author: Barnard, d.:

text:
    SAMUEL MERWIN, Appellant, v. THE STAR FIRE INSURANCE COMPANY, Respondent.

      Policy of insurance — issued in name of owner, loss payable to mortgagee — mortgagee cannot recover, when owner cannot — Warranty, breach of— Truth of representation, not knowledge of fact represented, essential.

    Where a policy is taken out by a mortgagee in the name of the owner, who pays the premiums, and with his assent, loss payable to such mortgagee, on premises supposed by the applicant and represented to be used as a dwelling-house, but actually at the time, and up to the date of the loss, which occurred by fire communicated from adjoining property, leased by the owner to parties who occupied the cellar for the storage of articles, which by the terms of the policy it was declared should cause it to cease and be of no further effect, if such articles were stored there during its continuance:

      Held, that the policy was void at the very date of its inception; that all representations which affect the risk are warranties, and it is immaterial, as to the effect of this warranty, that the applicant did not know that the house was occupied except as a dwelling-house; the truth of the representations, not the knowledge of the fact represented, is the condition precedent to its validity.

      Held, also, that the policy was issued to the owner, and the fact that the loss was made payable to the mortgagee, gave him no greater right than the owner would have had were he seeking to enforce it. It was the owner’s loss, payable to the plaintiff as mortgagee.

      Held, further, that under the uncontradicted evidence in the case as to the use of the premises, no verdict that the house was used as a dwelling-house would be permitted to stand, and in such case the rule is well settled that the court may properly order a dismissal of the complaint.
    Appeal from a judgment entered in favor of the defendant against the plaintiff, on the direction of the court to the jury, to find a verdict for the defendant.

      Ira D. Warren, for the appellant.

      Osborn E. Bright, for the respondent.
   Barnard, d.:

I think this ease was properly disposed of at the Circuit. There was no dispute as to the facts on which the decision was made. A Mr. McMurray was the owner of a lot of land in Brooklyn, on which there was a brick house. The plaintiff hold a mortgage on the property for $2,000. George W. Mead, an agent of the plaintiff, applied to the defendant to insure the house on the premises. An insurance was effected. Mead stated in his application that the house was used as a dwelling-house, and it was insured as such and is so described in the policy. The policy was given to insure McMurray against loss by fire on this house, such loss being made payable by the terms of the policy to Samuel Merwin, mortgagee. This policy was taken out with the assent of McMurray, and he paid the premiums upon it. Neither Mead or defendant knew at the time of the issuing of the policy that it was occupied in any ' other way than as a dwelling. McMurray was informed the year preceding, of the use to which part of it was to be put. The policy contains this clause: If during this insurance the above mentioned premises shall be nsed for any trade, business or vocation, or for storing, using or vending therein, any of the articles, goods or merchandise denominated hazardous, or extra hazardous, or specially hazardous, in the second class of hazards printed on the back of this policy. * * * This policy shall cease and be of no force or effect.” In the class of hazards referred to in this clause “ hay, and straw pressed in bundles,” and basket selling, are termed extra hazardous, and stocks of willow-ware, specially hazardous. The policy was taken out March 7th, 1874, and was for one year.

The house was consumed by fire during the year, the fire being communicated from adjoining premises. In the spring of 1873 McMurray leased the property to William and Charles Bishoff; these men were basket makers. From the spring of 1873 until the time of the fire these men had a large stock of willow, for the purpose of being manufactured into willow baskets. This stock was kept in the cellar of the house; it was very dry and inflammable. Seven men, the two Bishoffs and five employes, were constantly engaged in the cellar, in the manufacture of baskets. The baskets would, after they were finished, remain in the cellar until they were sold, or while a sufficient number was made with which to fill large orders. In the sub-cellar the Messrs. Bishoff kept a horse; bought the hay for its use in bundles, which were deposited in the sub-cellar until needed for use. Upon this state of facts the court dismissed the complaint.

The policy was issued to MeMurray, the owner; and the fact that the loss was made payable to the mortgagee, gave him no greater right than MeMurray would have, were he seeking to enforce this policy. It is McMurray’s loss, paid to plaintiff, a mortgagee. Neither of the cases cited sustain a contrary opinion. In Trader's Insurance Company v. Robert (9 Wend., 404) it was held that mortgagor and mortgagee could each insure, independently of the other. In Tillou v. Kingston Mutual Insurance Co. (1 Seld., 405) it was held that a transfer by one partner to his copartner of his interest in the insured property did not affect the rights of an assignee, who took the policy with the assent of the company before the transfer. The policy was void at the very date of its issue. All representations which affect the risk are warranties. This principle has been repeatedly applied to the very words of the representation proved in this case. A description of the property insured as a “dwelling-house,” in the policy itself, constitutes a warranty. (Burritt v. Saratoga Fire Insurance Company, 5 Hill, 188; Jennings v. Chenango Mutual Fire Ins. Co., 2 Den., 75; Lappin v. Charter Oak Fire Ins. Co., 58 Barb., 325; Wall v. Fast River Ins. Co., 3 Seld., 370.)

The same principle is approved in Bryce v. Lorillard, Fire Ins. Co. (55 N. Y., 240), where it was decided that a description of a place of deposit in an application for an insurance on personal property, was a warranty, the truth of which is a condition precedent to any liability thereon. (See, also, Parmelee v. Hoffman Fire Ins. Co., 54 N. Y., 193.)

It is immaterial as to the effect of this warranty, that Mead did not know that the house was occupied, except as a dwelling. The truth of the representation is a condition precedent to the validity of the policy, and not Mead’s knowledge of the fact represented. Under the uncontradicted evidence in this case as to the use of the premises, no verdict that the house was used as a dwelling-house only, would be permitted to stand; and in such case the rule is well settled, the court may properly order a dismissal of the complaint.

The policy became void, after its issue, by the continued use of the building as a basket manufactory, with the large stock of baskets almost constantly kept there.

The clause cited from the policy had the effect to make the condition annexed thereto part of the contract. (Murdock v. Chenango County Fire Ins. Co., 2 Comst., 210.)

As the breach of the warranty seems to be fatal, it is needless to discuss this question.

Judgment affirmed, with costs.

D teman, J., concurréd.

Present — Barnard, P. J., Gilbert and Dykmmn, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Barnard, J.:

license: Public Domain

text:
    MARY E. DENHAM and others, Appellants, v. MARK CORNELL, Impleaded with others, Respondents.

      Beal estate — Bquitáble conversion into personal — Money paid into court.

    Money paid into court, the proceeds of real property sold by direction of the court, and with the consent of the owner, a married woman, is to be considered personalty as between her heirs at law and personal representatives, provided such owner be an adult and of sound and disposing mind.
    Appeal from a judgment, entered upon the report of a referee dismissing a complaint on the merits.
    The plaintiffs, her heirs at law, were substituted in the place of Maria Jane Cornell who died intestate January 25, 1872.
    The referee held, among other things, that the subject-matter of this action was personal and not real property, and that the husband, and not the plaintiffs, the heirs at law of Maria Jane Cornell, was entitled to the same.

      Wm. Peet, for the appellants.

      I. T. Williams, for the respondent Mark Cornell.
   Barnard, J.:

The finding of the referee, that Mrs. Cornell voluntarily executed and delivered the deed to Stewart, is fully sustained by the evidence. The parcel of land which occasioned the present controversy was originally owned by Mary Jane Cornell, a married woman. There was a mortgage upon it which had been foreclosed, the foreclosure action passing into a decree in February, 1869. At the sale under the decree, Mark Cornell bid in the property in his own name. He directed the sheriff who made the sale to make out the deed to one Hopper. Hopper, at the request of Mark Cornell, executed a mortgage on the property to'one Purdy for $3,000. This $3,000, and something less than $500 paid by Mark Cornell himself, paid the mortgage, which was foreclosed, with costs. Hopper then, at the request of Mark Cornell, deeded the property to Jayne and Mercer, two of the defendants, subject to the mortgage. Jayne and Mercer executed a declaration in trust that they held the same in trust; first, to secure John Denham for advances made to Mark Cornell and Mary Jane, his wife; and, second, to hold the same to the use and benefit of Mark Cornell; and to convey the same to whomsoever Mark Cornell should direct.

In May, 1871, Mark Cornell agreed to sell the property to A. T. Stewart for $14,000, and directed the trustees to convey to Stewart. Mark Cornell’s proceedings were fraudulent as to his wife. He had taken her money, $500, to stop the foreclosure, and had agreed to do it, instead of which he had taken the title in- his own name. Mary Jane Cornell, before the execution of the deed to Stewart, commenced this action to set aside and have herself decreed the beneficiary, and to compel a conveyance by Jayne and Mercer to herself. She obtained an order to show cause why an injunction restraining the completion of the sale to Stewart should not be granted. On the 19th of June, 1871, the motion for an injunction came on at Special Term; no order was entered thereon until August 3, 1871.

The motion resulted in an order, entered by the plaintiff Mary Jane Cornell, that the sale should be completed. That out of the proceeds of sale the sum called for by the declaration of trust should be paid by Jayne and Mercer; and that “the balance of the purchase money” be paid into court to abide the result of her action.” The order also provided that Mary Jane Cornell should give a deed to Stuart. The order directed the discontinuance of the action as to all the defendants, except plaintiff’s husband, upon such payment. This order was an eminently proper one, under the circumstances, and seems to have been made with the entire concurrence of all parties.

Mary Jane Cornell had received the benefits of the Purdy mortgage, and she acknowledged the advance by Denham. The price was ample. On the 1st of August, 1871, the money was paid into court; and, on the same day, Mary Jane Cornell executed and delivered a deed to A. T. Stewart in aid of Jayne and Mercer’s deed as trustees. She died before the action was decided, and her husband and her administrator both claim the proceeds. The plaintiff Mary Jane Cornell converted the land into money in her lifetime. There was neither fraud, duress, or coercion. She consented that the land be sold, entered her own order for that purpose; substituted the purchase money left, after paying her admitted debts, to abide the result. She subsequently ratified her order by giving the deed. So far as I-can discover, there is no case which does not hold that a voluntary change of land into money by an adult owner renders the proceeds personal property.

In Graham v. Dickinson (3 Barb. Ch., 169) it was held that where the real estate of a married woman was converted into personalty by operation of law during her lifetime, it should be disposed of in the same manner as if she had converted it.

In Bogart v. Furman (10 Paige, 496), it was held that the proceeds of a mortgage sale must be distributed as real estate, as to the interest of the owners of the equity.

In Bogert v. Hertell (4 Hill, 492), it was held that where the land was converted for a specific purpose it must, as to the purpose designated, be considered money and not land. In Horton v. McCoy (47 N. Y., 21), it was held that the proceeds of land, sold under a power, of sale contained in a will, were personal property. It was also held that the proceeds of a sale in partition was rea estate, as to an infant defendant, in analogy to the statute in reference to the sale of infant lands.

There are many other cases bearing upon the question of equitable conversion of land into money and money into land. I think it may safely be assumed that it is a doctrine fully established, that property takes the form into which it is turned by its owner,, if such owner be an adult and of sound and disposing mind. Living such intention is manifested by an actual change of form, deceased persons may convert by will directing the change. Whatever is directed to be done by will the courts hold to be done, and the distribution is made on this principle.

The moneys in question must be distributed among the next of kin, and not among the heirs at law. The husband of the deceased plaintiff is entitled to the moneys in this case as husband. Judgment affirmed with costs.

Dykman, J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed with costs.


author: Barnard, J. :

text:
    HYMAN SCHNITZER, Appellant, v. JOSEPH COHEN, ISAAC FRANKLIN and another, Respondents.

      Demurrer — improper joinder of causes of action — Gode, § 167.
    A simple contract creditor cannot maintain an action against the debtor and his fraudulent assignee, asking judgment against his debtor, and also to have the assignment declared void and the debt paid out of the proceeds of the assigned property.

      Phillips v. Gorham (17 N. Y., 270) distinguished.
    Appeal from an order'made at Special Term sustaining a demurrer to the complaint.

      Smith Tuttle for the appellant.

      Isaac I. Egbert for respondent Cohen.

      Charles I. Schampain for respondent Franklin.
   Barnard, J. :

The question presented in this case arises upon demurrer. The plaintiff, a creditor at large of the defendant Cohen, avers in his complaint an indebtedness by Cohen to him of $1,203.05 for goods sold and money paid. The complaint further avers that Cohen, before the commencement of this action, for the purpose of cheating and defrauding the plaintiff) secretly removed goods from his store and concealed them with John Doe, a person whose name is unknown, in an unknown place. The complaint further states that, just before the commencement of this action, Cohen delivered a note to defendant Franklin for $800 fraudulently, and without any consideration, the object and design being to cheat Cohen’s creditors; that Franklin, upon such note, obtained judgment by default against the defendant Cohen in the Marine Court of the city of New York upon service of'process, outside of the jurisdiction of the court, and that the sheriff of Kings county had sold, under an execution issued upon the judgment, all the remaining stock of goods in Cohen’s store. The plaintiff asks judgment against Cohen for his debt. He further asks to set aside the judgment as fraudulent and void, and that the moneys in the sheriff’s hands be paid him upon the judgment to be recovered by plaintiff in this action ; and he further asks a receiver for all Cohen’s property secretly concealed or fraudulently sold. To this complaint the defendants Cohen and Franklin separately interpose a demurrer for the reasons that several causes of action have been improperly united.

The demurrer was sustained at Special Term as. to each defendant. This is not what is or was known as a creditor’s bill. Such an action cannot be sustained by a creditor at large. (Dunlevy v. Tallmadge, 32 N. Y., 457.)

A judgment creditor, even, cannot have an action to enforce his claim against the equitable interests of the debtor, until after the issue and return of an execution against the property of the debtor. (Same case.)

What then is this action ? Is there more than one cause of action set forth in the complaint ? If two or more causes of action are set forth, are they such as maybe joined in one complaint? In. the first place the complaint sets forth a full and complete statement of a debt against one defendant, and asks for its recovery. As to this Cohen can deny, plead payment, counter-claim or offset. Neither of the other defendants have any answer to make, and are not affected by the result of any trial upon the issue thus to be raised. Franklin and Cohen have an answer to make to the charge of fraud in obtaining the judgment in the Marine Court. The defendant Doe is not affected by this possible issue. The first of these issues will go to a jury for trial. The second (unless issues are framed) will go to a Special Term for trial. One may result in a money verdict, the other in a decree setting aside a judgment for fraud. There are then two causes of action, one legal and one equitable. One offsets Cohen alone, and the other offsets Franklin and Cohen. Assuming that the plaintiff can maintain an action without a judgment, and without the return of an execution upon it, which he could not do if he was a judgment creditor seeking to set aside a transfer of an alleged debtor’s property as fraudulently made (Dunlevy v. Tallmadge, supra), are the causes of action such as may be joined ?

A simple contract creditor cannot maintain an action against the debtor and his fraudulent assignee, to have the assignment declared void and the debt paid. (Reubens v. Joel, 18 N. Y., 488.)

This case is not weakened by the case of Phillips v. Gorham (17 N. Y., 270). In Phillips v. Gorham, an heir at law sued an occupant of lands'which descended to him as heir, and in his complaint he averred that the defendant held a deed for the land, fraudulently obtained by him from the plaintiff’s father. No objection was taken by demurrer, but after the case had been tried on the merits, the defendant’s counsel requested the court to charge the jury that plaintiff must have procured a. judgment, declaring void the deed, before the action of ejectment could be commenced. This request was refused, and the refusal was held not to be error.

This complaint asks different things, and not the same thing on legal and equitable grounds. It is not sustained by subdivision 1 of section 167 of the Code.

The causes of action do not grow out of the same transaction, or transactions connected with the same subject of action.

The sale of the goods was complete in itself, and had no legal connection with a subsequent transfer of a debtor’s property to defraud his creditors. Neither do the causes of action united, offset all the parties, as we have seen. I think the order appealed from should be affirmed, with costs.

Dykman, J., concurred.

Present — Barnard, P. J., and Dykman, J. Gilbert, J., not sitting.

Order sustaining demurrer affirmed, with costs and disbursements.


author: Dykman, J.:

text:
    The PEOPLE ex rel. ROBERT BURROUGHS and others, Respondents, v. JOHN H. BRINCKERHOFF and others, Appellants.

      Statutes — •permissive and mandatory — Mandamus — when may issue — majority vote of supervisors — •construction of § 2, chap. 855, Laws of 1869, and chap. 285 Laws of 1872.
    Although a statute is in terms permissive aud not mandatory, yet if the power granted is conferred for public purposes, it imposes a duty to exercise the power whenever the public interests require, and a mandamus may issue to compel the exercise thereof.
    Where four out of seven supervisors of Queens county, voted in favor of and three voted against the granting of a petition to authorize the borrowing of money upon the credit of the town of Newtown, for the purpose of the purchase, for public use, and improvement of a portion of the Jamaica plank-road, presented under chapter 285 of the Laws of 1872, and the chairman declared the resolution lost on the ground that it required a two-third vote under section 2, chapter 855 of the Laws of 1869, and nothing further was done by the board; held, that the latter act did not apply to the case; and a mandamus should issue, requiring the supervisors either to meet and act upon the petition, or direct their chairman to declare the former resolution passed.
    Appeal from an order granting a mandamus.
    In May, 1875, the relators, pursuant to chapter 285 of the Laws of 1872, presented a petition to the board of supervisors of Queens county, to borrow a sum not exceeding $60,000 upon the credit of the town of Newtown, in order “ to purchase for public use, and improve,” a portion of the Newtown and Jamaica plank-road.
    When the resolution came before the board of supervisors, four out of the seven voted in favor of and three against it. The chairman of the hoard declared the resolution lost, as under section 2 oí chapter 855 of the Laws of 1869, a two-third vote was required. And upon an appeal being taken, the decision of the chair was sustained.
    After the lapse of six months, the chairman and clerk of the supervisors were required to show cause why a mandamus should not issue, requiring the chairman to declare the resolution adopted, and the clerk to so record it.
    Judge Gilbert directed a mandamus to issue, commanding the supervisors to meet and act upon the petition, or direct their chairman to declare the former resolution as having been passed.
    The chairman and clerk have appealed.
    The following is the opinion of Mr. Justice Gilbert at Special Term, referred to in the opinion of Dtkman, J., below :
    Gilbert, J.:
    I think a majority vote is all that is necessary to a valid exercise of the power, conferred by chapter 285 of the Laws of 1872. The objects stated in the petition to the board of supervisors are the purchase and improvement, for public use, of a plank-road. These objects are specifically mentioned in the act of 1872. They can only be impliedly embraced, if at all, in the act (chap. 855) of 1869. The requirement of a two-third vote in section 2 of the latter act, applies only to the cases referred to in sections 1 and 2 of that act. The case made by the petition does not fall within either of these sections, but is only provided for by the act of 1872. Both statutes are in terms permissive, and not mandatory. But the power granted was conferred for public purposes. They impose a duty to exercise the power whenever the public interests require it. (51 N. Y., 401.)
    A mandamus must issue, commanding the supervisors to meet and act upon the petition, or direct their chairman to declare the former resolution thereon as having been passed.

      John J. Armstrong, for the appellants.

      Prince c& Gibson, for the respondents.
   Dykman, J.:

The proceedings in this action are taken under, and in pursuance of chapter 285 of the Laws of 1872. The objects stated in the petition to the board of supervisors are specifically provided for in the act of 1872, and that act does not require a two-thirds vote. The law of 1869 has no application to this case. The opinion of J udge Gilbert is entirely satisfactory to us, and the ground need not be gone over. The order granting the mandamus must be affirmed with costs.

. Present — Barnard, P. J., and Dteman, J. Gilbert, J., not sitting.

Order affirmed with costs and disbursements.


text:
    ALONZO H. GALE, Plaintiff, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Defendant.

      Railroad ticket — ‘ ‘ good for this day and train only ” — rights of passenger under.

    A. party who purchases a ticket, bearing on its face the words “ good for this day and train only,” and dated of the day issued, can select any train on that day he desires, to ride from and to the places stated, but has no right to ride part of the way on one train, and the residue on another train ; and if he attempts so to do an action will not lie against a company for the act of the conductor in putting him oif the second train.
    Exceptions, taken to a dismissal of the plaintiff’s complaint at the Circuit, ordered to be heard in the first instance at the General Term.
    On the 27th of January, 187J, at Summit, in New Jersey, the plaintiff purchased a ticket for a passage over the defendant’s railroad from Summit to New York. The ticket bore upon its face these words: “ Good for this day and train only,” and was dated January twenty-seventh. On that day the plaintiff got upon one of defendant’s trains at Summit, and began his passage to New York, riding as far as a station called Orange Junction,'where, for his own convenience, he stepped off. Between Summit and Orange Junction his ticket had been “ punched ” by the conductor. Later in the day the plaintiff got upon another train of the defendant, at Newark, to complete his journey to New York. He offered the conductor his punched ticket. The conductor said it was not good, as it had been used, and that plaintiff must pay his fare. Plaintiff refused to do so. Thereupon the conductor stopped the train and put the plaintiff off, “ he resisting all the way.”
    Hpon these facts Judge Pratt, at Circuit, dismissed the complaint, and ordered the plaintiff’s exception to be heard in the first instance at the General Term.

      W. Henry Gale and Theo. F. Melvin, for the plaintiff,
    cite: Pier v. Finch (24 Barb., 514-516); Palmer y. Charlotte, etc., C. P. P. Co. (3 So. Car. [N. S.], 580); B. O. P. P. Co. v. Blocher (27 Maryland, 277); Townsend y. N. Y. C. and H. P. R. P. Go. (4 Hun, 219); Dana y. Munro (38 Barb., 528); Fullerton v. Dalton (58 id., 236); Pawson y. P. P. P. Go. (48 N. Y., 212); Quimby y. Vanderbilt (17 id., 306); Fevi/ns y. B. S. S. Go. (4 Bosw., 234).

      Hamilton Odell, for the defendant,
    cites: Ba/rlter v. F. Y. Q. P. P. Co. (24 N. Y., 599); Van Buslcirlc v. Roberts (31 id., 666) ; Sears v. Eastern Go. (14 All., 436); Dietrich y. Penn. Go. (71 Pa., 432); Elmore v. Sands (54 N. Y., 512); Boice v. II. P. P. Go. (61 Barb., 511); O'Brien y.B. and W. Go. (15 Gray, 20); B. and L. y. Prootor (1 All., 267); Beébe v. Ayres (28 Barb., 275); Barlcer v. Ooffin (31 id., 556); Shedd y. B. and T. Go. (40 Yt, 88); McGlure v. P., W. and B. Co. (34 Md. 532); Churchill y. G. and A. Go. (111.) (3 Am. Railway Rep., 433); Pier v. Finch (24 Barb., 516, 517); Hamilton y. F. Y. Gent. (51 N. Y., 104).
   Dykman, J.:

The defendant operates a railroad from Summit, in the State of New Jersey, to Jersey City. On the 27th day of January, 1874, the plaintiff purchased a ticket of the defendant’s agent at Summit for a passage over the defendant’s railroad from that place to New York city. The date, January 27, 1874, was stamped on the ticket, and with other printed matter on the ticket were these words: “ Good for this day and train only.” For this ticket the plaintiff paid fifty-five cents. After he had procured the ticket he took a seat in one of the defendant’s trains, which left Summit at 8.10 o’clock in the morning of the same day, and rode on that train to a place called Orange Junction.

Between Summit and Orange Junction the conductor of the train had taken the plaintiff’s ticket and punched it, and handed it back to him, and he kept it in his possession. At Orange Junction the plaintiff left the train voluntarily, and went by other conveyance to Newark on the line of defendant’s road. At Newark the plaintiff got on another train of cars of defendant, which was proceeding to New York on the same day, for the purpose of continuing his journey, and offered the conductor of this train this same ticket which had been punched by the conductor of the former Wain. The conductor refused to receive it on the ground that it had been used, and demanded payment of the plaintiff’s fare; the plaintiff refused to pay and was put off of the train, and has brought this action to recover his damages.

The better opinion in this State seems to be that a railroad ticket is a token or voucher, showing that the passenger had paid his fare and is entitled to a passage as thei’eon indicated. (Elmore v. Sands, 54 N. Y., 515, and cases there cited.) In this case, it makes no difference whether we coxxsider the ticket as evidencing the conWact or as a token. In either case the plaintiff, on the purchase of the ticket, became entitled to a passage over the defendant’s road from Summit to New York at any time during the day which was stamped on the ticket, and on any one of the defendant’s Wains that were going, which he might select. This right resixlted to the plaintiff from the teirns of the ticket; he was restricted to no pax’ticular Wain. He had a right to x’ide, and the defendant was bound to carry him over its road from Summit to New York, at any time on the 27th day of January, 1874, on any train he might select.

This being the l-espective rights and obligations of the parties when the plaintiff got on the train that left Summit at 8.10 o’clock in the forenoon, he made his selection and started on his journey; the defendant was then bound to carry hixn by that train, and no other, and the plaintiff had a right to ride by that train, and no other.

There is no case in our State precisely like this, but there arc several cases which hold substantially the doctrine, above laid down. (Pier v. Finch, 21 Barb., 516; Beebe v. Ayres, 28 id., 275; Elmore v. Sands, 51 N. Y., 515.)

After the plaintiff had commenced his journey on the train which he elected to take, he had the legal right to be carried to New York by that train, and the company was under legal obligations to carry him by that train. This right was reciprocal, that is, the defendant had a legal right to insist that the plaintiff’s journey should be continued until it was completed, and that it should not be required to perform in fragments. From this examination it results that the plaintiff had no right to require the defendant to carry him from Newark to New York, on the same ticket on which he had ridden to Orange Junction, and the conductor was justified in ejecting him from the train when he refused to pay his fare.

The judgment must be affirmed, with costs.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Exceptions overruled, and judgment for defendant, with costs.


author: Gilbert, J.

text:
    C. H. BRONSON, Respondent, v. NICHOLAS HOFFMAN, Appellant.

      Party practising medicine without license, can recover the value of his services — Buie “ no cure no pay ” governs only where there is such an express agreement — Bill rendered— when not conclusive.

    Appeal from a judgment in favor of the plaintiff, entered upon the report of a referee.
    The plaintiff sued to recover the sum of fifty-four dollars, balance due for medical services rendered to the defendant in attending his minor child between October 1st and December 1st, 1869.
    At the time of the plaintiff’s employment he was attending lectures at a homoeopathic medical college, and was not yet licensed to practice, which facts were then known to defendant, who had previously employed him for himself — in a case of inflammatory rheumatism. The defendant also knew that plaintiff was a homoeopath ist.
    The plaintiff having treated the patient, the defendant’s minor child, for two months, defendant became dissatisfied, dismissed the plaintiff and employed an allopathist. The plaintiff presented his bill, charging one-half the usual fee of two dollars per visit for thirty-seven visits —thirty-seven dollars. The defendant objected to the bill, paid twenty dollars and refused to pay the balance.
    The court at General Term say: “The plaintiff was entitled to recover the value of liis services, notwithstanding he had received no license to practice. (Bailey v. Mogg, 4 Den., 60; White v. Carroll, 42 N. Y., 161.) That value was proved to be two dollars a visit. The fact that they were not beneficial to the defendant, or were unsuccessful in curing his child, is no defense. The rule “ no cure no pay ” governs only where there is an express agreement to that effect. Nor was the bill rendered by the plaintiff, conclusive upon him. {Williams v. Olenny, 16 N. Y., 389.)
    The delivery of the bill together with a payment on account of it without objection, would have shown such mutual assent as to give to the transaction the legal effect of an account stated. But the defendant testified that when he made the payment he objected to the bill.”

      R. F. Waring, for the appellant. R. R. Chittenden, for the respondent.
   Opinion by

Gilbert, J.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Judgment affirmed, with costs.


text:
    ZIPPORAH D. JACQUES, Respondent, v. JAMES H. ELMORE, Executor of, etc., of LYDIA J. CARLE, Deceased, Appellant.

      Executor — proof of claim against estate by — Code, § 899 — Costs— discreMonarry — _ when not allowed, not chargeable against estate.

    Appeal by an executor from a decree of the surrogate of Kings county, entered on an accounting by James H. Elmore, as executor of Lydia J. Carle, deceased.
    The testatrix, at the time of her death, held a promissory note for $4,000 and upward, theretofore given to her by her executor. This note was inserted in the executor’s inventory of the estate left by the testatrix, at its full amount. No indorsements appear on it. Upon the accounting the executor claimed to be allowed payments on this note, although he produced no vouchers showing such payments, and gave no direct evidence respecting them besides his own testimony. The statute (2 R. S., 88, § 33) provides that “ no part of the property of the deceased shall be retained by an executor or administrator in satisfaction of his own debt or claim until it shall have been proved to and allowed by the surrogate.” The executor claimed to be allowed a bill for $419.86, costs and expenses incurred by him on an appeal from a previous decree made in this matter. The court at General Term say: “ The proof relied on here is, that the testatrix, from time to time, received money from the executor, and that such receipts, together with the dividends which accrued on some railroad stock, constituted her only sources of income. Such evidence falls short of the proof which the statute and the general rule .of law require. The fact that the testatrix had no other sources of income than those referred to, rests upon the testimony of the executor alone. The inference sought to be drawn from it is payment, but the executor was not a competent witness to prove payment. (Code, § 399.) A fact that could not be proved by him directly, cannot be established inferentially by his testimony. (Grey v. Grey, 47 N. Y., 554; MeCotter v. Lawrence, 4 Hun, 107; Johnson v. Spies, 5 id., 468; see, also, Knight t. Ownnington, 6 id., 100.) * * * We know of no principle
    which warrants an allowance of the costs incurred by the executor on the appeal from the former decree. Whether costs should be allowed rested in the discretion of the appellate courts, and none having been allowed by them, they are not properly chargeable against the estate.”

      K. More, for the appellant. John D. Pray, for the respondent.
   Opinion by

Gilbert, J.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Decree of surrogate affirmed, with costs.


text:
    JOHN M. STEARNS, Respondent, v. VERONICA WELSH, Appellant.

      Sale under foreclosure — adjournment of — advertisement—Motion to set aside sale, because of failure to — must be addressed to discretion of court — Mule 74
    Appeal from an order made at a Special Term, denying the defendant’s motion to set aside the sale of the premises, described in the decree of foreclosure in the above action, on the ground of failure or omission of the referee to advertise said sale, and tlie adjournment thereof, as required by la,w and the rules and practice of this court.
    The court at General Term say : “ Rule 74 does not require the publication of adjournments. The adjournment may be for a time so short as not to allow any publication to be made, in which case none clearly could be made. If it be for a longer period, then, whether any publication thereof should have been made, or whether the one actually made was sufficient, must depend on the circumstances of each particular case. The omission of publication in any case does not entitle any person, as matter of legal right, to avoid the sale. An application for that purpose must be addressed to the discretion of the court to be exercised in furtherance of justice. As the application in this case was made solely upon the ground of irregularity, we think it was properly denied.”

      G. G. Egan, for the appellant. J. Milton Stearns, Jr., for the respondent.
   Opinion by

Gilbert, J.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order affirmed, with costs and disbursements.


author: Gilbeet, J.

text:
    P. F. HUGHES, Appellant, v. THE VERMONT COPPER MINING COMPANY, Respondent.

      Inconsistent remedies, not permitted — Action against corporation for conversion of stock — inconsistent with action to recover dividends subsequently declared on the stock.

    Appeal from a judgment in favor of the defendant, entered on the decision of the justice at a Special Term. The action was for dividends declared by the defendant, a corporation located in Vermont, on shares of its stock formerly owned by F. Cutting and J. E. Smith. While the stocks were owned by them, the company, holding the meetings out of that State, assessed the stocks, and sold them on the assessments, for non-payment- thereof. The plaintiff in this action was the assignee of one Orinsby, who was the assignee of F. Cutting and J. Smith. Before the assignment by Orinsby to the plaintiff, and before the dividends sued for were declared, he (Ormsby) brought an action against the company for conversion of the stock.
    The court at General Term say: “Although the sale of the stock of Cutting and Smith was illegal, yet, as the corporation had fully ratified the transfer thereof to the purchaser at such sale, such transfer, coupled with the subsequent refusal by the corporation to recognize Ormsby, the plaintiff’s assignor, who had succeeded to the rights of Cutting and Smith, as owner of the stock, and to pay him the dividends thereon, were unequivocal acts of conversion and subjected the corporation to an action by Ormsby to recover the damages consequent thereon, or to a suit in equity to compel the corporation to accord to him the rights and privileges of a stockholder, and to pay him the dividends which had accrued upon the stock. It appears that Ormsby elected to pursue the former remedy, and brought an action of trover to recover the damages which lie had sustained by reason of the conversion. That remedy is entirely inconsistent with the claim made in this suit to be paid the dividends which have accrued on the stock. One proceeds on the ground that he has been illegally divested of the stock, while the other rests upon the allegation that he owned it until lie assigned it, and that his assignee still owns it. A party cannot be permitted thus to seek inconsistent remedies. Tie must elect to pursue one or the other of them. The bringing of the action of trover was an election of that remedy, and forever precluded a resort to the other. (Coin. Dig-., Election, 62; Fireman) s Ins. Co. v. Lawrence, 14 Johns., 55 ; Morris v. Rexford, 18 N. Y., 552; Rodermwid v. Clark, 46 id., 354; Goss v. Mather, id., 689.) The plaintiff being the assignee of Ormsby stands in his shoes. The doctrine of election of remedies, as applied to the facts of this case, is plainly equitable and just. It appears that Ormsby’s action of trover is still pending. The same evidence which would entitle him to a recovery in that action, would also entitle his assignee to recover in this; hence, if both remedies should be tolerated, there might be a double recovery, namely, in one action for the value of tlie stock at tlie time of the conversion, with the interest thereon, and in tbe other for the dividends which represent the interest on the value of the stock.

      li. K. MeOrmsby, for the appellant. Moses Ely, for the respondent.
   Opinion by

Gilbeet, J.

Present — Barnard, P. J, Gilbeet and Dykman, JJ.

Judgment affirmed, with costs.


text:
    CHARLES ROE, Appellant, v. ANN E. ANGEVINE and others, Respondents.
    Infant— General denial by — evidence which confesses and avoids allegations of complaint, not admissible under— Code, §149.
    Appeal from a judgment, entered upon the report, of a referee in favor of the defendants.
    This was an action for the foreclosure of a mortgage of $2,000 on premises in Brooklyn, with the accompanying bond of C. D. Conkliug, for default in payment of interest, pursuant to its interest clause.
    The mortgage was made pursuant to order of Special Term on the lands of three infants, Ann Elizabeth, Ida Francis and Phoebe Angevine, by their special guardian, now deceased, as directed by an order on petition and proceedings recited therein, and said bond likewise. The bond and mortgage were introduced in evidence, and also the petition of said infants, orders and reports thereon recited therein, and admitted.
    The infants answered by guardian ad litem; answer set forth general denial, but alleged no ground of avoidance or affirmative defense. The referee allowed evidence by the infants, in avoidance of the confessed obligation of the bond and mortgage.
    The court at General Term say: “ The defense is not set up in the answer, and it consists of new matter, which confesses and avoids the cause of action. Such a defense cannot be given in evidence under a general denial. (Code, § 149; 16 N. V., 297; 80 id., 285; 38 id., 28.) The referee seems to have supposed that this provision of the Code did not apply to infants. But that was a mistake. The statute contains no exception, and, before the Code, infants were governed by the same rules of pleadings as adults. The court, it is true, always takes care that an infant shall not be prejudiced by a defective pleading or proceeding of any kind, by allowing amendments and correcting errors, where that can be done without injustice to others. -Still it is, and always was, the duty of a guardian ad litem of an infant defendant, to ascertain the facts pertaining to the controversy intrusted to him, to determine whether they constituted a defense, and if so, to set it up at a proper time and in a proper manner. Any neglect of this duty is contrary to law, and cannot oe sanctioned. (1 Dan. Ch. Pr., 163 ; Knielcerbacker v. Be Freest, 2 Paige, 304; Rule 62.) And the judgment should be reversed, the order of reference vacated, and a new trial granted, with costs to abide event.”

      Robert Bodge, for the appellant. Rf. H. Olement, guardian ad litem, for the respondents.
   Opinion by

Gilbert, J.

Present — BarNArd, P. J., Gilbert and DtemaN, JJ.

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


author: BaeNARd, P. J.:

text:
    FRANKLIN G. TAYLOR, Appellant, v. JONATHAN EARLE, Impleaded with THE BURLINGTON COTTON MILLS and others, Respondents.

      Corporation — Sale of the entire property of one corporation, for stock of another— Blights of stockholders — Acts of majority of, do not hind minority.

    A. corporation, organized under tire laws of tlie State of New York, has no power to transfer all its property and thus terminate its existence, and take in payment stock in a foreign corporation carrying on the same business.

    Under the laws of this State, the majority of the stockholders of a corporation cannot bind the non-consenting minority to a sale of its entire property, made for the purpose and merely as a form of turning a New York company into a Vermont one, so as to escape the scrutiny into its affairs permitted to a stockholder by the New York laws.
    A stockholder, under the New York law, becomes such under the security thereof; and when this is taken from him has the right to have the property of his corporation applied to the payment of its debts, and the surplus, if any, divided among the stockholders.
    Appeal from a judgment of the Special Term dismissing plaintiff’s complaint.
    • The plaintiff was a stockholder in the Burlington Cotton Mills, a manufacturing corporation organized under the general laws of this State about August 14, 1866, whose principal office and place of business was in the city of New York. The corporation about the time of its organization purchased real estate, mills thereon, machinery and water privileges at Burlington, in the State of Yer-mont. About January 9, 1875, at a meeting of the stockholders, it was resolved by the holders of a majority of the stock to sell the property of the corporation to the Burlington Cotton Mills Company, a corporation created by the laws of Yermont, and take in payment thereof 1,747 shares of the stock of the latter company, and the property of the former was thereafter conveyed to the latter corporation for and in consideration of such stock, and for no other consideration. At the time of the resolution and conveyance, the defendant Jonathan Earle was president, and the defendant George B. Earle treasurer of both corporations, and held a majority of the stock of the Burlington Cotton Mills. The plaintiff never consented nor assented to the resolution to sell, nor to the acts done under such resolution.
    Eor a long time prior to January, 1875, no report had been made to the stockholders of the Burlington Cotton Mills, nor of its financial affairs. A demand was made upon the treasurer, George B. Earle, that he furnish such report. After such demand, and before January 9, 1875, the defendants Earle and others of the Yermont corporation were a majority of the directors of the New York company. This action was brought by the plaintiff as a stockholder of the Burlington Cotton Mills (the New York corporation), holding 100 out of 1,000 shares of its stock, to set aside the conveyance aforesaid as illegal and void, and for other relief; the Burlington Cotton Mills having refused to bring the action.

      E. Sprout, for the appellant.

      Isaac L. Miller, for the respondents.

         To same effect, see Frothingham v. Barney, 6 Hun, 366. — [Ref.

   BaeNARd, P. J.:

I think the court erred in dismissing the plaintiff’s complaint. He was a stockholder in the Burlington Cotton Mills, a New York corporation.

By a vote of a large majority of the stockholders (not including plaintiff), this corporation sold all its property, real and personal, except cash in hand, mills and franchises, to the Burlington Cotton Mill Company, a Yermont corporation, and took in payment 1,747 shares of this Yermont corporation.

The Burlington Cotton Mills, on plaintiff’s request, refuse to bring this action, and it is well settled that, in such a case a stockholder may assert his own rights, making the corporation a defendant.

I think it quite clear that plaintiff had a right to relief.

Either the transfer was void as ultra vires, or the property received in some way was liable to the debts of the Burlington Cotton Mills, and after their payment to distribution among those of the stockholders who did not wish to take a proportion of stock in the Vermont company.

The plaintiff cannot be forced to take the stock of the Burlington Cotton Mill Company without his own consent. The facts are all averred in his complaint, and he is entitled to any relief warranted by the facts, and not alone to that for which he has asked.

I am of opinion, however, that the whole scheme of the transfer and its execution was illegal.

There is no power given by the acts under which the Burlington Cotton Mills were incorporated to transfer all the property of a corporation, and then terminate its existence, and take in payment stock in a company carrying on the same business, with a different name, charter and stockholders, and being a foreign corporation.

The corporation, by the New York law, could increase or diminish its stock, or extend its business to other objects, but that falls far short, I think, of the sweeping power exercised on this occasion. The sale was not real. It was a mere form to turn a New York corporation into a Vermont one, and thus escape the scrutiny into the affairs of the company permitted by the New York law to the stockholders.

No majority can bind the non-consenting minority to this. He became a stockholder under the security of the New York law, and, when that is taken from him, at least he should have the property of his corporation applied to the payment of its debts, and the surplus, if any, divided among the stockholders.

I think the judgment should be reversed, and a new trial granted, costs to abide event.

GiibeRt, J., concurred; DyemAN, J., not sitting.

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


author: Baenaed, P. J.:

text:
    PHILIP V. R. STANTON, Respondent, v. ELIZABETH R. B. KING, impleaded with JOHN LEVERIDGE and another, Executors and Trustees.

      Trust estate — services rendered to — claim, for, not a lien — Oestui que trust — not necessary pa/rty to action to enforce.

    A party is not liable for any portion of -a claim for services rendered to a trust estate, by reason of Ms subsequent receipt of a portion of such trust estate under the provisions of the will creating it, and is not a necessary party to an action against the trustees of such estate to recover a balance of a claim for such services.
    In what case a trustee may make a claim for services rendered to an estate a lien upon the trust estate, considered.
    Appeal from an order made at a Special Term overruling a demurrer to a complaint. The demurrer was interposed by the defendant Elizabeth E. B. King, on the grounds of defect of parties, pendency of another action, misjoinder of parties and causes of action, and that the complaint did not state facts sufficient to constitute a cause of action. The action was brought to recover for legal professional services rendered to, and moneys expended for an estate. The trustees under the will and the eest/ai que trust, Elizabeth E. B. King, to whom a portion of the estate had been paid over, were made defendants; no personal claim was made against either of the defendants, but only on the property in their hands, derived from the estate for which the services were rendered.

      James G. Hays, for the appellant, Elizabeth E. B. King.

      P. S. Croolce, for the respondent.
   Baenaed, P. J.:

It is not important to consider the question whether the trustees under the will of Gilbert "W". Bowne could charge the estate with the claim of plaintiff for professional services rendered the estafe.

As I read the averments of the complaint, they have not done so. The averment is “ that it was understood by said defendants John Beveridge and Hermanee B. Duryea, trustees as aforesaid, and this plaintiff, that the said services were rendered and money paid * * * was to be paid for by them as such trustees out of said estate.” This is a precise statement of their legal duty as trustees. The trustees may use the funds of the estate for legal purposes. They cannot bind the estate by any executory contract. (Austin v. Munro, 47 N. Y., 360; Ferrin v. Myrick, 41 N. Y., 315.) There is no cause of action set forth against the defendant King.

She is not a necessary party to an action against the trustees to recover a balance of a claim for services rendered, nor is she individually liable to plaintiff for any portion of the plaintiff’s claim by reason of her receipt of property under the will of the deceased, Gilbert W. Bowne.

In the ease of Noyes v. Blakeman (2 Seld., 567), there were no funds in the hands of the trustees to resist an action which threatened the destruction of the trust estate. In such an exceptional case the Court of Appeals held that the trustees could establish a lien on the trust estate. Here there is no such claim made. The services rendered were in the management of the estate, and it does not appear but that the trustees had always sufficient funds belonging to the estate, with which to pay plaintiff for his services. Indeed, the contrary appears, that the trustees had abundant means in hand down to the time the estate was transferred to the cestui que trust under the will.

I think the order appealed from should be reversed and the demurrer sustained, with leave to plaintiff to amend in twenty days on payment of costs.

Gilbert, J., concurred; DykmaN, J., not sitting.

Order overruling demurrer reversed with costs and demurrer sustained with costs.


author: BARNARD, P. J.:

text:
    JOSEPH W. CAMPBELL, Appellant, v. JAMES R. SMITH, Respondent.

      Deed — assuming mortgage — covenant enures to benefit of mortgagee — Distinction between such covenant when made by gramtee and moi’tgagee.

    H. and wife executed a mortgage, which was duly assigned to C. Afterward H. and wife sold the premises to B., and executed a deed therefor without the name of any grantee, hut with a blank space left for the insertion thereof. The deed contained full covenants of title, and a clause subsequent to the “habendum,” in the following words (after enumerating certain other mortgages): “Subject to the payment of another certain indenture of mortgage now upon the within described premises, amounting to $8,000” (meaning the mortgage in question), “ which said mortgage the said party of the second part hereby agrees to assume, pay off and discharge, the same having been allowed out of the consideration or purchase money hereinbefore expressed.”
    B. was indebted to a firm of which defendant S. was a member, and afterward agreed with S., by parol, that he should insert the name of S. as grantee in the deed; that S. should take the title, and that the profits therefrom should be applied on account of the said indebtedness of B. to the defendant’s firm. B. accordingly inserted the defendant’s name in the deed and had the same recorded, with his knowledge and assent.
    Afterward B. procured a purchaser for the premises, and contracted in his own name for the sale thereof, and S., in pursuance thereof and at the request of B., granted and conveyed the premises to such purchaser,'in fee simple, by deed, with the usual full covenants, including covenant of seizin, subject to the said mortgage and other incumbrances; and this deed contained a clause similar to the other, providing for the assumption and payment of said mortgage by such purchaser. The mortgage was foreclosed, S. not being made a party, although his grantee was; but no judgment for deficiency was demanded against him. 0. purchased in the premises on the sale, and brought his action against S. on the covenants in the deed from H. to S., to recover the deficiency on such sale.

      Seld, that S., as regarded H., was the absolute owner in fee of the premises, and bound to pay the consideration agreed upon for the purchase; that the rights of the parties were not to be determined by the facts existing at the execution of the blank deed, but by those existing when S. consented to take the deed with a covenant to pay the plaintiff's mortgage; that the defendant, by the deed, took the property of H. and agreed to pay its purchase-price to the plaintiff.

      Lom'enae v. Vox (20 N. Y., 268) followed; Qa/rnsey v. Bogers (47 N. Y., 288) distinguished.
    Appeal from a judgment entered in favor of the defendant, on the decision by the court, a jury trial having been waived.
    On the 29th of April, 1811, Maria C. Hood and John M. Hood, her husband, duly executed, acknowledged and delivered to Edwin K. Dillingham a bond and mortgage on the separate property of said Maria 0. Hood, who was the owner thereof in fee simple, which bond and mortgage were duly assigned to the plaintiff September 16, 1871, and such assignment recorded October 20th, 1871, on which there is due and unpaid $3,000 and interest from, September 3d, 1874.
    A shoi’t time prior to June 25th, 1872, said Maria 0. Hood and John M. Hood agreed with one N. "W. Burtis to sell to him the said premises, subject to the incumbrances upon it, for $2,000, in the notes of said Burtis, and that said mortgage, then a lien thereon, together with other incumbrances, should be assumed.
    The said Maria C. and John M. Hood, on the 25th day of June, 1872, duly executed, acknowledged and delivered to said Burtis a deed of said premises, without the name of any grantee (i. e., party of the second part thereto) therein, but with a blank space left for the insertion thereof; said deed then contained full covenants for title and a clause, subsequent to the “ habendum,” in the following words (after enumerating certain other mortgages): “Subject to the payment of another certain indenture of mortgage, now upon the within described premises, amounting to $3,000” (meaning the mortgage in question), “ which said mortgage the said party of the second part hereto agrees to assume, pay off and discharge, the same having been allowed out of the consideration or purchase money hereinbefore expressed.”
    Burtis then paid the grantors in said deed $2,000 in his, Burtis’, notes, tad they, by parol, authorized said Burtis to fill into the blank left therefor in said deed the name of any person he chose as grantee, and to deliver the same to such grantee.
    Burtis was then indebted to a firm, of which the.defendant was a member, and shortly thereafter agreed with said defendant, by parol, that he, said Burtis, should insert the defendant’s name as grantee in the said deed, and that the defendant should take the title, and that the profits therefrom should be applied on account of the said indebtedness to the defendant’s firm; and thereupon said Burtis, in pursuance of his said authority and said agreement, inserted the name of the defendant as grantee in said deed, and had the same recorded with the knowledge and assent of said defendant.

      Thereafter said Burtis procured a purchaser for said property and in his own name contracted for the sale thereof, and the defendant, in pursuance thereof and at the request of said Burtis, granted and conveyed the same to such purchaser in fee simple, by deed, with the usual full covenants, including covenant of seizin, subject to the said mortgage and other incumbrances; and the deed contained a clause, similar to that quoted above, providing for the assumption and payment of said mortgage by such purchaser.
    The plaintiff subsequently foreclosed said mortgage without making said defendant a party thereto, and the amount above found due is the amount due thereon after deducting the amount realized thereon from the sale under the judgment in said action. The grantee of the defendant was made a party to said action, but no judgment for deficiency was demanded or taken against him.
    The plaintiff purchased the premises at the foreclosure sale, and upon the trial of this case offered, upon being made whole, to convey the same to the defendant.

      H. éb Q. Ingraham, for the appellant.

      D. P. Barnard, for the respondent.
   BARNARD, P. J.:

I do not think this case falls within the principle established in Garnsey v. Rogers (47 N. Y., 233). In that case no title passed to the defendant. The deed in which his covenant to pay incum-brances was contained, was, as between the parties to it, a mortgage only. The court held that a covenant by a mortgagee with the mortgagor to pay a prior mortgage was a promise for the benefit of the mortgagor only, and could not be made the basis of an action by the prior mortgagee. In this case Burtis agreed with the Hoods to pay a prior mortgage (the one held by plaintiff) as part of the purchase money. They had signed the bond and mortgage, and were personally liable upon it. They gave Burtis an absolute deed in blank, with leave to fill in the name of any grantee. He filled in defendant’s name as grantee with his assent.

The defendant as against the Hoods became the absolute owner in fee of the lands. As to them he is bound to pay the consideration agreed upon for the' purchase. The rights of the parties are not to be determined by the facts existing at the execution of the blank deed, but by those existing when defendant consented to take the deed with a covenant to pay the plaintiff’s mortgage. By that deed defendant took Hood’s property and agreed to pay its purchase-price to plaintiff. The case thus comes, I think, within the principle of Lawrence v. Fox (20 N. Y., 268).

I think there should be a new trial, costs to abide event.

GilbbRT, J., concurred.

Present — BarNArd, P. J., Gilbert and DyxmaN, JJ.

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


text:
    WILLIAM C. MURDOCK, Executor, etc., v. HARRIET ISABEL WARD and ISABEL GODFREY WARD.

      Will —providing for equal division among next of Mn, as in case of intestacy — construction of— as to rights of widow and child.

    A testator empowered Ms executors to pay to bis sons, after their arrival at the age of twenty-one years, the whole or part of their portion of his estate as they should deem prudent. The will also provided, “ and in case the whole of said principal shall not be paid to them or either of them during their lives, then the said principal, or such part or portion thereof as may remain unpaid, to be equally divided among, and paid to the persons entitled thereto, as their or either of their next of kin, according to the laws of the State of New York, and as if the same were personal property, and they or either of them had died intestate.” ' A son of the testator died before he had received his share, there being some $67,000 thereof in the hands of the executor at the date of his death, leaving a widow and one child, an infant.

      Held, that the words “ equally divided ” among the persons entitled thereto, were restricted by the last part of the clause “ and as if the same were personal property, and they or either of them had died intestate.” The direction was to distribute the property equally in the manner provided by law, as in case of intestacy; but as the law does not distribute equally between a widow and child, no other mode of distribution but the one established by statute as to personal property in case of intestacy was furnished, and it should be followed, and the widow take one-third and the child two-thirds.

      Appeal by Isabel Godfrey Ward, an infant, from a judgment entered on the decision of the Special Term, allowing to the widow, Harriet Isabel Ward, one-half of a fund not paid over to her deceased father under the will of her grandfather, James O. Ward.
    This action was brought by the plaintiff as executor and trustee under the will of James O. Ward for a construction of the fourth clause thereof, viz.: “ Fourthly. To pay the rest, residue and remainder of my estate to all my children in equal shares as follows, that is to say : To my sons at such time or times after they shall severally arrive at the age of twenty-one years as my said executors shall deem prudent and advisable ; and in case my said executors shall not deem it prudent or advisable to pay to my said sons, or either of them, their shares as they shall severally arrive at the age of twenty-one years, then to pay to them, or either of them, the income thereof, or such part or portion of the principal as they shall from time to time deem prudent and best; and in case the whole of said principal should not b e paid to them, or either of them, during their lives, then the said principal, or such part or portion thereof as may remain unpaid, to be equally divided among and paid to the persons entitled thereto, as their or either of their next or kin, according to the laws of the State of New York, and as if the same were personal property, and they or either of them had died intestate.”
    It appears from the findings of fact that Charles F. Ward, a son of James O. Ward, died August 23, 1815, and that at that time said plaintiff, as executor and trustee, had in his hands about the sum of $67,000, which was the residue of the share of said son, Charles F., not paid over to him in his lifetime; that said son left him surviving the defendants, his widow Harriet Isabel Ward and his infant daughter Isabel Godfrey Ward, aged about eighteen months.
    The court on the trial found, as a conclusion of law, that the defendants, the widow and child, were each entitled to one-half of said fund, and directed judgment accordingly. Judgment was, on the 17th of- April, 1876, entered in accordance with said findings. From that judgment the infant defendant, Isabel Godfrey Ward, through C. D. Newman, Esq., her guardian ad litem, appealed to this court. Exceptions were filed to tbe conclusions of law only.

      Clement D. Newman, for the infant appellant,
    Isabel Godfrey Ward. I. Next of tin used simjpUeiter does not include the widow. To sustain the decision of the court below it must clearly appear from the context or other parts of will that the words next of kin were used with other import than their strict legal definition. This fund must be “equally divided * * * according to the laws of New York.” The testator had in mind persons who take equally by and according to law, not a widow, who, according to law, takes one-third. If there were' no widow the daughter would take the whole as next of kin. This is clear. Suppose there were no daughter would the widow take the whole ? If the testator meant to include widow in the words next of kin, the widow as devisee in remainder would have just as clear a right as the child to the whole. The persons the testator had in mind as next of kin are clearly shown by the contingent remainder clause, viz.: “ In case either of my children should die without issue him or her surviving, I then order and direct that his or her share be paid' to the surviving brothers and sisters.” Here must come in another forced construction. “ Without issue ” in this will ought to mean without widow and children, and we must imagine the testator’s idea to have been: “ If any son of mine leaves issue their mother or step-mother is his next of kin. If he leave no issue she is not next of kin. Perhaps I do and perhaps I don’t designate her as a devisee. If the son leaves a child she shall have half its inheritance.” II. Next of kin used simpUeiter means kindred or relation by blood. (Slosson v. Lynch, 28 How., 417.) “ A bequest by husband or wife to next of kin does not include the wife or husband, and the same rule applies to bequest under a power, and where a will provides that next of kin shall take, as in cases of intestacy.” (Redfield on Wills, vol. 2, p. 77; Watt v-. Watt, S Yes., 244.) Widow does not take where husband’s will directs his personal estate “ to be divided among his next of kin, as if he had died intestate.” (Q-arrich v. Camden, 14 Yes., 372.) Where a will reads “to next of kin according to the statutes for the distribution of personal estates of persons dying intestate,” the widow does not take. (Gholmondely v. Asliburton, 6 Beav., 86 ; Withy v. Mangles, 4 id., 358.) The English statute is the same as ours. The act of 1849 (p. 387) gave certain damages to the wife and next of kin of deceased person, and a husband suing for death of wife was held not to be next of kin. (See Dickens v. K. Y. U. E. JR. Go., 23 N. Y., 158.)

      Milton A. Fowler, for the respondent,
    Harriet Isabel Ward. I. The term next of kin has not an inflexible meaning, but is construed according to the circumstances under which it is used, and so as to best carry out the intention of the person using it. Under the statute which provides that a creditor of a deceased party who may have neglected to present his claim to the executor or administrator may recover the same of the next of kin of the deceased, to whom any assets may have been paid or distributed, it has been held that such recovery may be had of the widow as next of kin. (The Merchants’ Ins. Go. v. Einman, 15 How. Pr. Rep., 182.) Again, it has been held that the husband succeeds to the wife’s personal estate as her next of kin, although he is not strictly siich. {Fittyplace v. Georges, 1 Ves. Jr., 46-48; Schuyler v. JEoyle, 5 J. Oh., 196-206; 2 Kent Com., p. 136.) The court, Millee, J., giving the opinion in the case of JKniclterbacker v. Seymour, says: “ I think it must be conceded that the expression ‘ next of kin ’ may be employed in a deed or will conveying or bequeathing property, so as to authorize a construction which will include the wife or widow.” (Knidcerbacker v. Seymour, 46 Barb., 198-205.) II. Whatever doubt there maybe as to whether a bequest to the next of kin of a party includes his wife, such doubt is entirely removed by the words used in this will: “ To the persons entitled thereto as their next of kin, according to the laws of the State of New York, and as if the same were personal property, and they or either of them had died intestate.” This clause of the will explains next of kin, as meaning such persons as would take as distributees, under the laws of the State, in cases of intestacy. 1. No laws of the State can be referred to except the statutes as to the distribution of personal property, found in 2 Rev. Stat, at p. 96, § 75. 2. If a strict and liberal meaning is attempted to be given to the words “ next of kin ” in that statute, such an interpretation would exclude the child as well as the widow, for tlie distribution is “to the widow, children, or next of kin, in manner following.” No one would say that such would be a fair construction of the words, nor can it be argued any more fairly that the wife is excluded. 3. .The widow is a distributee under the statutes of this State, and as such is one of the persons referred to in the clause of the will above quoted. (2 Rediield on Wills, p. 400, § 47, sub. 14.) In a case having a trust similar to this, the words of after-distribution, being “ to the heirs at law and next of kin of said party of the first part in the manner and proportions prescribed by the statutes of descent and distribution of this State, in case of persons who die intestate,” the court says : “ The expression ‘ in eases of persons who die intestate ’ qualifies the previous language so as to indicate that it was intended to embrace the widow within the words employed.” (Knidcer-baclcer v. Seymour, 46 Barb., 198-207.)
   BARNARD, P. J.:

James C. Ward, by his will, empowered his executors to pay to his sons, after their arrival at the age of twenty-one years, the whole or part of their portion of his estate as they should deem prudent. Charles F. Ward, a son of testator, died before he had received his share, there being about $67,000 thereof in the executors’ hands at the date of his death. He left a widow and. one child, an infant.

The will provided for distribution in case of death of the son as follows: “ And in case the whole of said principal shall not be paid to them, or either of them, during their lives, then the said principal, or such part or portion thereof as may remain unpaid, to be equally divided among and paid to the persons entitled thereto, as their or either of their next of kin, according to the laws of the State of New York, and as if the same were personal property, and they or either of them had died intestate.” The clause above given suggests three constructions:

1. That the widow and child take equally.

2. That the widow is not next of kin, and the child takes all.

3. That the widow takes one-third and the child two-thirds, as if the son had owned the property and had died intestate.

I think the last the true construction of the clause in question. The words “ equally divided ” among the persons entitled thereto are restricted by the last part of tbo clause, “ and as if the same were personal property, and they or either of them had died intestate.” In other words, the direction is to distribute the property equally in the manner provided by law as in case of intestacy. The law does not distribute equally between a widow and child. No other mode of distribution but the one established by statute as to personal property in case of intestacy is furnished, and that should be followed.

Decree modified accordingly.

Gilbbet, J., concurred. DtkMAn, J., not sitting.

Judgment modified by giving widow one-third and child two-thirds of fund.


author: BaeNAbd, P. J.:

text:
    JOHN G. KUNTZ, Appellant, v. FREDERICK LICHT, Respondent.

      Appeal to County Court — when seou/rity on, jurisdietíonal — Code, §§ 862-356— chap. 392 of 1863 — appeasable oi'der.

    On appeal from a Justice’s Oourt, before the act of 1863 (chap. 392,) security was only required when a stay of execution was desired; since that act, where, by the terms of section 352, the appellant is entitled to a new trial, security is required to perfect such appeal, and give jurisdiction thereon to the County . Court.
    A refusal to dismiss such appeal when security has not been filed affects a substantial right, and the order refusing it is appealable. Seymour v. Judd (2 ÍT. Y., 464) followed.
    Appeal from an order of the County Oourt of Queens county, refusing to dismiss an appeal thereto from a Justice’s Court.
    The action was tried in a Justice’s Oourt of Newtown, Queens county, on the 22d of October, 1875, and judgment rendered in favor of the plaintiff for the sum of fifty-two dollars and sixty-two cents damages, and four dollars costs.
    The defendant thereupon served a notice of appeal for a new trial in the County Oourt, as a matter of right, the plaintiff having claimed more than fifty dollars in his complaint. The defendant did not, at the time he served his notice of appeal, nor at any subsequent time, give an undertaking on appeal, as is required in the case of a new trial by the Code (§ 355).
    The plaintiff presented the affidavit of William E. Slooum, Esq., the justice before whom the cause was tried, and the certificate of the county clerk, proving that no undertaking had been served or filed, and moved to dismiss the appeal. The motion was heard before Hon. JohN J. ARMSTRONG, county judge of Queens county, on the 1st day of February, 1876, and was denied, with costs, and an order entered to that effect, from which order the plaintiff appealed to the General Term.

      John E. Van Nostrand, for the appellant.

      D. L. Norton, for the respondent.
   BaeNAbd, P. J.:

The question presented arises under section 355 of the Code, which reads as follows :

When, by the terms of section 352, the appellant is entitled to a new trial in the appellate court, he shall, at the time of taking his appeal, and in all other cases, if he desires a stay of execution of the judgment, give security, as provided in the next section.”

The judgment exceeded fifty dollars exclusive of costs, and by the terms of section 352 a new trial resulted, as matter of right, in the appellate court. I think the county judge erred in his construction of the section in question. The clause giving a new trial in cases where the pleadings demanded a judgment upon a claim of over fifty dollars was passed in 1863.

The statute in reference to security upon appeals from Justices’ Courts before that required such security only in ease a stay of execution was desired.

When the legislature passed the provision giving a new trial upon appeals where the amount demanded was over fifty dollars, there was added the provision that on such appeals “ and in all other cases if he desires a stay of execution,” the appellant should give security.

If there was to be no security given upon such appeals there was no necessity for the added clause. The old requirement as to security was sufficient. No security was needed except when a stay of execution was desired.

The order is appealable. If security was required to perfect the appeal the County Court obtained no jurisdiction without it The refusal to dismiss the appeal affected a substantial right and-the order refusing it is appealable. (Seymour v. Judd, 2 N. Y., 464.)

Order reversed with costs and appeal dismissed, with costs.

Gilbert, J., concurred.

Present — BarNArd, P. J., Gilbert and DykmaN, JJ.

Order of County Court reversed, with ten dollars costs and disbursements, and motion granted to dismiss the appeal.


text:
    SAMUEL BERTHOLF, Respondent, v. JAMES O’REILLY and HERMAN FIRNHABER, Appellants.

      Oivil damage act — chap. 646 oJ 1878 — action under ■ — • constitutional as to owner of premises— Ooniributory negligence — Intoxication occmring while violating Sunday law, no defense —% Rev. Stat. (6th ed.), 928, § 84.
    R. was tiie owner and F. the keeper of a place where intoxicating iiquors were sold without a license. The son of the plaintiff, on a Sunday, took plaintiff’s horse, saying he was going to see a friend about four miles distant, but instead went directly to the place of F., and became intoxicated there, and, when in such a state, drove the horse so violently that he died. This action was brought, under chapter 646 of the Laws of 1873, to recover the value of the horse.

      Held, that the action could be maintained against R., the landlord,'jointly with F., the tenant.
    That the plaintiff’s allowing his son to take his horse to drive to a neighbor’s, knowing the son to be of intemperate habits, was not such contributory negligence as to defeat his right of action.
    That the question of contributory negligence was not applicable to the case.
    That the sending of the horse on Sunday did not deprive the plaintiff of the right to sue for his property unlawfully destroyed.

      Appeal from an order denying a motion for a new trial, made upon the minutes of the judge at the Circuit.
    The action was brought under chapter 646, Laws of 1873, to recover damages alleged to have been sustained by the plaintiff, as the owner of a horse of the value of $200, which was taken from his place, in Orange county, in good condition, on a Sunday, by his son, and returned after midnight, so used up that death resulted therefrom. The son became intoxicated from liquor obtained of the defendant Firnhaber, the keeper of a restaurant, of which the defendant O’Reilly was the landlord, and in this condition drove the horse so furiously as to cause the injury complained of. The son, who was known to be of intemperate habits, borrowed the horse to go to a neighbor’s, but instead went to Firnhaber’s.

      Lewis E. Qarr, for the appellants.

      W. J. Gross, for the respondent.
   BaeNARd, P. J.:

This is an action for damages under chapter 646 of Laws of 1873. It is brought against the owner of premises leased for the purpose of selling intoxicating liquors, and against the tenant who hired the premises for that purpose. The sale in question was made to plaintiff’s son, who, by reason of the intoxication produced thereby, did “ drive, worry, and maltreat ” plaintiff’s horse causing his death. The evidence is sufficient to sustain the verdict as to the fact of selling, and as to the consequent intoxication and its results. It was conflicting, but the jury have found the facts to have been as alleged in plaintiff’s complaint. As to the tenant, the act has been held constitutional. (Baker v. Pope, 5 N. Y. S. C., 102.) The act in question gives the action against the owner of the premises where the sale is made, severally or jointly with the person selling, where the owners have knowledge that intoxicating liquors are to be sold thereon.

In this case the owner leased the premises for the purpose of selling lager beer and ale. He knew that the tenant was selling intoxicating liquors after he took possession. The tenant swears that the owner agreed, as part of the lease, to obtain a license for him. In fact no license was obtained. I can discover no reason why the act is invalid as to the owner of the premises. The object of the law was to prevent the impoverishment of families by reason of intoxication; to prevent the violence and injury resulting from intoxication by making those who caused the intoxication liable for the damages which resulted to others by reason thereof. The tenant may sell, but he must be careful to whom he sells, and never to sell enough to cause intoxication, or to add to an intoxication which has been commenced by sales of strong drink by others. The landlord must see that he rents his premises, if he rents them for the purpose of selling intoxicating drinks, to persons who will so sell that no person shall be injured in person, property or means of support by reason of his sales. The legislature required the owner, who alone has the power to lease and select his tenant, to assume the risk of his tenant’s acts in the business of selling spirituous liquors when such tenant caused injury by his sales. If the legislature can legislate against the tenant, its power to reach the landlord cannot be doubted in the cases mentioned in the act referred to.

I do not think the principle of contributory negligence applicable to this action. The plaintiff’s son was made intoxicated by defendants, and ran his father’s horse to death. The action was not for negligently killing the horse; if it were, sending his son with the horse to go and see a neighbor, knowing that his son frequently got drunk, would not bring the case within that principle because his son did get drunk on the occasion. The sending the horse on Sunday does not deprive the plaintiff of his right to sue for his property unlawfully destroyed. (Nodine v. Doherty, 46 Barb., 59.)

The judgment should be affirmed with costs.

GilbeRT, J., concurred. DvemAN, J., not sitting.

Judgment and order denying new trial affirmed with costs.


author: BaeNAed, P. J.:

text:
    JAMES TISDALE, Appellant, v. MATILDA MOORE, BENJAMIN F. MOORE, JOSEPH G. MOORE, BENJAMIN F. MOORE, Jr., and others, Respondents.

      Demurrer — Misjoinder of causes of action— what is not.

    In an action to foreclose a mechanic's lien, although other persons than the one against whom the claim was filed as owner of the premises are made parties defendant, on the ground that conveyances by and to them, of the premises, were fraudulently made to defeat plaintiff’s claim, and the complaint asks to have such conveyances declared void, yet there is only one cause of action set forth in the complaint and the same is not demurrable.
    Even if the prayer for judgment upon the facts alleged be for too much, it is not ground for demurrer.
    Appeal from a judgment and order sustaining a demurrer to a complaint, on the ground of a misjoinder of two causes of action.
    The complaint sets forth that the plaintiff performed labor and furnished materials for certain houses on the land of the defendant Matilda Moore, and that he filed and served on the 16th November, 1875, the notice required under chapter 478 of the Laws of 1862, under and by which he acquired a lien thereon. It further alleges, that on the 15th November, 1875, the defendant Matilda Moore and her husband executed and delivered to the defendant Joseph G. Moore a paper purporting to be a deed of said premises; and on the same day Joseph G. Moore executed a paper, pm-porting to be a mortgage, to the defendant Benjamin F. Moore, and also another to Matilda Moore. That the said instruments were designed to defeat plaintiff’s lien; were without consideration and fraudulent, and asks to have such instruments declared void; that there be an accounting and settlement between plaintiff anji defendant Matilda Moore of the amount due him, and that a sale of the interest of the defendant Matilda Moore be directed and the proceeds applied to the payment of the claim of the plaintiff, with his costs, and for such other relief as to the court may seem just. To this there was put-in a demurrer, that two separate and distinct causes of action had been improperly united in the complaint.

      Frank F. JBlaekwell, for the appellant.

      Justus Palmer, for the respondents.
   BaeNAed, P. J.:

I think the complaint sets forth but a single cause of action.

The plaintiff avers that he performed labor and furnished materials to repair three houses on the land of Matilda Moore. That he filed and served the notice required under chapter 478 of the Laws of 1862, on the 16th of November, 1876, under and by which he acquired a lien upon the premises described in the complaint.

The complaint further avers that Matilda Moore, on that day, was the owner of the premises.

The complaint further avers that on the 15th of November, 1875, the defendant Matilda Moore, and her husband, executed and delivered a paper, purporting to be a deed, to one Joseph G. Moore, and on the same day Joseph G. Moore executed a paper, purporting to be a mortgage thereon, to Benjamin P. Moore. Also on the same day he executed a pretended mortgage thereon to Matilda Moore.

That both deed and mortgages were designed by the parties to them to defeat plaintiff’s lien; that they were fraudulent, without-any consideration and void.

Under these averments, by our statute, the pretended papers were, and are, void as against the plaintiff. (2 R. S. [2d ed., m. p.], 137, §1.)

The cause of action is simply that plaintiff has a lien as of the 16th of November, 1875, and he asks its enforcement under the act above referred to. The plaintiff has inserted in his complaint only such other matters and allegations as may be material and proper to establish the claim and cause of action of the claimant and plaintiff,” as he was authorized to do by section 3 of chapter 478, Laws of 1862.

Unless the plaintiff can maintain his complaint the lien law is useless. By giving a fraudulent and void deed the owner may prevent a claimant from enforcing a lien. The lienor must prove ownership at the date of filing his notice. He cannot do that without proof to destroy the deed. To do that so as to effectually free the land from its operation he must have the grantees of the void papers as parties.

If the prayer for judgment upon tbe facts alleged is for too much, it is not a ground of demurrer.

Order sustaining demurrer overruled, witb costs, and demurrer overruled, with costs, with leave to defendants to answer in twenty days on payment of costs.

GilbeRt, J., concurred. Dyeman, J., not sitting.

Order sustaining demurrer reversed, with costs, and demurrer overruled with costs.


author: BarnaRd, P. J.:

text:
    THE KNICKERBOCKER LIFE INSURANCE COMPANY, Respondent, v. GEORGE W. NELSON and RUEA NELSON, Impleaded with others, Appellants.

      Mortgage foreclosure — Usury — Guaranty — JUraud — trial of issues of, try the court, discretionarry.

    In an action for the foreclosure of four bonds and mortgages executed by the defendant George W. Nelson; for a sale of the mortgaged premises and judgment for deficiency against him, and for a judgment against the defendant Ruea Nelson for any deficiency up to $20,000, on the ground of the execution by him of an instrument, by which he covenanted that on a sale under foreclosure of said mortgages, the mortgaged premises should yield a sum sufficient to pay the amount decreed, with the costs and expenses of sale, or in default thereof he would, on demand, pay any deficiency up to $20,000 which might result on such sale or sales, the defendant George ~W. Nelson set up usury as.a defense, and the defendant Ruea Nelson also plead usury, and that the aforesaid instrument executed by him was procured to be so executed by fraud.

      EM, that it was an equitable action purely, and it rested in the discretion of the court either to ash the aid of a jury to inform the conscience of the court, or to decide the case without such aid; that the defendant could not claim, as matter of right, to have the issues framed and tried at law.
    Appeal from an order made at a Special Term denying a motion by the defendants Nelson to settle the issues to be tried by a jury. The action was brought for the foreclosure of four bonds and mortgages, amounting to $70,000, executed by George W. Nelson and wife to the plaintiff. The defendant George W. Nelson plead usury, and the defendant Ruea Nelson also plead usury, and that a certain instrument executed by him, under seal, wherein he covenanted to pay any deficiency up to $20,000 that might arise on the. sale or sales under foreclosure of said mortgages, would be paid by him on demand, was obtained by fraud, setting forth in his answer, at length, the facts in relation thereto. A motion was made by the defendants Nelson on the pleadings, and questions of fact proposed to be submitted by them to a jury for trial, for an order settling the issues between them and the plain tiff for trial by jury, which motion was denied, and the defendants Nelson appeal from the order of denial to this court.

      Morris & Pearsall, for the appellants Nelson.
    I. The complaint asks a judgment for money only against the defendant Ruea Nelson; there is no claim against him for equitable relief; it is purely a legal demand, and as to the issues between him and the plaintiff, he is entitled to a trial by jury as a matter of strict right. (Code of Pro., §253 ; 2 R. S., 409, § 4; Const, of N. Y., art. 1, § 2; Da/ois v. Morns, 36 N. Y., 569 ; Wynehamer v. People, 13 id., 426 ; Greason v. Keteltas, 17 id., 498; Bradley v. Aldrich, 40 id., 510; lattm, v. McCcndy, 41 id., 110, 112, and note; Hudson v. Oaryl, 44 N. Y., 555; Penn. Goal Oo. v. Del. Hud. Oo., 1 Keyes, 72, 76.)
    II. The plaintiff cannot, by stating in its complaint facts entitling it to equitable relief as to some defendants, and purely legal relief as to this defendant, deprive him of his constitutional right of a trial by jury. {Davis v. Morris, 36 N. Y., 569; Code of Pro., § 253; Lattin v. McCa/rty, 41 id., 112 and note; Bradley v. Ald/rieh, 40 N. Y., 510; Hudson v. Oaryl, 44 id., 555 ; Penn. Goal Oo. v. Del. and Hud. Ocmal Oo., 1 Keyes, 72, 76.)
    III. The court may, in its discretion, in equity actions, order the whole issue, or any specific questions of fact, to be tried by a jury. (Code of Procedure, § 254; Farmers and Mechanics'1 Banlc v. Joslin, 37 N. Y., 353 ; Supreme Court Rule, 40.)
    IV. An issue of fraud ought to be tried by a jury. {Freema/n v. Atlantic Insurance Co., 13 Abb., 124; Levy v. Brooklyn Fire Insurance Co., 25 Wend., 687.)

      Henry W. Johnson, for the respondents.
   BarnaRd, P. J.:

This is purely an equitable action. The complaint is for the foreclosure of certain mortgages accompanied by a demand for judgment for deficiency, if any should result, against the person who executed the bonds.

The answer sets up as a defense usury, and that the bonds and mortgages were procured by fraud. It was never a matter of right that issues should be framed and sent to a jury in equitable actions. It always rested in the discretion of the court either to ask the aid of a jury to inform the conscience of the court, or to decide the case without such aid.

There is nothing in the present case calling for a reversal of the order at Special Term refusing to frame issues to be tried at law. Whether or not usury is proven to have entered into the contract, or whether or not the mortgages were procured by false and fraudulent representations, are questions which equity judges are peculiarly fitted to determine’ by reason of the large experience which they have derived from trials in which such defenses are set up. I consider the finding of an intelligent and impartial court upon questions like these more to be relied on than the verdict of a jury thereon.

Order affirmed, with ten dollars costs and disbursements.

Gilbert, J., concurred. DyKMAn, J., not sitting.

Order affirmed with costs and disbursements.


text:
    THOMAS DREW, Respondent, v. ALFRED ANDREWS, Appellant.

      Trial by jury— Refusal to restate evidence, when requested by jury — Pleadings not evidence to go to the jury.

    On the trial of an action for work and labor done and materials furnished by the plaintiff for the defendant, after the jury had retired they requested of the court information as to what a witness for defendant had'testified to, in reference to a portion of the work claimed for. Held, error for the court to refuse the request of the counsel for the defendant, made in the presence of plaintiff’s counsel, to bring in the jury and state the evidence to them as requested.

      When the jury had returned into court, and stated that they had found for the plaintiff but fixed no amount, held, error for the court to direct the jury to take the pleadings and return again and fix the amount. The pleadings were not evidence even, beyond the portion thereof admitted in the answer.
    Appeal from a judgment in favor of the plaintiff entered on the verdict of a jury, and from an order refusing a new trial on the minutes.
    This action was brought in the City Court of Yonkers by Thomas Drew, plaintiff, against Alfred Andrews, defendant, to recover a balance of $382.60 alleged to be due from the defendant to the plaintiff for work, labor and services performed in the building of a foundation .wall and a stone retaining wall and walls thereto, trenching for said retaining wall and extra work on the grounds of defendant, in the city of Yonkers, and in the grading of said grounds. The said retaining wall and walls thereto were built, and said grading and trenching done, under a written contract between the parties to this action. After the jury had been out about two hours they requested of the court information as to what a witness for defendant had testified in reference to a portion of the work claimed for; the counsel for the defendant, in the presence of plaintiff’s counsel, asked the court to bring in the jury and state the evidence to them as requested, which the court refused to do. A short time after the jury returned into court, said they had agreed and found for the plaintiff, fixing no amount. Upon being told they must find a specific amount they stated they were unable to do so, not having the measurements. The court thereupon directed the jury to take the pleadings and return again and fix the amount. The jury found for the plaintiff in the exact amount claimed, and in the exact language used in the complaint.

      John D. Oomsfoeh, for the appellant.

      Ralph E. Prime, for the respondent.
   BARNARD, P. J.:

I think there should be a new trial granted. The action-was for work and labor done by plaintiff for defendant, and for materials furnished. There were five separate causes of action set forth in the complaint. The answer, while admitting some work done at the prices claimed, averred that it had been fully paid. The trial was sharply contested. After the case, went to the jury and they had deliberated for about two hours they requested of the court, information as to what a witness for defendant had testified in reference to a portion of the work claimed for. The counsel for the defendant, in the presence of plaintiff’s counsel, asked the court to bring in the jury and state the evidence to them as requested.. This most reasonable request was refused. A short .time after, the jury returned into court and said they had agreed. They said they found for the plaintiff, fixing no amount. Upon being told they must find a specific amount they stated they were unable to do so not having the measurements. The court thereupon directed the jury to take the pleadings and retire again and fix the amount. This was objected to by defendant, and the decision of the court permitting the jury to take the pleadings duly excepted to. The jury then fixed the exact amount claimed by plaintiff, with interest from the date claimed in the complaint, with costs as claimed therein. The amount of the claim proven on the trial, was $1,629.01, with possible thirty-one dollars additional. The amount of payment proven was $1,304.91. The verdict is for a greater sum than the difference between either claim after deducting payments. The pleadings were not evidence even, beyond the portion thereof admitted in the answer.

1 think the judgment should be reversed and new trial granted, costs to abide event.

GilbeRt, J., concurred.

Present — BabNArd, P. J., Gilbert and DyemaN, JJ.

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