text:
    JAY WICKS, as Treasurer of Local Assembly No. 4119 of the Knights of Labor, Respondent, v. EDWARD H. MONIHAN and JOHN C. STACK, Appellants.

      A promissory note payable to the trustees and treasurer of a local assembly, an unincorporated body, belongs to that body, and may be sued upon by its treasurer— right of several local associations to confer judicial authority, to adjudge upon questions affecting property interests, upon an executive board selected by the general association to which the local bodies are subordinate.

    In an action, brought on a note of $500 made by the defendants, November 28, 1886, to the order of William Perry, William Ryland, John Silber, trustees, and Jay Wicks, treasurer of Local Assembly No. 1119 of the Knights of Labor, it appeared that the assembly was an unincorporated association, consisting of more than seven persons, located at Amsterdam, and that the plaintiff was at that time, and is now, the treasurer of the said association; that the considerar tion of the said note was $500, the money of the said local assembly, which was advanced to the defendants, and that the note was delivered to the said assembly by a delivery thereof to its treasurer.
    Held, that no indorsement was necessary by the trustees named in the note or the treasurer; that the note became the property of the said local assembly, and that an action could be properly brought thereon by its treasurer under section 1919 of the Code of Civil Procedure.

      It was claimed by tbe defendants that tbe said Local Assembly No.. 4119 was attached and belonged to District Assembly No. 126 of the Knights of Labor and was one of the local assemblies of which said district assembly was composed, and that the said district assembly was attached to and under the jurisdiction of the general assembly of the Knights of Labor; that on or about May 28, 18S7, the said District Assembly No. 126 and the said Local Assembly No. 4119 were duly and regularly suspended by the general executive board of the order known as the Knights of Labor, to which board the said local and district assemblies were subject and over which the said general board had jurisdiction, and that under and pursuant to the provisions of the constitution and by-laws of the order of the Knights of Labor, upon the suspension of such local assembly and the revoking of its charter, all of its property, including the promissory note referred to in the complaint, immediately vested in and became the property of the general secretary of the said executive board.

      Held, that assuming that the defendants were in a position to assert such a defense against the payee, to whom such note was made payable and was delivered, that it was not maintainable.
    That an arrangement by which members of an association undertake to confer judicial power, in respect to the property in which they have a common interest, upon officers to be from time to time selected out of the association at large as a tribunal having general authority to adjudicate upon alleged violations of the rules of the association and to decree the forfeiture of the property rights of the parties adjudged to be guilty of such violation, is void.

      Austin v. Securing (16 N. Y., 113) followed; PtmUneyY. Bachman (81 Hun, 49); ZafondY. Deems (81 N. Y., 508) distinguished.
    Appeal by tbe defendants from a judgment entered, on tbe report of a referee, in tbe office of tbe clerk of Montgomery county, on August 7, 18S8, in favor of tbe plaintiff.

      Edward J. Meegan, for tbe appellants.

      G. S. Eisbet, for tbe respondent.
   Putnam, J.:

Tbe action was brought on a note of $500 made by defendants November 23,1886, to tbe order of William Perry, William Hyland, John Silber, trustees, and Jay Wicks, treasurer of Local Assembly No. 4119 of tbe Knights of Labor, alleged to be an unincorporated association consisting of more tban seven persons, located at Amsterdam, N. Y., wbicli was in existence on November 1, 1886, and continued until tbe trial of tbe action. Plaintiff is, and during all said time was, treasurer of-said association. Tbe action is brought pursuant to section 1919 of tbe Civil Code. There was sufficient evidence given before tbe referee to sustain bis findings as to tbe making and delivery of the note; that Local Assembly No. 4119 existed from November 1, 1886, to the date of his report; that plaintiff was during that time its treasurer; that the consideration of said note was $500 in the money of said local assembly advanced, and that said note was delivered to said assembly by a delivery thereof to its treasurer. The note having been given and delivered, for money advanced to the makers by Local Assembly No. 4119, to plaintiff as treasurer of said assembly, became its property. (See National Bank v. Hall, 44 N. Y., 395; Wayne County Savings Bank v. Low, 6 Abb. N. C., 90, 91.) No indorsement was necessary by the trustees named in the note, or treasurer. The action was brought by the owners of the note to whom it had been delivered, and could be brought properly by the local assembly in the name of its treasurer under section 1919 of the Code of Civil Procedure. Hence plaintiff was justly entitled to recover in the action, unless the defense set up in the answer, and insisted upon on the trial by defendants, that plaintiff was not the real owner of the note was substantiated.

It was claimed by defendants that at and prior to May 27, 1887, and when the note was given, there was an unincorporated association of more than seven persons at Amsterdam known as Local Assembly No. 4119 of the Knights of Labor. That the plaintiff was the treasurer thereof, and that William Perry, William Hyland and John Silber were the trustees thereof. That at and prior to May 28, 1887, said Local Assembly No. 4119 was attached and belonged to District Assembly No. 126 of the Knights of Labor, and was one of the local assemblies of which said district assembly was composed. That said district assembly was attached to and under the jurisdiction of the general assembly of the Knights of Labor. That on or about May 28, 1887, said District Assembly No. '126 and said Local Assembly No. 4119 of the Knights of Labor were duly and regularly suspended by the general executive board of the order known as the Knights of Labor, to which board said local assembly and said district assembly were subject, and over which said board had jurisdiction and control, under and pursuant to the provisions of the constitution and by-laws of the order of the Knights of Labor to which said local assembly and plaintiff herein are subject. That upon the suspension of said local assembly, and the revoking of its charter as aforesaid, all of the property, including the promissory note referred to in the complaint, of said local assembly, immediately vested in, belonged to and became the property of the general secretary of said executive board, and said general secretary thereupon became entitled to the immediate possession thereof.

Defendants on the trial introduced evidence tending to show or showing the suspension of Local Assembly No. 4119 by the general executive board of the Knights of Labor, and the rules, regulations, by-laws and constitution of said Knights of Labor, and that by said constitution and by-laws, on suspension of a local assembly, its property became forfeited and vested in the general secretary of the executive board. And defendants insist that by such suspension of Local Assembly No. 4119 its title to the note in question ceased, and the note became the property of the general secretary of the executive board of the Knights of Labor, pursuant to the constitution and by-laws of said organization, and, therefore, when the action was commenced plaintiff was not the owner and holder of the note in suit. It is not denied that when plaintiff took the note it was a valid unincorporated association, and that it advanced the money which was the consideration of the note, and at that time was the legal owner and holder thereof. But it is alleged that, by the suspension of said local assembly by the general assembly in the following year, plaintiff forfeited all its property, including said note, to the general secretary of the executive board, and that such suspension at once worked a transfer of the title of said note.

Assuming that defendants are in a position to assert such a defense against the payee to whom said note was made and delivered, and who, as holder, produced it on the trial, yet it is settled in this State that an agreement by which members of an association undertake to confer judicial powers in respect to the property in which they have a common interest upon * * * officers to be from time to time selected out of the association.at large, as a tribunal having general authority to adjudicate upon alleged violations of the rules of the association, and to decree a forfeiture of the right to such property of- the parties adjudged to be guilty of such violations, is void.” (See Austin v. Searing, 16 N. Y., 112; N. Y. Protection Association v. McGrath, 23 N. Y. St. Rep., 209.)

The case of Austin v. Searing (supra), holds the doctrine above quoted, applying it to a voluntary unincorporated association, and to an attempt by that association to forfeit the property of some of its members, as it is claimed by the defendants that the general assembly in this case did forfeit the property of Local Assembly No. 4119. The claim by the defendants in this action is fully discussed and answered by the able opinion of Justice Selden delivered in that case. (See pages 118-123 and opinion of Justice Brown, pages 124, 125.)

Plaintiff having advanced its money to defendants and received the note in suit, of which it became the owner and holder, the general assembly cannot confiscate the property. As said by Justice Brown in Austin v. Searing: “The by-laws and regulations of these voluntary associations may all be very well in their place and sphere, * * * they cannot, however, have the force of law, nor impair or affect the rights of property against the will of its real owners. * * * The confiscation and forfeiture of property is an act of sovereign power; and the aid of tliis or any other court will not be rendered to enforce such proceedings or to recognize legal or supposed legal rights founded upon them.”

The cases of Poultney v. Bachman (31 Hun, 49) and Lafond v. Deems (81 N. Y., 508), cited by defendants, are not parallel cases. Those were actions between voluntary associations and members, involving the construction and validity of by-laws of the association and the regularity of its proceedings, and it was held that before a member could maintain an action he must exhaust his remedy by appeal within the association. In this case plaintiff has been suspended, has ceased to be a member of the organization, and hence cannot appeal. It cannot appeal, because on the only question involved between it and defendants the appellate tribunal has already decided against it — has decided that plaintiff is not the owner of the note in suit.

This view of the case disposes of the greater part of the exceptions of defendants to the findings of the referee and refusals to find. The exceptions of defendants we do not deem important or that the evidence received or excluded could have affected the result. We think there was no defense to the action. The defendants, for value, gave their note to the plaintiff, who then became and ever since has been the owner thereof and is entitled to recover.

The judgment should be affirmed, with costs.

Learned, P. J., and Landon, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: LaudoN, J.:

license: Public Domain

text:
    ROBERT S. COLEMAN, Respondent, v. MICHAEL BRESNAHAM, Appellant.

      Covenant against acts done or suffered, by the grantor —right of the grantee, as against his grantor claiming possession, under a purchase made at a sale under a judgment against such grantor — conveyance to husband and wife — rights acquired under a sale under execution of the husband’s interest.

    In an action of ejectment to recover land, which the defendant was admitted to be in possession of, the plaintiff claimed title under a deed executed by the defendant and his wife to William Coleman, dated August 2, 1880, at the date of which deed the defendant and his wife were seized of the premises in entirety by virtue of a deed to both of them. William Coleman died April 1, 1881, and under his will and a conveyance from his widow plaintiff succeeded to his title.
    The deed given by. defendant and wife to William Coleman contained no covenants of warranty of title, but did contain a covenant that the grantors, the defendant and his wife, or “either of them, have not made, done, committed, executed or suffered any act, or acts, thing or things whatsoever, whereby, or by means whereof, the above mentioned or described premises, or any part or parcel thereof, now are, or at any time hereafter shall or may be, impeached, charged or incumbered in any manner or way whatsoever,” except in respect to two mortgages not material to the present issue.
    Prior to the time of the execution of this deed a judgment had been recovered against the defendant by Peck and Byrne, which was a general lien on the’ premises at the time of the execution and delivery of the deed. Under an execution issued upon this judgment in 1883, the sheriff sold the defendant’s interest in the premises to Peck and Byrne, who, on September 8, 1884, gave a deed thereof to the defendant, who claimed title thereunder in this action.

      Held, that as the defendant and his wife were both seized of the entirety of the premises, the husband was, at the time of the creation of the judgment lien, vested with the right to occupy and enjoy'the profits of the land so owned during the joint lives of both husband and wife.
    That the sheriff’s deed conveyed to Peck and Byrne the right to the possession of the land so long as the husband should live, and that the subsequent deed of Peck and Byrne’s conveyed to the husband whatever title they had.

      The defendant claimed that the covenant against incumbrances was not a warranty of title upon the ground that the covenant contained in the deed was a personal one, not running with the land, broken, if at all, the instant it was made and giving to the covenantee a right of action which was not assignable and did not pass to the grantee or devisee of the covenantee, and that such grantee or devisee could not maintain an action upon it.

      Held, that since the passage of section 1910 of the Code of Civil Procedure, making such right of action assignable, a disposition had been shown to repudiate the ancient rule and to permit the grantee of the covenantee, if he suffers from a breach thereof, to resort to the covenant for protection and redress.
    was to the benefit of the covenant it was practically good for nothing, and that equity, for the advancement of justice, repudiates the distinction between covenants which do and those which do not run with the land.
    That the covenant was with the grantee, “ his heirs and assigns,” and that this showed that the intention of the parties was prospective and beneficial to William Coleman’s privies in estate.

      Plmnix Insurance Company v. Continental Insurance Company (87 N. Y., 4.00) followed.
    That the defendant was estopped to assert against the plaintiff any title in himself based upon the judgment.
    • Appeal by tbe defendant from a judgment entered upon a verdict directed by the court in favor of tbe plaintiff at tbe 'Washington County Circuit, entered in tbe office of tbe clerk of Washington county on tbe 12th day of February, 1889.

      James O. Rogers, for tbe appellant.

      Young c& Kellogg, for tbe respondent.
   LaudoN, J.:

ejectment to recover ten and one-half acres of land of which tbe defendant admits be is in possession. The plaintiff claims title under a deed from tbe defendant and bis wife to William Coleman, dated August 2, 1880. At tbe date of tbe execution of this deed tbe defendant and bis wife were seized of tbe premises in entirety by virtue of a deed to both of them, as husband and wife. William Coleman died April 1, 1S8!, and under his will and a conveyance from bis widow, tbe plaintiff has succeeded to the title of William Coleman. Tbe plaintiff is entitled to recover, unless a defense under the facts, now to be stated, is established. The deed given by defendant. and wife to William Coleman contained no covenants of warranty of title, but did contain a covenant that the grantors, the defendant and his wife, “nor either of them, have not made, done, committed, executed or suffered any act, or acts, thing or things whatsoever, whereby or by means whereof the above mentioned or described premises, or any part or parcel thereof now are or. at any time hereafter shall or may be impeached, charged or incumbered in any manner or way whatsoever,” except with respect to two mortgages not material to the present issue. There was then existing a judgment against this defendant in favor of Peck and Byrne, which was a general lien upon his interest in the premises. Peck and Byrne subsequently caused execution to bo issued upon the judgment, and under it the sheriff duly sold the defendant’s interest in the premises to Peck and Byrne, and on November 1, 1883, he gave them a deed thereof. On September 8, 1884, Peck and Byrne gave a deed'of the same premises to the defendant. The defendant claims title under the latter deed. The trial court held that he was estopped by his covenant in the deed to William Coleman to assert a title under a judgment which he, in effect, had covenanted did not exist.

As the defendant and his wife were both seized of the entirety of the premises, the husband was vested with the right to occupy and enjoy the profits of the land as owner, during the joint lives of both husband and wife, at the time that the lien of Peck and Byrne’s judgment against the husband attached, and hence the sheriff’s deed under the execution upon that judgment conveyed to Peck and Byrne the right to the possession of the premises so long as the husband should live. (Beach v. Hollister, 3 Hun, 519; Bertles v. Nunan, 92 N. Y., 152; Zorntlein v. Bram, 100 id., 12; Bram v. Bram, 34 Hun, 487.) Peck and Byrne’s subsequent deed to defendant conveyed to him whatever title they had. The defendant thus made good his defense, unless he is estopped by the covenant in the deed to William Coleman. This covenant is against incumbrances, not of warranty of title. Under the law as it formerly was understood this covenant was a personal one, not running with the land, but broken the instant it was made, thus vesting in the covenantee a chose in action which was not. assignable, and, therefore, did not pass to his grantee or devisee; the grantee could maintain no action upon it, and could not assert it by way of estoppel, since be bad acquired no interest in it. (2 Kent’s Com., 471; Greenby v. Wilcocks, 2 Johns., 1; Hamilton v. Wilson, 4 Johns., 72; 2 Wait’s Ac. and Def., 380.)

The injustice of this rule was pointed out by Livingston, J., in Greenby v. Wilcocks, and by Wilde, J., in Sprague v. Baker (17 Mass., 589). Buller, J., in Master v. Miller (4 D. & E., 340), thought it very questionable. The rule has recently been reaffirmed in Massachusetts (Ladd v. Noyes, 137 Mass., 151), and in Virginia (Marbury v. Thornton, 1 S. E. Rep., 909). Since the statute has made such choses in action assignable (Code Civil Pro., § 1910 [old Code § 111]), a disposition has been shown to repudiate the ancient rule, and to permit the grantee or devisee of the covenantee, if he suffers from the breach of the covenant, to resort to the covenant for protection and redress. (Boyd v. Belmont, 58 How. Pr., 513; Ernst v. Parsons, 54 id., 163; Andrews v. Appel, 22 Hun, 429; Colby v. Osgood, 29 Barb., 339.)

The present case illustrates the injustice of the former rule. Although the covenant was broken the instant the deed was given, William Coleman the grantee suffered only nominal damages and could have recovered no more. (Delavergne v. Norris, 7 Johns., 358.) The real damage was done, if at all, when Peck and Byrne sold the land under their judgment, that is, after the title became vested in the plaintiff. If William Coleman’s executors had brought an action they could not have recovered any more than their testator could. Hnless the plaintiff takes the benefit of the covenant, it is practically good for nothing. Equity for the purposes of justice repudiates the distinction between covenants which, do and do not run with the land. (Trustees v. Lynch, 70 N. Y., 440, 449.) The covenant was with the grantee ‘“'his heirs and assigns,” thus, in the intention of the parties, being prospective and beneficial to William Coleman’s privies in estate. (Phœnix Ins. Co. v. Continental Ins. Co., 87 N. Y., 400.)

It may be true that no part of the cause of action for the nominal damages recoverable by William Coleman for covenant broken descended to the plaintiff, but the plaintiff is within the meaning of the “ heirs and assigns ” with whom the defendant also covenanted, and is the only person whom the convenant can protect or a breach of it injure. We think the plaintiff can avail himself of the covenant. It follows that the defendant is estopped to assert against the plaintiff any title in himself based upon the judgment. (Holcomb v. Holcomb, 2 Barb., 20; Sparrow v. Kingman, 1 N. Y., 242.)

It is suggested that estoppel may avail to prevent the defendant from asserting title in himself, but as the plaintiff must recover upon the strength of liis own title, and the fact being that Peck and Byrnes divested him of it by the paramount force of their judgment, estoppel cannot revest title in him. The contest is now solely between plaintiff and defendant. The defendant is estopped to avail himself of any advantage under that judgment to the prejudice of plaintiff. Peck and Byrne’s title rests upon that judgment; the defendant cannot allege that such a judgment ever existed ; he cannot allege title in Peck and Byrnes without alleging the judgment ; he is, therefore, silenced with respect to that title, and hence has and can make no defense to the plaintiff’s title. Unless the estoppel has this effect, it is not an estoppel. We have examined the other questions presented and think they were correctly disposed of by the trial court.

The judgment should be affirmed, with costs.

LeaeNed, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


author: LaNDON,. J.:

text:
    LIZZIE MYERS, Appellant, v. THE VILLAGE OF LANSINGBURGH, Respondent.

      Venue — affidavits used on a motion to change.

    Upon an appeal from an order changing the place of trial it appeared that the moving affidavit did not show what information the affiant had which enabled him to state that the several persons named as necessary witnesses would he able to testify to the facts set forth in the affidavit.

      Held, that the claim made by the appellant, that this omission was a fatal defect, could not bemaintained.
    That the old rule intimated in the case of Kelly v. Maltham (3 W. Dig., 178) was more stringent than that now exacted, as was decided in the case of Carpenters. Continental Insurance Company (81 Hun, 78).
    That the requisite formalities specified in the latter case (including an affidavit of merits) being observed, the main test of such a motion was, what does sound discretion require ?
    That where good faith is not obvious a critical inspection of the affidavits may test the good faith in which they are made.

      Appeal from an order made at Special Term, held in Albany county, which was entered in the office of the clerk of Albany county, on July 2, 1888, changing the place of trial of this action from the county of Albany to the county of Rensselaer.

      Doyle <& Fitts, for the appellant.

      A. C. Comstoo7c, for the respondent.
   LaNDON,. J.:

Upon the merits the order appealed from appears to be right. The moving affidavit does not show how the affiant was able to state that the several persons named as necessary witnesses could testify as set forth in the affidavit, and the appellant insists that under Kelly v. Maltham (2 Week. Dig., 173) this omission is a fatal defect. The rule intimated in the case cited is more stringent than we usually exact. (Carpenter v. Continental Ins. Co., 31 Hun, 78.)

The requisite formalities as specified in the case last, cited, including an affidavit of merits, being observed, the main test of such motion is, what does sound discretion require ? Where this is not obvious a critical inspection of the affidavits may test the good faith in which they are made.

A full report of Kelly v. Maltham would probably show that the affidavit criticised was not free from suspicion.

The order should be affirmed, with costs.

Fish, J., concurred; LeaeNed, P. J., taking no part.

Order affirmed, with ten dollars costs and printing disbursements.


author: PutNAm, J.: LaNdoN, J.

text:
    LOUISE F. MARS, Respondent, v. THE PRESIDENT, MANAGERS AND COMPANY OF THE DELAWARE AND HUDSON CANAL COMPANY, Appellant.
    Negligence— learning an engine, with its fre tanked, on a side track, from which it mores onto, and collides with a train on, the main track of the railroad — what act of an employee is not within the scope of his employment — proximate cause of an accident.

    In an action, brought to recover for injuries received by a regular passenger on a railroad train, it was shown that a “ wild-cat engine,” about seven o’clock in the evening, was left standing upon a side track, two tracks east of the main track of the railroad company, with its Are banked, in charge of an employee (McFarland), whose duty it was to keep water in the boiler and take general . charge of it over night. McFarland, about one o’clock in the morning, left the engine standing upon the side track and went north several hundred feet to a switch shanty. While there the engine was moved in some manner, which the evidence did not disclose, south, across several switches, to and upon such main track, and was started north, moving backwards without lights, and with no person upon it, at full speed. It ran about half a mile when a collision took place between it and a passenger train, resulting in the injuries to the passenger complained of. It was claimed that the railroad company, the defendant, was negligent in leaving the engine unattended on the side track.

      Held, that as it appeared that the engine’s fires were banked, and that it could not go on to any main track without passing several switches, that a competent man was placed in charge of it, who left it only after it had stood on the track six hours, that the defendant was not guilty of negligence.
    That the defendant was only liable for omitting to provide against those dangers which might be reasonably expected to occur and such as might be foreseen by ordinary forecast.

      Carpenter v. Boston and Albany Bailroad Company (24 Hun, 108) followed.
    The judge presiding at the trial charged that if the engine was started from where it was placed by some person not in the employ of the defendant, and was sent northward, the defendant was not liable; but that if such act was done by one of the defendant’s employees, though negligently or willfully, the defendant would he liable, and he refused to charge that if the act was done maliciously by one of the defendant’s employees, other than McFarland, the defendant was not liable.

      Held, that as, upon the evidence given, the jury were authorized to find that the engine was moved south to the main track, and then north by some employee of the defendant or other person maliciously, the defendant was entitled to have the jury instructed that if the engine was maliciously started by one of the defendant’s employees, other than McFarland, the defendant was not liable.

      That such an act on the part cf an employee was not within the scope or in the course of his employment.
    The plaintiff contended that, conceding that the engine was moved maliciously by an employee of the defendant or other person,.that the negligent act of the defendant in leaving, where it was, a dangerous machine with fire in it, without an attendant, was one of the concurring or proximate causes of the injury to the plaintiff, who was consequently entitled to recover.
    Held, that the injury to the plaintiff, to recover for which this action was brought, was not caused by the negligence of the defendant in leaving its engine on the sidetrack, as the injury was not the natural or ordinary result of such an act and could not have been foreseen.
    Cases bearing upon this subject collated, considered and distinguished by Putnam, J.; Landon, J., dissenting.
    Appeal by the defendant from’ a judgment in favor of the plaintiff entered, upon the verdict of a jury for $400, rendered at the Albany Circuit, in the office of the clerk of Albany county on March 28, 1888.

      JSdwvn Young, for the appellant.

      JEckovn Countryman, for the respondent.
   PutNAm, J.:

Plaintiff, while lawfully on a regular passenger train of defendant, on May 20, 1884, was injured by its collision with a “wild-cat” engine. The wild-cat engine was left that evening about 1 o’clock standing upon a side track, two tracks east of the down main track, upon which the collision occurred, with its fire banked, in charge of an employee (one McFarland) whose duty it was to keep water in the boiler and take general charge of it over night. About one A. M., McFarland left the engine standing upon said side track and went north several hundred feet to a switch shanty. "While there the engine was moved in some way across several' switches upon the south-bound main track, and the engine started north, backward, without lights and with no person upon it, at full speed. It ran about half a mile and collided with the train in question.

The action is founded on the defendant’s alleged negligence in leaving its engine unattended on a side track, and it is claimed that such negligence caused the injury to plaintiff for which the action is brought. It is not clear that the act of defendant in leaving its engine on its own premises, with its fire banked and where it could not go on to any main track without passing several switches, with a competent man in charge of it, and wbo appears only to have left it after it had stood six hours, and when not likely to start, was under any circumstances a negligent act. A party is only answerable, as for negligence, for omitting to provide against those dangers which might be reasonably expected to occur, such as might be foreseen by ordinary forecast. (Carpenter Case, 24 Hun, 108.) Could defendant, by ordinary forecast, have foreseen that this •engine would be moved over two or three switches, across an intervening track, on to.the south-bound track and sent flying northward % We, however, in our consideration of the case, assume that the jury were authorized to find that the act of defendant and its servants, in leaving this engine on the track unattended at the time mentioned, was negligence, and hence that if that negligent act was the cause, ■or proximate cause, of the injury to the plaintiff, the verdict given by the jury should be sustained.

The learned judge who presided at the trial charged that, if the •engine was started from where it was placed by the employees of the defendant the night before, by some person not in the employ of defendant, and taken to the main track and sent northward, thus causing the accident, the defendant was not liable; but that if such act was done by one of defendant’s employees, though negligently or willfully, defendant would be liable. And he refused to charge that if the act was done maliciously by one of the defendant’s employees (except McFarland), defendant was not liable.

The evidence in the case was such that the jury could have properly found that the engine was taken from where it had been left, southward, over and across several switches, onto the south-bound track and sent rapidly northward. The freight agent saw it first going north on the main track by the freight depot, which was south of where it stood, during the night. Another witness saw it laboring hard and coming from the south. We are not ■aware that there is any contradiction of this testimony, and hence it may, perhaps, be deemed established that the engine was taken south to the main track and then turned and sent northward. But, at least, there was such evidence given that the jury could have properly so found. The probabilities are that the engine, which had stood there six hours safely, would not then have started itself, and moving over several switches, onto the main track, have gone northward. If the engine went south to the main track and then turned north, it follows that the engine must have been so moved by some human agency. It did not appear, nor was there any evidence to indicate, whether the act was done by an employee of defendant or other person. The act, by whomever done, was. a wicked, malicious and criminal act, subjecting the offender to criminal punishment. The engine was put in charge of McFarland,, and it is conceded that he did not set it in motion. Whoever did put the engine on the south-bound track and start it north, whether an employee or not, did an act in violation of the rules of the company without authority (because McFarland only had, at that time, authority over the engine), and if an employee not in the discharge of, or in the line of, his duty as employee, but outside of it.

The general rule is well settled that if a servant misconducts himself in the course of his employment, his acts are the acts of his master, who must answer for them, even if the acts are willful and malicious. But if a servant goes outside of his employment, and without regard to his service, acting with malice or in order to effect some purpose of his own, wantonly causes damage to another the master is not liable. (Mott v. Consumers' Ice Co., 73 N. Y., 547, 548; Rounds v. Del. Lack. and W. R. R. Co., 64 id., 136; Isaacs v. Third Am. R. R. Co., 47 id., 122.) If an employee of defendant moved the engine, he was not acting for defendant he was not doing an act within his employment, or that he had a right to do, but he was committing a most heinous crime. As to that the relation of master and servant did not exist between defendant and him. Hence we think that, assuming the engine' was moved by some person from where it was placed by defendant, such act -was a theft of the engine, a criminal act, and, whether done by an employee of defendant or other person, the defendant is not responsible therefor. The person committing such a crime did not, in doing it, act as the agent of defendant. If the injury sued for was caused by said act, the defendant is not liable therefor.

We think, therefore, that as it appeared, or the jury were authorized to find, that the engine was moved south to the main track, and then north, by some employee of defendant or other person maliciously, the defendant was entitled to have the jury instructed that, if tbe engine was maliciously started by one of defendant’s employees, other than McFarland, the defendant was not liable. Also, that the •exception to the charge of the judge to the jury, that if the person who committed the act was an employee of the company, whether the act was done carelessly or willfully, the defendant was not relieved of liability, was well taken, and hence that there should be a new trial unless the position taken by plaintiff, and next considered, is correct.

The plaintiff contends that, conceding the engine was moved maliciously by an employee of the defendant or other person, yet the negligent act of the defendant in leaving where it was, a dangerous machine with fire in it, and without an attendant, was one of the concurring or proximate causes of the injury to the plaintiff, and hence that plaintiff was entitled to recover.

In Williams v. Delaware Lackawanna and Western Railroad Company (39 Hun, 434) it is stated that “ to entitle the plaintiff to recover upon the ground that defendant was guilty of negligence, in not furnishing a sufficient number of brakemen, it was incumbent on the plaintiff to show that his injury was the result of such negligence; that it was the natural and probable consequence of the defendant’s omission, and that the accident would not have happened but for such omission.” Wharton says: “ Supposing that if it had not been for the intervention of a responsible third party, the defendant’s negligence would have produced no damage to the plaintiff. Is the defendant liable to the plaintiff ? This question must be answered in the negative, for the general reason that causal connection between negligence and damage is broken by the interposition of independent responsible human action.” ("Wharton’s Law of Negligence, § 134.) The negligent act which is the proximate cause of the injury is an act which naturally and probably would produce it. (Kerrigan v. Hart, 40 Hun, 390, 391; Williams Case, supra; Ryan v. N. Y. C. R. R. Co., 35 N. Y., 210; Lowery v. Manhattan Ry. Co., 99 id., 158; Pollett v. Long, 56 id., 200; Hofnagle v. N. Y. C. and H. R. R. R. Co., 55 id., 608.) That is, where the negligent act is the cause of the injury and where there is no intervening agency affecting or changing the operation of the primal cause. (Reiper v. Nichols, 31 Hun, 495.)

The injury to plaintiff, for which this action is brought, was not caused by the neglect of the defendant in leaving its car on the track. The injury was not the natural or ordinary result of such an act. It could not have been foreseen. Between the alleged negligence of defendant and the accident intervened a willful, malicious and criminal act of a third person, which caused the injury and broke the connection between defendant’s negligence and the accident. In fact, some person stole defendant’s engine and sent it Hying up the track, and this wicked criminal act was the cause of the injury to the plaintiff, and defendant’s act in leaving the engine where the criminal could start it was in no sense the proximate cause of the injury, or an act which ordinarily or naturally could have produced it.

Plaintiff has called our attention to a large number of cases bearing on the question discussed. ¥e have examined those cases and do not think that any of them are quite parallel to this case. None of them held that where, between the negligent act and the injury, there intervened a willful, malicious and criminal act, which was the immediate cause of the injury, and where the injury was not the ordinary or probable result- of the negligence complained of, and could not have been foreseen, that such negligence is the proximate-cause of the injury.

In the cases cited by plaintiff it will be found that the injury was-the natural, probable or direct result of the negligent act. In the Cohen Case (113 N. Y., 532) the injury was the direct result, of the wrongful act of the city of New York, in allowing a person to keep a nuisance in the street. In Lane v. Atlantic Works (111 Mass., 136) the court put the decision on the ground “ that the original negligence still remains a culpable and direct cause of the injury. The test is to be found in the probable injurious consequences which were to be anticipated. In Illidge v. Goodwin (5 Carr. & P., 190) a horse and cart were left in the street without an attendant. A wrongdoer struck the horse, started him, and he did the injury complained of. But a horse standing in the street is liable to run away. It may become restless or frightened, or be started by a wrong-doer. The injury in that case was the natural and ordinary consequence of the neglect shown and should have been foreseen. That case is very briefly reported. It does not appear whether the striking of the horse was merely a negligent striking or a willful act. If in that case some one bad taken the reins and driven the cart into another street, and started the horse on a run against another wagon on that street, the case would have been more like this.

The case before us (assuming that some person maliciously started the engine) might be deemed like that of a man who negligently left a loaded gun on his premises, accessible to the public, which some one took and with it injured another. Would the owner of the gun be liable for the injury ? In Binford v. Johnston (82 Ind. 428) it was held that the fact that some agency intervened between the original negligence and the injury, did not preclude a recovery if the injury was the natural and probable result of the original wrong. In the Lowery Case (99 N. Y., 163) it was held, although the act of the driver intervened between the negligence of the defendant and the injury, that the act of the driver, in view of the exigencies of the case, whether prudent or otherwise, may well be considered as a continuation of the original act which was caused by the neglect of defendant. In the “ Squib ” case the intermediate parties were held to have acted mechanically in a sudden, convulsive act, so that the injury was in fact deemed, caused by the original negligent act of the defendant. So we think that all the cases cited by the plaintiff will be found to differ from the ease we are considering in the regard above suggested.

We think there should be a new trial. If such a state of facte appear on the retrial that the jury would be authorized to find that the engine started itself j without being set in motion by any human agency, found its way on to the main track and thus caused the accident, we think the case would properly be submitted to the jury. Should it appear, however, that some wrong-doer criminally placed the engine on the south-bound track and started it northward, we are of the opinion that the defendant could not be held liable. In that case defendant could not be deemed negligent as to the plaintiff.

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

LeaeNed, P. J"., concurred.

LaNdoN, J.

(dissenting):

The ease of Lane v. Atlantic Works (111 Mass., 136), states very clearly the propositions governing this case. The injury must be tbe direct result of tbe misconduct charged, but it will not be considered too remote if, according to the usual experience of mankind, the result ought to have been apprehended. The act of a third person, intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrong-doer, if such act ought to have been foreseen. Practical knowledge and experience are required for the determination of the question whether some such injurious interference and result ought to have been apprehended, and the verdict of the jury usually determines this question. Here the jury have answered the questions involved as follows: When the engine was abandoned it was reasonable to apprehend that some weak or wicked person would be tempted to set it in motion. A jury of railroad superintendents would probably concur in that conclusion. If thus set in motion, injury was to be apprehended to whatever persons or property might then happen to be exposed. The plaintiff was exposed and, therefore, injured.

I advise an affirmance of the judgment.

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


author: Per Curiam:

text:
    STEPHEN HALLOCK, Respondent, v. BENJAMIN F. VAN CAMP, Appellant, Impleaded with STEPHEN D. SKINNER.

      Attachment — affidavits wed in other applications may be wed,— amendment of the writ of attachment by inserting a reference therein to such affidavits.

    It is proper, in support of an order for the issuing of an attachment, to present to the judge making the order original affidavits which have been used in previous applications made to the same judge on the same day for attachments against the same defendant, in cases where other parties were the plaintiffs, for the purpose of supporting the charge that the defendant has departed from the State. On proof by affidavit identifying certain papers, and stating that they were read upon the application for the attachment, an order may properly be made allowing the writ of attachment to be amended by making specific reference therein to such papers so identified.
    Appeal by the defendant from an order made at the Monroe Special Term, and entered in the office of the clerk of the county of Orleans on March 1, 1889, denying a motion to vacate an attachment based upon th'e papers upon which the attachment against property of the defendant was granted.
    Upon the hearing of the motion to vacate the attachment the plaintiffs’ counsel moved that the warrant of attachment be amended by adding thereto a reference to certain affidavits used in other proceedings on the same day, instituted by other plaintiffs against the same defendant before the' same judge, read in support of this motion. The plaintiff produced and offered to read an affidavit to show that such affidavits were considered upon the application for the granting of the attachment. Such affidavit was received in support of the motion, and the motion to amend the attachment was granted.

      Charles A. Keeler, for the appellant.

      John Cv/nneen, for the respondent.
   Per Curiam:

TJpon an attentive reading of all the affidavits we have reached the conclusion that the facts established fairly justified the conclusion that the defendant secretly left his home and departed from the State with an intent to cheat and defraud his creditors, and to avoid the service of a summons. And on this examination of the proofs we have kept in mind and observed the rule, that the statement of a fact by a witness on his oral examination, or by his affidavit in writing, when it appears that his only information is derived from another, proves nothing.

In support of the order allowing the attachment in this case, the plaintiff presented to the county judge, who made the order, original affidavits which had been used in previous applications made the same day for attachments against this defendant in cases where other parties were the plaintiffs, for the purpose of supporting the charge that the defendant had departed from the State. This practice is permissible in cases where the application is made before the same officer at a time so near to the time when the previous applications were made. (Mojarrieta v. Saenz, 80 N. Y., 547; Barnard v. Heydrick, 49 Barb., 62; Langston v. Wetherell, 14 Mees. & W., 104; Colver v. Van Valen, 6 How. Pr., 102.)

On the hearing of the motion an order was made allowing the writ of attachment to be amended by making specific reference to the affidavits which were presented and read to the county judge for the attachment. We do not discover in this any error; at most, it was a mere irregularity which certainly could not vitiate the attachment. The affidavit read by the plaintiff, indicating the papers that were read before tbe county judge, was not new proof upon the merits, and was properly received for the purpose of identifying the papers upon which the attachment was allowed.

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

Present — Barker, P. J., and Dwight, J.; Macomber, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.


author: Barker, P. J.:

text:
    COURTLAND L. HUNGERFORD, Respondent, v. HANNAH M. BENT, Appellant.

      Landlord and tenant — injury occasioned by a defective hoisting apparatus attached to the building by a former tenant — liability of the landlord.

    An action was brought to recover damages for personal injuries sustained by the falling of a hoisting apparatus attached to the roof of a building, the upper floor of which was used as an opera-house. The hoisting apparatus was used for the sole purpose of lifting the baggage of showmen and performers to the opera-house floor. It was constructed by laying a plank six feet long on the roof, which projected eighteen inches over the cornice of the building, with a hook fastened in the projecting end, to which was attached an iron pulley and tackling. On the other end of the plank, which was not otherwise fastened, there was placed a keg filled with brick. While this hoisting apparatus was in use it fell from the roof and severely injured the plaintiff in the action who was standing in the street.
    The stores and rooms in the building were rented to and were in the possession of different tenants, and the rooms used as an opera-house were leased by the owner of the building to one Gates. The hoisting apparatus had been erected by a previous tenant, while the rooms used for the opera-house were under a similar lease to him, with the express consent of the owner.
    In an action brought against the owner to recover for the damages sustained by reason of the falling of this hoisting apparatus:

      Held, that as the demised premises were rented to the present tenant, when in an unsafe and insecure condition to the knowledge of the owner, the owner was liable to one of the public injured in consequence of the premises being in such dangerous condition, although he was not in the actual possession thereof at the time of the happening of the accident.
    Appeal by the defendant from a judgment in favor of the plaintiff, entered, upon the verdict of a jury for $1,800, rendered at the Orleans Circuit, in the office of the clerk of the county of Orleans on the 12th day of October, 1888.

      Edrrmmd L. Pitts, for the appellant.

      Whedon ds Ryan, for the respondent.
   Barker, P. J.:

This action is to recover damages for personal injuries which the plaintiff received by reason of the fall of a hoisting apparatus attached to the roof of a building owned by the defendant. The building is located in the business part of the village of Medina and is three stories high. The ground floor is divided and used as stores and the second story for business offices and the third as an opera-house. The roof of the building is nearly flat, and the attic over the opera-room is about five feet high and unoccupied, except that a portion of the machinery used to move the curtains on the stage in the room below is operated therein. ■ The rooms occupied as the opera-house are reached by stairways ascending from the street. The hoisting apparatus mentioned was used-for the sole purpose of lifting the baggage of showmen and performers'from the street to the floor of the opera-house and was received through an outside window. The front wall of the building was on the line of the street and the cornice projected over the sidewalk about two feet. The contrivance for hoisting was constructed by laying a plank, six feet long, six inches wide and two inches thick, flat on the roof, which projected over the cornice eighteen inches, with a hook fastened in the projecting end to which was attached an iron pulley, ropes and tackling. The plank was kept in position by placing on the other end thereof a keg filled with brick and loose brick laid on the plank, and was not otherwise fastened. On the 5th day of November, 1887, while the tackling was being used to lift baggage up to the opera-house, it fell from the roof of the building and struck the plaintiff, who was standing in the street, and severely and permanently injured him. He was without fault on his part.

The foregoing facts are stated in the bill of exceptions, wherein it is also stated that there was evidence tending to show “ that the appliances for securing the hoisting apparatus on the roof was defective, and that it fell because of said defects and injured the plaintiff.” Tlie bill also states that “ previous to the erection of the hoisting apparatus and all the time during its continuance, there was an ordinance of the village of Medina, an incorporated village under the laws of the State of New York, prohibiting, under a penalty, the erecting or constructing the erection of anything projecting into or over the highways of said village.”

At the conclusion of all the evidence the defendant claimed that the plaintiff -was not entitled to recover for the reason that when the in jury occurred to the plaintiff she was notin possession of the opera-house ; that it was under lease to a tenant, and the same was in the possession and occupation of the tenant, and requested the court to direct a verdict for the defendant on that ground, which was refused, and the defendant excepted. The bill presents for review this single exception, all others being waived. All the stores and other rooms in the building had been rented and were in the possession of the tenants, but on what terms is not disclosed. At the time of the accident the rooms used as an operarhouse were leased by the defendant to one Gates for one year, for the rental of nine dollars for each and every entertainment given in the rooms. The tenant promised to keep the stairway clean and clear and the windows closed, and to take care of the hall in a careful manner, and in the winter season to remove the snow from the roof so as not to injure the same. The defendant did not agree to make any repairs on the demised premises. The hoisting apparatus was erected in 1881, while the same rooms were under a similar lease to a previous tenant, with the express consent on the part of the defendant that the lessee might construct the same, the lessee paying all expenses. The defendant was fully informed long before the accident as to the mode and manner the hoist was constructed and held in position. The lease under which the tenant occupied was executed two months before the plaintiff was injured. This statement includes every material fact set forth in the bill of exceptions or which the evidence tended to prove.

On the case as made by tne plaintiff, most careful and prudent men would say, as we think, that the apparatus, when in use, was insecure and unsafe and liable to fall and injure persons passing along the sidewalks in front of the building. It was not safely and securely attached to the roof or cornice. The cornice was the fulcrum, and whenever the weight of the goods to be hoisted was greater than the weight applied to the plank, the structure would, of necessity, give way and be pulled down to the sidewalk. It was not for the court to hold that it was in a safe and secure condition at the time the defendant made the lease, which was in force when the accident happened. Although the charge to the jury is not a necessary part of the bill of exceptions, it is set out in full therein; and by the instructions given to the jury the plaintiff’s right to recover was made to depend upon the fact whether the apjiaratus was in an unsafe land insecure condition at the time the lease was executed.

The fact being established that the apparatus was in an insecure and dangerous condition when the possession of the opera-house was surrendered by the defendant to her tenant, her liability cannot be doubted. It is settled in this State that if the owner of premises demises them for a rent to be paid when they are in an unsafe and insecure condition, to his knowledge, he is hable to any one of the public who may be injured in their person or projierty in consequence of such premises being in a dangerous condition, although he is not in the actual possession thereof at the time the injury happened. This precise proposition has been repeatedly affirmed, and is no longer open for discussion. Edwards v. New York and Harlem Railroad Company (98 N. Y., 247); Ahern v. Steele et al. (26 N. Y. St. Rep., 295), decided by the Court of Appeals in October of this year, and not reported in the regular series, is very instructive on this subject. (See, also, Albert v. State, 66 Md., 325; Nugent v. B. C. and M. R. Co., 80 Me., 62; Joyce v. Martin, 15 R. I., 558.) This one view of the case fixes the defendant’s liability and renders it unnecessary to consider whether her liability may not be placed upon another ground disclosed by the bill of exceptions. The suggestion is this, that the defendant did not lease nor surrender up to the lessee of the opera-house or t,o any of her other tenants the entire control of the roof of the building on which the structure was placed and allowed to remain, but that she continued, as a matter of fact, in the possession and control of the same.

If this conclusion can be fairly drawn from the facts stated in the bill of exceptions, then the defendant would be liable if the apparatus was insecure and unsafe, as it was used with her permission by one of her tenants without the consent of the municipal authorities, but we place our decision on the ground first stated.

Decision affirmed.

Dwight and Macomber, JJ., concurred.

Judgment affirmed.


text:
    In the Matter of Proving the Will of JOHN McCARTHY, Deceased.

      Evidence by the subscribing witness to a will as to the mental condition of the testator— when incompetent— not competent on cross-examination to test the intelligence of the witness — communications between attorney and client in the presence of others, not privileged.

    In proceedings for the prohate of a will, a subscribing witness to the will was ashed, on his cross-examination, the following question: “Do you think he had mind sufficient, at the time he is alleged to have executed that will, to give those specific directions with reference to the disposition of that property to Mr. Nicholas ? ” which was answered, under objection: “ I do not think he was; I do not think he had; I knew nothing about the contents of the will at the time I witnessed it; I only knew it was a will from what Mr. Nicholas said.”

      Held, that as the direct-examination of the witness had shown that he was a layman and a man of very limited education, and as the inquiry embraced in the question covered the whole issue as to testamentary capacity, and the answer of the witness expressed his opinion on the only question in dispute, that the evidence was incompetent.
    That, as the question was not limited to an inquiry as to the opinion of the witness in regard to the sanity of the testator at the time of the execution of the will, the evidence was not rendered competent by the fact that the witness was a subscribing witness to the will.

      Hewlett v. Wood (55 N. Y., 634); Olapp v. Fullerton (34 id., 190); Matter of For-man’s Will (54 Barb., 274) distinguished.
    That, as the witness, on his direct-examination, had only stated facts which came within his observation, and expressed no opinion that the testator was of sound mind, this cross-examination was not proper for the purpose of ascertaining the degree of intelligence possessed by the witness in order to enable the court to determine the reliance which should he placed on his evidence given on his direct-examination.
    The counsel who prepared the will at the home of the decedent on the day that it was executed, all the members of the family being aware that he was there for that purpose, stated that he had a conversation with the testator in the presence of the subscribing witnesses. This conversation the proponents offered to prove,

      but it was objected to as incompetent under section 835 of the Code of Civil Procedure, and the objection was sustained.

      Held, that in order to bring a case within this section of the statute, it must appear that the communication was confidential, and was made to one acting in the capacity of an attorney or counsel; that the communication made by a client to his counsel in the presence of ■ third parties, whether they are strangers or not to the subject-matter of the communication, might be testified to by the counsel.
    That this evidence should have been admitted.
    Appeal by James McCarthy and others, legatees and devisees named in the last will of John McCarthy, deceased, and by O. J. Cammann Rose, executor named in said will, from a decree made at the Surrogate’s Court in Ontario county, entered in said court on the 3d day of May, 1889, in proceedings relating to the probate of the will of John McCarthy, deceased, by which decree it was adjudged that the said John McCarthy, at the time of the alleged execution of the instrument offered for probate, was not competent to execute the same.
    The instrument propounded as his last will and testament was dated on the 22d day of November, 1888. The will disposed of all the estate of the testator, which consisted of real and personal property. He left him surviving his widow and one daughter. The latter his only heir-at-law. At the time of his death he was eighty-four years old. He bequeathed all his personal property to his widow and devised his real estate to her and his nephews, making no provision whatever for his daughter. It is not disclosed in the case what was the value of his property, either real or personal, nor the situation in life of his daughter, who was married and living away from his family. His widow is eighty years of age. The px-obate of the will was x-esisted upon the ground, among others, that the decedent did not possess testamentaxy capacity. Upon that ground alone the sxxrrogate based his decree. The devisees other than the widow and the executor, are the appellants.

      John E. Beam, for the appellants.

      JD. B. Backenstose, for the respondents.
   Barker, P. J.:

The subscribing witnesses were Patxick Mulcahy and Patrick H. Mulcahy, father and son, who were both called and examined as witnesses on the hearing, and their evidence proved the formal execution of the will in compliance with all the requirements of the statute. One of them, Patrick H., was asked by the counsel for the proponents this question: What can you say as to the competency of Mr. McCarthy to make a will? Which the witness answered by saying: “ Well, sir, I .could not say.” He was then asked: What can you say as to whether he was of sound mind or not ? To this he answered: “ I do not know, sir. I do not know whether he understood what was said to him or not, but he seemed to answer all right. He answered the questions put to him all right; if he was asked to do anything he did it. Mr. McCarthy was not under any restraint that I know of. I don’t know whether he acted voluntarily or not. No one made him do what he did as I know of. He wrote his name. I suppose he did that voluntarily.” This is the material part of the witness’ evidence as given on his direct-examination as to the mental condition of the testator at the time of the execution .of the will.

On his cross-examination the counsel for the contestants asked the witness this question: £> Do you think he had mind sufficient at the time he is alleged to have executed that will to give those specific directions with reference to the disposition of that property to Mr. Nicholas ? ” This was objected to as improper and overruled and an exception taken by the proponents, and the witness answered: I don’t think he was; I don’t think he had; I knew nothing about the contents of the will at the time I witnessed it; I only knew it was a will from what Mr. Nicholas said.” We think the question and answer was clearly incompetent. The witness was a layman, and as his evidence discloses that his education was quite limited, the inquiry embraced in the question covered the whole issue on the question of testamentary capacity, and the witness’ answer expressed his opinion on the only question in dispute. The reception of this evidence violates the general rule, that witnesses must state facts' within their knowledge, and not give their opinions or their inrpressions based upon their observations. The inquiry does not come within any of the few exceptions to this rule, one of which is, that those who are skilled in any “ science, art, trade or occupation may not only testify to facts, but are sometimes permitted to give their opinion as experts. This is permitted because such witnesses are supposed, from their experience and study, to have peculiar kn owledge upon the subject of inquiry which jurors generally have not, and are thus supposed to be more capable of drawing conclusions from facts and to pass opinions thereon than jurors generally are presumed to be.” (Ferguson v. Hubbell, 97 N. Y., 507.)

Nor was the witness competent because he was a subscribing witness to give an answer to the question propounded, for the inquiry was not limited to an expression of the opinion of the witness as to the sanity of the testator at the time of the execution of the will so as to bring the case within the rule stated in Hewlett v. Wood (55 N. Y., 634) and Clapp v. Fullerton (34 id. 190). The inquiry was broader aud called for the expression of an opinion by the witness whether the testator had capacity to make the will in question and give instructions to his counsel for its preparation. A person who is non compos mentis cannot make a valid will, however simple its preparation may be; if he is of sound mind and memory, he can make a will disposing of his property, however complicated. In determining the question of testamentary capacity on the part of a testator, in particular instances, whenever the question arises, the inquiry is not, had the testator capacity to make the will in question, but whether he was of sound mind and memory at the time of its execution. (Delafield v. Parish, 25 N. Y., 97.)

The cases to which we have been cited by the learned counsel for the respondents in support of the competency of the question have been examined, and do not, as it appears to us, support his position. In the Matter of Forman's Will (54 Barb., 274) no question was presented as to the rules of evidence, and the matter discussed related to the degree of testamentary capacity necessary to enable a party to make a valid disposition of his property by will. Nor can it be fairly said that the question was competent on cross-examination for the purpose of ascertaining the degree of intelligence possessed by the witness, for the purpose of enabling the court to determine the reliance which should be placed upon his evidence given on his direct examination, for the witness had only stated facts which had come within his observation, and expressed no opinion that the testator was of sound;, mind and memory at the time of the execution of the will.

It is also competent for a party against wliom a witness is called on the cross-examination to so conduct the same as to develop the state of mind of the witness towards the parties; the circum-. stances under which he testifies; his degree of intelligence and discernment ; and the questions which may he propounded for that purpose are largely within the discretion of the court. But, in view of the character of the evidence given by the witness on his direct-examination, we think permitting the question under consideration to be asked and answered was a plain abuse of the discretion which the law vests in the court.

The proponents called as a witness the counsel who prepared the will at the home of the decedent on the day that it was executed, all the members of the family being aware that he was there for that purpose. He testified that the testator requested the subscribing witnesses to act as such, and he gave the conversation which passed between them and the testator relative to the execution of the will, in which, as he says, he took no part. He also stated that he had a conversation with the testator in the presence of the subscribing witnesses, which the proponents offered to prove. This the contestants objected to as incompetent, under section 835 of the Code of Civil Procedure, and the same was sustained and the proponents took an exception. The section reads as follows: An attorney or eounselor-at-law shall not be allowed to disclose a communication, made by his client to him, or his advice given thereon, in the course of his professional employment.” This section is a mere codification of the common-law rule on the subject, as established in this State at the time of its adoption. When and by whom its protection may be invoked must be determined by the circumstances of each case as it arises. It is, however, necessary, in order to bring a case within the rule of the statute, that it should appear that the communication sought to be proved was confidential, and made to one acting in the capacity of attorney or counsel. The general rule deducible from the authorities was formulated and adopted in Britton v. Lorenz (45 N. Y., 51,) as follows: “ That all communications made by a client to his counsel, for the purpose of professional advice or assistance, are privileged, whether such advice relates to a suit pending, one contemplated, or to any other matter proper for such advice or aid; that, where the communications are made in the presence of all the parties to the controversy, they are not privileged, but the evidence is competent between such parties.” .Under this rule it has been uniformly held that a communication made by a client to his counsel in the presence of third parties, whether they were strangers or not to the subject-matter of the communication, are competent. (Coveney v. Tannahill, 1 Hill, 33; Whiting v. Barney, 30 N. Y., 330.)

The circumstance that the conversation sought to be proved was made in the presence of the subscribing witnesses indicates very clearly to our minds that there was no thought on the part of the testator of its being confidential. Whatever may have been said was heard by both of the subscribing witnesses, and either might be compelled, upon the call of any interested party, to prove the conversation which was rejected by the court on the sole ground that the witness by whom it was offered to be proved was the attorney of the party making the communication.

The proponents asked the same witness this question: "Where did you get your instructions from to draw the will ? This was objected to as being in violation of the same provision of the statutes, and the objection was sustained unless the instructions came from some other person than the testator. We are also of the opinion that this ruling was erroneous. It is manifest that this question ivas asked of the witness for the purpose of establishing the fact that he received instructions from the testator to prepare a will containing the provisions set forth in the instrument produced. It seems almost absurd to say that such' instructions were confidential for they were intended to be communicated to his heirs-at-law and legatees and devisees named therein, and to the public whenever, after his death, the will should be offered for probate. If it was competent evidence, as we think it was, it was material to the proponent’s case as bearing upon the question of the condition and strength of the testator’s mind at the time of making the will. It may often happen that a party in conversation with his counsel, for the purpose of making and preparing a will, may communicate many things of a confidential character which the counsel would not be permitted to disclose, but we entertain the opinion that all the instructions received by the - counsel, and all acts of the testator connected with the making and execution of the will which tend to uphold and support the instrument which the testator executed as being his free, voluntary and valid act, may be proved by the person who ássisted him in preparing the will, although at that time he was acting as the legal adviser of the testator. It is a; very common practice, in contests over the validity of wills, to call as witnesses the physicians who attended upon the testator at or about the time the will was executed, for the purpose of proving the testator’s mental condition, and it has never been held, as we are aware, that it was in violation of the provisions of the statute which prohibits a physician from disclosing any information which he acquired in attending a patient in a professional capacity, to relate the conversation which he had with the testator concerning his mental or physical ailments.

It was claimed ,by the executor who offered the will for probate, that he, as one of the personal representatives of the testator named in the will, released the witness from any restraints imposed upon him by the statute, and thus qualified him to testify, if without such permission he would be incompetent. As it is unnecessary in disposing of this appeal to consider that question, we pass it without expressing any opinion on the proposition.

The surrogate did not call upon the contestants to make any proof, and held upon the proponent’s own showing that the will was void, because the testator did not possess testamentary capacity. "We should hesitate to concur with the surrogate upon that question upon the proofs presented by this record, if that question need to be passed upon in disposing of this appeal.

We have concluded, however, to reverse the decree and remit the proceedings to the surrogate of Ontario county for another hearing, that the case may be first adjudicated in that court upon all the legal evidence which the parties may produce. The costs of this appeal to abide the event of the subsequent proceedings in Surrogate’s Court.

Dwight and Macomber, JJ., concurred.

Decree reversed and proceedings remitted to Surrogate’s Court of Ontario county to proceed therein; costs of this appeal to abide the result of further proceedings.


author: Barker, P. J. :

text:
    CLAUDIUS SHATTUCK and LEWIS SHATTUCK, by JAMES F. JOHNSON, as their Guardian ad litem, Respondents, v. GEORGE BASCOM, Appellant.

      Proof required to show that a deed was intended as a mortgage — replevin in the cepit — not maintainable against one in possession of the land.

    In an action, in tlie nature of an action of replevin in the cepit, to recover a quantity of hemlock bark, the question at issue was whether a certain deed, absolute in terms, executed by the defendant to one Coleman, was, as between the parties thereto, intended to be a mortgage.

      Held, that the rule was, that if the proofs were doubtful and unsatisfactory, or there was a failure to overcome the pifeumption arising from the terms of the written instrument by testimony entirely plain and convincing beyond reasonable controversy, the writing would be held to express correctly the intention of the parties.
    It was claimed by the defendant that at the time the timber was got and the bark removed from the premises, he was in possession of the premises, and that for that reason the action could not bo maintained, although the plaintiff might have established a good title to the land as against the defendant.

      Held, that replevin in the cepit only lies where an action for trespass might be brought, and that, as a general rule, an action for an injury to real estate can only be maintained by the party in possession thereof or by the owner of lands which are unoccupied.
    • Appeal by the defendant from a judgment entered in the office of the clerk of Cattaraugus county on the 23 d day of February, 1888, upon the verdict of a jury in an action of replevin, to the effect that the plaintiffs were entitled to the possession of the property described in the complaint, and that the value thereof was $601, and also from an order denying a motion for a new trial, entered in said clerk’s office on the 25th day of March, 1889. At the same time an appeal from an order denying the defendant’s motion for a new trial founded on affidavits, on the ground of surprise, was heard.
    The action was in the nature of an action of replevin in cepit, to recover a quantity of hemlock bark which the defendant cut and removed from the lands, the title to which was in controversy in this suit.

      E. D. Northrwp, for the appellant.

      Gary c& Eumsey, for the respondents.
   Barker, P. J. :

The underlying question in this case is, which of the parties is the owner of the fee of the lands from which the bark in question was removed ? That question has been long in litigation in this court. On the trial now under review, the single question of fact submitted to the jury was, whether a certain deed, absolute in terms, executed by the defendant to one Truman B. Coleman, dated in August, 1865, was, as between the parties thereto, intended to be in the nature of a mortgage given as a security for a debt which the grantor, at that time, owed to the grantee ? When this deed was delivered, the defendant was the owner of the premises in fee simple, having by contract, purchased the same of Nicholas Devereaux, and received a conveyance therefor from his executor as early as the year 1856. After the defendant deeded to Coleman, and in the year 1866, the lands were sold by the comptroller for arrears of taxes for the years 1856, 1858 and 1860, and in 1868, the comptroller executed a deed of the premises to one Marsh, and the plaintiffs claim title under that deed and from no other source. On the trial the defendant challenged the validity of that title and insisted that the proceedings in assessing the property and levying the tax were irregular and void in several particulars, which it is unnecessary to specify in considering the questions presented by this appeal. After the comptroller’s deed was executed and delivered to Marsh, and in the year 1881, Coleman reconveyed the premises to the defendant by a quit-claim deed, and in this controversy he seeks to stand on the title he conveyed to Coleman by said deed in the year 1865.

During the period that Coleman held the title under the deed from the defendant to himself, and after the comptroller’s deed was delivered, he commenced an action in this court against Edwin Shattuck, the father of the plaintiffs, under whom they claim, as his only heirs-at-law, who then, by certain mesne conveyances, held the title conveyed by the comptroller to Marsh, for the purpose of obtaining a decree setting aside the comptroller’s deed, and the subsequent deed to Shattuck as a cloud upon his title, claiming that the tax proceedings and the deed from the comptroller were null and void. By the final judgment in that action, October, 1875, it was held and determined that, as between the parties thereto, the comptroller’s deed and the proceedings upon which it was founded were valid. That case, Colman v. Shattuck, as determined in the Court of Appeals, is reported in 62 New York, 348. On the former trial of this action judgment was rendered in the plaintiff’s favor, which was affirmed by this court, on the ground that by the proofs, it appeared that the tax deed and the proceedings upon which it was founded were valid, supposing that those questions were considered and determined in the action of Colman v. Edwin R. Shattuck. The judgment of this court was reversed on appeal, by the Court of Appeals, on the ground that the proofs disclosed a fatal defect in the tax proceedings, and for that reason the plaintiff failed to establish a title to the premises from which the bark was taken ; and the case is reported in 105 New York, 39. (Shattuck v. Bascom.)

The plaintiff now relies upon the judgment in the action of Colman v. Shattuoh as conclusive evidence, against the defendant that the comptroller’s deed is valid and conveyed all the interest which Coleman had in the premises to the grantee therein named, and that the defendant is estopped from questioning the correctness of that judgment, as lie claims title under Coleman, the party who prosecuted the transaction to a final judgment; and this position is entirely sound, if the deed from the defendant was, as it purports to be, an absolute and unconditional conveyance of the fee.

If, however, the deed was intended to be in the nature of a mortgage to secure a debt, as the defendant now contends, then he was not estopped from questioning the plaintiff’s title and was free to show that the tax proceedings were irregular and illegal and the comptroller’s deed void. On the trial the court ruled that, from the proofs as presented, the tax proceedings and the comptroller’s deed based thereon were, as matter of law, void, and that the defendant was entitled to a verdict if the jury found that the deed from the defendant to Coleman was intended as a mortgage as between those parties ; but if they found that the deed was intended to be an absolute conveyance of the fee of the premises, as it purported upon its face to be, then the plaintiff was entitled to recover. In the former appéal it was held by this court and by the Court of Appeals that if the deed was intended only as a mortgage, that the judgment in the action of Colman v. Shattuck was not binding on the defendant, as Coleman’s deed reconveying the premises to him was, in legal effect, a satisfaction of the mortgage, and nothing more, and was to be 'regarded in disposing of the questions now presented. By this statement of the history of the case it will appear that it was held by the trial court that the tax proceedings and the comptroller’s deed were void as a matter of law and conveyed no title to the grantee named in the comptroller’s deed under whom they claim.

It was not disputed by the defendant as a legal proposition, and the court so ruled, that if the deed to Coleman was absolute, then the judgment in the suit of Coleman v. Shattuck was binding on him, and he could not question the validity of the plaintiff’s title as set up by them, and upon which they relied. The question of fact was submitted to the jury in a clear and intelligent charge, to which the defendant took no exception.

On the appeal from the order denying the defendant’s motion for a new trial, he contends that the verdict was against the weight of evidence. But in view of all the facts and circumstances of the case as disclosed by the record, we cannot concur in that contention; and we think that there is ample evidence to sustain the verdict in view of the well-settled rule which applies in all instances where the grantor of a deed, absolute in terms, seeks to convert it into a mere security for the payment of a debt.

The burden of proof rested upon the defendant to overcome the strong presumption arising from the terms of a written instrument. The rule is that if the proofs are doubtful and unsatisfactory, if there is a failure to overcome this presumption by testimony entirely plain and convincing beyond reasonable controversy, the writing will be held to express correctly .the intention of the parties. A deliberate deed or writing is of too much solemnity to be brushed away by loose or inconclusive proofs. (Howland v. Blake, 97 U. S., 626.) It is true that it is a strong circumstance in the defendant’s favor that, in the deed by Coleman reconveying these premises, the consideration expressed was only one dollar; but he is compelled, in making out this part of his case, to rely largely upon his own evidence, and gives the only direct evidence on that question, and being a party in interest his evidence was subject to criticism, and clearly made a ease for the jury. In verifying his petition in the bankruptcy proceedings he substantially stated upon oath that he was not the owner of, and did not have any interest in these lands. Many of the cases hold that, upon the unsupported evidence of an interested witness, a decree changing a deed, absolute in terms, to be only an instrument for the security of a debt cannot be sustained. In other cases it is held that where the evidence of a party rests chiefly in the evidence of one witness, and that is disputed by a witness equally credible, a case for relief is not made but.

The appellant also contends that at the time the timber was cut and the bark removed from the premises he was in the possession of the same, and for that reason this action cannot be maintained, although it be held that the plaintiffs established a good title against the defendant. The rale is well settled that replevin in the eepit only lies where trespass might have been brought. As a general rule an action for an injury to real estate can only be maintained by a party in possession or by the owner of lands which are unoccupied. (Rich v. Baker, 3 Denio, 79; Stockwell v. Phelps, 34 N. Y., 363.)

The premises were not inclosed and the tract consisted of 150 acres of land. The defendant testified that in 1882, he caused a shanty to be built on the south-west corner of the lot, and that afterwards it was occupied by men whom he had engaged as choppers to remove some of the timber, and that afterwards he rented the shanty to a third person, who had some lands, near by and did at the same time some work for the defendant. It is doubtful whether this evidence would support a finding that at the time the bark was removed that the defendant was in the actual possession of the entire premises. On the former appeal this courtj on evidence of the same general import, held that it was insufficient to permit the conclusion that the defendant was in the actual possession of the premises, of the entire parcel, when the bark was removed. On this trial, the attention of the jury was not called to the question nor was the court asked to submit it to the jury, and it was allowed to be passed without notice being taken of the same; and it is quite evident that both parties were conscious that the question of title to the premises was alone to be litigated, and that, in effect, the rulings of the court were limited to the question whether the deed from the defendant to Coleman was intended to be in the nature of .a mortgage.

Some exceptions were taken by the defendant to the rulings of tbe court in receiving and rejecting evidence, wbich have been examined with attention, and we are unable to discover any error.

The judgment and the order should be affirmed, with costs.

The order denying the defendant’s motion for a new trial on the ground of surprise should also be affirmed on the opinion of Childs, J., which is printed in the record. ¥e may add we have examined the question whether the stipulation made on that former trial was binding on the plaintiffs, and as the defendant made no application to have the trial delayed because he was unable to produce all the evidence which existed in his favor, upon the only question submitted to the consideration of the jury, and as it does not appear that the court made any ruling, whether the alleged stipulation should be read in evidence or not, the order should be affirmed, with ten dollars costs and disbursements.

Dwight and Macomber, JJ., concurred.

Judgment and order appealed from affirmed.