nine inches. There were also indications on the surface of the plank tending to show that it was taken from the heart of the tree. Jerry Moriarty, who was superintendent of the gang of men in which plaintiff was working, was at the tankgtwo or three minutes after the accident. He testified that when he arrived there plaintiff had just been brought out of the tank, and was unconscious. He further testified as follows: “We found the plank that he fell through. It was broken nearly in two. Hot exactly in the center. There were two pieces of it. The break was not a straight break. It was a kind of a split. I don’t know whether it was in the center of the plank or either end, but I know it was the end he was on. It must have been. It certainly must have been a cross-grained plank. Anybody could judge that it was cross-grained that saw it. After I went inside the tank I looked up at the scaffolding above, and saw quite a lot of scaffolding there.

“ Q. Did you see the place where a plank was gone ? A. I did and the plank was at the bottom of the tank.

“ Q. Eight under it? A. Eight down on the bottom.”

Frank McLean, a cousin of the plaintiff, who was at the time of the accident in Buffalo, hearing of the accident went to Whiting to see the plaintiff, and called upon W. P. Cowen, who was the general manager of all of the defendant’s business at that place. McLean testifies: “ I went to the tank with Mr. W. P. Cowen and went inside; saw a plank lying inside of the tank. Mr. Cowen showed it to me. It was a plank twelve or fourteen feet long, ten or twelve inches wide and two inches thick, of hemlock. The plank seemed to be cross-grained wood. I noticed the heart of the tree, what you call the heart of the plank, in about the center of the plank. The heart ran through the center of the plank lengthwise.”

While no one actually saw the plaintiff fall, and there is no positive and direct evidence as to the way the accident occurred, the facts and circumstances quite clearly establish that he fell from the scaffolding, and that the fall was occasioned by the breaking of the plank upon which he was standing. That this was the way in which the accident occurred seemed to have been assumed upon the trial. It is suggested by the respondent’s counsel that the plaintiff might have made a misstep or might have been overtaken by a fit or sudden disease, and thus have fallen or met with the injuries he sustained. While it is possible that the accident may have occurred in one of the ways suggested, it is very improbable. Plaintiff’s explanation of the cause of the accident is sustained by the evidence and circumstances surrounding the case, and is reasonable and probable. The plaintiff had nothing to do with the construction of the scaffolding. That was built by carpenters in the employ of the defendant. It was the duty of the defendant to furnish the plaintiff safe scaffolding upon which to stand while engaged in his work. There was evidence, we think, tending quite strongly to show that the defendant neglected its duty to the plaintiff in this regard. Expert evidence was not required to show that the plank which broke and caused the plaintiff’s fall was defective and unfit to be used in such scaffolding. Every person of common experience and observation knows that a plank with such cross-grain as this one had is much weaker and much more liable to break than one is with the grain running lengthwise with the plank.

There was evidence tending to show that the defects in this plank could have been easily ascertained had it been properly examined. While it is incumbent upon the plaintiff in negligence actions to show affirmatively that the defendant’s negligence caused the injury complained of, it is not necessary that the‘ evidence should be positive and direct. Proof of circumstances from which the inference may be fairly drawn is sufficient. Galvin v. Mayor, 112 N. Y., 229; 20 St. Rep., 569.

There was, we think, sufficient evidence that the negligence of the defendant was the cause of the accident so that the question should have been submitted to the jury. The plaintiff was a worker in iron and not a carpenter. He had a right to assume that the defendant’s carpenters had prepared for his use a reasonably safe staging. There was no such obvious and palpable defect in the scaffolding as would have been likely to have attracted his attention. We find no evidence in the case tending to prove negligence on the part of the plaintiff contributing to his injuries. The case, we think, should have been submitted to the jury. The judgment appealed from should be reversed and a new trial granted, costs to abide the event.

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


author: Dykman, J.

text:
    Abbot L. Dow, Trustee, App'lt, v. Margaret H. Dow et al., Resp'ts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Appeal—Rearg-tjmbnt.
    Where .pending a reargument of appeal granted on motion of a guardian ad litem of infants, one of such infants arrives of age, employs counsel and requests the former decision to stand, such request should be granted.
    Reargument of appeal.
    Plaintiff, as trustee, appealed from a decree charging him with interest on a certain mortgage and with the profits of certain real estate, transactions to this court, when the decree was reversed. 45 St. Rep., 5. On motion of the guardian ad litem for the three infant defendants, a reargument was ordered. 46 St. Rep., 962. The defendant Margaret has since come of age, and desires the former decision to stand.

      Wm. G. Low (Thos. S. LToore, of counsel), for app’lt;

      Chambers JBoughton, for resp’t,
    Margaret H. Dow; William B. Davenport, guardian ad litem, for infant resp’ts.
   Dykman, J.

Since we decided to grant a reargument of this case, Margaret H. Dow, one of the infants in whose interests the guardian ad litem made the application for a reargument, has reached her majority, and has employed counsel who now appear for her and desire our former decision to stand.

As she is one of the parties, we think we should accede to her request.

We conclude, therefore, to abide by our former decision upon this appeal and allow it to remain undisturbed, without further costs.

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


author: Barnard, P. J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Richard Dixon et al., Ex'rs.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Executors and administrators—Accounting—Discharge.
    Where executors upon asking to be discharged hold a security which is larger than the trust estate for which it is held, and their successor refuses to receive the same, the expense for negotiating such security cannot be allowed on their final accounting.
    2. Same—Costs.
    Where executors ask to be discharged before fulfilling the trust, the expense of the special accounting rendered necessary thereby should not be charged to the estate.
    Appeal from portions of a decree of the surrogate of Kings county, settling the accounts of the executors and former trustees of the estate of Thomas Lamb.

      N. Cothren, for app’lts;

      A. M. & G. Card, for guardian ad litem.

   Barnard, P. J.

The executors apply to be discharged. The surrogate of Kings county granted their application. Upon the accounting it appeared that there was a bond and mortgage made to them for $20,000. This amount was held for two trust funds. One for Maria Leach for $10,000 and one for her children for the same amount. The executors claim an allowance of $225 paid by them upon a transfer of this mortgage. The mortgage was perfectly good. The trust funds were not full, but each had been depleted. The successor appointed by the court would not take the $20,000 mortgage and pay the overdrafts to the trustees. The item for the expense of negotiating the mortgage was properly rejected. The beneficiaries should not be called upon to pay for serving the two funds, especially as the successor in trust to the executors could not be compelled to take a mortgage greater than the estate and pay the trustees. The cost of the special accounting was improperly put in the petition. They asked to be discharged, and it was no more than was just that they should not charge the estate with a special accounting. The executors had good reason to be discharged on their own request without fulfilling the trust; but it was equitable that their application should not cost the funds for an account which was only an incident to their discharge on their own request

The order appealed from should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Pratt, J.

text:
    George V. Brower, Receiver, App'lt, v. The Brooklyn Trust Co. et al., Resp'ts, Impl'd with Joseph D. Baucus et al., App'lts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Cokpobations—Mortgage.
    Where the advances to secure which the mortgage was given were made to the company on the faith of a promise by an officer of such company to secure them by such mortgage, the mortgage, though made when the company was actually insolvent, and known to be so, is not, within the meaning of the statute, made “ in contemplation of insolvency.”
    Appeals from judgment entered on decision of the court, and especially from so much thereof as dismisses the complaint as to defendant, Husted.
    This action was brought by the plaintiff, as receiver of the Ridgewood Ice Company, to set aside three mortgages, viz.: One for $140,000 made by it to the Brooklyn Trust Company, as trustee, etc., to secure a series of 140 bonds of $1,000 each; one to William A. Husted for $126,800, with interest at six per cent, payable half yearly, and bearing date October 4, 1890; and one for $167,085 to James R. Downer, as trustee, etc., to secure a large number of the creditors of the company.
    The mortgage to Husted is assailed on the ground that it was made because or in anticipation of the company’s insolvency, and, therefore, void under the prohibition of the statute relating to corporations and the disposition of their property when insolvent or in contemplation of it.
    The allegations of the plaintiff with reference to the Husted mortgage are met by the answer of Husted, in which he sets forth that the mortgage to him was made in pursuance of agreements made by the company with him, and with Samuel D. Coykendall, president of the Cornell Steamboat Company, respectively, under which moneys amounting to upwards of $160,000 were loaned to the company in consideration of which the company agreed, before the money was loaned, to give a mortgage upon its property as security.
    Husted further alleged that these various loans were reduced by payments, until there remained unpaid, of the amounts loaned by him, the sum of $29,000, and of the amounts loaned by Coykendall, the sum of $79,100, and that Coykendall transferred the balance due him to Hasted, and that the mortgage was given to secure the moneys actually due.

      J. T. Marean, for app’lt,
    Brower; Edgar T. Brackett, for app’lts,
    Baucus and Yoyer; Henry Daily, Jr., for resp’t,
    Husted; James G. Bergen, for resp’t, Brooidyn Trust Co.
   Pratt, J.

The main question presented by the appeals is as to the validity of the Husted mortgage. It was found by the trial court, upon evidence amply justifying such finding, that the advances, to secure which the mortgage was given, were made to the Ridgewood Ice Company upon the faith of a promise by an officer of the company to secure them by such mortgage. The authority of such officer to bind the corporation cannot be questioned, the corporation, and indirectly its creditors, having had the benefit of the advances.

These facts bring the case within the authority of Paulding v. The Chrome Steel Co., 94 N. Y., 334, that such a mortgage, though made when the corporation was actually insolvent and known to be so, is not, within the meaning of the statute, made “ in contemplation of insolvency.” Ho sound distinction can be made between the case cited and the case at bar.

There may be doubt as to the question raised by the failure of the Brooklyn Trust Company to file a true copy of its mortgage within the year, yet we cannot see that such failure resulted in any harm to the appellants.

We, therefore, think the judgment should be affirmed.

Dykman, J., concurs; Barnard, P. J., not sitting.


text:
    In the Matter of the Application for removal of Esek C. Carpenter, as Justice of the Peace.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Justice oe the peace—Removal.
    Evidence showing that a justice of the peace attended a prize-fight and interfered with the arrest of the guilty parties; that he was intimate with Sunday gamblers, and that he used his office to punish a constable who was alleged to have shot at the keeper of a disreputable house, is sufficient to authorize his removal.
    Application to remove a justice of the peace on the ground of misconduct.
   Barnard, P. J.

The evidence shows that in January, 1892, at midnight, the respondent attended a prize fight at the hotel of one Shea in Highland Falls, in Orange county. A warrant had been issued by one Avery, a justice of the peace, and delivered to a constable. The respondent prevented the arrest of the guilty parties. He ordered the constable to be let in, and refused permission to let in the ring the constable’s aids, duly deputized by Justice Avery, on the ground that they were not officers. He ordered the constable to go away, and ordered the release of Shea, who was arrested by one of these aids. Another aid to this constable was threatened with arrest by respondent if he did not stop his attempt to go in the prize-ring. Respondent ordered the wild, lawless crowd to be let out of the ring upon the constable’s party. One of the constable’s deputies was knocked down. The evidence shows that on the 5th of July, 1891, the respondent and the two village constables were at Oranstons. There was open gambling of the worst description in the highways, thimble-riggers and card playing. The coroner of the county applied to the constables to aid him in stopping the gambling. The coroner arrested a gambler at one of the points of disorder, and then went to other places. At one of them the respondent sat near by watching them. He was again asked to stop it, and replied that the people wanted it, and he would not interfere. He was in conversation with the arrested gambler, and immediately violence was threatened by the gambler to the coroner. The respondent was proven to have been a frequent visitor at the disorder on Sundays in the previous year, 1890, without protest or interference. The highways were blocked up by the gambling parties. On the 12th of July, 1891, Supervisor Goodsell broke up the custom without judicial aid. Respondent was apparently in control of the village constables, and was intimate at the Sunday gamblings with a class of persons called “ Coppers.” Their function was to watch the supervisor, and inform gamblers. The day before the prize-fight the respondent attended a dog-fight at Shea’s hotel, in which one dog lost his eye. I think the evidence shows that the respondent used his office to punish one Meskill. Meskill was one of the deputies of the constables on the night of the prizefight. Shea made a complaint that Meskill shot at him.

The justice caused the arrest so late in the day that there was no other way but to go to jail at Newburgh. Meskill denied the charge and the grand jury ignored the indictment. Respondent’s manner was violent upon the arrest. He said he had seen the officer and knew that Meskill was guilty. The justice would not listen to the information that Meskill was so sick that it was dangerous to go to jail. The fact was proven by Dr. Brown. Mes-kill offered bail, and it was refused because the offense was not bailable. It was bailable, but not by respondent. If he had done his duty humanely and without malice, he would have committed the accused for the action of the grand jury, and he could have been bailed without passing the night in jail. The record is so very voluminous that we can but state conclusions from the proof returned, that the Shea house is very bad and of evil repute; that the respondent is deemed his supporter and is also deemed to be in league with gamblers and gambling and other evil practices. That respondent was in league with the constables in screening gambling carried on in his presence openly and continuously on Sundays. While a bad character is not sufficient to remove a public officer, it does give color to the testimony when it is in dispute as between the justice and Shea and the other witnesses who testify in favor of the existence of the facts charged.

We think the proof justified and calls for the removal of the respondent as justice of the peace of the town of Highland, in Orange county.

Dykman and Pratt, JJ., concur.


text:
    Henry Clay Ditmas, Resp't, v. Berend Baas, Ex'r, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Will—Construction.
    A testator devised certain land to defendant for ten years with the privilege of purchasing it for a certain sum. Held, upon his failing to purchase at the end of such time, the land descended to the heirs at law of the testator.

      2. Same—Deed.
    One who acquires the interest of the heirs to such property has a right to possession of the deed to the testator, and the executor has no right to retain the same.
    Appeal from judgment m favor of plaintiff.
    The action was brought to obtain the immediate delivery to-the plaintiff of a certain deed of real property owned by plaintiff, which had never been recorded, which was in the possession of the defendant, and which he refused to record or deliver to plaintiff, and to recover $500 as damages for the unlawful withholding. The court refused to allow any amount whatever to plaintiff as damages for such unlawful withholding.
    On September 1, 1869, William Bonthrup, the defendant’s testator, purchased a piece of real estate from one Catharine Cropsey and Hiram Cropsoy, and received a deed of said property duly executed by the Cropseys. It is that deed which is the basis of this suit. Mr. Bonthrup never put that deed on record, but died on May 20, 1877, with the deed still unrecorded in his possession. Bonthrup left a will, of which the defendant Baas was executor, and as such executor he came into possession of this unrecorded deed. The will was duly probated and letters testamentary were issued to the defendant Baas.
    This will gave to Baas the rent and use of the property described in said deed for ten years, and it also gave him the privilege, after the ten years had elapsed, of purchasing the property for $6,000, but in case he elected not to purchase the property, then it was bequeathed to his (Bonthrup’s) lawful heirs, to be divided share and share alike. Baas used the property and received the rents for ten years, as given to him under the will, but at the expiration of the ten years he notified the heirs of said Bonthrup that he did not desire to avail himself of the privilege given him by the will, of purchasing the property, that he would not be liable for its rent or occupation, nor responsible for its care.
    On February 18, 1879, said Baas finally settled his accounts as^ executor as to the personal estate of Bonthrup.
    The heirs of Bonthrup then sold the property described in the deed in question to the plaintiff in this action.
    The defendant claimed that by the true construction of the said will the real estate should have been sold and converted into money by the defendant and distributed by him as personal property to the heirs of Bonthrup, and that he (the defendant) be allowed expenses and commissions; that the plaintiff took no title, but that the property belongs to the defendant as executor. In other words, that he, as executor, had a power of sale.
    The defendant also sets up a counterclaim of $700 for rent of the premises and a counterclaim of $1,000 as damages alleged to' have been sustained by reason of a failure of the plaintiff to purchase the same from the defendant.

      Fred. W. Solis, for resp’t;
    .ñera/. G. Sitchings, for app’h
   Pratt, J.

We think the court below correctly construed the will, and that upon the election of Baas not to purchase, the land descended to the heirs-at-law of the testator.

As purchaser of the estate from the heirs-at-law, Ditmas had a right to the possession of the deed to his predecessor in the title.

The judgment must, therefore, be affirmed, but as the executor has mistaken his legal rights, the affirmance may be without costs.

Barnard, P. J., concurs; Dykman, J., not sitting.


text:
    Theodore Maurer, Resp't, v. Jules Wolff et al., App'lts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Sale—Conditional—Ketubn of money.
    Where a horse is bought on thirty days trial and returned without objection within that time, the purchaser is entitled to a return of his purchase money.
    2. Same—Sunday.
    The fact that the sale was made on Sunday affords no reason why the vendor should be allowed to keep the money under those circumstances.
    Appeal from judgment of the Kings county court, affirming the judgment of a justice of the peace in favor of plaintiff. Action to recover back the purchase price of a horse purchased by plaintiff from defendants and for the hiring of another to take his place.
    The testimony before the justice was as follows :
    Theodore Mauer, the plaintiff, called in his own behalf, testified that he paid $50 for the horse; that he was a balky horse; didn’t have any feet at all and could hardly stand; that the defendant said he was a good horse; that he demanded of the defendant bis money and returned the horse, and that the defendant has both money and horse; that the horse was purchased on Sunday, and he paid for him on Sunday; when recalled, that he had to hire a horse to take the place of the one he bought; that he had him thirty-one days and paid one dollar per day for the same ; that the defendant guaranteed the horse ; that he took Mr. Palmer with him when he purchased the horse, and on his saying he thought he was worth $50, he took him.
    “ The defendant gave me thirty days to try the horse.”
    William F. Palmer was called'' on behalf of the plaintiff, and testified that he paid the first five dollars on the contract; that he was with the plaintiff when he bought the horse; that he knew the plaintiff took the horse back, and was there when he made the demand for his money, and that the money was paid on Sunday. He paid the first five dollars and went back with the plaintiff and got the other $45 ; that when they picked the horse out he said to the defendant, “I think this will be a good horse,” and that the defendant said, “ This horse will work anywhere you put him.”
    The defendants offered no testimony. The justice then rendered judgment for the amount claimed, with costs.

      Hurd & Grim, for app’lts ;

      John F. Foley, for resp’t.
   Pratt, J.

The testimony authorizes a finding that plaintiff had thirty days in which to determine whether the horse was satisfactory. Within that time the horse was returned to the vendor who received it without objection so far as appears.'

This action is brought to recover back the price paid for the horse on the original purchase. No defense is pleaded except that the original sale was made on Sunday, which is clearly frivolous. If the sale was invalid, that affords no reason why defendant should be allowed to keep money belonging to his neighbor. Judgment affirmed, with costs.

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


text:
    Ruth A. Johnstone, Resp't, v. Eugene F. O'Connor, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Trustee—Fraud—Parties.
    The complaint in this action alleged the death of the father of the parties, leaving a widow and five children; that defendant commenced a partition and selected the attorney to appear for plaintiff, her sister and mother. On the sale he bought iii the property for much less than it was worth and induced them to agree to his taking title in his own name by promising to give them their just share of its actual value and to give the mother a gross sum in lieu of dower; that he has since refused to do so; that the sister died leaving a will giving all her property to plaintiff, and the mother has died and that defendant is her administrator, and asked that plaintiff recover her share of the property and her share of the right of dower of her mother. Hell, that the complaint stated facts sufficient to constitute a cause of action, and that the other children were not necessary parties.
    Appeal from interlocutory judgment overruling demurrer to complaint.

      Edward G. Boardman, for app’lt;

      Wm. D. Feeder, for resp’t.
   Barnard, P. J.

The facts set forth in the complaint affect the parties to the suit only and need no other parties to render a complete judgment. Owen O’Connor died in 1883, leaving a large and valuable real estate, and leaving a widow and five children. The plaintiff and her sister Mary and"the defendant were three of the children. The defendant commenced a partition action against his mother and sister and the plaintiff; and Mary, his sister, and the mother of all the children, left their interests to be looked after by the defendant. He selected his clerk to appear for them. At the sale the defendant bought in the property for $462,250 less than it was worth. The purchase was made by defendant acting for the heirs, and after the purchase was made he requested the plaintiff and his sister Mary to consent that he, the defendant, might take title and that they should receive from him their just share of the actual value of said property. The defendant, by reason of his assurance m respect to the land, took a title and has ever since refused to carry out the agreement with his two sisters. Mary, plaintiff’s sister, is dead, and has by will duly proven given all her estate to the plaintiff, real and personal. After her death the defendant agreed to account to the plaintiff for her share in the actual value of the property in her own right and in that of her deceased sister. The defendant is the administrator of his deceased mother and the complaint alleges that the defendant agreed with her, when the property was bid in, that he would allow her a gross sum in lieu of dower estimated on the real value of the property. The plaintiff asks to recover her share of this right of dower of her mother. Assuming the facts stated to be true, the plaintiff is entitled to a judgment that the defendant account to her for the rents and profits of two-fifths of the real estate and that the defendant be decreed to sell the land over or that he hold two-fifths as trustee for the plaintiff. She is also entitled on the face of the complaint to a judgment for her share of her mother’s dower right against the defendant, who is alleged to be the administrator of his mother. It does not appear that the plaintiff's right in the realty affects the other children and her claim on her mother’s account is individual and not joint and she may maintain a separate action for her share.

The order overruling defendant’s demurrer to the complaint is,, therefore, affirmed, with costs.

Dykman, J., concurs; Pratt, J., not sitting.


text:
    In the Matter of George G. Titus, an Attorney.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Attoeneys—Disbarment.
    Where it appears that an attorney has on several occasions retained moneys collected by or entrusted to him, and that summary proceedings had to be resorted to in order to obtain them; that he has retained moneys given him to settle a criminal action; that he has taken mortgaged chattels with knowledge of the mortgage, and that he is being sued by a. husband for alienating his wife’s affections, a proper case for disbarment is-made out.
    Application for disbarment of attorney.
   Dykman, J.

This is a proceeding for a.removal of an attorney from his office for professional misconduct.

Charges were preferred against him, and a referee was appointed by this court to take testimony which might be offered on either side, and report the same to this court.

The referee has performed his duty under the order, and returned the proofs, and reported the facts which he found, which are substantially as follows: ■

The respondent, George G. Titus, at all the times involved in this proceeding, practiced as an attorney and counsellor at lay in the courts of record of this state, and had an office for the transaction of business in the village of Pine Plains, Dutchess County, New York, and held himself out to be, and was consulted as attorney and counsellor at law. Upon the first charge of which evidence is given before me, in'or about the year 1886, the respondent Titus was engaged by Amos Bryan to settle up an account due by Bryan to the firm of Wheeler & Melick Company of Albany, to ascertain what amount they would accept in settlement or compromise. Titus was to go to Albany, and Bryan furnished him with $350, which he conceded to be due. On his return from Albany, Titus informed Bryan that he did not have sufficient funds to settle with the firm, and on solicitation Bryan furnished him with a note of $200 payable to Wheeler & Melick Company.

Titus then returned to Albany and brought him a release from the creditor and delivered it to Bryan.

In subsequent transactions with the Albany firm, Bryan ascertained that the note of $200 and only $150 of the $350 in money had been delivered by Titus to them.

Bryan made several demands upon Titus for the deficiency; Titus claimed that he did not have the money, and Bryan subsequently instituted a proceeding to compel Titus to refund the $200.

The hearing in this proceeding was had before Mr. Justice Barnard at a special term, who, after hearing the proofs of the parties, directed that Titus refund the $200 to Bryan. This order was complied with, and a full settlement was effected, Titus receiving seventy-five dollars for his services and disbursements in negotiating the settlement between Bryan and the Albany firm.

On the second charge the referee reported the following facts : On or about the 7th day of February, 1887, Titus received for collection a note made by Nelson J. Funk, to the order of Sicamore Marsh Harvester Co., of Nebraska: Titus wrote to Funk, who was a farmer in the town of Pine Plains, Dutchess county, ■demanding payment of the note. Funk called upon Titus after the demand and paid him $101, being the amount due for principal and interest on the note, and Titus delivered the note to Funk, the maker. This payment was made by Funk’s note to Titus, which was subsequently paid in two renewals of three months each. Titus remitted to the bank ten dollars.

There is no evidence as to when he came into possession of the whole money. Whether he discounted Funk’s note or whether he received it after the renewals of the note, the fact appears in Funk’s testimony that a portion of it was paid at the first renewal.

On October 15, 1887, Mr. Wodell, attorney for the State Bank ■of Madison, Wisconsin, through which the note had passed, demanded of Titus the money collected by him, less his fees, except the ten dollars which he had remitted. This demand was not complied with, and a proceeding was instituted, entitled In the Matter of the Claim of the State Bank of Madison, Wis., v. George G. Titus, an Attorney, to compel the payment of the money collected. A hearing was had in this proceeding on October 29, 11887, before Mr. Justice Barnard at a special term, and the court on .that day made an order requiring Titus to pay the money theretofore collected by him from Funk to the attorney for the •claimant. The court found that he should account for $98.45, less ten dollars, paid in ; also, allowed to Titus twenty dollars as fees in and about the collection. The balance, $68.45, Titus was directed by the order to pay with interest thereon from the date of collection, and ten dollars costs of the motion.

On the third charge the referee found the following facts: That in the fore part of the year 1890, Fred Barton, of Pine Plains, Dutchess county, retained Titus to defend him in a criminal action, based on a charge of assault upon Estelle Scott.

At the time of the employment, Mr. Barton paid Titus ten dollars.

A hearing was had before a justice at Weaver Hollow, several miles from Pine Plains, which Titus attended.'

The matter was postponed, and Titus advised his client, Barton, ■ that if he was in Connecticut, and the case was called, it would not be tried.

Titus afterward went to Hudson and consulted the county judge with reference to some point in the case. Barton then left seventy-five dollars with Titus to settle the case with the complainant, and fled to Connecticut. The agreement between Titus and Barton was that Titus was to effect a settlement, if possible, for an amount not exceeding seventy dollars, and retain five dollars for additional services. In case no settlement was effected, Titus was to deposit the seventy dollars to Mr. Barton’s credit in the Rhine-beck Savings Bank. A settlement was not made, and Barton, from his retreat in Connecticut, authorized his brother Frank to obtain the money from Titus. Frank Barton called U]Don Titus, who gave him a draft for fifty dollars, which was deposited in the Rhinebeck Savings Bank. Titus retained for his services twenty dollars, in addition to what it was agreed he should have, which Fred Barton claims is still due him. Frank Barton signed a receipt for forty dollars, which was introduced in evidence.

On the next charge the referee reported as follows:

In the year 1878 or ’79, Richard Peck, of Pine Plains, died intestate, and his sister Jane A. Smith was appointed administratrix of his estate. Titus was retained by her to manage the affairs of the estate, who, as appears by his bill received in evidence, rendered services to the estate in procuring the appointment of the administratrix, making collections, foreclosing mortgages, and managing the estate. In 1880, when Mrs. Smith sought ah accounting with Titus, he admitted having received $7,678.10. Mrs. Smith had paid him $3,400, and he collected, in addition to that, $4,278. He then presented a claim for services to Mrs. Smith, as administratrix, which is in evidence, for $15,000. He credited Mrs. Smith with $7,678.10, and $250, the value of the library, and claimed a balance due him of $7,171.90.

Mrs. Smith instituted proceedings against Titus to compel the payment of estate moneys, and the matter was tried before Mr. Justice Barnard at special term, who, on February 25, 1881, made an order directing Titus to pay to Mrs. Smith the sum of $3,664. The matter was finally settled by a payment being made to Mrs. Smith of $3,000.

On the next charge the referee further reported as follows: For several years prior to June, 1890, Jacob Duntz held a chattel mortgage upon the personal property, including a bay horse, of Andrew Burger; both mortgagee and mortgagor resided in Columbia county.

In June, 1890, the mortgagee gave notice of the sale of the property secured by the mortgage to take place on June 19. On the morning of June 18, preceding, Burger, the mortgagor, went to Pine Plains and consulted with Titus concerning the sale. Previous to this Burger had procured a copy of the chattel mortgage from the town clerk’s office and delivered it to Titus. On the 18th of June, 1890, Titus, accompanied by Benjamin Bisedorf, went to Mr. Burger’s residence, and Titus told him he had come to look at the bay horse. Burger produced the horse, and in the conversation Titus wished Burger to be responsible to Duntz, the mortgagee, for the horse.

The animal was returned to the lot, but was again brought out, and Burger handed the halter to Titus, saying that he, Burger, owed Titus and wanted him to have it. Titus and Bisedorf then took the horse to Pine Plains, where it was put in Titus’ stable. Duntz, the mortgagee, went to Burger’s residence the following day, and, after selling all the property except the horse, went to Pine Plains and saw the animal in Titus’ stable.

Duntz then procured a warrant for the arrest of Titus, who was arraigned before a justice of the peace on a charge of grand larceny, and held under bail to await the action of the Columbia county grand jury. Duntz also instituted an action in replevin against Titus to recover the horse, which was not defended, and the animal remained in Duntz’ possession. The criminal proceeding came before the grand jury of Columbia county, and the jurors, after considering the evidence, the minutes of which are here introduced, found an indictment of grand larceny against Titus.

This indictment was moved by the district attorney, Cochrane, at a regular term of the court of sessions for Columbia county in November, 1890, and was dismissed by the presiding judge on motion of the counsel for the accused, as the prosecution did not proceed by reason of the absence of Burger, one of the witnesses.

A physician’s certificate that Mr. Burger was unable to attend the trial by reason of illness was produced on the motion. The matter was not thereafter brought before any court or jury.

On the last charge, which presents the petitioner’s individual grievance, the referee reported as follows:

Herman Snyder and his wife, Mary Snyder, were married about twelve years ago, and subsequently lived in New York city, Millerton, Shekomeko and Pine Plains; Snyder, during the period down to the removal to Pine Plains, left his wife for several months, on two occasions, to maintain herself and two children.

Snyder’s occupation was a bartender, and he was in the habit of drinking to excess and gambling. Upon leaving Shekomeko, where he had conducted a saloon, he and his family moved into apartments in Titus’ barn at Pine Plains. After living there a month Snyder again left his wife and children, and was absent and apart from them for a period of three years and four months. During his absence Mrs. Snyder worked in the Titus house and for other families. When Snyder returned Titus’ wife had left him, and the Snyder family went to live in the Titus house. Titus agreed to pay Mr. and Mrs. Snyder four dollars a week and .give them the rent, and they, in consideration of this, were to board him. Snyder obtained employment about half a mile from the house. On returning home evenings he frequently found Titus in, and Mrs. Snyder together in the kitchen or library.

One evening on returning home about eleven o’clock, Snyder noticed that the light in Titus’ bedroom on the upper floor was turned low, as was also the light in the Snyder bedroom; the bedroom where the Snyd'er children slept was also located on the same floor as the Titus bedroom. On entering the house, Snyder found his wife’s clothing on a chair in their bedroom, and shortly afterward she came down stairs in her night clothing. Titus was in his bedroom at the time.

On Sunday in February last, while Titus and Mrs. Snyder were at church, Snyder entered Titus’ bedroom and found in one of the drawers used by Titus three implements used in intercourse to prevent conception which had the appearance of having been used. Soon after this Snyder told Titus he would move as soon as he found a place for his family. The following day Titus demanded the key from Snyder, and Snyder refused to give it up. Titus told Snyder if he came in the house again it would be at his own peril. Several days after this Snyder gave up the key, leaving Mrs. Snyder with the children in the Titus house.

They have lived there down to the present time, Mrs. Snyder acting in the house as housekeeper and receiving $2.50 per week .and the support of herself and children.

Snyder has commenced an action against Titus to recover damages for alienation of his wife’s affections, and shortly after the papers in that action were served, Mrs. Snyder brought an action for separation on the ground of desertion and failure to provide. Both actions are now pending.

The facts found by the referee are a mild condensation of the evidence, and they convict the respondent of misconduct of great enormity.

They prove him guilty not only of conduct unbecoming his profession, but fraudulent and deceitful toward his clients and offensive to the criminal law. The office of an attorney and counsellor at law, with all its privileges and opportunities, is a valuable franchise, to be intrusted only to men of approved integrity and high moral character.

All sorts and conditions of people seek his advice and abide by his counsel, and as an officer of the court he must be faithful and trustworthy. The purity and integrity of the profession must be preserved and the courts must maintain a high standard of honor. Its officers are aids in the administration of justice, and they must enjoy its confidence.

It would be unprofitable and severe to comment upon the facts found by the referee. Their recitation is sufficiently painful without the aggravation incident to an analysis. Three of the charges against the respondent have been adjudicated by a justice of this court, and his guilt is beyond question. He is shown to be a man entirely unworthy of his great .office, and he should be removed therefrom and disbarred from practicing as an attorney at law.

Application granted.

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


text:
    James O'Neill, Resp't, v. John Nolan, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Mortgage—Incapacity.
    Proof that the mortgagor was adjudged a lunatic and a habitual drunkard seven months after executing the mortgage; that he was in the habit of becoming intoxicated, and at such times misbehaved himself, is not sufficient to show that he was mentally incompetent to execute the mortgage, where his signature appears clear and firm, and the notary testifies that he was sober at the time, and understood what he was doing.
    Appeal from judgment in favor of plaintiff, entered upon report of a referee.
    Action to foreclose a mortgage. The defendant appeared by the committee of his person and estate, who answered, denying that anything was due on the mortgage, and also that at the time of the alleged execution of the mortgage the defendant was of unsound mind.
    The evidence tended to show that seven months after the execution of the mortgage the defendant was adjudged a lunatic and habitual drunkard; that he had a habit of becoming intoxicated, and at such times misbehaved himself. His signature was clear; the letters well formed, and show no signs of tremor, trembling or shaking. The notary who took the acknowledgment testified that defendant was sober, and understood what he was doing.

      Wm. II Benedict, for app’lt;

      John T. Barnard, for resp’t.
   Dykman, J.

This action is for the foreclosure of a mortgage upon real property, and is defended upon the ground of the mental incapacity of the mortgagor at the time of the execution of the bond and mortgage.

The cause was tried before a referee to hear and determine the same, and he has decided against the defendant.

The testimony established no defense to the action, and the judgment should be affirmed, with costs.

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


text:
    The Mission of the Immaculate Virgin, Resp't, v. Michael Cronin, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Limitation—Presumption of ancient grant.
    Peaceable and uncontroverted possession for forty years iustifies the presumption of an ancient grant.
    (Cullen, J., dissents.)
    Appeal from judgment in favor of plaintiff, entered upon verdict directed by the court.
    Action of ejectment to recover possession of certain lands at Bockaway Beach. The answer alleged that defendant entered into possession as tenant of one McNeill; that he was the owner of the premises. The lands were owned in 1800 by one Cornell, and in 1808 were allotted in a partition suit to one Bannister; in 1869 they were conveyed to Judge Donohue by Benjamin C. Lockwood, Jr., and Elizabeth Carroll and husband, Lockwood being the grandson of Benj. Cornell, and in 1881 Judge Donohue conveyed them to plaintiff. McNeill is a descendant of Bannister.
    The lands were unimproved, and both Judge Donohue and his grantors while in possession placed stakes around them and cut timber thereon for fuel and fencing.
    The trial judge on motion for a direction of a verdict for defendant expressed himself as follows:
    “ The testimony shows that the grantors of Judge Donohue were in possession of the premises in question as far back as 1850, and that there was then no claim but that they continued in absolute, peaceable, uncontroverted possession down to the. time of the conveyance to Judge Donohue in 1869, and that the plaintiffs were in possession down to the time of the possession of the defendant. The grantors of Judge Donohue and Judge Donohue after his deed exercised ownership and control over the property, the grantors of Donohue by putting a stake or stakes around it, Judge Donohue by putting stakes all around it. Both of them cut timber from the premises, and used it. If it was necessary to presume a grant to the grantor of Judge Donohue, the lapse of time would justify such a presumption; and my conclusion is that the possession, control has gone with the paper title, and that the title of the plaintiff must prevail over the claim of the defendant, and the motion is denied,” and directed a verdict for plaintiff.

      Abner O. Thomas, for app’lt;

      James F. Swanton (John J. MacJclin, of counsel), for resp’t.
   Pratt, J.

The various exceptions taken at the trial to the admission and exclusion of evidence, not being urged on the appeal, do not require discussion, and we believe that they do not bear upon the points decisive of the cause.

We think the testimony supports the decision of the circuit judge to the effect that the grantors of Judge Donohue were in possession of the premises as far back as 1850, to which no adverse claim was made, which possession was absolutely peaceable and uncontroverted.

At the time defendant entered the premises the plaintiffs and their predecessors in the title had been in such possession over forty years. ’

The lapse of time justifies the presumption of an ancient grant

Judgment affirmed, with costs.

Barnard, P. J., concurs; Cullen, J., dissents


author: Andrews, Oh. J.

text:
    John F. Kneller et al., App'lts, v. Gerhard Lang, Resp't.

      (Court of Appeals,

      Filed February 28, 1893.)

    1. Vendor and purchaser—Title.
    Where an agreed case stated that “more than thirty years ago” one 8. was the owner of the premises in question; that in 1851 G. gave a mortgage to S. to cover the parcel of ten acres, which contained a statement that it was given for purchase money, etc., and which was subsequently discharged by an assignee of the mortgage, but there is no statement in the case that 8. owned the ten acres when he took the mortgage from G., the court will not infer that S. owned the land at that time, and the record title is so imperfect that a purchaser will not be compelled to complete.
    2. Same—Adverse possession.
    The fact stated that G, and his grantees “were in the undisturbed possession of the land for twenty years and upwards,” does not show that the possession was adverse.
    Appeal from judgment of the supreme court, general term, fifth department, relieving defendant from fulfilling his contract to purchase.

      Clarence W. Wilson, for app’lts ;

      James Cerard Smith, for resp’t

       Affirming 43 St. Rep., 956.

   Andrews, Oh. J.

This appeal is taken from the judgment of the general term, rendered on an agreed case, by which judgment the defendant was relieved from, fulfilling a contract between himself and the plaintiffs for the sale by the plaintiffs to the defendant of three adjoining parcels of land, containing in the aggregate about eighty acres. One of the parcels, containing about ten acres, separates the other parcels.

It is stated, among the agreed facts, that more than thirty years ago ” one James Sheldon was the owner of the three parcels ; that April 29, 1851, one Philip Gauchat gave a mortgage to Sheldon covering the parcel of ten acres, to secure the sum of $602, which mortgage contained the following clause: “ The mortgage being given to secure the payment of the purchase-price of the above described premises,” and that the mortgage was properly recorded; that December 10, 1851, Sheldon assigned the mortgage to one Bliss, who, on March 17, 1851, commenced an action against Gauchat to foreclose the same, and that December 4, 1851, Bliss satisfied the mortgage to Gauchat, and that the satisfaction was recorded February 13, 1852 ; that the record fails to show any title in Gauchat to the ten acres, but that on or about September 11, 1854, he conveyed the land; that Gauchat and his several grantees were in the undisputed possession thereof for twenty years and upwards, and that the plaintiff, John F. Knel-r ler, is one of the grantees; that Sheldon died in May, 1887, leaving children, some of whom are minors.

It will be observed that there is no statement that Sheldon owned the ten acres April 29, 1851, when he took the mortgage from Gauchat. It is stated that he was the owner “ more than thirty years ago.” The mortgage was executed more than forty years before the submission of the case. The court is asked to infer that Sheldon owned the land at that time. If this was the fact it should have been stated. It is true that, ordinarily, a purchase-money mortgage when given is taken on a conveyance of the land by the owner. But this is not a necessary or conclusive inference from the transaction. And if Sheldon was the owner ■of the land at the date of the mortgage, he may have subsequently re-acquired title. The fact that he was the owner “ more than thirty years ago ” is consistent with the re-acquisition of the title by him after the execution of the mortgage.

We think the court was not bound to find on the facts stated that Sheldon owned the land when the mortgage to Gauchat was given, or that he did not subsequently acquire the title. Parties who ask for judgment upon facts agreed, should state all the facts bearing upon the point to be decided, and material facts should not be left for inference when the fact is susceptible of definite statement. There is nothing in the case stated from which it can be supposed that the actual facts as to Sheldon’s title were unknown or could not be ascertained.

On the ground of the imperfection of the statement upon the point suggested, we think the general term was justified in refusing to compel the defendant to take the title.

It is claimed that an adverse possession for more than twenty years prior to Sheldon’s death, in Gauchat and his grantees, was established upon the admitted facts. But this is a mistake. The fact stated, that Gauchat and his grantees “ were in the undisturbed possession of the land for twenty yearn and upwards,” does not show that the possession was adverse. It does not necessarily follow therefrom that the entry by Gauchat and his grantees was under the deeds mentioned, exclusive of any other right, and this is essential to constitute an adverse holding under a written conveyance which will divest the title of the true owner after twenty years. Code Civ. Pro., § 369. It is not unlikely that there was an adverse possession in fact as against Sheldon or his heirs for the requisite period. But the court cannot draw this inference from the fact stated.

We think the judgment below was right, and it should be affirmed.

Judgment affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    James A. Whitney, Resp't, v. Charles L. Cammann et al., App'lts.

      (Court of Appeals,

      Filed February 28, 1893.)

    3. Manufacturing companies—Trustees—Report.
    The statute requires the annual report not only to be made, but also to be published and filed, and for a neglect to either file or publish the trustees become liable.
    3. Same.
    The fact that the secretary of the company to whom the report -was> de livered neglected to file it will not relieve the trustees from their liability. It is their duty to see that it is filed.

      Appeal from judgment of the New York superior court, general term, denying motion for new trial and ordering judgment for plaintiff upon verdict.

      Louis Marshall, for app’lts;

      Roscoe H. G banning, for resp’t

       Affirming 45 St. Rep., 570.

   O’Brien, J.

The defendants are the trustees of a manufacturing corporation, organized in October, 1884, under the act of 1848 as amended by chap. 510 of the Laws of 1875, and carrying on its business in the city of New York. The plaintiff obtained the judgment appealed from for professional services performed for the corporation and contracted for in November, 1886, and rendered between the 17th of February, 1888, and the 1st of January, 1889, on the ground of the failure to file the annual report prescribed by § 12 of the act of 1848, as amended by chap. 510 of the Laws of 1875. The report was made out and signed on the 20th of January, 1888. The next day it was published in a newspaper, but it was never filed. It has been often held that this statute was highly penal and to be construed according to the rules of construction applicable to such statutes, not to be extended by construction or made to embrace cases not within the language used. Bruce v. Platt, 80 N. Y., 381; Whitaker v. Masterton, 106 id., 280; 8 St. Rep., 888; Bonnell v. Griswold, 80 N. Y., 135; Wallace v. Walsh, 125 id., 26; 34 St. Rep., 426.

A party seeking to make trustees of a corporation liable under this statute, for failure to comply with it, must allege and prove affirmatively every fact and circumstance upon which his right to recover depends, and nothing will be presumed in his favor. Whitney Arms Co. v. Barlow. 63 N. Y., 62; Van Dyck v. McQuade, 86 id., 56.

Reasoning from these premises the learned counsel for the defendants attempts to show that the penalty is imposed only for default in making the report and not for default in filing or publishing. Such a construction would of course defeat every useful purpose which the law was intended to serve. The law was intended for the information and protection of creditors and persons dealing with the corporation and a report properly made out, signed and verified, but left in the office of the corporation, would not accomplish this purpose. The statute requires the report not only to be made, but also to be published and filed, and for a neglect to either file or publish the trustees become liable. If the trustees make and verify the report within the time prescribed by the statute it may be filed or published as soon as practicable thereafter without incurring the penalty of the statute. Cameron v. Seaman, 69 N. Y., 396; Butler v. Smalley, 101 id., 71.

When the trustees have made the report within twenty days from the first of January in each year, the filing and publishing may be done the next day or as soon thereafter as may be consistent with reasonable diligence and good faith. But as in this case the report made or any other report during the year never having been filed the defendants failed to comply with the statute in one of its substantial requirements, and, therefore, they became liable to the class of persons specified, of which the plaintiff was one. If it be true, as claimed, that the secretary of the company to whom the report was delivered neglected to tile it, that would not relieve the defendants. The obligation of filing was imposed by the statute upon them and they could not relieve themselves from responsibility by intrusting this duty to another who failed to perform it. The judgment should, therefore, be affirmed.

Judgment affirmed, with costs.

All concur.


author: Earl, J.

text:
    Linus Jones Peck, Resp't, v. The State, App'lt.

      (Court of Appeals,

      Filed February 28, 1893.)

    1. Res adjudicata.
    A judgment in a mandamus proceeding against the board of managers of the Buffalo State Asylum for the Insane, instituted to compel them to adjust and determine the amount due plaintiff's for furnishing stone in the construction of the asylum, is not res adjudicata upon the state upon a hearing oí the claim before the board of claims.

      2. Same—Limitation.
    Even if the certificate of the asylum managers, given under the compulsion of the judgment, was competent evidence against the state of the amounts due upon the contracts, it only shows what amounts became due to the contractors fourteen years before its date, as the amounts became due and payable, under the contract, as fast as approved by the superintendent and architect, and so the claim was barred long before it was filed in the board of claims.
    Appeal from award of the board of claims.
    Under the act, chap. 878 of the Laws of 1870, in October, 1871, the board of managers of the Buffalo State Asylum for the Insane entered into a contract with Linus Jones Peck & Co. for furnishing stone for the construction of the asylum ; and in January, 1872, a further contract was made between the same parties for cutting the stone to be used for the same purpose. In pursuance of these contracts, Linus Jones Peck & Co., before the year 1878, furnished and cut stone, and thus became entitled to large sums of money from the state, most of which were paid. In December, 1878, they instituted a proceeding by mandamus against the managers of the asylum to compel them to adjust and determine the amount due to them for materials delivered and work performed under the contract, and to make a certificate thereof. A writ of alternative mandamus was issued, to which the managers of the asylum made a return, and the issues joined were, in March, 1887, referred to a referee, and the case was brought to trial in January, 1889, and after hearing the parties he made his report, in which he determined the amounts due to the firm, and directed that a judgment should be entered directing the asylum managers to immediately adjust and determine those amounts, and certify them as directed; and in pursuance of the judgment entered upon the report, and in obedience thereto, they certified to the several items which were found due to the firm. In October, 1890, Linus Jones Peck, as the survivor of the firm, filed his claim with the board of claims, in which he claimed the items thus certified by the board of managers, with the interest thereon, and the board of claims awarded to him $17,761.85 for the amount of those items, and for interest thereon the sum of $18,161.93, amounting in the aggregate to $35,878.78. The attorney-general, on behalf of the state, filed exceptions to the award and appealed from the same to this court.

      3. W. Bosendale, att’y-gen., for app’lt;

      B. A. Nash and F. C. Peck, for resp’t.
   Earl, J.

On the trial before the board of cláims the claimant introduced no evidence but the judgment in the mandamus proceeding against the board of managers of the asylum, and the certificate made by them, as commanded by that judgment; and upon that evidence the board of claims based its award.

The important question to be determined upon this appeal is, whether the judgment in the mandamus proceeding against the board of managers is binding upon, and estops the state. The learned counsel for the claimant, upon his argument in this court, has called our attention to no authority which sustains his claim that that judgment is res adjudicata against the state; and we know of no principle of law that gives it such force. The state was not a party to that proceeding, and in that proceeding the asylum managers did not represent the state. It was a proceeding against them to compel them to discharge what was claimed to be a duty resting upon them under the law of their creation and the contracts into which they had entered. While they represented the state in making the contracts with Linus Jones Peck & Go., they did not stand in the place of the state in any suit brought against them, either for misfeasance or nonfeasance in the discharge of the duties devolved upon them by law. Eo provision is found in any statute giving them authority to represent the state in any litigation, or giving the consent of the state to be bound by any adjudication to be made against them. A state cannot be sued in its own courts, except by its consent, and this rule is founded upon public policy of great importance, and it would be greatly impaired, and could be largely nullified, if the state could be bound by judgments rendered against its agents or officers. Such judgments may bind the officers and compel them to discharge their duties, and thus frequently they enable claimants to obtain payment of their claims against the state and other rights to which they are entitled by law. But the adjudication in such actions never estops the state on the principle of res adjudicata. And so it has been frequently held. James v. Campbell, 104 U. S., 356; Louisiana v. Jumel, 107 id., 711; Cunningham v. Macon, etc., R. R. Co., 109 id., 446; Hans v. Louisiana, 134 id., 1; North Carolina v. Temple, id., 22; Pennoyer v. McConnaughy, 140 id., 1; People v. Dennison, 84 N. Y., 272; Corkings v. State, 99 id., 491; Rexford v. State, 105 id., 229; 7 St. Rep., 10; Gates v. State, 128 N. Y., 221; 40 St. Rep., 87.

In People v. Squire, 110 N. Y., 666; 18 St. Rep., 528, we held that a judgment in a mandamus proceeding against the commissioner of public works of the city of Eew York did not bind the city for the reason that it was not a party to the litigation. In Parmenter v. State, recently decided in this court, 48 St. Rep., 129, we were of opinion, although it was not necessary there absolutely to announce it, that a judgment in a mandamus proceeding against the comptroller of the state was not res adjudicata against the state, and did not create an estoppel against it for the reason that it was not a party to the proceeding, although the attorney-general appeared there in defense of the comptroller. That the state is not bound by the adjudication in the mandamus proceeding is also shown by the case of Carr v. U. S., supra.

But it is further said on behalf of the claimant that the state was bound by the certificate given by the managers of the asylum under the compulsion of the judgment, without reference to the circumstances under which it was made. There is nothing in the act by which the managers of the asylum were constituted which makes their certificate thus given binding upon the state or even evidence against the state. It was not a certificate based upon their judgment or upon any examination made by them, or upon any exercise of their judgment or discretion, but a certificate compelled by a judgment not binding upon the state, and not evidence against the state. There is nothing in the contracts requiring the managers to give such a certificate. Under the first contract, the firm of Linus Jones Peck & Go. were to be paid for certain kinds of stone delivered seventy-five per cent of the price thereof monthly, upon the estimate of the supervising architect or superintendent of the quantity delivered the month preceding such estimate, and the remaining twenty-five per cent thereof monthly after the samé shall have been lain in the wall and measured and accepted by the supervising architect and superintendent of the building, and for other kinds of stone they were to be paid seventy-five cents per cubic foot, to be measured by the supervising architect or superintendent and paid for at the end of each month after the same had been delivered upon the ground and approved by the supervising architect and superintendent.

The contract contains the further provision, that the board of managers “ hereby covenant and agree with the party of the second part to estimate and measure all stone delivered monthly after the delivery thereof as aforesaid, and to pay for the same in accordance with the provisions of this contract hereinbefore mentioned.” Under the second contract for cutting the stone it was provided that the board of managers should cause monthly estimates to be made at the end of each current month by the supervising architect and superintendent of all work done or completed during the month, and to pay ninety per cent of the amount thereof on the first of the ensuing month, and, further, to have the work measured in the wall, or so much thereof as should be laid monthly, at the end of each current month as the work progressed, by the supervising architect and superintendent, and on the first of the succeeding month pay in full for the work, less ninety per cent previously paid upon the monthly estimate for the same work, to the end that there might be final settlements monthly of the work as it progressed until its completion.

It is very clear from these provisions in the contracts that the estimates and measurements were to be made by the superintendent and supervising architect. They were to inspect and accept the work and material, and it was upon their estimates and certificates that payments were to be made. There is no provision whatever for certificates to be made by the managers as a necessary preliminary to the payment of the amounts due the contractors, and the practice under the contracts was in accordance with these views. As the materials were delivered and the work performed, the supervising architect and superintendent made the measurements and ascertained the amounts due for the work and materials and certified the same to the board of managers. The board of managers thereupon caused vouchers to be made for such measurements and estimates, and delivered the same to the firm from, time to time, and made the payments of seventy-five per cent under the first contract and ninety per cent under the second contract as provided therein. The vouchers thus made and presented to the firm upon which payments were made to them were, after the payments, returned to the managers. It cannot, therefore, be said that the cause of action of the claimant first accrued when the certificate was executed by the board of managers under and in pursuance of the judgment in the mandamus proceeding. The payments of seventy-five per cent, and ninety per cent, were due to the firm when the material and work were accepted, measured and certified to by the supervising architect and the superintendent, and certainly when the vouchers were made by the managers upon which they made payments to the firm. When the remaining sums, to wit, twenty-five per cent, under the first contract, and ten per cent, under the second contract, which are the sums mainly now in controversy, became due according to the terms of the contract, the contractors were entitled to payment of the same, and if upon their demand payment was refused, they could have instituted proceedings before the state board of audit, and could thus have had their claim adjudicated, and could have obtained payment of any award made to them. Even if, upon a hearing before the state board of audit, it would have been requisite for them to have the vouchers showing the amounts due them for material and work, those vouchers were in existence, either with the managers or with the state comptroller, and could easily have been procured for evidence before the state board of audit. But still further, having delivered the material and performed the work, all of which had been accepted by the state, even if the contractors had needed the certificate of the managers as a condition precedent to the payments, they could have demanded it, and its unjust refusal would have enabled them to prosecute their claim before the state board of audit without it. Thomas v. Fleury, 26 N. Y., 26; Nolan v. Whitney, 88 id., 648; Smith v. Alker, 102 id., 87; Flaherty v. Miner, 123 id., 382; 33 St. Rep., 681.

If we assume that the certificate of the asylum managers was competent evidence against the state of the amounts due upon the contracts, then it only shows what amounts became due to the contractors about fourteen years before its date, and does not establish that they became due for the first' time at its date.

Assuming, therefore, that all these facts which appeared in the judgment rendered in the mandamus proceeding were properly in evidence, it is clear this claim was barred by the statute of limitations long before it was filed in the board of claims. Laws of 1883, chap. 205, § 7. Unless the judgment in the mandamus proceeding is res adjudícala against the state, there is absolutely no basis upon which this award can rest, and having reached the conclusion that it is not, the award must be reversed.

Award reversed and a new trial granted before the board of claims, costs to abide the event.

All concur, except O’Brien and Maynard, JJ., not sitting.


text:
    Carroll S. Page, Resp't, v. Joseph Krekey, App'lt.

      (Court of Appeals,

      Filed February 28, 1893

    1. Principal and surety—Evidence.
    Defendant, who was an illiterate man and could not reador write except to sign his name, was induced while intoxicated to sign what was represented to him to be an application for a license under the excise law, but which was really a guarantee that one T., would tan and return certain hides or that he, defendant, would pay for them. Upon the trial of the action brought by the vendors of the hides, who in good faith sold them relying upon such guaranty, defendant was sworn as a witness and testified that he could not read. He also offered to show that he was not able to read by two witnesses, but they were excluded by the court under objection. The judge, however, charged the jury that they were not bound to take defendant’s statement, unless they were satisfied that he told the truth, as he was interested, etc., Held, that as the case was submitted to the jury with the question as to whether defendant could read unsettled the ruling excluding the testimony bearing on the point was error.
    3. Same—Discharge of surety by alteration of terms.
    _ The guaranty stipulated that the principal would tan the hides and deliver them at R. M. & Co.’s, Hew York City, but the contract afterwards executed by the principal was to deliver them at M. & Q-.’s, Held, that this was such a change of the obligation as would discharge the surety.
    Appeal from judgment of the supreme court, general term, first •department, affirming judgment entered in favor of plaintiff upon verdict of a jury,

      JSdward W. iS. Johnston, for app’lt;

      Philip 0. Bartlett, for resp’t.

       Reversing 43 St. Rep., 468.

   O’Brien, J.

The judgment from which this appeal is taken was recovered upon a guaranty, signed by the defendant and sent to the plaintiff, a resident of Vermont, by mail. The plaintiff had Business transactions with one Bernard Thinnes prior to the guaranty. The latter was a tanner in Brooklyn, and the plaintiff, a dealer in green calf skins, had shipped to him skins at various times to tan and, unless he elected to buy them at a certain price, then to return them, so tanned, to the plaintiff, or deliver them according to his order. The following is the instrument upon which the action was brought:

“ Brooklyn, R. Y., March 14, 1889.

41 Mr. G. S. Page, Hyde Park, FL-

“I am well acquainted with B. A. Thinnes, tanner, of this place. I believe him to be a good tanner, honorable and straightforward in his dealings and attentive to business, and if you will from time to time send hides and skins to him, I hereby guarantee that he will not convert or misappropriate them, but will well and faithfully tan them, and, if he does not buy and pay you for them within the time agreed upon between you, I agree that he shall deliver them at Bose, McAlpin & Co., Kew York city, RY.

“Kotice of your acceptance is hereby waived.

“ Joseph Krekey,

“ P. 0. address, 248 Freeman St.”

It was shown at the trial that the defendant was an illiterate man, who could not read nor write, except possibly to sign his name. That he signed the paper at the request of Thinnes when in a state of intoxication, and under the false representation that it was an application for a license under the excise law. The principal part of the instrument was in print, probably prepared by the plaintiff, or under his direction. At all events it was presented to the defendant by Thinnes, the representations as to its character were made by him, and when he procured the defendant’s signature he sent it to the plaintiff, who, so far as appears, never met or had any personal transaction with the defendant.

The plaintiff's claim against Thinnes, exclusive of interest, was $2,122.79 for skins shipped to him under six written contracts, bearing various dates between May 1, 1889, and July 1, 1889. All of these contracts provided that in case of failure to pay for the goods they should be delivered to the firm of Myers & Gordon. The only question submitted to the jury was whether the defendant, in signing the paper, observed proper care and caution, or was chargeable • with negligence. In determining the legal effect of this paper, and the obligation thereby created against the defendant, we must assume that he signed it when intoxicated, that he was unable to read it, that he was ignorant of its contents, and that he fixed his signature to it upon the false representation that it was an application for a license.

There can be no doubt that, as between the parties to this transaction, the instrument was void. It was also invalid in the hands of any person who received it with knowledge or notice of the circumstances under which the defendant’s signature was obtained. Sometimes releases, discharges and other instruments are procured by the fraud of a third person, without the knowledge or participation in the fraud of the party to be benefited, who, nevertheless, will not be permitted to reap the benefit of a fraud, though he was himself innocent. The case of Bedell v. Bedell, 37 Hun, 419, is an example of this class of cases. The decisions in these cases rest upon principles obviously just and reasonable. When the fraudulent act is not imputable to the person claiming the benefit of the instrument, upon the principle of agency, he is generally debarred from enforcing it upon the ground of the fraudulent origin of the paper and the fact that he has lost nothing upon the faith of it. Without examining all the cases cited by the-learned counsel for the defendant, it may be assumed that in other jurisdictions the courts have held that in a case like this-the instrument could not be enforced any more than if the signature of the defendant had been forged. That is the principle which is invoked in behalf of the defendant to relieve him from all liability, but it has not received the sanction of the courts of this state.

While it has been quite uniformly held here that an instrument procured by fraud, trick or artifice, or executed by a party in such a state of intoxication as to be incapable of consenting or contracting, is invalid as between the parties to the transaction, these facts do not always constitute a defense as against an innocent person who is himself free from any fraud or negligence, and who has advanced money or property to another upon the-credit afforded by an instrument like this. But even in such a case, the person who has signed the paper is not liable upon it unless it is found that he failed to observe proper care and caution and was chargeable with negligence in attaching his signature. If he actually signed the paper, though procured to do it by fraud, and is chargeable with negligence, he is liable to an innocent-party who acted to his prejudice upon the faith of the instrument. Such cases are not governed by the rules applicable to the bona fide holder of negotiable paper procured by fraud, but by the-equitable rule that where one of two innocent parties must suffer, he who has put it in the power of a third person to commit the-fraud must sustain the loss. If the defendant is to be held liable in this case, it must be upon the principle that by his misplaced confidence in Thinnes he enabled him to obtain property from the plaintiff, who is an innocent third party. Mc Williams v. Mason, 31 N. Y., 294; Western N. Y. L. I. Co. v. Clinton, 66 id., 326; Powers v. Clarke, 127 id., 417; 40 St. Rep., 196; Casoni v. Jerome, 58 N. Y., 315; Baylies on Sureties & Guarantors, 214; Burge on Suretyship, 218.

If this instrument had been a negotiable promissory note the-defendant’s liability to the plaintiff would depend upon the question of negligence, and there does not appear to be any sound reason for a different rule in this case. Chapman v. Rose, 56 N. Y., 137; Whitney v. Snyder, 2 Lans., 477; National Exchange Bank v. Veneman, 43 Hun, 241; 4 St. Rep., 363; Fenton v. Robinson, 4 Hun, 252.

The general principle of law upon which the case was disposed of at the trial and upon review at general term was, in this respect, favorable enough to the defendant. The guaranty contemplated a contract between the plaintiff and defendant’s-principal. All the goods sent to Thinnes were in pursuance of' contracts in writing. The instrument which the defendant signed guaranteed the performance of these contracts only in case they were drawn in accordance with its terms. It was contemplated. that there should be a contract between plaintiff and the defendant’s principal, but not a contract that in any respect differed from the terms of the guaranty. After the defendant became surety the terms of the obligation, the performance of which he guaranteed, were changed by the contract between the plaintiff and the principal. The defendant’s undertaking was that if his principal did not buy the skins and pay for them, he would deliver them to Rose, McAlpin & Co. The contract subsequently executed and to which it applied bound the principal to deliver them to Myers & Gordon, another party, and at another place. The question is whether the contract guaranteed has not been so changed .as to discharge the surety. Suppose that the contracts had been drawn and in existence when the defendant signed the paper, then,' of course, the legal effect of the guarantee would be that the prin■cipal would perform the contracts. But if the plaintiff and the principal subsequently changed them by substituting Myers & Gordon for Rose, McAlpin & Co., then we would have a plain case of a guaranty by the defendant of a contract to deliver at a certain place changed by the parties to it by providing for delivery at another and different place. It seems to me that such a ■change of the obligation, to which the guarantee applied, would discharge the surety. What the defendant, by the paper, said to the plaintiff was that, if you will make a contract with my principal to send him hides and skins to tan, providing that he will tan them, with an option to buy, and if not, then to deliver to Rose, McAlpin & Co., I will be bound for the faithful performance of that contract, not for the performance of a contract to deliver at another place. Suppose that the contracts as made provided for sending to defendant’s principal different property than hides or skins, or property in addition to them, would the defendant be responsible for default in its performance ? It seems to me that where a party, intending to enter into a contract with another, prior to its execution secures from the other a guaranty of the performance of such contemplated contract, in which the terms upon which the surety is to be bound are specified, and the •contract, when drawn, does not correspond to the terms of the guaranty, the surety will be discharged from liability for default in the contract as made. In such a case the obligation of the principal is different from that for which the surety became bound. This question seems to have been disposed of in the court below on the ground that the change was not material. But the answer to that is that the defendant’s obligation is strictissimi juris, and he is discharged by any alteration of the contract, to which his guaranty applied, whether material or not, and the courts will not inquire whether it is, or is not, to his injury. Paine v. Jones, 76 N. Y., 278; Grant v. Smith, 46 id., 98; National M. Bank v. Conkling, 90 id., 116; Bangs v. Strong, 7 Hill, 250; Henderson v. Marvin, 31 Barb., 297.

The defendant was sworn as a witness at the trial and testified that he could not read. He also called two witnesses, and offered proof by them to show that he was unable to read, which was objected to by the counsel for the plaintiff and excluded under exception. There was no other proof given upon this point. If the case had been submitted to the jury upon the assumption that the defendant was unable to read, and that fact had been conceded, the exclusion of the testimony of the two witnesses referred to would not have been material. The following passage from the charge of the learned trial judge in submitting the case to the jury will show that the fact was not conceded and the case did not go to the jury upon any such assumption, but it was still regarded as a question for them to pass upon.

The learned judge, after stating that the question depended upon the negligence of the defendant, and that the burden of showing the absence of it was upon the defendant, and that before they could dispose of that question they must believe the defendant’s story, proceeded as follows: “ He is here testifying in his own behalf to save himself from liability, and unless you are satisfied his story is true, and believe that he did sign the paper without knowing anything about it, and on the distinct false representation by Thinnes that it was a mere application for a license, the plaintiff is entitled to a verdict. * * * You are not bound to take his statement, because he is interested in the result. He is here trying to escape liability which, upon the face of the paper, he is bound by. On the other hand, if you are satisfied he has told the truth, and has acted in good faith, then I say the question further arises as to whether he has further satisfied you that he was not negligent in any way in doing what he did. He says that he cannot read or write. He can sign his name, but he says he cannot read English, and that he cannot read this paper, and did not know what it contained. * * * As a general rule, where one person leaves to another the preparation of a writing and takes his word for it as to what it contains, he cannot complain if it is not what he thinks it is, because he has selected the'person to prepare the agreement, and if that person deceives him it' is his own fault. But considering the circumstances surrounding this case, the inability of the defendant to read or write, if you believe he is unable to, or his inability to understand what he was doing, his general intelligence and all the surrounding circumstances, it is for you to say whether be is to be excused, or that he did under the circumstances what a prudent person would do.”

The jury, under this charge, had the right to disregard the testimony of the interested witness and find that the defendant could read, and that he knew the contents of the paper. The general principle charged was undoubtedly correct, but the difficulty was that it permitted the jury to pass upon a question in regard to which the defendant was not allowed to give all his testimony. The error in excluding evidence in regard to the ability of the defendant to read could have been cured by instructing them that they must assume that he could not, or that the fact was conclusively proven as claimed by the defendant. The defendant had a right, if the question was still open, to fortify his own testimony in any way that he could. His own statement would not conclude the jury, but that of other disinterested witnesses would, in the absence of any opposing testimony. The plaintiff’s counsel would not be entitled to argue, if necessary to his case, that the jury found that the defendant was able to read the paper. As the case was submitted to the jury with this question unsettled, and for the jury to pass upon, the ruling excluding the testimony bearing on the point was error. Where testimony in corroboration of the party as to a material fact is excluded as cumulative, or upon the ground that the fact is no longer in dispute, then, for all further purposes of the trial, the fact should be deemed conclusively established, and should not be submitted to the jury upon the uncorroborated testimony of an interested party. As there was an exception both to the charge and to the ruling, the defendant is entitled to raise the question here.

For these reasons the judgment should be reversed and a new trial granted, costs to abide the event

All concur, Andrews, Oh. J., and Gray, J., on second ground in respect to error in evidence ; Earl, J., not voting.