author: By the Court.—Sedgwick, Ch. J.

text:
    ABBIE C. FITCH, Respondent v. THE MAYOR, &c., OF NEW YORK CITY, Impleaded, &c., Appellants.

      City of New York; negligence, when not imputable to, in respect of obstructions or encroachments on sidewalks—Turn-tables so placed as that in turning a car the platform would obstruct the sidewalk.

    A street railway, operating with one-horse ears, had at one of its termini, where one street crossed another, a turn-table; the cars would be run on this turn-table, and by means of it be turned around; the turn-table was so placed as that a passenger alighting from the ear would step immediately on the sidewalk, and as that in so turning the car around, the rear platform would move over the sidewalk of one of the streets, overreaching a distance of two or three feet. The plaintiff, a passenger on one of the cars oí the railroad, on arriving at the said terminus had alighted on the sidewalk, when the car was so negligently turned that the platform struck her before she could move a safe distance. She was knocked down and received severe injuries.

      Held, that the city was not liable; for (1st) whatever power or duty the city had or was under as to obstructions and encroachments on sidewalks, it applied equally to the street way, and it appearing that the railway company had a right to a turn-table somewhere at that point, to which right the city was forced to yield, its proper authorities had a discretion as to where the turn-table should be placed, which discretion was of a judicial nature, the exercise of which was not reviewable by a court; and (2d) the accident did not happen because the place where plaintiff alighted was a sidewalk; it would have happened if the turntable had been so far from the curb that the plaintiff would have stepped on the street way.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided May 7, 1888.
    Appeal by defendant from judgment entered upon verdict of jury.
    The facts sufficiently appear in the opinion and in the head note.

      Henry R. Beekman, counsel to the corporation, attorney, and D. J. Dean, of counsel, for appellants, on the questions considered in the opinion, argued:
    I. The facts proven are insufficient to constitute a cause of action against the mayor, aldermen and commonalty of the city of New York. 1. The railway was constructed under a legislative grant, which provides as follows: “ § 2. The said railway shall be constructed on the most approved plan for the construction of city railways, and the cars shall be run as often as the convenience of the public may require ” (then follow provisions in relation to fares and transfer tickets to other railways) ; “ and said railway shall be subj ect to such reasonable rules and regulations as the common council of the city of New York, from time to time, may prescribe.” Ch. 393, Laws 1875, 456. It is the contention of the plaintiff that the city is liable in this action because it failed to compel the company to locate, its track and turn-table, at such a distance from the sidewalk as would have prevented the accident by which the plaintiff was injured. The appellants’ answer to the contention is as follows: I. That the power to enact reasonable rules and regidations conferred by the statute upon the common council of the city of New York is of a quasi judicial character, involving the exercise of discretion in determining the character and extent of such regulations, and the city is not liable in damages if it failed to adopt any regulations, or if the regulations adopted by it proved to be sufficient to prevent accident. The application of this doctrine is illustrated in the following cases: Grifin v. Mayor, 9 N. Y. 456; Cain v. City of Syracuse, 95 Ib. 83; Mills v. Brooklyn, 32 Ib. 489; Wilson v. Mayor, 1 Den. 595; Urquhart v. Ogdensburg, 91 N. Y. 71. Municipal corporations are in no case liable for errors of judgment in relation to matters committed to discretion of their departments. The common council is the legislative department of the city of New York, and an action founded upon its failure to enact sufficient rules and regulations to prevent the accident by which the plaintiff was injured, is in every respect the analogue of an action against the state, because the legislature has failed to enact a law which might have prevented the injury from which the claimant against the state has suffered. The authorities are abundant which sustain the position that such an action cannot be maintained against a municipal corporation. Wilson v. Mayor, 1 Den. 595; Governor v. Meredith, 4 Durnford & East 796; McCarthy v. Syracuse, 46 N. Y. 196; Hines v. Lockport, 50 Ib. 238; Lynch v. Mayor, 76 Ib. 60; Seifert v. Brooklyn, 101 Ib. 141.

      Edward .8. Clinch, attorney, and of counsel for respondent, on the questions considered in the opinion, argued:
    I. The character'of the city of New York (Laws 1873, 335), provides: “ § 17. The common council shall have power to make, continue, modify and repeal such ordinances, regulations and resolutions as may be necessary to carry into effect any and all the powers now vested in or by this act conferred upon the corporation, and shall have the power to enforce obedience to such ordinances and observance thereof by ordaining penalties for each and every violation thereof, in such sums as it may deem expedient, not exceeding one hundred dollars, and shall have power to make such ordinances, not inconsistent with law and the constitution of this state, and with such penalties in the matters and for the purposes following in addition to other powers elsewhere specially granted. 2. To regulate the use of the streets, highways, roads and public places by foot passengers, animals, vehicles, cars and locomotives. 2*. To regulate the use of sidewalks.....4. To prevent encroachments upon and obstructions to the streets, highways, roads and public places, not including parks, and to authorize and require the commissioners of public works to remove the same, but they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk except the temporary occupation thereof during the erection or repair of a building on a lot opposite the same. 9. To regulate the use of the streets and the sidewalks for signs, sign-posts, awnings, awning-posts, horse-troughs, urinals, telegraph posts and other purposes.”..... “ § 72. There shall be eight bureaus in the department of public works. 8. A bureau for the removal of incumbrances on the streets or sidewalks, the chief officer of which shall be called the ‘ superintendent of incumbrances,’ to whom all complaints shall be made, and by whom such incumbrances shall be removed.” The Consolidation Act, Laws .1882, ch. 410, provides: “ § 252. The board, of police shall at all times cause the ordinances of the city of New York, not in conflict with the law, to be properly enforced.” The acceptance of its charter by the city imposed upon it the duty to keep its sidewalks in a reasonably safe condition for public use, and to prevent the erection or maintenance of anything which is a constant menace to the lives and bodies of its citizens, and this duty is also created by the power of the common council to make ordinances to prevent encroachments upon the streets and sidewalks, and by the imperative obligation of requiring the commissioner of public works to remove any such encroachments (Charter, § 17, subd. 4); and for a failure to perform this duty the city is liable. Kunz v. City of Troy, 105 N. Y. 344 ; Pompfrey v. Village of Saratoga, Ib. 459; Urquhart v. City of Ogdensburg, 97 Ib. 238.
    II. Of the existence of the turn-table and of the dangerous use to which it wras put the city had ample notice. It was erected in 1874, and had been used continuously since, and policemen had been notified of its dangerous character. The charter of the company provided that “ the said railway shall be constructed on the most approved plan for the construction of city railways,” and that “ said railway shall be subject to such reasonable rules and regulations as the common council of the city of New York from time to time may prescribe.” Laws 1874, p. 697. And upon the acceptance by the railroad of the license, the terms and conditions upon which the license was granted became a contract between the company and the city, and with notice of these terms and conditions the city was chargeable, and it became its duty to prescribe rules and regulations for the management of the road. But notwithstanding this precaution upon the part of the legislature and notice to the city of the dangerous use to which the turn-table was put, imputed to it by its long use, and the actual notice to its policemen, the city entirely neglected its duty in the premises, and thereby subjected itself to liability to any one who suffered in consequence of its neglect. Rehberg v. Mayor, etc., 91 N. Y. 137; Mayor v. Troy & Lansingburg R. R. Co., 49 Ib. 657 ; Ploedterll v. Mayor, etc., 55 Ib. 666 ; Clemence v. Auburn, 66 Ib. 339; Dillon on Municipal Corp., 753, 980; Mayor v. Furze, 3 Hill 612 ; Bullock v. Mayor, etc., 99 N. Y. 654; Bailey v. Mayor, etc., 3 Hill 531; Brower v. Mayor, etc., 3 Barb. 254, 257; Urquhart v. City of Ogdensburg, 97 N. Y. 244; Cohen v. Mayor, 41 Hun 404.
    111. The city endeavored to escape liability for the damage sustained by the plaintiff by the plea that the location of the turn-table by the city authorities was a judicial proceeding and that for the consequences of its location the city was not liable. But this involves an erroneous view. The mere determination whether the turn-table should be built was a matter of discretion with which the courts could not interfere, but after its construction the city became liable, if with its consent, or authority, or by its failure to interfere, the turn-table was used in conjunction with the cars, so as to imperil the lives and bodies of pedestrians using the sidewalk. The plaintiff was not injured by the turn-table but by a car, on the turn-table sweeping over the sidewalk and knocking her down. The duty of the city to protect persons against the improper use of the turn-table is ministerial and not judicial. Saulsbury v. City of Ithaca, 94 N. Y. 30; Hines v. City of Lockport, 50 Ib. 239; Hyatt v. Village of Rondout, 44 Barb. 395; 41 N. Y. 619 ; Vogel v. Mayor, etc., 92 Ib. 10.
    IV. The case at bar cannot be distinguished in principle from the later cases in the court of appeals where the liability of municipal authorities has been determined. In Saulsbury v. Village of Ithaca (94 N. Y. 27), it appeared that a walk had been built in the village, not by the village authorities, but with their knowledge. The determination by the authorities that the walk might be built was a matter of discretion not to be regulated by the courts. The walk became out of order, and the plaintiff was injured in consequence. The court held that the village was responsible for the condition of the walk, and that the duty to keep it in good order was not judicial but ministerial. To the same effect, Goodfellow v. Mayor, 100 N Y. 15; Nelson v. Village of Canisteo, 100 Ib. 89; Dubois v. City of Kingston, 102 Ib. 219; Rehberg v. Mayor, 91 Ib. 137.
   By the Court.—Sedgwick, Ch. J.

The action was for damages for personal injuries caused, as the complaint alleged, by the negligence of the appellant.

The appellant’s co-defendant was a street railway, using horses, and called the South Ferry Railway Company. It had a terminus at or near the corner of Church street .and Vesey street. In Church street at the terminus, a turn-table was inserted. In the ordinary course of things a car would go upon this turn-table. Passengers would step from th'e platform of the car to the sidewalk. The car would then be turned. In turning, the platform of the car would move over the sidewalk, over-reaching a distance of two or three feet.

The plaintiff had been a passenger on a car of the company. She had alighted on the sidewalk. The car had been so negligently turned that the platform had struck her before she could move a safe distance. She had been knocked down and received severe hurts.

There is no doubt that the company was liable. The question on this appeal relates to the liability of the city. The act incorporating the company (Laws 1874, p. 697), provided, “that said railway shall be subject to such reasonable rules and regulations as the common council of the city of New York, from time to time, may prescribe.”

The city charter (Laws 1873, chap. 335), provided that the common council shall have power to regulate the use of streets by cars, etc., to regulate the use of sidewalks, to prevent encroachments upon and obstructions to streets, and to authorize and require the commissioners of public works to remove the same, but they shall have no power to authorize the placing or continuing of any encroachment or obstruction upon any street or sidewalk “except the temporary occupation thereof during the erection, etc., of a building, etc.”

The learned counsel for the respondent claims, that using the sidewalk as a place over a part of which the platform of the cars would move, was an obstruction or an encroachment of the sidewalk, as it was continuous, although intermittent, to the constructive knowledge of the city. It is not necessary for the purposes of this decision to deny the validity of the position.

The further argument is that under the statutes that have been cited, it was the duty of the city to have made some regulation or to have required that the company should not operate its road so as to involve the moving of the platforms of cars over the sidewalk.

Whatever power or duty the city had or was under, neither was of a kind that could impair the statutory right of the company. The complaint and the charter show that the company had a right to the terminus at or near Church and Vesey streets. The city at the most, could only regulate the enjoyment of. their right. The complaint did not suggest the case, nor did any claim of the plaintiff upon the trial, that the city had the power to prevent the use of a turn-table at all, or what would have been the same in effect, of cars to be drawn by one horse or that did not need to be turned. The case does not present the point. The proposition is that the city should not have allowed the incumbrance of the sidewalk.

As to this, it must be said that the city was forced to yield to the right of the company to have the turn-table at some point there, either in the roadway so far that in turning, the platform would not be at all over the sidewalk, or at a point nearer the sidewalk. In either case, there would be an obstruction of the highway. The sidewalk has no right to a freedom from encroachment superior to the streekway’s right. The city was called upon to exercise a discretion of a judicial nature as to the place where the obstruction should be. This exercise of discretion cannot be reviewed by a court.

I further think these considerations are not relevant to the case here, as it appears that the company had a right to a turn-table either where it was, or at some other place in the streekway. The accident did not happen because the place where the plaintiff alighted was a sidewalk. It would have happened if the turn-table had been so far from the curb, that the plaintiff would have stepped upon the streekway.

For these reasons, the city was not liable in this action.

Judgment reversed and new trial ordered with costs to abide event.

Freedman, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    OWEN DONEGAN, Respondent v. JOEL B. ERHARDT, AS RECEIVER OF THE NEW YORK CITY & NORTHERN R. R. Co., Appellant.

      Negligence.—Railroads—Liability arising under § 67, title 15, chapter 18, pari 1, R. S., 6th ed., as to fencing and guarding tracks, from the mere want of properly fencing and cattle guarding, for injuries received by passengers or employees in a collision with animals straying on the track by reason of such want.

    The plaintiff being a brakeman on the railroad operated by the defendant, received injuries in a collision between the train on which he was employed, and a horse which had strayed on the track in consequence, as was claimed, of the track not being properly fenced and cattle guarded. The plaintiff had a verdict. The case was put by plaintiff’s counsel in the court below, and on appeal (so far as the question of defendant’s negligence is involved) solely on the ground that defendant was liable by reason of its failure to have its road properly fenced and cattle guarded, as required by § 67, title 15, chapter 18, part 1, R. S. (6th ed.) by the mere force of the statute itself.

      Held, that no liability rested on defendant for the plaintiff’s injuries from the bare fact of the track not being properly fenced and cattle guarded.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 7, 1888.
    Appeal "by defendant from a judgment entered upon the verdict of a jury and from an order denying a motion for a new trial, made upon the minutes.
    The facts sufficiently appear in the opinion.

      Holmes & Adams, attorneys, and George H. Adams, of counsel for appellant, on the questions considered in the opinion, argued:
    I. Without the statute as to fences the railroad company is liable to no one for injuries occasioned through animals coming upon the track. This statute does not extend so far as to support an action by, an employee for injuries so occasioned. Corwin v. N. Y. & Erie R. R.,13 N. Y. 42; Spinner v. N. Y. C. & H. R., 67 Ib. 153; Langlois v. Buffalo, etc., R. R., 19 Barb. 364. This point is absolutely a clean one in this case; no other negligence was claimed or shown; it was expressly and particularly stated by the complaint that all other things were done with care and without negligence. In the recent case of Knight v. N. Y., etc., R. R., 99 N. Y. 25; this statute is discussed in a case where a colt strayed through a defective fence upon the railroad, fell through the ties upon a bridge and hurt himself; the court held that the statute was the only foundation of any liability of a railroad for injury by reason of defective fencing • that the extent of the liability is exactly measured by the statute; and the court says, through Judge Bapallo : “ The statute referred to requires railroad companies to erect and maintain fences on the sides of their roads, but it does not impose upon them a general liability for any consequences which may result from an omission to do so, nor does it leave the question open what liability to third parties they shall be subjected to for such omission, for it defines in express terms the consequences for which they shall be liable to owners of cattle and horses getting on the track.”

      Hector M. Hitchings, attorney and of counsel, for respondent, on the questions considered in the opinion, argued:—
    I. The statute compelling railroad companies and their lessees to fence their tracks against cattle is a police regulation for the benefit of the passengers and employees, as well as farmers owning cattle. Corwin v. N. Y. & E. R. R. Co., 13 N. Y. 42, 47; Shepard v. Buffalo & E. R. R. Co., 35 Ib. 641; Staats v. Hudson R. R. Co., 3 Keyes 196; Purdy v. N. Y. & N. H. R. R. Co., 61 N. Y 353; Boone on Corporations, § 253.
    II. The statute being a remedial one is not to be construed strictly, against passengers, employees or farmers, but should receive a liberal construction to effectuate the benign purposes of its framers, and a strict construction only against the railroad company that fails to comply with its requirements. Tracy v. Troy & Boston R. R. Co., 38 N. Y. 433; Brace v. N. Y. C. & H. R. R. R. Co., 27 Ib. 269; Burchfield v. The Northern Central R’way Co., 57 Barb. 589. These last two cases distinctly reverse the case of Parker v. Rensselaer & Saratoga R. R. Co., 16 Barb. 315, which laid down a contrary doctrine, and the statute placing leased roads upon same footing as others completely annuls the force of that decision.
    III. The statute imposes upon railroad companies the duty not only to erect proper fences of the height and strength of division fences, but also to maintain and keep the same in perfect repair. Staats v. Hudson R. R. R., Co., 3 Keyes 196; Spinner v. N. Y. Central R. R. Co., 6 Hun 600; Boone on Corporations, § 253.

       The provisions of this section were not part of the original Revised Statutes, nor were they inserted in the Revised Statutes by any act amending them. They are found first in § 8 of chapter 282 of the Laws of 1854. Provisions of a similar nature are also found in § 44 of chapter 140 of the Laws of 1850, which was amended by chapter 282 of the Laws of 1854.— Reporters.

   By the Court.—Sedgwick, Ch. J.

The action was for damages for personal injury of the plaintiff.

The plaintiff at the time of the accident, was a brakeman employed by the defendant, who, as a receiver, was operating a railroad in this state. He was upon a train in the course of his employment, when it was thrown from the track, by running against a horse. The plaintiff was thrown from the car on which he was, and severely hurt.

It was proved, as the jury found, that the railroad company bad not maintained fences on the sides of its roads or sufficient cattle guards, as required by the statute that will be referred to, and that the horse had gone upon the track over places where there should have been sufficient fences and cattle guards.

It was claimed on the trial by plaintiff, that not maintaining fences and cattle guards was a neglect on the part of the company which permitted the horse to go upon the track, and that the horse’s being there was the occasion of the train being thrown from the track.

On the hearing of the appeal it was not argued whether or not, if there was a neglect on the part of the company, the accident was the proximate or remote effect of such neglect.

The statute (§ 67, title 15, ch. 18, part 1, R. S., 6 ed.), after declaring that railroad companies shall erect and maintain fences and cattle guards, proceeds as follows: and so long as such fences and cattle guards shall not be made, and when not in good repair, such railroad corporation and its agents shall be liable for damages which shall be done, etc., to any cattle, horses, etc., thereon.”

The defendant claimed that as before the statute, the law had not made it the duty of the company to do the things afterward required by the statute, after the statute the only actions upon it were those described therein.

I am of opinion that the position of defendant was valid. It is sustained by the principle that when a statute creates a right which did not exist before, and prescribes the remedy for a violation of it, that remedy must be pursued. Stafford v. Ingersol, 3 Hill 41; Almy v. Harris, 5 John. 175; Langlois v. Buffalo & R. R. R., 19 Barb. 364; Knight v. N. Y., L. E. & W. R. R., 99 N. Y. 25.

The plaintiff assumes that the statute created a duty in relation to him. That assumption is negatived by the statute specifying what the consequences of a violation are to be.

This case is not like instances of a neglect which is a public offence, to the commission of which a penalty is attached. In such cases where the duty is to the public, it has been argued that any one especially injured may have an action. It is not necessary to examine such cases. Nor is it like cases where a neglect to do the things specified by the statute was actionable before the statute was passed; for example, the neglect involved in running at a undue rate.

There are cases in which courts have said that the statute was passed to protect the public and travelers. It will be observed that these cases were upon the statute, and the court ascertained the nature of the action given by it or what corporations were liable to such action. It was held that foreign corporations or domestic corporations running upon leased tracks were liable, or that liability existed for any cattle destroyed, even if they had not come from adjoining land. The result was a construction of the statute itself, from considerations in respect of the public or travelers. This construction made the statute liberal and perhaps wider than it would have been made except for these considerations. There was no attention to anything but the statute liability as expressed. It is consistent with these cases to hold, that the policy or practical object of the legislature, was intended to be guarded by the action expressly given.

The opinion of Judge Denio, in Corwin v. The N. Y. & Erie R. R., 13 N. Y. 52, said very broadly, that he was of opinion that the “ statute imposes a public duty upon the railroad corporation, for a violation of which they are subject to indictment, whether individual interests are affected or not. Having imposed this general and public duty, the legislature has next proceeded to declare some of the consequences of its omission.” The case only concerned these declared consequences, and liability was affirmed because of the expression of the statute and not because of any general duty arising from othe earlier part of the section.

For these reasons I am of opinion that the complaint should have been dismissed at the trial.

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

Freedman and O’Gorman, JJ., concurred.


text:
    ELIZABETH A. L. HYATT, Appellant and Respondent v. JACOB MARK, et al., Respondents and Appellants.

      Contract for royalties; construction of.—Area held to fall within the terms basement and basement extension, used in a contract calling for royalties on work done on basements andbasement extensions.—Boy allies when chargeable under such contract for work done on steps, risers and platforms forming part of an area.—Accounting; the court has power to allow objections to an account other than those formally filed.—Onus probandi as to charging, or relieving from royalties for certain work.

    The plaintiff being the owner of certain rights secured to her by letters patent for “improvements in illuminated basements and basement extensions, sidewalks, roofs, etc.,” entered into a contract with defendants whereby she gave to defendants certain privileges to manufacture and sell under the patent, they to pay her a royalty of thirty cents per square foot “ of illuminating work made and sent away by the defendants to be used for the purpose of making illuminated basements and basement extensions.” On an accounting by defendants to plaintiff under the interlocutory judgment therein, the referee charged defendants for illuminating work for covering areas. Held, no error. Although an area, per se, is not part of a basement, or of a basement extension, and although the letters patent contained passages which by themselves would lead to the conclusion that the phrase “basement extension” as used in the contract, meant something different from an area, yet, taking all that there is in the patents together, the referee was right in his conclusion that the contract meant, among other things, such a-basement extension as would result from an area being covered by the illuminating work.
    The referee also charged defendants for steps, risers and platforms, forming wholly or partly an illuminated roof over an area. Held, that since the phrase “basement extensions” comprised areas, these items were properly chargeable against defendants, if the work was used in connection with illuminated covering of area; and the exception to the finding in this regard being general, and there being no suggestion that the findings contained a charge for illuminating work not used in connection with illuminating covering of area, that the ruling of the referee should be sustained.
    The referee found in favor of plaintiff on matters not contained in her objections filed to the account filed by the defendants. Held, that the referee had power to allow objections other than those formally filed, giving the accounting party an opportunity to meet them.
    The referee refused to charge defendants under the provisions of the contract, with illuminating work consisting of separate tiles capable of various uses besides that of illuminating basement extensions, and not indicating any special use to which they were to be applied and not made ■ and sent away to be used for the purpose of making basements and basement extensions, although adapted for covering basement extensions, in default of plaintiffs showing that such tiles were actually used for covering basement extensions, holding that the onus probandi for charging the defendants for such work lay on the plaintiff to show the actual use of such tiles in covering basement extensions. Held, that the ruling of the referee was correct; that defendants had a right under the contract to make and sell such separate tiles without payment of royalties if they were not made and sent away to be used for the purpose of illuminating basements and basement extensions, and that defendants were not bound in order to relieve themselves from a liability for royalties for such tiles, to show that they were in fact used for purposes other than for basements and basement extensions, or to show how they were to be used.
    Before Sedgwick, Ch. J., and O’Gormar, J.

      Decided May 7, 1888.
    Appeal by each party from a judgment entered upon a report of referee, directed in an interlocutory judgment.
    The facts sufficiently appear in the opinion and the head notes.

      George W. Van Slyck, attorney and of counsel, and JR. B. McMaster, of counsel, for plaintiff.

      Edward D. McCarthy, attorney and of counsel, for defendants.

       The briefs of counsel were elaborate and exhaustive. They are too lengthy to be inserted in full, and cannot be.abbreviated with propriety or benefit to the profession. They can be found in the library of the court.

   By the Court.—Sedgwick, Ch. J.

The obligations of the defendants to account to plaintiff under the contract between them, were held to exist in Hyatt v. Ingalls, 49 Super. Ct. 375. It was further held that the court had jurisdiction of the action. Every question that related to the obligation to account, was determined by the court on the appeal to the general term, and now only such exceptions as concern the accounting are to be considered.

The contract bound the defendants to pay thirty cents per square foot “ of illuminating work made and sent away by the defendants to be used for the purpose of making illuminated basement and basement extensions.”

The defendants’ counsel excepted to the referee ruling that the defendants should be charged for illuminating work” used for covering areas. The claim is that areas were not, within the intention of the parties, basement extensions. What was according to the contract a basement extension, was a question of fact. It is true that an area, per se, is not part of a basement or of a basement extension, and there are considerations drawn from the patents in evidence, that by themselves would lead to the conclusion that a basement extension, as used in the contract, meant something different from an area. Yet taking all there is in the patents together, I think the referee was right in his conclusion that the contract meant among other things, such a basement extension as would result from an area being covered by the “ illuminating work.”

The referee’s findings as to the defendants’ liability for steps, risers and platforms, forming wholly or partly “ an illuminating roof ” over areas, should be sustained. They were within the terms of the contract if the phrase cs basement extension ” comprises areas. The exception to the finding was general. There is no suggestion that the finding alluded to contained a charge for illuminating work ” not used in connection with “ illuminating covering” of areas.

The learned counsel for defendants urges that the referee found for matters not contained in the first 115 objections made by plaintiff to the account filed by the defendants. Whatever may be the usual practice, the referee had the power to allow in any form that did not work injustice to the defendants, an objection to the account presented by defendants, whether or not a statement of objections had been previously made. A formal filing of objections implies that the accounting party need not prepare to meet any other objection. But the court has power to allow other objections to be made giving the accounting party opportunity to meet them.

I am of opinion that on the defendants’ appeal the judgment should be affirmed with costs.

On the plaintiff’s appeal, it is urged that the referee should have charged the defendants for all tiles adapted for covering basement extensions and manufactured and sold by them, or manufactured and used by them, which they have not shown were actually used for purposes other than basement extensions or how such material was to be used.”

In other words, the plaintiff claims that the burden of proof was upon the defendants to show that the tiles that they sold and which might be used for illuminating basements and basement extensions ” were not then used, and that if this were not proved, the defendants were to be charged with the royalties according to the contract.

The “ illuminating work ” in question was separate tiles, which were capable of various uses besides that of illuminating basement extensions. The tiles as made and sold by the defendants, did not indicate any special use to which they were to lie given.

Not only did the contract in action, allow the defendants to make and sell such separate tiles without payment of royalties, if they were not made and sent away by the defendants to be used for the, purpose of making illuminated basements and basement extensions; ” the patents themselves made no claim for the separate tiles, apart from their combination for certain uses. This right of the defendants to make and sell was not incumbered by the contract in any of its provisions. It would be an unusual limitation of the right to sell and of the benefit thereof, to require that the defendants should not only inquire of their customers as to the use to which the tiles were to be put, but should investigate the course which the tiles actually took after they were sold. The ruling of the referee in this respect was correct.

I am of opinion that the referee was right in his action as to work done by defendants in glazing tile.

Judgment affirmed as to each party with costs.

O’Gorman, J., concurred.


author: By the Court.—Freedman, J.

text:
    LAWRENCE J. CALLANAN, et al., Respondents v. GEORGE F. GILMAN, Appellant.

      Costs—where the remittitur from the court of appeals simply shows that the judgment beloiu was modified as stated in the opinion, without costs, the appellant has a right to have his liability for general term costs determined on a motion—What is necessary to be shown on such motion.—Omission of opinion from appeal booh, effect of.

    The remittitur from the court of appeals in this action (which was an equity action), recited that that court did order and adjudge that the judgment of the general term of the superior court, appealed from by the defendant, be modified as stated in the opinion, without costs; and then proceeded, “ Therefore it is considered that said judgment be modified as stated in the opinion, without costs.” The defendant moved at special term to have the special term judgment, and that of the general term, for costs, canceled of record on depositing with the clerk of the court the amount of the special term judgment, or that amount with interest thereon to date of its tender to plaintiff’s attorney. The motion was denied and from the order entered on that denial the present appeal was taken.

      Held, (1) That defendant had a right to have his liability for costs beyond the amount tendered by him determined, and that a motion is the proper remedy. (2) That the court of appeals had power to relieve the defendant from the general term costs; but as it did not appear from the remittitur that the court had in express terms exercised this power, and as the remittitur referred to the opinion of that court (which was not printed in the appeal book on the present appeal) as the source from which the nature and extent of the modification was to be gathered, there was nothing to show that it intended to interfere with the costs imposed below, or that its actual determination was to relieve defendant from the general term costs, and as the burden of showing such an intention, or such an actual determination, rested on the defendant, the order below should be affirmed.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, J.J.

      Decided May 7, 1888.
    Appeal from order.
    The facts appear in the opinion.

      Henry Schmitt, attorney, and of counsel for appellant, argued:
    I. The court of appeals having in this equity action given the exact language in which the judgment shall be modified (which it did not do in any of the cases which can be cited by the appellant), and having therein provided the extra amount of costs to be paid, and then having directed that as so modified, the judgment was to be affirmed without costs, we submit that thereby the plaintiffs are entitled only to the costs that have' been directed by the court of appeals to be paid, and that they are not entitled to the costs of the appeal from the judgment to the general term, for the following reasons: 1. Where costs are in the discretion of the court the decision must specify which party is entitled to costs. Higgins v. Callahan, 2 Civ. Pro. Pep., 302. The court of appeals has specified the amount of costs the plaintiffs shall be paid, to wit, $164.21, but it does not give them any other costs. , 2. It was within the discretion of the court of appeals to award the costs in this action, the action being one in equity and not at law. § 3288, Code ; Chipman v. Montgomery, 63 N. T. 221. The court of appeals did not modify the judgment of the special term, but. the judgment of the general term, and it awarded to the plaintiffs the costs of the original trial. The appeal to the general term was necessary to enable the defendant to get to the court of appeals, and the defendant should not now be punished in being compelled to pay the costs of the appeal to the general term when the judgment of the general term was changed by the court of appeals, and the appeal was necessary to effect that change.
    II. The cases cited by the plaintiffs were where the judgment was <c affirmed in part ” or “ reversed in part” and in such case plaintiffs contend there has been, a construction placed on the words “ without costs.” But those cases were not equity actions, and in none of them did the court of appeals in its judgment name the actual amount to be paid as costs and affirm the judgment as modified without costs.

      Edwin M. Wight, attorney, and of counsel for respondents, argued:
    The appeal from the order of Judge Truax should be dismissed for the reasons—1st, The Code governs the question of costs on modification of judgment. § 306, Code of Procedure; § 3238, New Code. And these provisions have been repeatedly construed by the court of appeals to mean that they had no power over costs below in such case. Montgomery Co. Bank v. Albany City Bank, 7 N. Y., 459; Sturgis v. Spofford, 5.8 Ib. 103; Chipman v. Montgomery, 63 Ib. 221; Sisters of Charity v. Kelly, 68 Ib. 628; Pet’n of P. E. Pub. School, 86 Ib. 396; Murtha v. Curley, 92 Ib. 359; Water Com’rs of Amsterdam, 104 Ib. 677. 2d. The special term before which this motion was made had no power over the costs of the general term. 3d. The language of the opinion and of the remittitur conform to each other, and show clearly the purpose of the court not to interfere with the judgments for costs below.

       The reporters have been unable to discover in the remittitur any sped- . fic.ation of the amount of costs to be paid to the plaintiffs.

   By the Court.—Freedman, J.

At special term the plaintiffs had judgment for injunctive relief with $164.20 costs. The general term affirmed the judgment with $87.29 costs. On defendant’s appeal the court of appeals modified the judgment. The material parts of the remittitur are as follows, viz.:

“Whereupon the said court of appeals, .... did order and adjudge that the judgment of the general term of the superior court of the city of New York appealed from in this action to this court be and the same is hereby modified as stated in the opinion, without costs. And it was also further ordered that the record aforesaid and the proceedings in this court be remitted to the said superior court, there to proceed upon according to law. Therefore it is considered that the said judgment be modified as stated in the opinion, without costs, as aforesaid.”

On reading and filing the remittitur an order was made at special term making the judgment of the court of appeals the judgment of this court and modifying the original judgment accordingly without costs in the court of appeals. The modification related to the extent of the injunctive relief granted by the judgment.

The defendant thereupon tendered to the plaintiffs the sum of $164.20, with interest, as and for the costs of the original judgment, but declined to pay the costs of the general term judgment, and the tender having been for that reason refused, the defendant moved for an order of satisfaction of both judgments upon the deposit by him with the clerk of this court of the sum of $164.20, with interest. His motion was denied at special term and the present appeal is from the order of such denial.

The -defendant has a right to have his liability for costs beyond the amount tendered by him determined, and a motion is the proper remedy. Patten v. Stitt, 50 N. Y. 591.

So it must be conceded that, inasmuch as the action is of an equitable character, the court of appeals had full power to dispose of "the entire action and to determine absolutely the question of costs. It therefore remains to be seen what the court of appeals actually determined.

On the motion below the burden was on the appellant to establish the extent of such actual determination. By the tender of the costs inserted in the original judgment with interest, the appellant impliedly admitted that the court of appeals did not intend that there ■ should be no costs whatever. The actual intention on the part of the court of appeals he was bound to substantiate by proof. The evidence of such actual intention is to be bound in the remittitur and the opinion. They must be construed together because the remittitur refers to the opinion as the source from which the nature and the extent of the modification is to be gathered. But the printed papers on the present appeal do not contain the opinion, nor has the opinion been brought to our attention in some other way. For all that appears therefore the court of appeals may have intended to grant without costs in that court a modification which should not interfere with the costs imposed below.

The question seems to be a close one, but under the imperfect disclosure of all the facts which bear upon it, and in view of the fact that the order now under review was made by the samé learned judge who directed the entry of the order upon the remittitur, I am not prepared to say that there is error in the order appealed from.

The order should be affirmed with ten dollars cost and disbursements.

Sedgwick, Ch. J., and O’Gorman, J., concurred.


author: Truax, J. By the Court.—Freedman, J.

text:
    RICHARD G. BERFORD, Appellant v. THE NEW YORK IRON MINE, et al., Respondents.

      Service of summons on°non-resident.

    An order under § 440, Code Civ. Proc., for service of summons on nonresident, which contains no direction for publication of summons, but only an authorization for personal service without the state, is void.
    Ritten v. Griffith, 16 Hun 454, followed.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 7, 1888.
    Appeal from order vacating prior order authorizing service of summons personally without the state.
    Defendants Wetmore, White and Maynard, residents of Marquette, Michigan, were there personally served with summons, complaint, order and notice under § 440 of the Code. The order contained the provisions of that section for service without the state, only; and not those for publication or mailing. The order appealed from set aside, and vacated the order for this service, with costs to defendants. The motion was brought on by an order to show cause, which did not specify any time for its service. Plaintiff took the preliminary objection that it did not comply with the requirements of § 780 of the Code.
    The following opinion was delivered by the court at special term:—
   Truax, J.

I think that the preliminary objection has been waived by the adjournment. Section 440 is mandatory and must be complied with in order to give the court jurisdiction. It differs somewhat from § 135 of the old Code, and for this reason Abrahams v. Mitchell, 8 Abb. 123, is not an authority, nor is Weil v. Martin, 24 Hun 645, an authority for plaintiff. In the Weil case the plaintiff simply did not wish to avail himself of the option given by § 440, and, therefore, did- not put into the order the provision for personal service.

Roger M. Sherman, for appellant:—

I. Under § 440 a party may now have separate orders to meet the alternative mode of service which he may choose to adopt." A separate order may be made directing personal service without the state. O’Neill v. Bender, 30 Hun 204.

II. The object of all service is to give notice. Publication affords presumptive notice and deposit in the postoffice is a mere incident, and only strengthens the presumption. Personal service is actual notice. One is the shadow, the other is the substance. Publication bears no other relation to personal service than secondary evidence bears to primary evidence. To set aside actual notice because of the omission of the provisions for secondary or presumptive notice, is to prefer the shadow to the substance and secondary evidence to primary evidence ; it is an insult to intelligence. Applied to a statute which unquestionably bears a different construction, it is in disregard of the fundamental principles for the construction of statutes.

III. If the provisions for publication are, as held by Judge Truax, mandatory, yet it by no means follows that their omission is a jurisdictional defect. On the contrary, it is a mere irregularity, obviously unprejudicial to the defendants, and cured by § 723 of the Code. Wallace v. Dimmick, 24 Hun 636; Boring v. Binney, 38 Ib. 154; affirmed 102 N. Y. 623; Norton v. Dover, 14 Fed. Rep. 106, and cases there cited.

Barlow & Wetmore, for respondents :

I. The order does not comply with the statute and is void. Ritten v. Griffiths, 16 Hun 454; Weil v. Martin, 24 Ib. 645.

II. Proceedings for acquiring jurisdiction of absent defendant must be strictly complied with to give the court jurisdiction. Wortman v. Wortman, 17 Abb. Pr. 72, and cases cited.

By the Court.—Freedman, J.

As both parties have conceded that an adjournment of the motion was had, and that the motion was argued below on the merits, the preliminary objection raised below should not be considered on the present appeal.

The merits of the motion depend upon the construction of section 440 of the Code of Civil Procedure. The point that the order which was vacated, contained no direction whatever as to a publication of the summons, but only an authorization for personal service without the state, was passed upon in Ritten v. Griffith, 16 Hun 454, and decided adversely to the appellant. The case referred to was distinguished in Weil v. Martin, 24 Hun 645, and in O’Neil v. Bender, 30 Hun 204, but it has never been overruled. If the point had never been squarely passed upon, I perhaps could persuade myself to reach a different conclusion. But it has been expressly decided by a general term of the supreme court, and no sufficient reason has been shown why this court should not follow the decision then and there made. The question is a close one, and it can be set at rest only by the court of appeals, and it should be submitted to that tribunal for final determination.

Abraham v. Mitchell, 8 Abb. 123, arose under § 135 of the former Code, the language of which differed from the language of § 440 of the Code of Civil Procedure.

The order appealed from should be affirmed with ten dollars costs and disbursements.

Sedgwick, Ch. J., and O’Gorman, J., concurred.


author: By the Court.—O’Gorman, J.

text:
    ELSIE R. FEITNER v. RICHARD J. LEWIS, et al.

      Infant.—When right of dower of infant wife not barred by foreclosure of a mortgage in which she joined.—Service of process on infant.

    Where a mortgage upon real estate was executed by plaintiff, then a minor, with her husband, in 1836, and where, in the subsequent proceedings, under the chancery practice which then existed in this state, to foreclose the mortgage, she (still under age), was made a party defendant, but did not in any manner appear in the suit and was not personally served with the summons,

      Held, that the judgment taken against plaintiff in the foreclosure suit was void, and she was in no way affected thereby as to her right to dower.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 7, 1888.
    Exceptions ordered to be heard in the first instance, at general term.
    The action was brought by plaintiff, as widow of George Feitner, deceased, for dower in a lot in 48th street, in this city, of which lot the defendants are seized and possessed.
    The material facts are these: The plaintiff was born in 1820, and was married to said George Feitner in 1835. In 1836, she joined him in executing a mortgage on the lot referred to, she being then an infant, over fourteen years of age. In 1838, while she was still under age, a suit in chancery was instituted for foreclosure of that mortgage, in which suit her said husband and she were parties defendant. A copy of the writ of subpoena in that suit was served on her husband, and a copy of the same was delivered to him with the request that he would hand it to her. He did not deliver it to her, and she was never served with a subpoena in the suit, and never in any manner appeared in the suit, and judgment of foreclosure and sale of said lot was entered against her husband and against her by default, and the same was enrolled on July 9,1838, she being still, and until 1841, an infant under twenty-one years of age. In pursuance of said judgment, the said mortgaged property was sold by a master in chancery, and the deed of the master in chancery to the purchaser was executed and recorded in December, 1838.
    The plaintiff contends: First. That the execution by the plaintiff, while under age, of the mortgage, was of no force and effect to bar her right of dower. Second. That she was not made a party to the suit for foreclosure, or brought within the jurisdiction of the court therein, or bound or in any way affected, as to her right to dower, by the judgment therein.

      H. Brewster, for plaintiff:
    I. The plaintiff, being a minor until 1841, she was incompetent to execute a valid deed or mortgage, and this mortgage if signed by her, as to her was absolutely void. The deed of an infant when he receives a direct benefit is voidable, but when it is not for the benefit of the infant it is absolutely void. Sherman v. Garfield, 1 Den. 330; Sanford v. McLean, 3 Paige 121; Chapin v. Shafer, 49 N. Y. 412 ; Comyns Digest, Enfant. (C. 2); Tyler on Infancy and Coverture, 48; Sanderson v. Marr, 1 Lev. 86; Darby v. Boucher, 1 Salk. 279; Conroe v. Birdsall, 1 Johns. Cas. 127; Baylis v. Dinsley, 3 Maule & Selw., 477; Luthers v. Fish, 4th Lans. 213; Story on Contracts, 4th ed., § 57.
    II. The plaintiff’s right of dower is not barred or affected by the foreclosure proceedings had in this case for the following reasons: (a) An infant defendant must be personally served with process. Walter v. DeGraaf, 19 Abb. N. C. 406; People v. Hoffman, 7 Wend. 489; 2 R. S. 447, §§10 and 11., 1st ed.; 1 Hoffman's Practice, 106 ; Ingersoll v. Mangam, 84 N. Y. 622 ; Grant v. Van Schoonhoven, 9 Paige 255. In this case there is no evidence that she ever saw the subpoena issued from the court of chancery or knew the contents, and if the service on the husband was good, his neglect to cause her appearance to be properly entered does not prejudice her under the provisions of the statute, which is as follows : “ No judgment or decree confessed by or recovered against him, and no laches, default, covin or crime of the ■ husband could prejudice the right of his wife to her dower or jointure or prejudice her from the recovery thereof if otherwise entitled thereto. 2 R. S. 6 ed., p. 1122, § 16 ; Alvord v. Beach, 5 Abb. 452. (5) A decree cannot be taken against an infant merely by default. Wilkinson v. Parish, 3 Paige 655. In other words an infant defendant must be brought into court and the only mode of appearance by an infant is by a guardian. Bloom v. Burdict, 1 Hill 139 ; Kohler v. Kohler, 2 Edw. Ch. 69 ; Knickerbacker v. Defreest, 2 Paige 306 ; Harvey v. Large, 51 Barb. 222; Fairweather v. Satterlee, 7 Rob. 546 ; Kellogg v. Klock, 2 Code Rep. 28; Lathers v. Fish, 4 Lans. 213; Mockey v. Grey, 2 Johns. 192; Bliss v. Rice, 9 Ib. 159; Ingersoll v. Mangam, 84 N. Y. 622; Boyley v. McAvoy, 29 How. 278; Park v. Park, 19 Abb. 161; Code Oiv. Proc., § 1218. (c) The court •did not acquire jurisdiction to take a decree pro confesso on a service upon her husband. The rules of the court of chancery only provide for taking a decree by default where the service is made personally. Chancery Rules ■22 and 23. It is said the husband is bound to enter an appearance for his wife. If this applies to an infant feme covert then it was the duty of the husband to see ■that her appearance was entered. In the previous citation from the Revised Statutes, no laches or default of the husband shall prejudice the right of his wife to her dower. (d) There was no issue in the foreclosure action ■raising the question of plaintiffs right of dower and although her capacity for being endowed accrued on the fact of marriage and seizin of .the husband the actual right of dower accrued to the plaintiff on the death of her husband. Her right of dower on the death of her husband was a prior and superior claim to that of the mortgagee under his mortgage and could not be tried in that action, hence there could be no estoppel by the decree in that action. Corning v. Smith, 2 Sel. 82; Rathbone v. Hooney, 58 N. Y. 463; Hallet v. Hallet, 2 Paige 18 ; Lewis v Smith, N. Y. 502; Frost v. Koon, 30 N. Y. 448; Emigrant Industrial Savings Bank v. Goldman, 75 N. Y. 131; Holcomb v. Holcomb, 2 Barb. 20. See Lawrence v. Smith, 2 Coms. 255; Lasher v. Lasher, 13 Barb. 106. (e) Estoppel is not favored in law because it shuts out the truth; estoppels also must be mutual and bind both parties. Dempsy v. Tyler, 3 Duer. 100; Masten v. Olcott, 101 N. Y. 160; Welland Canal Co. v. Hathaway, 8 Wend. 484; Brown v. McCune, 5 Sandf. 224. In that case it is said, estoppel does not apply to infants. See also Maloney v. Horan, 49 N. Y. 11. (f) There is no estoppel because inchoate right of dower gives no right or title to a wife in the lands of her husband. Witthaus v. Schack, 105 N. Y. 332; Sherman v. Garfield, 1 Den. 330. In this case as the plaintiff was an infant and the plaintiff’s signature wholly void the mortgage is to be treated as by the husband alone.
    III. A judgment is never binding where the court never acquired jurisdiction over the person. Ferguson v. Crawford, 70 N. Y. 253 ; William v. Van Valkenberg, 16 How. 146; Starbuck v. Murray, 5 Wend. 148.
    IV. The marriage of the plaintiff was before the statutes of 1848 and 1849 and hence the law then in force is the one applicable to this case, consequently she could not be in default as a feme covert, and as hereinbefore shown it was the business of the husband to take care of her interests; 1 Hoffman's Practice, 161; but as before shown his neglect cannot prejudice his widow as to her right of dower. Walsh v. Powers, 43 N. Y. 27. An infant can disaffirm his contract without restitution of the consideration money. Green v. Green, 69 N. Y. 553.
    V. If the plaintiff had put in a joint answer with the husband and confessing the allegations in the complaint in foreclosure, that would not estop her in this action for dower. A woman is not estopped after coxrerture by an admission on record by her husband and herself during coverture. 2 Phil. Ev. 9; Com. Dig. Estoppel, C.
    VI. The possession of the various grantees was not adverse to the plaintiff until the death of her husband; in cases of this description the limitation is from the death of the husband, which occurred on May 30, 1882. Code Civ. Proc., § 1596.

      Wm. H. Regan, attorney, and Thomas J. Rush, of counsel, for defendants:
    I. The decree of the court of chancery in the suit of Purdy, Jr., v. Feitner, et al., is final and conclusive. (1.) The court of chancery had jurisdiction of the subject and of the parties. Service of the subpoena, the process of the chancery court, in the manner proven was sufficient, (a) Prior to the Code personal service of a subpoena upon a married woman who was a party to a chancery suit was necessary only when the proceedings affected her separate estate in xvhich her husband was only a nominal party and not where the estate was in the husband, the wife having merely an inchoate right of dower. Thomas Mort., 265 ; Daniells’ Eq. Prac., 444; Barbour’s Ch. Prac., 50; Ferguson v. Smith, 2 Johns. Ch. 139; Leavitt v. Cruger, 1 Paige 421; Eckerson v. Vollmer, 11 How. Pr. 42. (2.) From the moment of the servióe of the process, the court of chancery had such control over the litigants, that all its subsequent proceedings, however erroneous, were not void. Freeman on Judgments, § 125; Hunter v. Lester, 18 How. Pr. 347. Myers v. Overton, 2 Abb. Pr. 344; Myers v. Wilson, 1 Hilt. 259. (a) The judgment of a domestic court of general jurisdiction is not void, except when the court has no jurisdiction over the subject matter of the suit, or when, having jurisdiction over the subject, it is shown by the record to have had no jurisdiction over the judgment defendant. Allen v. Huntington, 16 Am. Dec.
      702 ; Whitaker v. Merrill, 28 Barb. 536. (3.) Judgment and decree in the foreclosure suit against Elsie Feitner; admitting for the purpose of the argument that she was an infant, without the formality of appointing a guardian, ad litem, may have been irregular but was not void. (a) The plaintiff was served in the chancery suit in which she was a necessary defendant and if voidable, the decree taken against her could only be set aside in an action or proceeding seasonably brought for that specific purpose and (as against parties who purchased under that decree) only for fraud or collusion. (6) “A distinction is to be made between a case where there is no service whatever and one which' is simply defective or irregular. In the first case the court acquires no jurisdiction and its judgment is void; in the other case, if thé court to which the process is returnable adjudges the service to be sufficient and renders judgment thereon, such judgment is not void, but only subject to be set .aside by the court which gave it upon seasonable and proper application or reversed on appeal.” Isaacs v. Price, 2 Dillon C. C. R. 351; McMurray v. McMurray, 66 N. Y. 175; Daniell’s Chan. Pr. 164. (4.) A motion on behalf of the plaintiff in the action to vacate the decree and sale in the chancery suit if made promptly might have been granted, but prompt action to repudiate the transaction was necessary. Howard v. Dusenbury, 44 How. Pr. 423. (5.) A judgment against a married woman is not void; and when erroneous because based upon a contract which she is not competent to •make, or from any other reason, is still binding upon her until set aside. Freeman on Judgments, § 150; Olmstead v. Hoyt, 4 Day (Conn.) 436; Green v. Branton, 1 Dev. Eq. 500. (a) It is not enough that a married woman prove facts sufficient to have avoided the judgment in the first instance. She must allege and establish that she was deprived of a full defense by the contrivance of her adversary. The inaction of her husband will not sustain the charge of contrivance. Green v. Branton, 1 Dev. Eq. 500.
    II. The court of chancery having jurisdiction of the subject matter and the party in the foreclosure suit of Purdy v. Feitner, et al., the decree of the court embodying its judgment in the case is final as to every matter therein determined. The bill of complaint alleged the execution of an instrument by which Elsie Feitner released her right of dower in the premises, and demanded judgment foreclosing the parties thereto. The decree was based on the finding that the mortgage was a valid instrument and declared that the allegations of the bill were true, giving effect to the instruments referred to and announcing them free from defects. (1.) If there was any valid defense to that suit, or any equitable ground on which the premises were entitled to exemption from the mortgage, it should then have been set forth in that action, or within a reasonable time after the entry of purchaser thereunder by a proceeding for that special purpose. Le Guen v. Governor, 1 Johns. Cas. 492; Jackson v. Hoffman, 9 Cow. 271; Lansing v. Goelet, 9 Ib. 362; Talbot v. Todd, 5 Dana 193; Peck v. Woodbridge, 3 Day 30. (a) The general rule is well settled that the estoppel of a former judgment extends to every material matter within the issues, which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered. Pray v. Hegeman, 98 N. Y. 351; Dunham v. Bower, 77 Ib. 76; Embury v. Connor, 3 Coms. 522; Clements v. Clements, 37 N. Y. 74. (6) “A judgment rendered by a court having competent authority to deal with the subject matter involved in the action, and jurisdiction of the parties, although against the facts, or without facts to sustain it, is not void as rendered without jurisdiction and cannot be questioned collaterally.” Jordan v. Van Epps, 85 N. Y. 427; Reed v. Reed, 28
      Week. Dig. 26 ; Cromwell v. Hull, 97 N. Y. 209; Bloomer v. Sturgis, 58 N. Y. 168.
    III. A judgment or decree upon default, is equally conclusive with one upon the merits. Blair v. Bartlett, 75 N. Y. 150; Newton v. Hook, 48 Ib. 676; Powers v. Witty, 4 Daly 552; 42 How. Pr. 352.
    IV. The rights of innocent third parties will not be affected by irregularities or errors in a proceeding which is regular on its face. Freeman on Judgments, § 510 et seq.; Holden v. Sackett, 12 Abb. Pr. 473; Newbold v. Schleus, 10 Fast. Rep. 698; McMurray v. McMurray, supra.

    Y. The provisions of the Revised Statutes, taken from the Revised Laws, protecting dower rights (3 Rev. Stat., 7 ed., § 16, p. 2198), are not applicable, (a.) There was the assent of the wife evidenced by her acknowledgment of the instruments, (b.) The judgment in foreclosure was against her, and remains binding and unreversed, foreclosing her right.
    VI. The case of Lewis v. Smith (19 N. Y. 502), and other analogous cases relied upon by the plaintiff’s counsel to defeat the effect of the decree in foreclosure are, decided upon the issues raised by pleadings where the rights' of a doweress were sought to be cut off by the general allegation in the bill to foreclose (wife not having joined in the mortgage), that she had some interest in the mortgaged premises, as subsequent purchaser “ or otherwise,” but not alluding to her as a doweress. In the action of Purdy v. Feitner, the bill of complaint alleged the due execution and delivery of mortgages executed by this plaintiff, and her husband, conveying her right of dower, and prayed the decree of this court making effective that instrument by perfecting the rights of the mortgagee thereunder. The decree of the court found that said mortgage was a valid instrument. The plaintiff should have set up any defense she may have had to the mortgage in that action of foreclosure, and having failed so to do, and suffered the decree to be entered against her, and having allowed the judgment to remain undisturbed for nearly fifty years, she is concluded by it, and cannot now attack it collaterally in this action. See comments of Judge Gray of U. S. Supreme Court, in Hoffman v. N. W. Mut. Life Ins. Co., 37 Alb. L. J. 141; Jordan v. Van Epps, 85 N. Y. 436. And cases cited above.
    VIII. The attention of the court is respectfully drawn to the distinction between the case at bar and the leading cases cited by the plaintiff’s counsel, viz.: Ingersoll v. Mangam, 84 N. Y. 622; Ferguson v. Crawford, 70 Ib. 253; Walsh v. Powers, 43 N. Y. 27.
   By the Court.—O’Gorman, J.

(after stating the facts as above)—The foreclosure suit was brought and concluded under the chancery practice which then existed in this state, but the principles, by which that practice was controlled, were not different from those which now prevail.

It was held in Priest v. Cummings, 16 Wend. 617 (1837), that a feme covert is not barred of her right of dower by joining with her husband in a conveyance of land, and acknowledging her' execution of the deed, if she be a minor within the age of twenty-one at the time of the acknowledgment. See also Tyler on Infancy and, Coverture, 555.

Whether her execution of that release of dower was void, or only voidable, and subject to ratification by her on arriving at full age, is a question which need not be discussed here. There is no evidence or presumption that she ever did ratify it. The plaintiff was never properly brought into court in the foreclosure suit, the court acquired no jurisdiction over her, and as to her, the judgment is of no force or effect. The only way in which an infant could have been brought within the jurisdiction of the court in that action was by service of the subpoena upon her inperson. Without that service, all proceedings against her in the suit were absolutely void.

As to the absence of some other steps in the action subsequent to her being served with process, if this service had been made, the defect might be only an irregularity, which could be cured. But the failure to make this personal service on her of the subpoena was fatal and incurable. She was never brought within the jurisdiction or power of the court, and all its proceedings against her were void. The judgment taken against her by default was void. Wilkinson v. Parish, 3 Paige 655.

Want of jurisdiction may be set up at any time. Ferguson v. Crawford, 70 N. Y. 253, 263.

In McMurray v. McMurray, 66 N. Y. 175, cited on behalf of the defendants, a decree of foreclosure against infants was held to be only voidable, notwithstanding the fact that no guardian, ad litem, had been appointed for certain infant defendants, which was required by law. But in that case, they had been served with process, and were thus brought into court, and were within its jurisdiction.

In the case at bar, the infant was never personally served with any process in the suit, and as far as appears, did not know of the existence of the suit until after her husband’s death, which occurred on May 30, 1882.

The defendant’s exceptions were not well taken, and there should be a judgment for the plaintiff with costs.

Sedgwick, Ch. J., and Freedman. J., concurred.


author: Per Curiam.

text:
    WILLIAM EDGAR BIRD, Appellant v. FRANK G. FAULKNER, Respondent.

      Promissory note—oral evidence to show read consideration—Evidence admitted to show that note payable on certain date was as between parties, mere memorandum note and without consideration and unenforceable until final settlement of partnership affairs between the maker and payee.

    Before Freedman and Truax, JJ.

      Decided June 23, 1887.
    Appeal from, judgment entered in favor of the defendant upon the verdict of a jury, and from order denying plaintiff’s right to have the verdict changed into a verdict for plaintiff (the court, having by stipulation, between the parties, reserved the right so to do if so advised), and denying plaintiff’s motion for a new trial.
    This action was brought upon a promissory note given by defendant Faulkner to plaintiff Bird for the sum of $6,170.34, bearing date June 2, 1884, payable one year after date. The defendant admitted giving the note, but claimed that it was a memorandum note, and was not to be enforced until after a final settlement of the affairs of Bird, Faulkner & Co.; and that the affairs of the partnership of Bird, Faulkner & Co., which ended on June 2, 1885, not having been settled at the time of the commencement of this action, it was prematurely brought.
    It appeared that the note in suit was made for an amount which, by the balance sheet made by the firm of Faulkner & Bird (limited) composed of the parties to this action and one Theodore L. Bird, on the second of June, 1884, when that firm was terminated by mutual consent, upon certain estimates of the value of the firm assets, appeared- chargeable to the defendant’s account as a partner on the partnership books; that contemporaneously with the termination of said firm, a new firm was formed by the same parties under the firm name of Bird, Faulkner & Co., to which the whole of the assets of the former firm were turned over bodily, and which assumed its liabilities and continued in business for another year up to June 2, 1885; that the note in suit was not given until after the old firm was terminated and the new firm begun, and it was then given by the defendant to the plaintiff, the defendant objecting at the time to giving it, and the plaintiff assuring him that it was only a memorandum, and would not be enforced by him, and the matter would be settled at the end of the co-partnership, that is, the final settlement ; that it would be made up then, and if anything was coming to the defendant at that settlement, it would be credited to him upon the note.
    The written agreement under which the new partnership was formed, contained the following provision : “ Inventory of stock to be taken on January 1, 1885, and if it- shall then be found that the business has not to that date paid for its running expenses, together with the cash that has been withdrawn by the said members of the firm, then in that case Wm. Edgar Bird to have the option whether he will continue the business to June 2,1885, or wind it up on January 1, 1885. When the true assets of the aforementioned firm of Faulkner & Bird shall be ascertained on June 2, 1884, then what the books show as due to Wm. Edgar Bird shall be credited to him on the books of Bird, Faulkner & Co., and will draw interest at six per cent, per annum from that date—furthermore, the indebtedness of Frank G. Faulkner and Theodore Lyell Bird as it may in each case appear on the books of Faulkner & Bird, shall remain an indebtedness to Wm. Edgar Bird, but without interest during the term of this copartnership.”
    The following is the opinion of the court denying motion for direction of verdict for plaintiff and for a new trial
    “ The contract of a promissory note cannot be varied by parol. The real consideration of it can be proved by parol. The evidence that, at the time of giving it, the payee said he would not enforce it until, etc., can be used as a piece of testimony to show, with other facts, for what the note was given. There was no other consideration for the present note than the individual indebtedness of defendant to plaintiff growing out of the partnership (limited) affairs. No such indebtedness was, in fact due. The apparent indebtedness was subject to the result of the liquidation of the affairs of the limited partnership. The mode of that liquidation was agreed upon by the subsequent partnership agreement, and until that liquidation is made it cannot be determined that the face of the note is due by the maker. I think the defendant should have judgment on this verdict.”

      John P. Adams, for appellant.

      J. H. V. Arnold, for respondent.
   Per Curiam.

The judgment and order should be affirmed, with costs, for the reasons assigned by the learned Chief Judge at the time of making the order, and the additional reason that the verdict cannot be held to be against the weight of evidence.


author: The Court at General Term, said:

text:
    STEPHEN V. HARKNESS, Appellant v. THE NEW YORK ELEVATED RAILROAD CO., et al., Respondents.

      Presumption in favor of findings of fact, when appeal book fails to state that it contains all testimony taken on trial, etc.

    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided November 21, 1887.
    Appeal from judgment of special term, dismissing the complaint upon the merits, with cost. (For report of decision below see 54 Super. Ct. 174.)

      Edward B. Cowles and William H. Arnoux, for appellants. .

      Jiilien T. Davies, Charles A. Gardiner and Aaron J. Vanderpoel, for respondents.
   The Court at General Term, said:

“No authoritative statement being made, on the part of the plaintiff, that all the testimony taken at the trial is included in the record, it must be presumed that the findings of fact are supported by competent and sufficient evidence. Porter v. Smith, 35 Hun 118. A close and careful consideration of the pleadings, the plaintiff’s requests to find, the findings of fact, and the conclusions of law thereon, have satisfied me that no error has been committed by the court below, and that the plaintiff has not shown himself to be entitled to the judgment or relief demanded in his complaint, or to any judgment in his favor or relief in this action.

Memorandum by O’Gorman, J.; Sedgwick, Ch. J., and Freedman, J., concur.

Judgment and order affirmed with costs on the opinion of the trial judge.


author: The Court at General Term said: Opinion Per Curiam.

text:
    JAMES DUNN, Respondent v. HENRY STEUBING, Appellant.

      No provision in a written contract providing that time shall be of the essence of the contract and that there shall be no waiver of any part of the contract except in ivriling, can afford immunity to a party thereto, from the consequences of his own acts by which performance is made impossible— Effect of failure to insist on forfeiture for non-performance within time fixed, and directing continuance of work—not inconsistent with right to damages for non-performance on time.

    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided November 21, 1887.
    Appeals from judgment entered upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.
    The action was brought to recover a balance due for labor, material and services.
   The Court at General Term said:

“Although the agreement of March 13,1884, decided the agreement of December 11,1882, declared time to be of the essence of the contract and provided that no part of the contract could be waived, altered or modified by either of the parties, except by a writing duly signed by both parties, there was evidence given at the trial and properly received, upon which the jury was at liberty to find that the defendant, during the progress of the work, made such material changes and additions with which the plaintiff was forced to comply, and interfered so much with the plaintiff’s proceedings, that the work could not be completed within the time originally fixed. The case was therefore one for the jury, notwithstanding there was no evidence of any express waiver on the part of _ the defendant. No provision in a written contract can afford immunity to a party to the contract from the consequences of his own acts by which performance by the other party was rendered impossible. So, by failing to insist upon a forfeiture for non-completion within the time fixed by the agreement, and directing the prosecution of the work after the expiration of such time, the defendant became liable to pay, if the contract was thereafter performed, but he had a right to claim damages, if he sustained any, by reason of the non-completion within the time. Weeks v. Little, 89 N. Y. 566 ; Heckmann v. Pinkney, 81 Ib. 211; Stewart v. Keteltas, 36 Ib. 388; Gallagher v. Nichols, 16 Abb. Pr. N. S. 337. The facts of the case are very complicated and peculiar, and they present great confusion, but a careful examination of them has satisfied us that upon the whole case substantial justice has been done, and that none of defendant’s exceptions should be sustained. True, there seems to be an inconsistency between certain instructions given to the jury, for at one time the learned judge who presided at the trial charged that there was no evidence of any waiver by the defendant, while subsequently he submitted to the jury the question of such waiver, together with the question of defendant’s interference, and the question of defendant’s damages. But the question of waiver was submitted pursuant to defendant’s request, and consequently the defendant has no cause of complaint on that score.

Guggenheimer & Untermyer, attorneys, and Samuel Untermyer of counsel, for appellant.

Anderson & Man, attorneys, and E. Ellery Anderson of counsel, for respondent.

Opinion Per Curiam.

Judgment and order affirmed.


text:
    JOSEPH WALSH v. THE MAYOR, &c., OF THE CITY OF NEW YORK.

      Bids Jor work on contracts with City of New York—Laws 1881, ch. 147.— City ordinances.

    Before Sedgwick, Ch. J., and Truax, J.

      Decided November 21, 1887.
    Motion by each party, for judgment upon a verdict directed for the plaintiff by the court, subject to the opinion of the general term.
    The complaint contained two causes of action based upon the refusal of the department of docks of New York city, to award contracts for certain work in the said city, plaintiff claiming to be the lowest regular bidder therefor. It appeared from the pleadings and proof that plaintiff’s certified check (given as security, etc., under L. 1881, ch. 147, § 1), in both instances was inclosed in the envelope which contained his bid, and the envelope thus containing both the check and the bid was deposited in the “ estimate-box.” This was done by the direction of one Whitney, a clerk in the dock department.
    Defendants claimed that plaintiff’s bid was irregular and void.
    The following is an extract from opinion in People v. Thompson, below referred to:—“ The question presented is whether or not it was the duty of the bidders to exhibit to and deposit with the Commissioner of Public Works, or some officer of his department, a certified check, or in lieu thereof the money, at the time of depositing the proposals in the estimate-box. .... The provisions of the statute providing that such checks or money accompany the proposal, must be considered and construed in connection with the other provisions of the section. Those provisions provide that such department or officer is authorized and directed to require as a condition precedent to the reception or consideration of any proposal, the deposit with such department or officer of a certified check upon one of the national banks of the said citv of New York, drawn to the order of the comptroller, or of money, etc. It will be observed that the deposit is to be made with such department or officer, and that the deposit is a condition precedent to the reception or consideration of the proposal. What is meant by the term department or officer ? We can hardly believe that by the term department or officer it was the intention to permit a deposit to be made in a desk, drawer or box in the office. Such interpretation would endanger the rights of the depositors as well as those of the city. It appears to us that the true meaning intended is that the deposit is to be made with the commissioner or other officer of the department. Under this interpretation, the various provisions of the section are consistent with each other. The check or money must accompany the proposal. As a condition precedent to the reception of the proposal the check or money must be deposited with the commissioner or an officer of his department, and on such deposit being made the proposal may be received and deposited in the estimate-box. The ordinance of the city directing that an estimate-box be kept by the Commissioner of Public Works, and that the proposals be sealed and deposited in that box, does not provide that the deposits of certified checks or money should be made in the box (Rev. Ord., ch. 7, art. 1, § 2). It would hardly be considered a safe place for the keeping of such deposits.”
   The Court at General Term said:

"This case presents narrow questions of statutory construction. The decision of The People v. Thompson (33 Hun, 661, MSS. opinion of Judge Haight) should be followed as a precedent. Mr. Whitney incorrectly, according to the case cited, directed what the plaintiff should do with the check, and the plaintiff acquiesced in the incorrect direction.

John C. Shaw, for plaintiff.

John I. Townsend, Jr., for defendant.

Opinion Per Curiam.

Motion by defendant for judgment granted, with costs.


author: The Court at General Term held: Opinion Per Curiam.

text:
    MAX DANZIGER, Respondent v. JOHN BOYD, et al., Appellant.

      Deed—Construction of description in—Monuments, not necessarily controlling courses, distances or quantities—53 Super. Ct. 398, followed as to above.—Ejectment.—Champerty Act, 2 B. S.. ch. 1, tit. 2, art. 4, § 147, what necessary to bring a case under.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided December 12, 1887.
    Appeal from judgment entered upon the verdict of the jury.
    Action in ejectment.
    This case has been twice before the court on appeal. (See 53 Super. Ct. 398, and 54 Ib. 365.) On the first appeal it was held that the plaintiff was the owner of the strip of land in dispute.
   The Court at General Term held:

“This decision should be followed, unless it clearly appears that, for some cause not presented by counsel or considered by the cqurt on that appeal, the former decision was erroneons. The learned counsel for the appellants now claims that the deed to the plaintiff, under which he claims title to the premises in dispute, was void for the reason that at the time of the delivery of the deed such land was in actual possession of the defendant claiming under title adverse to the plaintiff. § 147, article IV., title I., chap. 1, part II. Revised Statutes. The case of Crary v. Goodman, 22 N. Y. 170, appears to be decisive against the appellant on this point. The court there says, ‘Nothing can satisfy the language of the latter act (the statute in question) but the existence of some specific title under which the party claims. The title may be good or bad, but there must be, at least, a color of title opposed to the title of the grantor in the deed; and there is no such color of title when the possession was taken purely by mistake as to the boundaries of the deed.’ On an examination of the other objections to the plaintiff’s title it clearly appears that they are within the decision of the case on the former appeal, and we think that decision is decisive. The trial judge submitted the question of the amount of the mesne profits to the jury, as directed by the decision of the general term on the last appeal, and applying that decision, it does not appear that the court below erred.”

Townsend & Mahan, for appellants.

Kaufmann & Sanders, attorneys, and L. Sanders, of counsel, for respondent.

Opinion Per Curiam.

Judgment affirmed with costs.


author: Sedgwick, Ch. J. Per Curiam.

text:
    JAMES E. LYON, Appellant v. TRENOR W. PARK, et al., Respondents.

      Abatement—Modes in which relief, under § 755 Code Civ. Proc. is granted —§§ 757, 758—Death of one of two defendants—Laches, when ground for denial of relief.

    Before Freedman and Ingraham, JJ.

      Decided December 12, 1887.
    Appeal from, order.
    This motion was made by the plaintiff in August, 1886, for leave to continue the action against the estates of Park and Baxter, and also to be relieved from his default and failure to file a bond for costs as required by order of the court, made June 11, 1878, and that he be now permitted to comply with that order. The action was commenced by the service of summons in June, 1877. The complaint was served in November, 1877, plaintiff’s time having been previously extended by order. Notice of motion for order requiring plaintiff to give security for costs was served March 12, returnable March 20, 1878. The hearing on this motion was adjourned,, at plaintiff’s request from time to time until June 4, 1878, when it was argued, and the motion was granted fixing the undertaking at $2,000. Order was entered and served accordingly June 11, 1878, requiring the bond to be filed within sixty days after service. The undertaking never was filed. The defendant Park died December 13,1882, and his administrator was appointed January 6, 1883. The defendant Baxter died February 17, 1884. The administration of his estate is in Vermont. The defendant Stewart was not served.
    The following opinion was delivered at special term :

      Warren Higley, attorney, and Ewing & Southard and W. O. Campbell, of counsel, for appellant.

      Jennings & Russell, attorneys, and Joseph H. Choate, Aldace F. Walker, and Frederic B. Jennings, of counsel, for respondents.
   Sedgwick, Ch. J.

The modes in which a court can give to a party the benefit of section 755 are only those provided by the succeeding sections. Coit v. Campbell, 82 N. Y. 509, determinines that when one of two defendants dies as Park in this case, the action cannot be continued against his representatives under the provisions of section 757. If, which is not affirmed, any other section applies as to Park, it is section 758, in its last sentence. By that the matter is left to the discretion of the court acting upon special circumstances. The laches have been such that the representatives of Park have lost those ordinary means of investigation and defense that they would have had if an earlier application had been made. Even if it were the misfortune of the plaintiff that he has not been able before this time to procure security for costs, the effect of the lapse of time would be injurious to defendant’s defense. The motion is denied as to Park’s representatives. The representatives of Baxter have not been brought before the court on this motion, and indeed there are no representatives that could be competently sued in the courts of this state. The motion as to Baxter must be dismissed.

Per Curiam.

The order should be affirmed with costs on the opinion of the learned chief judge at special term.

Order affirmed.


text:
    THE FIFTH AVENUE NATIONAL BANK v. JAMES B. COLGATE, Impleaded, &c.

      Special partnership—certificate on renewal of, statements in—54 Super. Ct. 188, folloioed.—Charge on books of special partnership against another firm composed solely of the general partners of special partnership, when not an asset of the special partnership.

    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided January 3, 1888.
    Exceptions taken by the defendant, James B. Colgate, ordered to be heard in the first instance at the general term.
   The Court at General Term, said:

"On the former appeal in this action (54 Super. Gt. 188), it was held by . this court that the certificate required to renew a special partnership beyond the time originally fixed for its duration, under the provisions of section 11 of the act, must contain a statement of the amount of the capital contributed by the special partner to the original special partnership which remained in the old firm at the time of the renewal and was carried over and contributed to the renewed firm, and that if such certificate was false, the firm was not renewed or continued, as required by section 11, and so became a general partnership. On February 28, 1882, the duration of the special copartnership theretofore existing between the defendants, and in which the defendant, James B. Colgate, .was special partner, came to an end, and the members of the copartnership executed a certificate that certified that the said limited partnership was renewed and continued, pursuant to the law of the state of New York, and said certificate contained the following provisions: £ Fourth: The amount of capital which the said James B. Colgate, the said special partner, heretofore contributed to the common stock of the said copartnership, is the sum of $100,000 in cash; that the said capital stock of the said special partnership remains in the said limited partnership wholly unimpaired; and that the said amount, viz.: $100,000, has been contributed by the said special partner to the common stock of the renewed and continued partnership.’ The plaintiff alleged, and on the trial proved, that at the time of the said renewal and the execution of the certificate, the said partnership was largely insolvent, and that the sum of $100,000 contributed to the capital stock of the said special partnership by the defendant, James B. Colgate, was wholly exhausted, and on the testimony the court held that that fact was established and directed a verdict for the plaintiff. From an examination of the testimony, I am satisfied that that fact was proved and that there was no question to submit to the jury.

“The credit on the books of the copartnership consisting of a charge against the firm of Friend Humphrey’s Sons, which firm was composed solely of the general partners, was not an asset of this special partnership. It was simply a charge to the general partners collectively and the statements presented by the defendant, show that without that credit the capital contributed by the defendant Colgate was impaired.

“ Applying the decision of the general term on the former appeal, it is entirely immaterial whether Colgate made the certificate in good faith or not. In order to continue the partnership, the fact that the capital contributed to the partnership by the special partner remains unimpaired and is contributed to the renewed partnership, must exist, and that fact must be certified, and if either the certificate is not made, or the fact that the certificate is required to certify does not exist, the special partnership is not renewed, but it becomes from that time on a general partnership; and as this court is bound by the decision of the general term on the former appeal, I think, applying what was there decided, that the special partnership was not continued or renewed, and that the defendant, James B. Colgate, became liable as a general partner. We have examined the exceptions to the admission and rejection of evidence but do not think that any of them require that a new trial should be ordered.”

Stern & Myers, attorneys, and Nathaniel Myers, of counsel, for plaintiff.

Butler, Stillman & Hubbard, attorneys, and William Allen Butler, of counsel, for defendant.

Opinion by Ingraham, J.; Sedgwick, Ch. J., concurred.

Exceptions overruled, and judgment ordered for plaintiff upon the verdict, with costs.

       The evidence shows that moneys in question were drawn out, from time to time, by the several general partners, and charged under the above account.—Reporters.


author:
Truax, J:
     The Court at General Term, said:—“ Opinion Per Curiam.

text:
    JOSEPH L. BLANCHARD, et al., Appellants v. AUGUSTA L. EVANS, Impleaded, &c., Respondent.

      Different assignments of chose in action—that prior in point of time protected though assignee has gimen no notice either to the subsequent assignee or to the debtor—Estoppel, acts of prior assignee insufficient to constitute.

    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 3, 1888.
    Appeal by plaintiff from judgment dismissing the complaint.

      The facts appear from the following opinion delivered at special term
   Truax, J:

“The plaintiffs say in the brief handed up by theifi counsel on the trial that (in no sense is this a creditors’ action, but that it is an action by a bona fide owner of a chose in action to cancel or declare void as to the plaintiffs, a certain pretended assignment of such chose in action, which antedates an assignment of the same chose in action to the plaintiffs, on the ground that the prior or earlier assignment is affected by fraud and collusion, is a fraud upon plaintiff’s title, and is about to be fraudulently and collusively used and applied to the prejudice and injury of the plaintiffs as bona fide purchasers and-owners of the chose in action.

“ The evidence offered on the trial shows that Post & Evans were the owners of a certain chose in action; that Post assigned and delivered his interest to Evans; that Evans assigned the chose in action to the defendant, Augusta Evans, and that after the assignment to the defendant Evans, the firm of Post & Evans assigned said chose in action to the plaintiffs, who were ignorant of the assignment to the defendant.

If these were the only facts in the case there would be no grounds for this action, because it is well settled in this state, that as between different assignees of a chose in action.by express assignment from the same person, the one prior in point of time will be protected, though he have given no notice to either the subsequent assignee" or to the debtor. Williams v. Ingersoll, 89 N. Y. 523, and cases there cited. It is true there was a suggestion made by the counsel for the plaintiffs at the trial that the assignment to plaintiffs was delivered before the assignment to the defendant, Evans, but there was no evidence of that fact. There is no more reason for presuming that the assignment to the defendant was delivered after the assignment to the plaintiffs than there is that it was delivered before the assignment to the plaintiffs, and if the plaintiffs .wish to succeed in this action on the ground that their assignment was in point of fact prior to the assignment to the defendant, Evans, they should have proved it. Moreover, the law presumes, there being no evidence to the contrary, that the assignment to the defendant, Evans, was delivered on the day of its date. People v. Snyder, 41 N. Y. 402; 1 Phillips on Ev., 644 (5 Am. ed.).

“ If the plaintiffs can maintain this action at all, it is on the ground that the defendant, Evans, has been es-topped by her actions from claiming that her assignment is prior to that of the plaintiffs’. The evidence on which plaintiffs base their claim of estoppel is as follows: The defendant, Evans, was aware of the fact that the firm of Post & Evans was insolvent, and after the assignment to her, Mr. Post, of the firm of Post & Evan, submitted a paper to her, which he told her he proposed to submit to Mr. Evans with the view of closing up the partnership affairs. This paper was a proposed agreement of dissolution of the copartnership of Post & Evans and contained an assignment of all the assets of the firm of Post & Evans to Mr. Post, and providing that after payment of the debts of the firm of Post & Evans, the assets remaining should be divided share and share alike between the members of the firm of Post & Evans. Among the assets mentioned in the inventory referred to and attached to the proposed agreement was the chose in action which furnishes the ground of this action. It was further provided that Evans should have the right to draw $25 a week. Attached to this proposed agreement was a paper (unsigned) which purported to assign to the defendant, Evans, the above mentioned sum of $25 a week and Evans’ share of the surplus of the firm’s assets as his individual property and for her sole use and benefit. The defendant read the inventory carefully and made no objection to it. She was afterwards told that the firm of Post & Evans had made a settlement with the plaintiffs and that they had agreed to take the assets of Post & Evans on account of what was owing to them, and had also agreed to pay the debts of Post & Evans. This was before the assignment (which is the agreement above referred to) to plaintiffs was executed; to this the plaintiff made no objection. The agreement giving the defendant the $25 a week ,and one half the surplus of the assets of Post & Evans never was executed.

Some months after the assignment to the defendant, and before the assignment to the plaintiffs, she was present at a conversation between the plaintiffs and Mr. Post, of the firm of Post & Evans, at which conversation it was stated, in substance, that the Seabury claim was an asset of that firm and she made no objection.

I do not think that these facts constitute an estoppel. The defendant had a right to suppose that if the claim against Seabury became asset of the firm of Post & Evans it should only become such asset on the execution of the paper giving her $25 a week and one half the surplus of the firm’s assets, and it may well be that, in that event, she was willing to part with her interest in the Seabury claim.

She is not estopped as to Mr. Post, of the firm of Post & Evans, because the agreement of dissolution above mentioned never was executed. She is not estopped by her silence in the conversation between her and Mr. Louis F. Post, because Mr. Post parted with nothing on the faith of that silence, and plaintiffs cannot claim an estoppel, because she did not know, nor had she any reason to believe that the conversation would be repeated to them.”

The Court at General Term, said:—“

The record shows no error in the exclusion of evidence, and the complaint was properly dismissed because the evidence which was given wholly failed to establish a cause of action. The reasons given by the learned judge below for that disposition of the case are in the main correct. But as no findings were made in favor of the defendant, the dismissal should not have been on the merits.”

Samuel Ashton, for appellants.

John S. Durand, for respondent.

Opinion Per Curiam.

The judgment appealed from modified by striking out the words “ upon the merits,” and as thus modified affirmed without costs to either party on the appeal."