author: Mayiiam, J.:

text:
    JENNIE HOCHSTRASSER, Appellant, v. GEORGE B. MARTIN and ALVIN C. EATON, Respondents.

      Nuisance — decision of board of health — opinion of witness —proof of rental value — permitting a nuisance to exist is a repetition of it.

    In an action brought to restrain the defendants from maintaining a nuisance, and for damages, the plaintiff offered to prove that the health officer of a village, upon being applied to, refused to interfere, and stated that the public had nothing to do with it as it was a matter of private damage. The evidence was excluded.

      Held, that the decision of a board of health, upon an ex pa/rte examination, could not bind the defendants and was incompetent.
    A witness testified that he was a botanic physician; that he had no license to practice, but that his medicine was patented and that he had a right to sell it anywhere. Held, that he was not competent to give, an opinion upon the question whether the smell arising from the defendants’ premises would have a tendency to produce such a sickness as the one from which, it was alleged, the plaintiff’s son had suffered.
    That where the question of rental value is at issue a witness cannot testify as to what the premises would be worth to him, hence he cannot state that because of the filthy condition of the plaintiff’s lien-yard he would not live on the premises if they were given to him.
    The court submitted to the jury the following question: “ Did defendants, by any improper or unreasonable use of their barn lot, cause foul or refuse water drainage to flow on plaintiff’s land so as to depreciate its value?” The plaintiff requested the court to insert the words “or permit” after the word “ cause” in this question, which the court refused to do.

      Held, that it was error for the court to refuse to allow the plaintiff to insert the word “ permit,” thereby withdrawing from the jury the consideration of the view of the case presented thereby.
    That permitting a nuisance to exist, which was created by the person sued for so doing, is a repetition of the nuisance, and is actionable.
    Appeal by tlie plaintiff, Jennie Hochstrasser, from an order denying a motion for a new trial herein, and from a judgment of the Supreme Court, entered in the office of the clerk of the county of Saratoga on the 15th day of November, 1890, dismissing the complaint, with costs, after a tidal at the Saratoga Circuit before the court and a jury.
    The plaintiff prosecuted this action for an alleged nuisance consisting in the act of the defendants in maintaining and using a barn on the lands of the defendant Martin, occupied by the defendant Eaton, from, which, the defendants caused or permitted water used by the defendants in washing wagons on the premises to leak through manure heaps, suffered to accumulate thereon, near to and above the premises of the plaintiff, causing offensive and unwholesome odors upon his premises and in his dwelling. The complaint asked that the defendants be enjoined and restrained from continuing such nuisance, and also demanded judgment for damages.
    The answer was, in substance, a denial, but admitted the ownership and occupancy by the defendants of the premises as set forth in the complaint, and alleged that the barn therein referred to had been upon such premises for over fifty years.
    On the trial, the justice formulated two interrogatories which he submitted to the jury, both of which the jury answered in the negative, as follows: Eirst. Were defendants guilty of any improper or unreasonable use of the premises through which plaintiff was in jured ? Second. Did defendants, by any improper or unreasonable use of their barn lot, cause foul or refuse water drainage to flow on plaintiff’s land so as to depreciate its value. On which findings the defendants moved for judgment, and the court, adopting the findings of the jury, gave judgment for the defendants. The plaintiff moved for a new trial upon the minutes, which was denied, and appealed from the judgment and order denying a motion for a new trial to this court.

      F F. Bullard, for the appellant.

      John Foley, for the respondents.
   Mayiiam, J.:

The appellant insists that the judgment should be reversed on the ground of the rejection of evidence offered by the plaintiff on the trial.

The plaintiff’s husband, while being examined, testified that he made complaint to the board of health. He was then asked this-question: “ What did the board decide in regard to it ? ” This question was objected to by the defendants, and before any ruling was made by the court, the plaintiff made the following offer: Plaintiff offered to prove that the health officer refused to interfere, and stated that the public had nothing to do with it as it was a matter of private damage. The court sustained the objection, and excluded the evidence, to which plaintiff duly excepted.

"We see no error in this ruling by the court. The decision and determination of the board of health upon an ex parte examination, not in the presence of the defendants, could not bind them or affect their interest, and was not competent evidence against them.

It could neither confer a right of action upon the plaintiff, nor deprive the defendants of any ground of defense, and when objected to by the defendants was propei’ly excluded.

Nor do we see that it was error for the court to exclude the opinion of this witness as to the cause of the illness of his son. It was objected to on the ground that that inquiry was not within the questions raised by the pleadings and not proper on the question of damages, and also that the witness was not competent to give the opinion asked for.

"We think the objections well taken on the latter ground. There was an allegation of special damages for sickness of the-' plaintiff’s son, under which proof, if competent in other respects, might have been admissible. But there is no proof in this case that the witness was qualified to give the opinion called for by the question. The only evidence of the qualification of the witness to give the opinion asked for, was his statement that he was a botanic physician, that he had no license to practice, but had his medicine patented and had a right to sell it anywhere.

That evidence does not show or tend to show that the witness had any special knowledge in reference to the causes of disease. After-proving, as above indicated, all of the knowledge or sources of knowledge of the witness bearing upon his skill as an expert, the plaintiff asked this question: ic In your judgment, would such a smell in your yard, as it was at the time your son was taken sick, have a. tendency to produce such a sickness ? ” This question was objected to by the defendants on the ground, among others, that witness was-not competent, and that objection'was sustained, as we think, correctly, for the reasons above stated.

The plaintiff also objected to-evidence tending to prove the condition of the plaintiff’s premises. The witness "Watei’bury was permitted to answer, under the plaintiff’s objection, that on account of the filthy condition of the plaintiff’s hen-yard on plaintiff’s premises. lie would uot live there if it was given to him. The precise question in answer to which this evidence was given does not appear, but we are left to the inference that it was testimony called for by some appropriate inquiry, especially as the answer was not disclaimed by the defendants, but the testimony retained after objection by the plaintiff, which the case shows was taken in due time.

The defendants insist' that the evidence was harmless, especially ■■as it was the manner adopted by the witness in expressing his ■estimate of the rental value of the plaintiff’s premises without the ■existence or effect of the alleged acts or omissions of the defendants. "We cannot agree with the defendants in this conclusion. It was doubtless competent for the defendants to prove the rental value of the plaintiff’s premises, as they were without the alleged injury to them by acts or omissions of the defendants. But it should have been done, if at all, by competent evidence. The rental value of premises may be estimated by a witness and testified to, but it must be the market or merchantable value of the use of the premises, and not the estimate that witness may put upon the same for his own use.

To the individual witness who may have no use for the article, the value of which he is asked to estimate, it may be valueless, .while in the general market it may be valuable, and hence the inquiry always is confined to market-value. The inquiry upon this subject should have been confined to the rental value, with and without the alleged nuisance, and that should be estimated by what it would rent for, and not by the estimate that the witness would put upon it for his own use. (Esther Francis v. Jacob F. Schoellkoff, 53 N. Y., 152; Van Buren v. Water-Works Co., 50 Hun, 448; Barrick v. Schifferdecker, 48 id., 355.)

■ The appellant also insists that the learned trial court erred in not-submitting to the jury after the word “ caused,” in his second proposed question for the jury, the words “ or permitted,” upon the request by the plaintiff, which the court refused, and to which refusal the counsel for the plaintiff excepted.

If the amendment proposed by the plaintiff’s counsel had been adopted by the court, the question would have read as follows: Did the defendants, by any improper or unreasonable use of their barn lot, cause or permit foul or refuse water drainage to flow on plaintiff’s land so as to depreciate its value? If the defendants, by any improper or unreasonable usé of their barn lot, permitted the refuse-water drainage to flow on plaintiff’s land so as to depreciate its value, it is difficult to see why they would not be liable. Permitting a nuisance to exist, which was caused by the person creating it, is a repetition of the nuisance. In Brown v. Cayuga and Susquehanna Railroad Company (12 N. Y., 492), Denio, J., says: “ Every continuance of a nuisance is, in judgment of law, a fresh nuisance.” But, in this case, under the question as submitted, and from the charge of the learned judge, the jury might well have inferred that the continuance of the conditions injurious to the plaintiff furnished no ground of action, and unless they found that the defendants caused it, the plaintiff was remediless. This, we think, was restricting the inquiry of the jury within too narrow limits, and the court, in adopting the findings of the jury, must be held to have been restricted in the same manner. In the case above quoted, the same learned judge added: “ But I am of opinion that an action on the case will lie against one who continues a nuisance by which damage is occasioned to the plaintiff without notice first given to remove it.”

In this case some question was raised as to the exercise of the equitable power of the court to compel a defendant to abate a nui.sance without a request made to abate the same. But no such question can arise in the case at bar, as the uncontradicted evidence is that a request was made of both defendants before the commencement of the action to abate the alleged nuisance. "We are of •opinion that the error referred to in the admission of evidence and the erroneous refusal of the learned judge to submit to the jury the question at to whether or not the defendants permitted the existence of the alleged nuisance may have improperly prejudiced the rights of the plaintiff, and that for these reasons the judgment should be reversed.

Judgment reversed and a new trial ordered, costs to abide event.

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

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


source: Caselaw Access Project

author:
Mayham, J.:
      Landon, J.:

license: Public Domain

text:
    ELIZABETH A. CLAPPER, Respondent, v. THE TOWN OF WATERFORD, Appellant.

      Negligence — defective highway — its condition the dwy after the accident— adoption by a town of a crosswalk — its muddy condition — cross-examination—Laws of 1881, chap. 700, sec. 1 —• refusal of supervisor to pay over highway money.

      ■ In an action brought to recover the damages resulting from an injury caused by a defect in a highway, it appeared that, in a thickly settled part of a town; a ditch ran along a highway, across which had been constructed, some years bef oí e-the accident, by inhabitants of the town, a cross-walk. Where this cross-walk crossed the ditch a' plank-bridge was built, in which a hole, about ten inches, long and from four to five inches wide, had existed, at the time of the accident, for more than two months, into this hole the plaintiff, a foot passenger, fell about nine o’clock in the evening and was injured.
    There was no proof that the proper town officials had actual knowledge of the-existence of this hole; and upon the trial the town proved that the commissioner of highways had no funds at the time of the accident with which to repair bridges.

      Held, that it was proper for the plaintiff to prove the condition of the hole on the morning after the accident, as no change in its condition would be presumed to-have happened in so brief a period.
    That, it being a controverted question whether the town had ever recognized or adopted the bridge, it was proper to show that six days after the accident the town commissioner was seen making repairs there, the purpose of said evidence being strictly limited by counsel to show that the town exercised acts of authority over the bridge, and not to show that it needed repairs.
    That, as bearing upon the question of contributory negligence, the plaintiff might show that the cross-walk was muddy.
    That after a highway commissioner had testified, on cross-examination, as to town funds and official acts, it was not improper to allow him, on his redirect-examination, to state whether the board of highway commissioners had, in the spring-before the accident, called for an appropriation of money to be voted at town meeting.
    That the liability in the case at bar was one of the town, under the Laws of 1881 (chap. 700, § 1), and was not, in the first instance, that of the commissioner of' highways.
    That if the town supervisor had refused or neglected to pay the highway money to the commissioners, and they for that reason were without funds, this was no defense to the town.
    That the court was not required to charge abstract propositions of law, even if they were correct, unless they applied to the facts proved.
    That where a cross-walk, part of which consisted of such bridge, had been coirmonly used by the inhabitants of a village for some years, the jury might determine whether the town had adopted it as a part of the worked highway, and was, therefore, bound to repair it.
    That where the defendant requested the court to charge that there could be no-recovery unless the jury found that the highway commissioners were guilty of willful misconduct or culpable neglect, and the trial justice replied, “ If they did not exercise ordinary care it is culpable negligence,” no error was committed. (Landon, J., doubting.)
    Appeal by tbe defendant, tbe Town of Waterford, from a judgment of the Supreme Court, entered in the'clerk’s office of the county of Saratoga on the 24th day of April, 1891, upon a verdict for the plaintiff for $500, rendered after a trial at the Saratoga Circuit before the court and a jury; also from an order denying a motion for a new trial, entered in said clerk’s office on the 30th day of April, 1891.

      I. G. Ormsby, for the appellant.

      P. D. JOTi/oer, for the respondent.
   Mayham, J.:

The respondent, in passing over a foot-bridge over a ditch in the public highway, in the town of Waterford, stepped into a hole in' the plank and was injured. The highway was through a thickly peopled section, between the city of Cohoes and the village of Waterford. On either side of the highway was -a ditch, constructed for the ordinary drainage, surface drainage, of the highway; at about right angle with it was a cross-walk. The bridge over the ditch constituted a part of the cross-walk; was constructed of plank placed, upon stringers or timbers imbedded in the road-bed, and in the bank or curb outside of the ditch, with plank extending from one to the other across the ditch. The .length of the plank-bridge was about eight feet, and its width about two and one-lialf feet, and was about twelve inches above the bottom of the ditch. The proof tended to show that, in this plank-walk or bridge, there Was a hole through the planks about ten inches long, and from four to five inches wide, and that the same had been -there from May previous until the thirty-first of July, when this accident occurred.

This bridge had been constructed in connection with a stone cross-walk across the road-bed some years before by the inhabitants, and had, from time to time, been kept in repair by them. There was no proof that either the commissioners of the town or overseer of the ward had actual knowledge of the existence of this hole in the bridge or walk; and the defendant proved on the trial that the commissioner of highways had no funds with which to repair bridges at the time of the accident. Several objections and exceptions were taken by the defendant to evidence offered by the plaintiff on the trial. Exceptions were also taken to the refusal to nonsuit the plaintiff on the motion of the defendant, also to the judge’s charge, and to his refusal to charge as requested by the defendant. The plaintiff, on her own behalf, was permitted to state the condition of the hole in the bridge as she found it the morning after the accident. This the defendant insists was error. The injury occurred about a quarter to nine o’clock in the evening, and the examination of the hole in the bridge was made the next morning. We see no error in the admission of this evidence.

In Burns v. City of Schenectady (24 Hun, 10), cited on this point by the plaintiff, it was held error to exclude the testimony of a witness that he had seen similar accidents from the same obstruction for which the action was brought before the time of the injury complained of. This is not an authority to support the defendant’s theory here. In Collins v. New York Central and Hudson River Railroad Company (109 N. Y., 243), also cited by the defendant on this point, the witness was not permitted to state the result of his observation as to the capacity of two different smoke-stacks to prevent the emission of sparks, and the exclusion of the evidence was held error. I fail to see how that can be claimed as an authority for the defendant’s contention on this point. In Stodder v. New York, Lake Erie and Western Railroad Company (50 Hun, 225) evidence was given, under objection, of the condition of a railroad switch after the accident, and after proof that it had been changed, and it was held that such evidence was not admissible without proof that in spite of the substitution of the new portion the condition of the switch remained practically the same as it was when the accident happened. But the ruling was put upon the ground that a change had been proved, and the effect of that confessed change must be known before its changed condition can be competent, as proving its condition at the time of the accident. But a change is not presumed, the legal presumption is that things remain as they are proved to have existed until the contrary is proved; and we think the condition in which the bridge was the' morning after the injury is presumptively its position the night previous, and that the burden of showing it different is upon the party asserting the change.

It is also insisted that the trial judge erred in receiving evidence of repairs of this bridge by Quackenbush after this injury. It was proved by the plaintiff, under the objection of the defendant, that Quackenbush was at the time acting commissioner of highways of the town of Waterford, but we see no valid objection to that evidence, nor do we think that it was error to prove his acts in relation to this bridge. It was a controverted, and perhaps an important, question in the case, whether or not the town authorities had recognized, constructed or adopted this bridge as a part of the highway, but some evidence was sought to be given on both sides of this question. That being so, we think it was competent to prove the acts of the commissioner of highways of the town in reference to the bridge solely as bearing upon that question. After showing that Quackenbush was seen at this bridge about six days after the accident, the witness was asked this question. “ Did you see Quackenbush on this occasion repairing this bridge in question % ” The question as appears from the case was accompanied by the following statement: “ This question was asked for the purpose of proving only that the commissioner of the town of Waterford exercised control over the bridge and that they had sufficient funds at the time of this accident to repair the bridge, and it was not offered to show anything else.” This question was objected to upon the ground that it was incompetent, improper and immaterial. That Quackenbush was mot shown to be commissioner. That the bridge was not shown to be in the same condition in which it was at the time of the accident. That the evidence did not tend to show jurisdiction by the proper officer, or that they had funds.

If this question had been put without qualification, so that the inference- could be drawn that it was offered as an admission that the bridge was out of repair to the knowledge of the officers of the town, it would have been clearly incompetent within the decisions of the following cases Corcoran v. The Village of Peekskill (108 N. Y., 151); Salters v. D. and H. Canal Co. (3 Hun, 338); Payne v. T. and B. R. R. Co. (9 id., 526). The vice of this kind of evideuce is tersely expressed in tlie Corcoran Case (108 N. Y., supra), where the judge says: While such evidence has no legitimate bearing upon the defendant’s negligence or knowledge, its natural tendency is, undoubtedly, to prejudice and influence the minds of the jury.”

But in the case at bar this inference was expressly disclaimed by the question itself, and it was confined to two inquiries, one at least •of which was pertinent to the subject under investigation, viz., whether or not this was a part of the highway which was under the care and control of the commissioners. Upon that subject the •acts and declaration of the commissioners would be competent. (Bidwell v. The Town of Murray, 40 Hun, 190, 191.) There was no attempt to show the kind of repairs done by the commissioner to ■this bridge, and no inference could be fairly drawn that the repairs' ■related to the hole in the plank in which the alleged injury occurred, and as the question itself was an express disclaimer of any inference of an admission that the bridge was out of repair to the knowledge of the commissioner, we do not see that its admission was error. In Payne v. Troy and Boston Railroad Company (9 Hun, 526), the objectionable feature in the evidence was that it showed repairs •done in remedying the alleged defect which had produced the ■injury complained of, and thus bore directly upon the question of the negligence complained of. . In the case at bar its offer and reception was for quite another purpose, and was, we think, competent within the rule laid down in the case of Morrell v. Peck et al. (88 N. Y., 398).

Nor do we think it was error to admit the evidence of the plaintiff showing the muddy condition of the road at the walk at the time of the accident. That evidence was proper, we think, as a circumstance tending to excuse the plaintiff from the imputation •of contributory negligence. The question put to the witness, John Richmond, was proper on a cross-examination of that witness. The plaintiff called him and proved that he, with Quackenbush and Wood, were commissioners of highways of that town, and he was interrogated by the defendant and gave evidence on such examination as to the subject of funds in the hands of such commissioners, and other matters relating to their official acts. On the redirect-examination he was asked the following question : Did the board, in tbe spring of 1889, call for tbe appropriation money to be voted at town meeting?” This was objected to by tbe defendant and tbe objection was overruled. This was not error on a redirect-examination; in view of tbe evidence which bad been elicited by tbe defendant on tbe cross-examination of this witness. The defendant insists that tbe trial court erred in refusing to charge as requested in tbe defendant’s third request to charge. That request was as follows : “ Third. That if tbe commissioner bad demanded of tbe supervisor tbe highway money in bis bands, and be did not pay it to them, and they, for that reason, bad no funds, defendant is not liable and tbe jury may find that tbe highway commissioners bad used reasonable diligence in obtaining tbe funds, and not obtaining them they were not liable for any negligence in not repairing the highway if it was out of repair.” We think this request to charge was properly refused by tbe judge. Tbe liability, if one existed in this case, was one of tbe town, and not that of the commissioners of highways in the first instance. Section 1 of chapter 700 of tbe Laws of 1881, provides that: Tbe several towns in this State shall be liable to pay any person suffering tbe same, for all damages to person or property by reason of defective highways or bridges in such town, in- cases in which the commissioner or commissioners of highways of said towns are now by law liable therefor, instead of such commissioner or commissioners of highways.”

If the supervisor,'being an officer of the town to whom the funds applicable to roads and bridges have been paid by the collector, refuse or neglect to pay the same over to the commissioners, and by such neglect the commissioners are without funds, it is difficult to see upon wliat principle the town can be excused from liability for not keeping the highways or bridges in a reasonably safe condition for the public travel, on the ground that it, or its officers charged with the duty of making needed repairs, is out of funds, and, therefore, excused from the performance of such duty.

It is also insisted that the court erred in refusing to charge as requested in the defendant’s sixteenth request to charge.

The court, in that request, was asked ’ to charge that if the jury found that the gutter bridge was a board sidewalk rather than a part of the worked highway, the commissioners were not bound to keep it in repair. ‘ As an abstract proposition that request to charge may be sound, but we fail to see its application to this case, and lienee the court was not required to charge it. It is doubtless true that tlie commissioners or town could not be called upon to keep in repair a private sidevralk upon a country road, which they had in no way authorized or adopted as a part of the public street, but there is no evidence that would, justify the conclusión by the jury that this was such a structure. The proof showed it to be a stone walk across the traveled part of the highway and a bridge over the ditch, which was also a part of the worked portion, of the highway. It had been there for many years and used in the same manner by the public. In Hiller v. The Village of Sharon Springs (28 Hun, 346) this court held that, “if an individual voluntarily puts down a sidewalk, the village may, by acquiescence in the act for a sufficient length of time, and by other acts, accept the sidewalk, and with it the village must take the obligation to keep it in repair.” This rule may not, in its full force, extend to country roads, but when a cross-walk, which constitutes a part of the traveled street, and covering the ditch, has been suffered to exist for a number of years, we think, within the principle of the above case and others cited in that case by the court, it may be properly submitted to the jury for them to determine whether or not the town had adopted it as a part of the worked highway, which it is bound to keep in a reasonably safe condition for the use of the public.

The defendant excepted to the language of the judge, in which he says that, “ if they did not exercise ordinary care, it is a culpable negligence.” This was in response to a request of the defendant to charge, that the jury to find the defendant liable, must find that the highway commissioners were guilty of willful misconduct or culpable neglect. The judge charged as requested, but added as above quoted. We do not think the remark to which the exception was taken, when, taken in connection with the direct resjDonse to the request, was error. The charge of the judge upon the whole case was impartial and a correct ■ exposition of the law applicable to the same, and we see no error committed upon the trial for which the judgment should be reversed.

The judgment must be affirmed, with costs.

LeaRNEd, P. J., concurred.

Landon, J.:

I gravely doubt whether the town is liable. The citizens made the sidewalk and cross-walk. (Chap. 61, Laws of 1860; chap. 93,, Laws of 1863; chap. 233, Laws of 1881.) If the town could not. object, its failure to do so is not an adoption. But I do not dissent..

Judgment and order affirmed, with costs.


author: LaNdoN, J.:

text:
    ANN KLINE, Respondent, v. LUCY McDONNELL, Individually and as Administratrix of JOHN McDONNELL, Deceased, and Another, Appellants, Impleaded with Others.

      Fraudulent conveyances — a grant to one person, the consideration paid by another — the resulting trust extends only to what the debtor paid — 1 li &., m. p. 728, secs. 51, 53.
    On October 33,1877, one Morris conveyed to Lucy McDonnell a parcel of land for $500, for which John McDonnell, the husband of Lucy, gave his note for $500, payable one year from date. John McDonnell died intestate and insolvent on February 5, 1878, having paid'nothing upon the note, and his wife Lucy was appointed his administratrix. The note was fully paid, the sum of $375.18 being paid from his estate.
    In an action brought by a judgment-creditor, whose judgment was recovered upon a debt existing against John McDonnell, upon October 33, 1877, against Lucy, as such administratrix:

      Feld, that a trust resulted in favor of the judgment-creditor in the lands conveyed by Morris to Lucy, under 1 Revised Statutes (m. p. 728, §§ 51, 52), providing that where a grant for a valuable consideration shall be made to one person, and the consideration shall be paid by another, such conveyance shall be presumed to be fraudulent, as against creditors, at the time, of the person paying the consideration.
    That, under said section 51, it was not necessary that the debtor should pay the whole consideration in order that a trust result.
    That, under said section 53, the trust which resulted in favor of the creditor was-not as to the whole consideration paid, but only as to so much of the land as-was represented by the amount contributed by the debtor towards the purchase.
    That the judgment-creditor would be entitled to interest upon the sum contributed by the debtor, and to his costs.
    That in case the land should be sold the judgment-creditor might taire her pro rata share of the proceeds of the sale of the land, the costs being charged upon the defendant’s share.

      Appeal by the defendants, Lucy McDonnell, individually and as administratrix of John McDonnell, deceased, and by Edward McDonnell, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Montgomery on the 6th day of January, 1890, reciting that a conveyance of certain premises made by John Y. Morris to the defendant Lucy McDonnell was fraudulent, and that said Lucy held said premises in trust for the plaintiff, to the extent necessary to satisfy her claim, and directing a sale of said premises to satisfy said amount, after a trial at the Montgomery Circuit by the court, with notice of an intention to bring up for review upon the appeal all the exceptions of said defendants to the findings.and decision of the court herein.
    The action was brought to secure satisfaction of a judgment in favor of the plaintiff against the administrator of the estate of John McDonnell, deceased, out of certain premises granted to Lucy McDonnell by John Y. Morris, the consideration for which was agreed to be paid by John McDonnell, and was secured by his note, part whereof was paid after his death in the due course of the administration of his insolvent estate.
    John Y. Morris, October 23, 1877, conveyed by deed to the •defendant Lucy McDonnell a parcel of land for the expressed consideration of $500, for which John McDonnell, husband of Lucy, -on the following day, gave his promissory note for $500, payable one year from date. John McDonnell died February 5, 1878, intestate and insolvent. The defendant Lucy McDonnell was appointed administratrix of his estate, and in the due course of administration $275.18 were paid upon said note, part from a dividend declared by the surrogate from the proceeds of 1ns personal estate, and part from :a dividend from the proceeds of his real estate. The balance of the mote was paid, but by whom does not appear. John McDonnell himself paid nothing upon the note.
    The plaintiff is a judgment-creditor of the administrator of the •estate of John McDonnell upon a debt against said McDonnell existing at the date of the deed from Morris to Lucy McDonnell. She exhausted her remedies against the estate of .said McDonnell before bringing this action. Her judgment is unsatisfied to an amount exceeding $2,000.
    The trial court held that a trust resulted in favor of the plaintiff in the lands thus conveyed to the defendant, and directed the sale thereof to satisfy plaintiff’s judgment, with costs.

      Z. 8. Westbrook, for the appellants.

      M. L. Stover, for the respondent.
   LaNdoN, J.:

. We'have no doubt that the giving of the deed by John V. Morris to Lucy McDonnell, and the giving of the note for the purchase-price by John McDonnell to Morris, should be regarded as contemporaneous transactions, although the note bears date one day later than the deed. The deed was doubtless delivered in expectation of receiving the note, and the note was delivered to close the transaction. The point urged by the defendant that the note to secure the consideration was not delivered by John McDonnell at the time of the grant to his wife, but subsequently, does not meritoriously exist upon the facts, and need not be further considered.

The case is within the statute (1 K. S., 128, §§ 51, 52), which provides: “ Where a grant for a valuable consideration shall be made to one person, and the consideration therefor shall be paid by another, * * * such conveyance shall be presumed fraudulent as against the creditors at that time of the person paying the consideration, and where a fraudulent intent is not disproved, a trust shall result in favor of such creditors to the extent that may be necessary to satisfy their just demands.” (Garfield v. Hatmaker, 15 N. Y., 475.)

Although John McDonnell gave his note for the entire consideration, he paid nothing upon the note in his lifetime, and his estate paid only part of it. Upon this state of facts the trust results in favor of the creditor pro tanto.

The statute is intended to protect creditors against the fraud of their debtors, and to apply the debtor’s property to their benefit, although he has changed the f ohn of it and parted with his title to it. A literal reading of section 51 seems to require that the debtor shall pay the whole consideration in order that the trust result; but this would be inequitable since the object is to reach what he thus diverts. A literal reading of section 52 seems to provide that whenever the trust does result in favor of the creditors it results “ to the extent that may be necessary to satisfy their just demands,” irrespective of the extent or proportion of the debtor’s contribution towards the purcliase-price. But this cannot be so, since in that case the creditor might not only take the equivalent of the debtor’s contribution to the purchase-price, but might confiscate that proportion of the land which his debtor did not pay for, but which the grantee did. Suppose John Doe had paid half the consideration and John McDonnell the other half, would not a trust result in favor of John Doe’s creditors in like manner as in favor of McDonnell’s? The statute gave the creditor an equitable remedy; but an equitable remedy to repair his debtor’s wrong, not to enable himself to do a wrong to a third person who owes him nothing. The statute, therefore, when it declares that u a trust shall result in favor of such creditors,” means that it shall result in respect of so much of the land as is represented by the debtor’s contribution to the purchase-money.

These views find support in Botsford v. Burr (2 Johns. Ch., 405). True that case was before the statute, and when the resulting trust arose in favor of the person paying the purchase-money, instead of, as now, in favor of the creditors of such person. But the principle upon which the trust arose is the same in both cases. The statute changed the beneficiary of the trust. Chancellor KeNT said in that case : “ The cases recognize the trust where the money of A formed only a part of the consideration of the land purchased in the name of B. The land in such case is to be charged fro tanto.” (Story’s Eq. [11th ed.], § 1201c; McGowan v. McGowan, 14 Gray, 122.)

The trust resulting in favor of the plaintiff is in the land. But equity would be done if defendant should pay to plaintiff upon her judgment against the estate of John McDonnell the amount of the purchase-money paid by him, with interest and costs, within thirty days after service upon her or her attorney of a copy of the judgment. Failing to make such payment the land should be sold as provided in the judgment appealed from, and from the proceeds, after payment of costs, at least the same amount should be paid the plaintiff. But in such case the plaintiff may take her fro rata share of the proceeds of the sale of the land, the costs being charged upon the defendant’s share. Our computation, made by adding interest on the purchase-money to date of first payment and deducting that payment, and adding interest on the balance to date of last payment, left unpaid at that date $298.76. The total paid was $215.18. The plaintiff’s equity is, therefore, -Piil; and in case of sale, if that equity exceeds the $275.18 and interest, the plaintiff will be entitled to the excess, free from costs.

The judgment should be modified accordingly, and as modified affirmed, without costs of this appeal.'

LeaeNed, ÍP. L, and Mayham, J., concurred.

Judgment modified according to opinion.


author: LEARNED, P. J.:

text:
    BILLINGS G. MARTIN, Responded, v. THE NEW YORK, ONTARIO AND WESTERN RAILWAY COMPANY, Appellant.

      Negligence — a fire from, sparks from an engine — proximate cause — that other lands intermned between the place of origin of the fire and the wood-land burned is not material — different rule in a milage and city.

    In an action brought to recover damages to the wood-land of one Martin, caused, as alleged, by a fire started by sparks or cinders from the engines of a railroad company, it appeared that the Are began in old brush and ties lying by the side of the track; that there was no change of wind during the continuance of the fire; that between this place and Martin’s land the lands of other persons intervened, and that their condition was favorable to carrying the fire onward; that it crossed a river about ninety-seven feet wide, its point of crossing being where old trees oyerhung the river; that the course of the fire was direct; that Martin’s wood lot was nearly a mile and a half distant from the point where the fire began, and that the fire burnt rapidly.

      Held, that the sparks or cinders were the proximate cause of Martin’s loss and that he could recover.
    That the fact that the lands of other persons were passed over by the fire before those of Martin’s were reached was not material.
    That the rule applicable to fires negligently set by the owner of a house in a village or city, and running from it to another house, had no application to a fire wliere the surroundings were of the character appearing in the case at bar.
    Appeal by the defendant, the New York, Ontario and Western Railway Company, from a judgment, entered in the office of the clerk of the county of Sullivan on the 13th day of October, 1890, upon a verdict for the plaintiff for $450 damages and costs, after a trial at the Sullivan Circuit before the court and a jury; and also ■ from an order, made in this action on the 24th day of September, 1890, denying the motion of the defendant fór a new trial, with notice of an intention to bring tip for review on such appeal both the law and the facts of the case.

      George H. Carpenter, for the appellant.

      W. F. O’Neill, for the respondent.
   LEARNED, P. J.:

This is an appeal by the defendant from a judgment on a verdict, and from an order denying a new trial. The action was brought to recover damages caused to plaintiff’s wood-land, about the twenty-second of May, by a fire which is alleged to have originated through defendant’s negligence. The fire started on the east side of defendant’s track in old brush and old ties which were along the track. The brush had been cut the fall previous. The ties had been taken out of defendant’s road. The alleged negligence was in leaving this dry and combustible material alongside of defendant’s track, where it might catch fire from the escape of sparks or burning cinders from defendant’s engines. The fact of the fire is not disputed. Nor is it disputed that it started as above stated. The defendant claims that the injury done to plaintiff is too remote from the original kindling of the fire, however negligent that was, to permit a recovery.

The fire started at a point between the Neversink tunnel and the Fallsburgh station. From that point to the Neversink river is about one mile. The river is about ninety-seven feet wide. It is described as having a high bank on the west side with large timber. In some places, a witness says, the river was almost closed in and trees leaned over. The .east bank was a bark “ slashing ” all the way. That is combustible and easily ignited. The plaintiff’s land was about twenty-four hundred feet beyond the river.

There had been a drouth for many days previous. The wind on the day of the fire was blowing strongly from the south-west to the north-east, which was in the direction of plaintiff’s land from the place where the fire started. The fire, starting from defendant’s road, ran through lands of Carley and of O’Neill to the river. ■There it crossed the river, evidently conveyed by the brush and dry timber on the banks and by ,the trees reaching over the river, and then continuing on it burned the plaintiffs wood-land. One witness, says that, when it reached the river, “ it could not help but go ; the-wind was driving it over the hill as fast as a man could run.”

It cannot be said that plaintiffs damages are speculative. They are actual, and are the result, direct or remote, of defendant’s, negligence.

If the plaintiii had been an owner adjacent to the railroad, and the fire starting on the railroad had caught one of plaintiffs trees, and had burned it, there could be no doubt of defendant’s liability.

Suppose that from that tree another on plaintiffs land and still another liad caught and had been destroyed, would it be said that-the damages for all but the first tree were too remote ? Clearly not. ( Webb v. R. W. and O. R. R., 49 N. Y., 431.) One might as well say that if one side of plaintiffs house adjacent to defendant’s land had caught fire, and the fire had extended through to the other side of the house, plaintiffs damages must be confined to the value of the side •vtliicli first caught fire.

It seems, then, plain that if the plaintiffs wood-land had been adjacent to the defendant’s track, and the fire starting on defendant’s track had extended over plaintiffs land, defendant would have-been liable for all the damages caused thereby, and not solely.for-the value of the first tree or trees which ignited. A contrary rule-would plainly be absurd.

Now, let us suppose, a very possible supposition, that the plaintiff had owned the land of Carley and of O’Neill, and all the land between the railroad and that land, which he does, in fact, own. In that case, could it be said that he could not recover for the damages done to the whole of the land owned by him ? But what-difference, as to defendant’s liability, whether the plaintiff owned, all the land from the railroad track to and including that now in question, or whether the intermediate land belonged to some other-person ? The damages are no more remote in the one case than in the. other. The damages are just as immediate a result of the defendant’s, negligence, whether the land over which they extend belongs-to one person, or, in severalty, to two. The question of remoteness cannot depend on the title to the land. To hold otherwise would be absurd. A fire in such cases travels along from tree to tree, from, brush to brush, from grass in one place to grass adjoining. The line which divides the ownership of the land neither stops the fire or carries it forward. So that the ownership is utterly immaterial, when we are considering whether a certain result is the direct effect of the original fire. It might be material if there were a change of wind or if some new cause should intervene. There was none here.

The case of Ryan v. New York Central Railroad (35 N. Y., 210), is very gingerly treated in Pollett v. Long (56 id., 206), and (O'Neill v. New Work, Ontario and Western Railroad Company (115 id., 519). And it is not necessary to comment upon it. It is not the case before us. Whatever may be the law as to a house in a village or city which takes fire from the burning of an adjacent house, negligently set on fire by the owner, that is not the question here. It is well settled that where one negligently sets on fire grass or brush, or other combustible material, and the fire extends to the adjacent owner’s land and destroys woods or grass, such -owner may recover the damages. (Webb v. Rome, W. and O. R. R. Co., ut supra, and many other cases.) It is not necessary for us to justify the distinction made between such cases and that of city or village houses.

The question involved here was considered in the O’Neill ease (ut supra). There it was urged that the plaintiff could not recover because the plaintiff’s lands did not lie next to the railroad but were separated from it by the lands of another. , In answer to the point that this objection, though not urged at the trial, could not have been remedied, and might, therefore, be heard on appeal, the court said that this fact alone was not decisive. Other circumstances would control, and the court could not say that testimony would not have shown that the result was to have been anticipated from the moment fire dropped. If so, the destruction of plaintiff’s property was not remote. Thus we see that this is the test; or, as again ' expressed, the question is whether the result was the natural and direct effect of the first firing.” So the learned justice charged in this case. The jury must have found that the destruction of plaintiff’s property was the natural and direct effect of the fire which started on defendant’s land. Such finding is fully sustained. There was no change of the wind. It continued to blow in the same direction. The fire moved rapidly along to the plaintiff’s land. It does not appear that there was anything extraordinary in the circumstance that it passed from one side of the river to the •other, when we consider the condition of the banks and the brush and slashing thereon. At any rate, nothing but the wind and the condition of the banks carried the fire over. Hence the crossing was to have been anticipated.

The case of Read v. Nichols (118 N. Y., 224), decided three months after the O’Neill case, makes no reference to it, and is not material here. It was the case of a fire in a village somewhat like the Ryan case. Sparks from a smoke-stack blown by a strong northeast wind had set fire to a house 280 feet distant, then the wind died •down and changed to a breeze from the south, and plaintiff’s building was destroyed. There were no fire apparatus andmo ladders long enough to enable persons to go on the roof of the first building. ■On all these circumstances the court held that the loss was not the direct effect of defendant’s negligence. That case, therefore, belongs to the same class as the Ryan case. It is unlike the other and more familiar cases in which a fire negligently kindled on a man’s ground has, under the operation of the existing natural conditions, •extended itself to other land and destroyed woods, crops, grass and fences. The O’Neill case is so close in point that it is unnecessary to cite cases from other States.

The judgment and order should be affirmed, with costs.

Landon and Mayham, JJ., concurred.

Judgment and order affirmed, with costs.


author: Learned, P. J.: .Landon, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. WILLIAM J. BEST, Appellant, v. CHARLES M. PRESTON, as Superintendent of the Banking Department of the State of New York, Respondent.

      Banks — special exmiiner’s compensation — stale demand — res adjudícala■ — •rights of the hank which is to pay — statute of limitations.

    In 1877 one Best was appointed by the banking department of the State of New York a special examiner to examine a bank. The expense of such work, it is directed by statute, shall be paid by the corporation examined'in such amount as the superintendent of the banking department shall certify to be just and reasonable. Tlie special examiner completed his work on February 27, 1878, and was paid therefor in part, but deemed the payment proposed to.be made in full, for such work, insufficient.
    In 1887 Best applied to the then superintendent of the banking department for a. certificate for what he deemed a reasonable amount, but his application was denied upon the ground that the failure, during a period of nearly ten years, to. demand or to receive a certificate was a bar thereto.
    In 1890 Best applied again to the superintendent for such a certificate, who denied it upon the grounds that the claim was stale and that the decision of his predecessor was res adjudicata.

    An application for a peremptory mandamus to compel the giving of such a certificate by the superintendent was denied.

      Held, that this was proper.
    That the refusals of the two superintendents to issue such a certificate were not refusals to act, but constituted in each case a judicial decision that the examiner-had no present claim. - *
    That the decision of the first superintendent was res adjudicata as to the second, and was binding- upon the latter.
    That, in both instances, the remedy of the examiner was by certiorari, and that a mandamus was improper.
    That as the claim of the examiner was one against the bank, and not one against, the State, the bank had a right to insist that the decision of the first superintendent was an absolute bar to a further application upon the same claim.
    That a mandamus cannot be granted after the period fixed by statute as a bar to-an action has expired.
    That the examiner’s right to demand said certificate accrued, in analogy to the-principle laid down in section 410 of the Code'of Civil Procedure, upon the day when he finished his work, i. e., February 27, 1878.
    That he could not extend the time by neglecting to demand a certificate.
    Appeal by the relator, William J. Best, from an order of the-Supreme Court, entered in the office of the clerk of Albany county on the 31st day of March, 1891, refusing to grant a motion that a peremptory writ of mcmdmmts issue to Charles M. Preston, as-Superintendent of the Banking Department of the State of New York, directing him to certify such amount of compensation as lie-should deem just and reasonable to be paid to said Best by the TJnion Dime Savings Institution of the State of New York for-services rendered by said Best in and about a special examination, made by him of said institution.

      John T. MoDonough, for the appellant.

      Oha/rles F. Tabor and I. II. Maynard, for the respondent.
   Learned, P. J.:

This is an appeal from ap order denying relator’s motion for a, writ of peremptory mandamus.

In 1877 the relator was appointed by the banking department a. special examiner to examine the Union Dime Savings Bank of New York. He entered on his work September 26 and continued till February 27, 1878. The statute says that the expense ‘‘shall be paid by the corporation examined, in such amount as the superintendent shall certify to be just 'and reasonable.” (Laws of 1875,, chap. 371, § 43.) During the examination the bank paid for this examination, for services, expenses, services of accountant, attorneys and clerks and disbursements, in all $8,356.05. This included $2,500 for the services of the relator paid to him.

After the examination Mr. Lamb,'acting superintendent of the banking department, proposed to certify, under the law, $2,500 in full for compensation, being the amount already received. The relator deemed this insufficient, but presented no bill, and no formal action was taken by the acting superintendent.

In November, 1887, the relator applied to Mr. Paine, then superintendent of the banking department, for a certificate of the amount deemed just and reasonable. Mr. Paine denied the application March 3, 1888, holding that the la/pse of ten years since the services and the failure to give or demand a certificate during that time was a bar. Mr. Paine wrote a full and careful opinion and concluded by saying: “ If I am wrong in this opinion, the examiner has his remedy in the courts.”

In May, 1890, the relator applied to Mr. Preston, the superintendent of the banking department, to re-open and re-hear the matter and to make the said certificate, and about December 31,1890, the superintendent denied the application, writing an opinion and giving two reasons for his refusal. First, that the claim was stale and the applicant was barred; second, that the decision of Mr. Paine was res adju,dieata and a bar to the re-opening of the matter.

Thereupon the relator applied for a peremptory mandamus, which was denied. The opinion of the learned justice holds that the act of granting a certificate is judicial, and, therefore, ma/ndamus does not lie. Also, that if the relator felt aggrieved by the decision of Mr. Paine he should have reviewed it by certiorari. Also, that Mr. Preston properly lield that the decision of Mr. Paine was Q'es ■adjudicate/,.

The learned counsel for the relator on this appeal, while he does not dispute the general rule that memdewius does not lie to direct a judicial or quasi judicial officer how to act, insists that neither Mr. Paine nor Mr. Preston did act on the application, but that each refused to exercise judicial discretion; the former on the ground of the staleness of the claim, the latter on the ground of res codjudicctta.

The question, then, is this: When the relator applied for a certificate to Mr. Paine, and Mr. Paine refused it on the ground that the claim was stale (or barred by the statute), was that decision an acting or a refusal to act? We think it is the former. It was a judicial decision that the claim was stale. That decision presupposed a consideration of the services ; of the time when they were finished; of the reasonable time thereafter to apply for a certificate; and it might have included a consideration of any excuse for the delay. It appears from the opinion that Mr. Paine considered also the fact that, owing to the lapse of time, the funds in the bank are not the same which they were at the time of the examination ; and also that it would not be equitable to charge the depositors of 18S8 for services rendered to the depositors of 1878. All this shows judicial action. True, he came to the conclusion to make no certificate. But in a trial at law, a plaintiff who fails because his action is barred by the statute, has a judicial decision as much as if he succeeded. We, therefore, think that the remedy of the relator in both instances was by certiorari.

But as the facts are before us, and as another important question is presented, we proceed to consider that without reference to the form of the present proceeding.

Mr. Preston, in refusing to grant the certificate, held that the action of his predecessor, unreversed, was binding on him as res ■adjudicata, in a manner analogous to a judgment in a court. We are of opinion that he was right.

The answer of the appellant to this point is, that a decision is binding in this way only when it is on the merits. (Osterhoudt v. Rigney, 98 N. Y., 222.) But we have already stated that we consider the action of Mr. Paine to be not a refusal to decide, but a decision. And if a decision, then, of course, on the merits. A judgment that an action is barred by the statute of limitations is just as much a judgment as any other, so'far as the matter of res adjudieata is concerned.

In Osterhoudt v. Rigney (ut supra, at p. 234) the court says: “ The rule which forbids the re-opening of a matter once judicially determined by a competent jurisdiction applies as well to the decisions of special and subordinate tribunals as to decisions of courts exercising general judicial powers.” That remark was not obiter ; for the question of re-opening such a decision was directly before the court. It is hardly necessary to cite any other authority in this State.

In United States v. Bank of the Metropolis (40 U. S. [15 Pet.], 377) the Supreme Court of the United States, speaking of the powers of the postmaster-general, say: “ The right of an incumbent of reviewing a predecessor’s decisions extends to mistakes in matters of fact arising from errors in calculation and to cases of rejected claims, in which material testimony is afterwards discovered or produced.” Taking this exposition of the right to review claims, the relator’s ease does not come within it. (See, also, Lavalette v. U. S. 1 Court of Claims, 147.)

But there is another consideration. In the present case the relator had no claim against the State. ' The relator’s claim is against the savings bank. The superintendent of the banking department is only the judicial authority to decide the amount. When that has once been decided between the parties the savings bank has a right to insist on the absolute bar to any future application.

In our system of government, where changes of State officers are so frequent, and where one political party may succeed another in a few years, it is of great importance that there shall be no right in a new officer to reverse the decisions of his predecessor. The contrary rule would, in our government, be especially dangerous. . And officers themselves should be protected from the importunity of claimants in such cases; even where the claim is one against the State itself.

Still another objection exists. Mandamus should not be granted after the period fixed by statute, as a bar to an action has expired. (Code, § 414; People ex rel. Millard v. Chapin, 104 N. Y., 96.) And may even be refused for laches before that period. Where a right exists, but a demand is necessary to entitle a person to maintain an action, the time begins to run under the statutue of limitations from the time when the, right to make the demand was ■complete. (Code, § 410.) By analogy to that principle, the relator’s right began when he had finished his work, viz., February 27,1878. He cannot extend his time by neglecting to demand a certificate. (People ex rel. Sheridan v. French, 15 Abb. N. C., 413.)

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

Mayham, J., concurred.

.Landon, J.:

I concur in the result upon the ground quoted in the above •opinion from 15 Peters, 377. I think that mandmius is the proper remedy when a ministerial officer refuses to perform an act which an individual has the legal right to require, although the refusal may be based upon the officer’s misconstruction or misapplication of the law.

Order affirmed, with ten dollars costs and printing disbursements.


author: Learned, P. J.:

text:
    CHARLES BARNUM, as Supervisor of the Town of Thompson, Respondent, v. THE BOARD OF SUPERVISORS OF SULLIVAN COUNTY, Appellant.

      Town bonds — application of taxes from railroad property towa/rds the payment of such bonds — the statute applies to bonds issued in renewal of the original bonds.

    It is provided by tlie Laws of 1869 (chap. 907, § 4, as amended by the Laws of 1871, chap. 283), that taxes, except school and road taxes, levied upon the assessed valuation of any railroad, to aid in the construction of which a town lias issued bonds, shall be invested by the county treasurer as a sinking fund to pay off such bonds.,

      A town issued bonds of this character in 1871 which were held to be valid. In 1883 the legislature authorized the town to issue new bonds with which to retire the old ones, and to pay judgments obtained upon them. These new bonds were issued, and with their avails the old bonds and judgments were paid.
    .From 1881, to and including 1887, the property of the railroad was assessed, and the taxes resulting therefrom were applied by the county treasurer to the general purposes of the county, and not to the formation of a sinking fund to retire the new bonds of the town.
    In an action by the town to recover from the county the moneys thus diverted:

      Held, that the statute of 1869, as amended in 1871, applied to the new renewal bonds, and that it was the duty of the county to apply the moneys received from the taxation of the railroad property to the formation of a sinking fund to pay of£ the same.
    Appeal by the defendant, the Board of Supervisors of Sullivan County, from a judgment, entered, after a -trial by tlie court at the Sullivan Circuit, in the office of the clerk of the county of Sullivan on the 22d day of September, 1890, directing a recovery by the plaintiff of $1,766.80, and that said board levy said sum by tax and pay it to the county treasurer of said county for the benefit of the town of Thompson, with notice of an intention to bring up for review upon such appeal an order entered therein granting the plaintiff an additional allowance of costs.
    The action was brought to recover the amount of certain State and county taxes collected from the Monticello and Port Jervis Railroad.
    The court below found that the Monticello and Port Jervis Railroad was constructed and operated between the years 1868 and 1871 in the town of Monticello; that the taxpayers of said town subscribed consents to the bonding of the town in aid of the construction of said road sufficient in number and amount to authorize the bonding of the town under the statute. Pursuant thereto the town issued its bonds to the amount of $148,000, which were negotiated, and the proceeds used in the construction of said road ; that, in each and all of the years 1881 to 1887, inclusive, the said railroad property was assessed by the assessors of said town in the same manner, and upon the same basis, and in the same assessment-roll, as all other property in said town, upon which assessment the State and county taxes, levied in said county of Sullivan, were apportioned and levied upon the taxable property of said town by the board of supervisors of said county, including the said railroad property; that the amount so levied and collected from the railroad property for State and county taxes, exclusive of school and road taxes, was by the -collector of said town paid over to the county treasurer, and was by him mingled with all other moneys which came to his hands in one general fund, and was used and paid out by him for the use and benefit of said county.

      John F. Anderson and Lewis F. Oarr, for the appellant.

      T. F. Bush, for the respondent.
   Learned, P. J.:

This case is similar to that of Kilbourne, Supervisor, v. Board of Supervisors, decided at this term. It will not be necessary to consider any of the questions decided in that case.

Another question, however, is raised, viz., whether the bonds of the town of Thompson which are here involved, are such that the provisions of chapter 907, Laws of 1869, as amended by chapter 283, Laws of 1871, apply to them.

The town of Thompson issued bonds in 1869 to aid the IVIonticello and Port Jervis Railroad Company, and such bonds were exchanged for stock of that company. The case of Horton v. Town of Thompson (71 N. Y., 513), was an action on one of these bonds. The Court of Appeals, by a vote of four to three, held that the bond was void and reversed the decision of the General Term. (7 Hun, 152.) This doctrine was, however, in 1880, emphatically overruled by the Supreme Court of the United States in Thompson v. Perrine (103 U. S., 806), and again in Same v. Same (106 id., 589).

Thereupon, as the town of Thompson was thus declared to be liable on these bonds, an act was passed in 1883, chapter 226, authorizing the town to issue bonds and pay judgments and debts. Bonds were accordingly issued, and with the avails the judgments and original issue of bonds were all paid off. The issue of bonds under the act of 1883 is now outstanding, and it is in respect to that issue that the remedy is sought in this action. It is expressed in that act that the new issue is for the purpose of paying off bonds issued in aid of the IVIonticello and Port J ervis Railroad Company and judgments and coupons of said bonds.

This act of the legislature, accepted by the town, is an acknowledgment of the validity of the original bonds and of the error in the decision of the Court of Appeals. It can no longer be claimed that the original bonds were at any time invalid.

The bonds which were considered in Strough v. Supervisors (119 N. Y., 212), had a history somewhat similar. In People ex rel. Irwin v. Sawyer (52 N. Y., 296), the Court of Appeals reversed the action of the county judge in hié- proceedings to bond the town of Orleans. In Orleans v. Platt (99 U. S., 676), however, the Supreme Court of the United States held that the bonds issued under the proceedings before the county judge were valid. And in the Strough Case (ut supra) the Oourt of Appeals gave the remedy in respect to those bonds which is now asked for.

The only question, then, which need be considered is whether the renewal of the debt by the issue of new bonds, under the act of 1883, gives the town of Thompson the same right in regard to the application of these taxes which was held in the Strough case and others.

The provisions of the statute (chapter 283, Laws of 1871) important to consider are : “All taxes * * * or so much thereof as may be necessary, in any town, village or city, on the assessed valuation of any railroad in said town, village or city, for which said town, etc., has issued or shall issue bonds to aid in the construction of said railroad shall be paid,” etc.

The object of thiij is plain. The town has incurred a debt to build a railroad. It has thus increased the taxable property in the town. It is reasonable that the taxes on this increase shall go towards defraying the debt of the town. (Clark v. Sheldon, 106 N. Y., 104.) Now, the object to be accomplished is just as reasonable, and the end is just as much aimed at, when the debt of the town is renewed as when it remains in it's original form. The object is to relieve the town in part from the burden which it has assumed for the public benefit. And the town is under the same burden after it has renewed the debt as before. This view was taken in Van Tassell v. Derrenbacher (56 Hun, 477) although not there necessary for the decision; and it is plainly sound. It is the general tendency of our law to consider obligations as renewals, rather than new debts, when such is practically their character and where no conflicting rights are involved. s Very likely, in the present case, the new issue of bonds was sold to persons other than the holders of the old. And so, too, the old bonds might have been transferred to others than the original holders. But that would make no difference. As between the town and the county the town still remains indebted and the tax on the railroad property is still appropriated to the debt.

Tbe learned justice held that these taxes could not be applied to the costs in the judgments which were paid by the new issue of bonds, but that the amount of the recovery in this case would not be sufficient to pay the original debt. So that the question whether the costs could be paid from these taxes does not arise.

The judgment should be affirmed, with costs.

Landon, J., concurred.

Judgment affirmed, with costs.

       Reported, post, page 210.