text:
    George Lowenthal, Respondent, v. Maria E. Lowenthal, Appellant.

      Discretions'y orders — review of — alimony—waiver of a jury trial, as a condition of granting.

    Ordinarily the General Term will not interfere with purely discretionary orders, but where there has been a palpable abuse of the discretion vested in the court at Special Term, or where it has been controlled by improper considerations, the General Term will review the order.
    It is improper to impose, as a condition of granting temporary alimony in an action for divorce on the ground of adultery, that the wife waive a jury trial and consent to a trial of the action before the court or a referee.

      Bigel v. Bigel (19 N. Y. Supp. 906), disapproved.
    Appeal by the defendant, Maria E. Lowenthal, from so much of an order of the Supreme Court, made at the Monroe Special Term, and entered in the office of the clerk of Monroe county on the 2d day of November, 1892, granting alimony to the defendant, as imposes a condition that she consent to a trial before the court or a referee.

      J. <& Q. Van Voorhis, for the appellant.

      Demid Hays, for the respondent.
   Haight, J.:

This action was brought to procure an absolute divorce on the ground of adultery. The parties had been living together in the plaintiff’s house. After the action was commenced the plaintiff absented himself, leaving the defendant and their three children in the house, and for a time he continued to furnish them with the necessary money for their support. The defendant made a motion for alimony and counsel fee. The motion for alimony was denied, on the condition that the defendant continue to reside with her children in the plaintiff’s house, and he continue to support her and the children therein, but with leave to the defendant to renew the motion at any time in case the plaintiff should fail so to provide for her. And if the defendant should elect to reside elsewhere than in the plaintiff’s house and apart from her children, then, and in that case, the plaintiff should pay her six dollars per week for her maintenance during the pendency of the action.

It was further ordered that the plaintiff should pay to the defendant, or her attorney, a counsel fee of $100, in case the defendant should consent to a trial at once before a referee, or the court. But in case she does not so consent, the plaintiff should pay to the defendant the sum of fifty dollars counsel fee.

Subsequently the plaintiff removed his children from the house and from the custody of the defendant, and then ceased to supply her with money for her support and maintenance. A second motion was then made on her hehalf for alimony, which resulted in an order that the plaintiff pay her six dollars a week, commencing October 7, 1892, “ provided and on condition that the defendant file and serve on plaintiff’s attorney, before the last day for serving notice of trial for December, 1892, equity term, a stipulation waiving trial by jury and consenting to trial before the court at an equity term, or by referee, if both parties consent to a reference. In default of such stipulation defendant’s motion for alimony is denied.” It is from the condition so imposed that this appeal is taken.

Section 1769- of the Code of Civil Procedure provides that where an action is brought to obtain a divorce or for separation, “ the court may, in its discretion, during the pendency thereof, from time to time make and modify an order or orders requiring the husband to pay any sum or sums of money necessary to enable the wife to carry on or defend the action or to provide suitably for the education and maintenance of the children of the marriage, or for the support of the wife, having regard to the circumstances of the respective parties.”

It will thus he seen that by the express provisions of the Code, alimony pending the trial is discretionary. Ordinarily the General Term will not interfere with purely discretionary orders, but where there has been a palpable abuse of the discretion vested in the court at Special Term, or where it has been controlled by improper considerations, the General Term will review the order. (The Hanover Fire Ins. Co. v. Tomlinson, 58 N. Y. 215; Douglass v. Haberstro, 82 id. 572; The People, etc., v. The Globe Mutual Insurance Company, 27 Hun, 539.)

The court, as we have seen, awarded alimony, thus adjudging that it was a proper case, but it imposed a condition that the defendant should stipulate to waive the right of a trial by jury, etc. The reason for imposing this condition we are told, is that in the county in which the venne is laid it will take nearly a year to reach the case on the Circuit calendar.

The right to a trial by jury of the question of adultery when put in issue has existed ever since the power was given to the courts of this State to grant divorces. This power was transferred from the Legislature to the Court of Chancery by the Laws of 1787, chapter 69, and was continued in the revision of the statutes. (2 R. S. 145, § 40; Batzel v. Batzel, 42 N. Y. Super. Ct. 561; Conderman v. Conderman, 44 Hun, 181.)

The right to such a trial existed at the time of the adoption of the Constitution of 1846, and is, therefore, continued by the provision, “ The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever.” This right is also preserved by the Code. (Code Civ. Pro. § 1757.)

Temporary alimony, although discretionary, is, under the practice of our courts, granted in proper cases. If the courts can properly impose a condition of the nature of this appealed from, it follows that in counties where there is an accumulation of work in the Circuits, wives in divorce cases may be deprived either of their right to alimony, or of their constitutional right to a trial by jury, whilst in other counties their right to both is still preserved to them.

We cannot sanction such a practice as just and equitable. It introduces a species of coercion which ought not to be tolerated. If the defendant is guilty of misconduct, or improperly delays the trial, the court may deprive her of' alimony, but if her only fault is that she resides in a county where the courts are behind with them work, she ought not to be punished therefor, by either being deprived of her support or of her right to a trial in the forum secured to her by the Constitution.

Our attention has been called to the. case of Sigel v. Sigel (19 N. Y. Supp. 906). But in so far as that case is in conflict with the views above expressed, we think it ought not to be followed.

So much of the order as is appealed from should be reversed,, with ten dollars costs and disbursements.

All concurred.

That part of the order appealed from reversed, with ten dollars' costs and disbursements.


source: Caselaw Access Project

author: Haight, J.:

license: Public Domain

text:
    Henry A. Bernhard, Respondent, v. Rochester Railway Company, Appellant.

      Electric street cars and ordinm'y vehicles — rights at crossings.

    An electric street railroad car has no right superior to that of other vehicles to a street, or to the place of crossing its tracks, opposite the end of an intersecting street, and when, on approaching such a crossing, the motorman finds a vehicle, which has approached the crossing first, in the act of properly crossing the track,, it is his duty to slow up the car in time to allow th§ vehicle to cross in safety.
    Appeal by the defendant, the Rochester Railway Company,, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of that county on the 13th day of April, 1892, upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial made upon the minutes of the court, entered on the 7th day of May, 1892.

      Charles J. Bissell, for the appellant.

      John A. Bernhcvrd, for the respondent.
   Haight, J.:

This action was brought to recover the damages wn.cn the plaintiff sustained to his horse and wagon by reason of a collision with one of the defendant’s street cars.- The defendant was engaged in operating a double-track electric street railway in Lyell avenue in the city of Rochester; the avenue runs east and west; Sherman street intersects the avenue at an acute .angle from the northwest; the plaintiff was a grocer and had a horse and wagon for the purpose of delivering groceries; his driver, with the horse and wagon, approached Lyell avenue through Sherman street, and on reaching the avenue stopped to allow a westerly-bound car to pass ; at this point he could see westerly on the avenue 200 feet; he looked hut saw no car approaching from that direction; as the westerly-bound car passed he started to drive across the avenue to'the .■southerly side thereof; the horse and the fore part of the wagon .had passed the southern track when the defendant’s easterly-bound ■car struck the rear of the wagon, causing the damages complained of.

It is claimed on behalf of the appellant that there was no negligence chargeable to the defendant, and that the collision occurred through the negligence of the plaintiff’s driver, and that the trial •court erred in denying its motion for á nonsuit, and in refusing to -direct a verdict in its favor.

"We are of the opinion that no error was committed in this regard, :and that these questions were properly submitted to the jury. The plaintiff’s driver testified that he did not hear the bell ring upon the •defendant’s car, but other evidence tends to show that it was rung. "We shall, therefore, assume that it was sounded, as testified to by the defendant’s witnesses. The plaintiff’s driver was passing across the avenue on an angle coming from Sherman street, in a covered wagon with his back partially toward the approaching car; he sat in the front of his wagon, and looked west as he entered the avenue; .the westerly-bound car, in a measure, obstructed his view, so that he did not see the car approaching upon the southerly track. He ■first approached the crossing, and was partly across when the colilision occurred; the opportunity of the defendant’s motorman to ¡ see the approach of the plaintiff’s wagon was equally as good, if not better, than that .of the plaintiff’s driver to see the approach of the ■defendant’s car; the westerly-bound car doubtless obstructed the vision to some extent, of both the motorman and the driver, but it is apparent that had the motorman been upon his guard and had proper control of his car, he could have seen the wagon in time to have stopped his car, and avoided the injury. His own evidence is •to the effect that he was running at a speed of six to seven miles an iour when he struck the wagon; other evidence tends to show that he was running at a much higher rate of speed; that he saw the plaintiff’s rig as it was coming out of Sherman street into the avenue; that the west-bound car prevented him from seeing it for a while; that plaintiff’s horse and wagon was traveling diagonally across the track or street in the same direction that the car was going; that the horse was on a trot, and so continued until the wagon was struck; that when he first saw the wagon after the car had passed he was pretty near to it, within six or eight feet; that he rang his bell, but the plaintiff’s driver did not seem to- pay any attention to it.

It thus appears that he approached the plaintiff’s wagon at a speed of six or seven miles per hour, from the rear, as it was passing diagonally across the track, the horse on a trot, going with the car at the crossing where Sherman street enters the avenue, overtook the wagon, and ran into it.

The plaintiff’s horse and wagon were lawfully in the street, the driver had a right to cross the defendant’s tracks, exercising reasonable care, and had the right to assume that the defendant’s motorman would exercise like care to prevent running into him. It was a public highway, and each party had a common right to its use. The defendant’s cars can only run upon the rails; they cannot turn to the right or left to avoid teams; they are, therefore, given a pai-amount right to the use of the tracks, but not an exclusive right. A person may lawfully drive along or upon the tracks, but he should not carelessly or willfully obstruct the passage of the cars, and as one approaches, he should turn off from the tracks, so as to allow it to pass, and in a reasonable manner respect the paramount right of the corporation. On the other hand, the corporation must recognize the rights of the person, and not carelessly run him down, but give the necessary time and a reasonable opportunity to move off from the tracks, and allow the cars to pass. Such is the rule of the street. (Fleckenstein v. The Dry Dock, East Broadway & Battery R. Co., 105 N. Y., 655; Adolph v. The Central Park, North & East River R. Co., 76 id. 530.)

But at a street crossing, the rule is different; the car and the vehicle each have the right to cross, and neither has a superior right to the other. The right of each must be exercised in a reasonable and careful manner, so as not to unreasonably abridge or interfere with the right of the other. (O’Niel v. The Dry Dock, East Broadway & Battery R. Co., 129 N. Y. 125-130.)

The collision, in this case, as we have seen, occurred at the crossing of Sherman street, or at the place where Sherman street intersects the avenue. The plaintiff’s driver was properly passing across the avenue, to the right side thereof, intending to continue east along the avenue; he first approached the track, was partially across when struck; the car had no superior right to the crossing, and the motorman, finding the vehicle in the act of crossing, should have timely slowed up so as to have allowed it to cross in safety. -

The judgment should be affirmed.

All concurred.

Judgment and order of County Court of Monroe county appealed from affirmed, with costs.


text:
    Judson H. Clark, Appellant, v. Rosanna Norman and Others, Respondents.

      Bond to secure the payment of moneys collected —judgment against one surety — not evidence of a breach, in an action for contribution against a cosurety.

    When the only condition of a bond is that the principal shall pay over moneys collected by him, to the obligee, without any provision that the sureties will be bound by any judgment or decree of a court, or that the principal shall obey any such judgment or decree, the record of a judgment recovered on the bond against the principal and one of the sureties, is not evidence of the failure of the principal to perform the condition of the bond, in an action brought by the surety against whom the judgment was recovered to compel contribution from a co-surety, or the representatives of a deceased co-surety, who had no notice of the proceeding in which the judgment was obtained.
    Appeal by the plaintiff, Judson H. Clark, from a judgment of the Supreme Court, entered in the office of. the clerk of Allegany county, on the 10th day of February, 1892, upon the report of a referee dismissing the plaintiff’s complaint.

      Chernies II. Brown, for the appellant.

      Richa/rdson & Robbins, for the respondents Westfall and others.

      Armstrong da Todd, for the respondent Rosanna Norman.
   Haight, J.:

On tlie 27th day of December, 1876, one Leonard B. Bartholamew, a deputy sheriff, as principal, and William Norman and Judson H. Clark as sureties, executed and delivered to William H. Withey, then sheriff of Allegany county, their bond in writing, conditioned that Bartholamew will pay to Withey, the said sheriff, one-half of the legal fees received by Bartholamew at any time as such deputy. Afterwards an action was brought in this court upon such bond by Withey against Bartholamew and Clark, and such proceedings were had thereon as resulted in a recovery of a judgment by Withey against them of the sum of $1,274.75 damages and costs, which judgment was subsequently paid by Clark. Norman died after the execution of the bond and before the action was commenced by Withey against Bartholamew and Clark. He left a last will and testament, which has been duly admitted to probate, in which he bequeathed all of his property to the defendants in this action, and the property and assets of the estate coming into their hands exceed in value the amount of the plaintiff’s claim herein. Bartholamew was insolvent, and the defendants in this action had no notice of the action against Bartholamew and Clark, or an opportunity to defend. This action was brought to compel them to make contribution to Clark of one-half of the amount that he had been compelled to pay as the co surety of the defendants’ testator. Upon the trial, the plaintiff offered in evidence the judgment roll in the action of Withey against Bartholamew and Clark. It was received in evidence for the purpose of showing the amount paid by Clark, etc., but was’rejected as evidence of a failure of Bartholamew to perform the conditions of the bond. Exception was taken to this ruling, which presents the only question we are called upon to consider upon this review.

The right of - contribution, as between co-sureties of a common principal, is unquestioned, and a cause of action may be maintained therefor by one who pays more than his proportionate part of the debt for which all are liable. (Baylies on Sureties and Guarantors, 317.)

Whether this right grows out of an equity which is deemed to spring up from the relation assumed by two or more co-sureties to each other, or by .a contract in which each is deemed to have impliedly promised the other that he would perform his part of the contract and pay his proportion of the loss, is not necessary to now consider. In neither ease do they become co-partners or agents for each other. They are not privies, either by representation, estate or law. So that neither has the authority nor the power to represent the other, to bind him by any act, or in any manner to change or alter his relation or liability upon the instrument. (Winchell v. Hicks, 18 N. Y. 558-560.)

If the right to contribution is founded upon the principles of equity, it is that the co-surety should pay his proportionate part of that which his principal has neglected and failed to pay, and not that which his co-surety may have improperly paid, and the same is true if his liability is founded upon contract.

In order 'to establish the cause of action it was necessary to prove that Bartholamew, as deputy sheriff, had collected fees and the amount thereof, and that he had neglected to pay over the one-half thereof to Withey, the sheriff, as he had undertaken to do, and that Clark, the plaintiff, as the co-surety of the defendants’ testator had paid the same. Can these facts be shown by the judgment against Bartholamew and Clark? It was evidence showing what had actually been done. That a suit was brought and a recovery had, the amount thereof, and that it had been paid by Clark. But is it evidence against these defendants showing that there was a breach in the condition of the bond by Bartholamew, that he had collected fees as deputy, and- had neglected to account therefor to the sheriff ? If so, they are bound by an adjudication in an action in which they were not parties, in which they had no notice of its prosecution, or of an opportunity to defend.

The rule we regard as elementary, that in the absence of a contract, or an agreement, a judgment in an action cannot be given in evidence on the trial of another action, unless the parties are the same, or there is a privity of blood representation, estate or law between one of the parties to it, and the person against whom it is admitted. (1 Greenleaf on Evidence, § 522; Booth v. Powers, 56 N. Y. 22; Chatman v. Frank, 5 N. Y. Supp. 448.)

We have seen there was no copartnership, agency or privity existing between the plaintiff and the defendants’ testator. They may have been entire strangers. They were merely co-sureties upon Bartholamew’s bond to Withey.

The condition of tbe bond tinder which a liability is claimed to-exist, contains no agreement or provision that the sureties will be. bound Ly any judgment or decree of a court, or that Bartholamew,. their principal, shall obey any judgment or decree. It is that he: shall pay over certain moneys collected by him to the sheriff. There: are numerous cases in which judgments obtained against the principal are binding upon the sureties, but it is because they have agreed to be so bound. As, for instance, where a bond or .undertaking is given by which the sureties agree that in case judgment shall be recovered against their principal in a certain action they will pay the amount thereof, or where the sureties have undertaken that the principal shall obey all the lawful decrees and orders of the: court, or where, under the terms of the guaranty, a judgment is-, made necessary to fix the liability of the guarantors, etc. But none-of these cases have any application to that under consideration. No-judgment against Clark was necessai-y in order to entitle 'him to contribution. Had he paid "Withey upon demand without action,, his equities would have been as strong and his right to contribution as good. He would be entitled to recover the defendants’ proportionate share of the amount that Bartholamew had retained from, the sheriff in violation of his undertaking.

Douglass v. Howland (24 Wend. 35) is the leading case in this. State upon the question under consideration. In that case the principal agreed to account and pay over such sums of money as should be found owing by him. The surety agreed that the principal would perform. It was held, in an elaborate opinion,.that a decree-against the principal was not evidence against the surety, unless he. had notice, and an opportunity to defend.

Brandt on Suretyship and Guaranty (§ 246,1st ed.; § 282, 2d ed.)says: “ Where judgment is recovered against part of the sureties in a bond which is satisfied by them, it has been held, in a suit by them against their co-sureties for contribution, that such judgment is competent evidence to show the amount of the payment made by the. plaintiffs, and the circumstances under which it was made, but not, for the purpose of proving the liability.”

This question was also considered in the case of Fletcher v. Jackson (23 Vt. 581-592), and the same conclusion reached. This case> is, in many respects, similar to the one on review. A judgment had been recovered against the surviving sureties, which they had paid. An action was then brought against the heirs at law of the deceased surety to compel contribution.

Redeibld, J., in delivering the opinion of the court, says: “ Where the suit may in the first instance be brought directly against the .guarantor, the judgment against the principal, without notice to the .guarantor, is not evidence; and so too if the guarantor have notice of the suit against the principal, he is not obliged to concern himself in its defense, but may await a suit against him, and then insist upon the right to contest the whole ground. * * * We think, therefore, that although the record was evidence, like any other fact, to show the amount of the payment made by the plaintiff, and the circumstances under which it was made, we could scarcely regard it as -evidence beyond that.”

And to the same effect is Thompson v. Young (2 Ohio, 334); Love v. Gibson (2 Fla. 598); Means v. Hicks (65 Ala. 211).

The judgment should be affirmed.

All concurred.

Judgment appealed from affirmed.


text:
    William H. Weaver, Respondent, v. William W. Haviland, Individually and as Administrator, etc., of Phebe Haviland, Deceased, Appellant.

      'Creditor’s action — Statute of Limitations — adequate remedy at law, as a defense to an equitable action.

    In applying the Statute of Limitations to a judgment creditor’s action based on tbe ground of fraud, sections 1871 and 1873 of the Code of Civil Procedure, ■which prescribe when a creditor’s action may be maintained, section 380, which prescribes the period after a cause of action has accrued within which an action must be commenced, and subdivision 5 of section 383, which states when a cause of action in an equitable aotion on the ground of fraud is deemed to have accrued, must be construed together.
    "By force of said sections of the Code of Civil Procedure, the plaintiff’s cause of action, in a creditor’s action based on the ground of fraud, is not deemed to have accrued until the discovery of the fraud by the plaintiff or the person under whom he claims, nor until after the recovery of a judgment against the judgment debtor in the State of New York, and the return of an execution thereon unsatisfied.

      Although the plaintiff in such a creditor’s action, or the person under whom he claims, may have discovered the fraud, and recovered a judgment in another State against the judgment debtor, before the recovery of a judgment in this State, the Statute of Limitations does not begin to run against a creditor’s action in the State of New York until the plaintiff, or the person under whom he claims, has recovered a judgment against the judgment debtor in this State.
    In a creditor’s action against a person, other than the judgment debtor, based upon a judgment for damages for a misrepresentation by the judgment debtor as to the amount due on a mortgage assigned to the person under whom the plaintiff claimed, the defendant insisted, on appeal, that the person under whom the plaintiff claimed had a complete remedy at law, against which the Statute of Limitations had run, for the reason that the defendant did the entire business on the assignment of the said mortgage and personally received the money therefor, and that, consequently, an action could have been maintained against him to recover back the overpayment; no such facts, however, were found by the trial judge.

      Held, that the General Term would not be justified, under its practice of not going outside of the findings for the purpose of discovering testimony upon which to reverse a judgment, or under the record in the case, in supplying findings of fact that would show that such an action at law could have been maintained against the defendant.
    That as the answer contained no allegations showing the existence of an adequate remedy at law against the defendant from the time that the money was paid over upon the transfer of the mortgage, and that -the Statute of Limitations had run thereon before the present action was commenced, that defense was not available to the defendant.
    Appeal by the defendant, William H. Haviland, individually and as administrator of the estate of Pliebe Haviland, deceased, from a judgment of the- Supreme Court in favor of the plaintiff, entered in the office of the clerk of Ontario county on the 3d day of November, 1892, upon a decision of the court rendered at the Ontario Special Term.

      J. B. Backentose, for the appellant.

      George D. Heed, for the respondent.
   Haight, J.:

This action was brought to recover. certain funds in the hands of the defendant, and to set aside a conveyance of real estate on the ground that the same was made in fraud of the rights of creditors. The facts found by the trial court are in substance as follows:

On the 17th day of September, 1878, Almond Haviland died, leaving a last will and testament, in which, he bequeathed all of his real and personal estate to his wife, Phebe Iiaviland, during the term of her natural life. The property devised and bequeathed by him consisted of a house and lot in the village of Geneva and a certain mortgage upon premises in the State of Michigan, executed by Henry S. Weaver and wife. On the 13th day of April, 1880, Phebe Iiaviland sold and assigned the mortgage to one John D. Fish. At the time of making such sale she represented to Fish that she was the sole owner of the mortgage, and to induce the purchase thereof by him falsely and fraudulently represented that there was due and unpaid upon it the sum of $2,600, whereas, in fact, there was due and unpaid the sum of only $2,100. Thereafter Fish brought an action against her in the State of Michigan, where the assignment of the mortgage was made, to recover damages for the false and fraudulent representations made by her to him, and, upon the 9th day of June, 1881, duly recovered a judgment therein for the sum of $454.64 damages and $50.36 costs. Thereafter he brought an action against her in this State upon the judgment so recovered in the State of Michigan, and on the 9th day of March, 1886, recovered a judgment that was entered in the Ontario county clerk’s office, for $667.47 damages and costs. An execution was issued thereon to the sheriff of that county, it being the county in which she resided, and the same was returned wholly unsatisfied. And before the commencement of this action the judgment was by Fish, with all his rights and equities arising thereon, duly assigned and transferred to the plaintiff. On the 2d day of June, 1881, seven days before the recovery of the judgment against her in the State of Michigan, she conveyed to the defendant all of her interest in the house and lot devised to her by her deceased husband and transferred to him all of the moneys received by her from Fish upon the transfer of said mortgage. That such conveyance and transfer were without consideration, and were made with the fraudulent intent to place the property out of her hands so that the same could not be reached upon said judgment. That the defendant did not claim to be the owner of the mortgage when the same was assigned to Fish, or did he ever claim to own the same until after the recovery of the judgment hereinbefore specified. Upon the conclusion of the trial of this action and after the parties had rested, the defendant’s counsel stated that the plaintiff, on the proofs, would be entitled to recover were it not for the Statute of Limitations. The trial court thereupon found as a conclusion of law, that six years had not elapsed since the plaintiff’s right of action accrued, and ordered judgment in favor of the plaintiff for the relief demanded.

This action was commenced on the 13th day of February, 1892, and, as we have seen, the judgment upon which this action is founded was recovered on the 9th day of March, 1886. Six years, therefore, had not elapsed since the recovery of that judgment and the return of the execution thereon.

The right of the plaintiff to maintain this action did not accrue until after the recovery of the judgment against Mrs. Haviland in this State and the return of the execution thereon unsatisfied. (Code Civ. Pro. §§ 1871, 1872.)

Section 380 of the Code provides that “ The following actions must be commenced within the following periods after the cause of action has accmedP

Section 382, subdivision 5, “An action to procure a judgment, other than for a sum of money, on the ground of fraud, in a case, which on the 31st day of December, 1846, was cognizable by the Court of Chancery. The cause of action, in such a case, is not deemed to have accrued until the discovery by the plaintiff, or the person under whom he claims, of the facts constituting the fraud.”

These provisions must be construed together, and so construed it follows that the plaintiff’s cause of action is not deemed to have accrued until the discovery of the fraud by him, or by the person under whom he claims, and not until after his right to maintain the action has accrued by the recovery of the judgment against Mrs. Haviland in this State and the return of the execution thereon unsatisfied. (Gates v. Andrews, 37 N. Y. 651; Eyre v. Beebe, 28 How. Pr. 333.)

The cause of action herein is one covered by the subdivision of the section above quoted.

The conclusion of the trial court was, therefore, correct and should be sustained.

It is contended that the plaintiff, or Fish, his assignor, had a complete remedy against the defendant against which the Statute of Limitations had run. That at the time the mortgage was trans* ferred to Fish, the defendant did the entire business and personally received the money upon the mortgage, and that consequently an action could have been maintained against him to recover back the amount of the overpayment, if any.

The defendant has alleged in his answer that he was the owner of the mortgage and entitled to the proceeds thereof, and that he did all of the business in reference to the transfer to Fish. But the difficulty with his position is that no such facts are found by the trial court or requested to be found, and it is not the practice of this court on review to go outside of the findings for the purpose of discovering testimony upon which to reverse a judgment.

It is true that the testimony of the defendant as taken before the referee in supplementary proceedings, instituted upon the return of the execution, tends to show that he personally transacted the business with Fish in Michigan. But this we regard as in conflict with the findings of the trial court in this action and also that of- the court which rendered the judgment in the State of Michigan. In this action it is found that, in order to induce the purchase of the mortgage by Fish, Phebe Haviland falsely and fraudulently represented that there was due and unpaid upon the mortgage the sum of $2,600, and that she transferred to the defendant the moneys received by her upon the transfer of the mortgage with the intent to place the same out of her hands so that the same could not be reached upon the judgment then about to be recovered against her by Fish. In the action brought in Michigan it was alleged that the mortgage was purchased of her and that she represented that there was at that time, due the sum of $2,600, and that Fish, the plaintiff in that action, relying on such statement by her, paid to her that ■sum and took an assignment from her of the mortgage. And upon the trial these facts were found true as appears from the judgment therein entered.

It is, therefore, not apparent that a cause of action at law could have been maintained by Fish against the defendant immediately after the transfer of the mortgage to Fish. Certainly no such action could have been maintained under the findings of the trial court as they stand. And we would not be justified, under the practice or upon the record before us, in supplying findings of fact that would show that such an action could have been maintained. We have not omitted, a careful examination of the allegations of the complaint. In none of them have we found an allegation that the defendant transacted the business with Fish, or that Fish paid the money for the assignment of the mortgage to him. The allegation that Phebe Haviland turned over all of the avails of the mortgage to the defendant at the time of the assignment does not establish the fact that Fish paid to him, or knew that he received the money.

The answer contains no allegation to the effect that Fish had an adequate remedy at law against the defendant from the time that the money was paid over upon the transfer of the mortgage, and that the Statute of Limitations had run thereon before this action was commenced:

We think, therefore, this defense is not available to the defendant. (Ostrander v. Weber, 114 N. Y. 95; The Town of Mentz v. Cook, 108 id. 504.)

The judgment should be affirmed, with costs.

All concurred.

Judgment appealed from affirmed, with costs.


author: Haight, J .:

text:
    Richard R. Gibson, Appellant, v. Henrietta J. Gibson, Respondent, Impleaded with Others.

      Notice of motion to strike out irrelevant matter in a pleading — must be made within twenty days —failure to return papers.

    The retention, hy an attorney, of a notice of motion to strike out of a pleading matter alleged to he irrelevant, redundant or scandalous, served on him more than twenty days after service of the pleading to which it relates, is not a. waiver of the failure to serve the notice within such twenty days, as required hy Rule 22 of the General Rules of Practice.
    When a failure to serve such notice within the time required hy the rule is shown in opposition to the motion at the hearing, the motion must he denied.
    Appeal by tbe plaintiff, Rickard R. Gibson, from an order of the Supreme Court, made at the Monroe Special Term, on the motion of the defendant, Henrietta R. Gibson, and entered in the office of the clerk of Ontario county on the 4th day of Feoruary, 1893, striking out as scandalous, irrelevant and redundant certain allegations in the plaintiff’s complaint.

      F. II. Hamlm, and James A. Robson, for the appellant.

      Flihu M. Morse and Walter II. Knapp, for the respondent.
   Haight, J .:

It appears from the order appealed from that upon the hearing of the motion at Special Term an objection was made to the hearing of the same, upon the ground that the motion was not noticed for hearing within twenty days from the service of the complaint; that it was then and there conceded by counsel that the complaint was served on the 22d day of November, 1892, and that the notice of motion was served on the 11th day of January, 1893. It was also conceded, on the part of the appellant, that the notice of motion was retained by Mr. Robson, the appellant’s counsel, and that the same was not returned. The court overruled the objection, and the motion was thereupon heard upon the merits. Rule 22 provides that ££ motions to strike out of any pleading, matter alleged to be irrelevant, redundant or scandalous, and motions to correct a pleading on the ground of its being £ so indefinite or uncertain that the precise meaning or application is not apparent,’ must be noticed before demurring or answering the pleading, and within twenty days from the service thereof.” (Brooks v. Hanchett, 36 Hun, 70; Carrillo v. Carrillo, 25 N. Y. St. Repr. 425.) It is, therefore, apparent that the notice of motion was not served in time.

Was the retention of the notice of motion by the appellant a waiver of the rule requiring the service to be made within twenty days ? We think not. It was not such a defect or irregularity as could have been remedied by the respondent if the motion papers had been returned. The case is not one within the provisions of section J96 of the Code of Civil Procedure, or of Rule 19. The case of Rogers v. Rockwood (13 N. Y. Supp. 939), and the same case (36 N. Y. St. Repr. 920) have no application. In the case of Roosa v. The Saugerties & Woodstock Turnpike Road Co. (8 How. Pr. 237), it was held that a motion to strike out irrelevant or redundant matter or to correct a pleading must be noticed within twenty days from the service thereof ; that it was not necessary that the party making the motion should show that he had given the notice within the time prescribed, but that -that fact should be shown as matter of defense upon the hearing of the motion. And to the same effect is Barber v. Bennett (4 Sandf. 705). The practice, as approved in these cases, has, as we believe, been uniformly followed throughout the State, and should be adhered to. It having been admitted upon the hearing of the fnotion that the notice was not served within the twenty days required, the motion should have been denied for that reason.

Order reversed and motion denied, with ten dollars costs and disbursements.

All concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and the motion denied.


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    Julia Marion, Appellant, v. Charles Farnan, as Executor, etc., of Mary Farnan, Deceased, Respondent.

      Services rendered to a relative, in the fa/mily — compensation, after the death of the person to whom the services were rendered.

    Between persons living together as members of the same family, bearing towards each other a family relation, no promise to pay for services rendered by one to the other will be implied, and no action will lie to recover compensation therefor, unless the services were rendered at the request of the party receiving them under a promise to pay therefor, or under such circumstances as show that the party receiving them expected to pay, and the other party to receive, compensation therefor, or that the services were rendered with the understanding between the parties that compensation therefor would be made by will.

      Semble, that in respect to claims by children for services rendered to parents, the probability that the services were rendered under a promise of payment is stronger where the child has become of age, been away from home, established a business and .supported himself, and has then returned upon the request of the parent, than where the child has continued to live with the parent after arriving at age, and has never had any other home.
    Appeal by the plaintiff, Julia Marion, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of Monroe county on the 23d day of February, 1892, upon a nonsuit granted at the Monroe Circuit.

      F. F. Turk, for the appellant.

      J. A. Stull, for the respondent.
   Haight, J.:

This action was brought to recover pay for services rendered, etc., to the defendant’s testatrix in her lifetime. The defense was that the services were rendered by the plaintiff for her mother, as a member of her family.

Ordinarily, where one person renders services to another at his request, the law will imply a promise to pay therefor what tlie saméis fairly and reasonably worth; but between persons living together as members of the same family, bearing towards each other a family relation, no promise to pay will be implied, and no action will lie unless the services were rendered at the request of the party receiving them under a promise to pay therefor, or under such circumstances as show that the party receiving them expected to pay, and the other to receive pay, therefor, or that the services were rendered with the understanding between the parties that compensation therefor would be made by will. (Ulrich v. Ulrich, 32 N. E. Rep. 606; Lynn v. Smith, 35 Hun, 295; Robinson v. Raynor, 28 N. Y. 494; Shakespeare v. Markham, 10 Hun, 311-322; Reynolds v. Robinson, 64 N. Y. 589; Reid v. Farrar, 6 N. Y. St. Repr. 199-201; Willsey v. Franklin, 10 N. Y. Supp. 833.)

Mary Farnan died on the 20th day of July, 1889, the owner of real estate in Charlotte, of the value of between $6,000 and $7,000. She had been an invalid for a number of years; had seven children, all of whom had left home and were supporting themselves. The plaintiff had become of age; left home; learned the trade of dressmaking, and in 1883 was engaged in business in Rochester for herself. The testatrix and her husband had broken up housekeeping, and had for some time been living at different places with their children. During the winters of 1882 and 1883, the testatrix lived with her son in Pennsylvania. In May, 1883, she returned to Charlotte and with the plaintiff commenced keeping house, herself, her husband and the plaintiff comprising the family. Her husband was aged, and unable to do anything toward their support; she was feeble in health, and had no means of support aside from her real estate, and the plaintiff by her work in dressmaking chiefly provided them with support, doing all of the housework, including the washing, ironing, cooking, etc. In the spring of 1884 the defendant returned home at the request of the plaintiff, and thereafter continued to live in the family, and assisted in the support of his parents. In August, 1885, the plaintiff was married, and some time thereafter for about five months, kept house with her husband after which she and her husband returned to her mother’s house, and there continued to live until her mother’s death in 1889, doing all the housework, nursing and caring for her mother as she had previously -done. The testatrix first made a will about the year 1880, in which she gave the use of her real estate to her husband during life, and upon his death she gave the same to her children. During the year 1885 she made another will, in which she devised one-third of her property to the plaintiff, and the other two-thirds to the defendant. .On the 25th day of March, 1889, four months before her death, she made her last will and testament, which has been admitted to probate, devising all her property to the defendant. So far the facts appear from the direct testimony of the witnesses, and establish that the services were rendered by the plaintiff for her mother in her family.

Were such services performed at the request of the mother?

The pjaintiff is not a competent witness as to any personal transaction or communication had in reference thereto with her deceased mother. As we have seen, in May, 1883, the plaintiff was engaged in her business of dressmaking in the city of Rochester, and the-, mother was living with her son in Pennsylvania; Margaret C. Farnan, wife of the son, with whom the mother was living, testified. that her mother-in-law talked a great deal with her about going home' to commence keeping house again, and often asked witness if she-thought Julia (the plaintiff) would come and live with her; and. when she got ready to go home she said that she would go home,, and see if Julia would come home and stay with her, that she would like to go home and keep house, would like to have Julia come-home and stay with her; she felt poorly, and did not feel able to-do anything herself.

Mary Tiernan, a sister of the plaintiff and defendant, testified that-her mother told her that she wanted Julia to come home, that she-. would go to housekeeping if Julia would come home and live with her; that she expressed this more than once, and was always speaking about wanting Julia to come home; that she left and went home, and that Julia thereafter left Rochester, went home and stayed with her mother until her death, excepting a few months that she was keeping house after her marriage.

From this evidence it appears that the testatrix left her son’s residence in Pennsylvania, with the expressed intention of going home to see Julia, to see if she would come home and stay with her, if she should again go to housekeeping. It also appears that she returned home to Charlotte, with Julia, and recommenced housekeeping. No witness was present and heard what transpired between the testatrix and Julia; but we think from the testimony, the jury would have been justified in drawing the inference that the plaintiff returned with her mother, and commenced housekeeping at her request. Was it understood between'the parties that the plaintiff should be ''compensated for her services by will or otherwise ?

Upon this branch of the case much evidence was taken, to which we shall make but slight reference.

Sarah McKee testified to having a talk with the testatrix in reference to Julia, and heard her remark that she did not know how she would get along without Julia. That Julia had bought a black flannel dress for her; that she did not know how she would do without her; and said that she “ would never lose anything by what she was doing for her.”

Martha Yayon testified that at one time she had a conversation with the testatrix, in which she said that Julia and Charlie should have the place.” She said they were fixing up the house; Julia bought the windows, and Charlie clapboarded the house, and they painted it, and they two should have the property when she was through with it. * * * She said she would not know what to do without Charlie and Julia, that the old gentleman was not able to work.”

Rosanna Ambrose also testified to having a conversation with her in July or August, after Julia first came home; that Julia was ■making a dress for her, when testatrix came in and commenced talking, saying, “ I know who I am going to leave my property to; I am going to leave it to the children that stays at home and works and supports me; Julia has come home to stay and to work, and I would like to have Charlie come home; and if he comes home and helps Julia support his father and I, at my death all I have got is theirs, I will divide it equal between them.”

These, and many other expressions of like character, appear, some •of which were made in the presence of Julia. She not only promised, but actually made her will, giving Julia one-third of her estate. These acts and declarations indicate quite clearly that the testatrix at that time intended to -compensate Julia for her services •out of the property which she should leave at her decease, and they may have induced her to remain with, and serve her mother, expecting the compensation promised.

An examination of the cases to which we have referred, shows that the courts make a distinction between cases where the child has become of age, been away from home, established a business, and supported himself, and then returns upon the request of the parent, and one where the child has continued to live with the parent after arriving at age, and has never had any other home.

It appears to us that the evidence raises a question for the jury, and that the trial court erred in directing a nonsuit.

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

All concurred.

Judgment appealed from reversed, and a new trial granted, with ■costs to abide event.


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    Mary Ann Noonan, as Administratrix, etc., of William Noonan, Jr., Deceased, Appellant, v. The New York, Lake Erie and Western Railroad Company, Respondent.

      Henewal of a motion at Special Term, after its denial at a former Special Term — new and additional facts.

    The general rule is that a motion once denied at a Special Term cannot be renewed or heard by another Special Term, unless by the terms of the order it appears that the motion was denied for some technical reason not affecting the merits, or leave is granted to renew the motion; but this rule has exceptions, and where new and different facts have arisen a motion may be renewed without consent.

      A plaintiff having been nonsuited, with leave to move for a new trial on a case and exceptions, served a notice on the defendant that she abandoned her ease and exceptions, and that an order to that effect might be entered without notice,'and thereupon commenced another action for the same cause of action; the defendant moved at Special Term that all proceedings on the part of the plaintiff in the second action be stayed until the costs in the first action should be paid; this motion was denied on the theory that the plaintiff’s right to review or move for a new trial could not be terminated by notice, and that the case was still pending.
    The General Term reversed this ruling, and held that the plaintiff’s right to move for a new trial was abandoned by the notice, and that the,!> defendant could enter final judgment upon the nonsuit; the costs were then taxed, and the defendant entered final judgment in the first action, and then renewed the motion for a stay in the second action, at Special Term, setting forth the proceedings since the first motion, and the motion was granted.

      HM, that the taxation of Costs and termination of the first action by entry of final judgment after'the denial of the original motion constituted such new and additional facts as warranted the renewal of the motion at another Special Term.
    Appeal by the plaintiff, Mary Ann Noonan, as administratrix of' the estate of William Noonan, Jr., deceased, from an order of the* Supreme Court, made at the Erie Special Term, and entered in the office of the clerk of Genesee county on the 18th day of June, 1892, staying all proceedings in this action until the costs and disbursements of a former action between the same parties are paid.

      M. Fillmore Brown, for the appellant.

      George F. Brownell, for the respondent.
   Haight, J.:

In March, 1890, the plaintiff commenced an action in the Supreme Court, Genesee county, against the defendant to recover the damages which she had sustained by reason of the death of her son occasioned by the alleged negligence of the defendant. Issue was-joined in the action, and in November, 1890, it was brought to trial before the Honorable Henry A. Childs, and a jury, at the Genesee Circuit, which trial resulted in a nonsuit. An order was thereupon made giving the plaintiff ninety days to make a case and exceptions, and that the motion for a new trial be heard at the General Term in the first instance, and that all proceedings be in the meantime-stayed.

On the 14th day of October, 1891, a case containing exceptions, was made settled, signed and ordered to be filed. On the same day •the order directing the motion to be heard in the first instance at the General Term was vacated so as to allow the motion for a new trial to be made at the Special Term. The plaintiff did not file a case and exceptions as required, but on the eighteenth day of October thereafter, served a notice upon the defendant that the plaintiff had abandoned her case and exceptions, and that an order without notice might be entered to that effect.

On the twenty-eighth day of October this action was commenced, in which the plaintiff seeks to recover damages for the death of her son, alleged to have resulted from the negligence of the defendant. Thereupon, the defendant noticed two motions for hearing at the Erie Special Term, one in the first action to compel the plaintiff to file the case and exceptions as settled, and the other in this action asking that all the proceedings on the part of the plaintiff be stayed until the, costs and disbursements in the first action should be paid. Both motions were argued at the same time. The motion in the first action was granted, and the plaintiff was ordered to file the case and exceptions within five days. And the motion in the second action was denied, with ten dollars costs of motion. Thereupon, the plaintiff appealed to the General Term from the order made in the first action and that court reversed the order of the Special Term and denied the motion. The defendant then entered final judgment in the first action and taxed its bill of costs, and then noticed this motion for hearing based upon all of the papers and proceedings in the action. The general rule is that a motion once denied at a Special Term cannot be renewed and heard by another Special Term, unless by the terms of the order it appears that the motion was denied on some technical reason not affecting the merits, or leave is granted to renew the motion. (Jay v. DeGroot, 2 Hun, 205; Seaman v. McReynolds, 52 N. Y. Super. Ct. 543; Dunn v. Meserole, 5 Daly, 434; Talcott v. Burnstine, 13 N. Y. St. Repr. 552; Klumpp v. Gardner, 44 Hun, 515.) But this rule has exceptions. Where new and different facts have arisen a motion may be renewed without consent. (Smith v. Zalinski, 94 N. Y. 519, 524; Goddard v. Stiles, 99 id. 640.) The question then is, as to whether the motion is based upon a new and additional state of facts.

It will be remembered that the first motion for a stay was made in connection and at the same time with the motion directing the plaintiff to file the case and exceptions that had been settled in the former action. At that time the former action was pending, and no judgment had been entered therein. The order of the Special Term seems to have been made upon the theory that the plaintiff's right to review or to move for a new trial could not be terminated by notice, and that it was her duty to proceed thereon, and that the case was still pending undetermined. That being the case, the motion in this action could not well prevail, and was, therefore, denied. On the review in the General Term the order of the Special Term was reversed. By such reversal the court in effect held that the plaintiff’s right to move for a new trial was abandoned by her notice to that effect, and that the defendant could enter final judgment upon the nonsuit. After the decision of the General Term the defendant entered its judgment and taxed its bill of costs, and then renewed the motion setting forth the proceedings in the General Term, the entry of final judgment, etc., as additional facts. As we have seen, the motion was based upon all the papers in the action, including those of the former motion, and of the order entered thereon. The Special Term was thus apprised of all of the proceedings, and of the former motion, and of the disposition that had been made thereof. And it appears to us that the new facts stated, materially and substantially change the situation of the parties from that existing at the time the former motion was made. At that time the former action was pending undetermined. At the time of making this motion the former action had been terminated by final judgment, and the costs had been taxed thereon.

The complaints in the two actions differ some as to phraseology, and as to the grounds upon which negligence is charged. The gist of the. action as alleged in each complaint is, however, in substance the same.

We do not regard the question discussed in-reference to the election of remedies as having any bearing upon the motion.

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

All concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


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    In the Matter of the Application of The Niagara Falls Hydraulic Power and Manufacturing Company, Appellant, for the Change of the Proposed Route of The Niagara Falls and Lewiston Railroad Company.

      Objections to the proposed location of a railroad — proceedings under section 6 of the Bailroad Law — powers of the commissioners — original location diminished in width — scope of review by the General Term. ,
    Commissioners appointed, under the provisions of section 6^of chapter 565 of the Laws of 1890 (the Railroad Law, chapter XXXIX of the General Laws), as amended hy chapter 676 of the Laws of 1892, to examine the proposed route of a railroad, on the petition of an occupant or owner of land aggrieved by the proposed location, are confined to the single alternative, in each case, of approving the route proposed by the railroad corporation or adopting that proposed by the petitioner; they cannot select a third route for the road over the lands of other persons.
    The commissioners appointed on the petition of an aggrieved landowner, a hydraulic power and manufacturing company operating on Niagara river, to examine the proposed route of a railroad along the edge of Niagara river, rejected the new route proposed by the petitioner, on condition that the railroad company should narrow its proposed location by contracting the line on the river side upon the lands of the petitioner, and should agree to maintain its track at a certain elevation, and maintain openings thereunder to the river; the railroad company thereupon, by a resolution of its directors, assented to these conditions and reduced the width of its route accordingly, and the commissioners then affirmed the route so reduced.

      Meld, that as the route so affirmed and adopted was within and a part of the width of the route as originally located over the lands of the petitioner, the action of the commissioners in affirming that portion of the route located by the railroad company was not in conflict with the rule above stated.
    On appeal from the determination of the commissioners in a proceeding under said section 6 of the Railroad Law, the General Term is confined to the consideration and determination of questions of law, and will not consider the case on the merits and substitute its judgment in the place of that of the commissioners as to the merits of the two routes.
    The question of the character of the railroad corporation whose proposed route is the subject of examination, and as to whether it was organized for a public purpose, is not brought before the General Term for determination, by an appeal from the decision of commissioners appointed under section 6 of the Railroad Law.
    Appeal by tbe petitioner, the Niagara Falls Hydraulic Power and Manufacturing Company, from the decision of the commissioners appointed to examine the route of the proposed railroad company, and the route to which the petitioner proposed to change the same pursuant to the Laws of 1890, chapter 565, section 6 (the Eailroad Law, chapter XXXIX of the General Laws),-as amended by ■the Laws of 1892, chapter 676.
    The decision appealed from was filed in the office of the clerk of Niagara county on the 21th day of December, 1892.

      John L. Homer, for the appellant.

      Herbert P. Bissell, for the respondent.
   Haight, J.:

The Niagara Falls and Lewiston Eailroad Company was organized for the purpose of constructing, maintaining and operating a railroad for public use, for the transportation of persons and property. By its articles of incorporation it commences at a point near the easterly shore or margin of the Niagara rivei’, at or near the village of Lewiston and running thence southerly by the most direct and feasible route along the easterly shore or margin of the Niagara river to the village of Niagara Falls terminates in such village. From the map of the route filed by the company in the office of the clerk of Niagara county, it appears that the line of the road, as located by the company, extends along the easterly shore or margin of the Niagara river, near the water’s edge, from the village of Lewiston to the lands of the New York State reservation, in the village, now city, of Niagara Falls; that the center line thereof is distant two rods from the easterly shore or margin of the river, and its easterly line is two rods easterly from such center line; that at a point near the crossing of the cantilever bridge over the river, a loop or line of the road is extended up over the high bank and around to a point known as the Whirlpool.

It appears from the report of the commissioners that the petitioner, the Niagara Falls Hydraulic Power and Manufacturing Company, is the owner of a tract of land in the city of Niagara Falls, bounded by the easterly water line' or margin of the river, and extending on to the high bank; that the change of route proposed is from a point where the ' respondent’s route, as located on its map, reaches the top’ of the high bank near the cantilever bridge, in Spring street; thence through various streets, specifically named, to the junction of Third street with Ontario street.

The commissioners have found as facts that the space between the perpendicular or high bank and the water line of the river is capable •of being used by manufacturing establishments, and that they can procure power by making a second use of the water after its use by the mills and manufacturing establishments of the petitioner, located upon the high bank ; that it is of great value, amounting to a half million of dollars or upwards. They have also found as facts that the proposed change of the respondent’s route necessitates the crossing of the railroad tracks of the New York Central Railroad Company at grade; that such tracks are in frequent use, both day and night, and that such crossing would become extremely dangerous.

The commissioners, in their report, further state that after the evidence had been taken and the case submitted to them, they called the counsel for the respective parties before them and informed them that they were convinced that the railroad could be constructed and operated on a space of twenty feet in width along the lands of the petitioner, and that its line on the east should be located at a distance of twenty feet from the water line or easterly margin of the river, and if the railroad company would so reduce and contract its easterly line, by a resolution of the board of directors, and would create and supply sufficient openings for the discharge of the water by the manufactories of the petitioner into Niagara river, and for transferring, carrying and removing the stone through the openings to the water of the river, and erect and maintain its railroad tracks on such space of twenty feet from the water line or margin of the river at the height of- thirty feet, the application for the change in the line or route of the railroad would be denied, but otherwise would be ordered and directed; that afterwards a resolution of the company was adopted by the directors, assenting to the conditions imposed by the commissioners and reducing the line of its route to that indicated, and thereupon the commissioners, by their report, affirmed the route as so changed by the resolution of the board of directors of the company.

The petitioner contends that the commissioners had no power to compel or receive from the railroad company a resolution contract- , ing or changing its route as originally proposed, and that it had no power to impose as a condition that the tracks of the company should be elevated at a height of thirty feet from the surface of the water, for" the purpose of creating openings for the discharge of water, etc., underneath such tracks; that the commissioners were vested with no discretion other than to affirm the route as located by the railroad company or to adopt that proposed by the petitioner. In support of such contention, the appellant relies upon the opinion of this court as delivered by Dwight, J., in the case of The Application of the Lake Shore & Michigan Southern R. R. Co. to Change the Route of the New York, Lackawanna & Western R. R. Co. In that case it was said: Upon these appeals, we are restricted to a review of the decision of the commissioners affirming the route as located by the railroad company and are confined, as the commissioners themselves were, to the single alternative in each case, of affirming the route proposed by the respondent or adopting that proposed by the petitioners.” This we understand to be in accordance with the provisions of the statute which requires the commissioners, after an examination of the routes proposed, and after hearing the parties, “ to affirm the route originally designated or adopt the proposed alteration thereof, as may be consistent with the just rights of all parties and the public, including the owners or occupants of lands upon the proposed alteration.” The reason for this is apparent The railroad company, in locating its route, is required to make a map and profile as adopted by it in the county and file the same in the office of the clerk of the county. The corporation is then required to give written notice to all occupants of lands over which the route is designated. Such owners or occupants of land, feeling aggrieved, may, within fifteen days thereafter, give notice to the corporation that an application will be made to the Supreme Court for the appointment of commissioners to examine the proposed route and such alteration thereof as such owner or occupant shall propose. Such application must be accompanied with a map and profile of the route designated by the corporation and of the proposed alteration thereof, and notice must be given to the owners or occupants of lands to be affected by such proposed alteration. Thus all of the parties to be affected by the two proposed routes are given an opportunity to be heard. If the commissioners should adopt neither of the proposed routes, but select a third, it might involve the locating of the road over the lands of persons who had no notice of the proceedings or an opportunity to oppose the same. But we do not understand that the commissioners have violated this provision of the statute. They have not selected a third route extending over lands of other persons, but have confined themselves to an adoption of that which was within the lines of the route as originally located by the railroad company. True, the route, as originally located, was four rods in width, and that as affirmed by the commissioners is but twenty feet in width over the lands of the petitioner, but the twenty feet in width as affirmed by the commissioners is within and a part of the four rods in width of the route as originally located. We, therefore, do not regard the action of the commissioners in affirming that portion of the route located by the railroad company as in conflict with the statute or the decisions of this court.

We are asked to consider the case upon the merits, to reverse the determination of the commissioners and to adopt the route proposed by the petitioner. The statute provides that this court may, upon the hearing of the appeal, affirm the route proposed by the corporation or may adopt that proposed by the petitioner. (Laws of 1890, chap. 565, § 6, as amended by the Laws of 1892, chap. 676.) The language of this statute is identical with that used in the Laws of 1850, chapter 140, section 28, as amended. In The Matter of the Application of the Lake Shore & Michigan Southern R. R. Co. to Change the Route of the New York, Lackawanna & Western R. R. Co. (89 N. Y. 442), it was held that on an appeal brought to review the decision of the commissioners, only questions of law could be considered and determined. And to the same effect is the case of The Application of the New York, Lake Erie & Western R. R. Co. to Change the Route of the New York, Lackawanna & Western R. R. Co. (99 N. Y. 388). The statute requires the court to appoint a practical civil engineer as one of the commissioners. The commissioners are required to personally examine the proposed route. They consequently have the aid of scientific advice, as well as that of personal inspection, upon which to form their conclusion as to the merits of the two routes. This court upon review, must of necessity be confined, to tlie evidence taken in tlie proceeding. If the commissioners have committed errors, or if their conclusions of law are in conflict with the facts found by them, this court may correct their determination, but it cannot or ought not to substitute its judgment in the place of that of the commissioners as to the merits of the two routes;

It is contended that the corporation was not organized for a public purpose; that it is but a revival of the Niagara Falls and "Whirlpool railway, which was condemned by the Court of Appeals in 108 N. Y. 315. But we do not regard this question as now before us for determination. The commissioners were not empowered to determine the character of the corporation, and we are here reviewing only their determination.

Determination appealed from affirmed, with the costs of this appeal to respondent.

All concurred.

Determination of commissioners appealed from affirmed, with ■costs of this appeal to the respondent.


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    In the Matter of the Estate of Frederick Ledrich, Deceased; Charles Lang, Petitioner, Appellant; Charlotte Schumacher, as Executrix, etc., of Conrad Schumacher, Deceased, Respondent.

      Conveyance, by the equitable owner, of an interest in a decedent’s estate— when valid, although made to a trustee holding the legal title.

    The equitable owner, under a devise, of an interest in a testator’s real estate and its proceeds, the legal title to which is in the testator’s executor as testamentary trustee, with directions to sell and distribute the proceeds, has an interest in such real estate and its proceeeds which he can convey, by deed, to the executor, and thereby estop himself from claiming any further interest in the testator’s estate, and thus lose the right tó be cited to attend, or to compel, a subsequent accounting by the executor concerning such real estate or its proceeds.
    If the realty devised to an executor, in trust, with directions to sell and to distribute the proceeds, is to be deemed equitably converted into personal property, it may still be so conveyed by the equitable owner, as there is no rule that prevents the transfer of personal property by deed.
    A trustee will not be permitted to take advantage of his cestui que trust; but where the cestui que trust is of full age, and stands upon an even footing with the trustee, he may settle with the trustee for a consideration, and either release or convey his interest in the trust estate to the trustee.

      Appeal by the petitioner, Charles Lang, from a decree of the Surrogate’s Court of Erie county, entered in the office of said Surrogate’s Court on the 5th day of January, 1892, dismissing his petition and the proceedings instituted thereon to compel Charlotte Schumacher, as executrix of the last will and testament of Conrad Schumacher, deceased, who was the executor of the last will and testament of Frederick Ledrich, deceased, to pay a legacy to the petitioner, and to account for the proceedings of Conrad Schumacher as such executor.
    On the 17th day of November, 1857, the last will and testament of Frederick Ledrich, deceased, was proved and admitted to probate by the surrogate of the county of Erie, and letters testamentary thereon were issued to Conrad Schumacher. The will provides as follows:
    “ First. I order and direct that all my just debts and my funeral expenses be paid by my executor, hereinafter named, as soon after my decease as conveniently may be.
    “ Second, I give and devise all my real and personal estate of what nature or kind soever to Conrad Schumacher, the executor of this my last will and testament,' hereinafter nominated and appointed, in trust for the payment of my just debts and the legacies above specified, with power to sell and dispose of the same at public or private sale at such time or times and upon such terms and in such manner as to him shall seem meet; and until the sale of said real estate, to let the real estate for the best rents that can be procured, and the proceeds of such sale is to be divided equally between my children, share and share alike; which said several legacies or sums of money I direct and order to be paid to my sons Frederick and Louis within ten years after my decease, and to my other children, Salomea, Henry, Sophia, Philip and Charlotte, when they have respectively arrived at the age of twenty-one years. On account of my two sons Frederick and Louis having forsaken me in my old age and sickness, I order and direct that the interest that may accrue on their shares be divided between the rest of my children in equal shares.
    “ TJhi/rd. I give and devise to my wife, one cow, one cupboard, one clock, one bed and such other furniture as the law directs, or as a widow is entitled to.

      “ Fowth and lastly. I nominate and appoint Conrad Schumacher sole executor of this my .last will and testament, hereby revoking all former and other wills by me made.
    “ In witness whereof I have hereunto set my hand and seal this first day of July, A. D., 1857.”
    In 1860 Salomea Lang, who was the wife of the appellant and one of the daughters of the testator, petitioned the surrogate for an accounting by Conrad Schumacher as such executor. Rut pending such proceedings she died, leaving a last will and testament which was admitted to probate February 5, 1861, in and by which she devised and bequeathed her estate to the appellant, her husbancf. The proceedings upon such accounting were continued and terminated in a decree of the Surrogate’s Court, dated February 6, 1861, wherein Conrad Schumacher, as executor, was charged with the balance in 1ns hand, $423.95, and was directed by such decree to apply the same towards the discharge of a mortgage upon the real estate left by the testator.
    On the 20th day of December, 1862, Charles Lang, the appellant, conveyed all his estate, title and interest in the real estate left by the testator to Conrad Schumacher, in consideration of the sum, as mentioned in the deed, of $250.
    In the year 1865 the real estate of the testator was sold by his executor. And subsequently, and in the year 1374, the proceeds thereof were distributed among the testator’s children, with the exception of the share of Louis Ledrich.
    On the 24th day of September, 1887, Conrad Schumacher executed -his last will and testament, and shortly thereafter died. His will was admitted to probate on the 10th day of January, 1888, and letters thereon were issued to Charlotte Schumacher. In the month of April, 1890, Charlotte Schumacher, as executrix, petitioned the Surrogate’s Court for a settlement of the accounts of Conrad Schumacher, as executor of the last will and testament of Frederick Ledrich. And in such petition stated that the only person interested in the settlement was Charles Lang ; that on the 7th day of April, 1890, a citation was issued, directed to said Lang, requiring him to appear upon the settlement of the accounts of Conrad Schumacher, as executor. And such citation was served upon the said Lang, but nothing further appears to have been done thereon.

      Subsequently, Willis O. Jacus, as administrator of Louis Ledrich, deceased', presented to the Surrogate’s Court a petition for the judicial settlement of the accounts of Conrad Schumacher. And such proceedings were had thereon that a decree was entered by that court on the 9th day of March, 1891, finally settling such accounts. But the appellant Lang was not cited to appear, and did not appear in such proceedings.
    The surrogate found as conclusions of law:
    “ First. That the said deed from Charles Lang of his interest in the farm belonging to the Ledrich estate, to Conrad Schumacher, is binding upon the said Lang, and operates as an absolute estoppel.
    “ Second. That more than six years having elapsed since the right to commence this proceeding accrued, the same is barred by the Statute of Limitations.” And concluded by ordering the proceedings dismissed.

      August Becker, for the appellant.

      Frederick Howard, for the respondent.
   Haight, J.:

The decree of the surrogate of February 6, 1861, entered upon the accounting of the executor, finally settled and disposed of the personal estate of the testator. This was expressly conceded upon the argument, and such was doubtless the effect of the decree. That being so, there remained only the real estate arid the rents, issues and proceeds thereof to be accounted for.

The first transaction after the settlement of the personal estate, disclosed by the record, is the deed of Charles Lang to Conrad Schumacher, dated December 20, 1862, in which Lang conveys all of his estate, title and interest in the real estate left by the testator. As the devisee and legatee of his deceased wife, he had become vested with all of the right, title and interest that she had in tlie estate of her deceased father. Under the will, Ledrich had given the real estate to Schumacher, the executor, but in trust, with power to sell the same and divide the proceeds equally among his children. The legal title was thus vested in the trustee. But he held it for the benefit of the children, and the proceeds belonged to them. They were the equitable owners. Lang, being one of such equitable owners, and entitled to a share of the proceeds, executed the deed in question. In it he undertook to convey all his estate, title and interest. It is contended that he was not the owner, and, therefore,, he conveyed nothing. True, he was not the legal owner, but, as we have shown, he was the equitable owner, and had an interest in the proceeds, which he could convey or release. '

Again, it is said that the will, devising the real estate of the-executor with directions for it to be sold, worked an equitable conversion of the realty into personal property. Suppose this to be so. It is not, however, apparent how the rights of the parties would be changed. The children would still be the equitable owners entitled, to the proceeds. And we know of no rule that prevents the transfer of personal property by deed.

We are aware of the doctrine that prohibits a trustee from dealing-with trust property for his own benefit. He will not be permitted to take advantage of his 'cestui que trust; but where the cestui quetrust is of full age, and stands upon an even footing with the trustee, we see no reason why he may not settle with the trustee for a consideration, and either release or convey his interest in the trust estate.

It appears to ns that the appellant, by the deed to Schumacher, undertook to convey his interest in the estate to Schumacher for the consideration of $250, which sum he admitted Avas paid to him, and that, by reason thereof, he is now estopped from claiming any.further interest in the estate.

Mrs. Schumacher petitioned the surrogate for a settlement of the accounts of Conrad Schumacher in April, 1890, and in such petition stated that Lang had an interest in such settlement. She, doubtless, then supposed him to be interested. But it is not apparent how her supposed interest of Lang in the estate can change or alter the effect of his deed.

These views render it unnecessary to consider the question raiséd under the Statute of Limitations.

The decree should be affirmed, with costs.

All concurred.

Decree of the surrogate of Erie county appealed from affirmed,, with costs.


text:
    Auburn Button Company, Appellant, v. Philip L. Sylvester, Respondent, Impleaded, etc.

      Appeals Try coiporations, after judgment of sequestration and the appointment of a permanent receiver.

    The entry of a judgment of sequestration against a corporation, obtained as provided by the Code of Civil Procedure (section 1784 et seq.), and the appointment of a permanent receiver, do not deprive the corporation of power thereafter to take and prosecute appeals from judgments recovered against it.
    MotioN by the respondent, Philip L. Sylvester, made pursuant to an order to show cause, to dismiss the appeal of the plaintiff, the.' Auburn Button Company, from a judgment of the Supreme Court against the plaintiff, entered in the office of the clerk of Cayuga county on the 22d day of December, 1892, upon the decision of the court rendered on a trial at the Cayuga Special Term.

      W. E. Eughitt, for the appellant.

      E. G. AiTcen, for the respondent.
   Haight, J.:

The judgment herein against the plaintiff for ninety dollars and seventy-eight cents was entered upon a decision of the Cayuga. Special Term on the 22d day of December, 1892. On the 3d day of January, 1893, an appeal therefrom was taken to this court. On the 21st day of December, 1892, a judgment of sequestration was entered in another action against the plaintiff in this action, and Daniel L. Hurlburt was appointed permanent receiver, with the usual powers and duties and vested with all of the rights and powers; of receivers in like cases.

It is now claimed that by the judgment of sequestration the plaintiff ceased to exist as a corporation, and consequently cannot bring this appeal.

It is true that by the judgment of sequestration the property, things in action and effects of the corporation are vested in the receiver, with power to sell and dispose of the same and pay the debts, but we do not understand that it absolutely dissolves the corporation. (Mann v. Pentz, 3 N. Y. 415, 419.)

Tbe property and effects vest in tbe receiver, and be only can maintain actions to recover amounts owing to tbe company. Creditors of tbe corporation may still prosecute tbeir claims against it to judgment, and tbe corporation may defend itself against sucb •claims.

In the case of Kincaid v. Dwinellle (59 N. Y. 548), it was beld that a corporation, which has been enjoined from tbe exercise of its corporate franchises and deprived of its property, and lias thus ceased to exist for all practical purposes, is not thereby actually dissolved. It cannot be dissolved save by tbe judgment of a court of competent jurisdiction. Until sucb judgment is rendered creditors may proceed by suit against it, unless restrained by injunction. And to tbe same effect are the cases of Pringle v. Woolworth (90 N. Y. 502, 510) and Parry v. The American Opera Company (12 N. Y. Civ. Pro. Rep. 194).

It is claimed that tbe case of Hollingshead v. Woodward (107 N. Y. 96) is in conflict. Ve are, however, satisfied, from a careful reading of tbe opinion, that it was not tbe intention of tbe court to overrule or abandon tbe doctrine promulgated in tbe former cases. 'The case itself is clearly distinguishable. And so is that of Decker v. Gardner (124 N. Y. 334).

It appears to us that these views are in harmony with tbe provisions of tbe Code of Civil Procedure. Section 1784 provides for tbe cases in which an action to procure a judgment of sequestration "may be brought. Section 1785 specifies tbe cases in which an action to dissolve a corporation may be maintained. Section 1787 provides that in an action brought as prescribed in tbe article, which is either that of sequestration or for a dissolution, tbe court may grant an Injunction restraining tbe corporation and its' trustees, directors, ■managers and officers from collecting or receiving any debt or •demand, and from paying out, or in any way transferring or delivering to any person any money, or property, or effects of tbe corporation during tbe pendency of tbe action, except by express permission of tbe court. And “ Where tbe action is brought to procure tbe dissolution of tbe corporation, the injunction may also restrain tbe corporation and its trustees, directors, managers and other officers ■from exercising any of its corporate rights, privileges or franchises,” etc.

It will thus be observed that a distinction is made between the two actions, and that it is only in the action to dissolve a corporation that the officers will be absolutely restrained from exercising their corporate rights and privileges.

It would - consequently follow that whilst a corporation after a judgment of sequestration may defend itself, it cannot prosecute, for the reason that its rights of action are vested in the receiver.

In the case under consideration a judgment has been entered against the corporation. By the appeal it is seeking to get rid of the judgment. And this, we think, it still has the power to do. It may be that the receiver only will be entitled to prosecute the action in case a new trial should be granted, but that fact cannot affect the right of the corporation to defend itself against the judgment.

The motion to dismiss the appeal should, therefore, be denied? with ten dollars costs.

Lewis, J., concurred; Dwight, P. J., and Macomber, J., not sitting.

Defendant’s motion to dismiss appeal denied, with ten dollars costs.


author: O’Bbien, J.:

text:
    Josephine F. Clason, Respondent, v. Elizabeth S. Baldwin, Appellant.

      JSjectment — verdict for mesne profits greater than the amount claimed in the complaint.

    The fact that the court, on directing a verdict for the recovery of the premises, together with mesne profits, on the trial of an action of ejectment, places the amount of the mesne profits at a sum greater than that demanded in the complaint, is not a ground for reversal, where no objection on that score was made at the trial, and the judge’s attention was not called to the fact.
    Appeal by the defendant, Elizabeth S. Baldwin, from a judgment of the Supreme Court, entered in the office of the clerk of the city and county of New Tork on the 11th day of June, 1892, upon a verdict in favor of the plaintiff rendered by direction of the court at the New York Circuit, and from an ¿order entered in said clerk’s office on the 9th day of June, 1892, denying the defendant’s motion for a new trial made upon the minutes of the court, in an action of ejectment.

      Isaac N. Miller, for the appellant.

      Q-eorge W. Stephens, for the respondent.
   O’Bbien, J.:

At the close of the testimony, both sides moved for a direction, the defendant on the ground that plaintiff had failed to prove possession in berself or ber ancestors or predecessors, within twenty years next before the commencement of this action, and upon the further ground that defendant had shown that she held possession under a tax title, the validity and regularity of which had not been successfully impeached. The plaintiff asked for a direction in her favor, which was granted by the court, and a verdict for the recovery of the property, together with the mesne profits, was directed.

The contest between these parties, with respect to the title to this property, has been twice before the General Term and once to the Court of Appeals. (13 N. Y. Supp. 681; 129 N. Y. 183.) These decisions render unnecessary a statement of the facts or any extended discussion of the law.

It would seem that the only difference between this record and that presented for review in 129 N. Y. 183, is that the defendant resorted to the tax title as a defense.

We have examined the testimony relating thereto and the grounds upon which such title is assailed, and we agree with the view taken by the learned trial judge, that the plaintiff succeeded in destroying its force and effect as a defense.

Apart, however, from the question of title, it is insisted that it was error of law for the court to direct a judgment for $5,337, by way of damages for mesne profits.

It is suggested that, inasmuch as the complaint demanded but $5,000, that no greater amount could be awarded.

The answer to this, however, is, that no such objection was made upon the trial, nor was the court’s attention directed to this difference between the amount demanded in the complaint and the amount awarded, and had it been, it would have been entirely within its power to have permitted an amendment to include such excess, the question of damages in such an action being incidental to the main relief, which was to recover possession of the property.

Another argument urged is that the court in directing a verdict in the language used in the address to the jury, said in substance that the plaintiff was entitled to recover mesne profits for six years before the commencement of the action. It is evident, however, from the context that this was a mere slip which in no way prejudiced the defendant. The motion made by plaintiff for a direction confined the recovery of such profits between the dates begin-Ding with tbe commencement of tbe action down to tbe date of tbe trial, and tbe computation was made as of such dates, and not for six years before the commencement of tbe action, as stated by tbe trial judge. This being a mere harmless slip, and the record showing that there was no dispute about tbe amount, and tbe court’s attention not having been called to the difference between the amount awarded and the amount demanded, it cannot be assailed by the defendant as error upon this appeal. The defendant sought a credit for moneys paid for faxes for the years 1881 and 1882. The offer to prove such payment having been made was, we think, properly rejected.

These taxes were not imposed nor paid for any of the period for which damages were awarded. The defendant was not under the slightest obligation to pay them ; and we think besides that no sufficient ground was made to render the certificate competent evidence.

There being no other .questions in the case requiring discussion, we are of opinion that the judgment appealed from should be affirmed, with costs.

YaN BbuNt, P. J., and Follett, J., concurred.

Judgment affirmed,,with costs.