text:
    Charles Robinson Smith et al., Resp’ts, v. Elizabeth Reich, App’lt.

      (Supreme Court, General Term, Second Department.

      Filed July 27, 1894.)

    Adverse possession—Tacking. ^
    A claimant by adverse possession cannot tack the possession of a previous holder to his possession, where the land is- not included within the boundaries in the deed from such holder.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.

      B. K. Payne, for app’lt; Newell Martin, for resp’ts.
   Brown, P. J.

This action was in ejectment for a small tract of land in the town of Islip, Suffolk county. The answer admitted possession, denied the plaintiffs’ title, and alleged that defendant and her grantors had been in uninterrupted, adverse possession for more than 20 years prior to the commencement of the action. In January, 1875, defendant purchased about 100 acres of land from Mary H. Oordts, and at that date took possession of the lands in dispute. The plaintiffs were the owners of several hundred acres lying east of the defendant’s land, and it was their claim that the disputed laud was a part of their tract. It was conceded that the westerly boundary of the plaintiffs’ lands and the easterly boundary of the lands described in the deed from Cordts to defendant was the east line of the Mowbray patent, and the location of that line was the main question of fact litigated upon the trial. Under a charge to which, in this respect, no exception was taken, the jury determined the line of the Mowbray patent to be as claimed by the plaintiffs, and, consequently, that the land in dispute was not included in the conveyance to the defendant. The question presented upon this appeal is whether evidence offered by defendant, and which she claims tended to establish possession adverse to the plaintiffs, was improperly excluded.

Lorenzo Reich, the defendant’s husband, testified that, in company with his wjfe, he visited the property in 1871 ; that he also saw it in 1874. And he was asked whether, at those visits, the premises were cultivated, and, if so, by whom. These questions were objected to, and excluded, to which defendant excepted. Similar questions were asked of the defendant and of William Boland, and excluded, over the defendant’s objection and exception. Boland testified that he saw the premises in 1867, and nearly every summer thereafter. The defendant’s title did not rest upon a written instrument, and hence it was necessary for her to show actual, continued occupation of the premises under a claim of title exclusive of any other right. Pope v. Hanmer, 74 N. Y. 240; Code Civ. Proc. § 371. Under such circumstances, land is deemed to be held adversely when it is usually cultivated or improved. Id. § 372. While it was a fact material to the defendant’s case to show that, for the period of four or five years prior to her occupation, the lot was cultivated, that evidence, of itself, was insufficient to establish an adverse holding. It was essential that it should appear that such cultivation existed under a claim of title by the occupant, and that defendant had succeeded to that title. It did not appear that any person in defendant’s chain of title ever had occupied the land, and no offer to show that fact was made. Nor did it appear that defendant had any other claim to the lot than under her deed from Cordts. Assuming, therefore, that Lorenzo Reich had answered the question asked him by saying that the premises were cultivated in 1874 by Mary Cordts, or that it had appeared that her grantors had occupied them, it would not afford sufficient ground to reverse the judgment. Mary Cordts was not called to prove the character of her possession, and under her deed there was no privity between her and defendant with respect to the lot in question. Adverse possession must be continuous. Code Civ. Proc. § 371. And, when one person seeks to unite to his own possession the possession of prior occupants, the several titles must be connected by purchase or descent. Without some privity between the successive occupants, the several possessions cannot be tacked together so as to make continuity of possession. Doe v. Campbell, 10 Johns. 475; Simpson v. Downing, 23 Wend. 316; Melvin v. Proprietors, 5 Metc. (Mass.) 15; 1 Am. & Eng. Enc. Law, p. 269; Ang. Lim. § 413. If Mary Cordts had been shown to have occupied the land in dispute, Mrs. Reich could not avail herself of that occupation to make up the 20 years necessary to establish an adverse possession, for the reason that the description in her deed excluded the land, and consequently she had not acquired Mrs. Cordts’ title. A different case would have been presented, had the description in the deed included the land in question. The defendant relies upon Barnes v. Light, 116 N. Y. 34; 26 St. Rep. 654. There was no question in that case of continuity of possession. Isaac Barnes, the plaintiffs’ predecessor in title, received his deed in 1823, and occupied the land for upwards of 20 years, and the plaintiffs had succeeded to his title. That case does not conflict with the rule here applied.

We are of the opinion that no error was committed in the exclusion of the evidence referred to, and the judgment must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Patterson, J.

license: Public Domain

text:
    Edward S. Stokes, Pl'ff, v. William D. Stokes, Def’t.

      (Supreme Court, New Fork Special Term,

      Filed June, 1894.)

    Trial—Severance of causes of action.
    Severance may be granted after a demurrer is overruled as to one of several causes of action for libel, and damages assessed thereon.
    Motion for leave to sever the action.

      Holmes & Adams, for motion; Benjamin F. Tracy, opposed.
   Patterson, J.

This is a motion for leave to sever the action, which was brought to recover damages for alleged libels, the complaint containing three separate, causes of action. The application is made under § 1220 of the Code of Civil Procedure, which authorizes the court, in its discretion, where an issue of law and an issue of fact arises with respect to different causes of action, and final judgment can be taken on one or more of the causes of action without prejudice to either party as to the other causes of action, to divide the action into two or more actions, as the case may require; and this, by express terms of the statute, may be done at any stage of the action. In this case the defendant demurred to the first of the causes of action, and answered as to the second and third. The issue of law on the demurrer was decided in favor of the plaintiff at special term, and that decision was affirmed 'at the general term. Subsequently, damages on that cause of action were assessed by a sheriff’s jury, and fixed at the sum of $1,000. The issues of fact have not yet been tried. It is conceded that three separate suits might have been instituted on the three separate alleged libels, and it must be further conceded that a motion to divide may be made at any stage of the case.

This is a new enactment, of doubtful wisdom when applied to such actions as this, but it cannot be ignored. Pinal judgment certainly can be taken as to the first cause of action, and the issues on the other two retained for trial, unless there is something in the construction of the action itself which, as a necessary consequence, would permit but one j udgment as to the three causes of action. It seems to me that a severance of the action would not be prejudical to the rights of either party. But one cause of action has been disposed of. The others remain, and the defenses interposed to them may be fully presented, and the defendant have every advantage of them. The section of the Code referred to apparently covers such cases as the present. The serious objection to the motion, and the one that has been most earnestly and forcibly argued, is that there can be but one final judgment in any action, and that where that action sounds in tort, and for the several causes of action the ad damnum is fixed at one entire sum, there can be no separation and' distribution of that amount, and an application made of one part of it to one cause of action, and the remainder to the others. That would undoubtedly be so, were it not for the section of the Code under consideration ; but that section allows the one action to be split up into two or more actions, and evidently contemplates that upon each action a distinct judgment may be entered, and, in effect, so severs the subject-matters of the several causes of action as to construct from them separate actions, in each of which damages may be recovered. If that view of the effect of a separation and construction of independent actions under the statute is correct, the argument that but one final judgment can be entered has no place' in the discussion. To each action would follow it own appropriate judgment. There is no decided case reported on the subject, and the question is a new and important one, and the objections have been very skillfully argued; but, under the sweeping terms of this section of the Code, I think they are untenable. That the severance should have been made before the assessment of the damages was had as to the first cause of action would have been a strong ground of denial of the motion, were it not that the Code authorizes the motion to be made at any stage of the action. The result of the application of the terms of this statute to actions in tort must be unsatisfactory in many cases, but as the discretion to be exercised is judicial, and not personal, I do not see how the plain terms of the act are to be disregarded. The motion is granted on payment of the costs of the action to date. This condition is required because of the great delay of the plaintiff in moving.

As the question is a novel one, a stay of proceedings on the order to be entered herein will be granted until this decision can be reviewed at the general term, if the defendant desires such stay. _


author: Brown, J.

text:
    John Bohleber, Resp’t, v. August Waelden et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Contract—Cancbi/lation—Breach.
    An assignment of a policy of insurance in consideration of keeping the insured from want and distress, will not be cancelled for a failure of tbe assignee to perform bis part of tbe contract.
    Appeal from a judgment in favor of plaintiff.

      S. T. Maddox, for app’lts; F. Salinger, for resp’t.
   Brown, J.

This case has been before this court on a prior appeal by defendants from a dismissal of the complaint. 69 Hun, 79; 52 St. Rep. 605. It was then assumed that the assignment to Schmidt was made upon his promise to pay the premiums and keep the policy alive, and that it was qualified by the words “as interest may appear." Under those facts it was held that plaintiff was entitled to an accounting, and to a reassignment upon payment of what was due. The case now before us, as made by the pleadings, evidence and findings, is very different from that stated in the opinion of Justice Barnard, and we feel at liberty to consider it disembarrassed from the former decision. It appeared that in August, 1877, the Equitable Life Assurance Society, in consideration of $17.91, payable by Maria Bohleber, plaintiff’s wife, and of quarterly premiums to be paid during the continuance oí the policy, issued its policy of insurance on the plaintiff’s life, payable “ to his said wife, for her sole use, if living, in conformity with the statute, and, if not living, to the children of said John Bohleber, or their guardian for their use, or, if there be no such children or wife surviving, then to the executors, administrators or assigns of said John.” On December 14, 1889, said Maria Bohleber and John Bohleber executed and delivered an assignment of said policy to the appellant Charles Schmidt “ as .interest may appear.” On March 28th, Schmidt executed and delivered to the appellant Waeldcn an assignment of said policy absolute in form. The court found that no fraud or mutual mistake was proven against the defendants, or either of them, upon obtaining the assignment to Schmidt. The plaintiff’s wife died in April, 1890, and no children survived her. The complaint alleged, and the court found, that the assignment to Schmidt was made on his promise to pay the premiums and “ keep the plaintiff and his wife from want and from distress caused by lack of funds or sickness; ” and that in September, 1890, said defendant refused to render assistance to the plaintiff, although he was then in want and distress, and thereafter failed to support him. I can find no evidence in the case that Schmidt ever refused to support the plaintiff. All that the plaintiff testified to on his direct examination was that Schmidt lived on Marcy avenue, and moved from there to the country in December, 1890, and that he did not move with him because Schmidt did not take him with him. Being recalled in rebuttal, he said : “ I did nothing about going with Schmidt when he moved from Marcy avenue to the country. I did not move with him. He didn’t say anything to me. On the contrary, I helped him move out for a whole week, and I supposed when he got settled there and in order he would take me out with him. He never offered to take me. Q. Did you ever offer to go with him?. A. No, I did not. I have thought he would send his son for me, and take me. I was living in a hall room at the time, for which I paid three dollars per month.” Upon the plaintiff’s theory of the case, therefore, he failed, as he certainly could not be entitled to the relief he seeks until the defendant was in default by a refusal to perform his contract. But, independent of this finding, this action cannot be sustained without disregarding well settled rules of law. We may assume, for the purpose of this appeal, without deciding it, that under the condition of the policy relating to payment the plaintiff, by the death of his wife and children, acquired a vested interest therein, which entitled him to maintain an action for its protection. But the rule is well settled that the jurisdiction of a court of equity to cancel an instrument is exercised only upon allegation and proof of fraud or mistake. Wilson v. Deen. 74 N. Y. 531-585; Herrick v. Starkweather, 54 Hun, 532; 28 St. Rep. 364. No such allegations are made in the complaint, and no evidence thereof was given upon the trial, and the court distinctly found that the assignment to Schmidt was not the product of any fraud or mistake. The charge is that the defendant Schmidt failed to keep and perform the contract which was the consideration of the assignment. By the very terms of the agreement its performance by Schmidt was to begin after the execution and delivery of the assignment, and the omission to perform it cannot be made the ground for setting aside the assignment. It may afford a basis for an equitable action for specific performance, or a legal action for damages, but not to annul the instrument of which it was made the consideration. The expression, “as interest may appear,'’ contained in the assignment, adds nothing to the plaintiff’s case. There was no indebtedness to Schmidt from plaintiff or his wife, and the words quoted appear to be without meaning in the contract actually proven. Schmidt had no interest in the policy except such as he acquired by the assignment. It was not given as security, but as a consideration for his agreement to support the assignors. Under settled rules of law the title to the policy, subject to the conditions therein stated, upon the delivery of the assignment vested in Schmidt, and upon the death of plaintiff’s wife became absolute. He could sell it, and transfer a good title; and bis assignment to Waelden was not subject to any equities in the plaintiff.

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

All concur.


author: Cullen, J.

text:
    Anna G. Pilcher, App’lt, v. Bernard Levino et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Deceit—Action fob—When lie.
    An action for deceit will lie, where a sale of land is made for an excessive price, as part of a scheme to which others are parties, so that the grantee should defraud those who might become creditors in furnishing material or labor on the buildings, and the others reap the benefit of the fraud.
    Appeal from an interlocutory judgment sustaining a demurrer to the complaint.

      William 0. Cooke, for app’lt; Charles II. Otis, for resp’ts.
   Cullen, J.

This is an appeal from an interlocutory judgment sustaining a demurrer to the complaint. While the complaint is inartificially drawn, and justly subject to the criticism of the learned judge below as presenting a confused statement of facts, we think it sets out a single good cause of action for deceit and fraud. Stripped of unnecessary allegations and verbiage, it states that the three defendants, for the purpose of enabling the defendants Levino and Bailey to obtain an excessive price for certain real property, and designing to cheat and defraud the plaintiff’s assignors, and such other persons as should furnish labor or material for the buildings to be erected on the property, for which labor and materials the defendants did not intend to pay, agreed that Levino and Bailey should convey the property to the defendant Bedell; that Bedell should erect buildings thereon, the defendants Levino and Bailey taking mortgages back for the purchase money and their advances ; that defendant Bedell was wholly irresponsible, and that thus the other defendants would obtain, through their mortgage, the value of the mortgaged premises, enhanced by the improvements thereon; that, in pursuance of such agreement, the defendant Levino falsely and fraudulently represented to plaintiff’s assignors that the defendant Bedell was financially responsible; that, relying on such statement, said assignors furnished on credit to Bedell 'the stone for the buildings erected on the premises, amounting in value, to $5,100; that Bedell failed to pay such claim, and that- the property was sold to satisfy the mortgages held by the defendants. In this statement are two allegations sufficient to maintain an action for deceit. The false statement of Levino as to the financial responsibility of the defendant Bedell would certainly uphold the action as against him, and the allegation that it was made in pursuance of an agreement between all the defendants to cheat and defraud plaintiff’s assignors would uphold the action as against the others. Morehouse v. Yeager, 71 N. Y. 594. But the real gravamen of the complaint lies in the other allegation. The purchase of property with the preconceived intent not to pay therefor is fraud. Nichols v. Pinner, 18 N Y. 295; Hennequin v. Naylor, 24 N. Y. 139. Even if it be claimed that the purchase was made by the defendant Bedell alone, still, if the other defendants were parties to his intention, and aided him in carrying through the scheme of fraud, as alleged in the complaint, they are equally liable. It is urged that there is no fraud in selling property for an excessive price, even though the effect of a purchaser incurring the obligation on the purchase is such as to prevent him paying his credit. This is unquestionably true. But such is not the gist of the complaint. It is not that a sale was made to Bedell for an excessive price, but that it was so made as a part of a scheme, to which all the defendants have beewalleged to have been parties, that Bedell should defraud those who might become creditors in furnishing material or labor on the buildings, and the other defendants reap the benefit of the fraud. That, for such a fraud an action will lie is settled by authority. Moore v. Tracy, 7 Wend. 229; Place v. Minister, 65 N. Y. 89. So, also, it is a fraud for a creditor to conspire with his debtor that the latter shall purchase goods on credit from other persons in order that the creditor may seize them on execution to satisfy his own claim, even though such claim be entirely valid. Clark v. Exchange Printing Co., 74 Hun, 71; 56 St. Rep. 226.

Judgment appealed from should be reversed, and judgment rendered for plaintiff on demurrer, with costs, with leave to defendants to answer on payment of costs.

All concur.


text:
    Alexander M. Conway, Resp’t, v. Edward O. Carpenter, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Corporation—Religious—Pastor—Discharge. .
    A church, may discharge its pastor at any time during the contract, so as to render him a trespasser in case lie afterwards enters the pulpit.

      2. Lease—Surrender—Question eor jury
    The question whether there was a surrender of the lease, was held, upon the facts in this case, one for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Rudd, Hunt & Wilder (James M. Hunt, of counsel), for app’lt ; William Riley {John F. Brennan, of counsel), for resp’t.
   Cullen, J.

This is an appeal from a judgment in favor of the plaintiff entered upon the verdict of a jury at circuit. The plaintiff claimed to be the pastor of the Messiah Baptist Church of Yonkers. The Warburton Avenue Baptist Church owned the church property occupied by the former church, and leased it to the Messiah Church at a nominal rent, with the reservation that in case of any disagreement in the congregation or board of trustees of the lessee, or other cause which, in the opinion of the trustees of the lessor, might make it expedient, the lessor might terminate the lease and re-enter. There was dissention and dispute between the plaintiff and his congregation. The pulpit was declared vacant by the church, and the plaintiff excluded from the church edifice. But on the occasion of the subject of this action he followed in some persons engaged in lighting the church, occupied the pulpit, and insisted on preaching. His opponents then applied to the defendant, who was one of the trustees of the Warburton Avenue Church. The defendant had the plaintiff removed by force from the pulpit, and ejected from the church. For this the present action of assault and battery was brought. The defendant justified on the ground that the church had been previously surrendered to the lessor, and that the plaintiff was a trespasser. 'On a former trial the plaintiff was nonsuited. On appeal that judgment was reversed (73 Hun, 540; 56 St. Rep. 429); the general term holding that the evidence was insufficient to show a surrender, and that, even if there had been a surrender, it was not a justification for the violence of the assault upon the plaintiff. On the present trial additional evidence was given as to the surrender of the church. But the learned trial judge, though dissenting in general terms from the decision referred to, felt bound, by that decision, to instruct the jury that there was no surrender, and that the removal of the plaintiff was unlawful. We think this disposition of the case was erroneous. On the new trial there was shown not only the resolution of the two church corporations, but the fact that the keys of the church were delivered to the trustees of the lessor, and held by them for some time. The trustees of the lessor authorized a delivery of the keys to one Pollard, a trustee of the lessee church, and he was given permission to open the house for religious service only, and directed, in case of disturbance, to return the keys to the defendant in this action. The return of the keys to Pollard was not necessarily a disclaimer of the surrender by the lessee. As read the resolution, itsintention was to give Pollard a mere personal license, revocable at any time. We think the question of surrender by the lessee to the lessor should have been submitted to the jury, with instructions that, in case they found such surrender, then the defendant was justified in using such force as was necessary to eject the plaintiff, if the latter, after notice, refused to leave the church. The court also instructed the jury that the plaintiff was the pastor of the church at the time, and that the Messiah Church could not, under its contract, terminate the plaintiff’s position as pastor till the time at which his resignation was to take effect. To this the defendant excepted. We think the charge in this respect was misleading. If the Messiah Church, in violation of its contract, discharged the plaintiff, it would doubtless be liable to him for damages, but he would not have the right to enter upon the premises of the church, against its wish any more than any other employe or servant improperly discharged The judgment and order denying motion for new trial appealed from should be reversed, and a new trial ordered; costs to abide event.


text:
    D. G. Burton Company, Resp’t, v. Stuart W. Cowen et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Appeal—Finding.
    A finding, which cannot be said, with reasonable certainty, to be erroneous, will not be disturbed on appeal.
    2. Abatement and revivor—Another action pending.
    An action to foreclose a mechanic’s lien is not abated by the pendency of an action by a third person, in which the plaintiff was named as a defendant but not served with process.
    Appeal from a judgment in favor of plaintiff.

      Stuart W. Cowan, for app’lts Cowan, Beach and Field; Walter R: Beach, for app’lts Rich and Storms; Milo J. White, for resp’t D. Gr. Burton Co.; Joseph S. Wood, for resp’ts Heinsohn and Maxwell; Isaac N. Mills, for resp’ts Spier and others ; Frank M. Buck, for resp’ts Benson and others; David 0. Williams, for resp’ts Duprie and others.
   Cullen, J.

This is an appeal from a judgment in favor of the plaintiff and certain of a defendants against the other defendants, entered on the report of a referee. The action is brought by the plaintiff, which furnished material for the erection of certain buildings, against the owners of the premises and certain other lienors, to foreclose a mechanic’s lien. The contractors abandoned their contract before completion, and the buildings were finished by the owners. After deducting the cost of completion from the contract price, there concededly remained a large sum applicable to the liens ; but there was a bitter dispute as to what that sum was, although the amount of the difference between the parties was comparatively small. The question of'the cost to the owners of completing the contract, and the allowance to be made on one side for defects and delay and on the other side for extra work, was solely one of fact. We are not justified in interfering with the decision of the referee in this respect, even though we might Lave reached a different conclusion ourselves, unless the preponderance of evidence in favor of the defendants was so great that it can be said with reasonable certainty that the findings of the referee are erroneous. Barnard v. Gantz, 140 N. Y 249; 55 St. Rep. 541. A review of the evidence shows that there was a sharp conflict of testimony, but no such clear preponderance as to bring the case within the rule cited. One of the defendants, a lienor, prior to the commencement of this action began an action in the county court to foreclose his lien, filing complaint and lis pendens and serving the summons on the defendant owners. He did not serve the plaintiff in this action, although the plaintiff here was there named as a party defendant. On these facts the defendant owners set up the plea of another action pending. This was overruled by the referee on the ground that the claim of this plaintiff exceeded in amount the jurisdiction of the county court. It is not necessary to express any opinion on the ground of this ruling, as we think the ruling was correct for other reasons. The action was not pending as against this plaintiff till he was served with process. Warner v. Warner, 57 St. Rep. 763; 27 N. Y. Supp. 160; Haynes v. Onderdonk, 5 Thomp. & C. 176. We are also of opinion that under the mechanic’s lien law any lienor may commence his separate action subject to the right of any party to move to consolidate the actions as provided for by that statute.

The agreement between the owners and the contractor fixing the amount of damages for alleged delay, made at the time of the abandonment of the work, was not conclusive on that subject. As the consideration for that agreement and allowance the owners made stipulations on their part relative to deposit of moneys and contests of liens which they wholly failed to comply with. This default on their part avoided the agreement. The judgment appealed from should be affirmed, with costs. All concur.


text:
    Johan G. Johnson, Resp’t, v. Long Island Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Damages—Negligence.
    The jury may, in. an action for the death of intestate, consider what deceased would have brought to his next of kin, and what was their prospect of inheriting from him when dead.
    2. Same—Excessive.
    A verdict for $5,000 was held, under the facts and circumstances of this case, not to be excessive.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      W. G. Beecher, for app’lt; J. Edward Swanstrom, for resp’t.
   Cullen, J.

This is an appeal from a judgment entered upon the verdict of the jury at circuit, and order denying defendant’s motion for a new trial. The action is for damages in causing the death of plaintiff’s intestate, a passenger on defendant’s railroad. No question is made that the issue of defendant’s liability was not properly for the jury, but we are asked to reverse the judgment on the ground that the damages are excessive, and for alleged errors of the court in its charge to the jury on this subject. There can be no doubt as to the power of this court to review the determination of the jury as to the amount of damages. Reference to the amount of recovery in other cases is therefore made, not as establishing a rule of law controlling our action, but as evidencing common judgment or opinion of courts ou this subject. This deceased was a single man, 33 years old, and worked in making pianos for the plaintiff, his father, with whom he resided. He was paid no fixed wages, but such amounts as the father deemed proper. The amount of the recovery was $5,000. It is only in rare instances that the courts should interfere with the verdict of a jury in this class of cases. We cannot say that $5,000 is an excessive sum for the life of a healthy man of the age of deceased, considering the relations existing betwben the father and son. It certainly does not contract unfavorably with other recoveries. In Tilley v. Hudson River Railroad Co., 29 N. Y. 252, for the death of a married woman, leaving a husband and children, managing the household, but the source of no earnings or revenue, the recovery was $5,000. In Ihl v. Forty-second St. & G. St. R. Co., 47 N Y. 317, for the death of a child 3 years old, the recovery was $1,800. In Houghkirk v. D. & H. Canal Co., 92 N. Y. 219, for a child aged 6, the recovery was $5,000. In Bierbauer v. N. Y. C & H. R. R. R. Co., 15 Hun, 559, a recovery of $5,000 by a father for death of a son aged 21 years, and earning $25 a month, was upheld by a majority of the court.

The court on the trial charged the jury that it might look ahead and consider what the deceased would have brought to his next kin while living, and what was their prospect of inheriting from him when dead. To the latter part of this charge exception was taken. The charge in this respect is justified by authority. In Ihl v. Forty-second St. & G. St. R. Co., supra, it is said by Judge Rapallo : “ It was within the province of ’the jury to form an estimate of the damages with reference to pecuniary injury, present or prospective, resulting to the .next of kin. The statute does not limit the recovery to the actual pecuniary loss proved on the trial.”

In McIntyre v. N. Y. C. R. Co, 37 N. Y., 290. “ the statute has set no bounds to the sources of these pecuniary injuries.” In Birkett v. Knickerbocker Ice Co., 110 N. Y. 504; 18 St. Rep. 130, Judge Earl writes: “In estimating the value of this child to her next of kin, the jury could take into consideration all the probable, or even possible, benefits which might result to them from her life, modified, as in their estimate they should be, by all the chances of failure and misfortune.”

The prospect of the deceased accumulating property, and the next of kin inheriting from him, is not more speculative in the expectation of his acquiring money, and the next of kin sharing in his bounty or beneficence while he should live. The two exceptions to the admission of evidence are not well taken. The questions put to the witness at folios 141 and 146 were legitimate cross-examination, and tended to contradict his testimony as to the probable cause of the action.

A judgment and order denying new trial should be affirmed, with costs. All concur.


text:
    John McGonigle, App’lt, v. James P. Canty, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Master and servant—Question eor jurt.
    Tlie facts, in tlxis action, were held to make a case for the jury on the question whether the injuries to a servant were caused by the negligence of the master.
    Appeal from a judgment entered on a verdict directed by the court in favor of defendant, and from an order denying a motion for a new trial on the minutes. *

      G. H. & J. A. Young, for app’lt; Martin J. Keogh, for resp’t.
   Cullen, J.

This is an appeal from a judgment entered in favor of the plaintiff on a nonsuit at circuit. The action was by servant against master for personal injuries. The defendant was a builder engaged in the erection of a house, the plaintiff a mason in his employ. The plaintiff was at work on the foundations of the building, which were nearly completed. A tree stood so near the foundation that it became necessary to cut it down. When cut, it fell partly on the foundation, and the plaintiff was injured. We think that the complaint should not have been dismissed. The tree was some forty feet high, and stood within three feet of the foundation. The defendant was present, and there was evidence to show that he was personally supervising the work of cutting down the tree, though that work had been started by his foreman. There is no evidence to show that the direction in which the tree fell was due to any negligence of the workmen who cut it. It was, therefore, not the case of negligence by a coservant. But we think that the act itself was inherently dangerous to per-persons who might be near the tree, or at least that the jury might have so found; and might also have found that appliances, such as ropes, should have been used, and that the men at work on the foundation should have been warned, and called off, before the tree was about to fall. The defendant testified that he did give such warning some minutes before the tree fell, but the plaintiff denied that he received any word until the tree was actually falling. We think that these facts made a case for the jury-


text:
    Samuel H. Davis, App’lt, v. Daniel P. Darling et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Partnership—Agreement—Construction,
    A partnership, formed for the. purpose of dealing in “ regular real estate business,” and providing for a division of the net profits of “said brokerage business,” does not include speculation in real estate.
    Appeal from a judgment in favor of defendant.

      George D. Beattys, for app’lt; G. G. & F. Reynolds, for resp’ts.
   Cullen, J.

This is an appeal from a judgment for the defendants entered upon the report of a referee. The action was brought for an accounting of the partnership transactions between plaintiff and defendants. The partnership is admitted. The questions litigated on the trial, and the subject of this appeal, are whether the profits of certain ventures entered into by the defendant Daniel P. Darling should inure to the firm, or to that defendant individually. We think there can be no doubt as to the correctness of the interpretation of the contract of partnership adopted by the learned referee. The defendant Darling was a real-estate broker, and also a speculator in real estate. In 1880 the plaintiff and defendant entered into a partnership, under a written agreement. The -partnership was renewed in 1883, and again in 1886; on both occasions, also, by written agreement. The ageeements of 1880 and and 1883 declare that the parties have agreed and do agree to associate themselves as copartners in the “ regular real-estate, insurance, and mortgage loan business.” Here arises the first difference between the parties. The defendants claim that the term “ regular real-estate business ” is to be interpreted as meaning the business of real estate brokers,—not the business of operating or speculating in real estate. This the plaintiff disputes. On this question the referee held for the defendant. Prom our knowledge of general business terms or expressions, we should have little doubt that the true meaning of this phraseology, unless varied by other provisions of the agreement, or the situation of the parties, was a brokerage business. But all doubt'is set at rest by the further provisions of the agreements themselves. In that of 1880 the contract recites, “ For the purpose aforesaid the said Daniel P. Darling hath admitted the said Samuel H. Davis to a full one-half interest in said real-estate, insurance, and mortgage and loan brokerage business.” The agreement of 1883, in directing the •distribution of the profits, provides, In all net profits arising from said brokerage business,” etc. These declarations are conclusive as to what was intended to be the business of the copartnership.

But the more serious question is whether, even on the construction we have given to the partnership agreement, the plaintiff is not entitled to share in the profits of the Cogswell and similar contracts. We may assume, with the referee, that, while the other partners were obligated to give their entire time to the business, the defendant D. P. Darling was not. Still, admitting this, that defendant could not carry on the same business as that of the firm, and retain the profits for himself. This competition would be inconsistent with his duties to his copartners. It is- unquestionable, in our judgment, that he might have gone into an ordinary real-estate speculation on his own account, or with others. But by the Cogswell agreement the consideration or contribution which he made to the joint venture was “ the services of said Darling in the purchase thereof [the land],” and his agreement to make sale “ thereof to the best of his ability.” Now, this was the very trade or business of the firm. It is true that he further agreed to personally pay one-lialf of any loss on the venture. It may be that this would take the case out of the general rule, but it is not necessary to determine that question, in the view that we have taken of this case. The evidence shows that the plaintiff knew of at least some of these contracts. He knew that D. P. Darling was engaged in such operations, for he asked him for one of the latter’s contracts, as a form, and, having obtaiiied it, he entered into a similar speculation on his own account. He now says that he intended the benefit resulting therefrom to accrue to the firm. We think this very doubtful. In all cases of these speculations the regular commission of 1 per cent, was paid to the firm. The speculations themselves doubtless tended to increase the business of the firm. We think the referee could, on the evidence, well have found that the parties assented and agreed that any member o£ the firm might enter into such speculation,-—-the firm receiving from the transaction the ordinary commissions on sales. The Walsli matter seems to have been the individual speculation of the defendant Darling, which, under the construction which we have put upon the partnership agreement, he was at liberty to make. For these reasons we think the judgment should be affirmed.

The judgment appealed from should be affirmed, with costs.

All concur.


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    William H. Neff, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Nuisance—Railroad bridges.
    A bridge of insufficient height to allow a man standing on a freight car to pass under, maintained across a railroad track of another company, with the latter’s consent, is not per se a nuisance.
    2. Negligence—Telltales.
    A company is not bound to maintain telltales at a bridge, which carries its tracks over the tracks of another company.
    Appeal from a judgment dismissing the complaint.

      John W. Lyon, for app’lt; Ashbel Green (A. S. Oassedy, of counsel), for resp’t.
   Cullen, J.

This is an appeal from a judgment entered upon a nonsuit at circuit. The plaintiff was a brakeman in the employ of the Erie Railway Company. At a point some short distance west of Jersey City, in the state of New Jersey, the West Shore Railroad, which is leased and operated by the defendant, crosses the Erie Railway on a bridge which is 18 feet above the rails of the last-named road. There were no “telltales” on the bridge. The plaintiff was on the top of a refrigerator car in a train on the Erie road, and, while the train was passing under the bridge, was struck by it, and severely injured. For this injury he has sued the defendant. The theory upon which it is sought to enforce a liability against the defendant is that the bridge was per se a nuisance, and that the defendant was guilty of maintaining a nuisance. We think this proposition cannot be sustained. The duty of maintaining its railroad reasonably safe for operation by its servants rested on the Brie company, not on the defendant. Undoubtedly, if any trespasser on a railroad caused an injury to its employees or passengers, the trespasser would be liable; but there was no . proof or claim that the defendant was a trespasser. On the contrary, it must be assumed (premising that defendant’s road was constructed after the Erie Railway) that the bridge w'as built with the assent of the Erie company. The question then, is whether a structure across a railroad of height insufficient to allow brakemen to stand on the top of freight cars is per se illegal. There is no statute to be found in this state, nor proof of any in the state of New Jersey, to show that such is the law. The New York statute, chapter 439, Laws 1884, directing that railroads shall place warning signals at every low bridge or structure which crosses the track recognizes the legality of such bridges and structures. It is a matter of common knowledge that the vast majority of bridges and tunnels are of height insufficient to permit persons to stand on the tops of cars while passing under or through them. The reports are full of cases of injuries to railroad employees arising from such bridges or structures, yet with one exception, to be commented on hereafter, we cannot find any authority for the claim1 that it is illegal or negligent to maintain such a structure. In Wallace v. Cent. Vt. Railroad Co., 138 N. Y. 302; 52 St. Rep. 351, the latest case on the subject, where a non-suit was reversed, the negligence of the defendant was placed on the condition and location of the warning signals, but no suggestion was made that the bridge itself was improper. The principal authority relied on for the plaintiff is Dukes v. Eastern Distilling Co., 51 Hun, 605; 22 St. Rep. 833. In that case the plaintiff, a brakeman on the Long Island Eailroad, was injured by a bridge placed by the defendant over the railroad. The case was affirmed by the court of appeals without opinion. 33 St. Rep. 1029. In the opinion at general term it is said: “ The bridge was built witli the consent of the railroad company, and has been enlarged somewhat with like consent. This consent was no defense to the construction of a dangerous nuisance.” .These isolated expressions would doubtless sustain the plaintiff’s claim, but they were entirely obiter. A reference to the printed appeal book shows that here was no such point in the case. At circuit the exact contrary was assumed to be the law. The trial judge charged: “But before the plaintiff can recover you must be satisfied that the structure was unlawfully there,—that is to say, that the company never consented that it should be put there; and, if it did consent, it subsequently revoked that consent, and notified the distillery company to remove it.” The dictum of the distinguished presiding justice in the Dukes Case would seem to conflict with his own opinion in Ryan v. L. I. Railroad Co., 22 St. Rep. 655; 4 N. Y. Supp. 381, where the defendant was held not liable for failure to place warning signals on the interior bridges of a group, of five low bridges. As to the absence of “ telltales ” on the bridge, no statute of New Jersey was proven making it a duty to-maintain sucli signals. If it be conceded that the use of such 'signals is now so general that a failure to maintain them may be ■deemed negligence, even in the absence of statutory requirement, we think the duty of such maintenance devolved upon the Erie Railroad Company, not upon the defendant. The judgment appealed from should be affirmed, with costs.


author: Brown, P. J.

text:
    The People ex rel. J. Esler Eckerson, App’lt, v. Board of Trustees of Village of Haverstraw, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Eminent domain—Vim,age—Procedure.
    The illegality of the provision in the Village Incorporation Act for the selection of a jury to assess compensation for land taken for street is cured by the provision authorizing, on appeal to county court, its assessment by three commissioners.
    2. Same—Bond—Constitutional.
    The requirement of a bond by the landowner on appeal and of the payment of costs in case the jury’s award is not increased, does not make the Act unconstitutional.
    3. Same—Payment op award.
    The provision in the Act that possession may be taken and payment made within a year is valid, in view of the fact that the damages awarded are assessable on all the taxable property of the village.
    Certiorari to review the proceedings of the board of trustees of the village of Haverstraw in opening a street in said village.

      Galvin Frost, for the relators; William HeGauley, Jr., and Alonzo Wheeler, for resp’ts.
   Brown, P. J.

The relators attack the award of damages made to them by the jury in the proceeding to open a highway on the ground that the provision of § 2 of title 7 of the act for the incorporation of villages (chapter 291, Laws 1870), as amended by chapter 694, Laws 1893, is in violation of that provision of the constitution which directs that the compensation for private property taken for public use shall, when it is not to be made by the state, be ascertained by a jury, or by not less than three commissioners, appointed by a court of record. Section 2 in the original act provided that, in case damages were not determined by agreement between the trustees and the landowner, “ the board shall meet and cause a jury of six freeholders to be summoned to determine and award said damages.” The amendment of 1893 added to the original section the following : “ The said jury shall be selected as follows: The said board of trustees shall prepare a list of twelve freeholders of the village in no wise applicants, owner or occupants, or either or any of them, and not interested in the lands proposed to be taken. They shall prepare a copy of said list with a notice of meeting to be held,” etc. “ At the time and place mentioned in said notice the board of trustees shall meet, and the owner of the land may strike from the said list not more than six names, and of the number which remains, the six names standing first upon the list shall be the jury.”

The requirement that compensation for property taken for public use must be ascertained by a jury or by commissioners appears for the first time in the constitution of 1846. Under the second constitution of the state, the mode of ascertaining damages belonged to the legislature, and it could select the tribunal, and provide the manner of its formation. Livingston v. Mayor, etc., 8 Wend. 85. In construing the term “jury,” as used in the constitution of 1846, the court of appeals, in Cruger v. Hudson River Railroad Co., 12 N. Y. 190, held that it was “ descriptive of a body of jurymen, drawn in the ordinary mode of drawing juries;” and this conclusion was based upon the meaning which the term had acquired in the law from long legislative usage, and which the court presumed was known to the convention, and adopted by it. The qualifications of jurors are provided by the Code, and they must be male citizens, and residents of the county in which they are qualified to serve, of a designated age, and possessed of certain property qualifications; not infirm or decrepit; of fair character, approved integrity, sound judgment, and well informed. The jurors provided for in the act under consideration are required to be freeholders of the village only, excepting that they be not of kin to the applicants for the road, or to the landowner, and not interested in the lands taken. No other limitation is put upon the trustees in their selection. They may bo of any age, or of either sex, and possessed of none of the qualifications named in the Code. Moreover, they are to be selected by the trustees, who, as the damages were assessable on the whole village property, are parties to the proceeding to open the street, representing interests adverse to the landowner. A jury selected in such a manner does not, we think, meet the requirements of the constitution. I have examined •all the law cited by Judge Johnson in his opinion in Oruger's Case, and many others enacted before and immediately after the adoption of the constitution of 1846, and I have been unable to find one that did not provide that the jury should be drawn from the jurors selected in the towns for duty in the courts. Generally, they are to be drawn from the' list of grand jurors, but occasionally the petit jurors. Such was the provision of the highway law of 1847 for the reassessment of damages, and it has been continued in all subsequent amendments, down to the recent revision of the statute. The laws invariably required the jury to be drawn by or in the presence of a public officer,—generally the county judge, but oscasionally by the vice chancellor or a justice of the peace; and I think this will be found to be the first instance in which they were to be drawn by a party to the proceeding.' If the village law made no other provision for the assessment of damages, except that contained in the amendment of 1893, we should hold that the mode prescribed was not in conformity to the constitution, and that the proceedings had in this case were invalid. A jury, within the meaning of the constitution, must be drawn or selected from the jurors designated in the manner required by the Code. The constitution has not limited its number, or the particular manner in which it shall be drawn, but it has designated the class of persons from whom alone it must be selected. But the village law has not made the award of the jury final; but, by § 4 of title 7, it has given to the landowner the right of appeal to the county judge of the county in which the village is situated. Laws 1878, c. 59, § 8. Upon such appeal there is to be a hearing upon notice to all parties interested, and the judge is required to appoint three commissioners to determine and award the damages of the person so appealing; and such commissioners have power to compel the attendance of, and the examination of, witnesses, to view the property, hear the proofs of parties, and make such award as they shall deem just. The appeal stays all proceedings, and the trustees may not enter upon the land until the award of the commissioners becomes final and conclusive, as provided in the statute. This mode of ascertaining the compensation to be made to the landowner is certainly in compliance with the constitution of the state, and removes the objection to the statute which would exist if no appeal was authorized. It has been repeatedly decided that an assessment may be made, in the first instance, in any manner directed by the legislature, provided that an unqualified and unfettered right of appeal be given to the landowner, under which he is entitled to have his damages assessed in the manner provided by the constitution. Lamb v. Lane, 4 Ohio St. 167; City of Des Moines v. Layman, 21 Iowa, 158; Beers v. Beers, 4 Conn. 535; Dill. Mun. Corp. (5th Ed.) § 618, and notes; Tied. Mun. Corp. § 245, and notes. In Massachusetts the supreme court decided that a statute authorizing a magistrate to try a defendant without a jury, and pass sentence, in a criminal case, was not unconstitutional, as impairing the right o£ trial by jury, when the defendant was given an unqualified right of appeal and a trial by jury in the appellate court, subject only'to tho requirements of giving bail for his appearance. Jones v. Robbins, 8 Gray, 329. See, also, Dill. Mun. Corp. § 439; Cooley, Const. Lim. (5th. Ed.) p. 507, and cases cited in notes. While a different view was expressed by Judge Blatchford in Dana's Case, 7 Ben. 1, Fed. Cas. No. 3,554, the supreme court of the United States, Callan v. Wilson, 127 U. S. 540, referred to Jones v. Robbins, without disapproval. But, whatever the rule may be in criminal cases, I have no doubt of its correctness in proceedings for taking private property. It is always permissible, in such cases, for the landowner to waive the constitutional provision in his favor. He may accept the award of the jury, if he chooses, or he may take his appeal, and have his damages assessed by a lawful tribunal. The provision which requires a bond, and imposes costs on the landowne'r, in case he fails to increase the jury’s award, relates to the procedure only, and does not violate any constitutional right. Similar provisions in relation to costs have always existed in the general railroad law. Neither does the fact that application is to be made to the county judge, instead of to the county court, deprive the landowner of any constitutional right, as he may always make his application at a term of the county court.

The provision that the trustees may take possession of the land upon the filing of the commissioner’s report, and make payment to the landowner within a year is entirely legal. People v. Hayden, 6 Hill, 359; Rexford v. Knight, 11 N. Y. 308.

The damages awarded are, by § 5 of title 7, made assessable upon and payable from the whole taxable property of the village ; and thus certain and adequate provision is made, by which the landowner can coerce payment of his award, and this provision fulfills the requirements of the constitution. Bill. Mun. Corp. § 615.

The learned counsel for the relators has not referred in his argument to the provisions of the statute which I have quoted, giving the right of appeal to the landowner; and we have not had the benefit of his. views as to their effect upon the question of the constitutionality of the general scheme provided by the statute for the assessment of damages. But we have no doubt that the right of appeal removes all objection that would exist to the assessment by a jury under § 2, as amended by the- act of 1893, provided that section stood alone. The award of the jury is made conclusive upon the landowner in 20 days after service upon him of a copy thereof, provided no appeal is taken.

We are of the opinion that the relators have not been deprived of any constitutional rights, and the award must be affirmed, with costs.

Cullen, J., concurs; Dykman, J., dissents.


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    Frank A. Bennett, as Receiver, etc., Resp’t, v. Edward G. Woolfolk et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Receivers—What passes.
    A cause of action for a trespass, committed on the land of the judgment debtor before the appointment of a receiver, passes to him.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Wm. J. Marshall, for app’lts ; Frank A. Bennett, for resp’t.
   Cullen, J.

This is an appeal from a judgment of the county court entered upon the verdict oí a jury. The action is for trespass on the lands of one Quinn, by digging holes in his dooryard, anchoring there cables for defendant’s derricks, and piling stones on his sidewalk In supplementary proceedings against Quinn, the plain.tiff was appointed receiver. But one exception was taken on the trial, that to the refusal to dismiss the cpmplaint. The motion was based on the ground that the cause of action was not assignable, and did not pass to the receiver. This is plainly untenable. All causes of action for injuries to property rights survive to personal representatives, and are therefore assignable. Code, § 1910; 2 Rev. St. pp. 447, 448; Byxbie v. Wood, 24 N. Y. 607. It is now objected that there was no evidence to show the amount of damage. These damages were not justly the subject of expert testimony. It was-not for witnesses, but for the jury, to say what would be a fair compensation for the inconvenience of posts and cables in the dooryard, and stones obstructing the sidewalk.

The judgment and order denying new trial should be affirmed,, with costs. All concur.


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    Benjamin Crosby, Resp’t, v. William H. Clark, as Executor, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Money had and received—What constitutes.
    A failure to apply money, entrusted to defendant for such purposes, to such end entitles to a recovery, without proof of how he disposed of it.
    Appeal from a judgment in favor of plaintiff.

      William Vanamee, for app’lt; Daniel Finn, for resp’t.
   Cullen, J.

This is an appeal from a judgment in favor of the plaintiff, entered upon the report of a referee in a reference of a disputed claim under the statute. The plaintiff’s claim was for $1,000 given to the deceased, in 1884, for investment on a mortgage to be made by one Webster. The plaintiff claimed that the money was not so invested, but appropriated by the deceased to his own use. That the money was left with defendant for investment in this intended mortgage, and that it was not so invested, no loan being made to Webster, was proved on the trial, and is, as we understand, conceded by the appellant. No evidence of a return of the inonej'- by deceased, or its subsequent investment or application for the benefit of the plaintiff, was given. The appellant contends that the facts proved were insufficient to authorize a recovery for the cause of action stated in the complaint, and that the plaintiff, to entitle himself to prevail, was bound to show how deceased had appropriated the money. It may be conceded that, in dealings between principal and agent, or master and servant, the law will presume that the agent or servant who has been in the habit of paying over the moneys received by him has properly accounted for the principal’s money which has come into his hands, and that the burden of proof resting on the principal is not satisfied merely bji evidence showing the receipt by the defendant of money of the principal. Turner v. Kouwenhoven, 100 N. Y. 115. But in this case we think that the burden was fully satisfied. The money was intrusted to, the deceased for application for a particular purpose. That he failed to so apply it is proved. I see no good reason in the evidence to show why the loan could not have been made. The $800 due on the old mortgage could have been paid out of the proceeds of the new mortgage. Having failed to apply the money to the use for which it had been received, it then became incumbent on the agent to show either that be had returned the money, or in some manner applied it to the use of his principal. As this was not shown, we think the judgment was properly rendered for the plaintiff.

The judgment appealed from should be affirmed, with costs.

All concur.


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    Eliza Tyler, Resp’t, v. George A. Tyler, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Marriage—Yai/toity—Absence of former spouse.
    A marriage during the absence of a former spouse is void, unless diligent effort to locate the absent one has proved unavailing.
    Appeal from an order granting an application to revoke letters of administration.
    Morse, Livermore & Griffin (Arthur L. Livermore, of counsel), for app’lt; Charles M. Stafford, for resp’t.
   Cullen, J.

This is an appeal from a decree of the surrogate of Kings county revoking letters of administration to the appellant, aud confirming the issue of such letters to the respondent. The appellant is a son of the deceased; the respondent claims to be the widow of deceased. The only question in the case is as to the respondent’s marriage with 'Ow'en Tyler, which issue the learned surrogate decided in her favor. The marriage claimed by the respondent was unceremonial.' It is not necessary to review the evidence by which it was sought to be established, for, in our opinion, on the case made by her, she was unable to contract the marriage. Concededly, Eliza Tyler was married to one Roland Parker, and, as found by the surrogate, resided with him as his wife till the year 1880. Previous to that time the respondent had formed an adulterous connection with the deceased, which relation continued (adulterous or lawful) up to the latter’s death. In 1880, Parker left the respondent. In 1886, a son of Parker and the respondent was shot, and his death feared. At that time, respondent sent Tyler for her husband. He found Parker, and brought him to the house where Tyler and respondent were living. There is no evidence as to Parker’s existence or whereabouts since that time. The respondent has made no inquiry concerning him, or endeavored to discover him, since then. On these facts the surrogate found that, for more than five years prior to the alleged marriage of 1891, Roland Parker had absented himself from the petitioner, without being known to her to be living or death ; that at the time of the marriage she believed him to be dead. The provision of law which protects subsequent marriages where a party has been deserted by a husband or wife is as follows : “If. any person whose husband or wife shall have absented himself or herself for the space of five successive years, without being known to such person to be living during that time, shall marry during the lifetime of such absent husband or wife, the marriage shall be void only from the time that its nullity shall be pronounced by a court of competent authority.” 2 Rev. St. p. 189, § 6.

The person desiring to avail himself of this statute should be required to act in perfect good faith.

“He cannot shut his eyes and ears, and justify a second marriage because for five years he did not hear of his wife. Did he try to hear of her ; Did he honestly believe that she was dead ? Did he make inquiry ? Was he excused from making inquiry by a false report of her death ?” Gall v. Gall, 114 N. Y. 109; 22 St. Rep. 746.

Judged by this rule, we think that the finding was erroneous. There was certainly no moral or legal duty upon Parker to continue to reside with his wife and her paramour. On the contrary, such conduct on his part would have been unmanly and indecent. His mere leaving his former residence, under such circumstances, would not constitute an absenting himself within the statute. .Assuming that a wife whose adultery causes her husband to leave her can bring herself within the protection of this statute, something more than the mere leaving her by her husband should be shown. It should be shown where the hnsband went to reside, or that diligent inquiry in that respect had proved unavailing; that he had abandoned his former resorts or occupation; if his residence wa's discovered, that he afterwards had abandoned such residence, without leaving trace of where he had gone. This case is barren of such proof. It is not proven' where Parker went to reside when he left his wife in 1880, or where he was at work at that time. In 1886, there was apparently no difficulty in finding him to bring him to his invalid son. It does not appear that any effort has been made since to find him, or to find information concerning him. The respondent’s story is that she and deceased agreed that Parker was a bad man, and that they should.live together till deceased could marry her. If such was the agreement, she did not want to hear of her husband. She cannot wait passively the lapse of five years, without making inquiry, and then claim the protection of the statute.

The decree appealed from should be reversed, but as new evidence may be supplied on another hearing, and possibly Parker be shown to have died before the time of the alleged marriage in dispute, a new trial should be had before the surrogate, costs to abide event. All concur.


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    The People ex rel. Peter J. Langan, App’lt, v. Henry L. Hayden, as Commissioner, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Municipal Corporation—Police—Removal.
    A charge against a police officer of being engaged in a figlit, “during which he is accused of attempting to shoot ” another, is sufficient for the purpose of a trial before the police commissioner.

      2. Appeal—Conflicting evidence.
    The decision of the police commissioner on conflicting evidence, dismissing a policeman for misconduct, will not be disturbed on certiorari.

    Certiorari to review a decision of the commissioner dismissing relator from the police force.

      Baldwin F. Strauss, for relator; F. A. Me Closfcey (Jacob Brenner, of counsel), for resp’t.
   Cullen, J.

This is a certiorari to review a decision of the respondent dismissing the relator from the police force of the city of Brooklyn for alleged misconduct. We tliink there was no legal error committed on the trial of the relator. • The second charge at least set out a substantial offense, to wit, that of being engaged in a fight with certain named persons “during which he is accused of attempting to shoot George Myer.” The criticism on this specification—that it does not charge that, as a matter of fact, the relator did attempt to shoot, but merely that he was accused of attempting to shoot—is technically well taken, and probably such an allegation in an indictment would be had. But technical accuracy is not requisite in these proceedings. It is sufficient if the charge fairly apprises the relator of the offense of which he is accused. This the specification did.

Though the report of the captain of the precinct, made on an examination of the relator’s alleged misconduct, is attached to the Charges, and found in the return, we cannot find that it was put in evidence on the trial. On the contrary, the captain was sworn as a witness on the trial, and examined. No error was therefore committed in the receipt of .evidence.

That the relator was engaged in a broil in the saloon, and drew his pistol, was undisputed. Whether the relator was the aggressor, and at fault, or whether he acted in self-defense, was a question sharply contested, and the witnesses on one side flatly contradicted those on the other as to the details of the occurrence. Tq which set of witnesses credence was to be given, depended largely on the appearance of the witnesses, and the manner of their testifying. The commissioner had the advantage of seeing and hearing the witnesses. We have not those means of judging of their credibility, and the evidence, on its face, shows no such clear preponderance as justifies our interference with the determination of the commissioner, under that settled rule applicable to these cases. Barnard v. Gantz, 140 N. Y. 249; 55 St. Rep. 541. The proceedings should be affirmed, with costs.

All concur.


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    Joseph N. Phillips, Resp’t, v. New York and New England Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Negligence—Duty oe brakeman.
    A brakeman does not necessarily have the power to inform the public, ■ and bind the company, as to the movements of its trains.
    2. Same—Question for jury.
    The evidence of negligence was held sufficient, in this case, to go to the jury, in an action for personal injuries received in attempting to pass between cars standing across a highway.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Milton A. Fowler, for app’lt; Wood & Morschauser, for resp’t.
   Cullen, J.

This is an appeal from a judgment for the plaintiff entered upon the verdict of the jury at circuit. The action is to recover damages for personal injury. According to the plaintiff’s story, a freight train of the defendant stood across a highway near Hopewell, in Dutchess county, for from a half to three-quarters of an hour, completely preventing passage along the highway. The plaintiff desired to cross. After remaining this length of time for the train to move clear of the highway crossing, he applied to a brakeman to learn how long the train was to remain. He was told to climb “right across the train.” Upon this, he attempted to cross between the cars. While he was on the platform or bumpers of the car, in the act of crossing, the engine started, and the plaintiff’s foot was injured. There was evidence tending to show that crossing either in front or in rear of the train would have been difficult. The facts as to the invitation to cross, and the length of time during which the train had blocked the highway, were denied by the defendant, it insisting that the train had remained’ in its position for two minutes only. On these facts wé think that the motion for a nonsuit was properly denied. That under ordinary circumstances the act of the plaintiff would have been negligent is unquestionable. Even if the highway was improperly obstructed, common prudence would have required him to wait a reasonable time for the train to pass on. But, according to his testimony, he had already waited a long period. It cannot be said, as a matter of law, that he should have remained indefinitely, and have abandoned his journey along the highway; nor that he was bound to turn back, and seek some other highway crossing, possibly miles away. If he had crossed in front of the engine, the criticism might as well have been made that such conduct was reckless, as it is now made in reference to the place where he had attempted to cross. Either crossing was safe (except for the probable requirement of agility in climbing between the cars) while the engine did not move. If the engine moved, each place was dangerous. In this the case at bar differs wholly from that of Solomon v. Man. Railroad Co., 103 N. Y. 437; 3 St. Rep. 636. The plaintiff applied to one of the train hands for information as to the movement of the train. On these facts, it was for the jury, if it believed the plaintiff’s evidence, to find whether the plaintiff was guilty of negligence in attempting to cross between the cars, and whether the defendant was guilty of negligence in starting the train without first looking to see if any traveler on the highway, whom they had put to extraordinary and unusual means of crossing the tracks hy reason of the long obstruction of the highway, would be in danger. The learned judge at circuit charged, in effect, that the length of time during which the highway had been obstructed was immaterial; that, if the brakeman, or one operating the train, told the plaintiff that he might safely cross, the defendant was liable. To this the defendant excepted. We think the charge to this respect erroneous. A brakeman would not necessarily have the power to inform the public, and bind the company, as to the movements of its trains. It was not a question of law, but one of fact, under the circumstances of the case, the great delay of the train, and the probable danger, the plaintiff was justified in relying on the bralceman’s statement, and whether he should have crossed in the manner suggested, or in some other way. Eor this error the judgment must be reversed. Judgment and order denying new trial reversed; a,new trial ordered; costs to abide event. All concur.


author: Dykman, J.

text:
    Merritt A. Jones, Resp’t, v. Mail and Express Publication Company, App’lt. Daniel E. Christie, Resp’t, v. Same, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894).

    Corporations—Stockholders—Liability.
    A stockhrlder, in a corporation organized under chap. 611 of 1875, is personably liable for the corporate debts, unless a certificate of paid up stock is also recorded in the county clerk’s office. •
    Appeal from an interlocutory judgment for plaintiffs.

      Willitun Inuin, for app’lt; Henry L. Brant, for resp’ts.
   Dykman, J.

These are appeals by the defendant from the decision, order and interlocutory judgment overruling the demurrer of the defendant to complaint of the plaintiff in this action upon the ground that it fails to state facts sufficient to constitute a cause of action. The purpose of the suit is to enforce the statutory liability of-the defendant, as a stockholder of the New York Advertising Agency, Limited, for certain debts of that corporation, upon the ground of the failure of the directors of the defendant to file a certificate of the full payment of its capital stock according to the requirements of § 37 of chapter 611 of the Lawá of 1875. The only question requiring attention is presented in this manner: The complaint alleges the failure of the defendant to file the certificate of the payment of its capital stock, as required by the statute, in the office of the clerk of .the city and county of New York, where the principal business office of the defendant was situated, and the defendant contends that the statute contains no such requirement.

Section 37 of the act under which this suit is prosecuted contains these provisions: “ In limited liability companies all the stockholders shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such companjq until the whole amount of capital stock fixed and limited by such company has been paid in, and a certificate thereof has been made and recorded as hereinafter prescribed. * * * The directors of every company within thirty days after the payment of the last installment of the capital stock shall make a certificate stating the amount of the capital so paid in, which certificate shall be signed and sworn to by the president and a majority of the directors; and they shall, within th'e said thirty dajns, record the same in the office of the secretary of state and of the county in which the principal business office of such corporation is situated.”

It is now the contention of the defendant that this statute is satisfied by recording the certificate in the office of the secretary of state only. That question is to be settled by a construction of the statute according to a few familiar rules, and the fundamental rule for the interpretation of statutes is to ascertain the intention of the legislature. It is ever of paramount importance to ascertain the purpose of the enactment, because the courts may interpret imperfect language in a statute so as to cany out what appears to be the general policy of the law. McKuskie v. Hendrickson, 128 N. Y. 555; 40 St. Rep. 619. “The legislative intent must govern, even where such construction seems to run counter to the letter of the law.” Bixby v. City of New York, 61 Hun, 490; 41 St. Rep. 168. “ That construction must be adopted which will effectuate as far as possible the intent of the framers of the statute, and obviate the anticipated evils which were the occasion of thereof.” Tonnele v. Hall, 4 N. Y. 140. It is obvious from the reading of this statute that it does not perfectly express the intention of the lawmakers, which evidently was to require the recording of the certificate in two places, one of which was the office of the secretary of state. The other was some office in the county in which the principal business office of the corporation was situated. The question is, what office in the county was intended ? There is usually but one office in the counties of this state where papers can be legally recorded and filed, and that is the office of the county clerk. But few counties in this state have a register’s office, and this law must have a general application. As, therefore, we reach the conclusion that the statute requires the certificate to be recorded in some office in the county, and as there is no county office in all the counties of the state where the same can be recorded, except the office of the county clerk, it seeins to follow that the legislature intend to provide for the recording of the certificate in the office of the county clerk. It is a significant fact in aid of this interpretation that this statute, in several places, mentions the offices of the secretary of state, and the clerk of-the county in which the principal business office of the corporation is situated, conjunctively, as the offices in which various papers are to be filed.

The other questions presented by the appeal were properly determined by the trial judge, and the decision, order and judgment should be affirmed, with costs and disbursements.

Landon, J:, concurs; Brown, P. J., dissents.


text:
    David Zieley, Resp’t, v. George Palliser, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    Damages—Pause representation.
    The measure of damages, in an action for inducing plaintifE, by false representations, to purchase all the stock of a coporation, is the difference between the amount paid and the value of the corporate property.
    Appeal from an order setting aside a verdict in favor of defendant, and granting a new trial.

      George W. Stephens, for app’lt; William G. ^ooke, for resp’t.
   Brown, P. J.

This action was to recover upon a promissory note of $2,000, given in payment of the purchase price of stock in the Gilbert Hardware Company. The answer was a counterclaim for damages arising from misrepresentation concerning the property owned by the company. The jury having rendered a verdict for defendant, and thus assessed the damages at a sum equal to the amount of the note, the court set the verdict agide on the ground “ that the evidence affords no basis for ascertaining the damages sustained, by reason that the goods manufactured by the company were not covered by any patents.” The representation which induced the purchase of the stock by the defendant, and which the jury found was false, was that the corporation owned and controlled patents under which it manufactured its goods. Two thousand dollars had been expended on machinery by the company, and this constituted substantially all the property it had. After defendant ascertained that the corporation had no patents upon the goods it manufactured, he loaned it $1,100, and took a mortgage upon its machinery; and when the business failed the mortgage was foreclosed, and defendant purchased the property. He testified that he still owned it, and that it was not worth to exceed $500. This sum fairly represented the value of his stock, and the jury would have been warranted in assessing the damages at the difference between that sum and the amount of the note, but not at any greater sum. If the appellant stipulates within twenty days to reduce the damages to the sum of $1,500, and for judgment against him for $500, the order will be reversed, without costs, but upon failure to file such stipulation it must be affirmed, with costs to abide the event. All concur.


text:
    James H. McKay, Resp’t, v. George H. McAdam, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Executors—Legacy—Postponing payment.
    A provision in a will tliat tlie executor should be the sole judge as to when it would be convenient for him. to pay the legacies, does not empower him to postpone payment arbitrarily.
    3. Will—Validity—Suspension
    A devise to the executor in trust, with power to sell to pay legacies, and provision that he shall be the sole judge as to when it is convenient to pay the legacies, does not unlawfully suspend the power of alienation.
    Appeal from an interlocutory judgment overruling a demurrer to the complaint.

      George A. Stearns, for app’lt; Thos. Fenton Taylor, for resp’t.
   Brown, P. J.

The demurrer was properly overruled. The complaint alleged the bequest of a legacy to the plaintiff’s assignor by the defendant’s testatrix, and its nonpayment after demand, and sets out in full the will containing the bequest. By it, it appears that the testatrix gave all her property to Terrence Kenney, who was appointed executor in trust to pay her debts, and out of the rents of . her real estate to pay (1) a mortgage on the property, of $500; (2) $50 a year to her husband, during his life; (3) to her grandniece, the legacy in question ; (4) $600 to her brother, Hugh. The will then provides as follows: “ Finally, my will is that the fee of my house, and the rest and residue of my property, shall vest in my executor, Terrence Kenney, the net income from the same to bo applied to the education and maintenance of his daughter, Mary Ann, as long as she shall live, and, in case of her death, then to vest absolutely in the said Terrence; my intention being that said Terrence shall be the sole and arbitrary judge of when it may be convenient for him to pay the said sum to my husband, my grandniece, and to my brother.”

The complaint further alleges the death of Terrence Kenney on March 24, 1892, and the appointment of defendant as administrator with the will annexed, and that said Kenney, as executor, and said McAdam, as his successor, * * * have ample funds, and that said trust is chargeable with funds more than sufficient to pay the legacies and the debts, as provided in said will to be paid.”

The gift to the plaintiff’s assignor isqmmediate, and the source of payment designated. It is, therefore, vested. Loder v. Hatfield, 71 N. Y. 100. The postponement of the time of payment is for the convenience of the estate, and the provision making the executor the sole judge of when it would be convenient for him to pay the legacies did not empower him to postpone payment arbitrarily for an indefinite period. 2 Perry, Trusts, § 771. The allegation that defendant has ample funds to pay all the legacies and debts must be assumed to be true, for the purpose of this appeal; and, being true, it requires from defendant an answer why he does not pay.

There is no ground for the claim that the will unlawfully suspends the power of alienation, or that there is direction for an illegal accumulation of rents. The fee of the real estate vested in Kenney, subject to the payment of the legacies; and he could always sell the land, subject to that charge, and convey a good title. The power of alienation is not, therefore, suspended at all. There is no direction to accumulate rents. The legacies are payable from the income as received, and there is nothing to prevent their payment in installments, if the parties choose to deal in that way.

It may be, that, upon the trial of this action, obstacles will exist, to a recovery by the plaintiff, that do not now arise, but in yiew of the allegation that Kenney', before his death, had, and defendant now has, ample funds to pay the debts and legacies, the demurrer was properly overruled. If it should appear that the defendant had received funds from Kenney’s estate belonging to the trust, and properly applicable to pay the legacy in suit, some of the objections which he now urges would be overcome. The judgment must be affirmed, with costs, with leave to defendant to answer in twenty days, on payment of costs.

All concur.


text:
    Charles Benner, as Trustee, etc., Resp’t, v. Phoenix Towing and Transportion Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. Contract—Breach.
    Where there has been no performance, the action must be brought for a breach and not upon the contract.
    2. Damages—Contract—Breach—Burden.
    The burden, in an action for a breach of contract, is on the plaintiff to show a loss of profits.
    Appeal from a judgment in favor of plaintiff.

      Henry B. Man, for app’lt; Henry 0. Willcox, for resp’t.
   Brown, P. J.

On August 15, 1889, the parties entered into a written agreement whereby the plaintiff leased to the defendant, for a term ending April 1, 1892, the privilege to excavate and remove sand upon certain property situated upon Flushing bay. By the second clause of the agreement plaintiff agreed to improve the approach by water to the dock on said property so as to give a depth of eight feet at high water along said dock, and also to excavate to a channel 30 feet in width, extending 100 feet from said dock into Flushing bay. The defendant agreed—First, to pay 10 cents per cubic yard for all sand removed from said premises; and, second, to excavate and remove between April 1st •and November 1st in each year of the term “an amount of sand not less than an average value of $250 per month at the rate above stated: * * * provided, however, that the period of said guaranty shall commence to run when the party of the first part [plaintiff] shall have first performed the covenants in the second clause of this agreement.” The complaint set forth two causes of action : First, to recover $108.20 for 1,082 yards of sand removed by the defendant in the year 1889; and, second, to recover $1,750 upon the guaranty aforesaid for the period between April and November, 1890. Upon the second cause of action plaintiff alleged that he had performed all the conditions of the contract upon his part, and the defendant had neglected to remove any sand during the year 1890. The defendant denied that plaintiff had performed his agreement, and alleged that he had failed to improve the approach to the dock, or excavate the channel to the bay, and that because of that fact it had in January, 1890, canceled the agreement. The referee found as a fact that plaintiff never performed his agreement in reference to improving the approach to the dock, but that defendant consented that such improvement be postponed until the spring of 1890, and that such performance, as a condition precedent to defendant’s obligation under said agreement, was waived by defendant; and that in.January, 1890, without justification, it renounced and repudiated the contract, and that by reason of such renunciation plaintiff was damaged $1,750. From this statement of the case it appears that no recovery could be had by the plaintiff upon the second cause of action set out in the complaint, as the period of guaranty was not to begin to run until tlie improvement of the channel was complete; and that, while defendant could waive this provision of the contract, the waiver found by the referee was not absolute, but only extended the time of performance by plaintiff until April, 1890. But, although the plaintiff failed to establish the case made by his complaint, he has been permitted to recover upon a cause of action for a breach of the contract which was not pleaded. The power to amend pleadings upon the trial so as to conform them to the facts proved does not extend to changing the cause of action sued on. It can only be exercised when the amendment does not change substantially the claim or defense made. Code Civ. Pro. § 723. No amendment was made or requested in this case, and the complaint stands as originally served. The distinction between a cause of action based upon the existence of the contract and one for its breach is vital to the rights of the parties. If the contract is still in existence, plaintiff may sue upon the guaranty at the end of each month to which it applies ; but, if it has been repudiated by defendant, there is but a single cause of action for its breach, and a recovery of damages in one action is a bar to all other suits. The plaintiff never has claimed that the contract was broken, and, while he assumes that position, he cannot sustain a judgment for its breach. Wright v. Delafield, 25 N. Y. 266 ; Day v. Town of New Lots, 107 id. 148; 11 St. Rep. 361; Elting v. Dayton, 63 Hun, 629; 43 St. Rep. 363.. The referee also erred in the measure of damages applied to the'case. Upon the theory of a breach of the contract plaintiff was entitled to recover its value, or what he lost by being deprived of his chance of profit. Taylor v. Bradley, 39 N. Y. 129; Wakeman v. W. & W. Manufacturing Co., 101 id. 205. The referee apparently recognized this rule, but held that it was for the defendant to prove that it would have been less than the amount of the guaranty. This burden could not be cast upon the defendant, and the cases cited by the referee have no application to such a case as this. It was for the plaintiff to prove his loss, and it was apparent from the contract that he could not be entitled to the monthly stipend until he had improved the approach to the dock, and that the sand itself had some substantial value. The judgment awards the plaintiff the full amount, to which he was entitled only in case he had performed his covenants of the contract, and it leaves him in possession of the sand. The judgment must be reversed, the order of reference vacated, and a new trial granted, with costs to abide the event, unless plaintiff stipulates within twenty days to reduce the judgment to the sum of $57.20, with interest from January 1, 1890, in which case the judgment so reduced is affirmed, without costs. All concur.


text:
    Catherine Fothergill, Resp’t, v. William Fothergill et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed July 27, 1894.)

    1. WlIJi—CONSTRXJCTXON.
    It is never permissible to refer to a clause of a will, tbe meaning of which, is doubtful, for the sole purpose of obscuring that which is clear.

      2. Same.
    The devise, in this case, was held to authorize the devisee to dispose, by will, of one-third of the estate.
    Appeal from a judgment in favor of plaintiff.

      Thomas T7. Butts, John W. Alexander and Edwin 0. Mott, for app’lts; Ralph E. Prime, Jr., and William 0. Prime, for resp’ts.
   Brown, P. J.

This action is brought for the partition of real estate situated?in the city of Yonkers, Westchester county. John Fothergill is the common source of title, and the only question presented on this appeal relates to the construction to be given to his will. The material'part is as follows: “First. After all my lawful debts are paid and discharged, I give and bequeath to Ann Fothergill, my wife, all my real and personal estate, and any other property belonging to me, the said John Fothergill, to use and own during her lifetime, consisting of real estate -in Jersey City, known as ‘ 131 Railroad avenue,’ also those lots and houses known as ‘Neperan avenue,’ in the town of Yonkers, Westchester county, New York, if the.said Ann Fothergill survives me, and then at her demise, to be left as folfows : And the said Ann Fothergill she has free and full liberty to grant and give or bequeath one third of the entire estate to whomsoever she thinks proper, and the two-thirds or balance of the estate to be left and equally divided among my brothers and sisters of the said John Fothergill. Also, I publish and declare that if my wife, Ann Fothergill, should marry again after my death, all- the above named property belonging to me shall pass from her to my brothers, and sisters in equal parts, excepting her right of dower, or one-third of the entire estate, for her use, to hold and dispose as she thinks proper, as it is stated in foregoing part of this will.”

Ann Fothergill survived her husband, and never remarried. She died in December, 1891, leaving a last will and testament, in which, after reciting the power given her by her husband’s will, she devised one-third of his entire estate. The appellants claim title under that devise. The learned trial court held that under her husband’s will Ann Fothergill “became seized and possessed of an estate for her natural life in the whole land and premises ” mentioned in the will, “and took no other interest or estate therein of any nature whatsoever,” and upon her death “all the interest in said land passing to her ceased and determined ; ” and he refused to find that she had a valid power of appointment of one-third of all the property of which her husband died seized. The judgment consequently determined that the appellants, who are the appointees of Ann Fothergill, had no interest or estate in the property which is the subject of the action. No opinion was written at the special term, and we are not informed of the reason for the conclusion reached by the court, but the respondent seeks to sustain the judgment by reference to the disposition made of the estate in case Ann Fothergill remarried; and because the testator there used the expression, “ her right of dower or one-third of the estate,” it is claimed that the one-third of the real property which by the preceding clause she was empowered to dispose of was“her right of dower.” That we rnay not misstate the argument addressed to us we quote from the respondent’s brief. Point 5 : “ He further says: ‘And the said Ann Fothergill she has free and full liberty to grant, give and bequeath onc-third of the entire estate to whomsoever she thinks proper.’ He does not give it; she has it. He is clearly referring-to a fact, an existing condition, outside of the will, not created by virtue of, but independent of, the will, and existing beyond his control or power to change. * * * What was the ‘one-third’ here referred to ? Manifestly her right of dower in the real estate, and her absolute right to one-third of the personalty passing by the will. * * * His scheme for the disposition of the estate was simply this: By his gift, his wife, during her widowhood, was to enjoy an estate for her life in all his property, to which lie enlarged her dower right, which she had as a matter of law. On her remarriage, all was to pass from her to his brothers and sisters, excepting only this right of dower, or ‘one-third,’ over which he had no control.” Point 8: * * What he had in his mind is not a division by his own act of' the estate into thirds, one of which he, by his own act, gives to his widow absolutely, and the other two to his brothers and sisters, but rather the effect of the law upon the estate, carving it into dowei-, his widow’s right, which he could not affect or* change by any act on his part, and balance, which was all he could dispose of, and which, upon the termination of the life estate, he intended should go to and be divided among his brothers and sisters.”

This argument, we think, has no support in the language of the will. The testator intended to provide for his wile—First, in case she remained his widow; and, second, in case she remarried. In reference to the first condition, the language of the will is so plain and simple that it is absolutely impossible to mistake its meaning. In apt and appropriate words the testator gives to his wife, should she survive him, all his property, “to use and own during her lifetime.” Upon her death it is “to be left as follows.” Full and free liberty is given to his wife “ to grant, give and bequeath one-third of the entire estate to whomsoever she thinks proper, and the two-thirds or balance to be equally divided among my brothers and sisters.” The use of the expressions “one-third of the entire estate” and “the two-thirds or balance of the estate” included all the property possessed by the testator, and there can be no possible justification in this language for the claim that the power granted to the widow was confined to any less estate than one-third of the fee. There is no occasion to refer to the latter clause of the provision, where reference is made to “right of dower.” The contingency there provided for never arose, and that part of the will never became operative. Assume that there is doubt and uncertainty about the meaning of the sentence, “right of dower or one-third of the entire estate,” we have no occasion to elucidate or define it. It stands- alone, applicable only to a contingency which never has and ,never can arise. While it is always permissible to ascertain a testator’s meaning from an examination of the whole will, it is never permissible to refer to a clause, the meaning of which is doubtful, for the sole purpose of obscuring that which is clear. We are of the opinion that the devise of oue-third of the estate by the will of Ann Fothergill was valid, and that the appellants are entitled to such estates in the land as they respectively have under that devise.

The judgment must be modified by awarding to them such estates in the land, and, as so modified, affirmed, with costs to the appellants payable cut of the fund; the order to be settled on notice by either judge of this court