author: Martin,J. Merwin, J., (dissenting.)

text:
    Caroline R. Garczynski, Resp’t, v. Dorr Russell, Individually, and as Executor and Trustee, etc., Appl’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 25, 1894.)

    Reference—Duty of referee.
    Under a reference to hear and determine all the issues in an action where an accounting is part of the relief asked, the referee must take and state the account, if plaintiff is found to be entitled thereto.
    Appeal from an order settling the form of the judgment to be entered on the report of the referee.

      Johnson & Lamb, and E. M. Harris, for appl’t; George M. Weaver, and A. M. Beardsley, for resp’t.
   Martin,J.

A portion of the relief demanded in the plaintiff’s complaint was that an accounting should be had by the estate of Lucy G. Russell, and the interlocutory judgment, entered in pursuance thereof, contained the following provision :

“ Fourth. That the plaintiff is entitled to have a fair and full accounting of the estate of the said Lucy G. Russell, and particularly of the said railroad stocks, securities, and other property, transferred to the said Lucy G. Russell by the said Dorr Russell, and of the proceeds and avails thereof, and of all moneys and property received by her, directly or indirectly, from the said Dorr Russell, and of the rents, issues, and profits thereof, and of the said real estate. And the said defendants are, and each of them is, hereby ordered and required to discover and answer as to the same, upon their several oaths. The plaintiff is hereby authorized, upon proper notice to the attorneys for the defendants, to move for the appointment of a referee to take such account, such appointment to be made by order, to be entered at the foot of this” decree. If it shall appear, on said accounting, that the said Lucy G. Russell paid anything from her own personal estate for the said railroad stocks and securities, then that an account be taken of the moneys so paid, and also of the moneys, property, and profits received by her, or by any other person for her use or, by the defendants, or either of them, and the balance, if any, remaining unpaid, and due to her, or her estate. That, upon such accounting, the defendants, and the estate of the said Lucy Gr. Russell, be charged with any and all moneys and property, paid by said Dorr Russell, directly or indirectly, upon the said Edward Clark mortgage, since the conveyance of the mortgaged property to the said Lucy Gr. Russell, and with the said railroad stocks, securities, and other property transferred to her by the said Dorr Russell.”

Thus, the matters that were referred to a referee, to hear and determine, were only partially tried, or at least but partially determined. The more important questions involved in the case were: (1) As to what interest the estate of Mrs. Russell had in the real estate mentioned in the complaint by reason of having paid the Clark mortgage or otherwise; (2) how much she, in fact, paid towards the railroad stocks and other property which stood in her name. The referee’s report, and the judgment entered in pursuance of it, direct that these important matters shall be referred to another referee, to hear and determine, after the entry of an interlocutory judgment, which is, in many respects, inconsistent with such a reference. The learned referee, to whom this action was referred, instead of taking the accounting, and determining the amount of the property, if any, which came into the possession of the estate of Lucy Gk Russell, for which it was liable to account to the plaintiffs, under the facts as found by him, held, as a conclusion of law, that the plaintiff was entitled to have a fair and full accounting, as stated in the demand of the complaint relating to that subject. The order appointing the referee was entered upon the stipulation of the parties, made in open court, that the case be referred to the referee named, to hear and determine, and the order entered in pursuance thereof was that the cause be, and the same is hereby, referred ” to the referee named, “ as sole referee, to hear and determine all the issues therein. ”

Under this order, the referee should have heard and determined all the issues made by the pleadings, and if, under the proof before him, the plaintiff was entitled to an accounting, he should have taken and stated the account. It was not the intention of the parties, or of the court, that only a portion of the questions involved in the case should be determined by the referee, aud that those remaining should be determined by another and different referee, to be subsequently appointed. It is obvious that the court and both parties intended that such a determination of the case should be made by the referee as would entitle the party succeeding to a final judgment in the action. We know of no authority to justify a referee in determining only a portion of the questions referred to him, and then to direct an interlocutory judgment, and that the cpurt appoint another referee to complete the hearing, where the whole case is referred to him by the consent of the parties. In this case, no reason is apparent why the referee could not have taken the accounting demanded in the complaint as well as another referee, to be subsequently appointed. The subject of the accounting related, not to matters which might arise in the future, so that a supplemental hearing and report might be necessary, but entirely to transactions which were past, and as to which he might well have taken an áccounting. It was the duty of the referee, on the trial, to take the proof of the respective parties, take an accounting of the matters referred to, settle and determine the account upon the trial before him, and. thus complete the hearing and determination of the case. His report was not only informal, but incomplete. We think it was proper for the special term to set aside the report, and send the case back to the same referee, so that a final judgment might be entered, as was plainly contemplated by the court and partiés, when the reference was ordered. Maicas v. Leony, 113 N. Y., 619; 22 St. Rep., 149. The orderly method of trying this case, as. well as the rights of the defendants, under their stipulation, and the order appointing the referee, required that the whole case should be fully tried and determined by him. Therefore, the special term, instead of settling the judgment upon the report as it stood, and providing for another reference, not contemplated by the defendants, should have sent the case back to the referee, to complete the trial thereof. If it be said that no such motion was made, vet the notice of motion was for a settlement of the judgment, and for such other relief as the court might grant. Under this notice, we think the court should have, at least, refused to settle any judgment until the reference was fully completed, so that a final judgment might be entered. Good faith to the defendants required this. Without questioning the power of the court, in a proper case, to settle an interlocutory judgment upon the report of a referee, and to appoint another referee to take an accounting provided for by such a judgment, Mundorff v. Mundorff. 1 Hun, 41; Seymour v. Spring Forest Cem. Association, 19 N. Y. Supp., 100 ; 45 St. Rep., 520, we think that where, as in this case, all the facts which relate to the accounting exist at the time of the trial, so that the whole case can be disposed of as well, and with less expense to the parties, than before another referee, it is the duty of the referee to complete the trial, and state the account between the parties in his report, so that a final judgment may be entered thereon. It was said by Daniels, J., in Mundorff v. Mundorff:

“ Ordinarily, where the whole issue is referred, it is no doubt the duty of the referee to take, state and adjust the accounts of the parties, on the basis on which, by his decision, he may settle their rights; for, as a portion of the issues, that is included within the reference provided for.”

We are of the opinion that the proper and orderly disposition of this case requires a reversal of the order of the special term, settling the form of the judgment herein, and that the parties have leave to apply to the special term for an order setting aside the report of the referee, and sending the case back to him to complete the trial thereof, so that a final judgment may be entered upon his report. Such a disposition of the case will, we think, better serve the ends of justice, and the interests of all parties, be more in keeping with the intention of the parties when the case was referred, and present the questions on appeal, if a subsequent appeal shall be taken, in a manner to be better understood, and more correctly decided, than to leave it in its present incomplete, inconsistent and somewhat confused condition.

Order of special term, settling the form of the judgment to' be entered on the report of the referee, and judgment entered thereon set aside, with $10 costs and disbursements, with leave to either party to apply to the special term for an order sending the case back to the referee, to complete the hearing and determination thereof.

Hardest, P. J., concurs.

Merwin, J., (dissenting.)

Upon this appeal the only questions, as it seems to me, are whether the plaintiff was entitled to have the form of the judgment settled at special term and, if so, whether the form, as settled, corresponded substantially with the directions in the report. A referee, in a proper case, has the right to grant an interlocutory judgment, and such judgment can be reviewed upon a motion for a new trial, (Code, § 1001,) or, as the Code now stands, by appeal from the judgment. Whether, in the present case, an interlocutory judgment was properly granted, is a question not before us on this appeal, but is one that might arise on a direct proceeding to review the decision and judgment. There exist, in this case, no such imperfections as existed in the case of Maicas v. Leony, 113 N. Y. 619 ; 22 St. Rep., 149, and by reason of which the court of appeals said that the supreme court, in its discretion, had power, on motion, to set the report aside. Ho question is made here that the special term did not have power to settle the decree. The plaintiff had, I think, a right to have it done. ■ If the order, as made, does not settle it, so as to conform to the directions in the report, it shquld be modified, but not set aside absolutely. _


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Caroline R. Garczynski, Resp’t, v. Dorr Russell, Individually and as Executor and Trustee, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 15, 1894.)

    1. Judgment—Interlocutory.
    A judgment entered upon the report of a referee, and containing a provision to the effect that plaintiff is entitled to the accounting demanded in the complaint, it interlocutory.
    3. Appeal—Interlocutory judgment.
    An interlocutory judgment, entered upon the report of a" referee, is not appealable.
    8. Same—Dismissal.
    An appeal from a non-appealable judgment will he dismissed, though no objection is made by respondent.
    Appeal from an interlocutory judgment entered upon the report of a referee.

      Johnson & Lamb and H. M. Harris, for app’lt; George M. Weaver and A. M. Beardsley, for resp’t.
   Martin, J.

This action was in the nature of a creditor’s bill. A portion of the relief sought was that an accounting should be ordered to be made, by the estate of Lucy Gf. Bussell, of the railroad stocks, bonds, securities, and other property, deposited with Edward C. Clark, and transferred to her, and of the proceeds and avails thereof, and all other moneys and property received by her, directly or indirectly, from Dorr Bussell, and of the rents, issues, and profits thereof, and that, if it should appear that Lucy Gf. Bussell paid anything from her own separate estate for the Bowers mortgage, and that her estate should be credited and allowed the moneys so paid, then that an accounting should be ordered, and an account be taken of the moneys so paid; and also of the moneys, income, property, and profits received by her, or by any other person for her use, or by the defendants, or either of them, and of the balance, if any, remaining unpaid, and due to her, or her estate, to the end that the said farm or property might be sold, subject to her lien for such unpaid balance, and the proceeds applied to the payment of the plaintiff’s judgment; that upon such accounting, the defendant’s, and the estate of Lucy Gf. Bussell, be charged with any or all moneys or property paid by Dorr Bussell, directly or indirectly, for the Clark'mortgage, and with the railroad stocks, bonds, securities, and other property, deposited by Bussell with Clark, and subsequently delivered to Lucy Gf. Bus-sell, or to or for her benefit. The referee found, as a conclusion of law, that the plaintiff was entitled to the accounting demanded in her complaint, and the judgment entered upon such report contained a provision to that effect.

The appellants, in their brief, claim that the judgment directed by the referee, and entered upon his report, is not final, but a mere interlocutory judgment. We think this contention must be sustained. Some of the earlier cases seem to hold a contrary doctrine, but the case of Dorchester v. Dorchester, 121 N. Y. 156 ; 30 St. Rep. 498, which is the latest case that has come to our notice, is so nearly like the case at bar that we must either disregard that case as an authority, or hold, with the appellants, that the judgment appealed from is interlocutory, and not final. We think the judgment must be treated as interlocutory. Therefore, at the threshold of the investigation of this case, the question presents itself, whether an appeal could properly be taken from such a judgment. It not being a final judgment, it was not appealable, under the provisions of § 1346 of the Code of Civil Procedure. And, as an inspection of the judgment shows that it was not rendered. at a special term, circuit or trial term of this court, but upon the report of a referee, it was not appealable under the provisions ■of § 1349 of the Code, as it” stood when this appeal was taken. It appears from another appeal book, which was handed up on appeal from an order made by the special term in this case, that the form of the judgment was settled by the special term, .and leave given to enter it as the judgment upon the referee’s report in the action, but there is nothing in the appeal book furnished us on the appeal from the judgment in this case which discloses the existence of any such order. Even if we were to assume, which we think we cannot, that the order should be considered in determining whether the judgment appealed from was entered upon the report of a referee, or entered at a special term of this court, yet it is quite obvious that the order of the special term, at most, determined the form of the judgment to be entered upon the report, that the report of the referee was the basis of the judgment, and that it was not rendered at a special term, within the meaning of § 1349 of the Code, but rendered upon the report of a referee.

Assuming, then, as we think we must, that the judgment was entered upon the report of a referee, and that it was interlocutory, and not final, it is quite manifest that the only method of reviewing it, which existed when this appeal was attempted to be taken, was by a motion for a new trial upon the exceptions, under § 1001 of the Code. While § 1349 of the Code has since been amended by an act passed May 6, 1893, to take effect the 1st of September, 1893, so as to give the right of appeal from a judgment thus entered, yet, as the appeal in this case was taken in March of that year, the defendants had no right to appeal from such a judgment, under the statute as it existed at the time when the appeal in this case was taken. Under these circumstances, we see no way to properly dispose of this cáse except to dismiss the appeal. ,

Although the respondent has raised no question as to the appellant’s right to appeal, we are unable to perceive how such omission confers upon this court authority to determine the questions sought to be reviewed, in the absence of any law authorizing the appeal. As a general rule, the right of appeal is purely statutory, and can be taken only from such judgments as are designated, expressly or impliedly, by the statute authorizing the appeal, and it must be taken within the time and by the mode prescribed. Parties cannot appeal by their own acts, where no appeal is authorized by law, nor can they, by their own acts, create a right of appeal, as jurisdiction of appeals is created by law. To permit parlies to create such a right would be a violation of the rule that parties cannot create jurisdiction of the subject by consent. Elliott's App. Proc. § 75 et seq. This question is not one of mere irregularity, but relates to the right of the party to appeal from such a judgment, and, hence, to the authority of this court to determine the questions involved. . The question is not one of practice, but of power; is not one of discretion, but of jurisdiction. In Kundinger v. City of Saginaw, 59 Mich. 355, 364, it was held that the right to appeal from one tribunal to another is statutory. In Kramer v. Railroad Co., 5 Ohio St. 140, 147, in discussing the question of the determination of freeholders, in condemnation proceedings, it was said: “It might have been more judicious to have provided for reviewing their determination; but this wras a matter of legislative discretion, not to be revised by the judiciary.’’ In City of Minneapolis v. Wilkin, 30 Minn. 140, 144, it was said: “The right of appeal is purely statutory, and does not exist when not given by statute. Indeed, it has been held that an existing right of appeal may be taken away by repeal of the statute, even as to causes peviously appealed,”—citing Ex parte McCardle, 7 Wall. 506. It was held, in State v. Meeker, 19 Neb. 444, that the right to review, by appeal or proceedings in error, is a statutory one, citing Wilcox v. Saunders, 4 Neb. 569, and State v. Ensign, 11 Neb. 531. In Ex parte Ferry Co., 104 U. S., 519, Waite, C. J., said: “If there is jurisdiction, and no provision for appeal or writ of error, the judgment of the trial court is the judgment of the court of last resort, and concludes the parties.” Many other cases, in different commonwealths, might be cited to sustain the general doctrine that the right of appeal exists only when conferred by statute, and can be taken only in the time and mode prescribed. It is, however, unnecessary to rely upon this general principal relating to appeals, as the case of Dorchester v. Dorchester, 121 N. Y. 156; 30 St. Rep. 498, is a direct authority upon the precise question under consideration. In that case it was held that the provisions of the Code of Civil Procedure, § 1349, as to appeals to the general term from interlocutory judgments, do not authorize that court to review, upon the facts, an interlocutory judgment entered upon the report of a referee. A motion at the general term for a new trial, after entry of an interlocutory judgment upon the report of a referee, as authorized by the Code, § 1001, brings up only questions of law. Before the case can be reversed by the general term upon the facts, where an interlocutory judgment has been so entered, there must be a final judgment, and then the law and facts may be reviewed on appeal therefrom, §§ 1301, 1316, 1317, 1336, 1337. In that case there was an appeal to the general term from an interlocutory judgment, entered upon the report of a referee, which was very similar to that in this case, and there was also a motion fora new trial, and the general term reversed the judgment, the order of reversal stating it was upon the facts, and it was held that the order was unauthorized, as the court had no power to review the facts; that, as the order was an actual determination of the general term, although made without power, it was re viewable in the court of appeals; and that, as it appeared from the order that the court below had not exercised the power it did possess, of reviewing the judgment for an error of law upon a motion for a new trial, the order should be reversed, and the case remanded to the general term for a hearing upon the questions of law. In delivering the opinion in that case, Judge O'Brien says: “Certain interlocutory judgments may also be reviewed by the general term, on appeal taken in pursuance of the provisions of § 1349, but this section does not authorize the general term to review an interlocutory judgment entered upon the report of a referee.” That case seems to be decisive of the question under considera- and, as there was in this case no motion for a new trial, under § 1001 of the Code, the case is not properly before us, and the defendants’ appeal must be dismissed. Knowlton v. Atkins, 134 N. Y. 313, 322; 47 St. Rep. 620; Bullion v. Bullion, 73 Hun, 437 ; 56 St. Rep. 24.

Appeal dismissed with costs.

All concur.


author: Martin, J. Merwin, J. (dissenting).

text:
    Caroline R. Garczynski, Appl’t, v. Dorr Russell et al., Resp'ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 15, 1894.)

    1. Execution.—Form under section 1253 of Code.
    An execution, issued under section 1252 of the Code, will be set aside where it describes the interest which the creditor is entitled to have sold as of the time when the judgment was rendered.
    2. Same.
    Section 1369 of the Code is not controlling as to the form of an execution issued under section 1252.
    Appeal from an order setting aside an execution issued on a judgment entered on September 17, 1881.

      George M. Weaver and A. M. Beardsley, for app’lt; Johnson <& Lamb and IS. M. Harris, for resp’ts.
   Martin, J.

On the 17th day of September, 1881, the plaintiff recovered a judgment against the defendant Dorr Russell and .another, for the sum of $5,772.45. On March 17, 1884, Jeremiah Wintringham, as receiver of the Pawners’ Bank, obtained a judgment against the same defendants for about $78,000. Previous to the entry of these judgments, Dorr Russell was the owner of a farm near Cooperstown. By reason of the giving of certain mortgages thereon, the foreclosure thereof, and sale thereunder, the title to such farm passed to, and was held by Lucy G. Russell, who was the wife of Dorr Russell. In 1891, the plaintiff commenced an action to set aside the transfers and proceedings which vested the title to such real estate in her. The action was tried, and resulted in the entry of an interlocutory judgment which, among other things, set aside such transfers, as against the plaintiff, and authorized her “ to proceed upon her execution on said judgment, or to issue another execution thereon, in the usual form, as she may be advised, to the sheriff of Otsego county, and to advertise and .sell thereon, in the manner and order prescribed by law, the said real estate, and to apply the proceeds to the payment of the plaintiff’s said judgment, with the interest thereon.” The plaintiff subsequently issued an execution, and the farm was advertised to be sold March 30, 1893. ■ On March 21st, the defendants made a motion to set aside the execution, on the ground that the notice provided for by § 1252 of the Code had not been filed by the sheriff. The motion was heard April 4, 1893, and gran ted, on the ground that no notice had been filed or recorded, as required by that section, but without prejudice to issuing another execution in the action. On April 8th, the assignee of the Wintringham judgment issued an execution thereon, and advertised the farm for sale. On the 14th of April the plaintiff issued a second execution upon her judgment which was filed and recorded, with the notice prescribed by § 1252 of the Code of Civil Procedure. A motion was then made by the defendants, at the Schoharie special term •on May 27th, to set aside the plaintiff’s second execution, and all proceedings under it, on the ground that the execution was irregularly issued, was irregular in form, that the notice of sale was irregular, and unauthorized by law or the order of the Broome special term made April 4, 1893; in that the lien of the judgment on which the execution was issued had ceased by lapse of time before the issuing of the execution, except as the plaintiff acquired a new lien by a levy and filing with the clerk a notice, under § 1252 of the Code of Civil Procedure, which could only bind, or become a charge upon, the title thus levied upon from the time the notice was filed and recorded, whereas the execution issued, and notice of sale given, assumed the right to sell the property as of September 17, 1881, when the plaintiff, or the sheriff, had no right to sell the estate which the defendant had at that time- Also, on the ground that the identical property was being advertised for sale by the sheriff, under another execution, issued against the defendant Bus-sell prior to the issuing.of the execution in this action, upon a judgment prior in time to the levy of the plaintiff’s execution.

The papers upon which this motion was heard show these facts, and, also, that the plaintiff was not at any time stayed by an injunction, or any other order, or by the operation of an appeal, or by express provisions of law, or otherwise, from enforcing such judgment; that the execution issued required the sheriff to satisfy the judgment out of the real property in his county, belonging to the judgment debtors, or either of them, on the day such judgment was docketed in his county, (September 17, 1881,) or at any time thereafter. The motion was granted, on the ground that the execution issued was unauthorized, because it did not correctly state the time when the lien of such levy attached, and did not direct a sale of the interest which the defendant had at that time, but, on the contrary, stated the lien as having attached September 17, 1881, and directed the sheriff to sell any property belonging to the judgment debtor on that day, or at any time thereafter.

The question presented on this appeal is whether the plaintiff was justified in issuing an execution, which directed the sheriff to sell the interest which the judgment debtor had in real estate in that county on the 17th of September, 1881, or at any time thereafter, or whether the execution should Have directed the sale of only such interests as the judgment debtor had in real property therein at the time when the execution was issued, and the notice was filed and recorded, as provided by § 1252 of -the Code. The plaintiff, by virtue of. her judgment aequiz-ed no lien upon the lands belonging to the judgment debtor, except such as was authorized by statute. At common law a judgment was not a lien upon real estate. The statutes of this state, relating to the docketing of judgments, the effect thereof as a lien upon real property, the suspending and discharging such liens, and the satisfaction and assignment of judgments, as they existed when the plaintiff’s judgment was rendered, and contained in article 3, title 1. c. 11, of the Code of Civil Procedure. The first six sections of that article relate to the docketing of judgments. The next section, (1251,) so far as applicable to the question before us, de'dares that:

“ A judgment, hereafter rendered, which is docketed in a county clerk’s office, as prescribed in this article, binds and is a charge upon, for ten years after the filing of the judgment-roll, and no longer, the real property * * * in that county, which the judgment-debtor has, at the time of so docketing it, or which he acquires at any time afterwards, and within ten years.”

Hence, the lien acquired by the docketing of a money judgment expires in 10 years. Wing v. De La Rionda, 43 St. Rep. 305. WÍien the last execution had elapsed since the docketing of the judgment and the filing of the judgment roll, so that the judgment had ceased to be a lien upon the real property of the judgment debtor. But the appellant contends that she had a right to issue the execution, under the provisions of § 1252 of the Code. That section provides:

“ When ten years after the filing the judgment-roll have expired, real property * * * which the judgment debtor, * * * then has, in any county, may be levied upon, by virtue of an execution against property, issued to the sheriff of that county, * * * by filing, with the clerk * * * a notice, subscribed by the sheriff, describing the judgment, the execution, and the property levied upon; * * * the notice must be recorded and indexed by the clerk, as a notice of the pendency of the action. * * * The judgment binds, and becomes a charge upon, the right and title thus levied upon, of the judgment debtor * * * only from the time of recording and indexing the notice, and until the execution is set aside, or returned.”

The reading of this section renders it clear that the only interest of the judgment debtor which can be sold upon an execution issued in pursuance of it is the right and title of the judgment debtor at the time of recording and indexing the notice. That being the only interest or title of the defendant which could be sold on execution, it seems quite clear that the plaintiff had no authority to issue an execution to sell the title and interest possessed by the judgment debtor before that time, and, hence, that the execution, and the proceedings of the sheriff, by which he advertised to sell the interest which the plaintiff had in the propertjr more than ten years before the time of the sale, were irregular and improper. We think that an execution issued under § 1252 should correctly state the interest which the party issuing the execution is entitled to have sold, and that, as the execution in this case, and the proceedings under it, failed to do so, they were properly set aside. Hansee v. Fiero, 56 Hun, 463; 31 St. Rep., 360; Floyd v. Clark, 17 N. Y. Supp. 848. We find nothing in §§ 1366, 1368 and 1369 of the Code of Civil Procedure which requires an execution issued under the provisions of §1252 to be in the form of that issued in this case, or that requires it to be incorrect, and contrary to the provisions of the latter section. § 1369 provides that an execution against property must, “ except where special provision is otherwise made by law, substantially require the sheriff to satisfy the judgment, out of the personal property of the judgment-debtor; and, if sufficient personal property cannot be found, out of the real property, belonging to him, at the time when the judgment was docketed in the county clerk’s office of the county, or at any time thereafter.” Thus we see that cases where provision is otherwise made by law are excepted from the provisions of that section, and, when we refer to § 1252, we find that, where an execution is issued and levied upon real property under its provisions, the judgment binds the title thus levied upon only from the time of recording and indexing the notice, and, consequently, the only interest or title that can be sold under such an execution is that of the judgment debtor at the time of recording and indexing the notice. That being the only interest which can be sold, where the judgment has ceased to be a lien upon the property, we think it follows that the provisions of § 1369 do not control as to the form of the execution to be issued in such a case, but that the execution and provisions under it, should be made to conform to the provisions of § 1252, and accurately and correctly describe the interest of the judgment debtor that was levied upon and advertised for sale.. Any other course of procedure would lead to confusion as to the rights of the purchasers, other judgment debtors or lienors, would jeopardize the rights of the persons interested in the land, provoke unnecessary litigation, and render the title to the property sold doubtful and uncertain.

We find no authority, statutory or otherwise, that requires us to hold a doctrine which would be followed by such unfortunate consequences. We think the order should be affirmed. Order affirmed, with $10 costs and disbursements.

Hardest, P. J., concurs.

Merwin, J. (dissenting).

It seems to me that the execution should not have been set aside by the special term. At most, it should have been limited to the lien acquired upon filing the notice under § 1252. The plaintiff ought to be permitted to regain the benefit of that lien.


text:
    George H. McChesney, App’lt, v. City of Syracuse et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed February 15, 1894.)

    1. Mechanic's lien—Surety.
    Where nothing is due defaulting contractors for work on a public building, no lien for materials furnished to them attaches to the unexpended portion of the appropriated fund, as against their surety who completes the work.
    2. Cost—Mechanic’s lien.
    The court, under section 11, chap. 315 of 1878, may award a separate bill of cost to each defendant.
    Appeal from that portion of the judgment which dismissed the complaint with costs as to some of the defendants, and also from that portion which directed the City of Syracuse to pay over to defendant, Crabtree, the sum of $1,234.

      Gill & Stilioell, for app’lt; Charles K Ide, for resp’t city of Syracuse; Wilson, Kellogg & Wells and Charles G. Baldwin, for resp’t Crabtree.

   Martin, J.

This action was brought in pursuance of the provisions of chapter 315 of the Laws of 1878, to foreclose a mechanic’s lien filed in pursuance of that statute. The defendants Baker & McAllister were copartners, and on October 2,1890, entered into a contract with the board of education of the city of Syracuse to furnish the materials and labor necessary to perform and complete the' carpenter work on a brick school building according to plans and specifications made by Asa L. Merrick, who was the architect in charge of the building, for the sum of $4,434. The plaintiff, between November 22, 1890, and February 28, 1891 furnished materials to Baker & McAllister of the value of $1,322.90, which were used in the construction of such building, and for which he has not been paid. On March 26, 1891, Baker & McAllister made a general assignment for the benefit of their creditors to the defendant Crabtree, who accepted the trust, and entered upon his duties as such. 'But there came into his.hands as such assignee only the sum of about $50, which was insufficient to pay the expenses of the assignment. On the 28th day of the same month the plaintiff filed a notice of lien with the city treasurer of the city of Syracuse and the president of the board of education for the sum of $1,322.90 and interest. The building was but partially completed at the time of the filing of such notice. The sum of $2,600 had been paid upon the contract. At the time of the assignment, and when the notice of lien was filed, there was nothing due the contractors. There was, however, if the contract was performed, to become due the sum of $1,834, to be paid as the work progressed. Baker & McAllister did nothing towards the performance of the contract after the assignment, but abandoned it, which was known to the board of education and the city of Syracuse through the supervising architect and otherwise. Crab-tree was surety on a bond given by Baker & McAllister to secure the performance of the contract on their part. The court found that, after Baker & McAllister abandoned the contract, Crabtree, at the request of the architect, with the knowledge of the board of education and the city, undertook the work of completing the building under the supervision of the architect, and completed it in accordance with the requirements thereof, and expended therefor, in addition to his own services, which were of the value of $250, the sum of $1,880 of his own funds, which was the reasonable value of the work and materials furnished by him; that Crabtree in no part of the business acted in his capacity as assignee of Baker & McAllister, and used no money of the assigned estate therefor, but acted as agent for the city, and under the authority, direction, and control of the architect thereof, which authority of the architect and agency of Crabtree were duly ratified and confirmed, with full knowledge of all the facts, by the city, by its acceptance and occupation of the building as completed; and that the plaintiff, by filing his notice, did not acquire any lien as against the city of Syracuse, or as against Crabtree, upon the fund applicable to the completion of the building. The court also found that on April 17,1892, the city, through its board of education, and upon an estimate furnished by the architect to Crabtree, paid him individually on the amount earned by him in the work of completing said building the sum of $600, and that there was in the hands of the city treasurer, applicable to payments for the construction of the work, $1,234, to which Crabtree was justly entitled for the money expended by him for the completion of the building. Upon the facts found, the trial judge held as conclusions of law : (1) That the plaintiff’s complaint should be dismissed as against the city and Crabtree, with costs to each against the plaintiff; (2) that the plaintiff, by filing his notice of lien, and the service thereof, acquired no lien upon or to any of the money appropriated for the erection of the building mentioned in the contract; (3j that by the abandonment of the contract the contractors lost their right to recover from the city, or to receive any of the funds provided for the construction of the building, except such as had been paid them prior to the notice of the lien; (4) that the city should pay over to Crabtree the sum of $1,234, or whatever balance there was, and thereupon was entitled to have the notice of lien canceled and discharged; (5) upon such payment being made, that the city should be released and discharged from all liability to the plaintiff or the other defendants by reason of the execution of such contract; (6) that the plaintiff was entitled to recover against the defendants Baker & McAllister the sum of $1,322.90, with interest and costs. The court directed judgment accordingly.

There was very little conflict in the evidence given upon the trial. The only question upon which there was any substantial dispute was whether the defendant Crabtree completed the building as assignee of Baker & McAllister, or whether he did it individually,, and to protect himself against liability on the bond which he had executed to the board of education. Upon that question the court found that the work was performed by Crabtree individually, and not as such assignee. This finding was fully añd fairly sustained by the evidence. That the contract was abandoned by Baker & McAllister several days before they made their general assignment, is quite obvious. We also think the evidence was quite sufficient to justify the court in finding that Crabtree was employed to complete the building for the city, and in holding that he was entitled to the remainder of the fund dedicated to that purpose. At the time of the filing of the notice of lien there was nothing due Baker & McAllister. They had before that time abandoned the contract, and the notice of lien was ineffectual to charge the funds in the hands of the city. The expense of completing the work, including Crabtree’s services, was several hundred dollars greater than the amount unpaid on the contract. Under these circumstances, we are unable to discover any principle upon which it could be held that the plaintiff acquired alien upon the fund in question. We are of the opinion that the decision of the learned trial judge was right, and is fully sustained by the authorities in this state bearing upon the question. Weisemair v. City of Buffalo, 57 Hun, 48 ; 32 St. Rep. 755; McCorkle v. Herman, 117 N. Y. 297; 27 St. Rep. 333; Larkin v. McMullin, 120 N. Y. 206; 30 St. Rep. 902; Van Clief v. Van Vechten, 130 N. Y. 571; 42 St. Rep. 736; Hollister v. Mott, 132 N. Y. 18; 42 St. Rep. 848; French v. Bauer, 134 N. Y. 548; 48 St. Rep. 333; Mack v. Colleran, 136 N. Y. 617; 49 St. Rep. 24; Ogden v. Alexander, 140 N. Y. 356, 362; 55 St. Rep. 744. But it is said that the cases cited arose under the statute of 1885, and not under the Laws of 1878. That is true as to most of them, and yet we think the principle of the cases is applicable to the question before us. The appellant also contends that the city had no right, under its charter, to thus employ Crabtree to complete the work on this building. With this contention we do not agree. But, if it were correct, we do not see how it would affect the rights of the plaintiff, as it would not entitle him to recover. That question was one in which only the city and Crabtree were interested. So far as this action was concerned, it in no way affected the plaintiff, or any of his rights. It having been properly held by the court that the fund in question did not belong to and could not be recovered by the plaintiff, whether the court awarded it to the defendant Crabtree or left it in the possession of the city was a question which in no way concerned the plaintiff. We think the decision of the trial judge upon the merits of this controversy was right, and should be upheld.

We have examined the various rulings of the trial judge upon the admission and rejection of evidence, to which our attention has been called, but have found no error which would justify'us in reversing the judgment. ISTor do we discover in the refusal of the trial court to find, in accordance with the proffered requests of the plaintiff, any such error as would justify us in disturbing this judgment.

The only remaining question suggested by the appellant is as to the costs awarded to the defendants. The court dismissed the plaintiff’s complaint as against the city of Syracuse and the defendant, Crabtree, with a bill of costs to the city and one to Crabtree against the plaintiff; The statute under which this action was brought provides: “ Costs in all actions shall rest in the discretion of the court, and shall be awarded to or against the plaintiff or defendants, or any or either of them, as may be just.” Laws 1878, c. 315, § 11. Thus, in an action commenced in pursuance of that statute, the costs are clearly in the discretion of the court, and we find no reason to doubt its power to award a separate bill of costs in favor of each of the defendants named, nor to question the propriety of such award. These considerations led us to the conclusion that the judgment should be affirmed.

Judgment affirmed with one bill of costs only.

All concur.


text:
    Edward Meagher, App’lt, v. Cooperstown & Charlotte Valley Railroad Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 15, 1894.)

    1 Negligence—Infant.
    A child, nineteen months of age, is not sui juris, and hence not chargeable with negligence.

      2. Same.
    It is not negligence per se for the father to leave such child in the care and custody of its mother.
    3. Same.
    The mother is required only to exercise such a degree of care as is reasonable under the circumstances and in her situation.
    4. Evidence—Negligence.
    In an action against a railroad company for negligence in injuring an infant child, evidence as to the distance in which the train can be stopped is admissible.
    Appeal from a judgment dismissing the complaint with costs, and from an order denying a motion for a new trial made on the-minutes of the court.

      W. H. Johnson, for app’lt; H. M. Harris, for resp’t.
   Martin, J.

This action was to recover damages .which the plaintiff sustained by reason of an injury to his infant chijd. The-basis of the action was the alleged negligence of the defendant. The plaintiff, with his wife and daughter, who at the time of the accident was about 19 months of age, resided in a house in front of which there was a public highway, and in the rear was the defendant’s railroad. There was a private or farm crossing over the-defendant’s road, used for the purpose of passing from the premises occupied by the plaintiff to the other portions of the farm of which the premises occupied by him formed a part. The plaintiff, at the time his daughter was injured, was absent from his house, attending to the duties of his employment. The child was left in the care and custody of its mother, who was attending to her household work, in which she was assisted by Mrs. Smith, her sister. Mrs. Smith started to go out doors to get some kindling wood, when the mother took the child from the chair in which she was sitting, and told her to go with her aunt, which she did. Unobserved by her aunt, and while she was engaged in splitting kindling wood, the child wandered onto the track of the defendant’s road, which was about 190 feet distant, and was injured by one of its trains. The accident occurred at or near the -crossing,, and within five minutes of the time when the child went out of the house. The evidence tended to show that the defendant failed to keep its barway at this crossing, which formed a part of its railroad fence, in a proper state of repair; th^.t the first and second bars from the ground had been removed, and had not been in place for a considerable period of time ; that the child passed through the barway in going onto the track; that the train stopped at Wilson’s crossing, which was about 2,400 feet from the place of the. accident; that the train approached the crossing where the accident occurred at the. speed of 31 miles an hour ; that the crossing was plainly visible for the distance of 1,250 feet before it was reached; that the day was bright and clear, and the track in good condition ; that the train was light, consisting of an - engine, baggage car, and one-coach only ; that the engineer saw the child when about 600 feet from her. At the trial the plaintiff offered to prove that Mrs. Smith had been accustomed to care for this child. This evidence was objected to, and excluded upon the theory that it was of no consequence. The plaintiff also offered to prove the distance within which such a train could be stopped, which was excluded upon the sole ground that it was a matter upon which expert evidence could not properly be received. To this ruling the plaintiff excepted. At the close of the evidence the defendant moved for a nonsuit on the grounds that the plaintiff had failed to establish negligence on the part of the defendant, that the plaintiff and his wife were guilty of contributory negligence, and that the plaintiff could not maintain this action as father of the child. Thereupon the court said:

“ There is only one question that you need to consider, Mr. Johnson, and that is the negligence of the plaintiff, or at least the negligence of the mother and Mrs. Smith. The testimony is in that regard, of Mrs. Smith, that the child’s mother said to Mrs. Smith, 1 Go out with Aunt Annie.’ She did go out with Aunt Annie, and Aunt Annie commenced splitting up kindling wood from a board, and testified that she forgot about the child, and did not notice that it got away from her. Now how can you reconcile that with the absence of contributory negligence. Non-suit granted.”

To this decision the plaintiff duly excepted. The plaintiff asked to go to the jury upon the whole evidence in the case, and especially upon the question of contributory negligence and the negligence of the-defendant. This was denied, and the plaintiff excepted.

It is manifest that the court nonsuited the plaintiff upon the express ground that he, or rather his wife, was guilty of negligence which contributed to the injury of the child,\ and hence the plaintiff could not recover in this action. The question here presented, then, is, was it negligence per se for the father of this child to leave it in the care and custody of its mother ? Or if it be admitted that he was responsible for the acts of his wife, or that the question of contributory negligence was dependant upon her conduct, then can it be held, as a matter of law, that the mother was guilty of contributory negligence in permitting her child to go into the dooryard with its aunt, who was a married woman, mature in years, and who the plaintiff offered to prove was accustomed to care for this child ? We think not. The child was not sui juris, and hence not chargeable with negligence, Mangam v. Brooklyn Railroad Co., 38 N. Y. 455; Fallon v. Central Park, etc., Railroad Co., 64 N. Y. 13 ; Stone v. Dry Dock Railroad Co., 115 N. Y. 104, 109; 23 St. Rep. 551. The mother was required only to exercise such a degree of care as was reasonable under the circumstances, and in her situation. Under the evidence, whether she exercised such reasonable care was a question of fact, Indeed, if the plaintiff was chargeable with the acts or omissions of Mrs. Smith, the question would still be one of fact to be submitted to the jury. Weil v. Dry Dock, etc., Railroad Company, 119 N. Y. 147; 28 St. Rep. 944; Birkett v. Knickerbocker Ice Co., 110 N. Y. 504, 507; 18 St. Rep. 130 ; Kunz v. City of Troy, 104 N. Y. 344; 5 St. Rep. 642; Ames v. Broadway & S. A. Railroad Co., 4 N. Y. Supp. 803; 24 St. Rep. 818. In the Weil Case the plaintiff, a child two years old, was left in charge of her father in his bakery. While she was behind the counter, he proceeded to make some entries in his books, when she went out of the door and was run over by the street car. All this happened within 10 or 15 minutes after plaintiff’s mother had left her with her father. The plaintiff was nonsuited on the ground of her parents’ negligence, and it was held error, and that the father was only required to exercise such a degree of care as was reasonable in his situation, and under all the circumstances, and whether he did so was a question for the jury. In the Birkett Case it was held that it was not negligence, as a matter of law, for the parents of a bright child, four and one-half years old, living in a crowded locality in a city, with no other place for amusement, to permit the child, with proper instructions and directions against going into the street, to play upon the sidewalk without an attendant, and that whether it was negligence under the particular circumstances -was a question of fact for the jury. In the Kunz Case it was held that it was not per se negligence on the part of a parent to permit a child non sut juris to play in the street, and that it was a question of fact for the jury to determine whether the father was guilty of negligence. In the Ames Case a mother allowed the plaintiff, an infant five years of age, to play in a court, having near and easy access to a street, telling her not to leave the door. The infant went into the street, and was injured through the negligence of the defendant’s servant. It was held that the question whether or not this permission to the infant to play in the court, without continued supervision or protection against her going outside the court into the street, was negligence on the part of the mother, was properly submitted to the jury. Further illustrations of the doctrine of the cases citied may be found in the following cases: Prendergast v. N. Y. C. & H. R. Railroad Co., 58 N. Y. 652; Ihl v. Forty-second St., etc., Railroad Co., 47 N. Y. 317; Bahrenburgh v. Brooklyn City, H. P. & P. P. Railroad Co., 56 N. Y. 652; Mullaney v. Spence, 15 Abb. N. S. 319; Cosgrove v. Ogden, 49 N. Y. 255; Jetter v. N. Y. & H. Railroad Co., 2 Abb.Ct. App. Dec. 458 ; Downs v. N. Y. C. Railroad Co., 47 N. Y. 83; Railway Co. v. Pearson, 72 Pa. St. 169 ; Walters v. Railroad Co., 41 Iowa, 71; Railroad Co. v. Ormsby, 27 Grat. 455; Railroad Co. v. McDonnell, 43 Md. 534; Railroad Co. v. Hanlon, 53 Ala. 70; Railroad Co. v. Bohn, 27 Mich. 503; Railroad Co. v. Stout, 17 Wall. 657; Hydraulic Works Co. v. Orr, 83 Pa. St. 332; Railroad Co. v. Gladmon, 15 Wall. 401. The general rule is that contributory negligence is a question of fact, and should be left to the jury, unless it so "clearly appears from the circumstances or uncontradicted evidence as to leave no inference of fact in doubt. It is only in very exceptional cases that it can be adjudged as a necessary legal conclusion from the facts found. Thurber v. Harlem B., F. & M. Railroad Co. 60 N. Y. 326; Massoth v. D. & H. Canal Co., 64 N. Y. 529; Sauerborn v. N. Y. C. & H. R. Railroad Co., 69 Hun, 429 ; 52 St. Rep. 784. We are of the opinion that under the evidence the question of contributory negligence was a question of fact, and that the trial court erred in not submitting that question to the jury.

Whether the defendant’s omission to properly maintain the bar-way at the farm crossing could be considered in this case upon the" question of the defendant’s negligence, is not free from doubt. In Keyser v. Railroad Co., 56 Mich. 559, it was held that a railroad company’s neglect to fence its track was for the jury to consider, as bearing upon its liability for an injury done to a child who got upon the track in consequence thereof. See, also, Marcott v. Railroad Co., 47 Mich. 9 ; Morrissey v. Railroad Co., 15 R. I. 271. A contrary doctrine seems to have been held in Walkenhauer v. Railroad Co., 17 Fed. 136, and Fitzgerald v. Railway Co. 29 Minn. 336. But, be that as it may, we think the question of the defendant’s negligence should have been submitted to the jury. Obviously such was the opinion of the trial judge, as he nonsuited upon the express ground of contributory negligence, and stated that it was the only question the plaintiff need consider. As we have already seen, there was evidence that the train stopped 2,400 feet from the place of the accident; that it approached the crossing at the rate ,of 31 miles an hour; that the crossing was in plain sight for 1,250 feet; that the train was a light one, the track in good condition, and the day bright; and that the engineer saw the child when 600 feet distant from her. Moreover, the plaintiff offered to prove the distance within which such a train could be stopped. If this evidence had been admitted, it might have shown that if the engineer had made a proper effort the train could have been stopped after he discovered the child and before reaching her and that she was too young to be conscious of the danger to which she was exposed. With this evidence in the case, the question of the defendant’s negligence would be one of fact, and should be submitted to the jury. Chrystal v. Troy & Boston Railroad Co., 105 N. Y. 164; 6 St. Rep. 833; Spooner v. D., L. & W. Railroad Co., 115 N. Y. 22; 23 St. Rep. 554. We think that that evidence was admissible, and that the court erred in holding that expert evidence upon that subject could not be given, Mott v. Hudson R. Railroad Co., 21 N. Y. Supr. Ct. 345 ; Eckert v. Railway Co., 13 Mo. App. 352 ; Railroad Co. v. Dorsey, 68 Gra. 228, 235 ; Grimmell v. Railway Co., 73 Iowa, 93 ; Whart Ev. § 444. These views lead us -to the conclusion that the judgment should be reversed, and the plaintiff awarded a new trial, when all the evidence bearing upon the question of the defendant’s negligence can be presented.

Judgment and order reversed, and a new trial ordered, with costs to abide the event.

All concur.


text:
    James Whitney, App’lt, v. John C. Roe, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed February 15, 1894.)

    1. Costs—Disbursements—Stenographer’s Notes.
    Stenographer’s fees for copy of notes on which to make a motion for a new trial are not taxable as a disbursement in a county court action, unless in accordance with the practice of such court.
    3. Same—Review.
    In the absence of proof of such practice, the refusal of the court to tax such item will not be disturbed on appeal.
    Appeal from an order striking out an item of the bill of costs as taxed.

      Dailey & Bentley, for app’lt; Robertson, Smith & Bull, for resp’t.
   Martin, J.

This is an appeal from an order made by the Che-mung county court, striking from the bill of costs herein as taxed by the clerk the sum of $86, which was allowed for stenographer’s fees paid for the minutes of a preceding trial. The appellant insists that this item was properly taxed, for the reason that the minutes were ordered by the court to be used on the hearing of a motion for a new trial made on the minutes of the trial judge. In this case there had been a trial by jury, and a verdict rendered in favor of the defendant. The plaintiff then moved for a new trial on the minutes, on the ground that the verdict was against the evidence, and on the various exceptions taken during the trial. This motion was entertained by the court, and a new trial was subsequently granted. In deciding the motion which resulted in the order appealed from, the court, it seems, assumed the facts to be as stated in the plaintiff’s affidavits, which were that when the court entertained the motion for a new trial it stated that it would be necessary to have a copy of the stenographer's minutes of the evidence made for the purpose of such motion; that a copy was made on the application of the plaintiff, and used by the court and both parties in preparing, arguing, and deciding that motion, and also used in all the subsequent stages of the action, and was procured because the court so ordered; and that the plaintiff paid the official stenographer therefor the sum of $86.36. Assuming these facts, the court held that the sum thus paid was not taxable according to the course and practice of the county court. “At common law, neither costs nor disbursements were allowed to the prevailing party in any ease, and their allowance has always been regulated by statute. Unless, therefore, the plaintiff can point to some statute authorizing the clerk to allow and tax this item, the decision below is right.” Equitable L. A. Society v. Hughes, 125 N. Y. 106, 108; 34 St. Rep. 591. The only statute pointed out by the appellant, and the one under which he claims that this item is taxable, is § 3256 of the Code of Civil Procedure. While this section was amended in March, 1892, (Laws 1892 c. 185) so as to include “stenographers’ fees for minutes of testimony before a court, judge or referee ” among the disbursements that might be taxed, yet on May 14th of the same year an act was passed again amending that section by omitting the provision above quoted. Laws 1892, c. 595. As it was provided by each of these acts that it should take effect September 1st, 1892, the act permitting such fees to be taxed never in fact went into operation. Griggs v. Guinn, 21 N. Y. Supp. 451. Section 2356, as it now stands, and as it stood when the question in this case arose, so far as applicable thereto, after enumerating certain fees or disbursements that may be taxed, provides: “And such other reasonable and necessary «expenses as are taxable according to the course and practice of the court or by express provision of law.” It is not contended that there is any express provision of law which authorizes the taxation of stenographer’s fees under the circumstances which existed in this case; hence the, question presented is whether they were taxable as reasonable and necessary expenses according to the course and practice of the court in which the action was tried. There have been numerous decisions in the supreme court and «courts other than the county court as to when stenographer’s fees might be taxed as a disbursement in an action, but we have been cited to and have found no case where the precise question involved upon this appeal has been decided. While it has been held that in the supreme court stenographer’s fees might be taxed where a copy of the minutes is necessary to make a case or a bill of exceptions, Varnum v. Wheeler, 9 Civ. Pro. 421, and where a copy of the minutes is necessary to enable the party procuring them to prepare amendments to a case, Sebley v. Nichols, 32 How. 182; Stevens v. N. Y. El. Railroad Co., 9 N. Y. Supp. 707; 31 St. Rep., 404, upon this question the authorities are conflicting, Pfaudler, etc., Co. v. Sargent, 43 Hun, 154; 5 St. Rep., 413, yet we have found no case in the supreme court or any other where it has been held that, where a copy of the stenographer’s notes had been obtained for the purpose of making a motion for a new trial on the minutes, the fees paid the stenographer for making the same could be taxed as a disbursement in the action. The question, however, in this case is not whether the stenographer’s fees could be taxed according to the course and pratice of the supreme court, but is whether they are taxable according to the course and practice of the county court. There are many cases where disbursements are paid by an attorney for the benefit of his client which are not taxable against the adverse party as costs in a case, but which may be properly allowed to the attorney as against his client. Hovey v. Hovey, 5 Paige, 551; Equitable L. A. Society v. Hughes, 125 N. Y. 109; 34 St. Rep., 591. That the item in question in this case was taxable under the practice as it existed in the county court was not made to appear either by evidence or authority. Indeed, there is nothing before us showing or tending to show that any such pratice has every existed in the Chemung or any other county court. Under these circumstances we do not see how we can properly determine that such a practice existed, and that it was disregarded by the court below in granting the order appealed from.. It must be presumed that the county court was 'familiar with its own practice in this respect. That court was in a position to know, and could determine from its own knowledge, and without any other evidence, whether the practice of that court required it to allow or disallow such an item. We are not presumed to know as well as that court the practice which prevails therein in such cases. Equitable L. A. Society v. Hughes, 125 N. Y. 106; 34 St. Rep., 591. It is not, we think, within the province of this court to determine what course and practice should be adopted or pursued in this respect by the county court. If no established practice existed which would justify the allowance of the item in question, then it was properly disallowed, as it was only such reasonable and necessary expenses as were in fact taxable according to the course and practice of that court that could have been allowed under the provision of section 3256. We are of the opinion that, in the absence of any evidence or authority which tends to show that the item in question was taxable according to the course and practice of the county court, it must be presumed that the court below followed the practice as it existed in that court, and that it was not taxable according to such practice, and hence that the order appealed from should be affirmed.

Order affirmed, with costs.

All concur.


author: Bradley, J.

text:
    Buffalo, Rochester & Pittsburg Railroad Company, App’lt, v. Georgia Lavery, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 18, 1894.)

    1. Indians—Leases oe Land.
    The state legislature has no power to authorize leases of Indian lands.
    2. Same—Act oe Congress.
    Act of .Congress of February 19, 1875, gives priority of right to a renewal in favor of possession under a lease, made to. another after such act, and after the expiration of the former’s lease and before the renewal.
    3. Same—Judgment in Ejectment.
    An unexecuted judgment in ejectment, recovered by the Indian Nation, does not affect such right.
    Appeal from a judgment dismissing the complaint.

      John S. Rockwell, for app’lt; Q. W. Cole and William H. Henderson, for resp’t.
   Bradley, J.

The action is ejectment, brought to recover the possession of a piece of land situate in the village of Salamanca, in the county of Cattaraugus, and within the Allegany Indian reservation. The claim made by both persons is founded upon leases or grants from the Seneca Nation of Indians, and the the question is one of priority of right. The facts, as found by the referee, are not challenged by any exception. In July, 1866, Charles Snow, a Seneca Indian, by instrument in writing executed by him,leased the premises to Allen McDonald, a white man, for the term of 10 years, and shortly thereafter the latter, in like manner, assigned or sublet to Lawrence Cere, who went into possession, and, prior to 1870, erected there a dwelling house; and he was in the actual occupancy of the premises at the time the lease hereinafter mentioned to the Cattaraugus Railroad Company was "made. In or about the year, 1872, Cere, by an instrument in writing, assigned the lease to William Dinter, who soon after went into the actual occupancy of the premises, under the lease, and paid an annual rental reserved of five dollars. In March, 1880, Dinter applied to the council of The Seneca Nation of Indians for renewal of the lease for the term of 12 years, and on the 12th day of that month the lease was renewed for that term, (reserving the annual rent of five dollars,) in accordance with the usage of the nation, and pursuant to the act of congress of February 19, 1875, hereinafter more particularly mentioned. In May, 1889, Dinter sold and transferred to the defendant all his right, title, and interest in the premises; and about the time of the expiration of the term of the lease, and upon the application of the defendant therefor, a lease was made by the Seneca Nation of Indians to her for the term of 99 years. It is upon this lease, with the support of those prior leases, that the defendant relies for her defense. The plaintiff’s claim to the right of possession has for its support a lease of the premises made by the Seneca Nation of Indians to the Cattaraugus Railway Company, J une 7, 1872, to all the rights of which company under such lease the Rochester & State Line Railroad Company succeeded; and afterwards, in April, 1880, the Seneca Nation of Indians made lease of the premises to the last-named company. The plaintiff afterwards, in March, 1887, was incorporated, and became vested with all the rights of its predecessor under the lease, and all its rights derivable by relation to the lease before mentioned to the Cattaraugus Railway Company.

It may be assumed that the lease of Snow to McDonald, the transfer or sublease of the latter to Cere, and his to Dinter, were invalid at the time they were made, and gave no right as against the Seneca Nation of Indians to the premises; and unless they were rendered effectual by or through the act of congress approved February 19, 1875, the plaintiff is entitled to the possession of the premises. By that act of congress it was provided that all leases of lands within the Cattaraugus and Allegany reservations theretofore made by or with the authority of the Seneca Nation to railroad corporations were ratified, and that the Seneca Nation might lease lands within those reservations for railroad purposes, § 1; that the President of the United States should appoint three commissioners to survey, create, and establish the boundaries of the village of Salamanca and certain other villages within the Allegany reservation, including therein, as far as practicable, all lands then occupied by white settlers, § 2; that all leases of lands situate within the limits of such villages in which Indians, or the Seneca Nation, or persons claiming under them, were lessors, should be valid, and binding upon the parties thereto and upon the Seneca Nation, for a period of 5 years after the passage of the act, except such as should before then expire, and that, at the expiration of that period or the termination of the leases, they should be renewable for periods not exceeding 12 years, and the persons who should then be the owner or owners of improvements erected upon such lands should be entitled to such renewed leases, and to continue in possession on such conditions as might be agreed upon, and, when any lease should expire after its renewal, it might, at the option of the lessee, his heirs or assigns, be renewed, §8; that the Seneca Nation was authorized to lease lands within such villages to which no individual Indian or Indians, or other person claiming under him or them, were entitled to the rightful possession, § 4; and that it was made the duty of the commissioners so appointed to cause lands then leased, as before mentioned, to be surveyed, and defined and designated on the maps ■ of the villages, and that all leases then existing or thereafter made should be recorded in the office of the clerk of Cattaraugus county, § 5. Leases to railroad corporations were not embraced within the provisions of the third section. By virtue of this act of congress, the lease to McDonald, the transfer or sublease from him to Cere, and. from him to Dinter, were validated as effectually as they could be without prejudice to intervening vested rights in •others to the possession of the premises. Ryan v. Knorr, 19 Hun, 540: Baker v. Johns, 38 Hun, 625; Wait v. Jameson, 15 Abb. N. C., 382. It is urged by the plaintiff’s counsel that the possessory right was effectually given to the Cattaraugus railway at the time the lease was made to it in 1872, and the plaintiff’s right of possession was not dependent upon the provisions of the act of congress before mentioned; and reference is made to the provisions of the statute of this state passed May 12th, 1836, that “ it shall be lawful for any railroad company that has been, or may hereafter be, •chartered by the legislature of this state, to contract with the ■chiefs of any nation of Indians over whose lands it may be necessary to construct such railroad, for the right to make such ■road upon such land; but no such contract shall vest in such •railroad company the fee to such lands, nor the right to occupy the same for any purpose other than what may be necessary for the construction, occupancy "and maintenance of such railroad;” the contract, however, not to be effectual until ratified by the court of common pleas of the county. Laws 1836, c. 316; 4 Edm. St. at Large, 368. The lease to the Cattaraugus Railway Company was made and ratified in accordance with the provisions of that statute, and, if it was not within the legislative power of the state to effectually authorize to be accomplished that which its provisions import, the defendant has the superior right to the possession of the lands in question. It may be assumed that the plaintiff, having the lease' from the nation, has the right to acquire the land in question by condemnation pro•ceedings under the statute; but it is not within the legislative power of the state to enable the Indian Nation to make, or others to take from the Indians, grants or leases of lands within their reservations. In that matter the federal government, having the power, under the constitution, to do so, has assumed to control it by the act of congress of June 30th, 1834, which provides that “ no purchase, grant, lease or other conveyance of lands, or of any title or claim thereto from any Indian nation or tribe of Indians, shall be of any validity, in law or equity, unless the same is made by treaty or convention entered into pursuant to the constitution.” Rev. St. U. S. § 2116. This succeeded the act of congress of March 30th, 1802, which was substantially the same, and in like manner provided for the presence of the agent of the state for the purposes there mentioned, with the commissioner of the United States appointed to hold the treaty. As respects their lands, which, subject, only to the pre-emptive title, the Indians hold, they are treated as the wards of the United States; and it is only pursuant to the Federal authority that their lands can he granted or demised by or acquired by conveyance or lease from them. Worcester v. Georgia, 6 Pet. 580; Mitchel v. U. S., 9 Pet. 748; The New York Indians, 5 Wall. 761. The claim of the plaintiff, founded upon chapter 316 of the Laws of 1836, before mentioned, has no support in Seneca Nation v. Christie, 126 N. Y. 122; 37 St. Rep. 64. There the persons taking the grant had the right of pre-emption, and it was made pursuant to treaty with the Indians, at which the state of Massachusetts and the United States were represented, in compliance with the act of congress of 1802. The only question in that action was whether a ratification of the treaty by the senate of the United States was essential to the validity of the grant; and it was disposed of on the able and instructive opinion of Judge Andrews upon the subject. It may be observed that the provisions of the act of congress of 1834 were modified by that of 1875, so far as relates to those parts of the Allegany reservation within the villages mentioned in the latter act of congress. The Cattaraugus Bail way Company and its successors, therefore, acquire no right from the lease to it, except such as was derived from the act of congress of 1875. By virtue of the same act, the prior lease■—-the source of the defendant’s claim of right to possession — was also ratified. There does not seem to be anything inconsistant with this view in the determination made in People v. Beardsley, 52 Barb. 105, of the questions there presented. While it is within the legislative power of the state to prohibit intrusion of residence upon the reservations by persons other than Indians, and to provide for police regulations there, it has no power to impose taxes upon their lands. People v. Dibble, 16 N. Y. 203 ; 21 How. 366; The New York Indians, 5 Wall. 761.

As bearing upon the matter of the priority of the leases in question, the plaintiff put in evidence a judgment recovered October 23d, 1873, by .the Seneca Nation of Indians, against William Dinter, in an action of ejectment brought to recover possession of premises, including those in question. The judgment, by force of the statute, was conclusive as to the title established in such action upon Dinter, and against all persons claiming from, through, or under him by title accruing after the commencement of the action in which the recovery was had. 2 Rev. St. p. 309, §36; Bates v. Stearns, 23 Wend. 482; Briggs v. Wells, 12 Barb. 576; Dawley v. Brown, 79 N. Y. 390. The judgment was not executed. Dinter remained in possession; and afterwards, in 1880, the lease under which he went into occupancy of the premises was renewed by the Seneca Nation. He, at the time the judgment was recovered, had, as against the nation, no right to the possession, for the reason before stated; nor had the plaintiff then any right to it. He remained in the possession of the premises when the act of congress of 1875 was approved, and thereafter until his right under the act to renewal of the McDonald lease was, pursuant to it, recognized, and the lease re-lie wed by the Seneca Nation. In view of these facts it is not seen that the recovery of the judgment in the ejectment action against him can inure to the benefit of the plaintiff, so as to give the leases under or through which it claims priority over that under which Dinter may be deemed to have occupied the premises, when support came to it from the act of congress, and by its renewal, to him, pursuant to such act. These views led to the conclusion that the plaintiff is not entitled to recover. None of the rulings at the trial require consideration.

The judgment should be affirmed.

All concur.


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    Gertrude Dean, an Infant, by her Guardian ad Litem, etc., Resp’t, v. Miners Raplee, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Assault and Battery—Defilement.
    The fact that a female did not resist sexual intercourse to the utmost, does not,preclude her from maintaining an action for an assault and battery for such act.
    2. Same—Damages.
    She may not, in such case, be entitled to damages by reason of the defilement.
    3. Same—Consent.
    Under the facts and circumstances of this case, the question whether the female submitted voluntarily, was held to be one for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from "an order denying a motion for a new trial.

      I. Sam. Johnson, for app’lt; M M. Bartlett, for resp’t.
   Bradley, J.

It is not claimed that the plaintiff was subjected to any indignity until the spring of 1886. The fact that the plaintiff on none of the occasions to which she refers made any outcry, although some of the places to which she refers were so near the house that she may have been heard; also that.she remained at the defendant’s house so long after the alleged transactions occured, and that she did not then inform her grandmother or aunts of the treatment she had received from the defendant,-—• were circumstances bearing with some force against her credibility. But this was a question for the jury, in view of all the evidence given, not only by the parties, but by the other witnesses so far as it tended to bear in either direction upon it. The jury were permitted by the plaintiff’s evidence to find that she did not consent to the connection, but that the defendant took hold of her, threw her down, and accomplished his purpose, against her will. This would seem to have been sufficient to support the denial of the defendant’s motion to dismiss the complaint, if no further reason for such ruling appeared by the evidence.

The action is for assault and battery by the defendant upon the plaintiff, and his defilement of her is matter in aggravation of damages. And while the charge of the assault could not be sustained if she consented to the connection, if she did not so consent the jury were authorized to find a verdict in favor of the plaintiff. People v. Bransby, 32 N. Y. 525 ; Reg. v. Hallett, 9 Car. & P. 748. In that view, irrespective of the question whether the facts which the evidence tended to prove constituted all the elements requisite to support the charge of rape, the plaintiff may have been permitted to recover ; and no question was raised at the trial to the effect that, in the event she had a verdict, she was not entitled to recover any damages on account of the sexual intercourse had with her by the defendant. The cases cited by the defendant’s counsel do not necessarily hold to the contrary of the proposition above stated. The remark in that respect of the justice who delivered the prevailing opinion in Crossman v. Bradley, 53 Barb. 125, was not necessary to the determination of the questions presented by the exceptions upon which the new trial was granted ; nor does it appear by the case as reported what the facts were, other than such as gave force to the exceptions taken. In the brief digest of the decision in Smith v. Fingar, 1 Alb. Law J. 101, it appears that the exception to refusal to charge that if the plaintiff finally consented to the sexual intercourse she could not recover damages resulting therefrom was held well taken. This was as far as it was essential for the court to go for the purpose of the result of the review. In Young v. Johnson, 46 Hun, 164 ; 11 St. Rep. 590, the charge of the trial court does not appear, but it is said by the defendant’s counsel that the court was requested to and did charge that if the jury found that carnal connection was had, they, to enable her to recover, must further find that it was had without her consent, and against her utmost resistance; and that, if she finally yielded her consent, and ceased her resistance, she could not recover. This was well enough. It was approved by the general term, and the court of appeals affirmed the judgment without expressing any views upon that question. Young v. Johnson, 123 N. Y. 226; 33 St. Rep. 486. In such cases .the evidence of resistance or of nonresistance has an important bearing upon the question whether or not the female consents to the conduct of the person charged with the act. In People v. Bransby, supra, Judge Potter said : “It is manifest that the testimony of the prosecutrix did not establish a case of rape, but did establish reluctance, and some degree of resistance.” And Judge Potter, in the same case, said: “ The real and only question, it will be seen, is, did all this constitute an assault and battery ? It is clear that it did, in the view taken by the jury, and yet the judge left it to the jury, in this proposition, to find that all this would not be an assault and battery if she did not make all the resistance she could, unless the failure to make such extreme resistance was from fear, or under the belief that further resistance would be useless. Such is not the law. * * * If she did not invite or willingly consent to his presence and to his conduct, he was guilty of an assault and battery." And he added that “ the judge at the trial, in his charge upon this proposition, improperly introduced the law in relation to the resistance demanded of complainants in cases of rape, which had no application to a case of assault and battery.” The indictment in that case was for assault and battery, and it appeared by the evidence that the alleged assault was for the purpose of having sexual intercourse, which was accomplished,.with the prosecutrix. While Judge Potter’s opinion was not the prevailing opinion, it was one of concurrence in the result; and it is difficult to see that what is above quoted from it did not state the reasons for the result, as the conclusion reached by the court was that, as the verdict of the jury was intended to negative any assent on the part of the complainant to the act, the conviction was sustained. The present action is also one for alleged assault and battery, and, if the defendant did commit an assault and battery upon the plaintiff by taking hold of her, and throwing her down, and what he did was without her consent and against her will throughout, it does not seem that he can justify it by asserting that she did not resist to the extent which she might have resisted in the consummation of his purpose. Although she might not, in that case, be entitled tore-cover damages arising from the matters alleged in aggravation of the assault, no reason necessarily appears why her action might not be maintained. But upon the assumption that it may be effectually urged on the part of the defendant that unless he is chargeable for the consequences of the more aggravated act in his conduct he is not liable for the less offensive or degrading act in his assault, there seems to have been sufficient in the facts which the evidence tended to prove to send the case to the jury. It is essential, to constitute the charge of rape, that the attempt, and its consummation throughout, be against the will of the female, and that she resist the attempt to ravish her to the extent of her ability at the time and under the circumstances. People v. Dohring, 59 N. Y. 374. The utmost insistence which otherwise is required may not be requisite to the offence if the female has not the possession of her mental or physical powers, or is terrified by threats serious in character, or is in such a place and position as to render resistence useless. The plaintiff was 14 years of age when she went into the family of the defendant. The relation, which it was supposed the defendant assumed to her was in its nature parental, It would seem that she showed him obedience, and was subject to his direction, and that of Mrs Raplee. So far as it appears, such was the apparent relation the first year, and she was subjected to no indecent insult during that time. The occurrences in question commenced, in the spring of 1886, when the plaintiff had arrived at the age of 15 years. The defendant then sought her in a secluded place, and, as she says, suddenly threw her down, against her protest and such resistance as she was, under the circumstances, able to make, an.d had connection with her. Nothing appears to indicate that she had any reason to apprehend such purpose or conduct on his part until he made the alleged assault. The fact that he was a man of mature years, assuming the relation which he did to her when she became a member of his household, and that she was a girl of such tender years, and the influence he may have had upon her, are circumstances entitled to some consideration. The evidence tends to prove that she was a nervous, slender girl, and that he was a strong, vigorous man; and therefore she might be helpless to successfully resist him in his purpose when he had her in his possession, with the controlling intent on his part to gratify his passion. While the utmost resistance on her part, and the greatest resistance which she, under the circumstances, could make, were required of the plaintiff to support the more aggravated charge against the defendant, submission was not necessarily consent. It certainly was not if it was attributed solely to overpowering force on his part. Reg. v. Day, 9 Car. & P. 722; People v. Clemons, 37 Hun. 580. And as was said by the court in People v. Connor, 126 N. Y. 278; 37 St. Rep. 23:

“When an assault is committed by the sudden and unexpected exercise of overpowering force, upon a timid and inexperienced girl, under circumstances indicating power and will of the aggressor to effect his object, and an intention to use any means necessary to accomplish it, it would seem to present a case for a jury to say whether the fear naturally inspired by such circumstances had not taken away or impaired the ability of the assaulted party to make effectual resistance to the assault.”

The jury in the case at bar were permitted by the evidence to find a state of facts as strong in support of the charge against the defendant as those expressed.in the opinion of Chief Judge Euger, and they are not weakened by the fact that the duty of the defendant, arising out of the relation he had. assumed, was to care for the plaintiff, and give her advice and protection. It would be more difficult to account for the failure of the plaintiff to disclose, soon after it was committed by him, this conduct of the defendant, consistently with the facts requisite to sustain the charge against him, if the inference was not premitted that she was so subject to his influence as to render his imperative direction in that respect effectual upon her, or that she was restrained from so doing by the fear of the consequences of his threats, or both. She says that this injunction of silence on the subject was imposed upon her, and threats of the consequences which she otherwise would suffer were made on each of the occasions referred to. As hearing upon the question as to the effect of her delay in making the disclosures, the jury could also properly take into consideration the youth and inexperience of the plaintiff. They have found that her evidence had the support of her credibility; and having so found, the jury were at liberty to determine the questions of fact, as they did, against the defendant; The rule in criminal cases the the jury must, by evidence, be satisfied beyond a reasonable doubt of the guilt of the party charged with offense, has no application to this case. The preponderance of evidence is sufficient to support the action. People v. Briggs, 114 N. Y. 56; 22 St. Rep., 317. The court, having charged substantially the propositions embraced in some of the requests to charge, was not required to repeat them, and there was no error in his refusal to change its phraseology as requested. fSTor was there any error in the refusal to charge as requested upon the subject of threats. There was no evidence of threats of the defendant to cause the plaintiff to submit to his connection with her. While the failure of the plaintiff to make any outcry may have been regarded by the jury as a potent fact against her, there was no error in the refusal of the court to charge that in such case she could not recover unless she was pre vented by fear of personal violence. This was a question for the jury, and it was submitted to them. There seems to have been no error in the rulings at the trial. The judgment and order should be affirmed.


text:
    Henry B. Hondorf, Resp’t, v. Silas Atwater et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Mechanic’s lien—Assignment.
    An assignment by a contractor of his interest in the contract is ineffectual as against a lien for materials previously filed.
    2. Same—Pleadings and pkoof.
    The admission of proof, without objection, in support of a claim does not dispense with the necessity of alleging it in the answer.
    3. Same—Amendment.
    Such allegation cannot be added by amendment on appeal.
    Appeal from a judgment in favor of some of the defendants.

      John J. Snell, for appl’ts; James M. K O' Grady for resp’ts.
   Bradley, J.

The controversy is mainly between Atwater, Armstrong & Clarke, the appellants, and Maher & Glasgow, the respondents. The assignment made to the appellants by Evans & Grant of their interest in the claim transferred to them by Hondorf was effectual as against any lien subsequently filed. Stevens v. Ogden, 130 N. Y. 182 ; 41 St. Rep. 331. The subject of inquiry is, (1) what was the amount of such interest of Evans & Grant at the time of the assignment? (2) Was it made prior to the time the respondents’ lien was filed ? It appears by this evidence, and the court found, that at the time of the transfer by Hondorf to Evan & Grant, in July, 1891, he owed them $1,421.-97 ; that he then made to them two assignments of claims on account of such indebtedness; one of them was that before mentioned ; that the sum of $800 was allowed to them on the other assignment in an action having relation to it; and that, before they made the transfer to the appellants, the Sibley trustees had paid to Evans &'Grant the sum of $400, embraced in the claim so assigned by Hondorf to them, leaving only $221.97 of his indebtedness to them unpaid. The consequence was that the last mentioned sum was the extent of their interest in the claim so assigned to the appellants at the time it was made.

Whether or not the transfer to the appellants was made before the lien of the respondents was filed, was, upon the trial, a controverted question of fact. The court found that the lien was filed prior to the time of the transfer, and such finding has the support of evidence. These facts support the conclusion of the court, unless there is some further cause to overcome or modify the effect given to them. It appears that in July, 1891, the appellants filed a mechanic’s lien upon the premises; and the question is whether it is available to them in this action. They may have relied upon the transfer to them by Evans & Grant, This they alleged. They did not make the lien a matter of allegation or of claim for relief in their answer ; but it is alleged by their counsel that, as the fact was proved on the trial without objection, it should be treated as effectual as if it had been setup in their pleading. The statute provides that all persons who have filed notice of such lien “ shall by answer in such action set forth the same, and the courts in which the action is brought may settle and determine the equities of all the parties thereto,” etc. Laws 1885, c. 342, § 17. While the court found that the appellants filed a mechanic’s lien in July, 1891, he added that they do not claim herein under that lien,” and the appellants excepted. The answer of a defendant alleging a claim founded upon a lien under the statute sets forth a cause of action in his behalf, and upon it affirmative relief is sought. The appellants did not ask to amend on the trial, and, if they had, it is quite questionable whether it could have been allowed, in the discretion of the court, against the objection of any of the other parties, so as to set up their lien. It may be done at the trial to conform the pleading to the facts proved where the amendment does not change substantially the claim or defense. Code, § 723. The amendment now suggested would have been a substantial change of the pleading. It would' have constituted a different defense or cause of action in behalf of those defendants from that alleged in their answer. It cannot now be assumed that the other parties would not have objected to it if application to amend the answer had been made there. If the court had disregarded the failure to allege the appellants’ lien in their answer, and given them the benefit of it by the decision upon the merits, a different question than is now here might have been presented. Barnes v. Perine, 12 N. Y. 18, 24; Field v. Mayor, etc., 6 N. Y. 179 ; Voorhees v. Burchard, 55 N. Y. 98. The amendment cannot be made upon this review. Nor can it be said that the trial court erred in not disregarding the omission of those defendants to allege their lien. Storrs v. Flint, 46 N. Y. Supr. Ct. 498, 519; Southwick v. First Nat. Bank, 84 N. Y. 420. It may be observed that, although it does not appear by the record that objection was taken to the introduction of the appellants’ notice of lien in evidence, their offer to prove, in that connection, the indebtedness represented in it, appears to have been objected to at the trial. The trial court may have deemed this matter of defense and claim as waived by the failure of those defendants to plead it. Center v. Weed, 63 Hun, 560; 44 St. Rep. 463. These views render it unnecessary to consider any other question.

The judgment should be affirmed.

All concur.